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Judgment
S. Sujatha, J. - These appeals are directed against the judgment and award passed by the Motor Accident Claims Tribunal at Bijapur in MVC Nos. 170/2005 and 171/ 2005.
Heard learned counsel appearing for the parties.
The facts in brief are :
It transpires that the claimants have filed the claim petitions before the Tribunal contending that on 16-7-2004 when the claimant in MVC No. 171/2005 was travelling on the motorcycle bearing registration No. KA-28/L-0656 driven by the deceased Basanagouda Biradar, they met with an accident due to the rash and negligent driving of the driver of Tata Sumo vehicle bearing registration No. KA-25/M-3091 which came in high speed and dashed to the motorcycle. The Tribunal after considering the evidence available on record allowed the claim petitions awarding compensation of Rs. 2,58,400/- in MVC No. 170/2005 and Rs. 88,640/- in MVC No. 171/2005, fixing the liability on the 2nd respondent-Insurance Company. Being aggrieved by the said award passed by the Tribunal the insurer is before this Court challenging the liability fixed on it.
The learned counsel appearing for the appellant-Insurer would contend that Ex.Pl, certified copy of FIR dated 16-7-2004 discloses that the deceased himself was rash and negligent in riding the motorcycle and he himself has dashed against the boundary stone of Dodda Halla bridge, sustained severe injuries and died on the spot whereas, the evidence led by the claimants was contrary to Ex.Pl. It is submitted that the accident occurred on 16-7-2004, the complaint was lodged by Sri. Somanagouda S/o I Ningappa, the pillion rider of the motorcycle involved in the accident stating that they were travelling in the motorcycle from Muddabihal and the deceased Basanagouda was riding the motorcycle and he was pillion rider. They met with the accident due to the rash and negligent driving of the deceased who dashed to the boundary stone of Dodda Halla bridge. It is also contended that the pillion rider had filed the claim petition before the Principal District Judge, Bijapur in MVC No. 767/2004 seeking compensation for the injuries sustained in the accident involved herein against the owner and the said petition was withdrawn as not pressed on 22-6-2005.
It is the contention of the appellant-Insurer that Tata Sumo vehicle bearing registration No. Ka-25/M-3091 was not involved in the accident and it was only the manipulation made by the claimants in connivance with the Police Authorities to gain compensation as the said Tata Sumo vehicle was insured with the appellant-Insurer. It is also contended that the Tribunal without properly appreciating the evidence led by the insurer, brushing aside the documents relied on by the insurer, fastened the liability on the insurer.
Per contra, the learned counsel appearing for the claimants denying the submissions made by the appellant-Insurer contends that though by inadvertence, the pillion rider had mentioned the wrong vehicle at the time of giving the complaint before the Police Authorities, the same got corrected in the subsequent statement given by him before the Police Authorities. There was no implanting of Tata Sumo vehicle as contended by the appellant. All the documents, i.e., Exs. PI to P10 relied on by the claimants indicates the involvement of Tata Sumo vehicle. The Tribunal after appreciating the evidence available on record awarded the compensation, fastening the liability on the insurer, which cannot be found fault with.
Heard the rival submissions made by the learned counsel for the parties and perused the material on record.
The undisputed facts are that the accident occurred on 16-7-2004 and on the same day at about 9.30 p.m. the pillion rider/claim ant in MVC No. 171/2005 has lodged a complaint before the Police Authorities stating that on 16-7-2004, when he was travelling with the deceased Sri Basanagouda, they met with the road traffic accident due to the rash and negligent riding of the driver of the motorcycle which dashed to the boundary stone of Dodda Halla bridge, as a result of which the deceased rider died on the spot and the pillion rider sustained grievous injuries Ex.Pl is the certified copy of the FIR dated 16-7-2004, which discloses that the accident occurred due to the rash and negligent driving of the deceased, due to which the rider died on the spot and the pillion rider sustained severe injuries. Ex.PIO is the further statement of the injured pillion rider, recorded on 19-7-2004 which is inconsistent with the complaint lodged. As could be seen from the records, Ex.P17 is the Wound Certificate Ex.R1 is the policy issued by the Insurance Company, Ex.R2 is the deposition of the pillion rider Sri. Somanagouda, eye-witness in C.C. No. 130/2005 on the file of JMFC Court. Muddebihal, examined as P.W. 1. In the said deposition, there is no whisper about the involvement of Tata Sumo vehicle bearing registration No.Ka-25/M-3091. On the other hand, in his deposition, he has stated that one 407 vehicle came from behind and dashed to the motorcycle. Ex.R5 is the certified copy of the order sheet in MVC No. 767/2004 on the file of the District Judge, Bijapur wherein the claim petition filed by the claimant i.e pillion rider was withdrawn as not pressed on 22-6-2005. In the context of these documents now it is necessary to look into the evidence of the claimants.
