Karnataka High Court
Divisional Manager, New India ... vs Smt Gouravva on 16 November, 2012
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD
DATED THIS THE 16TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR JUSTICE S.N. SATYANARAYANA
M.F.A.10042/2007 (MV)
BETWEEN:
Divisional Manager,
New India Assurance Co. Ltd.
Divisional Office, Shamanur Bldg.
Chamarajpet, Davangere.
Now represented by its
Regional Manager,
The New India Assurance Co. Ltd.
Regional Office,
2-B, Unity Building Annexe,
P. Kalinga Rao Road,
Bangalore-560 027. ... Appellant
(Sri.V. R. Datar, Adv)
AND:
1. Smt.Gouravva,
W/o Shiddayya Talawar.
Now aged about 56 years,
Occ: Household work.
2. Ajjappa,
S/o Shiddayya Talawar,
Now aged about 34 years.
Occ: Electrical Contract Work.
2
3. Ratna,
D/o Shiddayya Talawar,
Now aged about 32 years.
Occ: Household work.
4. Nagaraj,
S/o Shiddayya Talawar,
Now aged about 30 years.
Occ: TCH student.
5. Leeladevi,
D/o Shiddayya Talawar,
Now aged about 27 years.
All r/o Ranebennur,
Dist: Haveri.
6. Dyamappa,
S/o Venkappa Hinamathi,
Age: Major, Occ: Business.
Owner of Tempo Trax
No.MA-40/M-115.
R/o Ranebennur,
Haveri District.
7. Ubedulla Ambar,
S/o Abdul Rahimsab Ambar.
Age: Major, Occ: Hotel business
And previous owner of
Tempo Trax No.MA-40/M-115.
R/o Ranebennur, Haveri Dist.
Ambar Hotel,
Haveri District. ... Respondents
(R-1 to R-7 served but unrepresented)
This MFA is filed under Section 173(1) of M.V. Act,
1988, praying to set-aside the Judgment and Award dated
21.3.2007 passed by the Court of Civil Judge (Sr.Dn) and
Addl. MACT, Ranebennur, in MVC.No.383/2001, and etc.
3
This MFA coming on for Admission this day, the
Court, delivered the following:
JUDGMENT
The 3rd respondent-Insurance Company in MVC.383/2001 on the file of the MACT, Ranebennur, has come up in this appeal impugning the judgment and award dated 21.3.2007 passed therein.
2. The brief facts leading to this appeal are as under:
The claimants in MVC.383/2001 are the wife and children of deceased Shiddayya Talwar. It is their case that the deceased Shiddayya Talwar and the 2nd claimant- Ajjappa Talawar in MVC.383/2001, who are respectively father and son were traveling on motorcycle bearing No.27/H.169 from Harihar to Ranebennur on 8.9.1998. At that time, the 2nd claimant Ajjappa was riding the motorcycle and his father deceased Shiddayya was pillion rider. According to the 2nd claimant a tempo trax bearing 4 Reg.No.KA.40/M-115 came in a rash and negligent manner from the opposite direction and hit the said motorcycle on which he and his father were moving. As a result of the said accident, they fell down resulting in instant death of pillion rider Shiddayya Talwar and injuries to 2nd claimant Ajjappa.
In that behalf, two claim petitions came to be filed, viz., one by the LRs of the deceased Shiddayya Talwar in MVC.383/2001 seeking compensation for the death of Shiddayya Talwar in the said accident and another claim petition in MVC.384/2001 was filed by the 2nd claimant in MVC.383/01 seeking compensation for the injuries suffered by him in the said accident.
3. Admittedly, the accident is said to have taken place on 8.9.98. On the same day FIR was lodged by the 2nd claimant Ajjappa herein as per Ex.P.1, which clearly discloses that the accident has taken place due to rash and negligent driving of driver of the Tata Sumo bearing 5 Reg.No.KA.02/8907 resulting in the death of Shiddayya Talwar and causing injuries to Ajjappa. The postmortem of deceased Shiddayya was conducted on the next day as could be seen from Ex.P.4. It is also seen that the 2nd claimant Ajjappa underwent treatment for the injuries said to have suffered in the aforesaid accident for a period of nearly 10 to 15 days. Surprisingly, the claim petitions were not filed immediately after the alleged accident .
4. It is also seen pursuant to Ex.P.1 complaint and FIR, investigation was conducted and it was found that the Tata Sumo bearing registration No.KA-02/8907 said to have caused the accident belongs to Gulbarga Electricity Board and it was being used by the Executive Engineer of the said Electricity Board at the relevant point of time and on perusal of the log books it was found that the said vehicle was on the site in possession of the KEB authorities neither it involved in the accident nor it came towards the place where the accident took place. In that view of the matter, 'C'-report was submitted vide Ex.109 6 by the Halageri police in the year 1999 stating that the vehicle which is said to have caused the accident is not traceable.
