Karnataka High Court
Bajaj Allianz General Insurance Co Ltd vs Ashok Raj Urs K S/O Krishna Raju on 23 January, 2013
Equivalent citations: 2013 AAC 1424 (KAR), 2013 (2) AIR KANT HCR 470, (2013) 3 KANT LJ 53, (2013) 2 TAC 938, (2013) 1 KCCR 6
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
MISCELLANEOUS FIRST APPEAL NO.8982/2008 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.9384/2008 (MV)
IN MFA NO. 8982/2008:
BETWEEN:
BAJAJ ALLIANZ GENARAL
INSURANCE CO. LTD.,
NO.105/A - 107/A
CEARS PLAZA
136, RESIDENCY ROAD
BANGALORE - 560 025
BY ITS MANAGER
... APPELLANT
(BY SRI. O. MAHESH, ADV.)
AND:
1. ASHOK RAJA URS.K.
S/O KRISHNA RAJU
AGED ABOUT 26 YEARS
R/A NO.34, OPP. TO
ST. ANTHONY CHURCH
COFFEE BOARD LAYOUT
BANGALORE - 560 025
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2. M.J. RAMA RAO, MAJOR
S/O JAGANNATHM
R/A NO.30IIMAIN
SHANTHARUPTHINAGAR
KOTTANUR DINNE MAIN ROAD
J.P.NAGAR, VII MAIN
BANGALORE - 78
... RESPONDENTS
(BY: SRI. SHRIPAD V. SHASTRY, ADV. FOR R1
R2 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13/05/2007 ON THE
FILE OF THE IX ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MEMBER, MACT-7, METROPOLITIAN AREA,
BANGALORE, (SCCH NO.7), AWARDING A COMPENSATION
OF RS.61,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION.
IN MFA NO. 9384/2008:
BETWEEN:
ASHOK RAJA URS.K.
S/O KRISHNA RAJU
AGED ABOUT 26 YEARS
R/A NO.34, OPP. TO
ST. ANTHONY CHURCH
COFFEE BOARD LAYOUT
BANGALORE - 560 025 ... APPELLANT
(BY: BY: SRI. SHRIPAD V. SHASTRY, ADV.)
AND:
1. M.J. RAMA RAO
S/O JAGANNATHM
3
MAJOR, R/A NO.30
II MAIN, SHANTHARUPTHINAGAR
KOTTANUR DINNE MAIN ROAD
J.P.NAGAR, VII MAIN
BANGALORE - 78
2. BAJAJ ALLIANZ GENARAL
INSURANCE CO. LTD.,
NO.105/A - 107/A
CEARS PLAZA
136, RESIDENCY ROAD
BANGALORE - 560 025
BY ITS GENERAL MANAGER
... RESPONDENTS
(BY SRI. SRI. O. MAHESH, ADV. FOR R2
R1 - NOTICE D/W)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.05.2008 PASSED IN
MVC NO.3225/2007 ON THE FILE OF IX ADDITIONAL
JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES,
BANGALORE, SCCH-7, PARTLY ALLOWING THE CLAIM
PETITION FOR COMEPNSATION AND SEEKING
ENHANCEMENT OF COMEPNSATION.
THESE MFAs COMING ON FOR FINAL HEARING, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arise out of judgment and award dated 13.05.2008 passed in MVC No. 3225/2007 on the file of MACT, Bangalore. Appeal in MFA 8982/2008 is filed by 4 the second respondent-insurance company before the tribunal challenging the liability as well as quantum of compensation. Whereas the appeal in MFA 9384/2008 is filed by the claimant seeking enhancement of compensation and also challenging the finding in saddling contributory negligence on the part of rider of motor cycle, on which the claimant was travelling.
2. Brief facts leading to these appeals are as under:
The claimant before the tribunal is said to be the rider of motor cycle bearing registration No. KA 04 ET 5499. According to him, on 16/04/2007 at about 10.15 AM when he was proceeding on 3rd Main Road, Bashyam Circle, through C.V. Raman Road, he was hit by Honda Activa bearing registration No. KA 05 EW 2802, belonging to first respondent and insured with second respondent before the tribunal. In the said accident, he suffered degloving injury to right toe and also to third toe. Hence he was admitted to M.S. Ramaiah Hospital for treatment, where he was treated as inpatient from 16.04.2007 to 21.04.2007 and subsequently between 02.05.2007 and 09.05.2007. 5 Thereafter claim petition is filed by him seeking compensation for the injuries suffered in the aforesaid road traffic accident.
