The Oriental Insurance Co. Ltd. vs B.K. Somashekar and Others

S.N. Satyanarayana, J.—The second respondent insurance company in MVC. No. 900/2008 on the file of MACT, Bangalore, has come up in this appeal challenging the liability fastened on it to pay compensation for the injuries suffered by claimant in aforesaid claim proceeding.

Brief facts leading to this appeal are that claimant before Tribunal Sri. B.K. Somashekar is first respondent herein. According to him on 12.9.2007 at about 9.00 am., he was proceeding from his house to his office on his motor cycle bearing registration No. KA-01/S.2123; when he was proceeding on R.V. Road near R.V. Circle of Basavanagudi his vehicle was hit by second respondent herein, Sri. S.S. Venkatesh, who was the rider of motor cycle bearing registration No. KA-04/EQ.8650, which is insured with appellant herein. In the said accident, claimant is said to have suffered fracture of lower 1/3rd of both bones of left leg; immediately after the accident, he was shifted to Shekar Hospital where he was inpatient for a period of 3 days and during said period surgery was conducted to set right the fracture and thereafter, claim petition was filed by him seeking compensation.

In the claim proceeding, second respondent, insurance company represented through counsel filed its written statement, wherein a specific defence was taken that the proceeding initiated by claimant is a false one; the vehicle said to have caused the accident is framed for wrongful gain; the accident has not taken place in the manner in which it is explained and there is no involvement of the vehicle insured with it in causing the accident. In the said claim proceeding, based on the pleadings, issues were framed and thereafter, parties were called upon to adduce evidence. On behalf of claimant he examined himself as P.W. 1 and examined one Dr. Roshan Kumar as P.W. 2. The claimant produced several documents, out of that he marked only Exs. P1 to P52 in support of his case. On behalf of respondent - insurance company one of its officer was examined as R.W. 1 and Exs. R1 to R5 were produced and marked in support of the defence raised by it.

The Tribunal on appreciation of pleadings, oral and documentary evidence available on record proceeded to answer issue No. 1 holding that injuries suffered by claimant is caused in the road traffic accident, involving motor cycle belonging to first respondent and insured with second respondent. Consequently, by allowing the claim petition in part awarded compensation to claimant in a sum of Rs. 1,30,000/- and interest is awarded on Rs. 1,20,000/- at 6% pa., from the date of petition till date of payment of entire amount. Being aggrieved by the same, second respondent insurance company in MVC. No. 900/2008 has come up in this appeal trying to bring to the notice of this Court the discrepancies in the material on record; the manner in which the police and claimant have joined hands in framing the vehicle belonging to first respondent as the vehicle causing accident, consequently trying to fasten liability on insurance company.

Heard the learned counsel for appellant as well as contesting respondent. Perused the pleadings, oral and documentary evidence available on record as well as grounds of appeal. A perusal of the same would disclose that proceeding before Tribunal is a stage-managed one by claimant with the assistance of Basavangudi police, who received the complaint and registered FIR on 12.9.2007 at about 10.30 am., as if the said complaint was lodged by claimant before the police on 12.9.2007 at about 10.30 am. The first and foremost thing which is to be seen in this proceeding is the documents which are produced by claimant before Tribunal and such of those documents, which are marked. The list of documents discloses that first of the documents produced by claimant is complaint lodged by claimant and FIR which is registered pursuant to complaint. Though said two documents are listed in the list of documents produced before the Tribunal, deliberately those two documents are not marked. Leaving these two documents aside, several other documents are marked in the claim proceeding. However, the documents which are produced before Tribunal which are the certified copies issued by jurisdictional police are available on record. With this, if the records are looked into it is seen that fall of claimant from motor cycle belonging to him on 12.09.2007 at about 9 am., is not in dispute. It is also not in dispute that the fall of claimant from his scooter has caused certain injuries as stated in the wound certificate, which is produced by him and marked as Ex. P5 before the Tribunal. However, the explanation which is given by claimant and which is tried to be substantiated by police and P.W. 2 doctor to show as if said injuries are received by claimant due to collision between motor cycle, which he was driving and motor cycle belonging to first respondent before Tribunal, is totally false.

