Bajaj Allianz General Insurance Co. Ltd. vs V. Sampathkumar and Others

S.N. Satyanarayana, J.—The 2nd Respondent-Insurer in MVC No. 9388/2009 on the file of the MACT, Bengaluru, has come-up in this appeal challenging the judgment and award dated 03.02.2012 in saddling the liability to pay compensation on it with reference to compensation awarded to the claimant in the said proceedings.

The brief facts leading to this appeal are as under:--

The 1st Respondent herein is claimant in MVC No. 9388/2009. It is stated that he met with an accident on 07.09.2009 is about 6.40 am., while he was riding Honda Activa bearing Registration No. KA.05.HE.9546. The accident is said to have taken place on 16th Main road towards Tavareke Hi-tech Gym, near Chandramohan Bar and Restaurant, Bengaluru. Claimant state that, his scooter was hit by another Honda Activa bearing Registration No. KA.05.HB.7371 belonging to the 2nd Respondent herein and insured with the Appellant. Immediately after the accident, claimant was shifted to Jayanagara General Hospital, where x-ray taken reveals following injuries:--

i) fracture of trapezoid right hand,

ii) fracture of right radius shaft;

iii) bone deep lacerated wound over root of right thumb bone deep;

iv) laceration of thomar muscles mobility of the front teeth upper jaw lateral incisor;

v) croven fracture at cervical level, central incisor mobile (G-1) and abrasions all over the body.

On the same day at about 5.00 p.m., claimant''s friend M. Thimegowda, who was following him right behind claimant''s vehicle in another motor cycle bearing Registration No. KA.51.S.8386, lodged a complaint with MICO Layout Traffic Police, Bengaluru, informing that the claimant was hit by Honda Activa bearing Registration No. KA.05.HB.1371. The FIR was registered on same day in FIR No. 177/2009 showing that the accident has taken place due to rash and negligent driving of the afore said Honda Activa. Thereafter, mahazar, spot sketch and all other relevant documents were drawn on the same day. However, subsequently, on 23.09.2009, the further statement of claimant is taken by the police wherein, the claimant would clarify that the vehicle involved in the accident is not KA.05.HB.1371, but it is KA.05.HB.7371. Incidentally, the police immediately after registering FIR, got the vehicle of the claimant tested by the Motor Vehicle Inspector under Ex. P5 on 08.09.2009 at about 4.15 p.m., which would indicate that the claimant''s vehicle received three major damages, which are,-

i) Damage to Mud Guard

ii) Damage to left side rear Engine

iii) Damage to front portion left side

It is seen that, the other vehicle which is stated to have caused the accident and which is said to have fled-away from that place was not apprehended. In the meanwhile, as stated supra, further statement of the claimant was recorded on 23.09.2009. Thereafter, notice under Section 133 of the M.V. Act was sent to the owner of the vehicle bearing Registration No. KA.05.HB.7371, who is none other the 2nd respondent herein and the said notice was received by him on 06.10.2009, on the same day he produced the vehicle before police. The police notice under Section 133 of M.V. Act and reply to that are at Exs. P15 & 16. Ex. P16 would indicate that the 2nd respondent has furnished the particulars regarding the person who was riding the vehicle at the relevant point of time when the said accident was taken place and also the particulars of the vehicle. It is also seen that though the vehicle was produced before the police by 2nd Respondent, there is nothing to demonstrate that the said vehicle is referred for inspection by the Motor Vehicle Inspector regarding the damage caused to it due to the aforesaid accident.

However, based on the reply furnished by the 2nd respondent, a criminal prosecution is launched against one K.S. Deepak Kumar, Son of Sri. K. Subramanian stating that he was the rider of offending vehicle at the relevant point of time in a proceedings before the 4th MMTC, Bengaluru. The accused namely, K.A. Sampath Kumar, who is the brother of the 2nd respondent herein, appeared before the court, the evidence of complainant is recorded, thereafter, accused pleads guilt of the offences alleged against him. As could be seen from the judgment rendered in C.C. No. 3064/2009 initiated by the State represented by MICO Layout police, 9th para of the judgment would indicate that on pleading guilt of the accused the court by imposing fine of Rs. 1,000/- as punishment, C.C. No. 3064/2009 was closed on 04.10.2010.

In the meanwhile, it is seen that the claim petition was already initiated on 31.12.2009 against the owner of the Honda Activa bearing Registration No. KA.05.HB.7371. The 1st respondent though served with notice, remained unrepresented. It is only the 2nd respondent-insurer entered appearance and took all permissible defence to establish with reference to manipulation of documents and then framing of the vehicle and also collusion between the parties. However, the Tribunal by recording the evidence of the claimant as PW. 1 and the doctor who treated him in Jayanagara General Hospital as PW. 2, proceeded to allow the claim petition by appreciating Exs. P1 to P12 and Exs. R1 to R9.

In the said proceedings, on behalf of respondent-insurer one of its officer by name B.R. Shilpa, adduced evidence as RW. 1 with reference to manipulation, which is not looked into by the tribunal. The claim petition was allowed by awarding compensation in a sum of Rs. 2,31,500/- payable with interest at 8% pa. The compensation was ordered to be paid jointly and severally by the owner and insurer of Honda Activa bearing Registration No. KA.05.HB.7371.