5. It is seen that, surprisingly, based on the letter of one C.H. Belakeri, who is said to have submitted letter to Superintendent of Police of Haveri District, the entire case was re-opened by the police by filing an application before the Chief Judicial Magistrate (Sr.Dn), Ranebennur vide letter 10.2.2000 to reopen the case that was closed by filing 'C'-report and subsequently it is seen that charge sheet was filed on 22.3.2001 stating that the accident is caused due to rash and negligent driving of tempo trax bearing Reg.No.KA.40/M.115 belonging to 1st and 2nd respondents before the Tribunal and insured with 3rd respondent. It is only after re-opening of the proceedings at the time of filing of charge sheet, the claim petitions were filed by the legal representatives of the deceased Shiddayya Talwar and also his son Ajjappa, one for 7 seeking compensation for the death of Shiddayya Talawar and another for causing injuries to Ajjappa.
6. As could be seen from the records, for nearly 3 years even the claim petition was not filed by the legal representatives of the Shiddayya Talawar and his son Ajjappa. Subsequent to filing of the charge sheet, the claim petitions were filed. As expected, the 1st and 2nd respondents owners of the alleged offending tempo trax bearing Reg.No.KA.40/-M.115 remained ex-parte. It is only 3rd respondent Insurance Company which contested the claim petition.
7. In the proceedings before the Tribunal, the Insurance Company produced all the documents right from the copy of the complaint based on which the FIR was registered on 8.9.98 till the date of 'C'-report, and upto to the date of filing of charge sheet in the year 2001 which include the letter submitted by the police to the Magistrate concerned based on the alleged statement of 8 C.H.Belakeri involving the present vehicle i.e. tempo trax bearing Reg.No.KA.40/M-115 as having caused the accident resulting in injuries to Ajjappa and death of his father. Surprisingly there is total contradiction in the documents that are available on record to demonstrate involvement of the tempo trax in the said accident.
8. In these days it is not surprising to note that police go out of way to create documents to assist filing of fraudulent claim petitions. However, it is surprising to note that the Tribunal also has fallen in line to blindly ignore all these documents while considering the claim petition filed seeking compensation. The Tribunal while appreciating the oral and documentary evidence with reference to the pleadings has conveniently ignored the manipulation committed by the claimants in connivance with police authorities in fixing the tempo trax bearing Reg.No.KA.40/M-115 belonging to respondents 1 and 2 insured with respondent No.3, as the vehicle causing the accident. Though the Insurance Company has taken pains 9 to demonstrate before the Tribunal the fraud involved in fixing the tempo trax, the same is conveniently ignored by the Tribunal in spite of documents being available on record clearly supporting the defence of 3rd respondent- Insurance Company and has blindly proceeded to accept that there is involvement of Temp Trax bearing Reg.No.40/M.115 in causing the accident resulting in the death of Shiddayya Talawar and causing injuries to Ajjappa and proceeded to allow both claim petitions awarding compensation to the LRs of Shiddayya Talawar Talwar in a sum of Rs.2,36,000/- along with interest at 6% from the date of petition till the date of deposit of entire amount of compensation and awarded a sum of Rs.64,068/- to Ajjappa with interest at 6% p.a. from the date of petition till the date of realization, for the injuries suffered by him.
9. Being aggrieved by the same, two appeals are filed by the Insurance Company, one in MFA.10042/07 impugning the judgment and award so far as awarding 10 compensation to claimants in MVC.383/2001 filed for the death of Shiddayya Talwar and another in MFA.1043/2007 in awarding compensation to claimant Ajjappa for the alleged injuries suffered by him in MVC.383/2001.
10. As expected, the Insurance Company is also lethargic in pursuing the appeal filed by it. Though the appeal was filed in the year 2007 it did not comply the office objections. Hence, the appeal filed impugning the judgment and award passed in MVC.384/201 which is challenged in MFA.1043/2003 stood dismissed. Now, the present appeal in MFA.1042/2003 filed by Insurance Company is taken up. Incidentally in this appeal though all the claimants are duly served they have chosen to remain exparte.
11. Heard the learned Counsel for the appellant. On going through the judgment impugned with reference to the pleadings oral and documentary evidence available on record, it is clearly seen that it is a classic case of manipulation, fraud and creation of documents with the 11 active connivance of police department which is unfortunately on rise these days, more particularly, in motor accident claim cases. Admittedly, the accident has taken place on 8.9.1998. In the common evidence recorded in MVC.383/2001 and 384/2001, the claimant in MVC.384/2001 who is also 2nd claimant in MVC.383/2001 has clearly admitted that he was riding motorcycle bearing Reg.No.KA.27/H.169 with his father Shiddayya Talawar as pillion rider on the ill-fated day, i.e. on 8.9.1998. According to him, while he was riding the said motorcycle a Tata Sumo bearing Reg.No.KA.02/8907 came and hit their motorcycle from the hind side resulting in injuries to him and death of his father in the said accident.
