Karnataka High Court
Oriental Insurance Co Ltd vs D G Ganganna on 3 October, 2010
IN THE HIGH COURT OF KARNATAKA AT BAN.GAL:CRE
DATED THIS THE 3% DAY OF 0C'roBLf;i2,%%2fTC#3%i'0T'
THE HONBLE MR. JUS'I'ICE ARAL1
M.F.A.No.4o27%%'Q,§ 2«.Q_0i
M.F.A.No';--4_0:2_8 gr *200*r.(_Mv)
,,,:\ 0_2_'Z%
OrieI1'ta1?Ir1's1{3f«"2111};-é C'0».._:Ltd., _ V
City Branch _ ' -
# 1/1,"Connaughfi*ROad',~.
Queens Rgadv Ciflosa, " _
Bangalore 2 560 I052, "
N(;'.§%,( represented its
" ¢Régiofia1. Manager,
' ,Orienvt_ai~%I'11s'ur_ance Co. Ltd.,
'--- R.egiT0I1'a'~1 2 Off'1<:e
'NOQ44 / 45j.f Léo Shopping
C0«mp1exg,
Residency Road Cross,
..Bgngalore » 560 025. ..APPELLANT
% '._V(B'f"SRI.A.NKRISHNASWAMY, ADVOCATE]
'% " "AND:
1. D.G.Ganganna
S / 0 late Han umegowda
e:_-»»+€_ "*"""1-~_.&,
..Judge';--* Member,
Now aged about 54 years,
R/ax # 629 [outhouse],
10*" Cross, 10-A Main,
Basaveshwara Nagar,
Bangalore ~ 560 079.
2. G.T.Ver1kataswamy
Since deceased represented
By his LRS
2(1) Smt.Susheelamma
W/o late G.'I'.VenkataswaIr:3l/'V000' .
Age: Major V
2{ii] Suciha
D/0 late G.T.V.enkataswai:1y = _
Age: Major
2011) smt5'C§a},?afh'fid¢vi.ijj; . V
D / o la_te_VG';TQ'Ve1t}l«;ata's\7§farr;3z V V
Age: :\/Iajoi A. _
Kunigal''Taluk, 0' _ " "
Tumku1' D1':-:tbriet.v"
. .RESPONDENTS
'[VBV"y$S1¥i'i.*K.lR,RarIieeh;vAdvocate For Respondent No.1, ' v.1Vi'/S.D4ii<is'gh_itAssociates For Respondent No.2(I) To 2[Iii] . A Filed Under Section 173(1) Of M.V.Act AgairH;t' The Judgment And Award Dated 27.02.2006 Paseaedgln MVC No.6479/2003 On The File Of IX Addl.
---- _ Maet«7, Court Of Small .Me'i:_ropolitan Area, Bangalore {S(:Ch~7], Awarding A '._C'ompensatior1 Of '1,36,400/« With Iriterest. At The Rate Causes, Of 6% PA. From The Date Of Petition Till Date Of 0' " " Realisation.
M.F.A.NO.4028/2007 BETWEEN :
Oriental Insurance Co. Ltd., City Branch 11, # 1/l, Connaught Road, Queens Road Cross, Bangalore M 560 052, Now represented by its Regional Manager, I _ Oriental Insurance Co'.'~Ltd_;', -. . Regional Office " 'M ' «} No.44/45, Leo Shopping" V Complex, _ A l _ _ , V_ .
Residency Bangalore ..APPELLAl\lT
[BY SRIl.lA.'N:KRlléfHNl%XSWAlwlY;"}lDVOCATE) AND:,ggl"V . ..
1. G--a.nganil.al l{ariy'anr;_am _ AME_g.0r;;
' 'f'loor',v .11 Cross, MeeAria.l§;shil\Eaga1', ' BasavesliWa'li'a.nagar, Bang'c1__lo1'é3«--*¥~ 560 079.
