Karnataka High Court
Regional Manager Oriental Insurance Co ... vs B S Kalegowda S/O B K Subbegowda on 14 June, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF JUNE 2012
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MR. JUSTICE H.S. KEMPANNA
MFA No. 4133/2006 (MVC)
BETWEEN:
Regional Manager
Oriental Insurance Company Limited
Regional office
No.44/45, Leo Shopping Complex
Residency Road Cross
Bangalore-25 ... APPELLANT
(By Sri.A.N.Krishnaswamy, Advocate)
AND:
1.B.S.Kalegowda, 54 years
s/o.B.K.Subbegowda
R/o.No.7th Block, Jogupalya
Police Quarters, Ulsoor
Bangalore-8
2.Anand Kumar Pillai
S/o.Christopher Abraham
Pillai, Age:Major,
R/at No.474, 5th Main, 7th Cross
Jagadishnagar,
Bangalore-560 075 ... RESPONDENTS
2
(By Sri.V.S.Prasad, Advocate for R-1
Notice to R-2 dispensed with vide Order dated 8.8.2008)
-0-0-0-0-
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 7.11.2005 PASSED IN MVC NO. 2496/2000
ON THE FILE OF MEMBER, V ADDITIONAL MACT,
COURT OF SMALL CAUSES, MAYO HALL UNIT,
METROPOLITAN AREA, BANGALORE(SCCH.No.20)
AWARDING A COMPENSATION OF RS.10,52,000/-
WITH INTEREST AT THE RATE OF 6% P.A. FROM THE
DATE OF PETITION TILL PAYMENT.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY N.KUMAR, J. DELIVERED THE FOLLOWING:-
JUDGMENT
The insurance company has preferred this appeal challenging the award passed by the Motor Accidents Claims Tribunal awarding a compensation of Rs.10,52,000/- to the first respondent.
2. For the purpose of convenience the parties are referred as they are referred in the claim petition. 3
3. The case of the claimant is that on 12.01.2000 at about 9.00 p.m., he was proceeding in a scooter bearing Regn.No.KA-03-Q-762 on the pillion seat on Ulsoor "G" road from West to East. The said scooter was ridden by his brother Sri. B.S. Balakrishnegowda, at a moderate speed, cautiously on the correct side of the road by following traffic rules. When the said scooter reached near Corporation school, a car bearing Regn.No.KA-01-P-5646 (MFC3104) came in the same direction driven by its driver at excessive speed in a rash and negligent manner from behind and dashed to the rear portion of the scooter and thereby caused accident, which resulted in severe injuries to the petitioner who was on the pillion seat. The said accident occurred solely due to rash and negligent driving of the car by its driver. The Ulsoor Police registered a case under Section 279, 338 IPC read with Section 134 (A) & (B) of the Motor Vehicles Act.
4. Immediately the petitioner was taken to nearby clinic where he was given first aid. Next day he 4 was taken to Nimhans. Further on the advise of the Doctors, he was shifted to Manipal hospital on 13.01.2000 where after clinical diagnosis, X-rays and scans were taken and then it was found that the petitioner has sustained post traumatic cervical 5 and 6, intervertebral disc prolapse with quadrisparesis. So far he has undergone several operations in his spinal card. Even today he is under treatment as an inpatient. Though he has been offered best available treatment, he could not come to normal life and he has been treated invalid for all practical purposes and chances of his recovery is beyond seal. He has spent about Rs.Six Lakhs towards medical expenses.
5. The petitioner was working as an Assistant Sub Inspector of Police in Ulsoor police station and was drawing a salary of Rs.7,500/- per month. Because of the accident he has become disabled, he is unable to resume his duties. The petitioner's prospects and advancement in future career is totally ruled out due to the nature of injuries he has sustained. The petitioner 5 has lost sensation of both lower and upper limbs, has difficulty in breathing, hypertension and there is loss of bladder and bowel control. Therefore he claimed compensation in a sum of Rs.27 lakhs from the respondents, who are the owner and insurer of the car.
