S.N. Satyanarayana, J.
1. These two appeals are filed impugning the judgment and award dated 15.04.2017 in M.C.No.2690/2016 on the file of Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru (SCCH-16).
2. The appeal in M.F.A. No.5499/2017 is by the second respondent-insurer before the Tribunal. The appeal in M.F.A. No.5889/2017 is by the claimant-Thimmanna T. before the Tribunal. The appeal by the second respondent-insurer is in challenge to the liability, inasmuch as the accident involving vehicle insured with the insurer itself is in challenge. So far as the appeal by the claimant is in seeking enhancement of the compensation awarded by the Tribunal.
3. Brief facts leading to filing of these two appeals are as under:
The Trial Court records which are secured would indicate following particulars namely, on 22.03.2015 at about 7.00 p.m., claimant-Thimmanna T. was proceeding towards his pomegranate garden on motorcycle bearing Registration No. KA-50-R-7042. According to him, an unknown motorcycle bearing Registration No.KA-06-EP- 1468 coming from opposite direction hit him and sped away from the spot. Thereafter, the claimant, who was lying on the road was shifted to local Government Hospital at Sira where he was given initial treatment. Subsequently, on the advice of the doctor at Government Hospital, Sira, he was shifted to M.S. Ramaiah Hospital at Bengaluru where he was inpatient for 43 days from 22.03.2015 to 01.04.2015 initially and subsequently, it is stated that he was readmitted on the very next date namely, 02.04.2015 and discharged on 01.05.2015. It is stated that he has taken prolonged treatment.
4. Further, he has also taken treatment for two days on 10.05.2015 and 11.05.2015 in Narayana Heart Centre thereby, clearly indicating that the claimant before the Tribunal has suffered grievous injuries in the accident involving his motorcycle and another unknown motorcycle for which he has taken treatment not only in Government Hospital at Sira for the first time, but also in M.S. Ramaiah Hospital, Bengaluru for 43 days and in Narayana Heart Centre for two days.
5. Thereafter, it is seen that claim petition is filed by the claimant seeking compensation for the injuries suffered by him. The claim petition is filed against the owner of motorcycle bearing Registration No. KA-06-EP- 1468 and its insurer namely, United India Insurance Company Limited. In the said proceedings, the documents which are produced would reveal that the complaint regarding accident was filed by the son of the claimant on 25.03.2015 at 3.15 p.m. in Pattanayakanahalli Police Station where the complaint is registered in Crime No.47/2015. The said FIR would indicate, accident having taken place on 22.03.2015 at 7.00 p.m., while the victim was riding motorcycle bearing Registration No. KA-50-R- 7042, he was hit by unknown motorcycle.
6. The reason for filing the complaint belatedly is that, immediately after the accident, victim was taken to different hospitals and it is in this background, the complaint is registered belatedly. It is seen that the complaint is investigated by Sub-Inspector of Police Pattanayakanahalli Police Station, who has filed charge sheet in C.S.No.58/2015 on 06.06.2015 vide Ex.P3 which would indicate that one Lakshmikanth, rider of motorcycle bearing Registration No.KA-06-EP-1468 has caused the accident. There is nothing on record to indicate, who informed the Investigating Officer about the accident and in what manner, the accident has taken place.
7. To analyze this, if we look into the records, the first of the mahazar which is drawn for seizure of the vehicle which has caused the accident is at Ex.P5 dated 20.04.2014 in the beginning, as if the mahazar is recorded on that day. However, in the end of the mahazar, the date is shown as 22.03.2015. Even assuming for a moment that there is a mistake in writing the year and accepting that mahazar is drawn on 20.04.2015, the moot point that arise is, until 20.04.2015 i.e., for nearly 28 days, the particulars regarding the accident was not available to the police.
8. In this background, when the evidence of P.W.1, the victim is seen, he would state that on the next date of the accident, he came to know about the particulars of the vehicle which caused the accident. According to him his son was given said information by one Junjanna over telephone. However, there is no reference to the same being either informed to the hospital authorities or to the police, while lodging the complaint on 22.03.2015.
9. Admittedly, the complaint is registered three days after the accident. If the evidence of P.W.1 should be believed, then, there is absolutely no reason as to why he did not include the vehicle number and also the particulars of the owner and driver of the offending vehicle when the complaint was lodged on 25.03.2015 and he knew about the particulars on 23.03.2015 itself.
10. The fact which is not in dispute is that, as held in several judgments, whenever a victim of the accident is taken to the hospital, more particularly, the Government Hospital, the first thing that the duty doctor would do is to register the case in Medico Legal Case dairy and the same would be informed to the Jurisdictional Police.
