Abdul Samad vs Muddarayappa Muddaraya and Others

S.N. Satyanarayana, J.—The owner and insurer of goods auto bearing registration No. KA-06/B.0241, who are respectively respondent Nos. 1 and 2 in MVC. Nos. 1175/2009 and 1176/2009 and MVC. No. 65/2009 have come up in these three appeals. MFA. Nos. 5825/2011 and 5826/2011 are filed by the owner of goods auto challenging the judgment and award passed in MVC. Nos. 1175/2009 and 1176/2009 on the file MACT, Bengaluru, in fastening liability to pay compensation on him. Whereas MFA. No. 1163/2013 is filed by the second respondent insurer in MVC. No. 65/2009 challenging the liability fastened on it by the MACT, Madhugiri. Brief facts leading to the filing of these three appeals are as under:

"The case of claimants before the tribunal is that on 18.12.2008 at about 5.00 p.m., in the evening three persons were said to be walking on the road, one of them is Narasimhamurthy alias Narasappa accompanied by Ramachandrappa alias Ramanna and Muddarayappa Muddaraya. The complaint, which is filed on 19.12.2008 at about 10.30 a.m., would indicate that when the aforesaid three persons were walking, they were hit by the luggage/goods auto bearing registration No. KA-06/B.0241 injuring all the three claimants. Subsequently, Narasimhamurthy is said to have succumbed to the injuries caused in the said accident while he was under treatment at NIMHANS. Hence, his widow and children have filed claim petition in MVC. No. 65/2009 on the file of MACT, Madhugiri seeking compensation for his death from the owner and insurer of offending auto. It is seen that the other two injured, namely Ramachandrappa and Muddarayappa have independently filed two claim petitions in MVC Nos. 1175/2009 and 1176/2009 on the file of MACT, Bengaluru, seeking compensation for the injuries suffered in the aforesaid road traffic accident.

(i) The claim petitions filed by Ramachandrappa and Muddarayappa are decided by common judgment dated 6.4.2011, wherein the tribunal at Bengaluru while awarding compensation for the injuries suffered by them has saddled the liability to pay compensation on the owner of goods auto under the presumption that the accident is caused when claimants were travelling as inmates in goods vehicle and the goods vehicle not being permitted to carry passengers in it, the insurance company is absolved of its liability to pay compensation. Being aggrieved by the said finding the owner has come up in two appeals i.e., in MFA. Nos. 5825/2011 and 5826/2011 challenging the liability fastened on him to pay compensation.

(ii) However, it is seen that the claim petition which was filed by the family members of Narasimhamurthy in MVC. No. 65/2009 came to be allowed by the MACT, Madhugiri, in accepting that the accident has taken place due to rash and negligent driving of goods auto resulting in the pedestrian namely Narasimhamurthy succumbing to the injuries. As such, the family members are entitled to receive compensation from the insurer in the said proceedings. Being aggrieved by said finding of tribunal that at the relevant time of accident Narasimhamurthy was a pedestrian, the insurer of goods auto has come up in appeal in MFA. No. 1163/2013."

Though all these three appeals have come up for admission, since they are arising out of the same accident i.e., accident said to have taken place on 18.12.2008, all the three appeals are taken up together primarily to consider the divergent finding rendered by MACT, Bengaluru and MACT, Madhugir, wherein the finding of MACT, Madhugiri is to the effect that goods auto has hit the deceased, who was a pedestrian on the road and the finding of MACT, Bengaluru is that the injured were inmates of goods auto and not pedestrians. Therefore, the limited point that arise for consideration in these appeals is the status of deceased and injured at the relevant time of accident as to the pedestrians or inmates of offending goods auto bearing registration No. KA-06/B.0241 owned by the appellant in MFA. Nos. 5825/2012 and 5826/2012 and insured with appellant in MFA. No. 11163/2013.

Heard the learned counsel appearing for the appellants in all the three appeals. Though the claimants are on record, they are formal parties, inasmuch as they are not challenging the quantum of compensation, which they have accepted and what is to be decided on their behalf is from whom they should receive compensation. Perused the pleadings oral and documentary evidence available on record with reference to judgment impugned as well as grounds of appeals.

