IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN M.F.A. No.6312/2015 (MV) C/w.
M.F.A. No.9435/2015 (MV) In M.F.A. No.6312/2015:
Between :
The Regional Manager Bajaj Allianz General Insurance Company Limited, GE-Plaza, Airport Road, Yarawad, Pune-411006.
Service Address:
The Claim Manager Bajaj Allianz General Insurance Company Limited, Shivakumar Circle, Near T.V.S. Show Room, B. H. Road, Tumkur.
Now By Bajaj Allianz General Insurance Co. Ltd. Regional Office, Golden Heights, 4th Level, No.1/2, 59th Cross, 4th ‘M’ Block, Rajajinagar, Bangalore-560010, By it’s Manager. …Appellant (By Sri O. Mahesh, Advocate) And :
1. Ayaz Pasha Aged about 32 years, S/o. Syed Pyarejan, Resident of Bheemasandra Grama, Kasaba Hobli, Tumkur-572101.
2. C. K. Chandrashekar, Major S/o. Kempanna, Resident of No.4, Chinnakempanahalli Village, Sikayanahalli Post, Devanahalli Taluk, Bangalore Rural District-561102. …Respondents (By Sri Mushtaq Ahmed, Advocate for R-1; R-2 served and unrepresented) This MFA is filed under Section 173(1) of Motor Vehicle Act 1988, against the judgment and award dated 28.04.2015 passed in MVC No.550/2011 on the file of the VI Additional District & Sessions Judge and MACT-V, Tumkur, awarding a compensation of Rs.3,91,315/- with interest @6% P.A. from the date of petition till realization.
In M.F.A. No.9435/2015:
Between :
Ayaz Pasha Aged about 32 years, S/o. Syed Pyarejan, Resident of Bheemasandra Grama, Kasaba Hobli, Tumkur-572132. …Appellant (By Sri Mushtaq Ahmed, Advocate) And :
1. C. K. Chandrashekar, Aged about 50 years, S/o. Kempanna, No.4, Chinnakempanahalli Village, Sikayanahalli Post, Devanahalli Taluk, Bangalore Rural District Devanahalli-561102.
2. The Bajaj Allianz General Insurance Company Limited, GE-Plaza, Airport Road, Yarawad, Puna-411006.
Service Address:
The Bajaj Allianz General Insurance Company Limited, Shivakumar Circle, Near T.V.S. Show Room, B. H. Road, Tumkur, Represented by its Manager. …Respondents (By Sri O. Mahesh, Advocate for R-2) This MFA is filed under Section 173(1) of Motor Vehicle Act 1988, against the judgment and award dated 28.04.2015 passed in MVC No.550/2011 on the file of the VI Additional District & Sessions Judge and MACT-V, Tumkur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals are coming on for orders this day, the Court delivered the following :
JUDGMENT Both these appeals arise out of the impugned Judgment and Award dated 28.4.2015, passed by the VI Addl.District & Sessions Judge, Tumkur, whereby the learned Tribunal has awarded a compensation of Rs.3,91,315/- along with interest @ 6% p.a. from the date of filing of the petition, till the date of realisation, for the injuries suffered by Mr.Ayaz Pasha, the claimant. While MFA No.6312/2015 has been filed by the Insurance Company, MFA No.9435/2015 has been filed by the claimants for enhancement.
2. The facts of the case are taken from MFA.No.6312/2015, filed by the Insurance Company.
Shortly stated, the facts of the case are that on 11.5.2011, around 8.00 p.m., the claimant- respondent No.1, Ayaz Pasha, was standing with his brother, Mr. Shanawaz Pasha, on the extreme left side of National Highway No.206, near Bheemasandra. At that time, suddenly a Tata Sumo, bearing registration No.KA-03-B-1672, being driven rashly and negligently, came from Gubbi side, and dashed against Ayaz Pasha, the claimant. Therefore Ayaz Pasha suffered grievous injuries. While Ayaz Pasha was injured, Mr. Shanawaz Pasha, his brother, escaped unhurt. The claimant-respondent No.1, was immediately taken to Siddartha Medical college and Hospital at Heggere, where he was given first aid, and then shifted to Shifaa Hospital, Bengaluru. On 20.5.2011, his right leg was operated. On 27.5.2011, he was discharged from the hospital, After recovering from the said accident, he filed a claim petition before the learned Tribunal. In order to support his case, the claimant examined himself as PW-1, and his brother, Shanawaz Pasha, as PW-2, and submitted 113 documents. On the other hand, the Insurance Company examined two witnesses, and submitted four documents. After going through the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, the Insurance Company has filed the appeal, challenging the impugned award, and the claimant has filed the appeal for enhancement of compensation amount.
3. Mr. O. Mahesh, the learned counsel for the Insurance Company, has pleaded firstly, that the learned Tribunal should have meticulously examined the evidence in order to see whether a genuine case was presented before it, or a false story was being narrated by the claimant.
Secondly, the Insurance Company had clearly stated in its written statement that the claimant-respondent No.1 was narrating a false story. The falsity of the case was apparent from the fact that although the accident had occurred on 11.5.2011, the FIR was not lodged till two days later, i.e. on 13.5.2011. However, no explanation was given by the claimant-respondent No.1 for the inordinate delay of two days.
Thirdly, according to the Case File, (Ex.R-2), the hospital was informed that the claimant had suffered the injuries in a road traffic accident between two Bikes at 8.30 p.m., at Bheemasandra. Since the case File, (Ex.R-2), happens to be a contemporaneous document, it clearly reveals that the accident had happened with another Bike, and not with the Tata Sumo, as alleged by the claimant-respondent No1. Thus, the learned Tribunal should have, in fact, concluded that the Tata Sumo is being falsely implicated in the case.
