Bajaj Allianz General Insurance Co. Ltd. vs S. Rajendran and Others

S.N. Satyanarayana, J.—The first respondent insurer of motorcycle bearing No. KA 02 ED 9297 has come up in this appeal impugning the judgment and award dated 25.02.2011 wherein the claim petition filed by first respondent herein is allowed awarding compensation to him in a sum of Rs. 2,12,400/-.

Brief facts leading to this appeal are as under:

"The case of the first respondent claimant before the tribunal is that on 24.11.2009 at about 9.45 p.m. while he was crossing Shankarnagar Main Road within the jurisdiction of Rajajinagar Police Station he was hit by motorcycle bearing No. KA 02 ED 9297 due to rash and negligent driving of its rider the second respondent in the court below. According to him immediately after the accident he fell down and suffered grievous injury, thereafter he was taken to Raksha Multispeciality Hospital, Rajajinagar. Where it is stated that he was treated as inpatient for fracture of lower 1/3rd of right fibula, fracture in medial malleolus of right tibia, contusion over lower leg and abrasion over right ankle with tenderness. The claimant was inpatient in the said hospital for a period of 6 days during which, the injuries suffered by him were set right with surgical intervention. Thereafter claim petition was filed by him seeking compensation against the owner and insurer of alleged offending vehicle."

In the proceedings before the tribunal the owner as well as the insurer entered appearance, filed statement denying the accident. Thereafter issues were framed and matter went to trial wherein claimant adduced evidence as PW.1. The doctor who treated him in Harsha hospital was examined as PW.2, the Investigating Officer who conducted the investigation was examined as PW.3. On behalf of respondent one of its officer was examined as RW. 1. It is seen that all the claimant witnesses are duly cross examined by the counsel appearing for first respondent. The respondent witness RW. 1 was also duly cross examined before the tribunal. Thereafter claim petition is allowed awarding compensation to claimant in a sum of Rs. 2,12,400/- and liability to pay compensation was saddled on the insurer as well as the insured. The insurer on whom the liability to pay compensation is saddled is aggrieved by the same and has come up in this appeal. The grounds urged are that the claim itself is fraudulent, every single document produced and relied upon before the tribunal is manipulated to suit the need of claimant with the assistance of police. The claim petition which is filed is also stated to be fraudulent one and the same is sought to be rejected by setting aside the judgment and award passed by the court below.

Though this appeal is at the stage of admission, the entire trial court records are secured and thereafter the learned counsel for the appellant as well as contesting respondents were heard. On going through the pleadings, oral and documentary evidence available on record it is seen that the accident is said to have taken place on 24.11.2009 at about 9.45 p.m. The claimant is taken to Raksha Multispeciality Hospital immediately thereafter and he was admitted as inpatient. Though the claimant is admitted in the said hospital on 24.11.2009 as medico legal cases, intimation of the accident is sent to the police on the next day i.e., on 25.11.2009 at about 11.45 a.m. EX.R8 which is intimation to police, issued by Raksha Multispeciality Hospital to Station House Officer of Rajajinagar police station is full of corrections. In the said intimation there is no reference to the involvement of the vehicle belonging to the second respondent which is insured with appellant herein as causing the accident.

It is seen that though notice is received by the police at 11.45 a.m. on 25.11.2009 it is not registered in the case diary as could be seen from the evidence of PW.3 Investigating Officer. The I.O. while adducing evidence in support of the claimant would say that the intimation regarding accident was received at 11.45 p.m. on 24.11.2009 itself. However, there is no reference to such intimation being received by the police in its records. Though the police record which is EX.R8 would indicate that the Station House Officer has received the intimation from the hospital at 11.45 a.m. on 25.11.2009 there is no reference to same being recorded in the diary maintained in the police station. In the cross examination the I.O. would further state that at about 3.00 p.m. in the afternoon on 25.11.2009 he was informed over telephone regarding accident being caused to the claimant on previous night i.e., at 9.45 p.m. on 24.11.2009, there is no reference to recording of the same in police diary. It is seen that there is a complaint which is said to be recorded in Raksha Multispeciality Hospital at about 7.00 p.m. on 25.11.2009. As admitted by PW.3 the statement which is recorded at 7'' O clock in the evening on 25.11.2009 is registered in the police station which is situated 3 kilometers away from the hospital on the same day at 7.00 p.m. It is seen that even before the complaint is registered in the police station, investigation was commenced by the I.O. by personally going to the place of accident at about 4.45 p.m. as admitted in his cross examination, he commenced investigation, conducted mahazar, completed drawing up of mahazar on the same date even before complaint was recorded and registered in the police station.

The records would clearly indicate manipulation from the time of accident till registering of complaint. The wound certificate which is said to be issued on 24.11.2009 after 10.30 p.m. when claimant was admitted to the hospital would indicate the number of the vehicle which is said to have caused accident. When the same was available with the hospital as at 10.30 p.m. of 24.11.2009, the same was not mentioned in the intimation to police which was prepared and sent at 10.30 a.m. next morning i.e., on 25.11.2009. The same is not properly explained by the I.O. - PW.3. With all these anomalies in the documents, it is clearly seen that an unfortunate incident where claimant suffered some injury either in a road traffic accident or otherwise is sought to be converted into a road traffic accident involving the vehicle belonging to second respondent and insured with first respondent before the tribunal. An attempt is made to see that the compensation is awarded to him and liability to pay the same is saddled on first respondent Insurance Company before the tribunal.

This court notice that there is dishonest attempt on the part of police in creating documents with the help of hospital also to an extent, which has issued back dated wound certificate as if the same is given on 24.11.2009 showing the accident is caused due to rash and negligent driving of two wheeler bearing No. KA 02 ED 9297. With the connivance of police and doctor the claimant is able to manipulate the proceedings before the tribunal for securing compensation as if he is hit by the vehicle belonging to second respondent and insured with first respondent before the tribunal. This court is unable to understand how these documents which are produced and marked before the tribunal are not properly looked into and understood by the tribunal when all the discrepancies are brought to its notice, is yet another enigma, which remains unanswered not only in this proceedings but also in number of similar cases.

The involvement of police in manipulating the record is not a new thing. As stated time and again, atleast three to four out of ten such cases, manipulation is seen by this court in the matters when they reach the appeal stage. However, the very same documents when they are produced before the tribunal they are conveniently either ignored or not taken into consideration which is a serious lapse on the part of tribunals. The intention of legislature in incorporating certain provisions in M.V. Act is to ensure that the accident victims should be provided just and proper compensation from the tortfeasor is a laudable step. But unfortunately that has been made use of by ambulance chasers and greedy police officers, dishonest doctors in systematically looting the money in the guise of securing justice to the so called victims of accident. This is yet another classic case where there is a consorted effort on the part of all those who are concerned in converting an accidental injury into a road traffic accident involving a vehicle to ensure that compensation is provided to the claimant from the insurer who has no responsibility to answer the said claim. With such observation the appeal filed by the insurance company is allowed.

Consequently, the judgment and award passed by the tribunal so far as it pertains to saddling liability on the insurer of the motorcycle bearing No. KA 02 ED 9297 is exonerated. While doing so a sum of Rs. 10,000/- is imposed as cost for filing a fraudulent claim petition and pursuing the same with the determination in securing compensation to the claimant. The fine imposed as above shall be paid by the claimant, to the registry of this court. In view of the appeal filed by appellant insurer being allowed, amount in deposit is ordered to be returned to the appellant Insurance Company.