= ..2a.l_Snit.:Savithramma @ Susheela W late G.T.Venkataswarny °.YeLliyur Hobli, Kunigal T aluk. ..RESPONDEN'l'S lH[By Sri.Rajagopala Naiclu, Advocate & S.ri..K.R.Pradeep Associates For Respondent. No.l, M/S.Dixit Associates For Respondent No.2] 1*" ~~~~~ This Mfa Is Filed Under Section 173(1) Against The Judgment And Award Dated 1"?"/O'2~/2006 Passed In 1\/EVC No.6<i_l-78/ 2003 On The Fi1e--§V__Of' Judge, Member, Mact--7, Court Of Sma11ffCau.ses, Metropolitan Area, BangaloreVH{Scc11--7];"'*Awai"di'ng Compensation Of '2,50,600/-- W'ith"I11té'1'eSi -At'-'I'he"Raie Of 6% PA. From The Date of ?_eti'tioin_ T111 Realis ation. , 2 THESE MCFAS COMIi\iG'r.ONv. FQRc:.A§'€¥}HVf}Mi£NTS'VV THIS DAY, THE COURT DELI'-n§_3--RE.D THE F.oLi.OWIN G:
A =-- . it-'__.UD-G1'2j_LEMf ' = .
M.F.A.No3.4O27/ZOO? 'is_';the Insurance Cornpaiiy,ehgalieiisgiiigthe'correctness of Judgment and Awardddated passeci in MVC 6479/2003 on the file o'fC"t.he LC"':viI'A1A1'é'('_\i\.,.['\Kv/f€:1"l"1]C>€I', Motor Accidents Claims ».{SCC'H+'7"j;'Bangalore (hereinafter referred to as ¢;aa$imiina~= for short}. M.F.A.No.4028/2007 is filed Insurance Company challenging the correctness of Judgment and Award dated 17.12.2006 pasised in MVC 6478/2003 by the same Claims .. __;"%l'ribuna1.
5
2. Both the M.V.C N0s.64'?8/2003 and 6479/ 2003 were filed by the respective injured claimants who sustained bodily injuries as a result of the same accident that occurred on 1 1.01.2003"
PM. while both' the injured were _ Tractor and Trailer, bearing registration'"1'~Jos..K;A;~O6--M--'=w 876 as: KA--O6--M877 respectiigtelyg f;;'orn_hd '$:l*ietti:ge'ha';li village to Yecliyur Village":as._Coolies owner of the said Tractor and Traiier. bothlllthese appeals were listed for fina3.VVVhearin:gl;A:.d:V' date of hearing, the learned courisel aplpevarinlg forlthe appellanbinsurance company aprildd ~__responldlent--claimant both were absent. tllvre' arguments of Sri.K.H.Thirnrnaiah, the lea-rned cdunsel for the second respondenbowner in it 'houth these appeals Were heard. Both these appeals to be adjourned to this day (03.12.2010) with a it "lllview to give an opportunity to the learned counsel for the appellant--insura:nce company and also claimants. §""'~«-a.,.("""\=»'"""-~....'\___F 6 Today also they are not present. 'l'he1'efore their arguments are taken as heard. Perused the entire material found in the original records on they.-file of Claims Tribunal.
4. The facts that the a.;ég§id'em 'oec;urr'ec_l said date and time and place a~._resul»t.",lAof"rash. 'and; negligent driving of the saide».T1'actor"aiide -"Trailerl by its driver and that as :§a.id..y.accidlentV both the injured claimants sustained'V__il1:-jurieg.g1;éf.;1ot in dispute. Bothzvvthlel byllthe Insurance Company on the same as under:
jvi-i)_ The and Trailer were not C V' iiisured with appellaiit and insurance Company. ' claimants and the owner of the rsaid tral_C;tor,.Var1d Trailer managed to make the ap'pell.__ant «company to believe that it had issued the policy of Insurance in respect of the said ,V_ehj'cle by concocting documents and by Alpdeliberately withhol.ding the documents that it "were available with the owner. The Claims Tribunal passed the impugned judgments and mrresw '7 awards erroneously on the premise that there existed a policy of insurance and therefore the said judgments and awards deserve to set aside."
