Madras High Court
E.Pushparani vs A.R.Iyyappan ... 1St on 17 June, 2014
Equivalent citations: AIR 2015 (NOC) 515 (MAD.), 2015 AAC 19 (MAD)
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 17.06.2014
CORAM:
THE HONBLE MR. JUSTICE S. MANIKUMAR
C.M.A.Nos.2, 3, 408 and 409 of 2012
1. E.Pushparani
2. E.Subhasree
3. D.Rani ... Appellants 1 to 3 in
C.M.A.No.2 of 2012
Respondents 1 to 3 in
C.M.A.No.408 of 2012
4. S.Chitra
5. S.Charles (Minor)
6. S.Samuel (Minor)
7. P.Paul Peter
8. P.Beulah Jayanthi ... Appellants 1 to 5 in
C.M.A.No.3 of 2012
Respondents 1 to 5 in
C.M.A.No.409 of 2012
Vs.
1. A.R.Iyyappan ... 1st Respondent in CMA.Nos.2&3 of 2012
4th Respondent in CMA.No.408 of 2012
6th Respondent in CMA.No.409 of 2012
2. The United India Insurance
Co. Ltd., No.33, Whites Road,
Royapettah, Chennai 600 014. ...2nd Respondent in CMA.Nos.2&3 of 2012
Appellant in CMA.Nos.408 & 409 of 2012
The Civil Miscellaneous Appeals are filed under Section 173 of the Motor Vehicles Act against the judgments and decrees, dated 30.08.2011, made in M.C.O.P.No.715 and 716 of 2006, on the file of the Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai.
For Appellants in
C.M.A.Nos.2 & 3 of 2012 : Mr.M.Swamikannu
For 2nd Respondent in
C.M.A.Nos.2 & 3 of 2012 : Mr.S.Arun Kumar
COMMON JUDGEMENT
Alleging that on 09.07.2005, there was a collision between a Motorcycle, bearing Registration No.TN 02 T 3709 and an Auto Rickshaw, bearing Registration No.TN 07 C 7635, which resulted in the death of both the rider and pillion of the Motorcycle, two separate claim petitions in M.C.O.P.Nos.715 and 716 of 2006, have been filed by the legal representatives of the deceased, in the Motor Accident Claims Tribunal (II Court of Small Causes), Chennai.
2. The United India Insurance Company Ltd., has opposed the claim, contending inter alia that the Autorickshaw, insured with them, was not involved in the accident and that a fraudulent claim has been made. M/s.Vasu Associates, a Private Investigator of the Insurance Company, has written a letter, dated 16.07.2010, to the Insurance Company, stating that initially, a FIR has been registered against the driver of an unknown vehicle, under Sections 279 and 304(A) IPC. During investigation and on verification of the Accident Register No.170, dated 09.07.2005 (Sl.No.1901476), the Investigator has recorded that the injured met with a road transport accident, near Tansi Bus stop and that they were hit by a lorry.
3. In the said letter, dated 16.07.2010, the Private Investigator has also stated that the abovesaid fact of a lorry, dashing against a motorcycle, has been confirmed by the statement of Mrs.Lakshmi, W/o.Krishnan, GST Road, Peramanur, who is a resident, near the alleged place of accident, who had clearly given a statement that on 09.07.2005 A.N., she heard a sound and when she came out of her house, noticed that a two-wheeler was hit by a lorry, which sped away from the place of occurrence.
4. In the same letter, the Investigator has also stated that the inquest report and Post-Mortem report of Mr.Stephen Chelladurai, disclose that the rider and pillion of the motorcycle were crushed antero-posteriorily, leaving the entire skull bones fractured, and brain pulpy and therefore, the Investigator has stated that if an Auto-rickshaw was involved in the accident, there was no possibility that the front tyre of the auto could have caused such grievous injuries. If the rear tyre had run over the head, then, the autorickshaw itself, would have capsized. In the letter, the Investigator has further stated that there was no police report or hospital records, mentioning tyre mark of the autorickshaw, found in the head of the deceased.
5. The private investigator has further stated that the autorickshaw was not at all involved in the said accident. The said vehicle has been sold on 13.07.2005 to one Mr.Srinivasan, just four days, after the alleged accident and thereafter, it has been produced at the Regional Transport Office, Chennai South, on 28.07.2005, for effecting name transfer. Observations of the private investigator, is as follows:
1.It is clear from the the statement of eyewitnesses as well as the AR copy of Mr.Elangovan made at Government Medical College Hospital, Chengalpat, that the accident was caused by a lorry and not by autorickshaw as alleged in the petition.
2.The above fact is supported by the findings in the Inquest as well as in PM of Mr.Stephen Chelladurai, as it was mentioned that his head was crushed sideways, resulting in fracture of skull and brain being pulpy. This clearly indicates the involvement of heavy vehicle, as the possibility of autorickshaw running over the head of a person and causing such crush injury is remote.
3.It is also not out of place to mention that Mr.Elangovan, other deceased had died due to multiple injuries, including head injury, which indicates that it was a high impact collision, in which case the insured auto also would have sustained damages, if at all it was involved in the accident.
