Karnataka High Court
Manju vs R R Ravi on 16 September, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A NO. 3651/2010 (MV)
C/W
M.F.A NO. 8416/2010 (MV)
MFA NO. 3651/2010
BETWEEN
MANJU,
S/O. RAMASHETTY,
AGED ABOUT 35 YEARS,
KUDALURU VILLAGE,
KODIGE, SOMVARPET TALUK,
KODAGU DIST.
NOW RESIDING AT HENTAGERE ROAD,
NEAR JUNIOR COLLEGE,
ARKALGUD TOWN,
HASSAN DISTRICT
...APPELLANT
(BY SRI. N.R. RAVI KUMAR, ADVOCATE)
AND
1. R.R. RAVI, S/O. RAMASHETTY,
KOUSHIK FARM,
C/O. UDAYA FERTILISERS,
KAGGALIPURA POST,
BENGALURU-560 062.
2. BAJAJ ALLIANCE GENERAL
INSURANCE CO. LTD., NO.105A
107A, SEEJAR PLAJA NO.136,
RESIDENCY ROAD,
2
BENGALURU-560 025.
... RESPONDENTS
(BY SRI. A.N.KRISHNASWAMY, ADV. FOR R2 (VC),
R1- SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
26.10.2009 PASSED IN MVC NO.171/2008 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT,
ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
****
MFA NO. 8416/2010
BETWEEN:
BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
NO.105A/107A, CEARS PLAZA, 1ST FLOOR,
NO.136, RESIDENCY ROAD,
BENGALURU-560 025.
NOW SITUATED AT:
BAJAJ ALLIANCE GENERAL
INSURANCE CO. LTD.,
No.31, GROUND FLOOR,
TBR TOWER, 1ST CROSS,
NEW MISSION ROAD,
ADJACENT TO JAIN COLLEGE,
BENGALURUR - 560 027.
...APPELLANT
(BY SRI. A.N. KRISHNASWAMY, ADV.)
AND:
1. MANJU,
S/O. RAMASHETTY,
AGED ABOUT 35 YEARS,
3
KADALURU VILLAGE,
KODIGE, SOMVARPET TALUK,
NOW RESIDING AT HENTAGERE ROAD,
NEAR JUNIOR COLLEGE,
ARKALGUD TOWN & TALUK,
HASSAN DISTRICT
2. R.R. RAVI,
S/O. RAMASHETTY,
KOUSHIK FARM,
C/O. UDAYA FERTILISERS,
KAGGELIPURA POST,
BENGALURU-560 062.
...RESPONDENTS
(BY SRI. N.R. RAVI KUMAR, ADVOCATE FOR R1,
SRI. PRAKEEP NAIK, DAVOCATE FOR F2 )
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
26.10.2009 PASSED IN MVC NO.171/2008 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT,
ARKALGUD, AWARDING A COMPENSATION OF
Rs.5,40,000/- WITH INTEREST AT 6% PA FROM THE
DATE OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal in MFA No.3651/2010 is filed by the claimant, seeking enhancement of compensation and MFA No. 8416/2010 is filed by the M/s. Bajaj Allianz General Insurance Co. Ltd., questioning the quantum of 4 compensation and also fastening the liability on it, by challenging the judgment and award dated 26.10.2009 passed in MVC No.171/2008 by the Presiding Officer, Fast Track Court and Motor Accident Claims Tribunal, Arkalgud (for short, 'Tribunal').
2. The factual matrix of the case is that, on 22.04.2006, the petitioner along with his wife was standing in the bus stand and waiting for bus near Bettadapura-Ramanathpura Hand Post at about 1.00 p.m., in order to board a bus to go to his mother-in- law's place. At that time, Respondent No.1-Manju, the rider of the motor cycle bearing Registration No.KA.05- EG-3449 came from Ramanathapura side in a rash and negligent manner and dashed to the petitioner. In the said accident the petitioner sustained injury to his left leg and he was immediately taken to Ganguru Primary Health Center and thereafter, he was shifted to Hassan Sanjeevini Hospital, and thereafter, he was shifted to Ramaiah Hospital at Bengaluru. It is the case of the claimant that, he spent more than Rs.1,00,000/- towards the medical expenses and the injuries which he 5 sustained has resulted in amputation of his left leg above the knee. He claims that he was an agriculturist and was also doing paddy business and earning Rs.10,000/- p.m. and he claimed compensation of Rs.10,00,000/-.