3. In the proceedings before the tribunal, the claimant examined himself as PW1 and got marked in all 12 exhibits as P1 to P12, out of which, Exs. P1 to P5 are police documents, Ex.P6 is certified copy of wound certificate, Ex.P7 is Discharge Summary, Ex.P8 is copy of Driving License of claimant, Ex.P9 is medical bills, Exs. P10 and P11 are inpatient and out patient records and Ex. P12 is X-Ray. In addition to that, claimant also examined a doctor in support of his claim by name Dr. Mali Manjunath stating that he has treated the claimant while he was inpatient in the hospital, to support the nature of injury and extent of disability suffered by the claimant due to injuries suffered in the accident. On behalf of respondents, second respondent insurance company examined one of its officers as RW1 and produced two documents and got them marked as exhibits R1 and R2.
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4. On appreciation of oral and documentary evidence available on record, claim petition was allowed by the tribunal awarding compensation to the claimant in a sum of Rs. 1,22,000/- payable with interest at 6% from the date of petition till the date of realization. However, while allowing claim petition 50% of the liability to pay compensation was saddled on the insurer of the offending Honda Activa scooter and remaining 50% on the rider of motor cycle for the reason that there is negligence on his part to an extent of 50% in causing the accident.
5. Being aggrieved by such finding the claimant has come up in one appeal seeking enhancement of compensation and also for removal of 50% liability saddled on the rider of the motor cycle. Whereas the insurance company has come up in another appeal challenging the liability as well as quantum of compensation.
6. Heard the counsel appearing for the appellant in both the appeals. Perused the judgment impugned in the light of oral and documentary evidence available on record 7 with reference to the grounds urged in both the appeals. On re-appreciation of the same, this court observe as under;
7. First and foremost ground urged by the appellant insurance company is that vehicle which is said to have caused the accident is implanted. According to him, the accident may have taken place on 16.4.2007 as substantiated in the medical records, which disclose the admission of claimant to hospital on 16.4.2007 vide Ex.P11. It is also seen that on the very same day the fact of suffering injuries in road traffic accident is informed to the Sanjay Nagar police vide Ex.P2 by the medical officer of MSRTH. The admission register and other documents which have come in to existence from 16.4.2007 confirm the accident and it is recorded that the accident is caused by a car. It is also seen that subsequently the entries in the inpatient record is rebuilt to show that the accident is caused by Honda Activa and not by the Car as it was recorded earlier. This clearly indicates an attempt in manipulating the documents with the support of police and as well as doctors of said hospital. Further, the police documents which are on 8 record, namely, Ex.P1-complaint and FIR clearly disclose that in a pre handwritten statement small place is left over to fill up the number of Honda Activa which is subsequently inserted by squeezing the said number in the limited space left in Ex.P1, for which no explanation is available from the claimant. On going through the documents available on record, it clearly gives room for doubt as to the involvement of Honda Activa in causing the accident. The Implication of said scooter may be probably with an intention to secure compensation for claimant through a vehicle which has valid insurance policy subsisting at the time of accident.
8. At the time of arguments a letter is also sought to be shown to this Court without producing the same to this court, which is a letter said to have written by claimant to the hospital authorities to make necessary corrections in the hospital records so far as the vehicle which has caused the accident. If the said letter is genuine and if it was really given, why said letter is not found in the inpatient records, is not explained by the counsel while addressing arguments in this appeal.
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9. It is also seen that there is no mark on the said letter in confirmation of the original of which being submitted to the hospital, inasmuch as, there is no seal or signature from the hospital authorities for having received the original of said letter. This further strengthens the doubt. In any event, the reason for police recording FIR on 20.4.2007 on the basis of statement which is said to have given by claimant on 20.4.2007 does not stand to reason when on 16.4.2007 itself the accident being informed by the medical officer to Sanjay Nagar Police Station, wherein in a column mentioned for acknowledgement of receipt, it is clearly seen that on 17.4.2007 at about 9 am., the said letter is received by the police. If they have received information of accident on 17.4.2007, why did they wait till 20.4.2007 to register FIR till they received statement of claimant does not stand to reason and while receiving the statement why there were blanks left in the said complaint, which is later filled up is also not explained. In that view of mater, the entire documents so far as it pertains to the vehicle which has caused the accident resulting in injuries to claimant is suspicious.
