IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 MACA.No.540 of 2006 (F) ------------------------------ OPMV.98/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ------------------------------- THOMAS MATHEW, S/O. MATHAI, RESIDING AT KARIMTHOLIL HOUSE, CHATHAMATTAM KARA, POTHANICADU VILLAGE. BY ADV. SMT.ANNIE PAUL RESPONDENTS: RESPONDENTS: -------------------------------------- 1. FRANCIS ABRAHAM, S/O. ABRAHAM, KAVATTU HOUSE, KEERAMPARA P.O., PUNNEKKAD. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., CHURCH VIEW JUNCTION, KOTHAMANGALAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 SRI.ALEXY AUGUSTINE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.540 of 2006 ------------------------------------------------ Dated this the 15th day of October, 2008 JUDGMENT Balachandran, J The claimant in O.P.(MV)98/02 on the file of the Motor Accident Claims Tribunal, Muvattupuzha is the appellant. The appellant assails the dismissal of the application so filed by him before the Tribunal under Section 166 of the M.V. Act. 2. According to the appellant, he was standing at the bus stand at Oonjapara and then scooter bearing registration No.KL-7/K- 7100 ridden by the first respondent knocked him down and he sustained injuries. The incident happened on 16/10/01. He was treated at Specialist Hospital, Ernakulam. The accident occurred, according to him, on account of the negligence of the first M. A. C. A. No.540 of 2006 -2- respondent who was the owner of the scooter who was also riding the scooter at the time of the occurrence and the second respondent is its insurer and therefore, respondents are jointly and severely liable to pay compensation for the injuries sustained to him in the accident. 3. The first respondent filed written statement admitting the accident. The second respondent filed written statement admitting the insurance coverage for the scooter, but denying the occurrence. The Tribunal considered the evidence adduced at trial which consisted of oral evidence of PWs.1 to 3 and documentary evidence Exts.A1 to A9 and B1 and dismissed the claim petition in view of its finding that the appellant failed to prove that he sustained injuries in the manner alleged by him or that it was due to the negligence of the first respondent. M. A. C. A. No.540 of 2006 -3- 4. It is contended before us by the learned counsel for the appellant that the Tribunal was lead away by the relationship between the appellant and the first respondent to come to the conclusion that the alleged occurrence is one collusively set up to claim compensation from the second respondent and that in fact the evidence would go to show that the accident has taken place as alleged. 5. The Tribunal has observed that in para 28 of the application the appellant has alleged that he was standing at the bus stop and seeing the first respondent coming riding on the offending vehicle from East to West he stretched his hand to stop the vehicle and due to the excessive speed the rider lost control over the vehicle and happened to hit him. The appellant attempted to substantiate his case by examining himself as PW1 and an occurrence witness as PW3. According to PW1, the accident M. A. C. A. No.540 of 2006 -4- occurred near the bus stop at Nirmal Gram. There is no explanation as to whether the Nirmal Gram bus stop is the same as Oonjapara bus stop alleged in the claim petition. According to PW1, he was waiting for a bus and it was then that the scooter ridden by the first respondent came that way and he stretched his hand and thereupon, the scooter skidded and hit his left leg and stopped. He further stated that the rider of the scooter went to the nearby house and got down a jeep in which he was taken to the specialist hospital at Ernakulam and that the rider of the scooter also accompanied him and however, that the accident occurred due to the negligence of the first respondent. In cross examination PW1 is seen to have admitted that the bus stop was in front of Nirmal Gram Dairy and that the accident occurred 75 metres away from the said bus stop. So his case that he M. A. C. A. No.540 of 2006 -5- was waiting for the bus at the bus stop cannot but be false. According to PW1, even after the scooter hit him he stood on the road itself; that the scooter did not over turn and that he was being lifted and removed to the jeep after getting down the jeep. According to him, he was being taken to a hospital at Ernakulam with which the first respondent was having close acquaintance. The said hospital at Ernakulam is at a distance of 50 kms. from the place of accident. Though the alleged occurrence has taken place at 1.00 p.m on 16/10/01 the appellant was brought to the hospital at 3.45 p.m only and the explanation was that there was traffic block at Vyttila and there was no traffic signal. The explanation offered however did not appear to be convincing to the Tribunal and rightly too because the distance from the scene of occurrence to the hospital is distance to be M. A. C. A. No.540 of 2006 -6- covered within a maximum time of 1.5 hours in the normal course. It has come out from the testimony of PW1 that the first respondent is none other than the husband of his own niece and that they are residing about three kms. away from the scene of occurrence. According to the Tribunal the fact that the appellant was taken to the hospital where the first respondent had close acquaintance