After service of notice though the first respondent- owner of the car was duly served, he remained ex-parte. However the insurance company appeared and filed a detailed written statement contesting the claim. They denied the accident having taken place on account of rash and negligent driving of the car by its driver. However the insurance coverage to the car in question was not disputed. It was contended that the claim petition is bad for non-joinder of all the necessary parties i.e., the owner and insurer of the scooter. They further contended that the liability if any will arise only in the event of the petitioner proving that the alleged accident was solely on account of rash and negligent driving on the part of the driver of Maruti car in question and the said car was being driven by a person 6 having a valid and effective driving licence for driving the said class of vehicle and further subject to the relevant documents being possessed at the relevant point of time. By way of amendment para 5-A was added where it was stated that as per the investigation carried out by the insurance company the above claim petition is an abuse of process of law. The claim made by the petitioner is absolutely non genuine. According to the petitioner the alleged accident is supposed to have taken place on 12.01.2000 at about 9.00 p.m., whereas the FIR has been lodged by one Sri. Balakrishnegowda son of Sri.B.K.Subbegowda before the Ulsoor police station only on 04.02.2000. The police have filed charge sheet on 15.06.2000. The spot sketch and spot mahazar have been drawn only on 05.02.2000. Admittedly, these documents have come into existence much later to 12.01.2000 on which day the petitioner was supposed to have been injured in the road traffic accident involving Motor car bearing No.KA-01/P-5656 (MFC3104). From the IMV report, it is clear that there 7 is no inspection of the car in question. According to the petition averments, the petitioner was an Assistant Sub Inspector of police. The petitioner himself is working in the police department. There is no convincing or reasonable explanation for the delay in lodging the compliant by his brother. Thus, it is clear that no road traffic accident occurred on 12.01.2000 involving the Motor car bearing No.KA-01/P-5646 (MFC3104) as alleged in the claim petition. The very fact that the first respondent, who is the owner of the vehicle has chosen to remain absent in the proceedings illustrates that the petitioner in collusion with the first respondent and using his influence in the Depoartment has managed to manipulate the records and foisted a false case to make fraudulent claim from the insurance company at the cost of the public exchequer. The second respondent submits that the injury allegedly suffered by the petitioner is in no way related or attributable to the use of the Motor car bearing no. No.KA-01/P-5656 (MFC3104) as alleged in the claim petition. This 8 tendency on the part of the unscrupulous elements trying to take advantage of t beneficial legislation will have to be viewed seriously by this Hon'ble Tribunal and put down with firm hands. Therefore the claim petition is not maintainable and liable to be dismissed.
6. On the aforesaid pleadings, the Tribunal framed the following issues on 22.9.2005:-
"1.Whether the petitioner proves that on 12.1.2000 at about 9.00 P.M. on Ulsoor "G" Road, in front of Corporation School, Bangalore, due to rash and negligent driving of car bearing registration No.KA- 01-P-5646(MFC 3104) by its driver an accident took place, and in the accident petitioner had sustained injuries?
2.Whether the petitioner is entitled for compensation? If so, how much amount and from whom?
3.What order or award?"
7. However, on 19.10.2005 the issues were recast as under:-
"1.Whether the petitioner proves that on 12.1.2000 at about 9.00 P.M. on Ulsoor "G" Road, in front of Corporation School, 9 Bangalore, due to rash and negligent driving of car bearing registration No.KA-01-P- 5646(MFC 3104) by its driver an accident took place, and in the accident petitioner has suffered injuries?
2.Whether Respondent No.2 insurance company proves that the car bearing No.KA- 01-P-5646(MFC 3104) was not involved in the alleged accident?
3.Whether the petitioner is entitled for compensation? If so, how much amount and from whom?
4.What order or award?"
The petitioner in order to substantiate his claim examined himself as PW1, the Doctor who examined him as PW2, an official from the department where he was working as PW3 to speak about the salary he was drawing and future prospects. 17 documents were produced and marked as Ex.P1 to Ex.P7 in support of his claim. On behalf of the insurance company, an official was examined as RW1 and an investing officer was examined as RW2 and they have produced 3 documents, which are marked as Ex.R1 to R3. 10
The Tribunal on consideration of the aforesaid oral and documentary evidence on record held that the injuries sustained by the claimant/petitioner was on account of motor vehicle accident involving the scooter and the Maruti car as pleaded by the claimant. The accident was on account of rash and negligent driving of the car by its driver and therefore actionable negligence is proved. Thereafter it took note of the medical evidence on record, the evidence of the official from the department about the earning of the petitioner and his future prospectus and thereafter it proceeded to award a sum of Rs.10,52,000/- as global compensation for the injuries sustained in the Motor Vehicle Accident. Aggrieved by the said award, the insurance company is an appeal.