4.But it could be seen that the vehicle was sold within 4 days of alleged accident and presented to RTO for permit transfer within 5 days of purchase and name transfer with 15 days of purchase, indicating that the same was inspected and found to be in order by RTO authorities, confirming that the vehicle was in fit condition, thus negating the entire possibility of vehicle being involved in the accident.
5.Moreover the permit of the vehicle was issued allowing it to be used in Madurai-Kumuli-Kottayam, but it alleged that the vehicle was being used near Maraimalai Nagar, where the accident is said to have happened.
6. Before the Claims Tribunal, wives of both the pillion and rider of the motorcycle, have examined themselves as Pws.1 and 2 respectively. PW.3 is stated to be an eye-witness to the accident. Ex.P1 FIR, Ex.P2 Post-Mortem Certificate of Stephen Chelladurai, Ex.P3 Legal Heirship Certificate, Ex.P4 Final Report, Ex.P5 Driving Licence of Stephen Chelladurai, Ex.P6 Post Mortem Certificate of Elangovan and Ex.P7- Legal Heir Certificate, have been marked on the side of the claimants. On behalf of the Insurance Company, three witnesses have been examined as Rws.1 to 3 and the Company has marked documents, such as, Ex.R1 Authorisation Letter of RW.1, Ex.R2 FIR, Ex.R3 Accident Register, Ex.R4 Authorisation Letter of RW.2, Ex.R5 Complaint to CBCID and Ex.R6 Investigation Report.
7. On evaluation of pleading and evidence, the Claims Tribunal held that the driver of the Autorickshaw, bearing Registration No.TN 07 C 7635, insured with the Insurance Company, was negligent in causing the accident and accordingly, quantified the compensation to the legal representatives of the deceased, as follows:
Heads of Award
M.C.O.P.No.715 of 2006
M.C.O.P.No.716 of 2006
Dependency
Rs.6,48,000/-
Rs.6,12,000/-
Loss of Love and Affection
Rs.60,000/-
Rs.1,00,000/-
Loss of Consortium
Rs.10,000/-
Rs.10,000/-
Funeral Expenses
Rs.10,000/-
Rs.10,000/-
Total
Rs.7,28,000/-
Rs.7,32,000/-
8. Contending that by implicating an Autorickshaw, bearing Registration No.TN 07 C 7635, insured with the Insurance Company, Mr.S.Arunkumar, learned counsel for the Insurance Company submitted that the claimants have filed petitions, by playing fraud on the Court. Finding fault with the Claims Tribunal, for its failure to advert to the evidence adduced, on behalf of the Insurance Company, in proper perspective, by which, the Insurance Company has contended and proved that the Police was also a party to the fraud played by the claimants, to gain compensation against the Insurance Company and further contending, inter alia, that when Ex.P1 FIR, has been lodged against an unknown vehicle, the then Investigating Police Officer, has committed fraud and colluded with the claimants, furnished Ex.P4 Final Report, stated to have been prepared and which was not even submitted to the Court of competent Criminal jurisdiction, Mr.S.Arun Kumar, learned counsel for the Insurance Company has sought for reversal of the impugned judgment and decrees made in M.C.O.P.No.716 of 2006, dated 30.08.2011, on the file of the Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai.
9. Record of proceedings shows that on 07.02.2012, this Court has granted interim stay of the judgment and decrees in M.C.O.P.Nos.715 and 716 of 2006, dated 30.08.2011. Vide order, dated 18.06.2012, in M.P.Nos.2 of 2012, this Court has passed the following orders,
3. According to the learned counsel for the appellant, CBCID enquiry is pending with regard to the involvement of the vehicle in question. Apart from this, according to the learned counsel, though a stand has been taken by the learned counsel for the respective claimants that a criminal case has been filed as against the driver of the Auto, ie., the vehicle in question, when a copy application in Cr.No.395 of 2005, was filed on 25.04.2012, the concerned Court has returned the same with the following endorsement:
Returned:-
(2) On perusal of the case records no
charge sheet filed till date.
Hence returned.
Apart from this, the stand of the learned counsel for the appellant is that there is involvement of the Auto in question.
4.But, according to the learned counsel for the respective claimants even as per the evidence of the appellant Insurance Company also, the complaint itself was not lodged till 11.02.2011. Apart from this, according to the learned counsel, the cases are fatal in nature and the claimants include wife and children of the deceased, consequently, the miscellaneous petitions have to be allowed and the petitioners in the miscellaneous petitions should be permitted to withdraw the amount as prayed for.
5. This Court has considered the submissions of both the respective learned counsels.
6. When there is a CBCID enquiry with regard to the involvement of the vehicle in question, at this stage, this Court cannot permit the petitioners in these miscellaneous petitions to withdraw the amount as prayed for. However, the appellant Insurance Company is directed to take prompt steps to complete the CBCID enquiry and to reach a finality with regard to the same.
7. According to the learned counsel for the appellant, the Superintending of Police, District Crime Branch, Kancheepuram, is dealing with the inquiry pending before the CBCID.
8. Though the Superintendent of Police, District Crime Branch, Kancheepuram, is not a party before this Court, since in the cases on hand, the claim petitions have been filed by the claimants, including wife and children of the deceased persons, the Superintendent of Police, District Crime Branch, Kancheepuram, is directed to complete the enquiry, pending with regard to the vehicle involved, within a period of six months, from the date of receipt of a copy of this order and report to this Court in this regard.