The documents would reveal that claimant, who was proceeding on RV Road is said to have fallen for the reason not shown in the documents resulting in fracture of both bones of his left leg. Thereafter, it is seen that first respondent has helped him in reaching Shekar hospital and where he is said to be admitted initially for treatment for the injuries suffered. It is from said hospital intimation regarding accident is given to police as could be seen from the evidence of P.W. 2-doctor, who in unequivocal terms would say that at 10.10 am., claimant was brought to Shekar hospital, where he was admitted for injuries stated in the wound certificate - Ex. P5 and said injuries suffered by him was subsequently informed to police by hospital by sending a memo.

However, the police records would reveal the facts otherwise. The complaint which was not marked but available on record would indicate that at about 10.35 am., claimant himself walked into the police station and lodged a complaint against first respondent for rash and negligent driving resulting in injuries to his left leg causing fracture of both bones. Curiously enough, police records would start building up thereafter. In the complaint, claimant would state that he was hit by the rider of motor cycle No. KA-04/EQ-8650 and the rider ran away from that place. But, nowhere in the complaint he states the name of rider of offending vehicle and nowhere he refers to the mobile number of said rider. However, surprisingly, the police were able to get mobile number of said rider, from whom it is secured in not shown in any of the records and it goes on as if they telephoned to him and secured his presence in the police station at 12.00 noon and thereafter, his vehicle was seized and was referred to motor vehicle department for inspection. It is seen that motor vehicle inspector as if he was waiting for such an information from police would come immediately to police station and would inspect not only the vehicle of claimant but also that of first respondent and would submit his report before 2.30 pm., so on goes the documents, which are recorded by the police.

It is further seen that claimant who was admitted to hospital of P.W. 2 on 12.9.2007 underwent surgery in said hospital and got discharged on 14.7.2009. In the proceeding before tribunal at the time of giving evidence claimant would state in unequivocal terms that immediately after accident which took place at 9 am., he was taken to hospital, he reached hospital at 10.10 am., and was admitted there. If that is admitted to be true, then how a complaint can be registered by police at 10.30 am., in the police station as if it is submitted by claimant himself, is something which is not properly explained by claimant. It is further seen that in the complaint the complainant himself says that he was hit by the rider of vehicle bearing registration No. KA-04/EQ-8650 and would further say that he ran away from that place. But, how and when he came to know about his name, how he secured his mobile number and how he was able to summon that person to police station is not disclosed. To support these two contradictory versions, the doctor who is said to have treated claimant would give evidence as P.W. 2 and would state that claimant reached hospital at 10.10 am., by himself, he was admitted to hospital and thereafter, when he stated that he has suffered injury in a motor vehicle accident, the same was informed to police to be taken up as medico legal case and on the basis of that police have taken steps to register the case.

In that view of the matter, what is to be seen is that an incident of fall of claimant from his scooter is converted into an accident initially by claimant, which is supported by police and ratified by doctor while giving his evidence. The fraud which has commenced in this way unravels further. When P.W. 2-doctor claims that he is the doctor, who treated claimant when he was in Shekar hospital; it is he who conducted surgery on him; it is he who issued discharge certificate to him and it is he who also gave disability certificate at Ex. P5. The evidence of P.W. 1 - claimant is contrary to it, according to claimant, he was treated by Dr. Iythal, the proprietor of Shekar hospital and it is who treated the claimant until he was discharged. With this, it is seen that entire record is nothing but a bundle of manipulated and created documents to support the false and unjustifiable claim of claimant, who is first respondent herein.

The evidence of respondent - insurance company speak of the accident differently, which would indicate that accident has not at all taken place as stated by claimant. Exs. R1 to R5 support their defence that accident has not at all taken place as claimed by claimant. Ex. R1 is insurance certificate-cum-policy indicating issuance of policy by appellant in favour of second respondent- owner of alleged offending vehicle. Ex. R2 is the letter dated 4.10.2007 written by the owner of offending vehicle, second respondent herein contending that he was trying to be a good Samaritan to help the claimant, who fell down from his scooter due to his own fault and as he was nearby, he was requested to help claimant; it is he on humanitarian grounds assisted him to get up from the place of accident and helped him to move aside; it is only after he reached his office, he received a call from Basavanagudi police asking him to come down to police station for interrogation regarding hit and run case; thereafter, his vehicle was forcibly seized and same was utilized for the present case. It is further seen that there is one more letter written by him on 22.11.2007, where he tried to explain how police tried to manipulate the records in such a way to show that he is involved in causing the accident.

