Gujarat High Court
Bajaj Allianz General Insurance Co. ... vs State Of Gujarat on 25 April, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2963/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2963 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.THROUGH GAURANG
SHANTILAL RAVIYA
Versus
STATE OF GUJARAT
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Appearance:
MR AB MUNSHI(1238) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 10,2,3,4,5,6,7,8,9
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the RESPONDENT No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/04/2018
ORAL JUDGMENT
1. By this writ-application, the writ-applicant, an insurance company, has prayed for the following reliefs :
"(A) To admit and allow this petition;Page 1 of 32
R/SCR.A/2963/2018 JUDGMENT (B) This Hon'ble Court be pleased to issue appropriate writ, order or direction constituting a Special Forum to detect and trace frauds and fraudulent claims against the Insurance Companies and direct appropriate action to be taken pursuant to such finding.
(C) To exercise the extra ordinary jurisdiction by appointing Special Investigating Team (SIT) to independently conduct inquiry in the present case lodged with Sanand Police Station vide CR No.I-59/2014 after considering the further statements recorded before the Deputy Superintendent of Police and Superintendent of Police and Investigation Officer, RR Cell Department, respondent nos.4, 5 and 9 respectively.
(D) To direct the Special Investigating Team so directed by this Hon'ble Court to produce its report within stipulated time period as may be decided by this Hon'ble Court after taking into account the facts narrated herein above.
(E) To quash and set aside the communication dated 13.9.2016 prepared by Deputy Superintendent of Police, Sarkhej - respondent no.4 forwarded to respondent no.5 -
Superintendent of Police, Ahmedabad (Rural) by stating that further investigation is not required as the investigation has already been done.
(F) Pending the admission, hearing and final disposal of this petition, be pleased to stay the further proceedings of Motor Accident Claims Petition No.216 of 2014 pending in the Court of Motor Accident Claims Tribunal, Bhuj-Kutch.
Page 2 of 32R/SCR.A/2963/2018 JUDGMENT (G) Pending the admission, hearing and final disposal of this petition, be pleased to direct the Special Investigating Team to make an independent inquiry of the fraudulent claim raised by the claimant and to submit its report to this Hon'ble Court, within a time frame as may be decided by this Hon'ble Court.
(H) To grant any other and further reliefs that may be deemed fit and proper and in the interest of justice."
2. The case put up by the writ-applicant in the writ- application is as under :
"4. The petitioner Insurance Company is facing huge fraud in a vehicular accident that took place on 23-4-2014 at 11.00 p.m. whereby as per the FIR that was lodged by the car driver viz. Shri Bipinbhai Dhanjibhai Patel who claimed himself to be the car driver, who was travelling with one Mr. Amratbhai Dhanjibhai Sorathiya (Vaghamshi), who saw a dog coming across the Xylo Car bearing Registration No.GJ- 09-BA-2602. To avoid the impact Shri Bipinbhai steered his vehicle on the left hand side and lost control over the vehicle and the vehicle skidded on the slope and the vehicle was turtled and Shri Amratbhai who was sitting besides the driver sustained head injuries and thereafter expired. The said FIR was lodged on the next day i.e. 24-4-2014 at 7.30 a.m. vide C.R.No.I-59/2014 with Sanand Police Station for the offences punishable under sections 279, 304A of Indian Penal Code and Sections 177 and 184 of the Motor Vehicles Act.Page 3 of 32
R/SCR.A/2963/2018 JUDGMENT
5. The petitioner states and submits that the Xylo Car in which the deceased was travelling was insured with the petitioner Company. The owner of the said Xylo Car was one Mr. Maitukbhai J Patel. The owner of the car never informed the petitioner Company about the vehicular accident but the same was brought to the notice of the petitioner company when the insured informed the petitioner company about the said vehicular accident on 19-5-2014 i.e. after 26 days from the date of the said accident. The said details were given by the insured i.e. Shri Maitukbhai Patel when the damaged car was sent to the workshop of the dealer and the dealer in turn informed the petitioner company about the same and that is how the said Own Damage Claim details were put up by the owner of the said vehicle which did not even bear his signature.
6. The petitioner submits that thereafter the petitioner Company received the summons from the Motor Accidents Claims Tribunal at Kutch-Bhuj being Motor Accident Claim Petition No. 216 of 2014, on 5-9-2014 whereby the heirs of deceased Amratbhai Sorathiya have claimed an amount of Rs.25 Crores from the petitioner insurance company as a third party claimant. The claimants relied on the following documents along with the said claim petition:
a) First Information Report
b) Scene of offence panchnama
c) Inquest Panchnama
d) Post Mortem Report
e) Registration Book of the Vehicle Page 4 of 32 R/SCR.A/2963/2018 JUDGMENT
f) Policy of the Vehicle
g) Income Tax Return of A.Y. 2011-12 and
h) Income Tax Return of A.Y. 2012-13 And that is how the claimants claimed that the deceased was earning approximately Rs. One crore annually.