10. Thereafter, on 01.03.2014, this Court directed the Superintendent of Police, District Crime Branch, Kancheepuram, to comply with the order of this Court, dated 18.06.2012 and submit a report. After completion of the investigation, the Superintendent of Police, Kancheepuram District, has submitted a report, dated 27.06.2013, to this Court on 05.03.2014. On that date, the Superintendent of Police, Kancheepuram District, has been directed to depute a responsible officer, dealing with Cr.No.395 of 2005 on the file of B5 Maraimalai Nagar Police Station and Cr.No.25 of 2012, on the file of District Crime Branch, Kanchipuram District and produce the entire CD files.
11. Earlier, Cr.No.395 of 2005, has been registered at the instance of the claimants. Subsequently, Cr.No.25 of 2012, has been registered, purusant to the directions issued by the Hon'ble Division Bench of this Court in W.P.No.1060 of 2009, dated 29.07.2010. Report, dated 27.06.2013, filed by C.Vijayakumar, Superintendent of Police, Kancheepuram District, reads as follows:
2. It is respectfully submitted that the brief Gist of the petition is as follows:-
Tmt. B. Illavarasi W/o Balasundaram, Deputy Manager of the United India Insurance co Its in her complaint preferred before CBCID, Chennai stated that on 09.05.2005 at 16.30 hours near TNASI Bus stand, Marimalai Nagar towards chengalpet from Chennai deceased persons, namely Stephen Chelldurai and Illangovan travelled in a two wheeler (TVS Susuki - Max 100 bike) bearing registration No. TN- 02-T - 3709, at that time a unknown heavy vehicle came behind the above said two wheeler hit them and run away, due to the above accident the rider of the two wheeler namely Stephen chelladurai succumbed to the head injury. The Pillion rider of the vehicle - Illangovan died on the way to the hospital. The wives of the deceased persons made claim for the compensation from the United India Insurance & co by way of false claim to add an Auto instead of Lorry to get compensation.
Hence the Defacto complainant preferred a complaint before the CB CID, Chennai.
The Superintendent of Police, Kancheepuam District had received the above complaint from Tmt. B.Illavarasi, Deputy Manager of United India Insurance Company ltd., Regional office, Chennai (Motor TP HUB Department) dated 3.2.2012 and the same was endorsed vide C.No.Q2/251/15434/2012. Then the Previous Superintendent of Police, Kanchipuram gave appropriate directions to the concerned unit Viz the District Crime Branch, Kancheepuram for taking suitable action in this regard.
3. It is submitted that based on the direction of this Honble Court, Madras vide MP Nos. 2 and 2 of 2012 in CMA Nos. 408 and 409/2012 deited 1.3.2013 to file a report as called for in respect of Crime No.395/2005 and 25/2012 and I am filing this report before this Honble High Court, Madras.
4. It is submitted that in respect of the Crime No.395 of 2005 on the file of the D6 - Marimalai Nagar Police station, Kancheepuram District that on the complaint of one Tr. Paul Peter a preliminary enquiry was conducted by Tr. S. Sarangapani, the Sub Inspector of Police, and a case was registered in Maraimalai P.S. Crime No. 395/2005 under sections 279, 304(a) of IPC and investigation was taken up by Tr. Alagarsamy then Inspector of Police. He has examined the witnesses and recorded their statements and also conducted inquest. Later he was transferred. Subsequently Tr. Krishnan, Inspector of Police took up the further investigation of the case.
On 23.08.2005 he arrested one R.Boopalan, Auto Driver of the auto bearing Registration No TN - 07-C-7635 and sent for Judicial Custody. On Perusal of the above CD file of the Maraimalai Nagar it shows that the charge sheet was prepared on 20.09.2005. But the original CD files arc capers are found missing the carbon copy alone remain in the CD files and also the same was not filed before the concerned Jurisdictional Court.
5. It is submitted that as far as the DCB, Kancheepuram Crime No.25 of 2012 is concerned, based on then Superintendent of Police direction, Tmt.N.Nirmala Rani, Sub Inspector of Police, District Crime Branch, Kancheepuram District registered a FIR in DCB Kancheepuram Crime No.25 of 2012 under Section 420 IPC on 25.4.2012 at 11.00 hours and she took up the investigation.
6. It is submitted that based on the above complainant, Tmt. Nirmala Rani, the Sub - Inspector of Police, during the course of the investigation examined the following witnesses and recorded their statements.
1.Tmt. Ilavarasi, Defacto complainant
2.Tmt. Muthulakshmi, Eye Witness
3.Tr. Gunasekaran, Eye Witness
4.Tr. Kumresan, owner of the bike involved in the accident
5.Dr. Parasakthi, Postmortem Doctor, G.H., Chengalpet
6.Tr. Sriram, Investigator
7.Tr. Soundarrajan, Investigator
8.Tr. Srinivasan, Relative to the Accused
7. It is submitted that on 27.05.2013 at 08.00 hours S.I Tmt. Nirmala Rani, arrested one A.R. lyappan(A2) who is the owner of the auto rickshaw, bearing Registration No. TN-07-C-7635 near; Chepauk in front of his house and remanded to Judicial Custody before the Honble Judicial Magistrate Court, Chengalpet.