8. The learned counsel for the Insurance Company assailing the impugned award contends that the accident took place on 12.01.2000. According to the case of the petitioner his brother was rider of the scooter and he was a pillion rider. Accident took place 11 at 9.00 p.m.. Immediately he was taken to a private clinic. Thereafter on the next day he was taken to Nimhans. From there he was taken to the Manipal hospital. But the FIR is lodged only on 04.02.2000 nearly 22 days after the accident. The medical certificate produced in this case by the petitioner issued by the Manipal hospital, which is marked as Ex.P5 do not disclose that the petitioner sustained the injuries in a Motor Vehicle Accident. If it was an injury on account of motor vehicle accident it could have been treated as a medico legal case and they were also under an obligation to inform the jurisdictional police about the said fact which admittedly has not been done in this case. The evidence on record discloses that immediately after the accident he was taken to a nearest clinic. Next day he was taken to Nimhans and from there he was taken to Manipal hospital. The certificate from Nimhans is not produced. It is in this background it is contended that as both the brothers were working in the police department and the petitioner himself was working as 12 Assistant Sub Inspector of police in Ulsoor police station within whose jurisdiction the alleged accident in question has occurred, if 20 days time is taken to lodge the complaint nothing more needs to be proved by the insurance company to show that the accident which is putforth is not a genuine one. Coupled with these facts, the owner has remained absent which clearly establishes the collusion. Further the complainant who is none other than the brother of petitioner was not examined in the case. It is in this background the investigation report produced in this case and the evidence of investigating officer clearly shows that the case of accident is stage managed one to get compensation. Therefore, the learned counsel submits that the findings recorded by the Tribunal that the accident occurred on account of rash and negligent driving of the driver of the car is without any basis and is liable to be set aside.
9. Per contra, the learned counsel appearing for the petitioner/claimant submitted it is true that there is 13 a delay of 20 days in lodging the complaint because immediately after the accident the claimant and his brother were busy in getting the medical treatment to the claimant. He was unable to move about. He was bed ridden. In those circumstances mere delay in lodging the complaint would not in any way come in the way of the claimant claiming compensation under the Act. The owner of the vehicle has furnished all the information as contemplated under Section 133. After notice being issued by the police authorities. The driver of the car has pleaded guilty before the jurisdictional Magistrate. The insurance company has not substantiated the case of fraud by any acceptable evidence. In those circumstances, the Tribunal was justified in coming to the conclusion that the accident was on account of rash and negligent driving by the driver of the car and thus actionable negligence is established and the said finding do not call for interference in the appeal by this Court. Therefore, he submits that no case for interference is made out. 14 Though the claimant was entitled to higher compensation because of his health condition, he has not preferred any appeal.
10. In the light of the aforesaid facts and rival contentions, the points that arise for consideration in this appeal is as under:-
"(1)Whether the finding of the Tribunal that the accident was on account of rash and negligent driving by the driver of the Maruti car calls for any interference?
(2)Whether the Insurance Company has established in this case that the insured car was not involved in the accident and therefore they are not liable to pay any amount to the claimant?"
11. Now it is not in dispute that the petitioner was a pillion rider on the scooter bearing No.KA-03/Q-
762. The said scooter was driven by his brother Sri. Balakrishnegowda. Sri. Balakrishnegowda on 12.01.2000 was working as Constable in Ulsoor Police Station. The petitioner was working as Assistant Sub Inspector of Police in the very same police station. The 15 accident has taken place on 12.1.2000 at about 9.00 p.m. But the first information lodged by Balakrishnegowda on 04.02.2000 discloses that they were returning from their sister's house, when they came near Corporation School, a Maruti Car driven at a high speed, came from behind and dashed against the scooter; he and his elder brother fell down; he sustained abrasions. The petitioner fell on the footpath and because he fell on the stone, he sustained grievous injuries to his hand and leg. He lost sensation to his hands. Then he took him in an autorickshaw to Venkateshwara Clinic where he was given first aid. Thereafter, he was brought back to his house. Next day morning, for further treatment, he took him to NIMHANS. Further, after preliminary treatment, on their advice, on 13-1-2000 he took the petitioner to Manipal Hospital. He is not aware of the number of the Maruti Car which hit the scooter. The petitioner was treated as inpatient in the hospital as he was grievously injured and as his health was critical, there was delay 16 in lodging the police complaint. Therefore, he requested the police authorities to search for the Maruti car and its driver and thereafter to take appropriate action against them.
