Karnataka High Court
M/S The Oriental Insurance Company ... vs Thammaiah on 19 June, 2020
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.10554 OF 2012 (MV)
BETWEEN:
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
T.G.M.A. BUILDING, 1ST FLOOR,
J.C. ROAD,
TUMKUR,
THROUGH ITS REGIONAL OFFICE,
LEO SHOPPING COMPLEX, NO.44/45,
RESIDENTY ROAD,
BENGALURU - 560 001,
REPRESENTED BY ITS
REGIONAL MANAGER.
... APPELLANT
(BY SRI B.S. UMESH, ADV.)
AND:
1. THAMMAIAH
S/O. LATE PUTTAIAH,
AGED ABOUT 44 YEARS,
BUSINESSMAN,
RESIDING AT A.K. KAVAL,
NARAGANAHALLI,
GULUR HOBLI,
TUMKUR - 572 101.
2
2. T. RAMESH
S/O. THIMMAIAH,
AGED MAJOR,
RESIDENT OF VISHWANATHAPURA,
TURUVEKERE TALUK,
TUMKUR DISTRICT.
... RESPONDENTS
(BY SRI N. SURESHA, ADV., FOR R-2
R-1: SERVED AND UNREPRESENTED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 26-7-2012 PASSED IN M.V.C
NO.1221 OF 2010 ON THE FILE OF THE FAST TRACK COURT-II
AND M.A.C.T., TUMUKURU, AWARDING A COMPENSATION OF
RS.18,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALISATION.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-Insurance Company assailing the judgment and award passed by the Fast Track Court-II and the Motor Accident Claims Tribunal, Tumukuru, (hereinafter referred to as 'the Tribunal') in M.V.C. No.1221 of 2010, dated 26-7-2012. 3
2. Heard the arguments of the learned counsel for the appellant-Insurance Company, respondent No.1 is served and unrepresented and the learned counsel for respondent No.2 remained absent.
3. The status of the parties before the Tribunal is retained for the sake of convenience.
4. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the M.V. Act') for claiming compensation of Rs.3,00,000/- for the injuries suffered by him in a road traffic accident inter alia contending that, on 7-6-2008 at about 7:00 p.m., when he was proceeding in a bicycle near Honnudike Hand Post, at that time, a TVS motorbike, bearing Registration No.KA-44 E-7736, came in a rash and negligent manner and dashed against him, due to which, he sustained injuries and he was shifted to 4 General Hospital and further took treatment at NIMHANS, Bengaluru and spent more than Rs.50,000/- for medical expenses. Hence, prayed for granting compensation.
5. In pursuance to the notice, respondent No.1- owner of the motorbike remained absent and was placed ex-parte.
Respondent No.2-Insurance Company appeared through its counsel and filed objections by denying all averments made in the claim petition as false. He further denied the accident, age, occupation, income of the claimant as false and has taken specific contention that the claimant had sustained injuries while peddling the bicycle as per M.L.C. register extract and in order to make a false claim, the claimant in collusion with the Police has falsely implicated the rider of the motorbike. Hence, prayed for dismissing the claim petition. 5
6. Based upon the pleadings, the Tribunal framed the following issues:
1. ¢£ÁAPÀ 7-6-2008 gÀAzÀÄ ¸ÀAeÉ 7 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è CfðzÁgÀgÀÄ vÀªÀÄä ºÉÆÃmÉïï PÉ®¸Àª£ À ÄÀ ß ªÀÄÄV¹PÉÆAqÀÄ ªÀÄ£ÉUÉ ºÉÆÃUÀĪÀ ¸À®ÄªÁV ¨ÉʹPÀ¯ï£À°è ºÉÆ£ÀÄßqÀÄPÉ ºÁåAqï¥ÉÆøïÖ£À PÀqÉ gÀ¸ÛÉAiÀÄ JqÀ¨sÁUÀz° À è ºÉÆÃUÀÄwÛgÀĪÁUÉÎ CzÉà ¸ÀªÀÄAiÀÄPÉÌ 1£Éà JzÀÄgÀÄzÁgÀjUÉ ¸ÀA¨sA À zÀ¥ÀlÖ l.«.J¸À. ¸ÁÖgï ¹n ªÉÆmÁgï ¨ÉÊPï ¸ÀASÉå PÉJ-44-E-7736gÀ ZÁ®PÀ£ÀÄ CweÉÆÃgÁV ªÀÄvÀÄÛ ¤®ðPÀëöåv£ À ¢ À AzÀ vÀ£Àß ªÁºÀ£ª À £ À ÀÄß ZÀ¯Á¬Ä¹PÉÆAqÀÄ §AzÀÄ CfðzÁgÀjUÉ rQÌAiÀÄ£ÀÄß ºÉÆÃqɹzÀ ¥ÀjuÁªÀÄ CfðzÁgÀjUÉ wêÀ¸ æ ÀégÀÆ¥ÀzÀ UÁAiÀÄUÀ¼ÀÄAmÁzÀªA É zÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÃÉ ?