The remaining accused persons Viz Boopalan (A-1), Tmt Pushparani (Petitioner/Accused), chitra(Petitioenr/Accused) & Krishnan(A5) are absconding.
The 164 Cr.P.C. statements of 1) Tmt.Muthulakshmi 2) Tr.Gunasekar and 3) Tr.Sriram were recorded by the Learned Judicial Magistrate No.I, Chengalpet on 11.6.2013.
8. It is submitted that the investigation reveals that the accused had changed the vehicle i.e one auto in Crime No.395/2005 instead of a heavy vehicle (Lorry) to get claim and compensation and actually the accident took place because of the heavy vehicle and not because of the hit arc run by the auto which caused the death of person.
9. It is submitted that the Sub Inspector of Police, DCB Kancheepuram District after completion of the detailed investigation based on the examination of the witnesses and also material evidences, laid a charge sheet on 03.06.2013 against the accused (A-1 to A-5) for an offence under sections 420,511, r/w 109 IPC and submitted the same before the Jurisdictional Court (ie) Honble Judicial Magistrate Court No - II, Chengalpattu on 03.06.2013 in accordance with law. The above said case is yet to be taken on file.
12. Taking this Court through the impugned judgment and Ex.R6 Investigation Report, Mr.S.Arun Kumar, learned counsel for the Insurance Company has made following submissions:
(i)The FIR was lodged alleging unknown vehicle and in the accident register, it has been clearly stated that the accident has occurred, only due to hit by a lorry. Presence of PW.3 at the time of occurrence, is not proved through acceptable evidence.
(ii) If the autorickshaw has caused the accident, there would have been severe impact on the vehicle and as pointed out by the Investigator, the same could not have been sold within 4 days of the occurrence.
(iii) The deceased, Stepen Chelladurai, being an auto driver, there is every chance for the claimants, driver and insured colluding together to make an untenable claim against the appellant.
(iv) The permit of the Autorickshaw would not have been transferred by the Regional Transport Officer, within 5 days of the purchase, unless the autorickshaw was in fit condition. The said auto-rickshaw had permit to ply in Madurai-Kumli-Kottayam only and not at Maraimalai Nagar.
13. Per contra, Mr.Swamikannu, learned counsel for the claimants submitted that the claim petitions are genuine and the owner of the Autorickshaw, bearing Registration No.TN 07 C 7635, himself has accepted that the accident, was due to the negligence of his driver. He further submitted that the Claims Tribunal, after proper analysis of the oral and documentary evidence, has rightly fastened liability on the Company, the insurer of the Autorickshaw. He also submitted that Ex.R5 Complaint to CBCID and Ex.R6 Investigation Report have been prepared by the Insurance Company to avoid their liability to pay compensation to the accident victims. According to him, the Claims Tribunal has rightly overlooked the complaint made in the year 2011, after so many years, from the date of accident. He also made submissions for enhancement of compensation under various heads.
Heard the learned counsel for the parties and perused the materials available on record.
14. Perusal of the case diary produced by Smt.Nirmala Rai, Sub-Inspector of Police, present in the Court, shows that earlier, a case in Cr.No.395 of 2005 has been registered on the file of B5 M.M.Nagar Police Station, on the complaint of Mr.Paulpeter, one of the claimant in M.C.O.P.No.716 of 2006. Initially, investigation has been done by one Mr.Sarangapani, Sub-Inspector of Police. Thereafter, investigation has been taken up by one Mr.Alagarisamy and he has recorded the statement of witnesses. On his transfer, one Mr.Krishnan, Inspector of Police, has taken up the further investigation in Cr.No.395 of 2005. As per the entry in Ex.R3 Accident Register, Mr.Elangovan (Pillion Rider) of the Motorcycle, bearing Registration No.TN 02 T 3709, had been brought dead to the hospital at 4.30 A.M., on 09.07.2005. Doctors have recorded that it was the case of RTA, near Tansi Bus stop.
15. CD Files produced by the Police, further disclose that during investigation, the Police has examined Smt.Muthulakshmi and according to her, on 27.05.2013, a lorry dashed against the Motorcycle. According to the said witnesses, the lorry ran over the head of the deceased and said the vehicle sped away from the scene of occurrence. Material on record further discloses that when the Insurance Company has sought for a document, stated to be a certified copy of the charge sheet, dated 25.04.2012 and marked as Ex.P4, on the side of the claimants, by filing an application, before the learned Judicial Magistrate-II, Chengalpattu, the same has been returned by the Court, with an endorsement that, "On perusal of the case records no charge sheet filed till date. Hence, returned." Thus, it is evident that the final report, said to have been prepared by the then Investigating Officer, Mr.Krishnan, was not filed in the Court of competent Criminal jurisdiction and it is not known, as to how, the claimants could lay their hands, to the said report and the inevitable conclusion is that the Police, who had been investigating Cr.No.395 of 2005, has parted with an official record.
