Banka Kondaiah Vs Manne Subba Rao & 2 Ors.

This appeal was filed under Section 173 of the Motor Vehicles Act, 1988 (in short ‘the Act’) against the award dated 27.02.2006 in M.V.O.P.No.229 of 2002 on the file of the Motor Accident Claims Tribunal-cum-IV Additional District Judge, Ongole.

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The appellant herein filed claim petition seeking compensation of Rs.1,00,000/- for the injuries suffered by him in the accident occurred on 14.12.1993. The claimant stated that while he was driving the lorry bearing No.AP 26 T 2129 of the respondent No.1, when the lorry reached near a gate at Bangalore Road on National Highway No.4 at 12.30 Hrs., the driver of another lorry bearing No.CAS 6057 drove his lorry in a rash and negligent manner and hit the lorry of the claimant in the opposite direction due to which the lorry of the claimant dashed against a nearby tree and the claimant received injuries.

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The claim was resisted by the respondent No.2 / insurance company on the ground that the claimant was at fault in causing the accident. The respondent No.1 did not contest the claim. The respondent No.3 was also shown as the owner of the opposite lorry. The respondent No.3 also opposed the claim by filing separate written statement denying the case of the claimant.

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The claimant was examined as P.W.1 and the following documents were marked on his behalf:

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Ex.A1	:	Xerox attested copy of F.I.R. in Crime No.6057/93 of Kolar
		Town Police Station with translation. (dated 14.12.1993)
Ex.A2	:	Xerox attested copy of C.C.III with translation.
Ex.A3	:	Xerox attested copy of C.D. part IV with translation.

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Ex.A4	:	Xerox attested copy of M.V.A. Report.
Ex.A5	:	Xerox attested copy of wound certificate.
Ex.A6	:	Xerox attested copy of charge sheet in PF No.421/93 with
		translation (dated 15.12.1993)

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No witness was examined on behalf of the respondents No.2 and 3, but copy of the policy was marked as Ex.B1.

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After hearing both parties, the Tribunal held that the claimant was at fault in causing the accident and that the driver of the opposite lorry was not responsible for the accident. Therefore, the claim petition was dismissed.

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Aggrieved by the award dismissing the claim, the claimant preferred this appeal.

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Sri T.Deva Deepak, learned counsel representing the learned counsel for the appellant submitted that as against the evidence of the petitioner, there is no evidence placed by the respondents, yet the Tribunal erroneously held that the claimant was at fault. He placed reliance on the decision of the Supreme Court in Manuara Khatun and others Vs. Rajesh Kr.Singh and others¹ , in support of his contention that the claimant is entitled to be compensated by the insurance company at least by directing the insurance company to first pay to the claimant and then recover the amount paid to the claimant from the insured and that it is sufficient to establish that the claimant received injuries in the motor vehicle accident and that the vehicle was insured.

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The respondent No.1 is shown as not necessary party to the appeal. The respondent No.1 remained ex-parte before the Tribunal.

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1 2017 ACJ 1031

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Though the respondent No.1 was initially impleaded as owner of the opposite lorry, later the respondent No.3 also impleaded as the owner of the same vehicle on the ground that the vehicle was transferred. As noted above, the respondent No.3 filed written statement, but has not placed any evidence. The award does not record the name of the counsel for the respondent No.3 or whether the respondent No.3 participated in the enquiry after filing the written statement. The award and decree are silent regarding the respondent No.3 in the paragraph dealing with appearance of the parties. The notice sent to the respondent No.3 was returned unserved with the endorsement ‘Not in village. Left without instructions’.

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The learned counsel for the respondent No.2 / insurance company submitted that the Tribunal rightly held the fact that the claimant himself is at fault in causing the accident in the light of the documentary evidence placed by the claimant himself in the form of F.I.R. and charge sheet. He further submitted that the case referred by the learned counsel for the appellant is not applicable to the facts of the present case since the decision dealt with the liability in respect of gratuitous passenger.

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After referring the case pleaded by the claimant, the Tribunal noted that in the cross-examination, the claimant stated that he was accused in the criminal case filed against him with regard to this accident and also that the respondents did not lead any evidence against the evidence of the claimant. Considering the documents filed by the claimant, such as Ex.A1 to A3 and A6, it was held that the version of the petitioner in his evidence is entirely different from the evidence in these documents and it ultimately observed that the claimant drove the lorry in a rash and negligent manner due to which

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the accident occurred and the claimant sustained injuries. The Tribunal recorded that the claimant did not implead the owner and the insurer of the lorry which he was driving though he was in fact claiming damages against them as well. Finally, it was observed that the provisions of the Act cannot be taken to his advantage for his own wrong and claim damages and therefore, the claimant is not entitled to compensation under Section 167 of the Act. It is further observed that no claim can be made by him under Section 166 of the Act, as a third party alone can make claim under the said provision and that under Section 167 of the Act, a workman can claim compensation either under the Act or Workmen Compensation Act.

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Insofar as the negligence of the driver of the opposite vehicle as stated by the claimant is concerned, the oral evidence of the claimant alone is on record. His evidence is not even corroborated by his own documentary evidence. Neither his oral evidence, nor the record in criminal case such as F.I.R., charge sheet are gospel truth. The Tribunal must independently examine the evidence before it to conclude a fact as proved. Of course, the driver of the opposite vehicle was not examined to deny the negligence pleaded against him. That by itself, does not render the oral evidence of the claimant true. The claimant, except attributing negligence to the driver of the opposite vehicle, failed to explain why the entire documentary evidence filed by him is inconsistent with his plea. Further, he failed to complain against the negligent driver of the opposite vehicle. On the other hand, he faced the trial in criminal case. When his oral evidence is examined in the light of the documentary evidence filed by him, it is prudent to seek for other evidence supporting his version as the evidence spoken by him is tainted with self-help to support his claim for monetary gain. Therefore,

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merely because his oral evidence is not controverted by the oral evidence of any other witness, his oral evidence cannot be accepted as gospel truth. As he failed to place any evidence other than his mere oral evidence, more likely self saving, the Tribunal rightly rejected the evidence of the claimant. This Court is of the view that the claimant failed to adduce evidence sufficient to establish that the accident occurred because of the negligence of the driver of the opposite vehicle. In the absence of such evidence, the claimant is not entitled to seek remedy against the insurer of the opposite vehicle.

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As the claim of the petitioner is not against insurer of his own vehicle, the decision referred above has no application to this case. Thus, this Court doesn’t find any merit in this appeal. Accordingly, Motor Accident Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.

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Interim orders granted earlier, if any, shall stand vacated.

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Pending miscellaneous applications, if any, shall stand closed.

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________________________ JUSTICE B.S.BHANUMATHI

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Date: 03.07.2025 NSM

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