National Insurance Co. Ltd. vs Gopal Somappa Lamani and Others

P.D. Waingankar, J.—This appeal by the appellant - National Insurance Company limited is against the judgment and award dated 19.7.2007 in MVC No. 1441/1999 on the file of MACT IV and III Addl. District Judge, Belgaum.

The facts which gave rise to this appeal are as under:--

"On 29.4.1998, claimant Gopal Somappa Lamani was riding scooter bearing No. CNJ 2626 from Shrinagar to KSRTC bus stand, Belgaum alongwith his friend Siddarai Shigihalli. When the scooter reached near Mahanteshnagar, near Fort Lake, Belgaum, at about 6.00 a.m., a Mahindra jeep bearing No. KA.22/M-1986 came from opposite direction in rash and negligent manner and dashed against the scooter which the claimant was riding. Due to the impact, the claimant sustained multiple grievous injuries. He was treated in K.L.E. hospital, Belgaum, where he underwent amputation of leg. He has spent substantial amount for his treatment. He lost his income during the period of treatment and suffered disability."

He filed claim petition under Section 166 of M.V. Act claiming compensation of Rs. 15,00,000/- from the owner and insurer of the jeep. The claim petition was opposed by the insurance company on the ground that the jeep in question insured by insurance company was not at all involved in the accident and that it has been falsely implicated just to claim compensation after about 1 year from the date of the accident. The claim came up for consideration before the tribunal before whom, the claimant got himself examined as PW-1 apart from examining two witnesses as PWs-2 and 3. The claimant got marked as many as 148 documents. On behalf of the insurance company, the policy was marked as Ex-R1.

Upon hearing the submissions made by both the learned counsel and upon consideration of the evidence on record, the tribunal recorded a finding that the accident and the resultant injury sustained by the claimant were due to rash and negligent driving of the jeep bearing No. KA.22/M-1986 by its driver. The tribunal awarded a compensation of Rs. 3,61,000/- together with 6% interest from the date of petition till the date of realisation and directed the appellant-insurance company to deposit the compensation amount awarded. Aggrieved by the liability fastened on the insurance company, this appeal is preferred.

I have heard both the learned counsel appearing for the insurance company and the respondent claimants. Perused the records.

Upon hearing the submissions made by learned counsel for the insurance company and the respondents and perusal of the records, the following points arise for my determination:--

"Whether the finding recorded by the tribunal regarding involvement of jeep bearing No. KA-22/M-1986 in the alleged accident and that the accident occurred on account of rash and negligent driving of the jeep is proper?

Whether the compensation awarded by the tribunal is just and reasonable?"

Point No. 1:--

The case of the claimant before the tribunal was that on 29.4.1998, while he was riding scooter bearing No. CNJ 2626 alongwith one Siddarai Shigihalli and when the scooter reached Mahantesh Nagar, Belgaum at about 6.00 a.m, a Mahindra jeep bearing No. KA.22/M-1986 came from opposite direction in rash and negligent manner and dashed against the claimant causing him grievous injuries.

The appellant -insurer of Mahindra jeep has categorically denied the very involvement of Mahindra jeep in the alleged accident. It has been specifically contended that after about one year from the date of the accident, after due deliberations, the jeep has been falsely implicated with the help of police just to claim compensation.

