In case of any change in the claimant statement there should be counter signed

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :  04.11.2011

C O R A M

THE HONOURABLE MR. JUSTICE B.RAJENDRAN

C.M.A. No. 1081 of 2010

and

M.P. No. 1 of 2010

M/s. Bajaj Allianz General Insurance Co Ltd

No.11, Office No.6-A, Third Floor

Peoples Park

Government Arts College Road

Coimbatore  641 018                                                                                         .. Appellant

Versus

1. P.K. Sikander

2. Ameer Abbas

3. P.M. Abuththagir                                                                                          .. Respondents

             Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the  ward dated 29.10.2009 made in M.C.O.P. No. 37 of 2007 on the file of Motor Accidents Claims Tribunal, 1st Additional Subordinate Judge, Coimbatore

For Appellant               :           Mr. M.B. Gopalan

For Respondents          :           Mr. L. Mouli for R1

JUDGMENT

            The insuranc company has come forward with this appeal questioning the liability to pay the compensation of Rs.1,68,300/- awarded by the Court below in favour of the claimant/first respondent for the injuries sustained by him in an accident that took place on 22.12.2004 at about 9.30 am.

            2.         The claimant filed the claim petition by contending that on 22.12.2004 at about 9.30 pm when he was riding the vehicle TVS Victor motorcycle bearing Registration No. TN 37 AE 1372 from Coimbatore Thadagam Road towards Muthannan Kulam to Selvapuram, with one pillion rider, the driver of the vehicle Bajaj Pulzar bearing Registration No. TN 37 AH 1086, in an attempt to overtake the two wheeler driven by the claimant, hit the vehicle from behind.  In the impact, the claimant sustained fracture in his right leg and also underwent a surgery.  According to the claimant, he was aged 21 years at the time of accident, working as a Marketing Executive in a private company and earning Rs.5,000/- per month.  Theefore, for the injuries sustained in the accident, he claimed a sum of Rs.4,50,000/- as compensation.

            3.         The insurance company disputed the nature and manner in which the accident is said to have taken place.  It was specifically contended that no such accident, as alleged, had taken place and the vehicle bearing Registration No. TN 37 AH 1086 has been falsely implicated in the claim petition to get compensation.  The insurance company also brought to the notice of the court below the discrepancy in the nature of vehicle mentioned in the 'Wound Certificate' as well as the First Information Report and therefore, they prayed for dismissal of the claim petition.

            4.         The Court below, brushed aside the defence taken by the insurance company and directed the insurance company, owner as well as the driver of the vehicle to pay, jointly and severally, a sum of Rs.1,68,300/- as compensation to the claimant.  Aggrieved by the same, the present appeal is filed by the insurance company.

            5.         Mr. M.B. Gopalan, learned counsel appearing for the appellant would vehemently contend that the accident did not take place with the vehicle, which was insured with the appellant/insurance company and the manner in which the accident said to have taken place is false.  According to the learned counsel for the appellant, soon after the accident, when the claimant was admitted in the hospital, he had stated that he sustained injuries on being hit by a car and that he could not note down the registration number of the car.  The first information report was not registered immediately and it was registered belatedly.  In the first information report, it was only stated that the claimant was hit by a two wheeler.  On behalf of the insurance company, Ex. R3, copy of the wound certificate dated and Ex.R4, copy of the case sheet issued by Rex Hospital were produced to show that at the time when the claimant was admitted, he gave a statement to the Doctor by saying that he sustained injuries on being hit by a car.  The Doctor attached to the said hospital was also examined on the side of the insurance company, who deposed that if there is any alteration made in any of the records maintained by the hospital, it will be duly counter-signed by way of an authentication.  It was further deposed that in the event of any correction made without any counter-sign, it will not bind any one.  The court below, merely considered the fact that the driver of the two wheeler accepted the guilt before the Criminal Court and paid fine and therefore, the accident has taken place as projected in the claim petition.   The learned counsel for the appellant would further contend that the vehicle which is said to have involved in the present case namely Bajaj Pulzar bearing Registration No. TN 37 AH 1086 was owned by none other than the uncle of the claimant.  Therefore, according to the learned counsel for the appellant, only to ensure that the claimant get some amount as compensation, the vehicle belonged to the uncle of the Claimant was brought into picture to make it as if there was an accident in which the claimant sustained injuries.  Under those circumstances, the learned counsel appearing for the appellant prayed for allowing this appeal by setting aside the award passed by the court below.

