JUDGMENT (Prayer: Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Decree and Judgement dated 10th Novembe, 2020, passed in MCOP No.154 of 2018 by the Hon'ble Principal Motor Accident Claims Tribunal, at Tindivanam. Appeal filed Under Order 41, Rule 22 C.P.C, against the Judgement and Decree order dated 10th November 2020 in MCOP No.154 of 2018 on the file of the Motor Accident Claims Tribunal, Sub Court Tindivanam in CMA No.701 of 2022. Notice was served on the appellant on 29.04.2022.) Common Judgement 1. CMA.No.701 of 2022 is filed by the Insurance company challenging the award in M.C.O.P. No.154 of 2018 passed by the Motor Accident Claims Tribunal, Sub Court Tindivanam. 2. Cross Objection No.68 of 2022 is filed by the claimant seeking an enhancement of the award passed in M.C.O.P. No.154 of 2018 passed by the Motor Accident Claims Tribunal, Sub Court Tindivanam. 3. The insurance company who is the 2nd respondent in MCOP.No.154 of 2018 on the file of the Motor Accident Claims Tribunal, Tindivanam is the appellant before this Court. The challenge is to the genuineness of the accident as pleaded by the claimant/petitioner. In order to appreciate the challenge it is necessary to allude to the facts of the case. For ease of understanding the parties are referred to in the same ranking as before the Tribunal. 4. The petitioner who was represented by his wife had filed the above claim petition seeking compensation of a sum of Rs.75,00,000/- for the injuries sustained by him in a road accident on 03.06.2016. The petitioner would state that on the said date at around 08.30 pm the petitioner was travelling as a pillion rider in the motor cycle bearing Registration No.TN 21 E 8798 and proceeding towards Thiruvakkarai. When he had reached the Nemily AGS Crusher at Thiruvakkarai, the rider of the motorcycle in which the petitioner was travelling drove the same in such a rash and negligent manner and at a high speed. On account of the speed when the motorcycle hit the speed-breaker, the petitioner had fallen out of vehicle and sustained multiple head injuries, fracture of right collar bone and injuries all over the body. He was rushed to the JIPMER Hospital, Pondicherry and thereafter transferred to the Apollo Hospital, Chennai. 5. On account of the speed when the motorcycle hit the speed-breaker, the petitioner had fallen out of vehicle and sustained multiple head injuries, fracture of right collar bone and injuries all over the body. He was rushed to the JIPMER Hospital, Pondicherry and thereafter transferred to the Apollo Hospital, Chennai. 5. The petitioner is stated to be a JCB owner cum driver aged about 39 years and earning a monthly income of a sum of Rs.25,000/-. The petitioner would state that the accident had occurred only on account of the rash and negligent driving by its driver. The claim petition was filed on 17.10.2016. 6. The 2nd respondent/ insurance company on entering appearance had filed a counter inter alia contending that the allegations regarding the manner in which the accident had taken place has not been correctly set out in the claim petition. The actual fact was that it was the petitioner who was riding the motor cycle and not travelling as a pillion as stated in the claim statement. The 2nd respondent had further contended that the petitioner was under the influence of alcohol which has resulted in his fall. Further he did not possess a valid driving license and the name of one Siva Kumar has been introduced in the FIR since he had a valid driving license. The Hospital records would reveal that the petitioner was riding the motor cycle and in the FIR given by the brother of the petitioner, the name of Siva Kumar has been introduced. It was the categoric case of the 2nd respondent that the said Siva Kumar was not riding the vehicle at the relevant point of time and that the relatives of the petitioners in order to overcome the fact that the petitioner did not possess a valid subsisting driving license had introduced the name of the said Siva Kumar, therefore, they prayed that the claim petition be dismissed. 7. Before the Tribunal the petitioner’s wife had adduced evidence as P.W.1, one Krishnaraj claiming to be the eye witness was examined as P.W.2 and one Jothi was examined as P.W.3 to prove the medical expenses incurred by the petitioner. The said Jothi is none-else than the wife of the petitioner’s brother who had given the complaint. 