The Divisional Manager vs Rayan Fernandes
2021 Latest Caselaw 130 Kant

                             1                       R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 05TH DAY OF JANUARY, 2021

                         PRESENT

            THE HON'BLE MRS. JUSTICE S.SUJATHA

                           AND

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


               MFA.NO.7279 OF 2016(MV-I)
                         C/W
               MFA.NO.7110 OF 2016(MV-I)

IN MFA.NO.7279 OF 2016

BETWEEN:

THE DIVISIONAL MANAGER
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
VISHNU PRAKASH BUILDING
COURT ROAD, UDUPI
THROUGH ITS REGIONAL OFFICE
2ND FLOOR, SUMANGALA COMPLEX
LAMINGTON ROAD
HUBLI - 580 020
REPRESENTED BY ITS REGIONAL MANAGER
                                              ....APPELLANT
(BY SRI. B.S. UMESH, ADVOCATE)

AND:

1 . RAYAN FERNANDES
S/O FELIX FERNANDES
AGED ABOUT 29 YEARS
                              2


RESIDING AT "FERNANDES VILLA"
MUDAR VILLAGE
POST BAJAGOLI, KARKALA TALUK
UDUPI DISTRICT - 574 122

2 . MOHAMMED FAISAL
S/O SHEIK MOHAMMAD IQBAL
AGED ABOUT 27 YEARS
RESIDING AT YUSUF COMPOUND
IN FRONT OF SAINT MARY'S COLLEGE
SHIRVA VILLAGE
UDUPI TALUK AND DISTRICT - 574 116
                                           ....RESPONDENTS
(BY SRI. UMESH MULIMANI, ADVOCATE FOR
 SRI. S.V. PRAKASH, ADVOCATE FOR R1, V/O DATED
 16.01.2020 NOTICE TO R2 IS HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 08.07.2016 PASSED
IN MVC NO.230/2010 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, MEMBER, MACT, UDUPI, AWARDING COMPENSATION OF
RS. 22,77,400/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.


IN MFA.NO.7110 OF 2016

BETWEEN:
SRI. RAYAN FERNANDES
S/O FELIX FERNANDES
AGED ABOUT 29 YEARS
RESIDING AT "FERNANDES VILLA"
MUDAR VILLAGE
POST BAJAGOLI KARKALA TALUK
UDUPI DISTRICT - 574 102
                                                 ....APPELLANT
                               3



(BY SRI. UMESH MULIMANI, ADVOCATE FOR
 SRI. S.V. PRAKASH, ADVOCATE)

AND:

1 . SRI MOHAMMED FAISAL
S/O SHEIK MOHAMMAD IQBAL
AGED ABOUT 27 YEARS
RESIDING AT YUSUF COMPOUND
IN FRONT OF SAINT MARRY'S COLLEGE
SHIRVA VILLAGE
UDUPI TALUK AND DISTRICT - 576 101

2. THE DIVISIONAL MANAGER
M/S. THE ORIENTAL INSURANCE COMPANY LIMITED
VISHNU PRAKASH BUILDING
COURT ROAD, UDUPI-576 101
REPRESENTED BY ITS DIVISIONAL MANAGER
                                          ....RESPONDENTS
(BY SRI. B.S. UMESH, ADVOCATE FOR R2,
 NOTICE TO R1 IS SERVED AND UNREPRESENTED)

       THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 08.07.2016 PASSED
IN MVC NO.230/2010 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, MEMBER, MACT, UDUPI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

       THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.12.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT    THIS   DAY,   SACHIN   SHANKAR   MAGADUM   J.,
DELIVERED THE FOLLOWING:
                                      4


                            JUDGMENT

The captioned appeals are directed against the judgment

and award dated 8.7.2010 passed in MVC.No.230/2010 by the

Principal District Judge and Member, MACT, Udupi.

MFA.No.7279/2016 is filed by the Insurance Company

questioning false implication of the rider of the bike by the

first respondent-claimant with the connivance of the second

respondent-owner of the bike, whereas the claimant has

referred MFA.No.7110/2016 seeking enhancement.

2. For the sake of convenience, the parties are

referred to as per their rank before the Tribunal.