2. 2£Éà JzÀÄgÀÄzÁgÀgÀÄ, 1£Éà JzÀÄgÀÄzÁgÀ£À ZÁ®PÀ¤UÉ C¥ÀWÁvÀzÀ ¸ÀªÀÄAiÀÄzÀ°è ZÁ®£À ¥ÀvÀæ EgÀ°®è ªÀÄvÀÄÛ C¥ÀWÁvÀªÁzÀ vÀPÀëtzÀ°è ¥ÉÆðøÀjUÉ ªÀiÁ»wAiÀÄ£ÀÄß PÉÆqÀzÉ ªÀÄvÀÄÛ UÁAiÀĪÁ¼ÀĪÀ£ÀÄß D¸ÀàvU Àæ É ¸ÉÃj¸ÀzÉ ¥Á°¹AiÀÄ µÀgv À ÀÄÛU¼ À £ À ÀÄß G®èAWÀ£É ªÀiÁrgÀĪÀÅzÀjAzÀ 2£Éà JzÀÄgÀÄzÁgÀgÀÄ vÁªÀÅ AiÀiÁªÀÅzÉà ¥ÀjºÁgÀzÀ ºÀtªÀ£ÀÄß PÉÆqÀ®Ä dªÁ¨ÁÝgg À ® À è ªA É zÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÃÉ ?
3. CfðzÁgÀgÀÄ AiÀiÁªÀ JzÀÄgÀÄzÁgÀjAzÀ ªÀÄvÀÄÛ JµÀÄÖ ªÉÆvÀÛzÀ ¥ÀjºÁgÀzÀ ºÀtªÀ£ÀÄß ¥ÀqA É iÀÄ®Ä CºÀðgÀÄ?6
4. AiÀiÁªÀ DzÉñÀ?
7. In order to substantiate the contentions, the claimant got examined himself as P.W.1 and got marked 7 documents. Respondent No.2-insurer examined one witness as R.W.1 and got marked 2 documents. After considering the evidence on record, the Tribunal allowed the petition in part and awarded compensation of Rs.18,000/- with interest at the rate of 6% per annum. Assailing the same, the insurer preferred this appeal.
8. Sri B.S. Umesh, learned counsel appearing for the appellant-Insurance Company, has contended that, when the claimant was taken to the Hospital, he was conscious and has stated before the treating Doctor that he has sustained injuries by self fall from the bicycle, while he was peddling in his village. Later, after 16 days, the claimant has filed a complaint to the Police contending 7 that the rider of the motorbike came and dashed against him and he has sustained injuries. The Police have filed charge-sheet in order to show the involvement of the motorbike. But, the claimant has not examined any independent witnesses to prove the said accident occurred due to rash and negligent riding of the rider of the motorbike. The claimant was shifted to the Hospital by one Chandraiah, son-in-law. Both of them have given statement before the treating Doctor that the claimant has sustained injuries due to self fall from the bicycle. Such being the case, without examining any independent witnesses, the contentions of the claimant cannot be acceptable. There is inordinate delay in lodging the complaint and coupled with the statement made before the Doctor clearly goes to show that there is false implication of the rider of the motorbike for claiming compensation. Evidence of R.W.1 and Ex.R.1-M.L.C 8 register extract clearly disprove the contentions of the claimant about the accident. Therefore, the findings of the Tribunal in awarding compensation is liable to be set aside. Hence, prayed for allowing the appeal.
9. Upon hearing the arguments and on perusal of the record, the point that arises for my consideration is;
"Whether the Tribunal has erred in passing the judgment and award in favour of the claimant, which calls for interference?"
