Karnataka High Court
The Branch Manager, vs Devendrappa S/O. Siddappa Ganagal on 30 May, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
MFA. No.20331/2012 (MV)
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO.LTD.,
BRANCH OFFICE, 1ST FLOOR,
PARVATHI NAGAR, MAIN ROAD,
BELLARY, NOW REPORESENTED BY
THE DEPUTY MANAGER
REGIONAL OFFICE,
NATIONAL INSURANCE CO.LTD.,
SUJATHA COMPLEX,
P.B.ROAD HUBLI.
.. APPELLANT
(BY SRI.SURESH S. GUNDI, ADV.)
AND:
1. DEVENDRAPPA S/O SIDDAPPA
GANADAL, AGE: 26 YEARS
OCC: COMPOUNDER
R/O: HIREKHEDA, TQ: GANGAVATHI,
DIST: KOPPAL.
2. HEERA NAIK S/O THOTLY NAIK
AGE: 42 YEARS, OCC: DRIVER
OF TRACTOR BEARING
NO.KA-17/T-7734
R/O: VINOB NAGAR, 3RD MAIN,
4TH CROSS, DAVANAGERE
2
3. T.R.LAXAMAPPA S/O HANUMANTHAPPA YALAVATHI
AGE: 46 YEARS, OCC: OWNER OF TRACTOR BEARING
NO.KA-17/T-7734
R/O: JIGALI, TQ: HARIHAR,
DIST: DAVANAGERE.
(SINCE DECEASED BY HIS LR'S)
3A. HANUMAVVA W/O T.R.LAXMAPPA
AGE: 75 YEARS, OCC: NOT KNOWN
R/O: # 335, YALAVATTI-2, HARIHARA
DAVANAGERE-577530.
3B. T.L.ANJANAPPA S/O T.R.LAXMAPPA,
AGE: 39 YEARS, OCC: NOT KNOWN
R/O:#335, YALAVATTI-2, HARIHARA,
DAVANAGERE-577530.
3C. T.L.SHANTHAKUMAR S/O T.R.LAXMAPPA,
AGE: 35 YEARS, OCC: NOT KNOWN,
R/O:#335, YALAVATTI-2, HARIHARA,
DAVANAGERE-577530.
3D. RADHA D/O T.R.LAXMAPPA
AGE: 27 YEARS, OCC: OCC: NOT KNOWN,
R/O:#335, YALAVATTI-2, HARIHARA,
DAVANAGERE-577530.
3E. JOTI D/O T.R.LAXMAPPA ,
AGE: 26 YEARS, OCC: NOT KNOWN,
R/O:#335, YALAVATTI-2, HARIHARA,
DAVANAGERE-577530.
3F. SUMA D/O T.R.LAXMAPPA,
AGE: 15 YEARS, OCC:NOT KNOWN,
R/O:#335, YALAVATTI-2, HARIHARA,
DAVANAGERE-577530.
(SINCE MINOR R/BY R3A)
...RESPONDENTS
(SMT. SUNITA P.KALASOOR ADV. FOR R1)
(SRI.S.S.NIRANJAN, ADV. FOR R3(A-E)
(R3F IS MINOR RBY R3A)
(V/O/DTD:12.06.2017, NOTICE TO R2 DISPENSED WITH)
3
THIS MISCELLAN EOUS FIRST APPEAL IS FI LED
UNDER S ECTION 173( 1) OF MV ACT , A GAINST THE
JUDGMENT AND AWA RD DATED 21.0P7.2011, PASS ED
IN MVC NO.163/2010 ON THE FILE OF THE SENIOR
CIVIL J UDGE AND MEMBER, MACT, GANGAVATHI ,
AWARDING THE COM PENSATION OF RS .3,40,340/-
WITH INTEREST AT THE RATE OF 6%P.A . FROM THE
DATE OF PETITION TILL REALIZATION .
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The third respondent insurer in MVC No.163/2010 on the file of Senior Civil Judge and MACT,Gangavaithi has come up in this appeal impugning the judgment dated 21.07.2011 challenging the liability.