3. The facts leading to the filing of the above appeals

are as under:

The claimant filed a claim petition claiming compensation

of Rs.51 lakhs with interest at 12% p.a. The claimant

specifically contended in the claim petition that on 24.9.2008

at about 10.15 p.m., he was walking by the side of the road

and when he reached Bhajanakatte- Bommarabettu, Udupi

Taluk, a motor cycle bearing Regn.No.KA-20/V-1137 came

from the hind side in a rash and negligent manner to the

extreme side of the road and dashed against the cement drain

and thereafter dashed against him, as a result of the same

claimant fell down and sustained grievous injuries. Claimant

was immediately shifted to Kamath Nursing Home, Hiriadka,

and after first aid he was shifted to KMC Hospital, Manipal,

wherein he was admitted as an inpatient. The claimant

specifically averred in the claim petition that on account of

grievous injuries sustained in the accident, he had to undergo

treatment and had incurred medical expenses of Rs.4 Lakhs.

The claimant further contended that he has undergone

vocational training and also completed a course in mechanical

maintenance and he is a Industrial technician and has

undergone training and getting a salary of Rs.12,000/- p.m.

and on account of disability suffered in the above said road

traffic accident, he is virtually leading a vegetative life. The

claimant has further contended that he is the sole bread

earner and his father is a jobless person and his entire family

is dependant on his earning. On these set of grounds, he filed

the claim petition.

On receipt of notice, the first respondent-owner

appeared through an advocate and filed written statement

contending that the claimant has suppressed the true facts

regarding the alleged accident. He has specifically stated that

on the alleged date of accident, the rider of the bike was

proceeding in a careful manner and when he reached the place

called Bhajanakatte- Bommarabettu, the petitioner suddenly

crossed the road and dashed against the vehicle and sustained

grievous injuries. On these set of defences, the first

respondent claimed that the claimant is guilty of contributory

negligence on his part and as such he is not entitled for any

compensation.

The respondent No.2-Insurance Company filed written

statement and stoutly denied the entire averments made in

the claim petition. The respondent no.2-Insurance Company

at para 5 of the written statement specifically disputed the

very version narrated by the claimant in the claim petition. It

is the specific case of the Insurance Company that the

claimant was riding the motor bike on the alleged date of

accident. On account of his rash and negligent riding, he lost

control over the bike and sustained grievous injuries. The

second respondent-Insurance Company further contended that

since first respondent himself is the tort feasor, he is not

entitled to claim compensation and a specific averment was

also made at Para 5 of the written statement that owner of the

bike colluded with the claimant with an intention to saddle the

liability on the Insurance Company to pay the compensation

and that the claim petition is filed after two years. It is also

contended at para 9 of the written statement that the claimant

did not possess driving licence to ride the bike as on the date

of the accident. The other averments in regard to avocation,

salary and gravity of injuries sustained by the first respondent

is also seriously disputed by the Insurance Company.

The claimant examined his mother as P.W.1 and

examined himself as P.W.2. The first respondent also

examined one eye witness as P.W.4, doctor as P.W.3 and the

Investigating officer as P.W.5 To corroborate the ocular

evidence, the claimant got marked Exs.P1 to P22.

The second respondent-Insurance Company examined

three witnesses as R.Ws.1 to 3 and by way of rebuttal

evidence produced documentary evidence vide Exs.R1 to 9

and M.O.1-C.D.

On the basis of the pleadings, the Tribunal framed issues

as follows:

"1. Whether the petitioner proves that he sustained injuries because of the rash and negligent driving of the Motor Bike No.KA.20/V-1137 by its rider at Bhajana Katte, Bommarabettu Village, Udupi Taluk when the petitioner was walking by the side of the road?

2. Whether the 2nd respondent proves that the petitioner himself riding his Motor Cycle bearing

No.KA.20/V-1137 in rash and negligent manner and because of his fault, the accident had occurred?

3. Whether the 2nd respondent proves that the petitioner did not hold any effective driving licence at the time of the accident?

4. Whether the petitioner is entitled for the compensation? If so, to what extent?

5. What order?"

The Tribunal on appreciation of oral and documentary

evidence on record, dismissed the claim petition by judgment

dated 26.3.2013 against which the claimant filed an appeal

before this Court in MFA.No.6683/2013, which came to be

allowed by judgment dated 20.11.2015 remanding the matter

to the Tribunal for fresh disposal.

After remand, the Tribunal has taken up the matter for

fresh consideration. It is also borne out from the records that

after remand, neither the claimant nor the Insurance Company

have lead in any further evidence nor have produced any

additional documentary evidence in support of their

contentions.