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10. While making these observations it is necessary to place on record that the practice of planting vehicles having valid insurance coverage in place of unknown vehicles causing the accident or vehicles not having insurance policy in force being implanted for the sole purpose of enabling the victims of accident to secure compensation from the hands of insurance company is on the rise. It is needless to say that said mafia is controlled and conducted by the police with active connivance of Inspectors with total knowledge of the officers of insurance company . It is further seen that there are several such claims coming up before the court day in and day out giving rise for doubt to each and every claim that is made before the Court. Nodoubt, the legislators in their wisdom thought that the proceedings for recovery of accident claim should be summary in nature. It does not mean that in the guise of summary proceedings this unscrupulous group can manipulate records and without following the procedure to substantiate the accident and the injuries would somehow manage to hoodwink the court and 11 other authorities in getting compensation where they are not entitled to any.
11. In this proceedings also, there is no doubt that very same method is adopted. When the counsel for claimant was called upon to explain these discrepancies, he tried to substantiate the same relying upon the rulings of Apex Court to say that the Apex Court in several cases has held that where complaints are filed even after the lapse of four to six months, the same has to be accepted if the same is in order, to see that the rights of claimants is not affected. It is true that the Apex Court has gone out of the way to see that the benefit of social legislation reaches the beneficiaries and in the process the procedural delay should not come in the way of claimants in realising their lawful due. But in no case the Apex Court has said that when fraud is committed in manipulating the documents and for which time is spent by the claimants causing delay in filing FIR should also be ignored. This court would say that relying upon such judgments of the Apex Court and trying to distort them is nothing but the abuse of process of law and any attempt in 12 that behalf should be viewed seriously. More particularly, in cases where there is element of deceit, manipulation and concoction of records, the claimants would not be entitled to any concession, much less, the one which is extended by Apex Court for legitimate claimants. It is needless to say that fraud unravels everything as held by the Apex Court on more than one occasion while deciding matters in all aspects not only with reference to insurance claim. In that view of mater, this Court feel that much credence cannot be given to the line of argument submitted by appellant/claimant in trying to draw strength from those judgments, which are not meant for fraudulent claims. Be that as it may.
12. Coming to the case on hand, the documentary evidence which are already on record clearly discloses that this petition is also yet another fraudulent case in which there is a calculated move on the part of claimant and police with the active connivance of doctors in implicating the number of Honda Activa in place where the accident is caused by an unknown car. Further, it is also seen that the doctor who has given evidence in this proceedings namely, 13 Dr.Mali Manjunath, is not the doctor who has treated the claimant. On earlier occasions, in other appeals this court has observed that Dr.Mali Manjunath has infact supported such false and unscrupulous claims by giving evidence in support of them though he has not treated claimant/deceased. In the present case also, he is not the doctor who has treated the claimant and as could be seen from the records his name is not seen anywhere in the documentary evidence available in the form of hospital records. Despite, he comes on record, makes a statement on oath, gives evidence that claimant has suffered injuries in respect of which he has absolutely no knowledge and tried to help the claimant in securing higher compensation. It is yet another attempt on the part of doctor in furtherance of the fraud already committed by others in filing the claim petition.
13. With this observation the appeal filed by the insurance company in MFA 8982/2008 is allowed. In the light of the observation made supra, this court feels question of looking into the appeal filed by the claimant in MFA 14 9384/2008 either to consider enhancement or to expunge the finding regarding saddling 50% liability on him towards contributory negligence does not arise. Hence it is dismissed.
14. In view of the appeal filed by the insurance company is allowed, the judgment and award passed by the tribunal being set aside, the amount in deposit is ordered to be released in favour of the appellant - insurance company in MFA 8982/2008 forthwith.
Sd/-
JUDGE Bsv/nd