Ravi Malimath
1. Aggrieved by the judgement and award dated 26.04.2008 passed in MVC. No. 6527/2007 by the MACT, Bangalore, the Insurance Company has filed MFA No. 9319/2008, questioning the liability and the quantum of compensation awarded and MFA CROB 268/08 has been filed by the claimant seeking enhancement. The appeal and cross objection are heard together. The case of the claimant is that on 23-05-2003 at about 5.00 p.m. the petitioner was standing in front of Royal Auto-Guarage Compound at T. Marappa Road, Siddapura, Bangalore, when the driver of the crane bearing Vehicle No. KA-01-7465 came in reverse direction towards the garage in a rash and negligent manner and dashed against the claimant. He sustained grievous injuries on the left eye and left portion of the chest. He was treated in various hospitals. On 30-03-2004 a complaint was lodged by him before the Siddapura Police Station. Thereafter the claim petition was filed. 3y the impugned judgement and award a sum of Rs. 2,86,300/-along with interest @ 8% p.a. was awarded by the Tribunal. Seeking enhancement, the claimant has filed MFA CROB 268/2008 and questioning the liability and quantum of compensation, the Insurance Company has filed MFA.No. 9319/2008.
2. Heard the learned Counsels for the parties in both the matters and examined the records.
3. The accident is said to have occurred on 23-05-2003. The complaint is lodged on 10-03-2004 i.e., 10 months after the accident took place. In the written complaint lodged before the Police Station the claimant narrates the manner in which the accident took place. He has further stated that the police came to the spot and recorded his statement. Ex. P-6 is the wound certificate issued by Agadi Hospital and Research Centre wherein 4 injuries were noted, which are as follows :-
1. Cut Injury over right cheek.
2. Mandibular joint tenderness.
3. Cut Injury over parietal bone and
4. Abrasion over left scapular region.
Various other exhibits have been marked by the claimant in order to substantiate the treatment undergone by him. He therefore, contends that the amount of compensation awarded is meager and the same requires enhancement.
4. On the other hand, Sri O. Mahesh, learned counsel appearing for the Insurance Company disputes the claim. He disputes that the claimant suffered these injuries on account of the said accident and therefore contends there is no liability on the Insurance Company to satisfy the award.
5. In the written complaint lodged by the claimant, he has specifically stated that the Police came to the hospital and recorded his statement. However, the said statement has not been produced before the Court. Ex.P-6 is the wound certificate, wherein only 4 injuries sustained by claimant is mentioned, of which 2 injuries were cut injuries, one is a tenderness over the joint and the other is an abrasion. On these injuries the doctor has stated viz., cut injury over the right cheek is grievous and the other injuries are simple in nature. In the said wound certificate it has also been mentioned that X-ray shows that there is right zygomatic fracture. However, there is no mentioning at all by the Doctor as to whether he has examined the said injury or whether the injury is simple or grievous. Ex.P-5 is the wound certificate issued by Netra Enterprises, three weeks after the claimant suffered the injury to the right eye. The injuries noted in Ex.P-5 which has been commented upon by the Doctor has no reference at ail whatsoever, in the initial wound certificate - Ex.P-6. The doctor who first examined the claimant at Agadi Hospital has issued Ex.P-6. Therefore, he should have noted all the injuries sustained by the claimant. The subsequent wound certificate issued three months thereafter, when the claimant was examined then, is not relatable to the previous wound certificate at all. Hence there is serious doubt with regard to acceptance of Exs.P-5 and P-6.
6. Learned Counsel seeks to rely on Ex.P-7 issued by yet another medical centre namely the third Centre wherein certain investigations have been made. Ex.P-7 discloses that there are fractures of right Zigomatic Arch and three other injuries. A reading of all these three wound certificates do not lend any confidence. The claimant was first treated at Agadi hospital & Research Centre where the wound certificate Ex.P-6 was issued wherein there is no mention about the nature or otherwise of the fractures of the Zigomatic Arch is concerned. The other two wound certificates are subsequently obtained.
7. In the complaint lodged he has stated that the police came to the hospital and recorded the statement. The said statement has not been produced. Hence, what the claimant has stated in his complaint dated 10-3-2004 becomes doubtful. Reliance is placed on the evidence of P.W.4 who is a retired ASI to contend that the complaint was lodged and investigation commenced. However, in the cross-examination he has stated that there is no document to show that under the said date a memo was received from hospital and that the said memo has not been produced before the Court not has diary maintained in the station was produced. That between the 23-5-2003 and 13-3-2004 no steps for investigation was taken up. He has further stated that one Saleem namely, the alleged eye witness has not given any complaint nor any statement. That till 13-3 2004 he has not received any complaint in respect of the said vehicle that is sought to be involved in the accident. The evidence of P.W.4 renders the entire case of the plaintiff as doubtful. P.W.6 is the retired PSI. He has stated that after receiving the complaint on 13-3-2004 he took up the investigation. In the cross-examination he has stated that after receiving the complaint he enquired with the hospital whether a case has been registered as MLC or not and on enquiry he came to know that the injured had taken treatment on 25-5-2003. That the hospital authority have stated that a mistake has occurred in not intimating immediately with regard to the such accident. The evidence of these witnesses therefore clearly enunciates that the case of the claimant cannot be accepted. Even assuming that the entire case of claimant is accepted so far as the medical treatment is concerned and in so far as sufferance by the accident is concerned, there is no nexus between the medical certificates and the accident. Further it is to be noted that in the evidence of P.W.4 he has stated that when he went to Agadi Nursing Home, the Doctor informed him that the patient is unconscious. The said statement is not corroborated by the medical records of the hospital. Ex.P-124 discloses that the history of the injury which is due to an alleged injury when wooden plank fell over the patient''s face that the patient was conscious, alert and well oriented. The statement therefore of P.W.4 that the Doctor informed him that the claimant was unconscious belies the medical records. Under these circumstances, the claimant has failed to establish the nexus between the injury sustained by him and the medical records. Even though the claimant has sustained several injuries there is no relation with the accident. Even under the primary document at Ex.P-5 when the patient was first examined it is only mentioned that the injury is as a result of a road traffic accident. The vehicle number is not mentioned. Assuming the case of the claimant that he was aware as to which vehicle caused the accident, in none of the primary documents the name of the vehicle is mentioned. If the case of the claimant were to be accepted on the very first instance the same should have found place in Ex.P-6. If not atleast at the earliest point of time the same should have been noted. However, ail these findings have been subsequently pleaded at a far too later date. Even though the delay in lodging the complaint cannot be held against the claimant, the claimant has miserably failed to prove the nexus between the injuries and the medical records. Under these circumstances, I am of the considered view that the claim of the claimant, is misconceived and is not backed by any records.
For the aforesaid reasons, MFA No. 9319/2008 is allowed. The Judgment and award dated 26-4-2008 passed by the Motor Accident Claims Tribunal, Bangalore, is set aside. Consequently MFA Cross Objection No. 268/2008 is dismissed as being devoid of any merit.
The amount deposited by the Insurance Company is directed to be released in their favour and they are at liberty to proceed for recovery of the amount paid to the claimant.