10. On perusal of the evidence, the claimant has stated that he has sustained injuries in a road traffic accident caused by the rider of the motorbike on 7-6-2008 at 7:00 p.m. He has produced F.I.R., charge-sheet, Police report, panchanama, I.M.V. report and Wound Certificate in order to show that he has sustained injuries in a accident caused by the rider of the motorbike. The same was specifically denied by the insurer. Respondent No.1- 9 owner of the motorbike remained ex-parte and did not contest the matter. Insurance Company examined its witness as R.W.1 and got marked 2 documents. On the application filed by the Insurance Company, the Tribunal summoned the Doctor and the Doctor has produced the document along with his letter, which is marked as Ex.R.2. Ex.R.1 is the M.L.C. register extract of the District Hospital, Tumukuru, which clearly reveals that the claimant-Thammaiah was brought to the Hospital by one Chandraiah, son-in-law, on 7-6-2008 around 9:00 p.m. with history of 'RTA self fall from the bicycle while he was peddling in his village at around 8:00 pm on 7-6-2008', Further, the general conditions are shown as 'fair, conscious and oriented'. Thereafter, it is mentioned that there are four injuries found on his body. Ex.R.1- M.L.C. register extract was not controverted by the claimant by examining any other witness.
10
11. That apart, there was inordinate delay in lodging the complaint for about 16 days. The same was not satisfactorily explained. The accident occurred on 7-6-2008, but the complaint was lodged on 24-6-2008 before the Police. Absolutely, there is no explanation in the complaint filed by the claimant. If at all, he had sustained injuries in the accident caused by the motorbike, he could have mentioned or informed to the Doctor at the Hospital. In turn, the Doctor would have sent medico-legal information to the Police and the Police would have recorded his statement and they could have registered a case against the rider of the motorbike. In view of his statement that, he sustained injuries by self fall from the bicycle, there is no need for the Hospital Authority to treat his injuries as a medico-legal case. Further, the claimant has not produced any supporting document, whether he was continuously under treatment 11 at NIMHANS Hospital, Bengaluru, which prevented him from lodging the complaint immediately. There is no explanation from the claimant to connect with the rider of the motorbike after 16 days of the injuries sustained by him on 7-6-2008. Merely, the Police filed charge-sheet that itself is not enough to accept the story of the claimant in entirety as true without any adequate evidence and explanation. Even the claimant has not examined any of the Doctor at General Hospital, Tumukuru, and his son- in-law Chandraiah, in order to prove that the claimant had sustained injuries in the road traffic accident. On perusal of Ex.R.1 and evidence of R.W.1 goes to show that the claimant in order to make a false claim filed a complaint to the Police, after 16 days by implicating the rider of the motorbike only for the purpose of claiming compensation. In the case of UNITED INDIA INSURANCE CO. LTD. v. RAJENDRA SINGH AND OTHERS reported in 12 AIR 2000 SC 1165, it has held that once fraud or misrepresentation is noticed, the Tribunal has power to recall the award.
"(A) Civil P.C. (5 of 1908) S.151 - Power to recall its order - Order obtained by practicing fraud - Every Court/Tribunal has power to recall such order - Award passed by Motor Accident Claims Tribunal - Claim made, subsequently discovered to be fraudulent - Remedy to move Tribunal for recall of award ought not to be foreclosed.
No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
Where the insurance company after the passing of the award by Motor Accidents Claims Tribunal, discovers that the award has been passed on a fake claim, it would be fully 13 justified in approaching the Claims Tribunal for recall of the award. The Insurance Company when it come to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation after the award has already been passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. The remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high decree cannot be foreclosed in such a situation."
Based upon the principle laid down by the Hon'ble Supreme Court in the case stated supra and considering all these aspects, the Insurance Company has successfully disproves the contentions of the claimant about the injuries sustained by him 14 in the road traffic accident. Therefore, evidence of the claimant and the documents are insufficient to claim compensation and it is clear that he has made false complaint even though he has fell from his bicycle and sustained injuries. Therefore, the findings of the Tribunal in awarding compensation, even though, it is a meager amount, which requires to be set aside. The Insurance Company has established its defense and hence, the appeal deserves to be allowed.
12. Accordingly, the appeal is allowed. The judgment and award passed by the Fast Track Court-II and the Motor Accident Claims Tribunal, Tumukuru, in M.V.C. No.1221 of 2010, dated 26-7-2012, is hereby set aside. The claim petition filed by the claimant under Section 166 of the M.V. Act is dismissed. 15
Amount in deposit to be refunded to the appellant- Insurance company.
Sd/-
JUDGE kvk