7. Before the Tribunal the petitioner’s wife had adduced evidence as P.W.1, one Krishnaraj claiming to be the eye witness was examined as P.W.2 and one Jothi was examined as P.W.3 to prove the medical expenses incurred by the petitioner. The said Jothi is none-else than the wife of the petitioner’s brother who had given the complaint. The Tribunal had proceeded to fasten the liability only on the respondents on the ground that P.W.2 who was the eye witness had deposed that the accident had occurred on account of the rash and negligent driving by the driver of the motor cycle. Further the 2nd respondent has not examined any third party to prove their case that the vehicle was driven by the said Siva Kumar and not by the petitioner. Relying upon the FIR and the evidence of P.W.2, the Tribunal had held that the accident had occurred only on account of the rash and negligent driving by the driver of the 1st respondent’s motorcycle and the 2nd respondent being the insurer of the 1st respondent’s vehicle had to compensate the petitioner. Ultimately, the Tribunal had arrived at a quantum of compensation of a sum of Rs.17,00,435/-. Challenging the said award primarily on the ground of liability, the insurance company has filed the above petition. 8. Mr. Micheal Visuvasam, learned counsel appearing on behalf of the 2nd respondent/insurance company would submit that the injuries were caused in an accident on account of a self-fall, there is no third party intervention which has caused the accident. He would argue that the FIR has been lodged by the brother of the petitioner who is not an eye witness. The FIR Ex.P.1 has been lodged 2 days after the accident. The accident had taken place on 03.06.2016 at about 20.30 hours, the FIR has been lodged on 05.06.2016 at 17.00 hours, i.e; nearly two days after the accident. In the FIR, the complainant would state that Siva Kumar was the rider of the bike and the petitioner was travelling pillion. P.W.2 has been examined as an eye witness to the accident, however, P.W.2 has not given the First Information Report. In the FIR, the complainant would state that Siva Kumar was the rider of the bike and the petitioner was travelling pillion. P.W.2 has been examined as an eye witness to the accident, however, P.W.2 has not given the First Information Report. Though, P.W.2 in his chief examination would state that it was Siva Kumar who was riding the bike, however in his cross examination he would state that he does not know who drove the vehicle and he had simply lifted the person who had fallen down. P.W.2 however has not given the First Information Report. Further, the evidence of P.W.1 would show that the said petitioner Narayanan did not possesses a valid driving license, therefore, in order to obtain compensation the said Siva Kumar has been introduced as the driver of the vehicle since he is in possession of a valid driving license. He would further submit that the claimants have sought for a sum of Rs.81,000/- under the head of future medical expenses towards attendant charges. In order to substantiate this, the petitioners have examined P.W.3 who according to the counsel for the appellant is none-else than the wife of Gunasekaran, the petitioner's brother who has given the FIR. She has in her cross examination admitted that she has done only a one year Diploma course and that she has working as a temporary worker at the Pondicherry Thayarammal Cluny Hospital. However not a single document has been filed to show that she is working as a nurse, in the said hospital. Though, she would state that she is receiving her salary to her account, however, to a specific question asking for the document she would submit that the payment was taken by the agent through whom she had entered the services of the hospital. He would submit that she is clearly an interested witness and the document produced by her cannot be relied upon. He would therefore, submit that since the petitioners have not proved that the accident had occurred on account of the negligence of the said Siva Kumar, the Tribunal below ought not to have held that the accident had occurred in the manner as pleaded by the claimant/petitioner. He would therefore, submit that since the petitioners have not proved that the accident had occurred on account of the negligence of the said Siva Kumar, the Tribunal below ought not to have held that the accident had occurred in the manner as pleaded by the claimant/petitioner. As regards the quantum of compensation, the future attendant charges cannot be looked into since the very document under which it is claimed is not a genuine one but made for the sake of receiving compensation. 9. M/s.A.Sagayaselvi, learned counsel appearing on behalf of the petitioner and the cross-objector would submit that the petitioner has discharged onus of proving the accident by examining P.W.2 and marking Ex.P.1, FIR. She would submit that the Tribunal has rightly held that the 2nd respondent/insurance company who has disputed the manner in which the accident had occurred had not taken any steps to examine any witness to disprove the case of the petitioner. She would further submit that the lodging of the FIR has not been inordinately delayed and has been filed within 2 days from the date of occurrence of the accident. As regards the future medical expenses, the respondent would submit that they have provided documentary evidences as well as the oral evidence to show that the petitioner was entitled to the reimbursement of the future attendant charges. Therefore, she would submit that the award passed by the Tribunal below in so far as it is related to liability has to be confirmed. 