7. The petitioner submits that at this point the petitioner came to know about the veracity of the FIR and the accident that took place. Thereafter the petitioner Company tried to take out the details about the accident that took place by visiting the concerned police station i.e. Sanand Police Station and pursuant to the same the petitioner was informed that charge sheet has also been filed in the said FIR and statements of the driver and other persons were also recorded. The petitioner through its reliable sources received the copies of charge sheet along with the statements which were recorded by the Investigating Officer pursuant to the said FIR.
8. The petitioner submits that the petitioner company conducted mandatory inquiry and verified the veracity of the FIR together with the statements that were recorded by the police at the time of investigating the offence. The petitioner company got the same verified through their Investigating Department as well as outsource agency. The scientific evidence was also examined by Forensic Experts. To the shock, surprise and chagrin the petitioner found many queries which were unanswered by the Investigating Agency. The petitioner raised several queries one of them being suspicious circumstance in to the death of the Page 5 of 32 R/SCR.A/2963/2018 JUDGMENT deceased Amratbhai, who is projected in the said FIR that he was thrown out of the Xylo vehicle which on Forensic Inquiries and investigation done at the behest of petitioner company was something which was unheard of in Motor Accident cases. The Zonal Manager -ILM (Investigation Loss and Minimization Department) Mr. Jeevan Joy of petitioner company informed the Superintendent of Police - respondent no.5 herein by informing him 10 points of which the petitioner were not satisfied with the investigation that was done by the investigating agency vide letter dated 17-4- 2015.
9. The petitioner submits that the petitioner company through its Zonal Manager informed the Police Inspector of Sanand Police Station and addressed a letter to him informing him that there were 37 points which were required to be considered by him as the same would go to the root of the matter if the said things are investigated. The said letter was given on 22-4-2015.
10. The petitioner submits that the petitioner's representative Shri Pragnesh Vyas along with Shri Rajeshkumar Singh approached the office of the respondent no. 8 - Deputy Superintendent of Police and informed that there was a preliminary report which was prepared by retired IPS Officer Shri Subhash Avte, who is a Director in CISS (Central Investigation and Security Services Ltd.) who was engaged by the petitioner company to carry out the investigation and had also prepared a videography which was required to be considered by proceeding under section Page 6 of 32 R/SCR.A/2963/2018 JUDGMENT 173 of the Code of Criminal Procedure, 1973 for further investigation.
11. The petitioner states that pursuant to the letter dated 23- 4-2015 referred to herein above, the statement of petitioner's representative Shri Pragnesh Vyas was recorded on 7-5- 2015 before the respondent no. 4 - Deputy Superintendent of Police. In the said statement the petitioner's representative demonstrated the entire incident that took place and also produced 13 C.Ds. The said C.Ds have been translated in vernacular language and submitted copies of the same along with the statement.
12. The petitioner submits that on the same day i.e. 07-05- 2015 the statement of the complainant - accused Shri Bipinbhai Hargovandas Patel who had lodged FIR on the next day of the incident was recorded. In the said statement there were improvements made by Shri Bipinbhai Patel. If this Hon'ble Court would closely go through the statement that was recorded at the time of the accident and the statement dated 7-5-2015 there will be many contradictions and omissions. There is an improvised story put up by Shri Bipinbhai Patel in the statement dated 7-5-2015. The said statement of Shri Bipinbhai is relevant for the purpose for which the petitioner company apprehends that the story that was put up in April, 2014 while the FIR was lodged is totally different than the one which is so canvassed in the present statement. Therefore the petitioner company apprehends that it is a cooked up story and an improvised story that is put up by the complainant-accused. The petitioner apprehends that Page 7 of 32 R/SCR.A/2963/2018 JUDGMENT if the deceased has died while driving the vehicle due to his rash and negligent act then the claim that is put forward by the heirs of the deceased in the Motor Accident Claims Tribunal as a third party claimant is nothing but an eye wash and therefore the case put forward by the heirs of deceased claimant before the Tribunal is required to be dismissed at the threshold. If what is canvassed by the petitioner turns out to be true then the entire investigation that is carried out by the investigating agency at the time when the FIR was lodged and charge sheet which came to be filed the same would result in rejection of the claim petition filed before the Motor Accident Claims Tribunal.
13. The petitioner submits that the respondent no.4 recorded the statement of the then Investigating Officer viz. Shri Vanrajsinh Laxmansinh Chavda, who was the P.I. of Sanand Police Station and is now posted at Dehgam Police Station. The said statement was recorded on 8-5-2015. The respondentno.4 highlighted the 10 points which were put forth by the petitioner's representative to which interestingly when the investigating officer was asked about whether call details were taken about the persons who were contacted at the time of accident. To which the investigating officer replied that the same was not necessary in point no.8. In rest of the points which were put forth by the Petitioner's representative the investigation officer have been given answer in negative.