16. The Superintendent of Police, Kancheepuram District, has stated that a final report in Cr.No.395 of 2005, has been prepared on 20.09.2005, by those, who had conducted the investigation in Cr.No.395 of 2005 and it was not filed before the jurisdictional Criminal Court. CD files pertaining to Cr.No.395 of 2005 and 25 of 2012, on the file of District Crime Branch, Kancheepuram District, mentioned in the report of the Superintendent of Police, Kancheepuram District, further shows that when serious doubts were raised by the Insurance Company, as to the nature of injuries, particularly, the crush injury in the head, alleged to have been caused by the autorickshaw, the Sub-Inspector of Police, District Crime Branch, has addressed a letter, dated 30.04.2004, to the Professor and Forensic Surgeon, Government Hospital, Chengalpattu, seeking for a clarification, as to whether, there is a possibility of causing a severe crush injury in the head, if an Autorickshaw is involved. For better understanding, this Court deems it fit to extract the questions raised by the Investigating Officer and the answers given by Dr.P.Parasakthi, Police Surgeon & Professor, Department of Forensic Medicine, Chengalpattu Medical College, Chengalpattu, as follows:
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17. Police investigation has further revealed that for the Autorickshaw, bearing Registration No.TN 07 C 7635, allegedly involved in the accident, permission has been granted by the Transport Authorities, to operate the said vehicle, within Madurai-Madurai-Kumli-Kottayam-Kottayam and not in any other place. In the instant case, the place of accident is near Samiyar gate, Tansi Bus stop, within the limits of Peramanur village, on GST Road. The case diaries further show that the Police has filed a charge sheet in Cr.No.25 of 2012, on 03.06.2013, on the file of the learned Judicial Magistrate, Chengalpattu, against (1)A.R.Boopalan, Auto driver, (2)A.R.Iyappan, owner of the Autorickshaw, who has been arrested, (3)E.Pushparani, 1st claimant in M.C.O.P.No.715 of 2006, (4)Chitra, wife of Mr.Stephen Chelladurai, 1st claimant in M.C.O.P.No.716 of 2006 and (5)Krishnan, S/o.Subramanian. Accused Nos.1, 3 to 5 have absconded, till the date of filing of the charge sheet. The details of the charge sheet in Cr.No.25 of 2012, are as follows:
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United India Insurance Company Ltd., Regional Office, Siling Buildings No.134, Greems Road,
Chennai 6.
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Dr.jpU.guhrf;jp. M.D.,
Forensic Medicine Department, Chengalpattu, Medical College,
Chengalpattu,
Kanchipuram District.
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Translated version of the above, are as follows:
CHARGE SHEET
Charge sheet filed U/s.420, 420, 511 and 420, 511 r/w.109 IPC in Kancheepuram District, Crime Branch Cr.No.25/2012.
Accused
Absconding Accused
1. A.R.Boobalan,
S/o.M.A.Ramadoss,
No.165.F, Govt.Victoria
Hotel Block,
Triplicane, Chennai 05.
2. A.R.Iyappan
S/o.M.A.Ramadoss,
No.165.F, Govt.Victoria
Hotel Block,
Triplicane, Chennai 05.
3. E.Pushparani
W/o.late N.Elangovan,
No.42, M.G.R.Street,
76, Peramanur village,
Perungattur post,
Chengalpattu Taluk,
Kancheepuram.
4. Chitra
W/o.Stephen Chelladurai
No.13,Tank Street,
Peramanur village,
Perungattur post,
Chengalpattu Taluk,
Kancheepuram.
5. S.Krishnan
S/o.Subramanian
No.27, Santhanalakshmi Street,
Rajeswari Nagar,
Selaiyur, Chennai 73.
A1, found in the charge sheet is an Auto-driver. He is the driver of the autorickshaw bearing Registration No. TN07C7635. A2 is the owner of the vehicle bearing Registration No.TN07C7635. On 09.07.2005, at 16.30 Hrs, when Elangovan, husband of Pushparani, A3, found in the charge sheet, seated in the pillion of the two wheeler (TVS Suzuki TN02 T3709) and Stephen Chelladurai, husband of Chitra, A4 found in the charge sheet, riding the two wheeler were heading towards Chengalpattu from Chennai, at the place called Samiyar gate, near Tansi Bus stop, within the limits of Peramanur village, on GST Road, an unidentified vehicle which came in a rash manner behind the two wheeler, dashed on the rear side of the two wheeler, and Stephen Chelladurai, husband of A4-Chitra, who rode the two wheeler died on the spot with his head crushed and Elangovan, the husband of A3-Pushparani, who was seated in the pillion of the two wheeler, sustained multiple injuries, and died on the way to Government Hospital, Chengalpattu. Based on the complaint given by Thiru.Paul Peter, in this regard, a case (Hit and Run) was filed in M.M.Nagar Police Station Cr.No.395/2005 U/s.279, 304(A) IPC, and investigation was done to trace the vehicle, which caused the accident. The 1st accused and the accused Nos. 2, 3 and 4 taking advantage of the situation, wherein the vehicle which caused the accident could not be traced, in their favour, and the 1st accused and the 2nd accused with an intention to fraudulently receive the death compensation amount by cheating the United India Insurance Company, the 1st accused went to M.M.Nagar police station on 23/08/2005 along with the autorickshaw bearing registration No.TN07C7635 belonging to A2, and stated that the autorickshaw bearing No.TN07C7635 had caused the accident, and with the help of A5 Thiru Krishnan, Inspector of Police, handed over the autorickshaw and he also surrendered. Since all the four accused have committed a fraudulent act, resulting the wrongful monetary gain to them and wrongful monetary loss to United India Insurance Company, all the 4 accused have thus committed an offence punishable U/s.420 IPC. A3 Pushparani and A4 Chitra with a malafide intention to defraud United India Insurance Company, to receive wrongful monetary gain and to cause wrongful monetary loss to United India Insurance Company, A3 Pushparani filed MCOP No.715/2006 and A4 filed 716/2006 and made an attempt to obtain death compensation amount.