            6.         Contra, the learned counsel appearing for the claimant/first respondent herein would contend that the wound certificate, Ex.P5 = Ex.R3 is not the one produced by the claimant but it was a copy received from the Judicial Magistrate Court and marked before the court below.  Furthermore, as against the owner of the vehicle namely Two Wheeler, charge sheet was also filed.  Inasmuch as the owner of the Two Wheeler himself accepted his guilt, paid the fine before the Criminal Court, it is no longer open to the Insurance Company, at this point of time, to contend that the Two wheeler has never involved in the accident.  Further, at the time of admission of the claimant in the hospital, a statement was given by a third party who admitted the claimant as if the claimant sustained injuries on being hit by a car without knowing the nature of collusion between the two wheelers.  Therefore, such an erroneous statement given by a third party that the claimant was hit by a car instead of a two wheeler will not disentitle the claimant from getting compensation for the serious injuries sustained by him.  Therefore, the learned counsel for the first respondent/claimant would pray for dismissal of the appeal.

            7.         I heard the counsel for both sides and perused the entire materials available on record. The learned counsel for the appellant brought to the notice of this Court some patent discrepancies in the case projected by the claimant by contending that a perusal of the wound certificate, Ex.P5 would reveal that the claimant sustained injuries on being hit by a two wheeler. The copy of the wound certificate was therefore summoned by the Insurance Company and marked as Ex.R3.  When we read Ex.R3, it can be seen that it is clearly written that the claimant was hit by a car.  In the copy produced before the Court below, the signature of the Police officer is also available.  Whereas, in the certified copy produced by the claimant from the Court, it can be seen that the word 'Car' was rounded off and the word 'Motor cycle' was inserted.  Such an insertion was done without any initial made by the competent officer who made such correction.  Further, in the certified copy, the signature of the police officer is not found. Whereas, in the copy filed by the insurance company, the signature of the police officer is available.  Therefore, as rightly pointed out by RW3, the Doctor examined on the side of the insurance company, if there is any interpolation made in any of the records of the hospital without being counter-signed, it will not bind any one or it need not be considered for scrutiny.  In view of the evidence of RW3, the Doctor, the argument of the counsel for the appellant has to be accepted especially when the word 'motor cycle' is missing in the wound certificate produced on behalf of the claimant/appellant from the hospital. Added to this, the appellant also produced Ex.R4, case sheet pertaining to the claimant from Rex Hospital.  In the case sheet, it is clearly stated that the claimant/appellant was hit by a 'car' when he was driving a two wheeler.  It is also mentioned in the case sheet, Ex.R4 that at the time of admission, the patient i.e., the claimant/appellant herein, was conscious oriented and alert.  Therefore, when the claimant was conscious oriented and alert, the contention of the counsel for the claimant/first respondent that at the time of his admission, a statement was given by a third party erroneously that the claimant was hit by a 'car' instead of 'two wheeler' cannot be accepted.  Therefore, it is clear that the hospital authorities have recorded the statement only from the claimant at the time of his admission and not from a third party, as alleged, besides that such statement was given by the claimant at the time when he was conscious oriented.

            8.         In this connection, it has to be stated that soon after the accident, the First Information Report was not filed and there is a delay of two days in registering the First Information Report.  According to the counsel for the appellant, only at the time of giving the complaint, based on which the First Information Report was registered, the theorey of two wheeler came into the picture inasmuch as the two wheeler owner is none other than the uncle of the claimant.  Therefore, inasmuch as there is a delay in registering the first information report and that the driver of the two wheeler happens to be the uncle of the claimant coupled with the alterations made in the wound certificate, the argument advanced on behalf of the counsel for the appellant is acceptable.  Even assuming it is a hit and run case, the fact remains that the claimant sustained injuries on being hit by a car and not a two wheeler, as claimed.

            9.         The documentary evidence available on record, especially Exs. R3 and R4 would clearly indicate that the theory putforward by the claimant that he sustained injuries on being hit by a two wheeler is false and that he suffered injuries only on being hit by a car.  Therefore, the accident has not taken place as projected by the claimant in the claim petition.  The claimant also not examined any eye witness to speak about the accident or examined any witnesses on his side to speak about the factum of accident.  Merely because the driver of the vehicle, especially he happened to be the uncle of the claimant, admits his guilt and paid the fine amount before the criminal court, it will not entitle the claimant to seek for compensation against the insurance company.  Under those circumstances, I hold that the vehicle  two wheeler, alleged to have been involved in the accident has not been involved in the accident at all and consequently, the court below is not correct in so fastening the liability on the insurance company to pay the compensation amount to the claimant along with the driver and owner of the two wheeler.

            10.       In the result, the Judgment and Decree dated 29.10.2009 made in M.C.O.P. No. 37 of 2007 on the file of Motor Accidents Claims Tribunal, 1st Additional Subordinate Judge, Coimbatore is set aside and the Civil Miscellaneous Appeal filed by the insurance company is allowed.  No costs.   Consequently, connected miscellaneous petition is closed.

            11.       It is represented that the insurance company has deposited the entire amount awarded by the Court below.  In view of the dismissal of the claim petition, the insurance company is permitted to withdraw the entire award amount with accrued interest.

rsh       

To

The 1st Additional Subordinate Judge

Motor Accidents Claims Tribunal

Coimbatore