14. The petitioner submits that the statement of Vishalkumar Rajendrabhai Patel was recorded on 12-5-2015 who was employee of Shri Maitukbhai Patel - the owner-insured of the Page 8 of 32 R/SCR.A/2963/2018 JUDGMENT Car was recorded by the respondent no.9. Shri Vishal Patel's statement was never recorded in the earlier round of investigation. The said statement states about the phone calls that were received by Shri Vishalbhai whereby there are many contradictions than the statements that were recorded at the time of occurrence of the incident.
15. The petitioner submits that the respondent no.9 recorded the statement of Shri Mansukhbhai Raghubhai Patel on 13-5- 2015 who happens to be an eye witness of the entire incident. Mansukhbhai was working as Security Guard in Perfect Security Services and was posted at GIDC Bol (near the accident spot). Said Mansukhbhai in his statement has specifically stated that at the time when the accident had occurred he heard a loud sound and he and one Sureshbhai Sadhu gone at the place of incident where they found one Xylo Car which had turtle and was lying in the agricultural field and one person was standing on the road and one person was lying in the agricultural field. Thereafter the person who was standing on the road had asked for the mobile phone of Shri Mansukhbhai. Shri Mansukhbhai gave his mobile phone to the person standing on the road and he dialed a number and called somebody. Thereafter he said to Mansukhbhai that there is a camp which is located near Gokulpura Water Tank. So Mansukhbhai was told by the person who was standing on the road to give him a lift on the motorcycle. Thereafter Mansukhbhai went at the camp site and subsequently two persons came at the scene of accident and the person who was lying in the agricultural field was taken in another car. There were photographs also which Page 9 of 32 R/SCR.A/2963/2018 JUDGMENT were taken by the said Security Guard - Shri Mansukhbhai of the Xylo Car. The said photographs were handed over to the respondent no.9 while giving the statement. The said statement suggests that Mansukhbhai is an eye witness to the incident and there was no statement of Mansukhbhai which was recorded by the police at the time when the alleged incident had taken place. Mansukhbhai while giving his statement has not identified any person as to who was the driver and who was the deceased. This speaks volume about the investigation that was carried out by the earlier Investigating Officer who had not even cared to record statement of Shri Mansukhbhai.
16. The petitioner submits that the respondent no.9 recorded the statement of Shri Sureshbhai Mayarambhai Sadhu on 13-5-2015 who happens to be an eye witness of the entire incident. Sureshbhai was working as Security Guard in Indian Rajput Services and was posted at GIDC Bol (near the accident spot). Said Sureshbhai in his statement has specifically stated that at the time when the accident had occurred he heard a loud sound and he and one Mansukhbhai Patel gone at the place of incident where they found one Xylo Car which had turtle and was lying in the agricultural field and one person was standing on the road and one person was lying in the agricultural field. Thereafter the person who was standing on the road had asked for the mobile phone of Shri Mansukhbhai. Shri Mansukhbhai gave his mobile phone to the person standing on the road and he dialed a number and called somebody. Thereafter he said to Mansukhbhai that there is a camp which is located near Page 10 of 32 R/SCR.A/2963/2018 JUDGMENT Gokulpura Water Tank. So Mansukhbhai was told by the person who was standing on the road to give him a lift on the motorcycle. Thereafter Mansukhbhai went at the camp site and he waited there at the place of accident site and subsequently two persons came at the scene of accident and the person who was lying in the agricultural field was taken in another car. There were photographs also which were taken by Shri Mansukhbhai of the Xylo Car. The said statement suggests that Sureshbhai is also an eye witness to the incident and there was no statement of Sureshbhai which was recorded by the police at the time when the alleged incident had taken place. Sureshbhai while giving his statement has not identified any person as to who was the driver and who was the deceased. This speaks volume about the investigation that was carried out by the earlier Investigating Officer who had not even cared to record statement of Shri Sureshbhai.
17. The petitioner submits that a statement was also recorded by respondent no.9 of Shri Bhavikbhai who happens to be the driver and attendant of 108 Ambulance who had taken the deceased to the Hospital.
18. The petitioner submits that the petitioner's representative informed the respondent no.8 vide letter which was received by the office of the respondent no.8 by informing them that they require the relevant case papers collected during the course of investigation so that the petitioner can produce the same before the MACT. Similar letters were issued to the respondent no. 5, 7 and 9 by the Page 11 of 32 R/SCR.A/2963/2018 JUDGMENT representative of the petitioner.
19. The petitioner submits that the respondent no.9 by letter dated 27-7-2015 informed the representative of the petitioner to take copies of documents asked for from Sanand Police Station and so far as investigation under section 173 (8) of Code of Criminal Procedure is concerned, is already under investigation by respondent nos. 4 and 9.
20. The petitioner submits that the respondent no.4 took further statement of Shri Mansukhbhai on 29-7-2015 who was eye witness to the incident, has reiterated the same statement which was stated on 13-5-2015.