3. In pursuance of the said claim petition, notice was issued against Respondents No.1 & 2. Respondent No.1 has denied the averments made in the claim petition and contended that the said accident was occurred due to the negligence on the part of the petitioner himself and he further contended that the vehicle was insured with Respondent No.2.
4. In the written Statement, the 2nd respondent- Insurance Company has denied the claim of the petitioner (claimant) contending that, occurrence of the accident was because of the sole negligence on the part of the petitioner. However, he admitted the coverage of policy and contended that the claim made by the petitioner is exorbitant and prayed the court to dismiss the claim petition.
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5. The claimant, to substantiate his contention, has examined himself as PW.1 and also examined PW.2- Mr. T.S. Puttaraju to prove his income, and he also examined one Harshad Sha, the Doctor who treated him, as PW.3. The claimant has relied on the documents Exs. P1 to P14. On the other hand, the respondents got examined one Mr. Kenchegowda Patel as RW1 and got marked Exs. R1 to R5.
6. The Tribunal after hearing the arguments of the counsel appearing for the claimant as well as the respondent Nos. 1 & 2, allowed the claim petition in part by granting compensation of Rs.5,40,000/- with interest at 6% pa from the date of petition till realization, fastening the liability on the Respondent-Insurance Company.
7. Being aggrieved by the quantum of compensation awarded by the Tribunal in MVC No.171/2008, the claimant has filed an appeal in MFA No.3651/2010 before this Court and contended that the Tribunal has committed an error in assessing the 7 disability at 50% to the whole body and it ought to have been taken at 75%. He also contended that, in order to prove the income of the claimant, he has examined PW.2 and in spite of that, the Tribunal has committed an error in taking his monthly income at Rs.5,000/-. He also contends that the Tribunal has committed an error in not awarding just and reasonable compensation, and the compensation awarded under all the heads are very meager. The counsel would also submit that, apart from taking lesser income and disability, the Tribunal has committed an error in deducting 1/3rd of the claimant's income towards his personal expenditure and hence, the impugned judgment and award requires interference of this Court.
8. The Respondent-Insurance Company being aggrieved by the impugned judgment and award has also filed an appeal in MFA No.8416/2010. The counsel appearing for the Respondent-Insurance Company would submit that, there was a delay in lodging the complaint and the story put-forth by the claimant is nothing but a fraud; The Tribunal ought to have noticed 8 the averment of the claimant, wherein he has stated that he was waiting for the bus in the bus stand along his wife near Ramanathapura Hand Post to go to his mother-in-law's place and at that time, the rider of the said motor cycle came in a rash and negligent manner and dashed against him. But, the documents available on record would clearly indicate that, he was a pillion rider on another motor cycle, and deliberately, the motor cycle number on which he was traveling as a pillion rider was withheld. Likewise, in the complaint, which was lodged belatedly after occurrence of the accident, a different story is narrated that the injured was waiting in the bus stand along with his wife. The Tribunal ought to have noticed that, after lapse of 31 days, the complaint was lodged before the police. Till such time, neither the 1st respondent (claimant) nor the wife of the 1st respondent have not thought it fit to lodge a complaint with regard to the alleged accident and he contends that the fraud and justice should not dwell together. Further, the learned counsel would submit that the Tribunal has committed an error in not 9 noticing the fact that the claimant was also a pillion rider of other vehicle and the story narrated by the claimant that 'he was waiting for the bus in the bus stand along with his wife' was not substantiated by any evidence and even there was a delay of 31 days in lodging the complaint and only on after thought, the present complaint came to be filed. Further, the learned counsel contends that, in spite of RW.1 was examined before the Tribunal and produced Ex.R5, the Tribunal committed an error in fastening the liability on the Insurance Company. Hence, the impugned judgment and award requires interference of this Court.
