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2010 DIGILAW 890 (KAR)

Bajaj Allianz General Insurance v. Nagamma

2010-08-13

L.NARAYANA SWAMY

body2010
Judgment :- 1. This appeal is filed by the appellant – Insurance Company challenging the judgment and award dated 26/9/2008 passed in MVC No.6708/2006, on the file of the Judge and Member, MACT, Bangalore. 2. The learned counsel for the appellant submits that, it is the claimant who has to demonstrate that the accident was caused due to the rash and negligent driving of the insured vehicle. Secondly, the accident itself has not taken place. The same has been taken as a ground in the written statement filed by the Insurance Company at para 7(a). The submission has been made on the basis of the complaint made by the claimants as per Ex.P1. 3. It is further submitted that, the documents produced by the claimant, post mortem report evidenced that the accident was due to a fall from a bicycle. All the medical documents clearly indicated that the statements made before the hospital authorities were prior in time as compared to the lodging of FIR and the accident occurred at 7 a.m. the victim was shifted immediately to the hospital for treatment. The post mortem report indicated that the death is not as a result of accident injuries due to involvement of the insured vehicle. The FIR has been lodged at 10 p.m. falsely implicating the insured vehicle. 4. It is further stated that on 16/9/2006 in the morning while the deceased was walking on mud footpath on Bangalore – Doddaballapur road, while he was proceeding in front of BMS college in Avalahalli, a goods auto bearing registration No.KA-50-682 driven by its driver caused the accident, the vehicle was driven by one Mahesh. The police have registered the same at 10 p.m. in the night. In the light of the complaint according to Ex.P1 – FIR, the driver – Mahesh committed the accident. Without any reason of the vehicle has been changed in charge sheet as per Ex.P6 as Gopi. The true case of the claimants are the accident caused by falling by the bicycle on 16/9/2006 at 9.30 a.m. PM report and also the same is referred in the case record and produced as per Ex.R2, internal page 3 referred the history of the case as “falling from the bicycle”. It is submitted that the accident caused due to fall from the bicycle. Only in order to get the compensation a false complaint is made as per Ex.P1. 5. It is submitted that the accident caused due to fall from the bicycle. Only in order to get the compensation a false complaint is made as per Ex.P1. 5. The respondents remained absent when the case was called. 6. I have heard the arguments of learned counsel for the appellant Insurance Company. 7. As per Ex.P1 – complaint, the claimants have stated that, the auto bearing registration No.KA-50-682 is a goods auto has caused the accident, which resulted in death. The learned counsel submitted that the case history is that, deceased himself fell from the bicycle and sustained injuries and there was no involvement of the auto rickshaw. The alleged accident has not been referred in any of the documents including the case record as per Ex.R2 internal page No.11. 8. By looking all these exhibits and medical report it is clear, the accident occurred due to fall from the bicycle. That the source of accident is not entered in the FIR and other medical documents. Ex.P1 and also Ex.P2 where it is mentioned by the claimant that the accident was occurred in the morning by the offending vehicle bearing registration No.KA-50-682 is a goods vehicle and caused the accident. Though the accident has taken place in the morning, the same was registered in the night. There is delay in filing the complaint. Ex.P3 is the mahazar drawn by the Circle Inspector, Doddaballapur Traffic Police, where the vehicle is referred as a goods vehicle. There are two version. The complaint Ex.P1, FIR Ex.P2, Sketch Ex.P3 and Mahazar Ex.P4. All these documents show that, the cause for the death, involvement of the vehicle. On the other version it is from Ex.P9 – PM report, Ex.R2 is the case record, all these documents show that, the accident occurred due to fall from the bicycle. 9. The judgment referred by the claimants in 2009 (4) AWC 3372 (SC) in the case of North West Karnataka Rd. Transport Corporation Vs. Gourabai and others, wherein it is held that: “Reference was made to the evidence of the doctor, who had admitted the deceased to the hospital, that the deceased had suffered head injury due to fall from the height of 8 to 10 feet of his own house”. “The effect if the evidence of the doctor and exhibit R-1 does not appear to have been looked into by the MACT and the High Court. “The effect if the evidence of the doctor and exhibit R-1 does not appear to have been looked into by the MACT and the High Court. MACT did not place reliance on the document R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks from the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct. Exhibit R-1 establishes beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident”. 10. In order to decide the point that arises for my consideration, the evidence on behalf of the claimant and also on behalf of the respondent that, as per the complaint the accident occurred in the morning time on 16/9/2006 at about 7.00 a.m. After the accident the injured was taken to the hospital and immediately the doctor has reported to the police. The injured was admitted to the hospital at 6.00 a.m. in the accident report on the basis of the Ex.R1 – police memo intimated to the police, reveals the false case. As per medical report and the case records it shows that, the accident was due to fall from the bicycle. Subsequent entries made in the report that, the complaint has been preferred in the night at 10.00 p.m. against the goods vehicle and on the driver Mahesh. Medical report referred earlier and also in view of the judgment referred supra where it has been held that the doctors evidence which is immediately after the incident could be considered to ascertain the incident. In view of the same, the medical documents show that accident was due to fall from the bicycle. Hence, Claimant is not entitled to any compensation. Impugned judgment and award are liable to be set aside. Accordingly, appeal is allowed. Amount in deposit be.