2. The brief facts leading to this appeal are that first respondent herein and another person by name Mohammed Azam met with an accident while travelling on motorcycle bearing registration No.KA36/R-9419. The said accident has taken place on 22.11.2009 at about 7.30 p.m. near Algilavada cross, Teligi village, Harapannalli taluka. In the said 4 accident Mohammad Azam died on the spot and first respondent herein suffered grievous injuries. The complaint in that behalf was lodged with police on the next day early morning 02.00 a.m. i.e., in the intervening night of 22nd and 23rd of November 2009. The person who lodged complaint is one Mahbub Sab @ Babusab Maniyar who is relative of deceased Mohammed Azam.
3. According to him the accident has taken place due to hit by an unknown vehicle. In the complaint the type of the vehicle is not mentioned, number of the vehicle is not mentioned and there is clear recital that the accident is caused by unknown vehicle. The police after registering the complaint in the aforesaid manner proceeded to draw seizure panchanama on 14th December 2009 in seizing a tractor bearing registration No.Ka17/T-7734 on the premise that the 5 said vehicle has caused accident resulting in the death of Mohammed Azam.
4. In the entire police records there is not a piece of document which would indicate as to who informed the police about the said vehicle is the cause for accident, has not come on record. No statement is recorded and it is seen that the seizure panchanama is drawn within the premises of Telagi sub police station. It has not come on record how the said vehicle reached the premises of police station, whether it was brought by owner of the vehicle moving nearby, whether police went to seize the vehicle, if so where it was seized, from whom it was seized, and what type of the vehicle it was, has not been shown. What could be seen is a panchanama prepared in the presence of persons who have affixed their signatures on Ex.P4 and the seizure has taken place formally, within the premises of the aforesaid police station thereby 6 indicating that the vehicle was already taken to police station and kept there to be seized formally.
5. On perusal of entire police records, there is no reference as to who has informed with reference to the said vehicle being cause for the accident. On the basis of this seizure panchanama, the spot panchanama and other documents are prepared. Thereafter the vehicle was sent for MVI report. The document which is issued by motor vehicle department at Ex.P5 clearly shows that the motorcycle on which the first respondent was travelling has six damages in all. However the tractor which was identified nearly after one month as the vehicle which caused the accident did not even have any kind of damages on that at the time of inspection.
6. Based on these documents the police proceeded to file charge sheet against the owner of the said vehicle and also some other person as its driver 7 alleging that he was driving the said vehicle at the relevant point of time and thereafter the case is built in such a way that it is convenient for the legal heirs of deceased Mohammed Azam and injured Devendrappa to seek compensation.
7. In the Court below the witnesses were made to give evidence in the said proceedings to suit the requirements of the claim and thereafter the claim petitions are allowed.
8. It is seen that both the claim petitions which are filed by the legal heirs of Mohammed Azam and as well the claim petition filed by the Devendrappa tried independently and they are decided by separate judgments. The present appeal is confined to the judgment rendered in the claim petition which is filed by the injured Devendrappa, wherein the Court of MACT, Gangavathi, by accepting the police documents and other documents proceeded to hold that the 8 tractor bearing registration No.KA-17/T-7734 is the vehicle which has caused the accident and thereby saddled the liability on the insurance company to pay compensation to the extent of Rs.3,40,340/- payable with interest at 6% p.a.
9. Being aggrieved by the same, the insurance company has filed the present appeal and this appeal is opposed by the respondent claimant on various grounds. According to the claimant another claim petition which was filed by legal heirs of Mohammed Azam in MVC.No.187/2010 on the file of MACT, Gangavathi was allowed by judgment dated 15.09.2001. In that also an appeal was filed by the insurance company belatedly i.e., with delay of 232 days, and it is stated that the said appeal came to dismissed by this bench by order dated 16.10.2012. In fact that dismissal is purely on the ground of limitation, since the appeal was not filed in time, 9 wherein this Court has not looked into the merits of the case and this Court has observed that there was deliberate inaction on the part of the officers of the insurance company in not filing the appeal in time, with same serious observation against the conduct of the insurance officers the appeal was dismissed.
10. The grievance of the first respondent herein is that the insurance company has not chosen to challenge the said judgment of dismissal dated 16.10.2012 passed in MFA No.23871/2012 arising out of claim petition in MVC No.187/2010. When it comes to the present appeal, they are opposing the same. At first instance this Court would like to deal with merits of this appeal and thereafter deal with the connected matter in which the entire amount is paid by the insurance company to satisfy the claim.
