IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.08.2010 C O R A M THE HONOURABLE Mr. JUSTICE B.RAJENDRAN C.M.A. NO.2245 of 2007 and M.P.No.1 of 2007 United India Insurance Company Ltd No.19, Aandiappa Gramani Street Rayapuram, Chennai ... Appellant Versus 1. M.G.Sreeramulu 2. G.Appuswamy ... Respondents Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the judgment and decree dated 29.12.2005 made in MCOP No. 498 of 2003 on the file of the Motor Accidents Claims Tribunal, (Additional District – cum – Sessions Court) (Fast Track Court No.3) at Poonamallee. For Appellant : Mrs. N. Mala For R1 : Mr. N.A.Nissar Ahmed For R2 : Ex - parte JUDGMENT The Insurance Company has come forward with this appeal challenging the Award dated 29.12.2005 made in MCOP No. 498 of 2003 passed by the Motor Accidents Claims Tribunal awarding a sum of Rs.86,960/- as compensation for the injuries sustained by the claimant/first respondent herein in the alleged accident that took place on 23.3.2002. 2. According to the learned counsel for the insurance company/ appellant, the accident itself is a bogus one and consequently, the claim petition is not maintainable. The appellant would contend that the claimant claimed as if he was injured in the road accident when he was walking in the road. It was also claimed that he was admitted in the Ramachandra hospital, Porur and for the injuries sustained in the alleged accident, he has claimed compensation. According to the counsel for the appellant in the discharge summary, which has been produced by the claimant, it is very clearly stated that the claimant was a passenger in the Auto and he fell down from the Auto thereby, he sustained injury. Since the vehicle in which the claimant traveled is a goods carrier and he will not be entitled to claim any compensation, he had set up this vehicle namely Auto to contend as if when he was walking in the road, he was hit by the auto and sustained injuries. Even in the cross examination, the claimant himself would state that the time of accident was 2.30 pm but in the FIR, which was given after https://hcservices.ecourts.gov.in/hcservices/ two days from the date of accident, the time was mentioned as 5.30 pm, but by 4.00 pm, the claimant was in Ramachandra hospital as In- Patient. Therefore, the main contention of the Insurance company is that the claimant, who traveled in a goods carrier and sustained injuries is not entitled to any amount as compensation. In fact, in the accident register, it was very clearly stated that the accident took place on 23.3.2002 at about 2.30 pm near Pattabiramapuram and the patient was conscious at the time of accident. However, conveniently, the original accident register was neither produced nor marked and discharge summary alone was marked. 3. In fact the learned counsel for the Insurance company/appellant, at the time of argument, produced the copy of the accident register to substantiate the false case projected by the claimant. Even in the counter filed before the court below, they have very clearly stated that the accident did not happen as mentioned in the claim petition or even if the accident took place as stated so, the vehicle involved is not the vehicle as projected by the claimant. The alleged Vehicle could not be there because it is a goods carrier. The version of the Claimant itself would prove that he was a passenger in the auto and fell from auto. Hence, the Insurance company has taken the defence that the vehicle was not involved in the accident. Further, the contents of FIR, which was given after two days, would categorically indicate that the claim itself is bogus claim as against the Insurance company. Even though there was an accident in which the claimant might have sustained injury, they are not liable to pay compensation inasmuch as the claimant sustained injuries while traveling in a goods carrier. 4. The learned counsel for the claimant/first respondent would mainly contend that mere discrepancy in the FIR cannot be a reason to discard the very incident. The entries made in the discharge summary would prove that the claimant fell down from an auto. It was further contended that immediately after the accident, the claimant become unconscious and he may not be responsible for whatever written by the doctor. But as far as the non production of accident register is concerned, it is only a mistake, but the injury was true and the treatment undergone by the claimant are clearly made out and, therefore, the compensation as awarded by the Court below has to be confirmed. He would further contend that no independent evidence has been let in by the Insurance company to disprove the claim made by the claimant. The insurance company also not taken any action against the owner of the vehicle for the alleged misuse of the vehicle. 5. Heard both sides. The points for consideration in this appeal are (1) Whether the alleged accident which took place on 23.3.2002, as stated by the claimant, is true and correct? (2) Whether the appellant is entitled to pay compensation to the claimant for the alleged injuries sustained by him in the road accident? 6. The Insurance company has raised specific contention in the counter filed before the court below as follows: "This respondent respectfully submits that on investigation this respondent came to know that the first respondent's Auto TN-20-F-4839 is not at all involved in https://hcservices.ecourts.gov.in/hcservices/ the road accident occurred on 23.3.2002 at about 5.30 pm as one alleged in the petition. This respondent found that from the Accident register No.25534 of the petitioner, dated 23.3.2002, admission time 4.00 pm from S.R.M.C Hospital and it disclosed that the petitioner sustained injury alleged to have been skid and fallen from an auto on 23.3.2002 at about 02.30 p.m. near Pattabiramapuram and the petitioner was accompanied by his co-worker namely Mr. Appasamy. G. This respondent further submits that the first respondent, his alleged driver namely R.Kumar and the petitioner (all are residing in Kamaraj Nagar, Avadi, Chennai -600 071) colluded together with the Police Station made out the fabricated, delayed F.I.R on 25.3.2002 at about 15.30 Hrs. against the First respondent's vehicle, only with the view to cheat the Second respondent Insurance Company. The above said alleged F.I.R is created for the purpose of this compensation application. Hence, the above case may be dismissed in limine." 