A5-Thiru Krishnan, found in the charge sheet had been working in Maraimalai Nagar Police Station from 10/4/2005 to 24/12/2005. On 23/8/2005, both A1 and A2 found in the charge sheet, came to Maraimalai Nagar Police Station and produced the autorickshaw bearing registration No.TN07C7635, which is not connected to the accident concerned in this case, before A5, abetting A3 and A4 in receiving wrongful Insurance amount, A5-Krishnan, Inspector of Police, abetted A1 and A2 in producing the wrong autorickshaw in this case and thus A5 has acted with an intention to defraud the Insurance Company.
Further, A5-Thiru Krishnan, Inspector of Police, abetted A3-Pushparani and A4-Chitra in their attempt to claim false death compensation amount. Therefore, A5-Krishnan, Inspector of Police, has committed an offence punishable U/s.420, 411 IPC r/w. 109 IPC. Therefore A3 and A4, A5 have committed offence punishable U/s.420 IPC r/w.511 IPC.
List of Witnesses and their Details
District Crime Branch Cr.No.25/2012 under Section 420 IPC. 420, 420, 511 and 420, 511 R/w.109 IPC.
Witness No.1
Tmt. Ilavarasi Age.52
D/o Balasundaram
United India Insurance Company Ltd.,
Regional Office, Silingi Building's No.134, Greams Road, Chennai - 6.
This witness will speak about the complaint given to the Police against the accused 1 to 4 who are alleged to have caused crime in this case and will also speak about the true facts concerned to this Case.
Witness No.2
Tmt.Muthulakshmi Age.25
W/o Senthil Kumar, GST Road,
Samiyar Gate, Peramanur.
This witness will speak about the Motor Vehicle accident which he had witnessed and will also speak about some more true facts of the case.
Witness
No.3
Thiru.Gunasekaran Age.50
S/o Arputham
No.72, GST Road, Peramanur,
Marai Malai Nagar,Kancheepuram Dt.,
This witness will speak about the occurrence which he had witnessed and also speak on behalf of the 2nd witness.
Witness
No.4
Thiru Kumaresan Age.38
S/o Chithirai
No.22, Union Road, Peramanur.
This witness is the owner of the Two Wheeler involved in the Motor Vehicle Accident and he will speak about the true facts of the case
Witness No.5
Dr.Thiru Parasakthi M.D.,
Forensic Medicine Department,
Chengalpattu Medical College,
Chengalpattu, Kancheepuram District.
This witness will speak about the postmortem conducted over the dead body of the husbands of A3 and A4 who died in the Motor Accident and the type of the Vehicle which caused the accident, and will speak about the truth of the case further he will identify the postmortem report, copy of the Accident register and the letter hand written by him.
Witness No.6
Thiru Sriram, Age.44
S/o Lakshmanan
No.12, V.G.N Street,
Dasarathapuram
Chennai - 93
This witness will speak on behalf of the United India Insurance Company, about the submission of the enquiry report regarding the enquiry of the genunity of the applications for obtaining death compensation amount filed by the 3rd and 4th Accused and will also speak about the true facts of the case. He will identify the Enquiry report.
Witness No.7
Thiru Soundarajan
S/o Ramu
No.12, V.G.N. Street,
Dasarathapuram, Chennai - 93
This witness will speak on behalf of the 6th witness.
Witness
No.8
Thiru Srinivasan Age.32
S/o.V.Subramani
No.140, G. Block, Loc Nagar,
Chepauk, Triplicane Chennai - 5.
This witness will speak about the surrender of auto which was involved in the accident, at M.M.Nagar Police Station, along with A1 and will also speak about some true facts of the case.
Witness
No.9
Thiru Rajendran
Special Sub Inspector
Maraimalai Nagar Police Station.
This witness is the Investigating officer of this case. He will speak about the documents related to the Motor Accident which was not found in the Police Station inspite of searching for it (M.M.Nagar No.395/2005u/s.279, 304 (A) IPC). Further, he will identify the letter dated 01.04.2013 and D.T.O.091900 dated 09.04.2013.
Witness No.10
Thiru Ganesan, Age 53,
S/o.Alagappan,
Regional Office, Chengalpattu.
This witness will speak about the non-availability of the Motor Vehicle Inspection Report, issued by the Regional Transport Officer, after inspecting the vehicle involved in the case in M.M.Nagar Crime No.395/2005 U/s.279, 304(A) IPC, when asked for by the Investigating Officer. Further he will identify the letter mentioning the non-availability of the report.
