Surekha and Others vs Sangappa and Others

G. Narendra, J—The appellants before the court are wife and children of the deceased. It is the case of the claimants that on 20.12.2005 at about 7.p.m. deceased was riding a motor cycle and the motor cycle collided with the alleged offending vehicle, i.e., a Tata Indica Car bearing Reg. No. KA-48/M-137.

It is the case of the claimants that the offending vehicle was driven in a rash and negligent manner resulting in the accident. The deceased is alleged to have suffered grievous injuries and later succumbed to the injuries. The original complainant in his complaint to the police authorities had clearly stated that he did not know the registration number of the offending vehicle and based on the said complaint police commenced the investigation and have identified the vehicle, it is claimed that based on the statement of certain eye-witnesses, particularly, C.W. 14 in C.C. No. 248/2006 the vehicle was identified by the Investigating Officer and thereafter seized under panchanama and the driver was prosecuted by the jurisdictional police. The respondents, namely the owner of the vehicle and the insurer entered appearance and submitted their respective written statement. The owner has stoutly resisted the claim and in fact denied that the accident took place on account of the negligence of the driver of car, and has pleaded that the accident occurred on account of the rash and negligent driving of the deceased.

The 2nd respondent insurer having seen that the original FIR did not contain details of the offending vehicle, thought it fit to contend and deny the involvement of the vehicle in the accident and in fact went a step further by specifically alleging that the car has been falsely implicated on account of a collusion between the claimant, police and the 1st respondent.

In effect the 2nd respondent alleged perpetuation of a fraud by the claimants in connivance with the jurisdictional police. In the above background the parties went to trial and the claimants examined eight witnesses and got marked 41 documents on their behalf. The 2nd respondent got examined four witnesses including the Investigating Officer (P.S.I.), D.S.P. and C.P. I. and got marked 11 documents. The tribunal after assessing the above material concurred with the defence set up by the 2nd respondent and concluded that no accident as described by the claimants had taken place and that the offending vehicle had not been involved in any accident with the motor cycle of the deceased and that the vehicle had been falsely implicated in the offence and that the fraud had been perpetuated by the claimants in connivance with the police and witnesses.

The trial court formulated five issues and while dealing with the issue No. 1 had rightly concluded that the 2nd respondent having taken a specific defence it was upon him to prove the facts alleged by it and the said stand of the tribunal is correct and in consonance with the provisions of Section 101 of the Indian Evidence Act.

The tribunal while dilating on the said issue at para 21 had suddenly though it fit to cast the burden of proving the involvement of the vehicle on the claimant. The said finding in para 21 is not only baseless, but contrary to the plea of the claimants and evidence on record. The original complaint by the brother of the 1st claimant neither details the offending vehicle nor the driver and there is not dispute in this regard.

The next undisputed fact is that the offending vehicle and the driver have been identified by the jurisdictional police in the course of investigation. This fact has been clearly brought out by the Investigating Officer, i.e., the Police Sub-Inspector., who has been examined as R.W. 2. The Police Sub-Inspector has clearly stated that the offending vehicle has been identified based on a statement of the eye-witness, who has been examined as C.W. 5 in the criminal case. The R.W. 2, the Investigating Officer has been subjected to extensive cross-examination, but nothing has been elicited in the cross - examination, which discredits the version of the Investigating Officer. This being the state of affairs, the tribunal grossly erred in holding that, the petitioners were required to demonstrate with cogent evidence, that the alleged Tata Indica car is the offending vehicle. It is nowhere claimed by the claimants that they have witnessed the offending vehicle causing the accident and the consequent death of the sole bread winner of their family.

The tribunal erred in holding that no damages to the offending vehicle have been recorded in the M.V.I. report. While so concluding the tribunal erred in not noticing the fact that the offending vehicle was seized after a considerable time gap and it also failed to appreciate the statement of the P.S.I., in the course of his cross-examination, stating that the offending vehicle could have been repaired in the interregnum.

On the contrary, the case of involvement of offending vehicle has been propounded by the Investigating Authorities and a counter case in defence has been set-up by the 2nd respondent denying the involvement of the offending vehicle and a further aggravated charge of false implication of the offending vehicle has been made by the 2nd respondent. In these facts and circumstances, the onus of proving the involvement of the car was on the police, who have established the same by filing a charge sheet in the criminal case. The insurer, who thought it fit to summon the police officials in order to enable their cross-examination, did not deem it fit to summon the eye-witnesses.

