One Satish was examined as P.W. 2 in support of the claim. He claimed to have witnessed the accident. He has stated that the accident was due to rash and negligent driving of the car referred to above. He had not given any complaint to the police. He did not take the injured persons to the hospital. Though he claimed to have given statement before the police, neither such statement was produced, nor the police were examined to prove it. In the charge sheet, he is not even named as a witness. This coupled with the other facts shows that he had not witnessed the accident. {Para 4}
5. In Ex. P3 (seizure mahazar) prepared by the police on 24.03.2008, it is stated that the bumper of the car was damaged. But in the motor vehicle Inspector's report (Ex. P5) which was also prepared on the same day i.e. on 24.03.2008, it is stated that there was no damage to the car. This shows that the police had fabricated the criminal case.
8. When involvement of the insured vehicle in the accident is disputed, it is for the claimants to place acceptable evidence to prove its involvement and to prove that the accident arose out of use of the insured vehicle. If the claim is based on fault, then negligent user of the vehicle also requires to be proved.
9. Fraudulent claims are on the rise. Hence, it is necessary to state that, filing of complaint to the police, or filing of charge sheet by the police, by itself, is no proof of involvement of the vehicle in the accident. Delayed filing of complaint to the police by giving particulars of a vehicle stating that it is involved in the accident, or delayed noting of particulars of a vehicle in the police record is prima facie indicative of its false implication in the accident. In such cases, stricter scrutiny of the evidence is required. The evidence requires to be assessed with great care and caution. The main test is one of reliability.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Miscellaneous First Appeal No. 7025/2011 (MV)
Decided On: 09.11.2015
Arathy and Ors. Vs. S.M. Umesha and Ors.
Hon'ble Judges/Coram:
H.G. Ramesh, J.
Citation: 2015:KHC:32692, MANU/KA/4733/2015.
1. This appeal is by the claimants. By the impugned judgment dated 18.11.2010, the Tribunal has dismissed the claim of the appellants in MVC No. 142/2008 filed for award of compensation for the death of one Umesha in a motor vehicle accident that occurred on 07.01.2008 at about 10 p.m. while he was travelling as a pillion rider on the motorcycle bearing No. KA-11-R-877 on Bengaluru-Mysuru Road, near 'Fun Fort'. The accident was alleged to have occurred due to rash and negligent driving of a car bearing No. KA-03-A-1545. The Tribunal has dismissed the claim on the ground that the claimants have failed to prove that the aforesaid car was involved in the accident.
2. I have heard learned Counsel appearing for the appellants, perused the impugned judgment and the record of the Tribunal. Learned Counsel for the appellants submitted that the finding of the Tribunal, that the appellants have failed to prove that the car was involved in the accident, is not based on a proper appreciation of the evidence on record, and, hence, is unsustainable in law.
3. The Tribunal has held that the claim was collusive. The accident is stated to have occurred on 07.01.2008 at about 10 p.m. The complaint (Ex. P1) was given to the police on that very night at 12.30 p.m., by one Santhosh Kumar who was working as an Electrician in 'Fun Fort'. The accident occurred opposite to 'Fun Fort'. The said Santhosh Kumar arranged for taking pillion rider and the rider of the motorcycle to a hospital by a goods auto-rickshaw. Both were found dead. Involvement of the aforesaid car is not mentioned in the complaint. In the complaint (Ex. P1), it is stated that the accident might be due to crashing of the motorcycle to the metal guard which was on the side of the road or due to accident by an unknown vehicle. For the first time on 24.03.2008 i.e. after one and a half months from the date of accident, the aforesaid car comes into picture in the seizure mahazar-Ex. P3.
4. One Satish was examined as P.W. 2 in support of the claim. He claimed to have witnessed the accident. He has stated that the accident was due to rash and negligent driving of the car referred to above. He had not given any complaint to the police. He did not take the injured persons to the hospital. Though he claimed to have given statement before the police, neither such statement was produced, nor the police were examined to prove it. In the charge sheet, he is not even named as a witness. This coupled with the other facts shows that he had not witnessed the accident.