P.W. 2 is the pillion rider who had lodged the complaint before the Police Authorities. In his evidence, he deposes that he had lodged the complaint stating that the rider of the motorcycle Sri Basanagouda was riding the vehicle negligently and the rider of the motorcycle had taken him as pillion rider to carry some material. However, he has denied that they have secured the owner of Tata Sumo and filed the false case. It is deposed by P.W. 2 in his cross-examination that 407 vehicle and Tata Sumo vehicle are different. It is stated that it is right to suggest that Tata Sumo vehicle means Jeep and 407 vehicle means Mini Lorry or Maxicah. He has admitted that he had given his evidence before JMFC Court, Muddebihal regarding the accident. It is also admitted that in his evidence before the JMFC Court, Muddebihal he had deposed that 407 vehicle had dashed to the motorcycle. It is also admitted that he is the eye-witness to the accident. However, in the statement collected by the Police Authorities under Section 161 of Cr. P.C. on 19-7-2004, the complainant/claimant had improved his version implicating the Tata Sumo vehicle as the cause of the accident.
So, twisting of the statements in the charge-sheet implicating the Tata Sumo vehicle would indicate the serious discrepancy, shows the ingenious act of the claimants misrepresenting the true facts. The admission made by P.W. 2 coupled with Exs. PI and P2 establishes the manipulation made by the claimants in order to get the compensation amount implicating the Tata Sumo vehicle which was not involved in the accident. It is also pertinent to note that the statement made in the FIR with reference to Section 154 of Cr. P.C. has to be presumed to be true unless contrary is proved. It is the statement recorded at the earliest point of time without there being any manipulation. It is also significant to notice the conduct of P.W. 2. P. W.2 at the first instance had filed the claim petition against the owner and after noticing the consequences of implicating the Tata Sumo vehicle, has withdrawn the case and suppressing this material fact filed the claim petition in MVC No. 171/2005 before the JMFC Court, Bijapur. Thus, the claimant/pillion rider has not approached the Tribunal with clean hands.
The Tribunal though noticed the defence raised by the insurer regarding involvement of Tata Sumo vehicle in the alleged accident, brushing aside the evidence led by the 2nd respondent-Insurance Company more particularly, Ex.P2 relied on by the insurer wherein, the pillion rider himself has clearly admitted in the proceedings before Criminal Court that the alleged accident occurred due to the rash and negligent driving of 407 vehicle. This crucial evidence has lost sight off by the Tribunal.
It is settled law that the fraud vitiates the proceedings. Implicating the Tata Sumo vehicle in the charge-sheet would not prove the involvement of the vehicle in the alleged accident and as such, no liability could be fastened on the insurer of the Tata Sumo vehicle.
This Court in the case of Veerappa v. Siddappa (ILR 2009 Kar 3562) has held thus
"15. Fraus et just munquam cohabitant, Fraud and justice never dwell together, I a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the Courts is a nullity and non est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court, the Court have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."
This Court in the case of Ravi S/o. Chandrappa alias Chandappa Lamani v. Govindappa S/o Ramappa Lamani in MFA No. 21115/2012 dated 16-9-2013 (reported in 2014 (3) AIR Kar R 29) has held thus :
"Merely because the driver of the Mahindra Jeep has pleaded guilty before the Court by paying fine cannot be a ground for the trial Court to accept the same as a gospel truth and allow the claim petition, in view of Ex.Pl, Ex.P14 and IMV Report. In the circumstances, we are of the opinion of Tribunal is justified in dismissing the claim petition on the ground that the accident did not occur due to the rash and negligent driving of the driver of the Mahindra Jeep."
The Apex Court in the case of Ram Chandra Singh v. Savitri Devi (2004 SAR (Civil) 1) has held thus :
"15. Commission of fraud on Court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwells together.
Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter."
In the light of the judgment referred to above coupled with the factual matrix of the case, I am of the considered view that the claimants have manipulated the documents implicating the Tata Sumo vehicle as the offending vehicle in the alleged accident misrepresenting the real facts.
For the foregoing reasons, the judgment and award passed by the Tribunal is modified exonerating the appellant. Insurance Company from the liability and fastening the liability on the owner to satisfy the award passed by the Tribunal.
Accordingly, the appeals are allowed.
The office is directed to refund the amount in deposit to the appellant-Insurance Company.