*HON’BLE SRI JUSTICE R.KANTHA RAO + C.M.A.NO.2488 OF 1999 % Date: 09-10-2009 Between: # Arkala Prakash .. Appellant and $ Balkishan Rao and others … Respondents ! Counsel for appellant: Sri S.Bhooma Goud ^ Counsel for respondent No.3: Sri A.V.K.S.Prasad < GIST: >HEAD NOTE: ? Cases referred: HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.2488 OF 1999 DATED: 09.10.2009 BETWEEN: Arkala Prakash .. Appellant And Balkishan Rao and others .. Respondents HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.2488 OF 1999 JUDGMENT: This appeal is directed against the order, dated 04.11.1998 passed by the Chairman, Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad in O.P.No.731 of 1993. 2. I have heard the learned counsel appearing for the appellant. 3. This is a claimant’s appeal. The appellant filed O.P. before the Tribunal below under Section 166 of the Motor Vehicles Act seeking compensation of Rs.1,20,000/- in respect of the injuries sustained by him in a motor vehicle accident occurred on 29.07.19993. The first respondent is the owner of the motor cycle LML Vespa bearing No.AAR 7262. The second respondent is the person, who was driving the said vehicle at the relevant time. The third respondent is the insurance company with which the vehicle was insured on the date of accident. 4. The appellant mentioned in the claim petition that he was studying 8th class in Z.P Secondary School (Boys), Kamareddy. On 29.07.1993 while he was returning to his house on his cycle after attending cattle shed work, and when he reached Municipal Office, Kamareddy on N.H.7 road at about 8.45 p.m., the second respondent came in a rash and negligent manner driving the scooter LML Vespa bearing No. AAR 7262 and hit the claimant, as a result of which, he fell down and became unconscious, then he was shifted to the Government Civil Hospital, Kamareddy by his paternal uncle and on the advise of the doctors, the claimant was shifted to NIMS, Hyderabad for better treatment where he was treated as inpatient for a period of 30 days and underwent operation. He lost his vision in the right eye totally. 5. The first respondent remained exparte. The second respondent, who is said to be driving the vehicle and the third respondent – insurance company contested the claim. 6. The second respondent contended, inter alia, that the scooter LML Vespa bearing No.AAR 7262 which was involved in the accident was allegedly insured with the third respondent and if at all the appellant is entitled for any compensation, the third respondent is liable to pay compensation to the appellant. 7. The third respondent filed its counter contending that the claim petition is filed by the appellant against respondents 1 and 2 and therefore, respondents 1 and 2 are jointly and severally liable to pay compensation to the appellant. 8. The specific contention of respondent No.3 is that the scooter belonging to respondent No.1 was not at all involved in the accident, and therefore, respondent No.3 – insurance company is not liable to pay any compensation. 9. Before the Tribunal, in order to prove his case, the claimant examined himself as PW.1, doctor, who treated the claimant as PW.2, and marked Ex.A1 to A15. RWs.1 and 2 were examined on behalf of the respondents and they marked Ex.B.1 to B.4. 10. Considering the entire evidence on record, the learned Tribunal below upheld the contention of respondent No.3 – insurance company that the respondent No.2 was not driving the scooter bearing No.AAR 7262, the said vehicle was not involved in the accident and therefore, the claimant is not entitled for any compensation from the respondents. Assailing the said finding, the claimant preferred this appeal. The legality and correctness of the said finding is the subject matter of challenge in this appeal. 11. Now the point for determination in this appeal is whether there are any valid grounds to interfere with the order passed by the learned Tribunal? 12. The appellant-claimant relied upon Ex.A.1 certified copy of the first information report and Ex.A.3 certified copy of the charge sheet. Ex.A.14 the certified copy of the judgment in C.C.No.198 of 1994 on the file of the Judicial Magistrate of First Class, Kamareddy which shows that respondent No.2 was convicted by the Magistrate for the offence under Section 338 IPC and was sentenced to pay fine of Rs.1,000/- besides his oral testimony as PW.1. 13. It is the contention of the learned counsel appearing for the appellant that from the contents of Ex.A.3, copy of the charge sheet, the second respondent was driving the scooter bearing No. AAR 7262 and the evidence of PW.1 – claimant is that the accident occurred due to rash and negligent driving of the second respondent, who was driving the scooter bearing No. AAR 7262 belonging to the first respondent, which ought to have been relied upon by the learned Tribunal. 