21. The petitioner submits that the respondent no.4 took further statement of Shri Sureshbhai on 29-7-2015 who was eye witness to the incident, has reiterated the same statement which was stated on 13-5-2015.
22. The petitioner submits that for 5 months thereafter the petitioner did not hear anything from any of the respondent authorities. Therefore Shri Subhash Avte Retired IPS and Director of CISS (Central Investigation and Security Services Ltd.) who was engaged by the petitioner company to carry out the investigation vide letter dated 29-12-2015 requested the respondent no. 8 to look into the matter and update status of further investigation. To which the Police Inspector of respondent no.8's office informed the respondent no.5 vide letter dated 6-1-2016 to look into the matter and give details within four days.
Page 12 of 32R/SCR.A/2963/2018 JUDGMENT
23. The petitioner submits that the petitioner though one or other representative personally visited the office of the respondent nos. 4, 5 and 9 on various dates to inform about the updates of further investigation. Since the petitioner did not hear anything, the petitioner's representative applied under the Right to Information Act, to the office of Superintendent of Police, Ahmedabad Rural - respondent no.5 herein on 8-5-2017 to hand over the papers and statements that were taken under further investigation.
24. The petitioner submits that pursuant to the said RTI Application, the office of the respondent no.5 vide letter dated 16-5-2017 informed the representative of the petitioner to collect the papers from the respondent no. 4 or 10 to which the petitioner's representative went to the respondent no.10 and collected the papers from the P.I. of Sanand Police Station on 16-5-2017.
25. The petitioner submits that the petitioner's representative received report dated 13-9-2016 prepared by Deputy Superintendent of Police, Sarkhej - respondent no.4 forwarded to respondent no.5 - Superintendent of Police, Ahmedabad (Rural) that further investigation is not required as the investigation has already been done.
It is interesting to note that thought the petitioner's representative had submitted 37 points and had also produced various documents in support of their independent investigation the same was not considered necessary by the Page 13 of 32 R/SCR.A/2963/2018 JUDGMENT respondent no. 4 and 5 and therefore it is a fit case where a writ of mandamus is required to be issued in exercise of extra ordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India by invoking the provisions of section 482 of the Code of Criminal Procedure.
26. The petitioner submits that though the report was prepared on 13-9-2016 the petitioner was never informed about the same by respondent nos. 4 and 5 herein. It was only when the petitioner's representative made an application under Right to Information Act, on 8-5-2017 the petitioner came to know about the said report dated 13-9- 2016.
27. The petitioner insurance company submits that the entire exercise that was undertaken by the respondent nos. 4 and 5 by taking statements of eye witnesses and further statement of the complainant-accused Shri Bipinbhai was an empty formality as the petitioner has come to know that the trial with respect to the said accident case was conducted before the Court of Judicial Magistrate, First Class, Sanand and the same was concluded and judgment was declared on 18-4-2016 whereby the Judicial Magistrate, First Class expressed his opinion about non sustaining injury of the complainant-accused when he was thrown out of Xylo Car. There was no investigation by the Investigating Officer in that regard. This speaks volumes about the over zealousness on the part of the investigating agency while conducting the investigation. The accused i.e. Shri Bipinbhai Patel who happened to be the so called driver at Xylo Car Page 14 of 32 R/SCR.A/2963/2018 JUDGMENT was acquitted of all charges on the ground that there was no sufficient evidence and was given benefit of doubt by the Judicial Magistrate, First Class.
28. The petitioner insurance company submits that it is interesting to note that the statement of Mr. Maitukbhai J Patel, owner of the said Xylo Car was never recorded in the earlier round of investigation as well as during further investigation carried out by respondents 4, 5 & 9. This speaks volume about the investigation that was carried out by the earlier Investigating Officer as well as during further investigation carried out by respondents 4, 5 & 9 who had not even cared to record statement of Mr. Maitukbhai J. Patel.
29. It is interesting to note that According to FIR, the driver and deceased was thrown out of the car. Interestingly the driver was not sustained any single injury and co-passenger got serious injuries and expired. This speaks volumes about the whole impossible version looking at the nature of incidents.
30. The Petitioner submits that as per Vehicle Inspection report carried out by Scientific Officer of Directorate of Forensic Science on 24-04-2014, No blood stains are seen on Co-driver Seat (next to Driver seat) whereby deceased was travelling alongwith Driver as per FIR, which is highly improbable because when the accident took place and the car turned turtle after rolling over three times and deceased sustained head injuries as per Post Mortam Report. The said Page 15 of 32 R/SCR.A/2963/2018 JUDGMENT Officer has opined & given instructions to Investigating Officer to keep Mobile call Details of Driver, Deceased & other witnesses. This speaks volume about the investigation that was carried out by the earlier Investigating Officer as well as during further investigation carried out by respondents 4, 5 & 9 who had not even cared to keep OR obtained Mobile Call records of Driver, Deceased and other witnesses despite of doubt created and instructed by the Scientific Officer of Forensic Science Directorate of Forensic Science during Inspection of the Vehicle.
