IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.5325/2012 (MV) BETWEEN:
ARIEF S/O. SHABBEER AGED ABOUT 29 YEARS R/O. SEEGEBAGI BHADRAVATHI TALUK SHIMOGA DISTRICT-577 301. … APPELLANT (BY SRI R. GOPAL, ADVOCATE) AND:
1. PYARIJAN S/O. ABDUL RAZAQ AGED ABOUT 39 YEARS R/O. JEDIKATTE BHADRAVATHI TALUK SHIMOGA DISTRICT-577 301.
2. ISMAIL JABIULLA S/O. RIZWAN SHAREEF AGED ABOUT 29 YEARS BISMILLAH LORRY TRANSPORT SEEGEBAGI BHADRAVATHI-577 301.
3. THE NEW INDIA ASSURANCE COMPANY LTD., 2ND CROSS, NEHRU ROAD SHIMOGA-577 201. ... RESPONDENTS (BY SRI. B.C. TIPPESWAMY, ADVOCATE FOR SRI. R. JAIPRAKASH, ADVOCATE FOR R3 VIDE ORDER DATED 14.07.2015, NOTICE TO R1 AND R2 HELD SUFFICIENT) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.03.2012 PASSED IN MVC.NO.35/2008 ON THE FILE OF SENIOR CIVIL JUDGE, JMFC, MACT-12, BHADRAVATHI, DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and award of dismissal of the claim petition passed in MVC No.35/2008 dated 7.03.2012 on the file of Senior Civil Judge and JMFC and XII Additional M.A.C.T., Bhadravathi.
2. The case of the claimant before the Tribunal is that on 17.3.2007 at about 8.00 a.m., when he was working as a cleaner of the lorry found that rope tide on the load was loosened and hence, he climbed on the top of the lorry and was tying the same, at that time, the driver of the lorry moved the vehicle without giving any signal or indication and due to his negligence, the claimant fell down from the lorry and sustained injuries. Immediately, he was taken to Meghan hospital at Shivamogga for treatment and thereafter, the claimant was shifted to Mallikarjuna Nursing Home for further treatment. The respondents in order to escape from the civil and criminal liability deliberately gave false information about the accident to the authorities in the hospital that he fell down from the tree and sustained injuries.
3. The claimant filed a private complaint before the Magistrate Court and the said matter was referred to police for further investigation and thereafter, the investigating officer investigated the matter and filed charge sheet against the driver of the lorry.
4. The claimant filed the claim petition before the Tribunal claming compensation for the injuries sustained by him due to the negligence on the part of the driver of the lorry. In pursuance of the claim petition, notice was issued against the driver, owner as well as the insurance company. The driver was placed exparte and the owner of the vehicle appeared through the counsel but had not filed any written statement. The third respondent-insurance company filed its written statement disputing the accident and injuries and so also the avocation and income of the claimant.
5. The claimant, in order to substantiate his contention, examined himself as P.W.1, Doctor as P.W.2 and another eye witness as P.W.3 and got marked documents Ex.P.1 to Ex.P.19. The Insurance Company examined one witness as R.W.1 and got marked documents Ex.R.1 to Ex.R.3.
6. The Tribunal, considering both oral and documentary evidence, dismissed the claim petition by coming to the conclusion that the claimant has not proved the accident and also the negligence on part of the driver of the lorry. Hence, the present appeal is filed before this Court.
7. The main contention in this appeal is that the Tribunal has committed an error in not considering the documents produced by the claimant but has relied upon only Ex.P.9 and Ex.R.3 without considering the evidentiary value of FIR, Charge sheet, spot mahazar, sketch etc., which clearly goes to show that the accident was due to fall from the vehicle. The driver and owner of the vehicle also not disputed the accident and they also made statements before the investigating officer that the claimant had fallen from the lorry. It is contended that the owner and driver of the vehicle have deliberately given false information in the hospital with ulterior motive to avoid the liability of both civil and criminal but this aspect has not been considered by the Tribunal.
8. The Tribunal mainly relied upon Ex.R.3-the MLC register extract and also Ex.P.9-the wound certificate but has to take note of the totality of the evidence available on record to appreciate the materials before the Court but the same has not been done in its right perspective. Hence, it requires interference of this Court.
9. Learned counsel appearing for the appellant in his arguments vehemently contended that the MLC information was given at the instance of the owner of the vehicle who rushed to the hospital immediately after the accident. Hence, the first information was not given by the claimant and the Tribunal has committed an error in relying upon Ex.P.9 and Ex.R.3 and not appreciated the material on record in a proper perspective. Therefore, it requires interference of this Court.
10. In support of his contention, he also relied upon the judgment reported in 1981 A.C.J. 422 in the case of SAVITRIBAI AND ANOTHER VS. DODDAPPA AND ANOTHER, the Division Bench of this Court held that admission in the criminal cases made by the owner of the truck before the police during investigation of the criminal case against the driver would be relevant and admissible in the proceedings before the Tribunal and Section 162 of the Cr.P.C. would not be a bar.
11. Relying upon this judgment, learned counsel would contend that Ex.P.12 the statement of the owner clearly discloses that when the claimant was working as a cleaner, the accident has taken place and he has fallen from the lorry. Hence, this Court has to reconsider the matter and set aside the judgment of dismissal of the claim petition.
12. Per contra, learned counsel for respondent No.3- Insurance Company would contend that no complaint was given immediately after the accident but a private complaint was lodged before the Magistrate Court after one month and thereafter, the matter was referred to the police for investigation. The police investigated the matter and filed charge sheet. The MLC register extract which is marked at Ex.R.3 clearly discloses that there is a specific mention in the document that he had fallen from the coconut tree and no accident was taken place and the date of accident is mentioned as 16.03.2007 and not 17.3.2007. Hence, the Tribunal has rightly considered both oral and documentary evidence and has appreciated the same in a right perspective. Therefore, there are no grounds to interfere with the findings of the Tribunal.