The Tribunal after assessing oral and documentary

evidence has answered Issue No.1 in the affirmative and

having answered Issue Nos. 2 and 3 also in the affirmative,

the Tribunal has proceeded to award compensation of

Rs.22,77,400/- with interest at the rate of 6% per annum

from the date of claim petition till its realization by fixing

liability on the Insurance Company. Being aggrieved by the

same, both the claimant and the Insurance Company have

preferred these appeals.

4. Learned counsel appearing for the Insurance

Company would vehemently argue and contend that the

alleged accident has taken place on 24.9.2008 whereas the

claim petition is filed two years after the accident. This itself

would create a doubt in regard to the occurrence of the

accident as alleged in the claim petition. He would

vehemently argue and contend that the claimant himself was

riding the bike and on account of his negligence,the bike

skidded and he sustained injuries. He would further argue that

Tribunal erred in relying on the police records which are to be

out rightly discarded having regard to the facts and

circumstances of the case. Further, the owner of the bike who

is the second respondent herein has submitted his Motor claim

form on 24.10.2008 for damages caused to the bike which is

produced as per Ex.R2 wherein he has stated that claimant

was riding the bike on the alleged date of the accident. The

learned counsel would further submit that the offending bike

involved in the accident is owned by Smart Value Products and

Service Limited where the claimant was working and to

substantiate the said contention, the learned counsel for the

Insurance Company would take this Court to the photographs

which are produced at Exs.P56(a) to (c) and relying on these

photographs he would make an attempt to convince this Court

that the name of Smart Value Company which is embossed on

the bike is visible in the photographs. The learned counsel

would further bring to the notice of this Court a very

disturbing fact in regard to the first respondent having

engaged a counsel had not chosen to contest the proceedings.

The Insurance Company made all possible attempts to secure

his presence. At their instance summons was issued and

inspite of service of summons, the first respondent did not

appear before the Court. He would further submit that though

warrant was also issued, the same was not at all executed and

the first respondent succeeded in evading the proceedings

pending before the Tribunal. On these set of defences, the

learned counsel appearing for the appellant-Insurance

Company would submit that it is a classic case of fraud and

the claimant in collusion with the owner and Investigating

Officer has cooked up a false case to seek compensation.

To buttress his arguments, he has relied on unreported

judgments rendered by this Court in Veerappa and another

.vs. Siddappa and another [ILR 2009 KAR 3562],

Branch Manger, Oriental Insurance Company Limited

.vs. Kempamma and others [2014 KAR 3336], New

India Assurance Company Limited .vs. Jagadeesh Reddy

and another [MFA.962/2007] Smt. Arathy .vs. S.M.

Umesha [MFA.No.7025/2011] and Bajaj Allianz General

Insurance Company Limited .vs. B.C. Kumar [ILR 2009

KAR 2921].

5. Per contra, learned counsel appearing for the

claimant would vehemently argue and contend that the

documents produced by the claimant as per Exs.P1-FIR,

P1(a)-complaint, P2-spot mahazar, P55-charge sheet would

clearly establish rash and negligence of the rider of the bike

involved in the accident. He submits that the clinching

evidence on record establishes that the claimant was

proceeding as a pedestrian on the road and the rider of the

bike was rash and negligent and has caused the accident

whereby the claimant sustained grievous injuries.

Insofar as delay is concerned, learned counsel would

submit that the claimant on account of grievous injuries was

suffering from Schizophrenia and on account of grievous

injuries he was not in a position to lodge complaint with the

jurisdictional police. Learned counsel would further contend

that the claimant has succeeded in proving the accident by

producing the police records and as such the grounds raised

by the Insurance Company in regard to the manner in which

the accident has occurred cannot be examined. On these set

of defences, learned counsel for the claimant would submit

that the Tribunal has rightly assessed the oral and

documentary evidence and has rightly answered issue No.1 in

the affirmative.

The quantum determined is based on legal evidence

produced by the claimant and in that view of the matter the

judgment and award would not warrant interference by this

Court.

6. Heard the learned counsel for the Insurance

Company and the claimant and perused the pleadings of the

parties. We have meticulously examined and reassessed the

oral and documentary evidence.

7. The points that would arise for our consideration

are as follows:

"(1)Whether the Tribunal was justified in holding that the claimant has proved that he has sustained injuries in the road traffic accident on account of rash and negligent riding by the rider of the bike by answering issue No.1 in the affirmative?