"(i) Now coming to the police documents available on record, the complaint would indicate that one Ranganath, the complainant is said to have witnessed the accident while walking on the road along with Lal Basha. It is he and said Lal Basha who shifted all the three claimants initially to Government Hospital, Madhugiri and thereafter, they have taken Narasimamurthy, who was more seriously injured to Tumkur and from there he is shifted to NIMHANS. The other two injured are treated at Government Hospital, Madhugiri. The complaint would also indicate that the driver, who hit the pedestrians allowed the auto to fall on road and ran away from the place of incident. The police documents, which are available on record would support the same.

(ii) However, there are two other documents, which are, intimation to police from claimants and another is generated from NIMHANS, which would indicate that at the time of accident deceased and injured were inmates of goods auto and not pedestrians. This infact has led the insurance company in taking a defence that at the relevant time of accident all the three persons were travelling in goods auto and they were not on the road as pedestrians. Infact, they were able to convince the Presiding Officer of MACT, Bengaluru, the manner in which the accident could have taken place, but in any event, they did not produce any document to substantially demonstrate that the accident has taken place in a particular manner."

It is normally seen that the insurance companies having a set of their own investigators would investigate into the matter and try to unearth whether the claim is fraudulent one or otherwise. In the instant case, they have not taken any efforts to get the matter investigated by their investigators. There is nothing on record to show that they have taken any independent effort to demonstrate that the accident has not taken place with the injured and deceased as pedestrians on the road and it is otherwise, except heavily relying on documents at Exs. P6, P7 and P8 in MVC. No. 65/2009. Infact, when the said documents are compared, the reason given by Presiding Officer of tribunal at Madhugiri in accepting that death of Narasimhamurthy as having taken place while he was walking on road, appears to be correct, for the reason that the finding of Presiding Officer of tribunal in MVC. No. 65/2009 in paragraph No. 5 of judgment impugned, which is at page 9 at the top portion, would tally with the endorsement seen on the Motor Vehicle Inspection report so far as damage to vehicle. However, there is nothing on record in police documents to substantiate the defence taken by insurance company that deceased and injured were inmates of offending goods auto. No doubt, in recent past fraud is being committed by the police to ensure assured compensation to claimants and in many cases they have gone out of way in tampering with the medical evidence as well as police documents to demonstrate as if accident has taken place in a particular manner to suite the requirement of claimants. Infact, this Court would place on record that said tampering is seen at least in two out of every 10 cases, and that is the magnitude with which it is done. On many occasions, it is seen manipulation is done in such a sophisticated way that it is impossible for the courts to identify the same and it is also seen that on many occasions this Court is not in a position to decide the same either this way or that way. Therefore, in such circumstances, it is for the insurance company to assert that there is fraud and primary responsibility is placed on them to demonstrate the same by adducing cogent evidence in that behalf.

In the instant case, though the insurance company has taken defence regarding the manner in which the accident has taken place, it has miserably failed to establish the same with cogent documentary and oral evidence except relying on the aforesaid three documents, which are inconsistent to the other set of documents and this Court is unable to accept the same. In the absence of evidence, it is difficult to accept the theory of insurance company. Even assuming that this is a fraudulent claim, the material on record does not indicate the same to set aside the judgment. In the instant case it is necessary that the truth or otherwise of the manner in which the accident has taken place will have to be established before the tribunal. In the result, all the three appeals are allowed the judgment and award passed in all three claim petition are set aside. The matters are remanded to a common MACT, Tumkur, reserving liberty to the insurance company as well as to the claimants and owner of offending vehicle to adduce further evidence to demonstrate the manner in which the accident has taken place. The Presiding Officer of tribunal at Tumkur shall secure records from both MACT, Madhugiri and MACT, Bengaluru and after giving sufficient opportunity to all the parties to the proceedings shall decide the claim petitions afresh within six months from the date of receipt of entire records. Since all the parties are before this Court, question of issuing notice to them may not be necessary. Therefore, all the parties to the proceedings i.e., claimants on one side and insurance company and the owner of offending vehicle on the other side should be present before the MACT, Tumkur on 5.9.2015, on which day the tribunal shall take up the matters and decide the same within the time frame fixed by this Court.

In view of the appeals being remanded, the amount in deposit in said appeals is ordered to be refunded to the respective appellants.