9. The learned counsel appearing for the appellant in claimant's appeal in MFA No.3651/2010, in reply to the arguments of the learned counsel for the Insurance Company would contend that, in order to prove the alleged fraud, no evidence has been adduced and though RW.1 was examined, in the written statement he has specifically admitted the accident contending that there was a contributory negligence on the part of the claimant himself and not taken any 10 specific defence that the claimant was a pillion rider on other vehicle and no such defence was proved. Hence, the appeal filed by the Insurance Company is not maintainable, in the absence of any pleading and proof with regard to the above said contention. The learned counsel also relied upon a decision of the Hon'ble Apex Court reported in (2017) 5 SCC 82 [Lal Singh Marabi Vs. National Insurance Company Limited and Others] with regard to assessing percentage of disability in case of amputation.
10. Having heard the arguments of the appellant's (claimant's) counsel and also the counsel appearing for the Insurance Company, and on perusal of the records, the points that would arise for consideration of this Court are,-
i) Whether the Tribunal has committed an error in not noticing that he was a pillion rider of another motor cycle and fraudulently he pleaded that, he was a pedestrian, waiting for the bus in the bus stand, along with his wife, and it amounts to fraud, and it requires interference by this Court;11
ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation, as contended in MFA No.3651/2010.
POINT NO.1
11. Having heard the arguments of the counsel appearing for the Insurance Company and also the claimant, this court has to examine the pleadings and the materials available on record. On perusal of the claim petition no doubt the claimant claims that he was waiting in the bus stand along with his wife to board the bus and at that time, the rider of the offending vehicle has dashed against the claimant. In pursuance of filing of the said claim petition, the Insurance Company appeared and filed a detailed written statement before the concerned Tribunal. In paragraph-15 of the written statement, the Insurance Company has denied the said averment made in the claim petition.
12. The counsel appearing for the appellant (claimant) has also drawn my attention to Paragraph- 22 of the written statement denying the averment of negligence on the part of the rider of the offending 12 vehicle and contended that if for any reason this court comes to the conclusion that the alleged accident is not due to the sole negligence of the rider of the offending vehicle, contributory negligence could be taken. The counsel referring to the written statement would submit that, it may be taken note that the Insurance Company has admitted the accident and took defence of contributory negligence and he also submits that there was no specific plea in the written statement with regard to the fraud played.
13. It is noticed from the records that, in the cross-examination of PW.1, no suggestion was made to him that no other motor cycle was involved in the accident and he himself has drove the motor cycle and fell down and sustained injuries, and a complaint was given after lapse of 31 days and the said suggestion was denied. In the cross-examination of PW.1, a specific question was put to him that the offending vehicle was not the vehicle involved in the accident in question and he himself has driven the motor cycle and sustained injuries, but the said suggestion was 13 denied.. In order to substantiate the nature of injuries and disability, the claimant has also relied upon the evidence of PW.3, the Doctor who gave treatment, who came before the Tribunal and adduced evidence. In the cross-examination of PW.3, the answer is elicited that, they have not given any intimation to the police. But, PW.3 says that the claimant was the referred patient and earlier he took treatment somewhere else, hence, they have not intimated the police. However, he categorically admits that, in Ex.P5-case sheet they have mentioned that the claimant was a pillion rider of another vehicle and other motor cycle was dashed against him. The claimant in order to substantiate his contention that he was waiting for bus in the bus stand along with his wife, except oral evidence and Ex.P4-FIR, he has not placed any other evidence on record. On perusal of FIR it is noticed that the date of accident is 22.04.2006 and date of FIR is 20.05.2006, as such, the complaint was lodged after lapse of 29 days. In the complaint, the complainant-Smt. Sudha (the wife of the claimant) has stated that, she was taking care of her 14 husband in Ramaiah Hospital at Bengaluru, and hence, there was delay in lodging the complaint. On perusal of the document-Ex.P5 produced by the claimant is a case sheet of M.S., Ramaiah Medical Teaching Hospital, Bengaluru, which clearly discloses that the injured was admitted to the hospital on 23.04.2006 and discharged on 09.05.2006 and in Ex.P5, it is specifically mentioned that the patient was referred from out side hospital with a history of Road Traffic Accident (he was hit by a two wheeler while riding pillion on a 2 wheeler).