To support its contention the learned counsel for appellant took this Court through Ex. R4, which is motor vehicle accident report. The accident report would clearly indicate that no damage is caused to the vehicle, which the claimant was riding namely KA-01/S.2123. According to him, his vehicle was hit from backside by the rider of motor cycle bearing registration No. KA-04/EQ.8650 belonging to second respondent herein. But, the motor vehicle report which is at Ex. R4 would clearly disclose that there are no damages to vehicle bearing registration No. KA-04/EQ.8650 or to back portion of claimant''s scooter bearing registration No. KA-01/S.2123. However, the motor vehicle report says that the brake lever of motor cycle on which the claimant was traveling is cut indicating that could be the reason for claimant falling down. With this it is seen that the man who was next to the claimant, who fell from his scooter, is sought to be included as if he has caused the accident. Assuming for a moment that if accident has taken place as contended by claimant in his claim petition and evidence, there would be damage to said vehicle which would be seen in the inspection conducted by the motor vehicle inspector. In the instant case, when no such thing being noticed with reference to vehicle of second respondent herein, the alleged owner of offending vehicle, it is clearly seen that the accident and consequential building up of record as if claimant has suffered injury in a road traffic accident involving vehicle of second respondent, is nothing but an attempt to falsify record to help the claimant in securing compensation for the injuries suffered in self-fall from the motor cycle belonging to him.

When all these facts are available on record and they are glaring at the face of the person, who would go through the same, how the Tribunal was not able to look into the same and how it ignored these documents is something which this Court is unable to comprehend. It is seen that the Tribunal has considered the entire proceeding in a cavalier manner without even bothering to look into the correctness or otherwise of the documents and without even bothering to look into the defence raised by second respondent before it i.e., insurance company at the first opportunity movement. The whole thing appears to be as if the Tribunal has proceeded with a belief that when once police documents are available with reference to accident, question of looking into the correctness or otherwise of same is not necessary, as such complaint filed with police, the averments made in the claim petition and the evidence of claimant has led the Tribunal in entertaining a false and frivolous case built on the premise of framing a vehicle belonging to second respondent herein, which is insured with the appellant, which has resulted in gross injustice.

Infact, this Court has observed in several cases that, when framing of vehicle is done by the police, the normal reaction of common man would be to meekly accept the same. But here is a case where the second respondent herein has stood up to the occasion and has stated in his letter Ex. R3, which is a complaint to the Commissioner of Police regarding the manner in which the police have utilized their office in falsely implicating his vehicle only to assist a fraudulent claim of the claimant. Inspite of said document being available on record, the Tribunal has conveniently ignored the same and felt that pleading and evidence in claim petition should be accepted as gospel truth and consequently, allowed the claim petition. In that view of the matter, this Court feel that in the facts and circumstances, the accident itself is not proved and the injury which is caused to claimant is the injury caused due to his fall from his own scooter due to his mistake in riding his vehicle. When that being the case, question of considering the same as injury caused due to rash and negligent driving of vehicle belonging to second respondent herein, namely S.S. Venkatesh s/o S.R. Srinivas and to accept that insurer of vehicle belonging to S.S. Venkatesh is liable to pay the compensation, is unacceptable. The said claim is without any basis.

In the result, the appeal filed by insurance company is allowed. The finding of Tribunal in judgment and award dated 1.1.2011 passed in MVC. No. 900/2008 on the file of MACT, Bangalore, in fastening liability to pay compensation on the owner and insurer of motor cycle bearing registration No. KA-04/EQ.8605 is without any basis and accordingly, the same is set aside.

In view of the appeal of insurance company being allowed, the statutory amount in deposit in this appeal is ordered to be released in favour of appellant.