31. The respondent no.4 highlighted the 10 points which were put forth by the petitioner's representative to which interestingly when the investigating officer was asked about whether call details were taken about the persons who were contacted at the time of accident. To which the investigating officer replied that the same was not necessary in point no.8. In rest of the points which were put forth by the Petitioner's representative the investigation officer have been given answer in negative.
32. The petitioner insurance company submits that thought the petitioner's representative had submitted 37 points and had also produced various documents in support of their independent investigation the same was not considered necessary by the respondent no. 4 and 5 and therefore it is a fit case where a writ of mandamus is required to be issued in The petitioner submits that the petitioner apprehends that it is a unique case where a huge fraud has been committed. It seems that the deceased has died an unnatural death or Page 16 of 32 R/SCR.A/2963/2018 JUDGMENT has expired due to his rash and negligent driving and the same is being canvassed as if the deceased was the third party claimant and as there is a death which has occurred during vehicular accident the claim has been put on the petitioner insurance company to seek a claim of Rs.25 Crores. Therefore this is a fit case where an appropriate writ is required to be issued by this Hon'ble Court by directing a Special Investigating Team (SIT) and/or Central Bureau of Investigation (CBI) to undertake entire exercise once again as the respondent nos. 4 and 5 have already recorded the statements of eye witnesses which are also not considered by the investigating agency. Though the I.O. of the concerned police station i.e. Sanand Police Station who was called for further investigation and who had given his statement before the respondent nos. 4 and 5 respectively does not state anything before the JMFC when the trial was being conducted. Therefore this is a fit case where an appropriate writ is required to be issued by this Hon'ble Court to conduct independent inquiry into the matter and direct the Special Investigating Team and/or direct the CBI Inquiry into the matter and also direct the said independent agency to submit its report for the perusal of this Hon'ble Court.
33. The petitioner submits that the petitioner has come to know that ICICI Lombard Insurance Company through its Area Manager had preferred a writ petition before this Hon'ble Court being Special Criminal Application No.4363 of 2016. This Hon'ble Court (Coram: Hon'ble Mr. Justice J.B. Pardiawala) vide his oral order dated 28-4-2017 was Page 17 of 32 R/SCR.A/2963/2018 JUDGMENT pleased to dispose of the writ petition by constituting a Special Scrutiny Team (SST) to finalise the modalities in matters like these i.e. frauds committed in the field of insurance for the purpose of fraudulent motor accident claim and criminal complaints involved therein.
34. The petitioner submits that pursuant to the order that was passed by this Hon'ble Court in the above mentioned writ petition, the State of Gujarat has come out with a notification dated 20-9-2017 whereby they have mentioned the functions and duties of Special Scrutiny Team.
35. The petitioner submits that the petitioner has come to know through reliable sources that ICICI Lombard Insurance Company has once again moved this Hon'ble Court for revival of the said petition by moving an application.
36. The petitioner submits that the petitioner company had an occasion to challenge an order passed by the Motor Accident Claims Tribunal at Jaitran, Pali in Rajasthan whereby additional evidence preferred by the petitioner company before the Motor Accident Claims Tribunal came to be rejected. A writ petition under Article 226 and 227 of the Constitution of India was moved by petitioner insurance company before the Hon'ble High Court of Rajasthan at Jodhpur. The petitioner's writ petition was numbered as S. B. Civil Writ Petition No. 3102 /2016. Vide order dated 15-3- 2018 Rajasthan High Court at Jodhpur (Coram: Hon'ble Mr. Justice Sandeep Mehta) passed an order constituting an SIT headed by an officer not below the rank of Additional Page 18 of 32 R/SCR.A/2963/2018 JUDGMENT Director General of Police for examining the matter. The petitioner insurance company was directed to file details of alleged fraudulent claim within 15 days from the said order. The Hon'ble Court further passed an order to file detailed factual report for the court's perusal on the next date of listing.
37. The petitioner submits that even before the Rajasthan High Court a prayer was made by the petitioner insurance company to direct the State Government to form SIT (Special Investigating Team) for examining rampant fraudulent insurance claims. The Hon'ble Supreme Court of India has also sought explanation from various State Governments regarding constitution of SIT to examine fraudulent and fake motor accident claim cases. But till date nothing has been done. There are various other orders also passed by Allahabad High Court, as well as by Madras High Court on the same lines but still the State of Gujarat has not formed any SIT to examine and investigate bogus and fraudulent motor accident insurance claim cases. Therefore the present writ petition is preferred by the petitioner General Insurance Company for issuance of appropriate writ of this Hon'ble Court for forming a Special Investigating Team (SIT) for investigating such bogus and fraudulent claims.
38. The petitioner submits that apart from the present case which is a huge fraudulent claim there are number of other cases so far as the present petitioner General Insurance Company is concerned. At present we have 15 identified fraud cases of various locations of Gujarat.