(2)Whether the finding of the Tribunal that the appellant-Insurance Company has failed to establish that the claimant himself was riding the bike and the accident occurred on account of rash and negligent riding by the claimant himself is perverse, palpably erroneous and contrary to clinching evidence on record?"

8. ANSWER TO POINT NOs. 1 and 2 :

The claimant filed the claim petition by contending that

he was walking by the side of the road towards Bhajanakatte

on 24.9.2008 and at that juncture the rider of the offending

bike owned by the first respondent came in a rash and

negligent manner and dashed against him and as such he

sustained grievous injuries. The accident has occurred on

24.9.2008 whereas the claim petition is filed by the claimant

on 12.3.2010. There is inordinate delay in filing the claim

petition and the delay has a relevancy in the present case on

hand which would be discussed later.

The Insurance Company has seriously disputed the

manner in which the accident has occurred. At para 5 of the

written statement it has taken a specific contention that the

claimant was infact riding the bike and he sustained injuries

on account of his own negligence.

To substantiate the defence, the second respondent-

Insurance Company has lead in evidence and has also

produced rebuttal documentary evidence. After the accident,

the first respondent who is the owner of the offending bike has

submitted a claim form as per Ex.R2 on account of damage

caused to the bike wherein certain particulars are furnished.

On meticulous perusal of this claim form, we would find that

the first respondent is the owner of the offending bike and also

insured and the same is reflected in the column relating to

details of insured. Clause 3 of the claim form would disclose

significant details and would clinch the entire controversy in

regard to the manner in which the accident has occurred.

Clause 3 of the claim form at Ex.R2 discloses as to who was

riding the bike on the date of the alleged accident. The first

respondent-owner of the bike has in unequivocal terms stated

that it was the claimant who was riding the bike. Further at

clause 5 at page 3 of the said claim form, the first respondent-

owner has further furnished the details of the accident which

would throw enormous light over the manner in which the

accident has occurred. The said details are equally significant

and self explanatory as to why the first respondent has filed

the claim petition after lapse of two years. At clause 5 which

relates to the details of the accident, the owner has stated

that his friend was riding the bike. He has also stated that on

24.9.2008 at about 9.00 p.m. while he was proceeding

towards Udupi Shirva on a bike, a dog suddenly came in the

middle of the road and his friend namely the claimant, in order

to avoid the accident tried to veer the bike and while doing so,

the bike skidded and as such the damage is caused to the

bike.

9. These two significant details at clauses 3 and 5 of

the claim form which was submitted by the first respondent-

owner at undisputed point of time would clinch the entire issue

and would leave no doubt as to how the accident has

occurred. Further, it emerges from the details furnished in

claim form as per Ex.R2 that the owner had acquaintance with

the claimant and it is on account of such acquaintance, he had

entrusted the bike to the claimant. He has also stated in

unequivocal terms that accident occurred when his friend i.e.

claimant tried to avoid the dog which abruptly came in the

middle of the road. This clinching evidence which is placed on

record by the Insurance Company would not only create a

doubt in regard to the manner of accident but the same would

also falsify the very case of the claimant. This material fact

stands further strengthened in view of the withdrawal of the

claim form by the owner as per Ex.R7. As per Ex.R3, the

insurer's Surveyor and Loss officer has submitted a report

assessing the damage caused to the bike. This is dated

26.10.2008. However, on 28.10.2008 as per Ex.R7, the first

respondent-owner of the offending bike has submitted an

application saying that he is withdrawing the claim form on the

ground that the valuer has not properly assessed the damage

caused to the bike and the assessment of damage at

Rs.2,700/- is very much on the lower side. The claimant to

substantiate his case is relying on evidence of P.W.4 and the

police records as per Exs.P1 to P3, P4 namely FIR, complaint,

copy of spot mahazar, copy of police notice and Ex.P55 which

is the charge sheet. We have meticulously gone through the

evidence of P.W. 4 and we do not hesitate to hold that this

witness is deliberately planted and no credence can be

attached to his ocular evidence.

10. The Tribunal has lost sight of one more material

aspect which would have bearing on the conclusions arrived on

issue Nos.1 and 2. The Insurance Company having set up a

plea that this claim petition is a collusive one and the same is

filed in connivance with the owner-first respondent and also

police officials, during the pendency of the trial, first

respondent-owner though filed written statement but however

did not choose to contest the proceedings. At the instance of

the Insurance Company, the Tribunal issued summons.