14. Learned counsel appearing for the Insurance Company would submit that, the Document-Ex.P5, which is the case sheet of M.S. Ramaiah Hospital would indicate he was a pillion rider on another motor cycle and which would indicate that a fraud was committed. Learned counsel for the Insurance Company has also relied upon Ex.R5, which is the extract of MLC Register and it indicates that the history of Road Traffic Accident on 22.04.2006 at about 2.30 p.m. near Rudrapattana while riding a bike. This history is pertaining to the claimant/injured-Manju and the history was given at the 15 time of admission at 10.30 p.m. on 23.04.2006. Hence, there was any error in mentioning that the claimant was a pillion rider of another motor cycle or he was waiting for the bus in the bus stand when the accident was occurred, was not properly explained by the claimant, when PW.3-Doctor deposed regarding Entry in Ex.P5. In the cross-examination, a specific question was put to PW.3 with regard to Ex.P5 in respect of said entry and it is elicited that the said entry made in Ex.P5 is that the claimant was a pillion rider at the time of accident. It is also pertinent to note that the complaint was given on 20.05.2006 after a lapse of 28 days and no doubt this Court can accept the evidence of PW.1 that there was a delay in lodging the complaint and the wife was taking care of her husband. On perusal of Ex.P5, it is clear that the claimant was discharged on 09.05.2006 and prior to the date of discharge itself the wife of the claimant has lodged a complaint and there was no impediment for the wife of the claimant to lodge a complaint before the police immediately after the accident.
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15. Having taken note of the document-Ex.P5 and Ex.R5, the Court has to take note of the fact that the claimant in order to get the compensation, as an after thought, has lodged a complaint after 28 days and in order to over come the entry found in Ex.P5 and Ex.R5, he has not placed any evidence before the Tribunal to substantiate the same. The Tribunal also did not carefully look into the Documents-Ex.P5 and Ex.R5 with regard to the history mentioned in the case sheet and also the extract of the Medico Legal Case register of M.S. Ramaiah Hospital. The main contention of the claimant is that, no such contention is taken in the written statement. On perusal of Para-15 of the written statement, the manner in which the accident was attributed was categorically denied. No doubt, no specific defence was taken in the written statement that vehicle was implicated and however the manner in which the accident is narrated, is disputed. The main contention of the claimant's counsel is that, there is an averment in Para-22 of the written statement that if 17 the court comes to the conclusion, the contributory negligence has to be taken into consideration.
16. In the case on hand, having considered both oral and documentary evidence, the claim is nothing but a false claim of fraud and while filing a complaint after 29 days, it is falsely narrated that both the husband and wife are waiting for the bus in the bus stand and at that time, the rider of offending vehicle came in a rash and negligent manner and dashed against the claimant. But, the truth is not that both the husband and wife were waiting for the bus in the bus stop and two vehicles are involved in the accident. It is categorically mentioned in Ex.P5 and Ex.R5 that two vehicles are involved in the accident in question and this claimant was a pillion rider in another vehicle. Though there is involvement of two vehicles in the accident, not mentioned the vehicle details in the case sheet- Ex.P5 and Ex.R5- medico legal case records. The counsel for claimant would submit that the record discloses that an accident was taken place. The said submission cannot be accepted for the reason that the facts of the case are 18 twisted to make unlawful gain. There must be an involvement of the offending vehicle in the accident and this is a case of implication of the vehicle in order to get the compensation. The claimant ought to have produced the records of Gangur Primary Health Center and Sanjivini Hospital, if the offending vehicle involved in the accident and also ought to have produced IMV report before the court to substantiate the case of claimant and the same has not been done. No effort is made to overcome the entries found in Ex.P5 and Ex.R5.