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39. The petitioner submits that this is a fit case where if the interim relief as prayed for in the petition is not granted the petitioner insurance company will suffer huge loss which cannot be compensated in terms of money i.e. if the Motor Accident Claims Tribunal passes an order allowing the claims of the claimants, the same would be cited as a precedent everywhere and the insurance company will be at a huge loss.
40. The petitioner submits that public money is involved in the case like the present one where if such claims are allowed then public ex-chequer will be at huge loss and insurance companies like the petitioner company will have to be shut down if such fraudulent claims are put forth by the claimants.
41. The petitioner submits that there is an SLP which is preferred against ICICI Lombard General Insurance Company against the judgment and order dated 7-10-2015 in CR No.49/2015 passed by the Hon'ble High Court of Judicature at Allahabad Lucknow Bench popularly known as Safiq Ahmad vs ICICI Lombard being Special Leave to Appeal (C).... CC no.23628 of 2016. The Hon'ble Supreme Court of India vide its order dated 5-1-2017 passed a detailed order and issued certain directions.
42. The petitioner states that petitioner insurance company also moved an application for impleading themselves in the said SLP before the Hon'ble Supreme Court of India by way Page 20 of 32 R/SCR.A/2963/2018 JUDGMENT of I.A. being I.A.No.6054 of 2018. The Hon'ble Supreme Court of India vide order dated 17-1-2018 was pleased to implead the petitioner company as respondent in the said SLP.
43. The petitioner submits that the SLP (C) No.1110 of 2017 was notified on 16-2-2018 before the Hon'ble Supreme Court of India. State of Gujarat is also a party along with other States in the said SLP.
44. The petitioner submits that the present case is a unique one. Though the petitioner insurance company had apprehensions about the fraudulent claim the petitioner had informed the respondent police authorities about the same. The same went to deaf ears. Further statements were also taken. But the entire exercise was stalled on the ground that the investigation carried out initially was a perfect investigation and therefore no further investigation was necessary. In the interregnum the accused is acquitted by giving him benefit of doubt as there was no evidence with respect to the investigation that was carried out by the Investigating Officer. If the said judgment and order passed by the JMFC at Sanand acquitting the accused is produced by the heirs of the deceased claimants in the claim petition pending before the MACT for the fraudulent claim of Rs.25 Crores then the MACT will have no other option but to pass a award and decree allowing the claim of the claimants and the petitioner company will be put at a huge loss. Therefore in the interest of justice the further proceeding of Motor Accident Claims Tribunal pending before the MACT, Bhuj-
Page 21 of 32R/SCR.A/2963/2018 JUDGMENT Kutch be stayed forthwith.
45. The petitioner submits that there are various instances where the petitioner insurance company is facing fraudulent claims like the present one. The details of such fraudulent claims will be provided by the petitioner as and when necessary for the perusal of this Hon'ble Court.
46. The petitioner submits that this is a fit case where a SIT is required to be formed and appropriate directions are required to be issued to investigate in to large scale frauds being committed in the field of insurance for the purpose of fraudulent motor accident claims etc.,"
3. The issues raised in this writ-application are the very same issues which were raised in the Special Criminal Application No.4363 of 2016 and Criminal Misc. Application No.24409 of 2017 filed in the main petition.
4. The Criminal Misc. Application No.24409 of 2017 in Special Criminal Application No.4363 of 2016 came to be disposed of by this Court in the following terms :
"26. The objection has really taken me by surprise. Although, it is permissible for the other side to raise such an objection, yet to say at the fag end that the writ-applicant could not have invoked the criminal jurisdiction of this Court under Article 226 of the Constitution of India, is not going to serve any good purpose. I am unable to understand why such resistance is offered by the State Government treating this litigation as adversarial. This is not an adversarial Page 22 of 32 R/SCR.A/2963/2018 JUDGMENT litigation. This litigation should not be understood, as asserted by the State Government, to be one to deprive a bonafide policy holder of getting benefits of the insurance claim provided the same is genuine and not a bogus or a false claim.
27. Motor accident insurance has been made compulsory by the Parliament for the benefit of innocent motor accident victims. The Parliament has further mandated that the defence of the insurer shall be limited so as to ensure that innocent victim gets compensation from the insurance companies rather than seek relief from men of straw. It is a beneficial piece of legislation to ensure certainty of compensation to the victims and the insurance companies have a duty to ensure the same. It is this beneficial legislation which has been totally abused by some unscrupulous elements and it is distracting to note that large number of police officers and medical doctors are involved in the scam. Many a times accusation are directly levelled against the local police officials. It is this menace or the problem which the Supreme Court took cognizance of and directed all the States across the country to look into the matter and constitute Special Investigation Teams for the purpose of probing into false and bogus insurance claims.
