Muniraju and Others vs T.H. Ravikumar and Others

S.N. Satyanarayana, J.—The claimants in MVC Nos. 7165/2008 and 7166/2008 on the file of M.A.C.T., Bengaluru, have come up in these two appeals impugning the common judgment and award dated 07.01.2010 in dismissing their claim petitions filed seeking compensation for the injuries suffered in a road traffic accident that occurred on 11.05.2008.

Though these appeals are at the stage of admission, since lower Court records are received, the same are taken up for final disposal with the consent of learned counsel appearing for both the parties.

Brief facts leading to these appeals are as under:--

The case of claimants before the Tribunal is that the claimant in MVC No. 7165/2008 - Muniraju was the rider and claimant in MVC No. 7166/2008 - Periyappa was the pillion rider on motorcycle bearing registration No. KA-04-ES-1089. When they were proceeding on Doddaballapura Road near Naganehalli (Nagenahalli) gate towards Bengaluru, they were hit by a Car bearing registration No. KA-43-M-1099, which came from Yelahanka and proceeding towards Doddaballapura, and as a result, they sustained injuries. Hence, the claim petitions were filed. It is seen that the alleged accident is said to have taken place on 11.05.2008 at about 1:30 p.m. The complaint is lodged by none other than the rider of the motorcycle - Muniraju on 11.05.2008 at about 7 p.m. Based on that complaint, FIR., was registered as per Ex. P1. The contents of Ex. P1, FIR, which is in Kannada, indicates that when the claimant was traveling on Bengaluru -Doddaballapur road near Naganehalli gate towards Yelahanka, a Car, which came from the opposite direction, hit the motorcycle resulting in injuries to the complainant as well as the pillion rider. After investigation, chargesheet was filed as per Ex. P2 and mahazar, Ex. P3, was drawn at the time of the accident. In the said proceedings, the vehicle of claimants, namely, the motorcycle on which they were traveling was subjected to inspection. The motor vehicle Inspector has issued the motor vehicle accident report in respect of the motor cycle as per Ex. P5 and the offending Car as per Ex. P4.

In the proceedings before the Tribunal, where claimants, namely, the rider and pillion rider of the motorcycle sought for compensation, the Tribunal while considering issue No. 1 in both the cases held that claimants have failed to prove that they met with an accident on 11.05.2008 at about 1:30 p.m. at Naganehalli gate on Doddaballapur road involving Car bearing registration No. KA-43-M-1099 and that they sustained injuries as a result of the alleged accident and consequently, dismissed both the claim petitions without considering issue Nos. 2, 3, 4 and 5, which were framed with regard to: nonjoinder of necessary parties; contributory negligence of both the vehicles involved in the accident; validity of the driving licence held by the driver of the offending vehicle and entitlement of claimants for compensation respectively. Being aggrieved by the finding of the Tribunal in answering issue No. 1 in the negative and dismissing the claim petitions, these two appeals are filed by respective claimant in MVC Nos. 7165 and 7166 of 2008.

Heard the learned counsel for appellant and the learned counsel for the contesting respondent - Insurance Company in both these appeals.

Learned counsel for appellants would try to substantiate that claimants having filed the claim petition before the Tribunal have established beyond all reasonable doubt that they have suffered injuries in the aforesaid accident involving their motorcycle as well as the offending Car belonging to 1st respondent and insured with the 2nd respondent. Therefore, the finding of the Tribunal in holding issue No. 1 in the negative without there being any evidence adduced either by the owner or insurer of the offending vehicle contravening the pleadings and evidence available on record, is erroneous. Therefore, the judgment and award of the Tribunal is required to be set aside. Learned counsel for appellants would rely upon three judgments: two judgments rendered by this Court and one judgment of the Apex Court in trying to establish that the Tribunal has committed an error while appreciating the evidence available on record in as much as in the absence of rebuttal evidence adduced either by the owner or insurer of the offending vehicle, the finding of the Tribunal in holding that the accident has not taken place as contended by claimants is erroneous.

First judgment relied upon by learned counsel for appellants is rendered by learned single Judge of this Court in the matter of National Insurance Co. Ltd. Vs. Moses Dindannavar, (1996) 2 ACC 325 : (1996) ACJ 938 : (1995) ILR (Kar) 965 : (1996) 2 KarLJ 80 , wherein it is held as under:--

"Evidence - Appreciation of - Claimant rendered positive evidence that he was traveling in lorry along with his bags of coconuts - No rebuttal to the claimant''s evidence - F.I.R. and spot mahazar do not mention the presence of coconut bags - Tribunal appreciated the evidence and held that the claimant was transporting coconut bags - Whether Tribunal was justified in its finding - Held: yes; claimant is not bound by the contents of the F.I.R. lodged by the cleaner of the lorry and the spot mahazar."

Second judgment relied upon by learned counsel for appellants is rendered by Division Bench of this Court in the matter of Smt. Bhimavva and Others Vs. Shankar @ Adya and Others, (2005) ACJ 301 : (2004) ILR (Kar) 3562 , wherein it is held as under:

"Evidence - F.I.R - F.I.R. is not substantive evidence by itself - it can at best be made use of for purposes of corroborating or contradicting the person who has lodged the same."

Third judgment relied upon by learned counsel is rendered by the Hon''ble Apex Court in the matter of Kumari Kiran Vs. Sajjan Singh, (2014) AIRSCW 6328 : (2014) 10 SCALE 462 , the relevant portion of which, reads as under:--

"Negligence - Contributory negligence -Collision between a tractor and motor cycle coming from opposite directions and motorcyclist and two minor children on pillion sustained injuries - Accident occurred in the middle of road and Tribunal presumed that motorcyclist was rash and negligent and found that both the drivers were equally negligent - High Court modified the blame for the motorcyclist and tractor driver to 25:75 - Apex Court observed that motorcyclist would have taken sufficient caution since he was traveling with his two minor children - No evidence of negligence on the part of motorcyclist - Apex Court reversed the finding of negligence and held that tractor driver was solely responsible for the accident as he was driving a heavier vehicle [2013 ACJ 2141 (SC) followed)."