{ii} The Claims Tribunal should noticed that in any event,v.~*the& V' Insurance projected to have been i1'ssue(1».by tine"
appellant would not coverthe riskof injL:1"ies the employees carried in veh'iele".vf.= The alleged policy indicates that'"additi"onal premiuin is not taken to cove4'r"t11e'-- of the employees orathe l these circurr1s'ta1I1ces, 'fa; "lia'b.ili1.:y A " fastened on the appellan--t e'1"ronelo_u's. . -. ' (iii]lVThe 'Clain§sz_l'..'c'Tribunal should have notiicecl. that ~1ial:)ility of the Insurer is always to tllelmprovisions of WC Act in the "'e?1e11t;_'o.f devoverage of risk under the policy. Judgements and Awards passed by the 'l'r'ii9L1lnal are opposed to law and Contrary to it ., l'eivicleIi'ce of record.
*c--~*---~§:mx'°""m""-~--..»-v
5. The learned counsel for the second respondent-owner strongly contends that the appellant- insurance company has taken defence in th4C"'--Writ't.en statement clearly admitting that the Tractorandd involved in the said accident were insu71jed_ with itas on b the relevant date of accident th_erefore._lit~ .c«amf1j'o~:latbe_ permitted now to contend that the claimant, in coll't1.sion»A"\Xr1th: the owner' of the said Vehicle made the insural-ncefcompalfijjtogbelieve the said Vehicles were arid therejby.__Ql3tained the awards in they He further contends that the decision the grounds of appeal in the memorandum in both these appeals cannot be to the factsof the present case inasmuchas it is 1 the appellant--insurance company that it di"s.cov__ered' any fraud alleged to have been committed by ..the claimant in collusion with the owner and therefore '.lthe'insurance company is entitled to seek setting aside of the awards passed in the said cases. '""
6. The Appellant Insurance Company contested the claims of both the claimants in the said cases before the Claims Tribunal by filing its common Written statement. The Plea of the Insurance Company, as No. 5 of its written statement in the said.Vcyases' factum of Insurance in respect of the; s'aidAA'TraC'i:or"and Trailer reads as under:
"This respondent submits" -- that, this respondent issued in, respect of Vehicle Tractor .f'a'n=:1" bearing Registration 3 KA06-Mm ' Covering risk l'sv.e.f. t5.oa'l2oo:;fy'i§f4.o3.2003. The liability of is subject to terms and conditi'g.fi_$,V' égppended to the policy, . A l\/IV Act and verification of «yvehicle documents. Further it is that insured in the above case z "notdntimated to this respondents office about the accident. Hence this respondent is not liable to indemnify the insured."
7. From the above specific plea taken by the insurance company contesting both the said claim .»«.f"""=/"x-..__"_n_:?
11 owner of the Car involved in the said accident and aiso the insurance Company, both___ resisted Claims. The Claims Tribunal allo\v.€Vd~.a_l'i.. both the Claims and awarded COI13}_Z)€I1SE1ii§0i-'"l.ljflut favour of the respective claimants tjhe" it bodily injuries sustained *-I%rh'e{;:
r awards became final as 1iei:'ther"tl'ie (5.. the Car nor Insuranee»'C_ompa:1_y"filed."'a§§Ii¢_§1 challenging the correetriess of lth.eleaWalr:ds. Some time after tlie pass'i'nglof 'the a\vard*s;"'the Insurer of the said' that the Claimants in the l.i*1_ot.'p"sulstain the said inju__ries9in the iall.eged._aeCi*d'ent involving the""ori'-ithe lot'he1'"l hand, they had siista-inedllthfe. _i'1i_iu1%i:e's--. as a result altogether a differerit aeoiderit. vvherein tractor and Trailer wa.s involved but not the said ear. Therefore thg..i_m$urerlof"'tl1'e said car filed an application »bpe'fore'_*tlr:ie.._Claims Tribunal seeking an order said awards on the ground that "<.the_" 'ola'ima11ts had obtained the same by praeticing fraud on the Insurance Company also on the Claims ".I'ribunal in collusion 'With Owner of the said Car and the said fraud was dicted by the insurer after the passing of the said Awards. The Claims Tribunal rejected the said application on the ground Emwgawwmw 12 that it has no power to review its Judgment. Aggrieved by the same, the Insurance Company moved the High Court of Allahabadflb... by filing Writ Petition seeking quashing said awards. Th.e Learned Single Judgeftif it High Court dismissed the s__ai.d.__Wri_t Therefore the Insurer approaclied theApleif-s.,,__ Court.