11. Now coming to this appeal, as could be seen, the accident dated 22.11.2009 involving motorcycle 10 bearing registration No.KA-36/R-9419 in which Mohammed Azam died due to injuries suffered in the said accident and first respondent herein Devendrappa suffered grievous injury is not in dispute. It is also not in dispute that the complaint in that behalf was lodged on the intervening night of 22nd and 23rd of November 2009, wherein it is clearly stated that the cause of accident is an unknown vehicle. In the said complaint they not even specify the type of the vehicle which caused the accident. That would clearly say that an unknown vehicle hit the motorcycle on which the aforesaid two persons were travelling resulting in death of one of them and grievous injuries to another.
12. Thereafter, it is seen, nothing has been proceeded in this matter till seizure panchanama is drawn on 14th December 2009. As could be seen from seizure panchanama, it was a vehicle moving nearby 11 the place of accident bearing registration No.KA-17/T- 7734, a tractor belonging to second respondent and insured with third respondent, brought to the police station by the police and a farce seizure is done in drawing up seizure panchanama within the premises of the police station as if the said vehicle is seized in the police station before the panchas. Nowhere in the police records it would indicate as to how they came to know about the particulars of the tractor which caused the accident and who informed the same, when it was informed to the police and how did they apprehend the said vehicle. It is not forthcoming as to whether it was brought to the police station by the owner himself or whether the police went to seize the said vehicle in his residence. Thereafter charge sheet is filed as if the seizure is done by the police after investigation without giving particulars of said investigation, thereby clearly indicating hand of police 12 in planting the said vehicle and also creating documents for false and frivolous claim to be filed by the legal heirs of Mohammed Azam and injured Devendrappa to seek compensation from the insurer of the said vehicle which has got nothing to do with the accident in question.
13. Based on the false and frivolous police documents, the proceedings in both claim petitions were pursued which has resulted in compensation being awarded to the legal heirs of deceased Mohammed Azam and injured Devendrappa. As stated supra, the officers of the insurance company are not naive or innocent as it is made out to this Court while arguing this matter. There is clear nexus between the police, the claimants, Advocates, including the officers of insurance company in quietly satisfying the claim amount which is awarded in MVC No.187/2010. 13
14. In fact this has been taken as trump card by the counsel appearing for the first respondent and would try to argue that the claim is satisfied in one of the claim petition. Therefore it is not open for the insurer to persue the other claim petition, to support this line of argument, they rely upon the judgment rendered by this Court in the matter of B.U.Chaityana v/s Managing Director, BMTC Division. On going through the said judgment, this Court feel that the circumstances under which the aforesaid observation is made is required to be distinguished with the facts of the present case. In the matter of B.U.Chaitanya v/s Managing Director BMTC Division, there is no allegation of fraud, there is no fabrication of documents, there is no creation of evidence to support false claim by the claimants.
15. In that matter by accepting one set of facts award was passed in favour of some claimants. When 14 it comes to other claimants, the BMTC tried to raise technical objections which the Court did not accept, it was observed that, when once the BMTC has failed to raise objections at the first instance, it is not open for them to rely upon the same subsequently and to deny the benefit which is already extended to others in same accident. That principle would not apply to the case on hand, in as much as this Court is dealing with a fraudulent claim. The legal maxim fraud, unravels everything will have to be applied to the case on hand.
16. When once this Court has realized that fraud is committed by the claimants with the help of police and others, question of drawing parallel with any other judgment rendered under some other set of facts does not arise to show the fraud if it is committed and accepted should be continued in all other matters is unknown to legal principles hence 15 new trend cannot be set at this juncture to open the flood gate for scores of fraudulent case to go unhindered under the said order.
17. Therefore, this Court with utmost respect feel that the said judgment is not relevant to the facts on hand for the reasons discussed supra. Therefore in the fact situation the aforesaid judgment would not enure to the benefit of the first respondent. Hence, what remains in this appeal is, the judgment dated 21.7.2011 rendered in MVC No.163/2010 which is impugned in this appeal is required to be set aside and consequently the appeal of the insurance company should be allowed. Accordingly, this appeal is allowed.
16
18. In view of the appeal filed by the insurer being allowed, the amount in deposit is ordered to be refunded to the appellant insurer.
Sd/-
JUDGE RHR/-