Witness No.11
Thiru Sarangapani
Sub Inspector (Retd)
No.5/13, Nadu Street, Periyanatham,
Chengalpattu.
He will speak about the complaint received in the case in Cr.No.395/2005 of Maraimalai Nagar P.S. Further he will identify the Original Complaint and the first Information Report.
Witness
No.12
Thiru Azhagar Sami Age.59,
Inspector (Retd.)
Thiruvannamalai.
He will speak about the first enquiry conducted by him in case in Cr.No.395/2005 u/s 304 (A) of Maraimalai Nagar Police Station and will also speak about the true facts.
Witness No.13
Thiru Murugan
Inspector, Maraimalai Nagar Police Station
Kancheepuram District.
He will speak about the Investigation conducted by Inspectors Azhagarsami and Krishnan in the case in Crime No.392/2005 u/s.304 (A) IPC, Maraimalai Nagar, and also the details of the Enquiry of the witnesses in the aforesaid case file and will explain about the case to the Crime Branch.
Witness No.14
Tmt.N.Nirmala Rani,
District Crime Branch,
Kancheepuram.
She will speak about the First Information Report filed based on the complaint given by the 1st witness and about the seizure of documents relating to the case, the recording of statements of the witnesses and about the charge sheet filed after completion of enquiry.
18. It is evident from the detailed investigation conducted by the CBCID Police that there is a clear nexus between the claimants, driver and owner of the Auto Rickshaw, bearing Registration No.TN 07 C 7635 and the then Investigating Police Officer, Mr.Krishnan, who has also been arrayed as the 5th accused in Crime No.25 of 2012. The claimants have played a fraud, in making a bogus claim for compensation and in that process, have also filed a copy of Ex.R4 - Final Report, dated 20.09.2005, prepared by the then Investigationg Officer, Mr.Krishnan, even before, it was filed in the Court of competent Criminal jurisdiction.
19. Material on record further discloses that within four days, from the date of accident, i.e., 09.07.2005, the autorickshaw has been sold to one Mr.Srinivasan and produced before the Regional Transport Officer, Regional Transport Office, Chennai (South) for effecting name transfer. If the vehicle, Autorickshaw, was involved in the accident and dashed against the Motorcycle, from behind, certainly, there would have been some damages to it. The Regional Transport Officer, would have certainly noticed the same. As per the reply of Dr.P.Parasakthi, Police Surgeon & Professor, Department of Forensic Medicine, Chengalpattu Medical College, Chengalpattu, the nature of injuries, particularly, the crush injury in the head, stated to have been sustained by one of the deceased, could not have been caused by an Autorickshaw.
20. As per Ex.R6 Investigation Report, Mr.Stephen Chelladurai, who died in the accident, was an Auto driver. The Investigator has also furnished a Death Report. From the CD files, produced by the Police and the report of the Superintendent of Police, dated 27.06.2013, it is abundantly clear that the said Autorickshaw has been roped in, to claim compensation. Both PWs.1 and 2 have not seen the accident. Investigation Report and the Charge Sheet filed in Cr.No.25 of 2012 respectively, under Section 420 Cr.P.C., makes it abundantly clear, as to how, the then Investigating Officer, Mr.Krishnan, Inspector of Police, in collusion with the claimants, has implicated R.Boopalan, an Auto driver, as if he had caused the accident, for the purpose of illegally aiding the claimants to receive compensation.
21. As per Ex.P1 - FIR, the accident has occurred on 09.07.2005, at 16.30 Hours. A complaint has been lodged by one Mr.Paulpeter, father of the deceased, at 22 hours, against an unknown vehicle. After 45 days, the Police, has arrested Bhoopalan, driver of the Auto Rickshaw, bearing Registration No.TN 07 C 7635. One Mr.Babu, PW.3, has deposed that he was a car broker and after witnessing the accident, he has given the vehicle number to a tea shop owner, near the place of occurrence. He has admitted that he has not given the number to the Police.
22. From the material on record, it could be deduced that PW.3, witness, has made a false statement to the Court. It should be noted that not in all the claim petitions, the Insurance Companies, prefer complaints to the Police, for a detailed investigation. In the case on hand, when specific allegations of fraudulent claim had been made, it is the duty of the Claims Tribunal, to examine the evidence, thoroughly, and come to a conclusion.
23. Based on the solitary evidence of PW.3 and Ex.P4 Final Report, prepared by the then Investigating Officer, Mr.Krishnan, not filed in the Court of competent Criminal jurisdiction, the Claims Tribunal, while rejecting Ex.R5 Complaint, submitted to the Inspector of Police by the Company, to investigate into the false claim, as belated, has arrived at a conclusion that the Insurance Company has attempted to protract the proceedings and deny the claim made by the legal representatives of the deceased. Though an entry in Ex.R3 Accident Register, which indicated involvement of a lorry in the accident, has been brought to the notice of the Claims Tribunal, it has rejected the same, as no evidence has been adduced by the Company, to show that who gave the particulars, for the preparation of Ex.R3 Accident Register. When a complaint has been given to CBCID, alleging fraud, the Tribunal, in exercise of its power, ought to have summoned the Police records, to verify the fact and more particularly, when the involvement of the vehicle itself, was disputed. A police complaint preferred by the Company, cannot simply be thrown out, by stating that it has no evidenciary value. It is well known that entries in the Accident Register, are made by the officials in discharge of their official functions.