12. From the aforesaid complaint, it is clear that the petitioner was not taken to Manipal Hospital directly; he was taken to a private clinic and the next day, he was taken to NIMHANS. The wound certificate issued by the NIMHANS should have been produced. The wound certificate or other treatment particulars are not forthcoming in the evidence on record. As on 4-2- 2000, number of the Maruti Car was not known to them. In the wound certificate, which is now produced as Ex.P-5, it is not mentioned that the injury which the petitioner sustained is on account of the road accident. The Mahazar as per Ex.P-2 was drawn on 5-2-2000. As is clear from the panchanama, it is seen that after the said Balakrishna Gowda pointed out to the police authorities the place of accident, panchanama was drawn which is nearly after 20 days from the date of 17 accident, is of no assistance in deciding the manner in which the accident took place. Similarly, Ex.P-3 - rough sketch which is also prepared on the information furnished by Sri Balakrishna Gowda is of no assistance. The Motor Vehicle Inspector's Report at Ex.P-4 shows that rear body ground was bent insofar as the scooter is concerned. In the said Motor Vehicle Inspectors Report, there is no reference to the Maruti car at all. Charge sheet is filed on 15-6-2000 four months and ten days after the FIR. It is here, for the first time, the number of Maruti car finds a place. Then, we have Ex.P-10 - Discharge summary issued by the Manipal Hospital, Bangalore. It is categorically stated in the said discharge summary that the date of admission of the petitioner was 13-1-2000, date of surgery was 14-1- 2000 and 2-2-2000 and date of discharge was on 30-3- 2000. In the portion earmarked for diagnosis, it is stated as under:
"This 47 year old gentleman presented to us with alleged history of road traffic accident at around 11.30 p.m. on 12-1-2000."18
This statement runs counter to what is contained in Ex.P-5, the wound certificate which is issued by the Manipal Hospital. It is conspicuously silent about the injuries sustained in the road traffic accident. The time of accident, according to the claimant is 9.00 p.m. whereas, in these certificates, it is shown as 11.30 p.m. In the discharge summary, there is no reference to the fact that he was brought to the Manipal Hospital on reference from NIMHANS, the fact which is not in dispute. Curiously, Balakrishna Gowda the eye witness is not examined in this case. He is the complainant. He is afraid of entering the witness box, as he has to face cross examination. It is nobody's case that after the accident he did not go to work to the Ulsoor police station, where he was working and within its jurisdiction the accident occurred. As a policemen it was his primary duty to lodge a complaint within the jurisdictional police station immediately if really an accident of the nature he has alleged in the complaint occurred. The case of the petitioner is because he and 19 his family members were busy in attending to the injury, there was delay in lodging the complaint by 20 days. Balakrishna Gowda was attending to work in the same police station. The petitioner was working in the same police station as Assistant Sub Inspector of Police. Therefore, he has been deliberately kept back from Court. His non-examination is fatal to the case of the petitioner. The Court would be justified in drawing an adverse inference to the effect that, he would not have supported the case of the petitioner and the allegations in the complaint. It is sufficient to hold that no such accident arose at all. The owner of the car has remained exparte. It is in this background when we critically appraise the evidence and the undisputed facts on record, it is clear that the claimant is not innocent. These undisputed facts speak for themselves. Therefore, it is in this background, the case of the insurance company that the petitioner was working as Assistant Sub Inspector of Police in Ulsoor Police Station and his brother Balakrishna Gowda who was 20 riding the scooter was also a Constable in the same police station and even as on the date of first information i.e., on 4-2-2000, they were not aware of number of the car, clearly demonstrates that an attempt is made to implicate the car with insurance and a willing owner to enable the complainant to get compensation from the insurance company.
13. We have gone through the medical evidence on record. We really feel sorry for the condition of the petitioner-claimant on account of the injuries sustained which has virtually paralysed him. He has to take voluntary retirement and he has to be on treatment throughout his life. But all that is not a justification to rope in a vehicle which was not involved in the accident, to enable the claimant to get compensation from the insurance company. It is to be remembered the money that the insurance company pays is the money which belongs to the public, which they are holding in trust. If the sympathy is misplaced, it results in encouraging these manipulations and the persons who have 21 experience in these manipulative tactics would have an upper hand over the law abiding citizens.