Now, coming to the judgment rendered by coordinate bench of this Court in the matter of Moses Dindannavar and others, it is with reference to the claimant traveling in a lorry along with bags of coconuts, whereas in F.I.R. and spot mahazar, there was no reference to the presence of coconut bags. Hence, coordinate Bench of this Court held that the claimant is not bound by the contents of FIR lodged by the cleaner of the lorry and the spot mahazar, which is drawn pursuant to that. This judgment will have no bearing to the case on hand for the reason that here contents of FIR is based on the complaint lodged by the claimant, Muniraju, who was rider of the motorcycle. The claimant -Muniraju has clearly stated in the complaint that when he was riding his motorcycle along with pillion rider, Periyappa (claimant in MVC No. 7166/2008) on Naganehalli Gate on Doddaballapura road towards Yelahanka, the offending Car proceeding from Yelahanka towards Doddaballapura, dashed against his motorcycle. However, in his further examination-in-chief as PW.1 before the Tribunal, he has deposed that his motorcycle was hit by the offending Car from behind, which is totally contrary to the complaint lodged by him on the date of the accident. The motor vehicle accident reports of both the vehicles involved in the accident would indicate that the rear light of motorcycle was damaged and the front portion of the Car was damaged in the accident. However, there was no damage to the front portion of the motorcycle. While adducing evidence, claimant has given evidence as if the offending Car has come from behind, which is contrary to the contents of the complaint given by him before the police as on the date of the accident. In that view of the matter, the said judgment relied upon by the learned counsel for appellants is not helpful to him in the present case.

Now, coming to the second judgment i.e., the judgment rendered by Division Bench of this Court in the matter of Bhimavva and others, wherein it is held that F.I.R is not substantive evidence by itself and same can at best be made use of for purposes of corroborating or contradicting the person, who has lodged the same. In the instant case, complainant and the claimant in one of the claim petitions i.e., MVC No. 7165/2008 is one and the same. At the first instance, complainant in the complaint has stated that the motorcycle, which he was riding along with pillion rider was hit by the offending Car, which came from the opposite direction resulting in a collision between them and causing injury to the rider as well as the pillion rider whereas in his oral evidence, he has done a turnaround to state that the offending Car has hit his motorcycle from behind. In view of the contradiction in the evidence of the claimant, question of rebuttal of the same does not arise. Primarily, it is the responsibility of the claimant to demonstrate in unequivocal terms that the accident has taken place in the manner referred to in the complaint, which is lodged by him. Therefore at a later stage, he cannot be permitted to contend contrary to the complaint lodged by him then, it would negate the complaint, therefore there would be no basis for the claim. In the facts and circumstances of the case, the said judgment has no relevance to the case on hand.

Coming to the last of the judgments relied upon by learned counsel for appellants i.e., judgment rendered by the Apex Court in the matter of Kiran, this is with reference to contributory negligence in respect of the collision between two vehicles. In the said case, the manner in which the accident occurred as reported in the complaint and as pleaded in the claim petition is consistent and same is corroborated by the evidence on record. Therefore, the Apex Court was required to decide as to whether the finding of the High Court with regard to apportionment of contributory negligence on the part of the offending vehicle as well as the vehicle in which claimants were traveling was justified. In the instant case, the situation is totally different. What is sought to be established by the claimant in the claim petition is that the accident has not taken place in the manner in which he himself had complained before the Police at the very first instance. In the complaint lodged on 11.05.2008 at about 7 p.m. before Police, claimant - Muniraju has stated that the motorcycle, which he was riding was hit by the offending Car, which came from the opposite direction causing the collision between two vehicles as a result of which, himself and the pillion rider sustained injuries. The same is reiterated in the pleadings in the claim petition filed by him. However, while adducing evidence, he has deposed that his motorcycle was hit by the offending Car from behind, which is totally inconsistent with the contents of the complaint. In that view of the matter, it is apparent that an attempt is made by claimant to show that the accident occurred solely due to the rash and negligent driving of the Car and the owner and insurer of the Car are solely and directly responsible to answer the claim. Therefore, the point that arises for consideration in this proceeding being different from the point which came up for consideration before the Apex Court, where the issue was with reference to contributory negligence on the part of two vehicles involved in the accident, the said judgment will not be of any help to this case.

Having regard to the material on record, this Court find that the Tribunal while considering the claim petitions filed by appellants herein has appreciated the evidence on record in the right perspective. Police records, which have come into existence in the case on hand, are on the basis of the complaint lodged by the complainant in MVC No. 7165/2008, who was rider of the motorcycle at the relevant point of time. When he himself does not stand by the complaint, which he had lodged and would try to deviate from the same and try to establish that the accident occurred in a totally contradictory manner, the Tribunal was just and proper in not accepting his evidence and consequently, refusing to entertain the claim petitions on the ground that the accident as stated by the claimant in the complaint appended to FIR, which is at Ex. P1, is not established by him.

In that view of the matter, this Court find that no justifiable grounds are made out to interfere with the judgment of the Tribunal in dismissing the claim petitions filed by appellants herein.

Accordingly, these appeals are dismissed. The common judgment and award passed by the Tribunal in MVC Nos. 7165/2008 and 7166/2008 dated 07.01.2010 is hereby confirmed.