Inspite of service of summons, the first respondent-owner did

not appear before the Court. The Tribunal to secure presence

of the first respondent-owner issued arrest warrant. The first

respondent-owner of the offending bike evaded the arrest

warrant and did not choose to appear before the Tribunal.

This material fact would indicate that the claimant has

colluded with the owner and has filed the claim petition with

the fond hope of saddling the liability on the Insurance

Company to pay compensation.

11. The Tribunal in the present case on hand has erred

in accepting the police records. The Tribunal has also erred in

drawing adverse inference against the Insurance Company for

having failed to examine the first respondent-owner to

corroborate Exs.R1 and R2. The Tribunal also erred in holding

that evidence of R.W.3 is contrary to evidence of P.Ws.2, 4

and 5 and also contrary to documentary evidence as per

Exs.P1, P1a and P2. It is a trite proposition of law that the

Tribunals are required to take a holistic view while assessing

the police records relating to the registration of the crime in

motor accident cases. But, however, when Insurance

Company comes up with a definite case that there is a

fraudulent claim, in such cases, the Tribunal is required to be

cautious in accepting the police records. The Tribunal

generally places reliance on the FIR, spot sketch and charge

sheet in all cases where there is no serious dispute by the

Insurance Company.

12. In the present case on hand, the Tribunal has

adopted an approach which is totally one sided and has

virtually discarded clinching rebuttal evidence adduced by the

second respondent-Insurance Company. On meticulous

examination of the clinching evidence adduced by the

Insurance Company and after having examined the evidence

of P.Ws.2, 4 and 5, we are of the view that the second

respondent-Insurance Company has succeeded in establishing

the fraud played by the claimant with the connivance of the

owner. The claim petition is filed after two years and this

inordinate delay is not at all properly explained. The delay in

filing the claim petition would only indicate that the claim

petition is filed after due deliberations. The averments made

in the claim petition are based on distorted facts with the aid

of police officials also. The ocular evidence of P.W.4 who

claims that he has witnessed the accident is not at all

trustworthy and reliable and is full of improbabilities. The

Tribunal has grossly erred in relying on the evidence of P.W.4.

The presence of P.W.4 appears to be doubtful since the spot of

accident varies in the claim form as per Ex.R2 and in the

police records. His statement also creates a doubt. If his

evidence is meticulously examined and his narration in regard

to the manner in which the accident has taken place is taken

into consideration, his evidence has to be out rightly

disbelieved and discarded since he has come forward to

depose falsely in regard to the manner in which the accident

has taken place.

13. Now coming to the evidence of P.W.5 who is the

Investigating Officer, we have meticulously assessed his

evidence. In the cross-examination, he has stated that he

took over investigation from one Madhava.S. Assistant Sub-

Inspector. He has further stated that all the statements were

recorded by the ASI. P.W.5 has stated that he has verified the

statements collected by the earlier Investigating Officer. This

witness has stated that he has not verified as to whether

Shabbir Ahammed accused in Cr.No.80/08 has sustained any

injuries or not. This statement has a relevancy to the present

case on hand. The claimant as well as first respondent-owner

have set up this Shabbir Ahameed, who is shown to be rider of

the bike. But P.W.5 would conveniently pass on the buck to

the earlier Investigating Officer and has stated that he has not

verified as to whether Shabbir Ahameed, suffered any injuries.

P.W.5 has also stated that claimant who has submitted the

written complaint on 25.09.2008 has not disclosed the name

of the rider. P.W.5 has further stated that he has filed the

charge sheet against one Shafi Ahammed on the basis of the

statement of eye witness namely Mohammed Afsar i.e. P.W.4.

