In the High Court of Judicature at Madras Dated 02.03.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.3913 of 2008 and M.P.Nos.1/2008 and 1/2009 Branch Manager, National Insurance Co.Ltd., Branch Office-2, 312, J.N.Street, Pondicherry. ..Appellant ..vs.. 1. Dhanasekaran 2. J.Radha Bai ..Respondents Civil Miscellaneous Appeal filed under section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 10.07.2006 passed by the Motor Accident Claims Tribunal (Fast Track Court No.I), Tindivanam, in M.C.O.P.No.103 of 2006. For Appellant : Mr.Arun Kumar For Respondents: Mr.M.Arumugam for R1 JUDGMENT This appeal is filed by the Insurance company, challenging the award dated 10.07.2006 in M.C.O.P.No.103 of 2006 passed by the Motor Accident Claims Tribunal (Fast Track Court No.I), Tindivanam. 2. Learned counsel for the appellant contended that the present appeal is filed, challenging the finding arrived at by the Tribunal with regard to the involvement of the vehicle, namely, Maruti Van, bearing registration No.PY-01-M 6112 belonging to the 2nd respondent herein in the alleged accident that had occurred on 27.04.2001 at about 5.30 AM. 3. The facts, which are necessary to decide the issue involved in the appeal, are as follows: (a) It was the case of the 1st respondent/claimant before the Tribunal that on 27.04.2001 at about 5.30 Hours, while he was travelling as a pillion rider in TVS 50 bearing registration No.PY-01/P-8945 driven by his friend, viz., Raju, the Maruti van bearing registration No.PY-01-M-6112 came behind him in a rash and negligent manner and hit the two wheeler and on account of the same, the 1st respondent/claimant fell down and sustained grievous injuries including fracture on his right knee. Immediately, he was taken to the Government Hospital, Tindivanam, where he was given first aid and thereafter, he was referred to Jipmer Hospital, Pondicherry, for further treatment. After discharge from the hospital, the claimant gave a complaint as against the driver of the said Maruti van on 19.08.2001 with a delay of 4 months from the date of the accident. Thereafter, he filed the claim petition as against the owner of the Maruti van, the 2nd respondent herein as well as its insurer, the appellant herein. (b) The case of the 1st respondent/claimant was resisted by the appellant insurance company, denying the involvement of the insured vehicle, namely, Maruti van referred to above. (c) In order to prove the claim, on the side of the claimant, four witnesses were examined as P.Ws.1 to 4, out of whom P.W.1 is the claimant, P.W.2 is the eye witness to the alleged occurrence, P.W.3 is the doctor and P.W.4 is the Motor Vehicles Inspector and 7 documents were marked as Exs.P-1 to P-7. On the side of the appellant insurance company, two witnesses, namely, R.W.1-the Investigating Officer of the appellant insurance company and R.W.2-the owner of the vehicle/2nd respondent herein, were examined and Exs.R-1 and R-2 were marked. The Tribunal, after analysing the evidence, came to a conclusion that the accident had occurred only due to the involvement of the Maruti van and passed an award for a sum of Rs.61,000/- directing the appellant insurance company to pay the same. Aggrieved over the same, the present appeal is filed by the insurance company. 3. Learned counsel for the appellant contended that there was an inordinate delay in lodging the first information report and no acceptable explanation was given for the said delay of four months; but the Tribunal has not taken into consideration the said delay while deciding the matter; had the accident been caused by the abovesaid Maruti van, the 1st respondent ought to have mentioned the description of the vehicle in the wound certificate, Ex.P-3 issued by the Government Hospital, Tindivanam; but, absolutely, there was no mention about the type of the vehicle involved in the accident in the said document; though it was the case of the 1st respondent that at the time of the accident he was travelling in the two wheeler as a pillion rider, the person, who was said to have driven the vehicle, viz., Raju, was not examined before the Tribunal; on the other hand, one Raman, an eye witness was examined as P.W.2, who had stated in his evidence that the claimant was riding the TVS 50 and there was no pillion rider in the two wheeler, which piece of evidence is totally contrary to the case of the 1st respondent. 4. The learned counsel further contended that the report of the Motor Vehicles Inspector, who was examined as P.W.4, would show that the said report was prepared on 28.11.2002 i.e.more than 18 months after the date of the accident; moreover, P.W.4 had also admitted in his cross examination that he did not bring the original records pertaining to the inspection; above all, the owner of the vehicle in question appeared before the Tribunal and was examined as R.W.2, who had stated in her evidence that her vehicle was not involved in the accident on 27.04.2001 and she had not received any notice from the Motor Vehicles Inspector to produce the vehicle; it is wholly unnecessary for the 2nd respondent to adduce evidence against the claimant, particularly in the circumstance when her vehicle was covered by the insurance policy. Thus, by pointing out the various discrepancies, the learned counsel for the appellant contended that the involvement of the Maruti van was not established by the 1st respondent and on the contrary, the discrepancies would show that by taking advantage of the injuries sustained, the 1st respondent made an unlawful claim for unjust enrichment by falsely impleading the Maruti van in question. In support of his arguments, the learned counsel relied on 2008 ACJ 1190 (DHARAM DEV ..vs.. MOHINDER SINGH AND OTHERS) and another judgment of this Court in C.M.A.No.2789 of 2002 decided on 26.08.2008 and contended that the 1st respondent has not come forward with clean hands and therefore, the claim petition is liable to be dismissed. 