(Prayer: This M.F.A. is filed under Section 173(1) of M.V. Act against the Judgment and award dated 11.07.2011 passed in MVC No.7905/2009 on the file of the II Additional Judge, Court of Small Causes, MACT, Bengaluru, dismissing the claim petition for compensation.)
1. This appeal is directed against the Judgment and Order passed by the Motor Accident Claims Tribunal, Bangalore, [the Tribunal , for short] in MVC No.7905/2009, whereby the claim petition filed by the claimants is dismissed.
2. Briefly stated the facts are:
That the claimants, claiming to be the mother and mother-in-law of the deceased Somachari @ Ramachari filed a claim petition, seeking compensation for the death of the said Somachari in a road traffic accident which occurred on 19.7.2009 while the deceased was riding the scooter bearing registration No.KA-02-9999, alleging actionable negligence on the rider of the TVS Excel moped bearing No.KA-05-EC-8011. It was contended that immediately after the accident, the deceased was shifted to Government Hospital, Channapattana and was thereafter referred to NIMHANS for better treatment. Further, the injured was shifted to Victoria Hospital, Bengaluru, but succumbed to the accidental injuries on 23.7.2009. The Insurer of the offending vehicle resisted the claim. The Tribunal, after analyzing the evidence on record, dismissed the claim petition.
3. The learned Counsel appearing for the appellants assailing the impugned Judgment and Order would, inter alia, contend that the appellants are illiterates, oblivious about the niceties of the procedures of law, particularly, lodging a police complaint immediately after the accident. The Tribunal failed to consider that from the date of the accident, all the medical records where the deceased was treated has mentioned the injuries sustained are due to the road traffic accident. That the Doctor who treated/conducted post mortem on the dead body had intimated the Victoria Hospital outpost Police Station on 23.7.2009, the road traffic accident being the cause for the death of the deceased. The Victoria Hospital Police have registered crime No.231/2009 under Section 174 of Criminal Procedure Code and thereafter transferred the case for investigation for necessary action to MK Doddi Police Station, the same was received by MK Doddi Police on 18.9.2009 and thereafter FIR was registered under Section 279, 304[A] of IPC read with section 187 of the Motor Vehicles Act, 1988 [Act, for short]. It was submitted that the Tribunal proceeded on the wrong presumption that the MK Doddi Police have delayed to register the case for a period of two months and there is no explanation forthcoming for the delay caused. In fact, RW.1, the Investigation Officer had admitted the registration of the case on 23.7.2009, RW.2, the Driver had admitted having driven the vehicle as well as the factum of the accident, RW.3, the owner of the vehicle had also admitted about the involvement of the vehicle in the accident. There was no delay caused in registering the FIR. On the other hand, the evidence of RW.5 the Investigation Officer who recorded the statement of witnesses and filed charge sheet clearly establishes the involvement of the vehicle in the accident. Even if there is any delay caused in sending FIR from Victoria Hospital outpost Police Station to MK Doddi Police Station, it is not of the fault of the appellants. It is further submitted that the approach of the Tribunal that the moped is the smaller vehicle, the scooter is bigger vehicle and the other injured have not filed the claim petition, the rider of the vehicle was not caught on the spot, the vehicle seized after three months are all irrelevant to consider the claim petition. The claim petition being made under Section 166 of the Act, the approach of the Tribunal in considering the claim as a criminal case for trial is absolutely erroneous. In support of his contentions, the learned Counsel placed reliance on the following Judgments:
[a] M/S. ORIENTAL INSURANCE CO., LTD., vs. NARAYANA REDDY AND OTHERS rendered in MFA No.2667/2008 [DD-18.12.2008]
[b] RAVI vs. BADRINARAYAN AND OTHERS reported in 2011 AIR SCW 1530
4. Per contra, learned Counsel appearing for the Insurer placing reliance on the Judgment of this Court in the case of VEERAPPA AND ANOTHER vs. SIDDAPPA AND ANOTHER reported in ILR 2009 KAR 3562 and BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD., vs. B.C. KUMAR AND ANOTHER reported in 2010 ACJ 1667 would contend that admittedly, FIR was registered by MK Doddi Police Station on 18.09.2009 while the accident occurred on 19.7.2009 and the death was caused on 23.7.2009. The postmortem report dated 23.7.2009 and the subsequent UDR report suggests no involvement of the offending vehicle. The FIR which is registered on 18.9.2009 was against the rider of unknown two wheeler. The inconsistencies found in evidence of PW.2 and RW.2 clearly establishes the non involvement of the offending vehicle in the accident. It is only to extract the unlawful gain, the claimant in collusion with the driver of the offending vehicle and the Police authorities falsely implicated the offending vehicle. The Tribunal rightly appreciating the same, dismissed the claim petition which do not call for any interference at the hands of this Court.