when considered along with the relationship of the appellant with the first respondent would buttress the inference that the appellant/ injured was waiting for the first respondent to come over to take him to a hospital where he has got acquaintance. It is worthy to note that the appellant has suppressed the relationship with the first respondent in the claim petition and it cannot but be with lack of bona fides as observed by the Tribunal. M. A. C. A. No.540 of 2006 -7- 6. Ext.A4 wound-cum-discharge certificate issued from the Specialist Hospital, Ernakulam showed that the appellant was examined at 3.45 p.m on 16/10/01 with history of RTA occurred at Oonjapara at 1.00 p.m. Here again the place of occurrence is Oonjappara as stated in the claim petition and not Nirmal Gram bus stop. The Tribunal has observed that the appellant has not implicated any vehicle while disclosing the history of occurrence at the hospital as he had no one to be implicated at the time when he was taken to the hospital and that implicating of the first respondent's scooter insured by the second respondent is nothing but an after thought. 7. It is also worthy to note in this context that from the scene of occurrence, the appellant was brought over to the Specialist Hospital at Ernakulam passing through Kothamangalam, Muvattupuzha and Kolencherry. M. A. C. A. No.540 of 2006 -8- There are Hospitals at Kothamangalam and Muvattupuzha. Further, at Kolencherry there is a Medical Mission Hospital as well where expert treatment can be obtained from Specialists. It is only natural in the ordinary course of human conduct that the injured would be taken to the nearby hospital in the first instance and thereafter only if need be the injured would be taken to a hospital having more facilities. In the instant case, the appellant was being taken to a far off place without even providing the first aid. This aspect is not something which can be believed for a moment as such things never happen in the ordinary course of events. 8. The appellant was discharged from the hospital on 10/11/01 as evidenced from Ext.A4. Till then, no first information had been lodged in relation to the accident. Later on 26/11/01 the brother-in-law of the appellant M. A. C. A. No.540 of 2006 -9- filed C.M.P.8003/01 before the Judicial First Class Magistrate's Court, Muvattupuzha which was forwarded for investigation and report under Section 156(3) to the Kothamangalam Police Station and it was on the basis thereof that Crime No.500/01 was registered at the Kothamangalam Police Station. The accident was on 16/10/01 and if at all the brother-in-law of the appellant was to file such a complaint there was no reason for him to wait till 26/11/01 and the complaint is filed even 16 days after the discharge of the appellant from the Hospital. This casts doubt as to the genuineness of the allegation as regards the accident taking place. 9. PW1 deposed that even after sustaining the injury by the hit of the scooter he was standing on the road whereas as per Ext.A2 mahazar the scene of occurrence is at a distance of 35 cms. from the tarred portion of M. A. C. A. No.540 of 2006 -10- the road. Further, in Ext.A2 it is shown that Nirmal Gram dairy is situated 75 metres West of the scene of occurrence on the Northern side of the road. PW3 who is examined as an occurrence witness gave evidence to the effect that he was standing in front of the dairy to fetch a bus for Keeranpara and that he saw the appellant standing on the mud road on the Southern side of the tar road and that the Scooter jumped the tar road cutting and proceeded towards the appellant and hit on his leg. So according to PW3 the accident occurred on the road margin and not on the road whereas according to PW1, the accident occurred on the road itself. 10. It cannot be forgotten that the evidence of PW1 is to the effect that he was waiting for the bus but the scene of occurrence identified and described in Ext.A2 is 75 metres away from the bus stop. This also M. A. C. A. No.540 of 2006 -11- belies the case of the appellant that the accident occurred while he was waiting at the bus stop for the bus. The result of the investigation in the crime registered belated as already discussed cannot have any bearing at all in the above circumstances. The scooter allegedly involved in the accident was not seized by the police and mahazar also is not prepared. Ext.A8 shows that the first respondent pleaded guilty to the charge and the Tribunal observed that considering the relationship between the appellant and the first respondent the case of the appellant can only be considered as collusive and that the criminal case was being designedly fabricated. In the circumstances, the conclusion is rightly arrived at by the Tribunal that the case of the appellant that he sustained injury in the road traffic accident as alleged is not established. The circumstances suggest that M. A. C. A. No.540 of 2006 -12- the case is falsely foisted collusively so as to claim compensation for the injuries sustained to the appellant in some other, manner from the second respondent/Insurance Company. We endorse the views and findings of the Tribunal and hold that the case set up by the appellant is false and that he is not entitled to claim any amount by way of compensation from the respondents. 11. This appeal is hence, dismissed. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-