14. The insurance company examined it’s investigator as RW1. His evidence is to the effect that his investigation revealed one G. Ravinder Rao was driving the scooter bearing No.ATI 8593 on 29.07.1993 at about 8.45 PM which dashed against the cyclist i.e. the appellant herein on N.H.No.7 in front of Municipal Inspection Bungalow, Kamareddy, due to which the appellant fell down and received injuries. He has also stated in his evidence before the Tribunal that scooter bearing No. ATI 8593 belongs to one Damodar Rao, lecturer at Kamareddy, but having come to know that the said vehicle is not insured and also the appellant having colluded with respondents 1 and 2 filed the claim petition on false grounds stating that the scooter bearing No. AAR 7262 belonging to respondent No.1 was involved in the accident. Ex.B.1 is the report given by him to the Regional Manager, United Insurance Company, Nizamabad. Ex.B.2 and B.3 are the unserved envelops issued to Balakrishna Rao, Kamareddy, the owner of the scooter bearing No.7262. Ex.B.4 is the copy of the Insurance policy. 15. The evidence of RW.1, therefore, discloses that his investigation revealed that in fact, the vehicle bearing No.ATI 8593 belonging to one Damodar Rao, Lecturer at Kamareddy was actually involved in the accident and the said vehicle was being driven by respondent No.2 at the time of accident. His evidence also further indicates that at the earliest point of time respondent No.3 – insurance company issued notice to the owner of the vehicle (1st respondent). The evidence of RW2 is only to the effect that RW1 was appointed by respondent No.3 to investigate into the accident in question. 16. However, the crucial aspect requires consideration is the evidence of PW.1 –appellant herein. In the chief examination he had stated before the Tribunal that he received injuries as scooter LML vespa bearing No. AAR 7262, which was driven in a rash and negligent manner, dashed him from the opposite direction. However, in the cross examination at one place he stated that one Ravinder was driving the scooter at the time of accident and at another place he stated that Ravinder – respondent No.2 was not driving the scooter of respondent No.1. However, in the cross examination of respondent No.2 he again stated that the first respondent in this case is the owner of the scooter and respondent No.2 drove the scooter at the time of accident. 17. Resting on the conflicting versions, the learned trial Court arrived at the conclusion that the appellant failed to prove that the scooter bearing No. AAR 7262 belonging to the first respondent was involved in the accident and therefore, he is not entitled to claim compensation from the respondents. 18. The learned Tribunal below did not take into consideration the evidence of PW.1 in the further chief examination, which is as follows: “R.2 did not have scooter. R.2 was going on scooter to attend the work of R.1. R.2 was convicted in lower court and was imposed a fine of Rs.1000/- u/s 338 IPC by JMFC, Kamareddy. Ex.A.14 is the c.c. of judgment in C.C.No.198/94 on the file of JMFC, Kamareddy. Ex.A.15 is the c.c. of wound certificate, corresponding to Ex.A.5. After gaining consciousnes I came to know that R.2 was driving the scooter at the time of accident. R.2 was arrested by police, charge sheeted and was convicted.” 19. The evidence of RW.1, who is the investigator appointed by the insurance company in so far as the non- involvement of LML vespa scooter bearing No. AAR 7262 in the accident is not of much helpful to the third respondent – insurance company, since it is not supported by any documentary evidence. Further the third respondent – insurance company also did not examine any eyewitnesses in proof of the fact that the vehicle bearing No. ATI 8593 was involved in the accident, but not the vehicle LML vespa AAR 7262 which was driven by the second respondent. However, there is no inconsistency in the versions of the appellant as well as the third respondent – insurance company in so far as the fact that the second respondent was the person, who was driving the vehicle involved in the accident at material time. The dispute is, therefore, as to actually whether the accident was caused by the use of the scooter bearing No. AAR7262 or that of the scooter bearing No.ATI 8593. 20. The consistent stand of the third respondent – insurance company is that the accident was caused by the second respondent while he was driving the scooter bearing No. ATI8593 belonging to one Damodar Rao, a Lecturer at Kamareddy. 21. Here it is to be noticed that the burden is heavy on the appellant to prove that the accident was caused due to involvement of the scooter bearing No.AAR 7262 belonging to the first respondent. If he fails to establish the said fact, he is not entitled to claim any compensation from the third respondent – insurance company. 22. To determine this question, the crucial aspect requires consideration is the written statement filed by the second respondent, his evidence as RW1 and more particularly the evidence of PW.1, the claimant himself. 