5. Having heard the rival submissions of the parties and perusing the material evidence on record, the points that arise for consideration are,
[a] Whether the Tribunal was justified in dismissing the claim petition?
[b] Whether the admission of factum of accident and the charge sheet filed against RW.2 would be the relevant factor for accepting the case of the claimant?
6. The settled position in law is that the Tribunal should not and ought not to place much reliance on the Judgment of the Criminal Court while considering the issue of factum of the accident and the consequent negligence of the rider of the vehicle. It is incumbent on the Tribunal to examine the evidence before it independently dehors any finding of the Criminal Court on the question of the driver pleading guilty. At the most, the circumstances of the driver pleading guilty may be considered as one of the pieces of evidence to support of the case of the claimants [B.C. KUMAR s case [supra]]. It is further held in that case that the said observation is made by the Court with the full knowledge that there has been spate of cases wherein false claims have been made before the Claims Tribunal and false implications are also on the increase. This Court, in several such cases, has found that a self accident is given a turn and it is made to appear as an accident involving the motor vehicle. Referring to MFA No.962/2007 decided by this Court on 12.3.2009, whereby this Court has made observations in much as false cases being filed before the Tribunal and also given direction to the Tribunals to put themselves on guard and to see that no person is allowed to abuse the process of law and make unlawful gain to himself by suppressing the true facts. The Division Bench of this Court in the case of VEERAPPA [supra], after analyzing the trend of the false claims going up has observed that the experience has shown that this branch of law is slowly getting into the hands of unscrupulous people who are making mockery of the judicial process. A disturbing trend of unholy alliance among the police, the doctors, the lawyers and some times even the Insurance Company, to siphon out the public money, and make an unlawful gain is fast emerging. It is also gaining respectability and persons who indulge in such practices are acclaimed as most successful in their respective profession. This is a dangerous trend, if unchecked would undermine the judicial process. As the existing law is inadequate to check this malady, the Courts not only have to be careful in adjudicating such claims but also find ways to prevent such abuse. They have to balance the interest of these accident victims and their legal heirs on one side, by giving them just compensation at the earliest, thus giving effect to the mandate of the parliament, and on the other hand, to see that the very process is not abused and exploited by a handful of persons, who have attained specialization in this field, to make personal gains at the cost of the exchequer. An onerous responsibility lies on the Courts. Therefore, it is imperative that a strong message is to be sent to the abusers of the judicial process to discourage them from indulging in such practices as well as the consequences of such abuse may result in foisting the liability exclusively on the insured-owner of the vehicle. Keeping these observations made by this Court, the factual matrix of the case is examined.
7. Admittedly, the accident occurred on 19.7.2009. The injured was treated first at Channapattana Government Hospital, thereafter at NIMHANS, Bengaluru and further at Victoria Hospital, Bengaluru, where he succumbed to the accidental injuries. FIR No.231/2009 on the basis of UDR report was registered under Section 174 of Criminal Procedure Code. The FIR is marked as Exhibit.P2. The contents of UDR Report discloses that the deceased was admitted at Victoria Hospital for treatment with the history of road traffic accident. That information was given by one Dr. Manjunath of Victoria Hospital. The deceased was not native of Bangalore and accident had occurred within the limits of MK Doddi Police Station, Channapattana Taluk, RW.1 had forwarded the UDR Report and FIR to the jurisdictional Police who had later registered FIR in Crime No.77/2009 for the offences punishable under Section 279, 304[A] of IPC read with section 187 of the Act. The copy of the said FIR is at Exhibit.P1. The delay in registering the second FIR at Exhibit.P1 on 18.9.2009 is not satisfactorily explained. The delay may be due to the perfunctory act of the Police authorities. The Tribunal has dismissed the claim petition not merely on the ground of delay. At this juncture, it is beneficial to refer to the Judgment of the Hon ble Apex Court in the case of RAVI [supra], which has been relied on by the learned Counsel for the Appellant. The Hon ble Apex Court has observed that in accident cases, human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim cannot be dismissed merely on that ground although lodging of FIR is vital in deciding motor accident claim cases. Delay in lodging the claim should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. In such cases, the authenticity of the FIR assumes much more significance than delay in lodging thereof.