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17. Learned counsel appearing for the Insurance Company would also contend that, in the claim petition, the name of the father of claimant and respondent No.1 is mentioned as Ramashetty and as such both of them are brothers and the offending vehicle was implanted in the case. In order to come to such conclusion, in the cross-examination of PW.1, it is not suggested to him that both himself and rider of offending vehicle are brothers. But, looking to the address mentioned in the causetitle of the claim petition, it is clear that the 19 father's name of both the claimant and respondent No.1 is one and the same. But, it is not forthcoming whether they are the sons of same person or different. It is shown as the claimant is the resident of Arkalgud Town and Taluk and the Respondent No.1 is the resident of Bengaluru and there is no effective cross- examination to substantive the said contention.. Though, the contention of the Insurance Company is that, both of them are brothers, but, except this contention, no material is produced to substantiate the said contention. No doubt, the counsel brought to my notice the evidence of RW.1. RW.1 in his evidence has deposed that the vehicle was implicated in the case and in cross-examination of RW.1, it is elicited that he has not produced the statement made before the Doctor, but he has produced the accident register. On perusal of the document Ex.R5, it is clear that an entry is made that 'while riding bike' and the said document is an extract of accident register. The very claim of the claimant is that, while waiting for the bus, the rider of offending vehicle came and dashed against him. But, 20 while admitting to hospital, history was given that two vehicles were involved in the accident and the claimant was a pillion rider. Even though there is no specific defence in the written statement in that regard, this court can accept the contention of the Insurance Company that a fraud has been committed while making the claim, but in regard to the contention that both claimant and 1st respondent are brothers, there is no material to substantiate the said contention.
18. The learned counsel for the Insurance Company has relied upon a decision of the Hon'ble Apex Court reported in AIR 2000 SC 1165 [ United India Insurance Co. Ltd. Vs. Rajendra Singh and Others] and contended that though no specific plea was taken in the written statement, if any order is obtained by playing fraud, every Court/Tribunal has power to recall such orders. In view of the said decision, in case, if an order is obtained by practicing fraud, every Court/Tribunal has power to recall such order and subsequently, if it is discovered that an order is obtained by a fraudulent act, the remedy to move 21 Tribunal for recall of award ought not to be foreclosed. The learned counsel further submits that, in the case on hand, though no specific defence was taken in the written statement, but, the documents placed by the claimant itself show that a fraudulent claim was made narrating different story in the complaint and in the claim petition wherein the document ie., Ex.P5-Case sheet indicate that two vehicles are involved in the accident and subsequently, as an after thought, after lapse of 28 days, a complaint was lodged through the wife of the claimant on a reason, 'since the claimant was under treatment, there was a delay in lodging the complaint'.
19. Having considered the materials, particularly EX.P5 and Ex.R5, as I have already pointed out, there is discrepancy in the averments and in order to substantiate the claim, while adducing evidence before the Tribunal, the claimant has not produced proper documents to substantiate his claim and the respondent-Insurance Company pointed out that the claimant has played fraud with the Tribunal and 22 obtained the impugned judgment and award. It is a settled law that the fraud and justice shall not dwell together and when it comes to the notice of the court that fraud has been played, such a practice should be handled with an iron hand. In this case, it is clear that a false complaint has been lodged after thought, after 28 days by implicating some other vehicle to the case and with a fraud a claim was made and obtained an award.
20. In view of the discussion made above, I answer Point No.1 in the affirmative.
21. In view of the reasoning given in respect of Point No.1, consideration of the grounds urged in the claimant's appeal does not arise and no need to answer Point No.2.
22. In view of the above discussion, I pass the following order.
ORDER
1) The appeal filed by the Insurance Company in MFA No.8416/2010 is allowed.
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2) The judgment and award dated 26.10.2009 passed in MVC No.171/2008 by the Tribunal ie., the Fast Track Court, Arkalgud, is set aside. Consequently, the claim petition is dismissed.
3) The amount deposited by the Insurance Company in the appeal is ordered to be refunded forthwith.
4) The appeal filed by the appellant/claimant in MFA No.3651/2010 is dismissed.
5) The Registry is directed to send the Trial Court Records to the concerned Tribunal forthwith.
Sd/-
JUDGE KGR*