7. The main contention is that even if the accident took place as alleged, the vehicle, which is insured with them, is not the vehicle which is involved in the accident. If the vehicle was not involved in the accident, they will not be liable to pay compensation. In support of this contention, the insurance company relied on the Discharge summary, which is the only document produced by the claimant with regard to the alleged accident and treatment. In the discharge summary, it is very clearly stated that the claimant fell down from the auto and thereby sustained injury. They have also stated that the claimant has not produced the accident register. Their main contention was the accident register is the correct document where the entries were made by the hospital authorities, especially in case of road accident, once the patient enters the hospital and the accident register alone will prove beyond reasonable doubt the status of the patient at the time of admission into the hospital. Therefore, the appellant would contend that since the said document, namely, accident register, was not produced by the claimant, the claimant is not entitled for compensation. The claimant would only say that he was unconscious at the time of accident and any entry made in the Discharge summary at the time of admission may not be fastened on him. To disprove this, the vital document, namely, accident register, which was in the custody of the claimant, was not produced by the claimant. 8. In this connection, the learned counsel for the appellant would contend that the non production of the document, namely, the accident register, cannot disentitle the appellant from proving their defence as per Order 41 Rule 27 CPC. Order 41 Rule 27(b) CPC reads as follows: (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined." https://hcservices.ecourts.gov.in/hcservices/ 9. In this case, the accident register would be a vital document which this Court feels should be entertained as a document in support of the defence of the appellant. The accident register would read thus: "Alleged to have been skid and fallen from an auto on 23.3.2002 at about 2.30 pm bear Pattabiramapuram. .. .. .. .. .. .. .. .. .. .. .. .. 10. In Ex.P2, Discharge summary, which is produced by the claimant, it is clearly written as follows: " Alleged h/o RTA when the auto in which the patient was travelling crashed on a tree at about 2 pm on 23.3.2002 near Thirunendravur." 11. In the discharge summary also, it is clearly admitted that he was traveling in the auto. But in the FIR, the accident time is mentioned as 5.30 pm on 23.3.2002. But it is registered on 25.3.2002 at 2.30 hours. In the FIR, it is stated by the claimant that when he was walking on 23.3.2002 at about 5.30pm from Thiruninravur bus stand to D.R. Computer Centre in the Thiruninravur Road, the goods carrier dashed him from behind and he fell down and sustained injuries. A reading of the FIR itself clearly shows that it is a false statement with regard to time. Admittedly, As per the accident register, the claimant was admitted as In - Patient in Sri Ramakrishna hospital at 4.00 pm. The discharge summary also shows that he was admitted on 23.3.2002 itself at about 4.00 pm. Even, As rightly pointed out and fairly submitted by the learned counsel for the claimant, in the main petition itself the time of accident is mentioned as 2.30 pm on 23.3.2002. If it is so, how could the FIR shows that the accident took place at 5.30 pm. The said statement would clearly disprove the very claim made by the claimant. Therefore, as rightly pointed out by the learned counsel for the appellant, the vehicle which was involved in the accident is not the vehicle which was insured with the Insurance company and the manner in which the accident took place as alleged in the petition is also totally false. Therefore, it is clearly made out that the claimant has chosen to include the vehicle to suit his convenience so as to claim benefit under Motor Accidents claim, which under law cannot be permitted. 12. Here is the case where a benovalent legislation has been misused and abused with the connivence of the claimant and others knowing fully well that it is not the vehicle which was involved in the accident and hence, the claim petition ought not to have been entertained by the court below. The court below has lost sight of all these aspects and granted compensation to the claimant, to which he is not entitled to. Therefore, this is a fittest case where this Court can interfere with the award of compensation granted by the court below in favour of the claimant inasmuch as the claimant had come forward to project a false case to claim compensation. The accident register produced by the appellant/ Insurance company shall be treated as part and parcel of the records concerning this appeal https://hcservices.ecourts.gov.in/hcservices/ and the same is marked as Ex.C1. The learned counsel for the appellant/Insurance company also submitted that no amount has been deposited as per the award passed by the court below. 13. In the result, the appeal filed by the Insurance company is allowed. The award passed by the court below is set aside and the OP.No.498 of 2003 is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ga/rsh To 1 The Motor Accidents Claims Tribunal, Additional District cum Session Court, Namakkal. 2 The V.R. Section Officer, V.R. Section, High Court, Madras. + 1 C.C. to M/S. M. MALA, Advocate SR.NO. 61435 + 1 C.C. to M/S. N.A. NISSAR AHMED, Advocate SR.NO. 61002 18.8.2010 Judgment in C.M.A. NO.2245 of 2007 RSI ( CO) RR 18/05/2011 https://hcservices.ecourts.gov.in/hcservices/