Sri. Syed Babu @ Babu vs Sri. Irshad Pasha and The New India Assurance Company Ltd.

N.K. Patil, J.—This appeal by the claimant-appellant is directed against the impugned judgment and award dated 17/06/2010 passed in MVC No. 4270/2008, by the IV Additional Judge, Court of Small Causes and Member, Motor Accident. Claims Tribunal, Bangalore City, (SCCH No. 6), (hereinafter referred to as ''Tribunal'' for short) for compensation. The Tribunal by its impugned judgment and award has dismissed the petition filed by the appellant on account of the injuries sustained by him in the road traffic accident.

In brief, the facts of the case are:

The appellant claims to be aged about 30 years, hale and healthy prior to the accident, working as Mechanic in M/s. Mandovi Auto Works, Mandya and earning Rs. 6,000/- per month. That on 13.1.2008 at about 5.00 p.m. he was proceeding with his wife Smt. Salma on Bangalore-Mysore Highway on the extreme left side edge of footpath towards Mysore direction, at that time, the rider of the Motor Cycle bearing Reg. No. KA. 11.J. 1199 came with high speed in a rash and negligent manner in the very same direction and hit the appellant from his behind. Due to which, he sustained fracture of right clavicle and other injuries. Immediately, he was shifted to Government Hospital Mandya, where he has taken treatment as inpatient and thereafter, bed rest and follow-up treatment.

It is the further case of appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. Due to the injuries sustained by the appellant, he has suffered permanent disability at 11% to the whole body and he was removed from the job. Therefore, appellant has filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has dismissed the petition with costs. Being aggrieved by the said judgment and award passed by the Tribunal, the appellant has presented this appeal, seeking compensation.

I have heard the learned counsel appearing for appellant and learned counsel appearing for Insurer.

Learned counsel for the appellant, at the outset submitted that, the Tribunal has erred in dismissing the claim petition on hyper technical ground that there is an overwriting in writing the Registration number of the vehicle in MLC Register i.e. alphabet ''J''. Further he submits that, the Tribunal ought to have appreciated the evidence of PWs 1 and 2, the contents of FIR, complaint and statement of the appellant at Exs. P1 to 3 and that on account of the injuries sustained by him in the accident, he has undergone treatment in the hospital and spent considerable amount towards medical expenses and other incidental charges and awarded reasonable compensation and it ought not to have given more importance to Exs. R1 and 2 for dismissing the claim petition and therefore, the same is not sustainable and is liable to be set aside and the petition may be allowed by awarding reasonable compensation or the matter may be remitted back to the Tribunal for reconsideration after setting aside the impugned judgment and award passed by the Tribunal, to enable him to examine the eye witnesses one Sri. Mohammed Shaffi, who is the friend of the appellant and that the delay of 3 days in filing the complaint is not a ground to dismiss the petition. Therefore, he submitted that the impugned judgment and award passed by the Tribunal may be set aside and the matter may be remitted back to the Tribunal for reconsideration afresh.

As against this, learned counsel for Insurer, inter-alia, contended and substantiated that the impugned judgment and award passed by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. To substantiate his submission, he submitted that the claimant has failed to examine his friend Mohammed Shaffi who was an eye witnesses intentionally and deliberately and even there is an over writing of registration number of the vehicle i.e. alphabet ''J'' in MLC Register. Further he submits that, the appellant is alleged to have given his statement as per Ex. P3 and it is not dated, which shows that these are after thought. In fact, it emerges from the material available on record that, immediately after the accident, appellant has settled the matter between rider of the motor cycle and when it has not worked out, he has chosen to make out a case by filing a claim petition. Therefore, he submitted that the appeal filed by the appellant is liable to be dismissed. After hearing the learned counsel for the parties and after perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the Tribunal has elaborately discussed the oral evidence of PWs 1 and 2 and RW1 and documentary evidence of Exs. P1 and 2 in para-10 of its judgment and specifically, pointed out that as alleged the said accident was witnessed by one of his friend Mohammad Shaffi, but he has not been examined and complaint was came to be filed only on 16.1.2008 at 11.00 a.m. by his wife. Further, it emerges from the records that, the matter was settled between the rider of the motor cycle and the appellant and when that has not been worked out, the complaint came to be filed after three days colluding with the investigating authority and the same is mis conceived in nature. Further, it is pertinent to note that, the Tribunal, after careful perusal of the FIR, complaint and statement of the appellant, has justified in observing that Ex. P3 is not dated and secondly, appellant has stated before the IO that, after the accident, he enquired the rider and came to know his name as Raffi Ahamad of Azadnagar and if that was the case, place of his residence should have been disclosed and from Mahazar Ex. P5, it could be seen that having received the complaint and registered it at about 11.00 a.m. IO rushes to the place of accident within one hour i.e. at about 12.15 p.m. and prepares the Mahazar. Further, the Tribunal has observed that, MLC register brought by the RW1 shows that there is a overwriting of registration number of the vehicle i.e. alphabet ''J'' and in that regard, RW1 has expressed his ignorance as to who has caused it and the said overwriting is not initialed. Therefore, the Tribunal has dismissed the petition of the appellant, after recording the finding of fact in para-10 of its judgment. The said finding of fact recorded by the Tribunal is just and proper and after appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference. Nor I find any good grounds or justification as such made out by the appellant to entertain the relief sought in this appeal. Hence, the appeal filed by the appellant is dismissed as devoid of merits.