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Judgment
B. Manohar, J.—1. The appellant-insurance company has filed this appeal challenging the judgment and award dated 25.04.2009 passed in MVC No. 133/2008 by the Motor Accident Claims Tribunal No. VIII, Muddebihal (hereinafter referred to as ''the Tribunal'' for short).
Respondent Nos. 1 to 4 herein claims to be the wife and children of deceased Kubusingh Lamani filed a claim petition before the Tribunal contending that the deceased Kubusingh Lamani was running a Dhaba. On 23.04.2007 at about 3.30 a.m. while he was returning from Bagalkot to his village on Bagalkot-Kaladagi PWD road, a lorry bearing Reg. No. KA-28/B-551 driven by its driver in a rash and negligent manner came and dashed against said Kubusingh Lamani. Due to that, he died on the spot. However, the driver of the said lorry without stopping the vehicle ran away from the accident spot. The claimants claimed that deceased was running a hotel and earning more than Rs. 40,000/- per annum. In view of death of the deceased, his family has lost the bread earner and sought for compensation of Rs. 7,65,000/-.
In pursuance of the notice issued by the Tribunal, respondent No. 1 - owner of the vehicle entered appearance and filed written statement contending that on 23.04.2007, in order to avoid the motorcycle coming from opposite direction, the driver of the lorry took the vehicle to left side of the road and dashed against the deceased Kubusingh Lamani, due to which he fell down. Thereafter, the crowd gathered to observe the scene of occurrence. The driver looking at the crowd and that they likely to assault him, left the spot. Further, he contended that the vehicle is covered by the insurance policy and insurer has to compensate the claimants and sought for dismissal of the claim petition.
The second respondent - insurance company also filed written statement denying the entire averments made in the claim petition and also disputed the occurrence of accident, age and income of the deceased. No document has been produced to show that the deceased died due to the accident occurred on 23.04.2007 at about 3.30 a.m. The compensation claimed is exorbitant, baseless and imaginary. The police also not registered any case against the driver. Hence, sought for dismissal of the claim petition.
On the basis of pleadings of the parties, the Tribunal framed necessary issues.
The claimants in order to prove their case, claimant No. 2, the son of the deceased was examined himself as PW.1 and got marked the documents as Exs.P1 to P7. On behalf of the respondents, none of the witnesses have been examined. However, with the consent of the advocate for the respondent, the insurance policy was marked as Ex.R1.
The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the statement made by the owner of the offending vehicle, held that the deceased died due to the rash and negligent driving of the lorry by its driver. The negligence is on the part of the driver of the lorry. Hence, the claimants are entitled for compensation.
With regard to quantum of compensation is concerned, at the time of death, the deceased was aged about 51 years. Taking into consideration the income of the deceased as Rs. 36,000/- per annum, deducting 1/3rd towards his personal expenses and applying the multiplier of 11, the Tribunal has awarded a sum of Rs. 2,64,000/- towards loss of dependency and Rs. 45,000/- towards conventional heads. In all, the Tribunal has awarded a sum of Rs. 3,09,000/- with interest at 6% p.a. as compensation. Being aggrieved by the judgment and award passed by the Tribunal, the insurance company has filed this appeal.
Smt. Preeti Patil, the advocate appearing for the appellant-insurance company contended that the judgment and award passed by the Tribunal is contrary to law. No document has been produced to show that the deceased died due to the road traffic accident. The police records clearly disclose that the dead body was found at 6.30 a.m. and thereafter the police have registered the case. Since the accident alleged to have been occurred at 3.30 a.m., there is no eyewitness for the occurrence of the accident. In the FIR, the vehicle number has not been mentioned. Even police have conducted the investigation. After thorough investigation, charge sheet has been filed on 02.07.2007. In the charge sheet also, they could not trace the vehicle and submitted the ''C'' report. Long thereafter, the claim petition has been filed on 11.07.2008 on the basis of the disclosure made by Hanmanth Yallappa Halloor and Peerappa Kotta who informed the claimants that due to the rash and negligent driving of the lorry bearing No. KA-28/B-551, the accident had occurred and deceased died on the spot. The person who has disclosed the vehicle number also not examined. No complaint has been lodged to the police after disclosure of the vehicle number. In order to get compensation from the insurance company, the insured vehicle was falsely implicated. Hence, sought for dismissal of the claim petition. In support of her contention, the advocate appearing for the appellant relied upon the judgment of the Division Bench of this Court reported in , ILR 2009 KAR 3562 (VEERAPPA AND ANOTHER VS SIDDAPPA AND ANOTHER).
Though respondent Nos. 2, 3 and 5 have been served with notice, they remained unrepresented. In respect of respondent Nos. 1 and 4 notice has been taken through paper publication. The paper publication was made available to the Court. Hence, service of notice to respondent Nos. 1 and 4 was held sufficient as per the order dated 29.01.2016.
I have carefully considered the arguments addressed by the advocate appearing for the appellant and perused the judgment and award passed by the Tribunal and the oral and documentary evidence adduced by the parties.