11. In the instant case, admittedly, the victim was initially taken to Government Hospital, Sira on the same day, immediately after the accident. However, there is no reference to the information regarding accident being conveyed to the Jurisdictional police namely, Pattanayakanahalli Police, within whose limits the accident has taken place. The said police was unaware of the accident until the complaint was lodged by the claimant's son on 25.03.2015 at 3.15. p.m.
12. Now coming to the police documents, what baffles the Court is, assuming for a moment, the person who caused the accident is known to the claimant, why he did not inform the same to the police and why the police waited up to 20.04.2015 for recording the seizure panchanama and thereafter to proceed with the further investigation. All these would clearly indicate that the motorcycle bearing Registration No. KA-06-EP-1468 is planted in this proceedings.
13. As could be seen from the written statement filed by the first respondent-owner of the vehicle before the Tribunal, he would state that the accident is caused due to rash and negligent driving of the claimant, who was rider of motorcycle bearing Registration No. KA-50-R- 7042. He would also state that, at the relevant point of time, he was riding the motorcycle cautiously. If that is the case, why he did not lodge the complaint with the police against the person, who was riding the motorcycle in rash and negligent manner and caused accident to the vehicle of the first respondent. He also does not disclose as to when the police summoned him and secured the said vehicle.
14. All these would clearly indicate that entire episode reeks in fraud and manipulation with the assistance of the police and owners of both the vehicles. It is seen that they have presumed the Courts would accept any kind of lie which is uttered and accept the same. In fact, it is seen, when all these documents are placed before the Tribunal, it has conveniently turned a blind on all these anomalies in the documents as well as the manner in which the accident is explained.
15. Be that as it may, when this Court has taken up the entire material for reassessment, the fraud is unraveling in such a manner that the role of each one of the parties involved namely, the claimant, first respondent, Sub-Inspector of Police of Pattanayakanahalli Police Station, who has filed the charge sheet vide Ex.P3, who is identified as Purushottama G. would clearly indicate that this is nothing but a systematically and clandestinely done act in creating fake and false documents to assist the claimant, who is unfortunate victim of an accident caused by his own negligence which is tried to be converted into an accident caused by the negligence of the first respondent, who has happily lent his name and vehicle to the said fraud.
16. In the aforesaid circumstance, we are of the considered opinion that the finding of the Tribunal in holding that the accident is caused due to rash and negligent driving of Lakshmikanth, rider of motorcycle bearing Registration No.KA-06-EP-1468 cannot be accepted. Consequently, the liability to pay compensation which is quantified by the Tribunal being saddled on the insurer of the vehicle is set aside. Accordingly, the appeal filed by the insurer in M.F.A.No.5499/2017 is allowed. At this juncture, we would also like to observe that "fraud and justice cannot dwell together simultaneously, one of the two should prevail."
17. Now coming to the appeal filed by the claimant in M.F.A.No.5889/2017 is concerned, this Court would hold that the said appeal cannot be entertained, inasmuch, assessing the compensation against the insurer in the first place itself was erroneous. Therefore, the question of considering the appeal filed by the claimant for enhancement of the compensation does not arise. Accordingly, the appeal filed by the claimant in M.F.A.No.5889/2017 is dismissed. However, liberty is reserved to the claimant to approach his friend in the crime in creating the fraudulent documents, based on which he has the filed claim petition to secure compensation awarded against him.
18. While dismissing the appeal in M.F.A.No.5889/2017, cost of Rs. 50,000/- is imposed which shall be recovera
Please Login To View The Full Judgment!
ble from the claimant-appellant in M.F.A.No.5889/2017. 19. In this proceedings, it is stated that a Coordinate Bench of this Court is said to have passed an order on 25.10.2017 for release of a sum of Rs. 8,00,000/- in favour of the claimant. The said order was passed to protect the interest of the claimant and the same was passed, before it has come to the knowledge of this Court the fraud played by him. In the instant case, it is seen that the claimant is a well-to-do business man, who is running a fertilizers business. Therefore, the appellant-insurance company in M.F.A.No.5499/2017 is entitled to forthwith recover a sum of Rs. 8,00,000/- released in his favour with interest at 6% per annum from the date of release till date of recovery by filing execution. As and when the execution petition is filed for recovery, the Tribunal shall issue warrant for recovery of the same by seizure and sale of any of movable and immovable property and if there is any resistance for such recovery, the Tribunal is at liberty to order arrest of the claimant as well.