It is the 2nd respondent-Insurer who has come-up in this appeal contending that the accident has taken place as stated in the complaint. Subsequently pursuant to further statement recorded on behalf of the insured, the vehicle of 2nd respondent which is insured with appellant herein is framed and thereafter the charge sheet is filed against rider of scooter belonging to 2nd respondent herein. Said exercise is manipulated by police to support the frivolous claim of claimant before the tribunal by changing the number of the offending vehicle. In this appeal the second respondent - insurer is seeking to set aside the judgment and award in MVC. No. 9388/2009 and consequently to dismiss the claim petition.

When this appeal is taken-up for admission, considering the allegations made and the grounds urged, this court felt that securing the lower court record and looking into the same at the time of admission is essential. Accordingly, lower court record was secured. Thereafter, with the consent of the learned counsel appearing on both sides, the matter was heard for final hearing.

On going through the records, it is seen that as rightly stated by the counsel for the appellant, the accident is said to have taken place on 07.09.2009 at about 6.40 in the morning as per the complaint, which was filed at 5.00 p.m. on the same day. As per the complainant M. Thimmegowda, the claimant before the tribunal was riding the vehicle-Honda Activa bearing Registration No. KA.05.HB.9546 and the complainant was following him on another motor cycle bearing Registration No. KA.51.F.8386. According to him, the accident has taken place due to the rash and negligent driving of the rider of Honda Activa bearing Registration No. KA.05.HB.1371. Incidentally though the accident has taken place at 6.40 a.m. the complaint was not registered before the police till 5.00 ''O'' Clock in the evening. The Admission record of Government Hospital at Jayanagar is produced in the form of file containing several sheets. The said file is marked as Ex. P11, the 3rd sheet of which is the admission record. Though the said record bears a seal put on top of the page in Capital letters ''MLC, there is no reference to the manner in which the accident has taken place, as also the vehicles involved in the accident and whether it is accident due to self fall or due to collision between two vehicles is not clearly mentioned. In the same document, the progress note would indicate the injury suffered in a Road Traffic Accident at about 6.40 a.m. on 07.09.2009, but there is no reference to any vehicle number or there is nothing on record to show that the admission of the claimant was informed to the police on the same day by the Jayanagara General Hospital.

However Police got the report of the accident for the first time on the complaint lodged by M. Thimegowda, who was stated to be following the claimant in another motor cycle bearing Registration No. KA.51.S.8386 at the relevant point of time. According to him, he is the person who helped claimant to get up after he fell-down from the scooter and assisted him in reaching the hospital. It is he who categorically states that the vehicle involved in the accident is KA.05.HB. 1371. As against this, till 23.09.2009 there is no change in the investigation by the police and as could be seen, the investigation is pursued in taking the number of the offending vehicle on record as KA.05.HB.1371. It is only on 23.09.2009 after further statement is recorded on behalf of the claimant, the number of the Honda Activa belonging to the 2nd respondent is included and when the said vehicle was summoned by issuing police notice, the 2nd respondent herein who appeared before the police, did not accept that the accident has taken place involving his scooter and he would state at the relevant point of time, the vehicle was with one K.S. Vasantha Kumar. As could be seen from Ex. P16, surprisingly, the police got such reply from him on 6.10.2009. The police proceeded to file charge sheet against one K.S. Vasanth Kumar as accused in the charge sheet, which is at Ex. P6, though the complaint is against one K.S. Sampath Kumar, son of Subramanian in FIR No. 177/2009.

As could be seen from Ex. P17, the interesting part in this is though on 06.10.2009 the vehicle bearing No. KA.05.HB.7371 is not produced before the police for the reasons best known to them, they did not get the vehicle tested by the Motor Vehicle Inspector which is essential when collision between two vehicles is complained, to know the extent of damage to the vehicles and the correctness or otherwise of the statement and also to verify at whose fault the accident has taken place. To clarify the above aspects, the vehicles are required to be tested compulsorily, but in the instant case, it has not taken place. Thereafter, in the claim proceedings, it is stated that the accident has taken place by one Sampath Kumar and he paid a sum of Rs. 1,000/- as fine imposed in C.C. No. 3064/2009 and after that, the claimant has proceeded against the owner and the insurer of K.A.05.HB.7371 and an attempt is made to saddle the liability on the insurer of the aforesaid motor vehicle. With this it is clearly seen as to the manner in which ''ambulance chasing mafia'' is working in the field of motor vehicle compensation proceedings.

If at all there is any accident and that accident has taken place either due to the fault on the part of claimant himself or in an unfortunate accident of hit and run, a set of people would come into picture to see that the records are built systematically in such a manner that, ultimately claimant would be provided with hand-sum compensation from one of the insurance companies, which is totally unconnected to the proceedings. This is another classic example of such litigation wherein one can see the Handiwork of MI CO Layout police in creating documents and assisting the claimant from the beginning till the time of pursuing the prosecution in C.C. No. 3064/2009 on the file of the MMTC-IV, Bengaluru. In that view of the matter, in this proceedings the judgment and award passed by the Tribunal in awarding compensation to the first respondent-claimant in MVC No. 9388/2009 is required to be set aside as against the 2nd respondent-Insurer in the court below. Since the 1st respondent in the court below has colluded with the claimant and assisted him in getting compensation in an illegal manner, the liability to pay compensation which is saddled on him, is not disturbed.

In view of the above, the appeal by the Insurance Company is allowed. The amount in deposit is ordered to be released in favour of the Appellant-Insurance Company.