Lastly, although the claimant-respondent No.1 stated that his brother, Shanawaz Pasha, was an eye-witness to the alleged accident, but Shanawaz Pasha (P.W.2), in his examination-in-chief does not whisper a word about the alleged accident. Therefore, he does not corroborate the testimony of the claimant himself. However, these glaring defects in the claim petition have been totally ignored by the learned Tribunal. Therefore, the award deserves to be set aside.
4. On the other hand, Mr. Mushtaq Ahmed, the learned counsel for the claimant-respondent No.1, has pleaded that since the claimant was hospitalised, the FIR could not be lodged by him for two days. Even thereafter, it could only be lodged by Shanawaz Pasha. Therefore, the inordinate delay of two days is well explained by the claimant-respondent No1.
Secondly, after lodging of the FIR, the police had charge sheeted the driver of the Tata Sumo vehicle. Therefore, even according to the police, it is the Tata Sumo vehicle which was involved in the alleged accident.
Thirdly, the case File, (Ex.R-2), cannot be believed, since the Tata Sumo vehicle had initially struck the claimant, and since it had gone out of control, it had struck another vehicle. Therefore, the case File, (Ex.R-2), does not belie the story narrated by the claimant-respondent No1. Therefore, the learned counsel has supported the impugned award.
5. In rejoinder, Mr. O. Mahesh, the learned counsel for the Insurance Company, pleads that there is a clear cut contradiction between the contents of the FIR, where it is claimed that the accident had occurred due to Honda Activa, and the testimony of PW-1, Ayaz Pasha, where he claims that he was hit by Tata Sumo. Therefore, even this contradiction falsifies the statement of the claimant. According to various documents, the accident had occurred due to a hit by the Honda Activa, and not by the Tata Sumo.
6. Heard the learned counsel for the parties, and perused the impugned award.
7. It is, indeed, trite to state that the learned Tribunal is required to do complete justice to both the parties. Therefore, the learned Tribunal is required to meticulously examine the evidence, both oral and documentary, produced by both the parties. Although the Motor Vehicles Act is a beneficial piece of legislation, but the benefit of the Act cannot be given blindly by the learned Tribunal. Before a claimant can succeed in establishing his claim, the claimant is required to prove firstly, that a road traffic accident had occurred; secondly, it involved a particular vehicle; thirdly, he has sustained injuries due to the accident. Hence, while appreciating the evidence, the learned Tribunal is required to see whether these three essential factors have been established by the claimant through cogent and convincing evidence or not?
8. Allegedly, the accident had taken place on 11.5.2011.
According to the claimant-respondent No.1, his brother, Shanawaz Pasha, had first rushed him to the Siddarth Hospital, and got him admitted, and later he was shifted to Shifaa Hospital, at Bengaluru. Despite the fact that Shanawaz Pasha, (PW-2), was unhurt in the accident, he did not lodge a FIR immediately. Admittedly the FIR was lodged on 13.5.2011.
9. In their testimony neither the claimant, nor Shanawaz Pasha, (PW-2), offer any explanation for the inordinate delay of two days in lodging of the FIR. The delay in lodging of the FIR should have alerted the learned Tribunal, and should have put the learned Tribunal on its guard. However, the learned Tribunal has ignored this glaring gap in the story narrated by the claimant.
10. According to the Case Diary, (Ex.R-2), the hospital was immediately informed after the accident that the accident had occurred due to a collusion with a Bike. However, subsequently after the delay of two days, the story was changed by the claimant. While the Bike was left out, a Tata Sumo vehicle was involved in the alleged accident. Further, according to Shanawaz Pasha, (PW-2), while he and his brother were standing on the side of the road, a Tata Sumo came and first hit Honda Activa, it is Hona Activa which hit the claimant. Therefore, in Ex.R-2, it was clearly mentioned that the accident had occurred with a Bike. It is, indeed, trite to state that men may lie, but documents do not. Therefore, the learned Tribunal should have considered the case File (Ex.R-2) as revealing the truth.
11. Although, in FIR, (Ex.R-2), Shanawaz Pasha, (PW-2), claims that the Tata Sumo initially hit a Honda Activa, and in turn, the Honda Activa had hit his brother Ayaz Pasha, these facts have neither been narrated by Ayaz Pash, (PW-1), nor by Shanawaz Pasha, (PW-2). According to the examination-in- chief of the claimant, he was hit by Tata Sumo, and not by Honda Activa. Thus, there is a clear cut contradiction between the contents of the FIR, and the testimony of the claimant (PW-1). Moreover, interestingly, Shanawaz Pasha, (PW-2), is absolutely silent about the alleged accident. Although the claimant claims that Shanawaz Pasha, (PW-2), was an eye witness, Shanawaz Pasha, (PW-2), does not corroborate the testimony of Ayaz Pasha, (PW-1). Even this glaring fact has been overlooked by the learned Tribunal.
12. Without meticulously and critically assessing the evidence available on record, the learned Tribunal has ignored the contentions raised by the Insurance Company. The learned Tribunal, in fact, has accepted the testimony of the claimant (P.W.1) as a gospel truth without realizing that Ayaz Pasha, (PW.1), was narrating a false story.
For the reasons stated above, the Appeal filed by the Insurance Company, MFA.No.6312/2015, is hereby allowed.
The impugned award dated 28.4.2015, is set aside. The amount deposited by the Insurance Company, if any, shall be returned to the Insurance Company.
Since the appeal filed by the Insurance Company is allowed, there is no merit in the appeal filed by the claimant, that is MFA.No.9435/2015. Therefore, it is, hereby, dismissed.
Sd/- JUDGE *bk/-