Karnataka High Court
Sri. Veerabhadraiah Swamy vs N Virupakshi @ Virupakshappa N on 23 June, 2021
Author: Krishna S. Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE 2021
®
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
M.F.A. No.101901/2017 (MV)
Between
Sri Veerabhadraiah Swamy,
S/o Shivamurthy Swamy,
Aged about 52 years,
Occ: Agriculturist,
R/o Dodda Anathapura village,
Sandur taluk, Ballari District-583103. ...Appellant
(By Sri. Y.Lakshmikant Reddy, Advocate)
And
1. N.Virupakshi @ Virupakshappa N.,
S/o late Anjinappa,
Aged about 36 years,
Rider of the motorcycle No.34/U-1161,
R/o B.Belgal village, Ballari Taluk
& District-583103.
2. Shivappa K., S/o Kumaraswamy,
Aged about 42 years,
2
Owner of the motorcycle No.34/U-1161,
R/o 1st Ward, Janatha Oni,
Dodda Anathapur village,
Sandur Taluk,
Ballari district-583103.
3. M/s Oriental Insurance Company
Limited, by its Manager,
Main Road, Parvathi Nagar,
Ballari-583103. ...Respondents
(By Sri. S.V.Yaji, Advocate for R3)
(Notice to R1 & R2 dispensed with)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, against the judgment and award dated 03.03.2017
passed in MVC No.64/2015 on the file of the Member, Motor
Accident Claims Tribunal-II, Ballari, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This MFA appeal coming on for Admission this day,
Krishna S.Dixit, J, delivered the following:
JUDGMENT
This appeal by the claimant calls in question the Judgment
& Award dated 03.03.2017 entered by the MACT-II, Ballari,
whereby his claim in MVC No.64/2015 having been marginally
favoured a compensation of Rs.20,000/- has been awarded with
interest at the rate of 7% per annum; the appeal is founded on
the ground of inadequacy of compensation.
2. After service of notice, the respondent-insurer
having entered appearance through its panel counsel resists the
appeal making submission in justification of the impugned
award and the reasons on which it is structured inter alia
contending that the very claim for compensation is fraudulent
and therefore, this appeal deserves dismissal with exemplary
costs; he further contends that since only a small sum of
Rs.20,000/- is awarded by the MACT, no appeal is filed by the
insurer, the game being not worth the candle.
3. Brief facts,
(a) The vehicular accident allegedly happened on 30.08.2014 at
around 7.30 a.m. on Kudithini-Ananthpur Road in Sandur
Taluka of Ballari District; the claimant whilst riding his
motorcycle bearing Registration No.KA-34/W-8978 having
been dashed down by the offending motorcycle bearing
Registration No.KA-34/U-1161, sustained injuries to various
parts of the body. His claim petition was stoutly opposed by
the insurer by filing the Written Statement.
(b) To prove his case, claimant got examined himself as P.W.1;
one Mr.H.S.Ananthamurthy was also examined as P.W.2
through Commission; Dr. Lakshmi Narayana, who had
issued the Disability Certificate, was examined as P.W.3;
from claimant's side eighteen documents came to be
produced & marked as Ex.P.1 to P.18; these inter alia
comprised of Police Papers & Medical Reports, etc. From the
side of insurer although none had entered the witness box,
a copy of insurance policy came to be produced and marked
as Ex.R1, presumably with consent.
(c) The MACT having considered the pleadings of parties and
having weighed evidentiary worth of the material on record
has entered the Judgment & Award that are put in challenge
by the claimant on the ground of inadequacy of
compensation.
4. Having heard the learned counsel for the parties and
having perused the original TCR, we decline to grant indulgence
in the matter and anguishingly impose heavy costs on the
claimant for the following reasons:
(a) The accident allegedly happened on 30.08.2014 at 7.30
a.m. when the offending motorbike bearing Registration
No.KA-34/U-1161 had dashed claimant's motorcycle from
behind and as a result thereof he suffered some injuries; all
this may be taken to be true, of course with reluctance,
since there is no formal challenge to this finding by the
insurer by way of appeal or cross-objection; had it been
otherwise, we are not sure that we would have sustained
this finding; be that as it may.
(b) Admittedly, claimant had the medical history of coronary
problem when the accident happened; because of the
alleged injuries caused by the accident, he was treated at
the Government College & Hospital i.e., VIMS-Ballari, as an
out-patient; the Wound Certificate, dated 30.08.2014,
issued by the General Duty Medical Officer at Ex.P.5
specifically states that the "injuries are simple in nature";
this opinion was formed by the said Medical Officer after
examination & on the basis of radiological tests, as is
stated in the very Certificate itself; there being no reason to
doubt the same, the said opinion has to be treated as the
expert opinion under Section 45 of the Evidence Act, 1872
and therefore, carries a lot of weight, nothing emerging
from the record for discounting it's probative value.