The case of the claimants is that on 23.04.2007 at about 3.30 a.m., deceased Kubusingh Lamani was returning from Bagalkot to his village. At that time, a lorry bearing Reg. No. KA-28/B-551 dashed against him; due to which, he sustained injuries and succumbed to the same. The driver of the offending vehicle has not stopped the vehicle even after the accident. On the next day morning, the patrolling police traced the dead body and registered the case. Thereafter, the claimants came to know that deceased Kubusingh Lamani died on 23.04.2007 at about 3.30 a.m. on Bagalkot - Kaladagi road. After registering the case, the police have investigated the case. They could not found anything with regard to the vehicle involved in the accident. After lapse of three months, the police filed ''C'' report stating that the offending vehicle could not be traced. Except injury to the head, there was no other injury to the body. The police suspected that the heavy object had hit the head, due to which the person died. In view of that, the case was closed. Long thereafter, the claim petition has been filed on 11.07.2008 seeking for compensation against the owner as well as the insurer of the said vehicle on the basis of the disclosure made by Hanmanth Yallappa Halloor and Peerappa Kotta who informed the claimants that due to the rash and negligent driving of the lorry bearing Reg. No. KA-28/B-551, the accident had occurred. In the evidence, PW.2 - the son of the deceased averred that though he has lodged the complaint informing the number of the offending vehicle, the police have not taken any action.
The owner of the vehicle entered appearance and filed the objections to the claim petition contending that his vehicle met with an accident and Kubusingh Lamani died on the spot. Since large number of persons had gathered, apprehending the assault on the driver, he ran away from the accident spot along with the lorry. Further, the vehicle is covered by the insurance policy and the insurer has to compensate the claimants and sought for dismissal of the claim petition as against him. However, respondent No. 2 - insurance company denied the occurrence of the accident and involvement of the insured vehicle.
The Tribunal without appreciating the evidence and without noticing the statement of objections, allowed the claim petition and awarded the compensation of Rs. 3,09,000/-. The statement of owner of the vehicle clearly discloses that there is collusion between the claimants and owner of the vehicle. In order to get compensation from the insurance company, the owner of the vehicle volunteered himself and the claim petition has been filed against the offending vehicle. The owner of the vehicle filed the written statement stating that his vehicle was involved in the accident. Large number of people have gathered and the driver out of fear of assault left the spot. However, the owner has lost sight of the fact that the alleged accident had occurred at about 3.30 a.m. in the morning. The question of gathering large number of people does not arise at all. If large number of persons gathered, any one of the person gathered would have lodged the complaint before the police or informed the police regarding occurrence of the accident. This is a case of hit and run. The two persons who have disclosed the vehicle number have also not lodged any complaint before the jurisdictional police. Further, those two persons were also not examined to prove that whether they have seen the occurrence of the accident. Admittedly, the alleged accident had occurred on 23.04.2007. The ''C'' report has been submitted by the police after investigation on 02.07.2007. The claim petition has been filed on 11.07.2008. No document has been produced to show that even after disclosure of the vehicle number, the claimants have lodged any complaint against the driver of the lorry and whether the police have seized the vehicle to find out that the said vehicle is involved in the accident or not. The Tribunal only on the basis of the statements said to have been made by Hanmanth Yallappa Halloor and Peerappa Kotta, without examining those persons, came to the conclusion that deceased Kubusingh Lamani died in the road traffic accident and awarded the compensation, which is contrary to law.
The judgment relied upon by the Tribunal is not applicable to the facts of this case. In the case on which the Tribunal has placed reliance, the vehicle number has been disclosed immediately after the accident. But in the present case, the persons who disclosed the vehicle number have not been examined. It is a hit and run case. Even after thorough investigation, the police could not be able to trace the offending vehicle. Only on the basis of the claim petition made and in collusion with the owner of the vehicle, the insured vehicle has been falsely implicated.
The Division Bench of this Court in the judgment reported in , ILR 2009 KAR 3562 in the case of VEERAPPA AND ANOTHER vs SIDDAPPA AND ANOTHER, at paragraphs 13, 15 and 17 has clearly held as under:
"13...........Even though the owner of the vehicle in unmistakable terms, has admitted the incident, that admission has no value in the eye of law. He has admitted something about which he has no knowledge and, which he has not seen. It is clear that the said admission is made with the sole object 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, it cannot be accepted as gospel truth.......
14................
Fraus et jus munquam cohabitant, Fraud and justice never dwell together, is 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 and also amounts to an abuse of the process of Court, the Courts 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.
16...................
In the instant case there is an attempt on the part of the 1st respondent/owner to collude with the claimants with the fond hope of saddling the insurance company to pay compensation. Though we feel sorry for the deceased and claimants, our sympathy should not offend the law. When the owner of the vehicle admitted the accident and had no objection for award of compensation, in order to see that in future such admissions are not made, it is proper for us to direct the 1st respondent who has made a categorical admission that his vehicle was involved in the accident, to pay compensation. It serves dual purpose. The claimants if they intend to recover compensation from the owner of the vehicle, this award would enable them to do so. It would also act as a sufficient deterrent to such owners who are planted in the case to foist liability on the Insurance Company, if they are made to pay from their pockets. Therefore, we proceed to assess the compensation payable by the insured only."
In the instant case, no material has been produced to show that the deceased died due to the road traffic accident occurred, except the statement of owner of the vehicle. The owner of offending vehicle, in collusion with the claimants to get compensation from the insurance company admitted that his vehicle had met with an accident. Reading of the written statement filed by the owner of the vehicle clearly discloses that it is an afterthought and that statement cannot be believed. The finding arrived at by the Tribunal has no basis. On the basis of statement of the owner, the liability cannot be fixed on the insurance company. Hence, the judgment and award passed by the Tribunal cannot be sustained. Accordingly, I pass the following:
ORDER
The appeal is allowed. The judgment and award dated 25.04.2009 passed in MVC No. 133/2008 by the Motor Accident Claims Tribunal No. VIII, Muddebihal is set aside. The claim petition is dismissed.
The amount in deposit be refunded to the appellant.