14. A Division Bench of this Court in the case of VEERAPPA vs SIDDAPPA (ILR 2009 KAR 3562) had an occasion to notice this tendency which is ever increasing and sometimes also getting respectability both inside and outside Courts. In that context, it has been stated as under:
"15. Fraus et jus munquam cohabitant, Fraud and justice never dwell together, is a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the Courts is a nullity and non est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
16. Sub-section (2) of Section 149 provides the grounds on which the insurance company can avoid the liability to pay the compensation under 22 the Act. One such ground is, if a policy is obtained by a representation of fact which was false in some material particular. Section 172 confers on the Claims Tribunal a power to award compensatory costs, if it is satisfied that the policy of insurance is void on the ground that it was obtained by representation of fact which was false in any material particular or any party or insured has put forward a false or vexatious claim or defence. Sub-section (3) of Section 172 also speaks of criminal liability in respect of such misrepresentation. However, it restricts the compensatory costs to be awarded to only Rs.1,000/-. Therefore, the Act provides for taking action against a party who sets up a false or vexatious defence. However, the cost of Rs.1,000/- prescribed under the aforesaid provision, has failed to act as a sufficient deterrent to the parties setting up false claim or defence. The experience has shown that this branch of law is slowly getting into the hands of unscrupulous people who are making a mockery of judicial process. A disturbing trend of unholy alliance among the police, the doctors, the lawyers and some times even the Insurance Company, to siphon out the public money, and make an unlawful gain is fast emerging. It is also gaining respectability and persons who indulge in such practices are acclaimed as most successful in their respective profession. This is a dangerous trend, if unchecked would undermine the judicial process. As the existing law is inadequate to check this malady, the Courts not only have to be careful in adjudicating such claims but also find ways to prevent such abuse. They have to balance the interest of these accident victims and their legal heirs on one side, by giving them just compensation at the earliest, thus giving effect to the mandate of the parliament, and on the other 23 hand, to see that the very process is not abused and exploited by a handful of persons, who have attained specialization in this field, to make personal gains at the cost of the exchequer. An onerous responsibility lies on the Courts. Therefore, it is imperative that a strong message is to be sent to the abusers of the judicial process to discourage them from indulging in such practices as well as the consequences of such abuse may result in foisting the liability exclusively on the insured-owner of the vehicle.
17. In the instant case there is an attempt on the part of the 1st respondent/owner to collude with the claimants with the fond hope of saddling the insurance company to pay compensation. Though we feel sorry for the claimant, our sympathy should not offend the law. When the owner of the vehicle admitted the accident and had no objection for award of compensation, in order to see that in future such admissions are not made, it is proper for us to direct the 1st respondent who has made a categorical admission that his vehicle was involved in the accident, to pay compensation. It serves dual purpose. The claimants if they intend to recover compensation from the owner of the vehicle, this award would enable them to do so. It would also act as a sufficient deterrent to such owners who are planted in the case to foist liability on the Insurance Company, if they are made to pay from their pockets. Therefore, we proceed to order the compensation to be payable by the insured only.
15. In the light of what is stated above, the impugned order passed by the Tribunal cannot be 24 sustained insofar as the finding recording actionable negligence is concerned and therefore it is hereby set aside. However, we deem it proper not to set aside the award insofar as owner of the vehicle is concerned as he has not contested the matter and colluded with the claimant. If he is so sympathetic to the claimant, he should come forward to pay the amount awarded by the Tribunal to the petitioner, otherwise the petitioner is at liberty to enforce this award against owner of the vehicle. For the reasons aforesaid, the insurance company notwithstanding the insurance policy covering the motor car, is not liable to indemnify the insured who is a party to the fraud. Therefore, we pass the following order:
(a) The appeal is allowed.
(b) The award passed by the Tribunal
holding that the petitioner has
established actionable negligence is
hereby set aside.
25
(c) The liability fastened on the insurance company is set aside.
(d) The petitioner is at liberty to enforce this award against the owner of the car.
(e) Parties to bear their own costs.
The amount deposited by the insurance company at the time of filing of the appeal shall be refunded to the insurance company forthwith.
Sd/-
JUDGE.
Sd/-
JUDGE.
*alb/- Pages 1-14 *sp pages 15-25