28. It has been noted in one of the orders passed by a learned Single Judge of the Allahabad High Court in the case of ICICI General Insurance Company Limited v. Smt.Ramavati (supra) that claims worth Rs.26 crore came to be dismissed as not pressed on account of initiation of inquiry by the Special Investigation Team. This is just a tip of the iceberg. It just gives an indication about the amount Page 23 of 32 R/SCR.A/2963/2018 JUDGMENT involved in the fake claims.
29. Having regard to the nature of the investigation, which is necessary in such type of bogus claims, and the strenuous effort that may have to be put in, the resolution of the State Government dated 20th September 2017 is not going to serve any good purpose.
30. A team headed by the Deputy Commissioner of Police with one Police Inspector and a Medical Officer as its members is not going to serve any good purpose. It makes no sense at all to have two Special Scrutiny Teams; one, in the commissionerate areas, and another, at the district level. I am of the view that there should be one Special Investigation Team in the State of Gujarat for the purpose of probing into false and bogus insurance claims and an appropriate mechanism needs to be evolved for the purpose of approaching such Special Investigation Team and asking the Team to probe into the false and bogus insurance claims.
32. In view of the above, I have reached to the conclusion that the constitution of the Special Scrutiny Team in accordance with the Government Resolution dated 20th September 2017 is not going to sub-serve the object with which this entire exercise has been undertaken. On the contrary, it would get frustrated.
33. I am of the view that the Special Investigation Team should be in tune with one that has been constituted in the State of Uttar Pradesh.
34. The Government Resolution dated 20th September Page 24 of 32 R/SCR.A/2963/2018 JUDGMENT 2017 is hereby quashed. The State Government is directed to issue a fresh resolution appointing an officer of the level of Additional Director General (Special Enquiries) as the head of the Special Investigation Team. He will be free to pick up officers of his choice, preferably four Police Inspectors, four Police Sub-Inspectors, two Head Constables, seven Constables and one Medical expert. So far as the constitution of the Team is concerned, it is left best to the discretion of the Additional Director General (Special Enquiries).
35. The District Government Pleaders and the District Judges shall render all possible help to the Special Investigation Team so constituted. The Team will be allowed access to the records by the District Judges, Insurance Companies, Transport authorities, CMO/CMS of the Hospitals.
36. The Special Investigation Team, headed by the Additional Director General, shall have the jurisdiction over the entire State and there shall not be any bifurcation of the commissionerate areas with the district areas. It shall be open for the insurance companies in cases of bogus and false claims or cases to directly approach the SIT with the necessary materials and other records so that the SIT can carry out the necessary investigation.
37. The insurance company should not be asked to go to any police station for this purpose. Once any complaint is lodged with the SIT as regards an apparent bogus or false claim, then immediately the investigation should commence and the SIT should try its best to complete the investigation Page 25 of 32 R/SCR.A/2963/2018 JUDGMENT within four months.
38. The State Government is directed to ensure that the SIT is able to complete its task without any hindrance."
5. In the present case also, the issues with regard to the bogus and false insurance claims have been raised and the prayer is for the constitution of the Special Investigation Team.
6. The suggestions of the writ-applicant are as under :
"1. Ton constitute Special Investigation Team (SIT) by the State Government on the line of SIT formed by various other states.
2. SIT may be headed by police officer of the rank of D.I.G. (Deputy Inspector General of Police), Gujarat State and members of the team may be decided by the D.I.G.
3. It is submits that One Medical expert shall be member of the team.
4. Aggrieved parties, particularly insurance companies may refer the suspected cases directly to the SIT and SIT will investigate each case in its own way using appropriate resources.
5. Investigation preferably be completed as expeditiously as possible preferably within a period of Two months.
6. IF SIT is of the opinion that there is a fraud or fraudulent Page 26 of 32 R/SCR.A/2963/2018 JUDGMENT case, SIT shall send the necessary papers and final investigation report to the concern police station for registration of FIR and further investigation shall be carried out in accordance with law.
7. The modality should be that the Insurance Company can directly approach the SIT and SIT shall begin the Investigation. The modality should not be to approach the police officer of concerned police station.
8. SIT should not focus on innocence of guilt of the driver or drivers but its job is to concentrate and see that if any fraud is committed or if the accident is staged managed in other words the SIT's function is distinct from the function of police inspector who originally has lodged the FIR.
9. The clause in the present SST (Page Nos. 303 & 304) of the present petition that even after chairman of SST comes to conclusion that there is a need for further probe / investigation as per the complaint of insurance company, it is not necessary that the SST will investigate the same. On the contrary on such satisfaction being arrived at that prima facie there is fraud and there is need for further probe or investigation the SIT will continue the same and carry it to its logical conclusion."