What emerges from the records is that investigation is

deliberately flawed. Though we are not examining the

correctness of the charge sheet, but this Court has to take

judicial note of the conduct of the Investigating Officers who

are investigating the road traffic accident cases. The charge

sheet submitted cannot be accepted as a gospel truth in all the

cases. In recent years, it has become rampant where

investigating Officers in connivance with the claimant and also

the owner of the vehicle involved in the accident are distorting

facts to suit their purpose and accordingly to enable them to

claim compensation. It is well known that when a little brief

authority frequently upsets the mental balance of the police

officers, they are inclined to think that they are not public

servants but public masters. The Investigating officers with

their powers are often overstepping their powers and are

virtually assisting the claimants in falsely implicating vehicles,

riders, drivers with malafide intent to saddle liability on the

Insurance Company. The Investigating Officers have forgotten

that their prime duty is not merely to bolster up the

prosecution case with true facts but also to bring the real and

unvarnished truth. But Alas, very little of this principle is

discernible these days in the police enquiries and

investigations. This is what precisely happened in the present

case on hand. There are two Investigating Officers, who have

investigated the case. We would not hesitate to hold that it is

a deliberate ineffective investigation to enable the claimant to

seek compensation. The guidelines issued by the Hon'ble

Apex Court in catena of judgments wherein the Tribunal are

required to take holistic view of police records cannot be made

applicable to fraudulent cases. In the case on hand, the

reliance placed on police records has to be out rightly

discarded in the light of clinching rebuttal evidence adduced

by the Insurance Company.

14. The Tribunal has not assigned any cogent reasons

in discarding the rebuttal evidence adduced by respondent

No.2-Insurance Company. On the contrary, the Insurance

Company has succeeded in proving that the claimant has

played fraud. The details furnished by the first respondent in

the claim form submitted as per Ex.R2 to the Insurance

Company would clearly establish the manner in which the

accident has taken place. There is absolutely no evidence to

counter Exs.R2 and R7 and this clinching evidence as per

Exs.R2 and 7 would displace and outweigh the slender

evidence adduced by the claimant which is quite shaky and

does not contain any ring of truth. It is also forthcoming

from the rebuttal evidence adduced by the Insurance

Company that claimant has also shifted the spot of accident.

The spot of accident as stated in the claim form and the one

stated in the police records are totally different. This would be

a material contradiction which would also create a doubt in

regard to P.W.4 having witnessed this accident, who has made

a statement before the Tribunal that he was proceeding

behind the bike on the alleged date of accident. This would

also create a doubt and an inference has to be drawn that the

accident has not taken place at Bajanakatte as alleged in the

claim petition and in the police records. In the present case

on hand, the Insurance Company has succeeded in

establishing that claimant himself was riding the bike and

accident has occurred on account of his own negligence. The

claim petition is filed in collusion with the owner of the bike

and has set up a false case by stating that the first respondent

was proceeding by walk. In ocular evidence, the claimant has

tried to give an explanation that he was visiting a customer at

10.15 at night and the alleged spot where the accident has

taken place is at a distance of 45 kms. from his residence. He

has conveniently withheld the details as to whose house he

was visiting at night at around 10.15 p.m. If claimant's

residence was 45 Kms. away from the spot of accident, it is

not forthcoming as to how he could have walked all the way

back to his residence. This would probabalise the theory and

defence set up by the Insurance Company that claimant was

infact riding the bike on the date of the alleged accident and

the first respondent who happens to be his friend had

entrusted the bike to the claimant. This details which would

have a bearing on the conclusion have been virtually ignored

by the Tribunal.

15. The judgments cited by the counsel appearing for

the second respondent are squarely applicable to the case on

hand. Since the Insurance Company has succeeded in

establishing the fraud, they are not liable to indemnify the

owner of the vehicle who has played prominent role in playing

fraud on the Court. As such the Insurance Company is not

liable to pay any compensation to the claimant who has played

fraud on the Court. We are of the view that there is no

obligation on the part of the Insurance Company to indemnify

the insured even though first respondent-owner has taken the

policy and the statute mandates the Insurance Company to

pay compensation. As held by the Division Bench of this Court

in Veerappa and another .vs. Siddappa and another [ILR

2009 KAR 3562] the said statutory obligation stands

discharged. There is no third party liability on the Insurance

Company to pay compensation to the claimant. Accordingly,

the appeal filed by the Insurance Company is liable to be

allowed.

16. Since the clinching rebuttal evidence clearly

demonstrates that the claimant himself was riding the bike

and on account of his own negligence he sustained injuries,

the claimant cannot maintain claim petition either against the

Insurance Company or the first respondent-owner, and

accordingly the appeal filed by the claimant is liable to be

dismissed.

In view of the above discussions, the points formulated

by this Court are answered in the negative.

17. For the foregoing reasons, the appeal filed by the

Insurance Company in MFA.No.7279/2016 is allowed and the

claim petition is dismissed. Consequently, the appeal filed by

the claimant in MFA.No.7110/2016 seeking enhancement also

stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

*alb/-.