13. After hearing the learned counsel for the appellant as well as the counsel appearing for the Insurance Company, and also keeping in view of the contentions urged by both parties, the points that arise for consideration of this Court are as follows:-
1. Whether the Tribunal has committed an error in answering issue No.1 in the negative by holding that the claimant has not proved the accident and it requires interference of this Court?
2. What order?
14. Point Nos.1 and 2:- The case of the claimant before the Tribunal is that on 17.3.2007, he was working as a cleaner and found the rope tide on the load was loosened and hence, he was tying the rope standing on the top of the lorry, at that time, driver of the lorry due to his negligence moved the vehicle without giving any signal or indication, as a result, he fell down from the lorry and the accident has taken place. It is to be noted that the complaint was not given immediately after the accident. The injured was shifted to hospital by one Nagaraju. On perusal of Ex.R3, it is evident that he gave information in the hospital that the claimant had fallen from the coconut tree and he has also specified the date of accident as 16.3.2007 but the claimant contends that the accident was taken place on 17.3.2007. No doubt, on perusal of MLC extract, it discloses that he went to hospital on 17.3.2007, but history is mentioned as he sustained injuries on 16.3.2007 since he had fallen from coconut tree. On the very next date, he was discharged from the hospital and thereafter, he went to private hospital i.e., Mallikarjuna Nursing Home and he was inpatient for 3 days in the said hospital. No doubt, the certificate is produced before the Court to show that he took treatment at Mallikarjuna Nursing Home for the injuries sustained by him due to fall from the lorry.
15. It is important to note that in the evidence of PW.1, though he specifically claims that he had fallen from the lorry, he states that his mother and other family members have rushed to the hospital and no complaint was given. Further, the claimant relies upon Ex.P.12. No doubt Ex.P.12 is the statement of the owner which has been made before the investigating officer. First of all there is no any complaint and no case has been registered against either the driver of the vehicle or owner of the lorry, but a private complaint was lodged before the Magistrate Court on 17.4.2007 which is almost after one month of the accident and thereafter, the matter was referred to investigating officer under Section 156 (3) of Cr.P.C. The investigating officer conducted the investigation and also recorded the statements of the owner as well as the driver of the said vehicle.
16. The main contention of the appellant’s counsel is that the Tribunal has ignored the contents of FIR and also the charge sheet but has mainly relied on Ex.P9 and Ex.R3. On perusal of Ex.P9- Wound certificate, it is specifically mentioned that it is a fall from coconut tree and also on perusal of Ex.R3, it reflects that the claimant has fallen from coconut tree. When the said fact has been mentioned in the said documents, the claimant ought to have been explained the said fact, but the same has not been done. Instead of relying upon the statement recorded under Section 162 of Cr.P.C recorded before the investigating officer in terms of Ex.P12, the learned counsel has relied upon the judgment reported in 1981 ACJ 422 stated supra, wherein the Division Bench of this Court held that the statement made before the investigating officer is admissible and there is no bar under Section 162 of Cr.P.C. There is also no dispute with regard to the principles laid down in the said judgment, but while considering the cases under the motor vehicles accident claims, the Court cannot strictly invoke the Evidence Act. Instead, the Court has to consider in toto the material evidence available on record. That means in the strict sense, the Evidence Act is not strictly applicable, however, the Court has to consider the totality of the evidence so as to ascertain whether it inspires the confidence of the Court to hold that the accident has taken place.
17. Having considered the principles laid down in the judgment and also the settled law, there must be a connection with regard to the accident. In the present case, according to the claimant, the accident had taken place on 17.3.2007 and no complaint was given immediately after the accident, but a private complaint was lodged before the Court and based on the said private complaint, the investigation was conducted and charge sheet was filed. However, filing of the charge sheet is not enough. In order to substantiate the same, the claimant has not produced any material before the Court, but has examined PW.2 claiming that he is an eye witness. No doubt PW.2 is an eye witness and he has taken the injured to the hospital. MLC register extract also discloses the name of PW.2 who gave the first information in the hospital that it is a fall from coconut tree and subsequently, he changed his version. The Court has to believe the first information provided by PW.2, who gave information to the authorities in the hospital about the accident. It is to be noted that he is a witness in the charge sheet and the charge sheet has been filed only after the reference being made in the Court. None of the documents produced before the Court inspires the confidence of the Court that it is on account of accident, the claimant has sustained the injuries.
18. The evidence of RW.3 and the document Ex.R3-MLC Register extract and also Ex.P9 wound certificate clearly disclose that at the first instance the entry has been made with regard to the history as the claimant has sustained injuries due to fall from coconut tree and the contention of the respondent-Insurance Company that it is the case of fall from the coconut tree. The main contention of the appellant’s counsel is that the Tribunal has not appreciated both oral and documentary evidence in right perspective. It is settled law that fraud and justice should not dwell together. It is the case of implication of the vehicle to obtain the compensation. The material on record and also the evidence of P.Ws.1 and 3 did not satisfy the Court to come to the conclusion that an accident had occurred. Hence, I do not find any reasons to interfere with the findings of the Tribunal since the Tribunal has given its anxious consideration to both oral and documentary evidence and has rightly appreciated the records available on record.
19. In view of the discussions made above, I pass the following:-
ORDER The appeal is dismissed.
Sd/- JUDGE PYR