(c) Later, the claimant moved to Narayana Institute of Cardiac
Sciences at Bengaluru wherein he had admittedly
undergone coronary related operation & treatment in a long
hospitalization; in his affidavit-evidence, at para 2, 3 & 4,
he has stated that the said accident resulted in "severe
injuries over chest, head, forehead, nose, face, abdomen,
hands & legs" and that all this happened only because of
the accident which has "decreased his life span due to heart
injury"; all this is false, to say the least; neither in his claim
petition nor in his affidavit evidence, he has mentioned
anything about his pre-existing heart ailment; as already
mentioned above, he had not suffered any injury to the
chest, much less heart nor to any vital organ; had it been
otherwise, the Wound Certificate at Ex.P.5 would have
mentioned the same; there is no reason for the
Government Doctor in VIMS to write a false or wrong
certificate; that is not the case of claimant, either;
(d) Even in the cross-examination, dated 09.06.2016, he falsely
asserts that he suffered the heart ailment only because of
the accident though the medical records of the Heart
Hospital even remotely do not whisper about it; on the
contrary, Dr. Lakshmi Narayana K., whom he had examined
as P.W.3 himself has stated that the heart ailment of the
kind i.e., blockages do not occur abruptly; this apart, by no
stretch of imagination, it can be stated that blockages in
the heart could happen by the kind of the vehicular
accident. A perusal of deposition of the claimant given as
P.W.1 not only does not generate confidence but appears to
have been designed for extracting huge money from the
insurer; this is nothing short of perjury.
(e) The claimant has also suppressed the reimbursement of
huge expenses incurred by him for the heart treatment
under "Yashashvini Co-operative Health Care for Farmers" a
welfare Scheme of the Government, both in his claim
petition & affidavit evidence; in his cross-examination, he
has not denied the receipt of money but he only feigns
ignorance as to the same having been not mentioned in the
claim petition; it is said that, truth somewhere & somehow
trickles out, and that has happened in this case; Ex.P.9A is
the final bill issued by the Heart Hospital; it mentions the
Corporate Sponsorship as "Yashashvini Co-operative
Farmers Health Care Trust" with Account No.1043; thus,
the claimant being a "clandestine liar" cannot be believed at
all; he has designed his case on fraud, fabrication &
duplicity and therefore, he is liable to be non-suited vide
S.P. Chengalvaraya Naidu (dead) by L.Rs. V. Jagannath
(dead) by L.Rs. and others, AIR 1994 SC 853.
5. As to Dr. Lakshmi Narayana K., of Prakash Clinic,
Ballari, & his evidence vide P.W.3 being unworthy of credence,
a) the claimant had examined this doctor as P.W.3 in support of
his case; it is submitted at the Bar that his 'Sanad' has been
suspended on the ground of malpractice; it is also there in
his cross-examination; we have noticed several other cases,
huge in number wherein he has deposed as a Medical
Witness in accident cases; in his cross-examination, dated
07.01.2017, he contradicts the version of the claimant-P.W.1
that the claimant had not visited his hospital personally; he
also admits claimant having undergone the
operation/treatment for coronary blocks; he also admits
having not stated the factors based on which he has issued
the Disability Certificate at Ex.P.8; any prudent Medical
Practitioner would have mentioned these things including the
coronary disease; he has prepared his Disability Certificate
dated 17.03.2016 in such a clandestine way that the alleged
disability of the claimant is occasioned by the injuries
sustained by him in the accident; this is nothing short of
perjury, to which claimant is also a party.
b) About a century ago, the Privy Council had angrily lamented
that, in our system, perjury was being committed day in &
day out with impunity; the Apex Court in Swaran Singh Vs.
State of Punjab (2000)5 SCC 668 had expressed it's anguish
as under:
"Perjury has also become a way of life in the Law
Courts. A trial Judge knows that the witness is
telling a lie and is going back on his previous
statement, yet he does not wish to punish him or
even file a complaint against him. ... "
In Mahila Vinod Kumari Vs. State of Madhya Pradesh
(2008)8 SCC 34, it was observed, "... The evil of perjury has
assumed alarming proportions in cases depending on oral
evidence and in order to deal with the menace effectively, it
is desirable for the Courts to use the provision more
effectively and frequently, than it is presently done...".
This case reminds us what Shakespeare wrote in Richard III as
under:
"My conscience hath a thousand several tongues,
And every tongue brings in a several tale,
And every tale condemns me for a villain.
Perjury, perjury in the highest degree;
Murther, stern murther, in the direst degree;
All several sins, all us'd in each degree.
Throng to the bar, crying all "Guilty, guilty!"
(c) We are pained to see cases of the kind coming in
considerable numbers nowadays; something has to be done
to eradicate the evil of perjury, fraud & fabrication; a mere
non-suiting of the unscrupulous litigants by throwing their
case papers out through the court window would be
militantly insufficient; something more drastic needs to be
devised, so that message reaches out loudly to the
unscrupulous class; in this case, we are made to spend
more than an hour of valuable time in turning every page of
the original Trial Court Record that runs into 656 pages,
keeping other older cases at a bay; it is a sheer waste of
huge public time & money occasioned by this perjured case
of the appellant; this is not a happy thing to happen; we
are of the considered view that this appeal should be
dismissed with exemplary & penal cost of Rs.1,00,000/-.
In the above circumstances, this appeal being thoroughly
frivolous is liable to be & accordingly, dismissed with a cost of
Rs.1,00,000/-(One lakh rupees only). It is open to the
respondent-insurer to recover this amount minus Rs.20,000/-
(compensation amount) by putting this order in execution as if
it is a decree.
Liberty is reserved to the insurer to take up civil and
criminal proceedings for the act of perjury perpetrated by the
claimant i.e. P.W.1 and Dr.Lakshmi Narayan K., i.e. P.W.3, who
had issued the Disability Certificate at Ex.P.8, in accordance
with law; it hardly needs to be stated that the delay brooked in
taking such proceedings is liable to be discounted because of
pendency of this appeal for all these years.
We place on record our appreciation for the learned panel
counsel Mr. S.V.Yaji who has successfully resisted this appeal
with meticulous preparation and alacrity.
SD/-
JUDGE
SD/-
JUDGE
Kms