The tribunal has arrived at a conclusion that the jeep was involved in the accident and the accident occurred on account of rash and negligent driving of the driver of the jeep. The said finding is assailed by the insurance company. Therefore it has to be seen whether the said finding given by the tribunal regarding the involvement of the jeep is based on evidence placed before the tribunal. On behalf of the claimants, as many as 148 documents were produced, out of which, Ex-P1 is the FIR and complaint and Ex-P2 is spot panchanama, Ex-P3 and P4 are the IMV reports. Ex-P6 charge-sheet and Ex-P7 is the certified copy of order-sheet in C.C. No. 639/1999. Ex-P1 is the FIR in Belgaum North Traffic police station Cr. No. 75/1998 registered in connection with the accident in question for the offences under Section 279 , 338 of IPC on the strength of the complaint lodged by one Mehabooba on 29.4.1998 the date of the alleged accident. If we look at column No. 6 of Ex-P1-FIR, the vehicle which caused the accident has been described as Thus from the complaint and the FIR, it is clear that in the FIR, the registration number or the name of owner of the jeep are not mentioned. Ex-P2 is the spot panchanama drawn on 29.4.1998, wherein also, the registration number of the jeep which said to have caused the accident is not mentioned. Ex-P3 is the Motor Vehicles Inspector''s report in respect of vehicle bearing registration No. KA.22/M-1986, Light Motor Vehicle, Mahindra Blue(Omni Bus). This vehicle was inspected by Motor Vehicle Inspector on 16.6.1999. Ex-P4 is the Motor Vehicles Inspector''s report in respect of Bajaj Scooter No. CNJ-2626. From Ex-P4 it is noticed that this Bajaj scooter was inspected by the Motor Vehicles Inspector on 4.5.1998, after about six days from the date of the accident. Ex-P6 is the charge-sheet filed by the police on 23.6.1999. Though accident had occurred on 29.4.1998, almost after about one year, charge-sheet came to be filed by involving jeep bearing registration No. KA.22/M-1986. There is no evidence as to how and on what basis the jeep in question was traced after one year and two months nor the Investigation Officer who investigated the case and filed charge-sheet has been examined by the claimant. No independent witness has been examined on behalf of the claimant. Except certified copy of the order-sheet marked as Ex-P7, which goes to show that the driver of the jeep pleaded guilty, there is absolutely no evidence as to how the charge-sheet came to be filed against one Imtiaz Khan. His name did not find place in the FIR, nor the owner of the jeep has admitted the involvement of the jeep in question in the accident. The tribunal purely based on the certified copy of the order-sheet in C.C. No. 630/1999 arising out of Cr. No. 75/1998 by Traffic Police Station, Belgaum came to the conclusion that the accident occurred on account of rash and negligent driving of the jeep bearing registration No. KA.22/M-1986.

The learned counsel for the respondents/claimants placed reliance on the decision of the Supreme Court reported in Saroj and Others Vs. Het Lal and Others, wherein it is held that admission by owner as to involvement of his vehicle uncontroverted is sufficient to hold that the vehicle was involved in the accident. There is no such admission by the owner of the vehicle in this case.

The learned counsel for the claimants have also placed reliance on the unreported decision of this Court in MFA 5476/2007 in case of Bajaj Allianz General Insurance Co. Ltd., v. Rachapa and Another wherein it is held that in the written statement filed by the appellant i.e., Bajaj Alliance in MVC proceedings, there was no specific denial of the involvement of the vehicle in question in the accident and in that case, it has to be held that the vehicle was involved in the accident as contended by the claimant. Here in this case the insurance company has categorically denied the involvement of the vehicle. Both the decisions relied upon by the claimants are of no assistance to the claimants.

As against the aforesaid decision relied upon by the learned counsel for the respondents/claimants, the counsel for the appellant insurance company has placed reliance on the decision of the Division Bench of this Court reported in Veerappa and Another Vs. Siddappa and Another, wherein in head note ''A'' and ''B'' it has been held as under:--

"Motor Vehicles Act, 1988- Appeal against the dismissal of claim petition-Collusion between owner and claimants-Owner of the vehicle admitted the accident-Further the owner of the vehicle admitted that he has no objection for award of compensation-Held-The admission of the owner of vehicle has no value in the eye of the law-He has admitted something about which he has no knowledge and, which he has not seen-The said admission made with the sole objection of getting compensation to the claimants as it is the insurance company which will pay, and not the owner-Though admission is the best piece of evidence but the same cannot be accepted as gospel truth-Claimants were required to prove their case independently which they failed-Fraud and justice cannot dwell together.

(B). Motor Vehicles Act, 1988- Liability of insurer-When fraud has been committed with the insurer-Held-Insurer is not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud."

The observations made by this Court in the aforesaid decisions is rightly applicable to the facts of this case. The evidence on record is sufficient to hold that though vehicle in question was not at all involved in the accident and it did not find place in the FIR, after about one year and two months, the vehicle has been falsely implicated by the claimant with the help of the police officials, it is clear case of fraud. The tribunal without appreciating the evidence on record in its proper perspective purely based on the plea of guilt of one Imitiaz Khan stated to be driver of the jeep has held that the jeep in question was involved in the accident and because of the rash and negligent driving of the jeep, the accident occurred. The finding recorded by the tribunal is contrary to the evidence placed on record and therefore it is liable to be set-aside. Accordingly, point of consideration is answered in the negative.

In the result, I pass the following order-

Appeal is allowed. The judgment and award dated 19.7.2007 passed in MVC No. 1441/1999 on the file of the III Addl. District Judge and MACT, Belgaum is set-aside. Consequently, MVC NO.1441/1999 on the file of the III Addl. District Judge and MACT, Belgaum is hereby dismissed.

The amount in deposit shall be refunded to the appellant-National Insurance Company Limited.