In view of the undisputed facts, the tribunal grossly erred in casting the burden of proof on the claimants and further arrived at a conclusion that the claimants had failed to establish the involvement of the offending vehicle. The finding is a travesty of justice as the same is a result of an erroneous appreciation of law.

The provision of section 101 of the Evidence Act clearly emphasises that the onus is on the person alleging a set of facts to prove the same and in the present case the police, who have alleged the involvement of alleged vehicle have been subjected to extensive cross-examination and no discrepancies nor contradictions have been elicited in the course of cross-examination to discredit their evidence. Furthermore, the 2nd respondent - insurer having specifically alleged a perpetuation of fraud has not let in any evidence to that effect.

In this background, the exercise by the tribunal of trying to rely on the statement of hostile witnesses in the criminal case is a grave irregularity vitiating the impugned judgment and order.

In a nutshell, the case of the 2nd respondent is that the claimants have perpetuated a fraud and that the 1st respondent and the police have actively connived and colluded with the claimants. This being a serious allegation involving consequences under the Indian Penal Code, a paramount duty was cast upon the 2nd respondent to specifically allege and demonstrate the said facts, which the 2nd respondent has miserably failed to do so. But, the tribunal has contrived to make out a case on behalf of the 2nd respondent.

The learned counsel for respondent No. 2 has also relied upon two judgments, one of the Hon''ble Apex Court and another rendered by Co-ordinate Bench of this Court. There can be no quarrel with the principles of law enunciated either by the Hon''ble Apex Court or by the Co-ordinate Bench of this Court. It has been held that no party can be permitted to enrich himself by perpetuating a fraud. In the judgment rendered by the Hon''ble Apex Court in the case of United India Insurance Company Limited v. Rajendra Singh, Sanjay Singh, reported in LAWS (SC) - 2000 - 3 - 21, the Apex Court has held that the writ court exercising the powers under Articles 226 and 136 of the Constitution of India, is vested with the powers to recall an award in view of high level of fraud that was alleged and demonstrated in the said case.

In the present case though a fraud is alleged, the respondent has not let in any cogent evidence to demonstrate its allegation of fraud. In the said case, a reliable information was received by the insurer and acting upon the said information the Insurance Company sought for recalling of the award. In the case on hand, there is no such allegation that an information or extraneous material has been received by the insurer.

On the contrary, the allegation is based on surmises conjectures and short comings in the case of the claimants. As regards the judgment of the Co-ordinate Bench of this Court, the facts and circumstance in that case are totally at variance with the facts and circumstances of the case on hand. There the injured had declared before the hospital authorities that he had by himself dashed against the electric pole and it was also found that the injured was intoxicated. Later on, an effort was made by the injured to rope in and implicate the offending vehicle. But, in the case on hand, the offending vehicle has been traced as a result of the investigation by the jurisdictional police.

Another aspect that requires to be noticed is that the insurer has not thought it fit to initiate criminal proceedings against the alleged fraud. It is also not the case of the insurer that they had the matter investigated by any other private agency or by any of their officers. In view of the above, the said decisions are inapplicable to the facts and circumstances of the case.

The tribunal not only erred in wrongly casting the burden of proof on the claimants, for proving a fact that was never alleged by them, on the other hand, it condoned the failure of the 2nd respondent to prove a fact that was specifically asserted by them. Hence, the impugned judgment and order warrants interference.

The appeal is partly allowed. The impugned judgment and award dated 14.12.2011 passed by the Fast Track Court, Jamkhandi and M.A.C.T.-XI, Jamkhandi, is set aside.

The matter is remitted back to the tribunal for fresh consideration after affording opportunity to the parties to lead such evidence as they may deem it fit to canvass and establish their respective cases.

As the matter pertains to an accident of the year 2005, and almost a decade having passed, it would meet the ends of justice if the tribunal is directed to dispose of the same within a time frame of six months. The claimants and respondents shall appear before the trial court on 17.08.2015 and shall co-operate with the tribunal for speedy and expeditious disposal of the case. Appeal is disposed of accordingly.