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Judgment
P.D. Waingankar, J.
Both these appeals under Section 173 (1) of the MV Act are arising out of the judgment and award dated 19.03.2011 in MVC No. 1204/2009 on the file of the MACT No. VI, Bijapur and therefore they are disposed of by this common judgment.
It is the case of the claimant Yoganand that on 11.05.2009 at about 11.00 AM while he was waiting for the bus at UKP cross in front of Udupi hotel, at Kolhar at that time a motor cycle bearing Reg. No. KA-28/R-9630 came from Bijapur side in a rash and negligent manner and dashed against him. As a result, he sustained grievous injuries. Immediately, he was shifted to BLDEA''s Hospital, Bijapur where he was treated as an m-patient for about 15 days. The accident occurred purely on account of rash and negligent riding of the Motor Cycle bearing Reg. No. KA-28/R-9630 by its rider. Therefore, he filed a claim petition under Section 166 of the MV Act claiming compensation of Rs. 6,00,000/- from the owner and insurer of the Motor Cycle.
The claim petition was opposed by the National Insurance Company Limited insurer of the Motor Cycle. In its reply it has denied all the material averments made out in the claim petition as to the nature of injuries, period of treatment, the expenditure incurred, the avocation, the loss of income etc. apart from denying the very involvement of the Motor Cycle in the said accident. It is the specific case of the Insurance Company that the Motor Cycle has been falsely implicated after due deliberation with the connivance of the owner of the Motor Cycle and the Police. Hence, the respondent - Insurance Company has sought for dismissal of the claim.
The claim petition came up for consideration before the Tribunal before whom the claimant lead his evidence as PW-1, examined Dr. A.A. Magi, Orthopedic Surgeon as PW-2 and relied upon as many as 14 documents marked as Exs. P1 to P14. On behalf of the respondent - Insurance Company, one Krishna Reddy, the Medical Officer from BLDEA''s college Bijapur as RW1 and one Sanagouda Basagoud Patil as RW2 were examined, apart from marking Exs. R1 and R2 the case sheet and the insurance policy.
The Motor Accident Claims Tribunal upon hearing the arguments and upon going through the material placed on record not only held the involvement of the motor cycle in the accident but also came to the conclusion that the accident and the resultant injury sustained by the claimant were on account of rash and negligent riding of the motor cycle. Thus the Tribunal by the impugned judgment and award granted compensation of Rs. 62,240/- to the claimant together with 6% interest thereon.
Dissatisfied with the quantum of compensation awarded by the Tribunal, the claimant has preferred MFA No. 31475/2011. Whereas questioning the liability fastened on it, the Insurance Company has preferred MFA No. 32045/2011.
I have heard both the learned counsel appearing for the appellant/claimant and the respondent - Insurance Company. Perused the records and the judgment and award passed by the Tribunal. Upon hearing the submissions made by both the learned counsel and upon consideration of the entire material on record the following points would arise for my consideration:
(i) Whether the finding recorded by the Tribunal as to the involvement of the motor cycle in question in the accident and the negligence attributed to the rider of the motor cycle call for my interference?
(ii) Whether the compensation awarded by the Tribunal is just and reasonable?
The learned counsel appearing for the Insurance Company has vehemently argued before me that the claimant sustained injuries on account of fall from motor cycle and accordingly, he furnished the history to the hospital where he was taken immediately after the incident and after about 4 days from the date of the accident the motor cycle in question has been falsely implicated just to claim compensation. The learned counsel for the Insurance Company would further submit that the compensation awarded by the tribunal is exorbitant and not based on any accepted norms. For all these reasons the learned counsel has sought for dismissal of the claim.
On the other hand, the learned counsel for the claimant would argue in support of the award passed by the Tribunal in so far as it pertains to the involvement and the negligence of the rider of the motor cycle while contending that the quantum of compensation awarded is on the lower side.
The claimant who has been examined as PW-1 has spoken in his evidence that while he was waiting for the bus by the side of the road, the motor cycle in question came in rash and negligent manner and dashed against the claimant causing him grievous injuries. Ex. P1 is the FIR in Crime No. 114/2009 arising out of the accident in question. As per the FIR, it came to be registered on 14.05.2009 though the accident had occurred on 11.05.2009. There is a delay of 3 days in filing the FIR. Ex. R1 is the admission records of the claimant for having admitted and treated him in B.M. Patil Medical College Hospital and Research Centre, Bijapur where he was taken immediately after the accident and treated from 11.05.2009 to 21.05.2009. In the case sheet the history is shown as fall from bike on 11.05.2009 at 10 AM near Kolhar and sustained injury to head nose, chest etc. It appears that the history was furnished by none other than the claimant himself. In all the medical records there is a seal that it was a medico legal case. If it was treated as medico legal case the information ought to have been transmitted by the hospital authority to the concerned police station or nearest police station to the hospital and thereby the police ought to have come to the hospital recorded his statement and registered a case against the person who is responsible for the accident on the date of the accident itself. That has not been done in this case by the hospital authorities, reason being that the injured claimant himself furnished the history as fall from bike without furnishing even the registration number of the bike. If claimant himself falls from bike and sustains injuries, in that case forwarding medico legal intimation to the police station or registration of the crime does not arise. Therefore it appears for the said reason for three days no crime came to be registered in connection with the said accident. Subsequently, after three days on 14.05.2009 the police from Kolhar police station came to BLDEA''s hospital, recorded the statement of the injured, wherein he states that after taking darshan in the temple in order to go to his native place he was waiting for the bus at UKP cross, Kolhar and at that time a motor cycle in question came from Bijapur side in a rash and negligent manner and dashed against him causing injuries. If it is really so, nothing prevented him from furnishing the said information to the hospital authorities at the earliest point of time when he was enquired by the hospital authorities as to the cause of injuries. Since the claimant himself furnished the history at the earliest point of time as fall from the bike and no intimation was given by the hospital authorities to the police station and no crime came to be registered in connection with the accident for 3 days from the date of incident, I have every reason to hold that the motor cycle in question has been falsely implicated after three days of the incident after due deliberation with the connivance of the owner of the motor cycle and the police. Moreover the claimant has not examined any eyewitness to the said accident for the reasons best known to him. The learned Presiding Officer of the MACT without looking into the crucial documents, has held that the claimant has denied in his evidence the history furnished by him at the time of admission to BLDEA''s hospital, Bijapur. The learned Presiding Officer failed to note that it is for the claimant to explain as to what made him to furnish the history as fall from motor cycle. No explanation is forthcoming from the claimant as to why the crime was not registered immediately after the accident. Under such circumstances, I have no hesitation to hold that the Tribunal has committed a grave error in coming to the conclusion that the accident and the resultant injuries sustained by the claimant were on account of rash and negligent riding of the motor cycle bearing Reg. No. KA-28/R-9630. Accordingly, the point for consideration is answered in the affirmative holding that the motor cycle was not involved in the accident has been falsely implicated and therefore the award calls for my interference. Accordingly, I pass the following:
ORDER
MFA No. 31475/2011 filed by the claimant is dismissed.
MFA No. 32045/2011 filed by the Insurance Company is allowed. The impugned award dated 19.03.2011 passed by the MACT No. VI, Bijapur in MVC No. 1204/2009 is hereby set aside. MVC No. 1204/2009 on the file of MACT No. VI, Bijapur is hereby dismissed.