5. In Ex. P3 (seizure mahazar) prepared by the police on 24.03.2008, it is stated that the bumper of the car was damaged. But in the motor vehicle Inspector's report (Ex. P5) which was also prepared on the same day i.e. on 24.03.2008, it is stated that there was no damage to the car. This shows that the police had fabricated the criminal case.
6. The aforesaid Complainant-Santhosh Kumar has stated in the complaint (Ex. R1) that he saw both the rider and the pillion rider lying on the footpath by the side of the road at 10.15 p.m. The complaint was lodged within 2 1/2 hours i.e. at 12.30 p.m. stating that the accident was either due to crashing of the motorcycle to a metal guard which was by the side of the road or due to accident by an unknown vehicle. However, the complainant though is named as the first witness was not examined by the claimants in support of the claim.
7. In the light of the facts stated above, the finding of the Tribunal that the claim was collusive is fully justified. It is relevant to refer to the following reasoning of the Tribunal:
"12. Admittedly according to FIR Ex. P1 no eyewitness for the alleged accident. By the time complainant Santosokumar came near the spot, motorcycle and deceased Mahesh and Umesh were lying at the edge of footpath. Complainant himself suspected that rider of motorcycle might have dashed his motorcycle to the metal guard fixed by the side of footpath. When such being the case from the final charge sheet filed by concerned police stating that front left side bumper dashed against front portion of the motorcycle is cooked up story to suit the circumstances, it appears that concerned police created Ex. P3 stating that front left side bumper of the car was damaged at the time of seizure of the same. Further in the cross-examination of PW1 it is suggested by 2nd respondent that accident taken place due to negligent of rider of motorcycle Mahesh himself.
13. ..................................................................................................... These two petitioners got examined one Sathish as PW3 before this Court stating that he is eye witness to the incident. PW3 has stated in his chief affidavit that on 7/1/2008 he was going in front of Fun Fort to his friend's place namely Agrahara, at that time car came from Mysore side without giving signal took right turn and dashed against motorcycle, which was going towards Mysore on the left side of the road very cautiously. Out of the said accident driver of motorcycle and pillion rider sustained grievous injuries and they were taken to Srirangapatna Government Hospital, where they were declared as dead. It is further asserted that he has given statement before concerned police also. His profession is shown as agriculturist in his chief affidavit and he is resident of Achappanakoppalu, Srirangapatna Taluk. According to him accident taken place at about 10 to 10.30 p.m. at that time he was going by walk by the side of footpath. He is not at all cited as eyewitness in the charge sheet filed by concerned police. Further PW3 has not produced any material before this court to show that he was examined by concerned police as one of the eyewitness. According to Ex. P1, motorcycle and its rider was lying by the side of footpath. If PW3 was actually present at the time of occurrence, it is probable that he would have shifted the injured to the hospital. Non-availability of name of PW3 in the charge sheet makes it crystal clear that he is only a tutored witness deposing falsely before this Court to support the case of petitioners.............................................................."
(Underlining supplied)
I find no error in the above reasoning of the Tribunal.
8. When involvement of the insured vehicle in the accident is disputed, it is for the claimants to place acceptable evidence to prove its involvement and to prove that the accident arose out of use of the insured vehicle. If the claim is based on fault, then negligent user of the vehicle also requires to be proved.
9. Fraudulent claims are on the rise. Hence, it is necessary to state that, filing of complaint to the police, or filing of charge sheet by the police, by itself, is no proof of involvement of the vehicle in the accident. Delayed filing of complaint to the police by giving particulars of a vehicle stating that it is involved in the accident, or delayed noting of particulars of a vehicle in the police record is prima facie indicative of its false implication in the accident. In such cases, stricter scrutiny of the evidence is required. The evidence requires to be assessed with great care and caution. The main test is one of reliability.
10. On the facts of the case, in my opinion, the finding recorded by the Tribunal that the appellants have failed to prove the involvement of the car in the accident is based on a correct appreciation of the evidence on record. The appeal is devoid of merit and is accordingly dismissed.
Appeal dismissed.
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