8. In the light of the Judgment referred to supra, in RAVI s case, it is manifestly clear delay in lodging the FIR cannot be the ground to deny justice to the victim. However, the claim has to be examined with a closer scrutiny, particularly, the contents of the FIR. As could be perused, FIR registered by MK Doddi Police Station on 18.9.2009 was against the rider of the unknown two wheeler. Neither Exhibit.P2, FIR No.231/2009 registered on the basis of the UDR Report under Section 174 of the Criminal Procedure Code nor FIR registered on 18.9.2009 for the offences punishable under Sections 279, 304[A] of IPC discloses the vehicle number of the offending vehicle. Surprisingly, the offending vehicle number was mentioned for the first time in the claim petition filed by the claimants. PW.2 said to be the eye witness was examined by the claimants who had deposed that the accident caused due to the negligence of the rider of the moped [offending vehicle] which collided to the scooter, which the deceased was riding, moped thereafter dashed against him and two other persons who were standing in the bus stop who sustained injuries. In fact, PW.2 claims to be an eye witness to the accident and also one of the injured in the accident.
9. The version of RW.2 the rider of the offending vehicle is that immediately after the accident, the offending vehicle was taken by him and there was no obstruction from any one on the spot to take the offending vehicle with him. The version of RW.2 that his moped had not collided against any other person standing near bus stop but in fact the scooter, which the deceased was riding had dashed against the other persons is inconsistent to the evidence of PW-2. This inconsistent testimony of the witness coupled with the delay in lodging the complaint with the closer scrutiny of the FIR would indicate, the evidence of PW-2 is shrouded with suspicion. The learned Counsel for the Appellant placed much emphasis on the Judgment of ORIENTAL INSURANCE COMPANY LIMITED [supra], whereby this Court held that it cannot be said that there is defect in the charge sheet filed by the police, apart from this, the person who caused the accident has been accused for an offence punishable under sections 279 and 304-A of the IPC and if proved is liable to be punished. In such circumstances, there is no doubt in the investigation made by the Police and they cannot falsely implicate any person for the offence punishable under section 304-A of IPC. The background of the said case was that initially the complaint was against the unknown vehicle though the accident was on 31.12.2004, complaint was lodged on 1.1.2005 against the unknown vehicle. The delay in lodging the complaint in that case was minimal that was only about one or two days but in the present case, there is a huge delay of about two months in registering the FIR albeit the FIR and UDR Report was sent from the Victoria Hospital Outpost Police Authorities on 23.7.2009. The evidence of RW.3 owner of the offending vehicle also plays an important role to ascertain the genuineness of the alleged vehicle involved in the accident. The police authorities have seized the vehicle after three months of the accident until the day, RW-3 was oblivious of the accident. The suggestion that the Police might have created the case albeit his vehicle not being involved in the accident, since the same was seized after three months is admitted by RW-3. RW.2, the rider of the vehicle was the person working under him. Surprisingly, no injuries are caused to the rider of the offending vehicle RW.2 and no damage is caused to the offending vehicle RW.2 and no damage is caused to the offending vehicle. There is no satisfactory reasons forthcoming from the record for the delay caused in the investigation to trace and seize the vehicle. All these circumstantial evidences would indicate false implication of the vehicle by the claimants to extract the unlawful gain. The Tribunal carefully appreciated the evidence from every angle which cannot be found fault with.
10. In view of the foregoing reasons, the Judgment and Order passed by the Tribunal is sustainable.
11. Appeal stands dismissed as devoid of merits.