10. Heard the counsels on either side. 11. The defense raised is that the accident has not occurred in the manner pleaded, on the contrary the 2nd respondent’s case is that the rider of the bike was the petitioner himself. The FIR which was lodged 2 days after the accident would describe that the rider of the bike was one Siva Kumar and the petitioner Narayanan was travelling pillion. P.W.2 has been examined to prove the said contention, however, in the cross examination P.W.2 would depose that he is not aware as to who drove the vehicle since he had only lifted the person who had already fallen down, therefore, the evidence of P.W.2 cannot be relied upon for coming to the conclusion that the deceased was the pillion rider in the bike. Further, P.W.2 who claims to be the 1st person who had witnessed the accident has not bothered to lodge the complaint. The substitution of the drivers by the claimants as contended by the 2nd respondent assumes significance since the petitioner Narayanan did not possess a valid two wheeler driving license and in order to overcome this anomaly the name of Siva Kumar appears to have been brought in. 12. A perusal of the claim petition would indicate that nowhere does the petitioner make a mention about the said Siva Kumar as the driver of the vehicle. In column No.16 (A), where the name and address of the driver is asked the petitioner has simply filled up the same as TN.21 E 8796 driver, the name of Siva Kumar has not been stated there. Further in the column No.23, where the manner in which the accident had occurred is described also does not feature the name of Siva Kumar. When the insurance company has clearly and categorically denied the fact that the said Siva Kumar was riding the bike, the petitioners could have put to rest this controversy by simply examining Siva Kumar as a witness on their side. However, this exercise has not been undertaken by the petitioners, therefore, an adverse inference has to necessarily be taken for his non-examination. The evidence of P.W.2, eye witness does not inspire confidence as the witness has been giving contradictory responses with reference to the rider of the bike. In fact, in the FIR Ex.P.1, petitioner’s brother has stated that the owner of the vehicle was Siva Kumar but in column No.15 of the claim statement name of the owner is shown as Elumalai, the 1st respondent. The petitioner has been taking different stands with reference to the owner and the driver of the motorcycle. Therefore, the said Siva Kumar appears to be an elusive person who has been roped in to overcome the fact that the petitioner did not possess a valid driving license. Therefore, the finding of the Tribunal that the accident had occurred on account of the negligence of the 1st respondent and that the petitioner was riding pillion in the offending vehicle is not correct and has to necessarily be set aside. 13. Therefore, the finding of the Tribunal that the accident had occurred on account of the negligence of the 1st respondent and that the petitioner was riding pillion in the offending vehicle is not correct and has to necessarily be set aside. 13. In view of the aforesaid discussion, the 2nd respondent/ insurance company cannot be mulcted with the liability since the accident has taken place only on account of the negligence of the petitioner himself he being the rider and the accident is the result of a self-fall. Therefore, the 2nd respondent/insurance company cannot be directed to compensate the claimant. In view of the above and as the 1st respondent has not challenged the award, the issue of quantum need not be gone into. Consequently, the appeal is allowed. The 2nd respondent/insurance company is exonerated from its liability to compensate the claimant. The 1st respondent owner of the vehicle shall be held liable particularly, since the driver of the vehicle namely the petitioner did not possess a valid driving license. Consequently, the Civil Miscellaneous Appeal is allowed and the Cross Objection is dismissed. The Insurance Company is permitted to withdraw the amount that they have deposited and which is lying to the credit of M.C.O.P.No.154 of 2018 on the file of the Motor Accident Claims Tribunal, Sub Court, Tindivanam, if the award amount has already been deposited by them. No costs. Consequently, the connected Miscellaneous Petition is closed.