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Judgment
S.N. Satyanarayana, J—The claimant in MVC No. 2880/2008 on the file of M.A.C.T., Bengaluru, has come up in this appeal challenging the judgment and award dated 09.09.2010 dismissing his claim petition.
Though this appeal is at the stage of admission, since lower Court records are secured, it is taken up for final disposal at the request of learned counsel appearing for both the parties.
The brief facts leading to this appeal are as under:--
The claimant, a security guard in a private firm, is said to have met with a road traffic accident on 23.11.2007 at about 9 p.m. on Mysuru Road near Nayanadahalli in front of Ashwini bar. It is stated that the accident was caused by tempo bearing registration No. KA-20-425. The complaint is lodged by Suresh, the son of the claimant on 25.11.2007 at 2:15 p.m. in Byatarayanapura traffic police Station. The contents of the complaint reveals that on 24.11.2007 at about 5:40 p.m., the complainant, who is the son of the claimant, is said to have received information from somebody that his father was seen near Hi-tech hospital on Mysuru road and when he went there, he found that his father was injured. Hence, he took his father to Sanjeevini Nursing Home, where he was administered first-aid and thereafter, he took him home. It is further stated that on next day i.e., 25.11.2007, since his father complained of severe back pain and discomfort, he was admitted to Hi-tech hospital for treatment. Based on that, case was registered in Crime No. 426/2007 and chargesheet was filed against driver of the said tempo. Subsequently, claimant, who is said to have taken treatment in Hi-tech hospital, has filed claim petition contending that he has suffered fracture of left parieto occipital bone, for which, he took treatment initially for five days from 26.11.2007 to 01.12.2007 and subsequently, for 12 days from 03.12.2007 to 15.12.2007 in Subhash Medical Centre and further treatment in Udhbhava hospital for a period of three days from 01.12.2007 to 03.12.2007. He sought for compensation to be awarded against owner and insurer of the offending tempo.
In the said proceedings, claimant adduced evidence as PW.1 and examined Rajappa, Record keeper in Subhash Medical Centre as PW.2, who has produced records pertaining to claimant in the said hospital. He has also adduced evidence through Dr. S. Ramachandra, an orthopaedic surgeon of Bowring and Lady Curzon hospital, who has not treated the claimant and who has given disability certificate based on the medical records produced before him. Tribunal, on going through the material on record, held that claimant has failed to prove that the accident occurred due to the rash and negligent driving of Tempo as contended by him in the claim petition and accordingly, dismissed the petition. Being aggrieved by the same, this appeal is filed by the claimant seeking to set aside the judgment and award of the Tribunal in dismissing the claim petition and to independently assess the claim petition for awarding compensation.
Heard the learned counsel for appellant as well as the contesting respondent - Insurance Company. Perused the lower court records as well as the grounds of appeal. On going through the same, it is seen that the entire recitals in the complaint creates suspicion about the accident having occurred in the manner stated by claimant and involvement of the Tempo in the accident. The accident is said to have taken place on 23.11.2007 at about 9 p.m. near Ashwini bar on Mysuru road. Thereafter, what happened to the claimant till 5:45 p.m. on 24.11.2007 is not forthcoming either in the complaint or in the petition. Claimant, PW.1, has deposed in his evidence that immediately after the accident, he was shifted to Hi-tech hospital on Mysuru Road, wherein he was administered first-aid and thereafter, he was treated as inpatient in Subhash hospital from 26.11.2007 to 01.12.2007. However, the same is contrary to the contents of complaint, wherein complainant has stated that he took his father, who is claimant, to Sanjeevini Nursing Home, where he was given first-aid. While addressing arguments, learned counsel for appellant tried to demonstrate that the claimant was initially treated as an inpatient in Hi-tech hospital and complainant''s son received information from the said hospital. However, the complaint reveals that the complainant received information from somebody that his father was found near Hi-tech hospital. There is no material on record to show that claimant was treated at Sanjeevini Nursing Home as stated by complainant.
When admittedly, claimant has not lost consciousness and was aware that the accident occurred on 23.11.2007 at 9.00 p.m., it is not explained by him as to why he was sitting on Mysuru road near Hi-tech hospital waiting for somebody to go to his home and inform his family members about the accident. If the claimant was in a position to inform somebody about his particulars, it is not explained as to why he did not return home on 23.11.2007 soon after the accident. The wound certificate - Ex. P5 indicates that claimant has not suffered any injury either to his leg or hand. Nothing prevented him from going to his home after the accident by getting into an Auto with the assistance of somebody. The reason as to why he stayed near the accident site for about 19 hours after occurrence of the accident is completely kept under wraps and nothing is stated in that regard either in the pleadings or evidence. It is seen that on 24.11.2007, when the complainant went and found his father sitting on Mysuru road, he did not admit him to Hi-tech hospital, but took him to Sanjeevini nursing home, which is away from that place and got him first-aid. If the injuries as stated were suffered by claimant on 24.11.2007, it is not forthcoming as to why claimant was not treated as inpatient in Sanjeevini nursing home or at Hi-tech hospital. In addition to that, it is seen that complainant, who has filed complaint before Police has not stated the manner in which the accident took place. It is the complainant, who has given evidence. Incidentally, one another strange thing, which is observed by this Court is that as on the date when the accident took place, there is no reference to the claimant having lost his consciousness or that he was in coma or under complete shock, during which period, he could not remember to reach his house. There is nothing on record to show that claimant tried to contact somebody and inform him/her as to how and in what manner, he managed to stay near Hi-Tech hospital from 9 p.m. on 23.11.2007 to 5:40 p.m. on 24.11.2007 and more particularly, when he has taken treatment in a different Hospital i.e., Subhash Medical Centre for a period of 12 days.
Admittedly, Doctor - PW.3, who has given evidence, has not treated the claimant. He is an Orthopaedic Surgeon having expertise in assessing disability and giving evidence in claim proceedings. The claimant has not examined Doctor who treated him either in Subhash Medical Centre or Udhbhava hospital, where he is said to have taken treatment. In Ex. P8, Discharge summary, issued by Udhbhava hospital, there is reference to claimant being chronic alcoholic. Looking into all these aspects, the Tribunal has rightly held that there is no truth in the allegation made by claimant about the involvement of the vehicle belonging to respondents in causing the accident.
At this juncture, it is also necessary to mention that counsel for the appellant tried to demonstrate that respondent No. 1 - Insurance Company has stated in its objections statement that the compensation sought is on a higher side, which indicates that Insurance Company has accepted liability. This Court is not inclined to accept that line of argument for the reason that in the written statement, the Insurance Company can take all defences available. It can take the defence of denial of accident as well as contend that compensation awarded by the Tribunal is higher in the same breath. Mere statement in the written statement that the compensation sought is on higher side does not mean that accident is accepted by the Insurance Company.
In that view of the matter, the Tribunal has rightly rejected the claim petition. The question of admitting this appeal does not arise and claim made by claimant that he is entitled for compensation does not stand to reason. Accordingly, this appeal is dismissed.