7. Giving a fair idea about the facts of the case, the following has been stated :
"10. As regards the present case, prima facie it appears that Page 27 of 32 R/SCR.A/2963/2018 JUDGMENT the deceased was perhaps driving the vehicle in which case he would not be liable for any compensation (his heirs have claimed for Rs.25 crores). The suspicion is strengthened by the following facts:
a) In the Judgment of acquittal (Page of 282 & 283 of petition) Para 11, the learned Judge states that he is surprised that the person who is shown as driver has not sustained any injuries and the said facts has not;
been investigated by the concern I.0.
b) Further in FSL report surprisingly it shows that there was no blood stains found on the seat of the Car (Page 286/287) and the officer further states that the vehicle should be send for scientific examination and details of mobile phone of driver, deceased & other witnesses should be secured which has not been done.
c) None of the eye-witnesses have been examined
d) Surprisingly the statement of Mr. Maitukbhai J. Patel Owner of the said involved Car was never recorded in the earlier round of investigation as well as during further investigation carried out by Respondents 4, 5 &
9.
e) These facts were brought to the notice of the Dy. Superintendent of Police (Respondent No. 4) vide representation dated 17-04-2015 & further representation dated 22-04-2015 (page nos. 146 to Page 28 of 32 R/SCR.A/2963/2018 JUDGMENT
149) and (Page nos. 150 to 157) respectively whereby 10 points and 37 points were enumerated which had been collected by the Insurance Company by engaging Private Investigator Mr.Subhash Avte, retired IPS officer who is a Director in CISS (Central Investigation and Security Services Ltd.).
11. The D.S.P. merely called for statement of the I.0. (Page Nos. 196 to 205) and concluded so called inquiry by almost reproducing the same vide correspondence dated 13.09.2016 (Page No. 258 to 266). This correspondence dated 13-09-2016 has been given to the Insurance Company on 16-05-2017 (Page No. 257) after the accused was acquitted on 18-04-2016 (Page nos. 267 to 284). This raises further questions and doubts as a result while considering the question of the constitution and functioning of SIT."
On 12th April 2018, the following order was passed :
"1. Let Notice be issued to the respondents, returnable on 19/04/2018. Mr. Mitesh Amin, the learned Public Prosecutor waives service of notice for and on behalf of the respondents.
Let there be an ad-interim order in terms of Para-49(F).
2. Mr.Amin, the learned Public Prosecutor is requested to once again take up the issue with the highest authority of the State Government and come back to this Court with some concrete formula or solution. To put it in other words, Page 29 of 32 R/SCR.A/2963/2018 JUDGMENT although the State Government has constituted a 'Special Investigation Team', yet the same is headed by an Officer of the rank of Deputy Commissioner in the Commissionerate areas and Officer of the rank of Police Superintendent in the Districts. The submission of the learned senior counsel is that the constitution of the Special Investigation Team by the State Government is not going to serve any good purpose. The suggestion of the learned counsel is that the Special Investigation Team should be headed by an Officer of the rank of Additional Director General of Police and it should be left upon the Additional Director General of Police to select or nominate the other members, who could be part of that particular Investigating Team.
It is pointed out to me that with some positive developments in the matter, the menace of fraudulent claims has been curbed to a considerable extent. The learned senior counsel pointed out that the claim put forward of Rs.25 crore is absolutely bogus.
3. In such circumstances, I expect the State Government to come out with some better suggestion or solution to the problem.
Post this matter on 19/04/2018 on top of the board. To be clubbed with the Criminal Misc. Application No.24409 of 2017.
A copy of this order be furnished to Mr. Mitesh Amin, the learned Public Prosecutor, for its onward communication."Page 30 of 32
R/SCR.A/2963/2018 JUDGMENT
8. No further adjudication is necessary in this particular matter as the judgment and order passed by this Court dated 25th April 2018 in the Criminal Misc. Application No.24409 of 2017 in Special Criminal Application No.4363 of 2016 takes care of all the issues.
9. On constitution of the Special Investigation Team in line with the judgment of this Court, referred to above, the case highlighted by the writ-applicant of bogus and false insurance claims should immediately be referred to the Special Investigation Team for necessary investigation and the SIT that may be constituted shall look into the same and file its report within a period of four months from the date the SIT takes over the investigation.
10. Till the receipt of the report of the SIT, the proceedings of the Motor Accident Claim Petition No.216 of 2014 in the Court of the Motor Accident Claims Tribunal, Bhuj-Kutch, shall remain stayed.
11. The report of the SIT shall be forwarded to the Motor Accident Claims Tribunal, Bhuj-Kutch, so that on the basis of the same, the Tribunal can adjudicate the Motor Accident Claim Petition No.216 of 2014.
12. As the proceedings of the Motor Accident Claim Petition No.216 of 2014 in the court of the Motor Accident Claims Tribunal, Bhuj - Kutch, have been stayed till the receipt of the report of the SIT, liberty is granted to the original claimants who are before the Tribunal to seek appropriate modification in this order if any occasion arises.Page 31 of 32
R/SCR.A/2963/2018 JUDGMENT With the above, this writ-application is disposed of.
(J.B. PARDIWALA, J.) /MOINUDDIN Page 32 of 32