5. Per contra, the learned counsel for the 1st respondent/ claimant contended that immediately after the accident, the victim was taken to the hospital and hence, he was not in a position to note down the vehicle number; after getting discharged from the hospital, on 15.06.2001 he visited the accident spot and enquired about the number of the vehicle and he got the same from P.W.2 and thereafter, he lodged the complaint; initially, the owner of the vehicle remained ex parte and after effecting paper publication, she had entered appearance and adduced evidence as against the claimant by colluding with the insurance company; had the vehicle not been involved in the accident, it is the duty of the insurance company to prove their case by producing necessary evidence oral and documentary that the vehicle was not involved in the accident and that the evidence of R.W.1 cannot be relied upon. Thus, the learned counsel for the 1st respondent contended that the award passed by the Tribunal cannot be interfered with and he prays for the confirmation of the award. 6. Heard the learned counsel for both sides and perused the materials available on record. 7. It is the specific case of the 1st respondent/ claimant that on 27.04.2001 while he was travelling as a pillion rider in TVS 50 bearing registration No.PY-01-P-8945, the above said Maruti van came behind and hit the TVS 50 and caused the accident. Thereafter, he was admitted in the hospital and after discharge from the hospital, he gave the complaint on 19.08.2001. Therefore, there was an inordinate delay of nearly four months. Since there was a delay in preferring the complaint, the burden is heavily on the claimant to prove the accident and convince the delay with acceptable reasons. If he fails to prove the delay, then naturally the presumption should be by writing the registration number of some vehicle in the complaint, the appellant has attempted to get compensation from the insurance company. Now, the question that has to be determined is whether the 1st respondent has given any acceptable reason for the delay in lodging the complaint or not. 8. It is not in dispute that there was a delay in giving the complaint. On a perusal of the first information report Ex.P-1, I find that, absolutely, no reason was given by the 1st respondent for the delay. Though the submission was made by the learned counsel for the 1st respondent that the 1st respondent went to the spot and on enquiry, he came to know about the involvement of the vehicle of the 2nd respondent in the accident, the said fact neither finds a place in the first information report nor in the evidence of the claimant when he was examined as P.W.1. Secondly, the case of the 1st respondent was that at the time of the accident, he was travelling as a pillion rider; but P.W.2, the eye witness, had stated in his evidence that the two wheeler was driven by the 1st respondent and there was no pillion rider. This piece of evidence creates a doubt as to whether P.W.2 was present at the time of the alleged occurrence. To support this, no submission was made by the learned counsel for the 1st respondent. Apart from that, the owner of the vehicle herself entered into the box as R.W.1 and stated that the vehicle did not involve in the accident on 27.04.2001. Attacking the evidence of R.W.2, the learned counsel for the 1st respondent would argue that on collusion with the insurance company, R.W.2 had adduced evidence as against the 1st respondent; but such an argument cannot be accepted since the same has no legal basis. 9. It is not in dispute that the vehicle in question had insurance coverage at the time of occurrence. Moreover, as contended by the learned counsel for the appellant, it is wholly unnecessary for the vehicle owner to adduce evidence as against P.W.1, particularly in the circumstance when the vehicle was having insurance coverage at that time. Above all, it was the case of the claimant that at the time of the accident, the two wheeler was driven by one Raju. If so, he would have very well examined the said Raju to strengthen his case. It is pertinent to point out that the description of the vehicle was not given in Ex.P-3, wound certificate, which document came into existence at the earliest point of time. Further, the Motor Vehicles Inspector's Report Ex.P-2 prepared by P.W.4 also came into existence only after 1-1/2 months from the date of the alleged occurrence. P.W.4 had also admitted in his evidence that he had not brought the original records pertaining to the motor vehicle in question. Under such circumstances, the Tribunal ought not to have relied upon the evidence of P.W.4, the Motor Vehicles Inspector, in rendering the finding as against the insurance company. In fact, the cumulative effect of all the blatant discrepancies found in the case of the 1st respondent would show that by taking advantage of the injuries sustained by the victim, the claim was made as against the appellant insurance company by involving the 2nd respondent's vehicle. In this regard, the learned counsel for the appellant relied on the decision reported in 2008 ACJ 1190 (DHARAM DEV ..vs.. MOHINDER SINGH AND OTHERS), wherein the High Court of Himachal Pradesh has held that since the appellants have intentionally given false evidence in the judicial proceedings before the Motor Accident Claims Tribunal, it directed that prosecution may be initiated against them for offences under sections 191 and 193 of I.P.C. There is no dispute about this proposition and it depends upon the facts and circumstance of the case. 10. In the instant case, when there was a delay of four months in lodging the first information report, the initial burden is on the part of the 1st respondent to prove his case with cogent and convincing evidence before the Tribunal. But, he has failed not only to convince the delay in giving the complaint but also the involvement of the Maruti van bearing registration No.PY-01-M-6112 in the alleged accident. Hence, I am of the view that the finding rendered by the Tribunal is liable to be set aside. For the reasons stated above, the appeal is allowed and the award passed by the Tribunal is set aside and the claim petition filed by the 1st respondent herein is dismissed. No costs. Consequently, connected M.Ps.are closed. Index: Yes. 02.03.2010 Internet: Yes. gl To The Presiding Officer, Fast Track Court No.I, (MACT), Tindivanam. R.SUBBIAH, J., gl Pre-delivery judgment in Civil Misc. Appeal No.3913 of 2008 02.03.2010