12. In the cross examination he admits that immediately after the accident he did not loose consciousness. He was conscious and he has seen the vehicle causing the accident and he was also conscious and aware of the things that had taken place on that day. That he himself lodged the complaint with Halageri Police, 12 based on which the FIR in Ex.P.1 came to be registered. It is further stated that, it is only in the year 1999 the police have filed 'C'-report having failed to link the vehicle Tata Sumo bearing Reg.No.KA-02/8907 to the accident.
13. It is seen that subsequently, the manipulation and concoction of documents took place with the active involvement of police authorities to secure compensation. It is stated one C.H.Belakeri has given letter to the Superintendent of Police stating that he had seen the accident on that date which has resulted in the death of Shiddayya Talawar and the said letter which is given by Belekeri is not secured by the police and produced either before the very Judicial Magistrate of Ranebennur or the Tribunal and marked in the said proceedings. On the contrary, based on the said letter given by said Belakeri communication is sent by Superintendent of Police to Station House Officer of Halageri Police Station, based on which an application is made before the Chief Judicial Magistrate of Ranebennur seeking permission to reopen 13 the file and subsequently, the charge sheet is filed fixing the vehicle tempo trax bearing Reg.No.KA-40/M-115.
14. As expected in such kind of litigations, the owner of the vehicle said to have involved in the accident causing death of Shiddayya remained exparte before the Tribunal. Therefore, the possibility of owner coming before the Tribunal either accepting or denying the accident did not arise at all. Thereafter, the claimants were free to proceed further with their fraudulent claim petitions which came to be filed only in the year 2001. All these surrounding circumstances clearly indicate the filing of the application in the year 2001 by Halageri Police before the CJM, Ranebennur vide Ex.P.110 seeking permission to withdraw 'C'-report vide Ex.P.109 and thereafter filing the charge sheet are all nothing but ingenious method of manipulating the documents so as to bring a false and frivolous claim within the ambit of legitimate claim to ensure that the claimants would receive compensation 14 from the 3rd respondent insurance Company through a vehicle which is not involved in the said accident.
15. Surprisingly, the Tribunal also blindly ignored the same and proceeded to toe the line of police and the claimants in supporting a forged and false claims based on concocted documents and conveniently awarded compensation turning a blind eye to the false documents and entertained the false claim preferred by the legal heirs of Shiddayya Talwar and claim petition of Ajjappa while passing a common judgment in allowing both claim petitions and awarding compensation to the claimants therein. On going through the judgment impugned and lower Court records, this Court is of the opinion that the entire proceedings resulting in awarding compensation to the claimants in both claim petitions is nothing but a fraudulent exercise by the claimants with the active help of police. This is in fact clearly seen from the evidence of PW.2 who is claimant in MVC.384/2001 and also evidence of PW.3 and PW.4 who are said to be eye witnesses to the 15 accident. In fact, in the cross examination there is clear admission on the part of the said witnesses that they have directly not seen the accident involving the aforesaid Tempo Trax bearing Reg.No.KA.40/M-115 and also they admit that they have not seen the driver of the said Tempo Trax causing the said accident. In that view of the matter, it is clear that the entire documents based on which the claim petitions were filed in MVC.383/01 and 384/01 were concocted, fraudulent and forged documents which came into existence with the active help of Halgeri Police and also PW.3 and PW.4 independent witnesses who are pipped to give evidence in favour of the claimants.
16. As stated earlier, the deliberate act of ignoring these documents and failure to appreciate the same in proper perspective by the Presiding Officer of the Tribunal compels this Court to doubt the integrity of the Judicial Officer concerned in discharging his duties, which require further investigation into the matter as to how could the Judicial Officer of the Tribunal turn a blind eye to these 16 kind of documents and proceed to allow the fraudulent claims without properly scrutinizing the same in the right perspective. Hence, the Registry is directed to place this matter before the Hon'ble Administrative Judge of the District concerned and also the Registrar (Vigilance) of this Court is directed to investigate into the matter and submit a report to take appropriate action in this behalf.
17. It would suffice to say that the grounds urged in the appeal filed by the Insurance Company appears to be just and proper as the entire documents based on which the claim petition is filed are forged documents which have come into existence with the active involvement of the police and the claimants, which is required to be set aside. In the result, the appeal filed by the Insurance Company is allowed. The claim petition filed by the legal representatives of the deceased Shiddayya Talawar is dismissed.
18. The Registrar (Vigilance) of this Court is directed to investigate into the manner in which the claim 17 petition is prosecuted and disposed of by the Presiding Officer of the Tribunal and a copy of this Judgment is also directed to be placed before the Hon'ble Administrative Judge of the concerned district within whose jurisdiction the Presiding Officer is discharging his duty at present, so that appropriate disciplinary proceeding could be initiated against him to see that in future such fraudulent claim petitions are not entertained.
19. In view of the appeal being allowed and the judgment and award passed by court below is set aside, the statutory deposit made by the appellant-Insurance Company is ordered to be refunded to it.
SD/-
JUDGE Sub/