23. The first respondent, who is said to be the owner of LML vespa bearing No. AAR 7262 remained ex parte and the claimant did not take any steps to examine him as a witness on his behalf. The second respondent, who was driving the scooter mainly contended in his counter that the LML vespa scooter bearing No. AAR 7262 belonging to the first respondent was duly insured with the third respondent at material time and if at all the Tribunal comes to the conclusion that the appellant is entitled for any compensation, the third respondent alone is liable to pay the compensation. The first information report was lodged by a third party on 29.07.1993 wherein the name of the second respondent as the person driving the scooter was not found. The registered number and other particulars of the vehicle were also not mentioned in the first information report. Despite his name not finding place in the first information report Ravinder Rao, the second respondent herein surrendered before the police concerned 41 days after the accident admitting commission of offence, thereafter, a charge sheet was filed by the police against him. When he was produced before the Magistrate after filing the charge sheet, he admitted commission of offence and the learned magistrate imposed a fine of Rs.1,000/- on him for the offence under Section 338 of IPC which fact is borne out from Ex.A.14, certified copy of the judgment in C.C.No.184 of 1994. The conduct of the first respondent as well as second respondent from the beginning appears to be highly suspicious leading to an interference of collusion between them and the appellant. 24. In my view, in the given situation it was obligatory on the part of the appellant to examine the first respondent and also Mr Ravinder Rao whose identity is known to him as witnesses on his behalf to remove the ambiguity in the mind of the learned Tribunal which made an enquiry in to the claim, but he did not do so. 25. His evidence before the Tribunal also consists of prevaricative versions in relation to the identity of the scooter involved in the accident and also the identity of the person, who was actually driving the said scooter. He admitted in the cross examination that on the date of accident he did not know the descriptive particulars of the scooter and also the person, who was driving the scooter which dashed his cycle. His version is that soon after the accident he became unconscious and only after 5 days of the accident, he came to know that respondent No.2 was driving the scooter at the time of accident. Again he stated that respondent No.2 – Ravinder Rao was not the person who was driving the scooter owned by the first respondent. He also further admitted in the cross examination that he did not know whether respondent No.2 was driving the scooter of respondent No.1 on the date of accident. 26. In view of the specific stand taken by the third respondent – insurance company that in fact the scooter bearing No. ATI 8593 belonging to one Damodar Rao, lecturer which was driven by the second respondent caused the accident, but on coming to know that the said scooter was not validly insured on the date of accident, the appellant having colluded with the respondents 1 and 2 filed the claim petition inventing false story that the scooter LML vespa bearing No. AAR 7262 belonging to the first respondent which was driven by the second respondent was involved in the accident only to enable the appellant to claim compensation from the third respondent – insurance company since the said vehicle was validly insured with the third respondent on the date of accident, the burden is heavy on the appellant to dispel the doubts regarding the identity of the scooter involved in the accident. 27. Keeping in view, the peculiar facts and circumstances of the case, which have been discussed herein before, I am of the considered view that collusion between the respondents 1 and 2 and the appellant has to be necessarily inferred which was rightly done by the learned Tribunal and non-examination of the first respondent as well as Damodar Rao, lecturer whose identity is known to the appellant (or his parents) or his near and dear is fatal to his version and an adverse inference against him has to be drawn to the effect that had he examined respondent No.1 and Damodar Rao, they would not have supported the version of the appellant or that they could not have with stood the cross examination by the counsel for respondent No.3 can be drawn against him. The Tribunal, therefore, did not commit any mistake in holding that the accident was not the result of the use of LML vespa bearing No. AAR 7262 belonging to the first respondent, which was driven by the second respondent. This Court has it’s sympathy to the appellant, who lost his sight in the right eye totally. But, at the same time, it cannot forget it’s duty to see that under no circumstances the false and frivolous claims which would cause enormous loss to the insurance companies shall be encouraged. 28. The learned Tribunal is perfectly justified in dismissing the claim petition filed by the appellant and the order passed by the Tribunal does not call for any interference in this appeal. 29. The order passed by the Tribunal is therefore, confirmed and the appeal is dismissed with costs. ___________________ R.KANTHA RAO,J Dated: 09.10.2009 Note : L.R.Copy to be marked B/o Kvrm