9. On the above facts saidlllc~a:_se;l'lthle§ Hon'ble Supreme Court held .A " ' " (A) Civil__P.C. {5..¢r..19o3)Power to recall its erder --- iorder obtained "tray practising fraud --_Eve¥i'j7_. Court/Tri!m1ia1"'lias power to recall zfsucizs. "'order---{3~Awa'rd"'passed by Motor AccidenVtd"(£'lairrls 'I'ril'.-iinalj -- Claim made.
subsequently' A._j(iiscojvered to be fraudulent .. Remedy to r11ove"'l'r'ibunaI for recall of award ought not tube foreclosed."
Court ormtribunai can be regarded as recall it s own order if it is that the order was wangled through fraud or misrepresentation of such a dimension at ,_as would affect the very basis of the claim". it "Where the insurance company. after the passing of the award by Motor Accidents Claims Tribunal. discovers that the award has been »«""°"
E-'""'..r*~m_.., 13 passed on a fake claim, it would be fully justified in approaching the Claims Tribunal for recall of the award. The Insurance CompVaiiv"e._ when it comes to know of any concoction having been made the siniste.r:"olJje:c'tl of extracting a claim for com.pe»n.s4ationHlafter award has already been passed,::'i't possible for the company a 3 appeal against the award';<.:'i\lot only bar of limitationto file"thell'appeall"'biut'lE the consideration of l4eve_n'fV'li.f'Vthe delay could be condonedw.v:..wouldw__b.e¥_ to the issues th'e.:lpl_ead.ings made till then?" --iThe rei'n.e'dy"'-to frriove for recalling the order 'on Vthelibasis "L-hle "newly discovered facts amounting to "frau.d----._of high degree cannot be fereclosed~..i:i such a situation."
Il:ri=..'_2vW1 of the above said decisions ie, in AIR (State of Andhra Pradesh Vs V if _ T.Su'rya.ehandra Rao) it is observed a.t Para Nos. 7 8: 17 if V as sunclerz "7. The order of the High Court is clearly erroneous. There is no dispute that the land which was offered for surrender by the respondent. had already been acquired by the €:'4*m 14 State and the same had Vested in it. This was clearly a case of fraud. Merely because an enquiry was made, Tribunal was not divestedifolflg the power to correct the error respondent had clearly committed a fraL1--d:'" l "l7. Considering the aforesaid" princ-_ipl_es:"
and the background facts, :":.the_'i'i'ribi1nal' justified in modifying 5th_e earlier' varying it. The Appellate 'fribunal commit any error in upholding it.°"l'he Courtsorder is clearly unsustainable' is set.
two cases'-- itlisdlc-l,e'a.r it is not the case of the insurance 'Companyithafthe claimant committed fraud .---__on in__.___collusion with the owner, the said fraud. be dictated by it a.fter awards were passed thle Tribunal and therefore the impugned gawards deserve to be set aside. The grounds urged in 'appeal memo in both the appeals do not disclose any facts constituting any fraud committed by the claimants on the insurance company. As rightly submitted by the learned counsel for the second <';'*-=«.§\"°'w'.--x"%...»~""
l':;}i;ppea1.
3.5 respondent--owner even to this date the appellant"
insurance company has not placed on record the policy of insurance issued by it in respect of the said and Trailer to show that the same was obtained.:i}§3r:"'tl1:e"'a V' owner thereof fraudulently.
l2. For the reasons aforeslaid:;..A_A_li' merit in these appeals. 'are 'V dismissed. The amounts de'posite'd--__by the*in'surance company in these appeals s'l*ia'll5 betransmitted to the Claims Tribuinalw so as 3: claimants to Withdraw the '--same'.":lfN:oaorderas to costs in these appeals.
't_d"cnigfifia*¢fi1us dudgnxnulshafl be keptin.RAFA and a copy thereof in the other Sdfli Iudge