24. The Claims Tribunal has bluntly refused to give credence to Ex.R5 Complaint to CBCID and Ex.R6 Investigation Report, by the Company and held that the Insurance Company has preferred a complaint, subsequently, only for the purpose of denying compensation, to the accident victims and that the same has no evidenciary value. There is no reason, as to why, the Claims Tribunal should doubt the bona fides of the complaint and reject the same, on the grounds that there was no evidence, as to who, gave the particulars, while, Ex.R3 Accident Register, was prepared.
25. Claim made in the year 2006, has culminated into an award on 30.08.2011. Material on record discloses that pursuant to the direction issued by the Hon'ble Division Bench of this Court in W.P.No.1060 of 2009, dated 29.07.2010, the Superintendent of Police, Crime Branch CID, SZ, Chennai, in Rc.No.C6/108366/2011, dated 19.01.2012, has sent a letter to the Divisional Manager, National Insurance Company Ltd., Puducherry, requesting the latter to approach the District Police, in this regard. He has also returned the complaint, dated 09.11.2011. The Superintendent of Police, ought not to have returned the complaint. He should have forwarded the same to the concerned police, to enquire into the same.
26. Thereafter, the Superintendent of Police, District Police Office, Kancheepuram, has endorsed the complaint, which resulted in unearthing the fraud, committed by the claimants, in active collusion with the driver, owner of the Auto Rickshaw, bearing Registration No.TN 07 C 7635 and Mr.Krishnan, the then Investigating Police Officer. Fraud on the Court, by implicating an Autorickshaw, after 45 days, from the date of accident, for the purpose of claiming compensation, is per se apparent.
27. On the aspect of playing fraud on Court, this Court deems it fit to extract few decisions of the Apex Court.
(i) In S.P.Chengalvaraya Naidu v. Jagamath reported in 1994 (1) SCC 1 = 1994 (1) LW 21, the Supreme Court held that a person whose claim is based on falsehood, has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. At Paragraph 6, it held as follows:
"A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage...... A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
(ii) In A.V.Pappayya Sastry v. Govt., of Andra Pradesh reported in 2007 (4) SCC 221, the Supreme Court, held that,
"22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or orderby the first court or by the final courthas to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
(iii) In State of Andhra Pradesh and Anr. v. T. Suryachandrarao reported in AIR 2005 SC 3110, the Apex Court observed thus:
'Fraud' as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which includes the other person or authority to take a definite determinative stand; as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation, may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded, may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void anticipatory bail initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
28. As per the Charge Sheet filed by the Police, after a thorough investigation, in Cr.No.25 of 2012, A.R.Boopalan, Auto driver, E.Pushparani, 1st claimant in M.C.O.P.No.715 of 2006, Chitra, wife of Mr.Stephen Chelladurai, 1st claimant in M.C.O.P.No.716 of 2006 and Mr.Krishnan, S/o.Subramanian, Accused Nos.1, 3 to 5, were absconding, which shows that they are deliberately delaying the trial. The then Investigating Police Officer, Mr.Krishnan, has been made as an accused in the commission of offence, illegally aiding the claimants to make a fraudulent claim, for compensation. On evaluation of pleadings and evidence, this Court is of the view that bogus claims made by the claimants, ought to have been rejected by the Claims Tribunal.
29. Going through the entire records and the report of Mr.C.Vijayakumar, Superintendent of Police, Kancheepuram District, this Court is of the view that the claimants, who played fraud on the Court, are not entitled to any equitable relief. The Tribunal has committed an error, in fastening liability on the Company, by not appreciating the evidence in proper perspective.
30. In the result, the Judgment and Decrees made in M.C.O.P.No.716 of 2006, dated 30.08.2011, are set aside. Hence, C.M.A.Nos.408 and 409 of 2012, are allowed. Consequently, C.M.A.Nos.2 and 3 of 2012, filed for
enhancement are dismissed, with costs of Rs.10,000/-, to be paid by the claimants, in each M.C.O.P., to the Insurance Company. Consequent to the judgment made in these appeals filed by the Insurance Company, the amount stated to have been deposited to the credit of M.C.O.P.No.715 and 716 of 2006, on the file of the Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai, the Insurance Company is permitted to withdraw, by making necessary applications before the Claims Tribunal.
17.06.2014
31. After the pronouncement of the judgments, Mr.Swamikannu, learned counsel for the claimants in both the appeals, sought for special leave, to file an appeal to the Hon'ble Supreme Court. This Court is not inclined to grant the same, as the decision rendered in these appeals, is on facts and no substantial question of law, is involved.
17.06.2014
Index: Yes
Internet: Yes
skm
S. MANIKUMAR, J.
skm To The Motor Accidents Claims Tribunal (II Court of Small Causes), Chennai.
C.M.A.Nos.2, 3, 408 and 409 of 2012 17.06.2014