The Manager Thr Oriendtal ... vs Sumnagala W/O Mannappa Pattar And ...
2022 Latest Caselaw 4675 Kant

                               1          MFA.No.200516/2016
                                   c/w MFA.Crob.No.200048/2016



IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

        DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

              MFA.No.200516/2016 (MV)
                        c/w
            MFA.CROB.No.200048/2016 (MV)

 IN MFA.No.200516/2016:

 BETWEEN:
 1.     THE MANAGER
        THE ORIENTAL INSURANCE CO. LTD.
        1ST FLOOR NANDI COMPLEX
        OPP. SYNDICATE BANK
        STATION ROAD, YADGIR.

 2.     THE MANAGER
        THE ORIENTAL INSURANCE CO. LTD.
        OPP. MINI VIDHANA SOUDHA
        MAIN ROAD, GULBARGA

 BOTH APPELLANT NO.1 AND 2
 NOW REPRESENTED BY ITS
 SENIOR DIVISIONAL MANAGER
 ORIENTAL INSURANCE CO. LTD.
 OPP. MINI VIDHAN SOUDH,
 GULBARGA
                                               ... APPELLANTS
 (BY S.S. ASPALLI, ADVOCATE)

 AND:

 1.     SUMANGALA
        W/O MANAPPA PATTAR
        AGE 37 YEARS
        OCC: HOUSEHOLD
                           2           MFA.No.200516/2016
                               c/w MFA.Crob.No.200048/2016




2.   TANUJA
     D/O MANAPPA PATTAR
     AGE 15 YEARS
     OCC: STUDENT

3.   RAVIKUMAR
     S/O MANAPPA PATTAR
     AGE 13 YEARS
     OCC: STUDENT

4.   KAVERI
     D/O MANAPPA PATTAR
     AGE 11 YEARS
     OCC: STUDENT

5.   KARTIK
     S/O MANAPPA PATTAR
     AGE 11 YEARS
     OCC: STUDENT

RESPONDENT NOS.2 TO 5 ARE MINORS
U/G OF RESPONDENT NO.1 WHO IS THEIR MOTHER
ALL ARE R/O YALAGI TQ,
SHORAPUR, DISTRICT YADGIR-585224


6.   MANJUNATH
     S/O MANOHAR
     AGE 29 YEARS
     OCC: STUDENT
     R/O YERGOL TQ &
     DISTRICT YADGIRI-585321
7.   JAGDISH
     S/O BHEEMANNA BADGER
     AGE 31 YEARS
     OCC: CARPENTER
     R/O M. KOLLUR, TQ: SHAHPUR
     DISTRICT YADGIR-585223

8.   VEERBHADRAPPA
     S/O VEERANNA
     AGE 45 YEARS
                           3          MFA.No.200516/2016
                              c/w MFA.Crob.No.200048/2016



     OCC: AGRICULTURE
     R/O YERGOL TQ &
     DISTRICT YADGIR-585221

9.   VEERANNA
     S/O GUNDAPPA HARAKANCHI
     PLOT NO. 60,
     DEV NAGAR OLD JEWARGI ROAD
     GULBARGA-585103.

                                       ... RESPONDENTS

(SRI. SHIVASHARANA REDDY, ADVOCATE FOR R1 TO 5
      R2 TO R5 ARE MINORS REPRESENTED BY R1
      R6 AND R8 ARE SERVED
      V/O DT: 30.09.2021 NOTICE TO R7 & R9
      ARE HELD SUFFICIENT)

     THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 16.06.2015 IN MVC.NO.76/2011 PASSED
BY THE SENIOR CIVIL JUDGE & ADDL.MACT, SHORAPUR, BY
ALLOWING THE ABOVE APPEAL IN THE INTEREST OF JUSTICE
AND EQUITY.

IN MFA.CROB.NO.200048/2016:

BETWEEN:

1.   SUMANGALA
     W/O MANAPPA PATTAR
     AGE 37 YEARS
     OCC: HOUSEHOLD

2.   TANUJA
     D/O MANAPPA PATTAR
     AGE 15 YEARS
     OCC: STUDENT

3.   RAVIKUMAR
     S/O MANAPPA PATTAR
     AGE 13 YEARS
     OCC: STUDENT
                             4           MFA.No.200516/2016
                                 c/w MFA.Crob.No.200048/2016



4.     KAVERI
       D/O MANAPPA PATTAR
       AGE 11 YEARS
       OCC: STUDENT

5.     KARTIK
       S/O MANAPPA PATTAR
       AGE 11 YEARS
       OCC: STUDENT

CROSS OBJECTOR NOS.2 TO 5 ARE MINORS
U/G OF CROSS OBJECTOR NO.1 WHO IS THEIR MOTHER
ALL ARE R/O YALAGI TQ
SHORAPUR, DISTRICT YADGIR-585201
                                   ... CROSS OBJECTORS
(SRI. SHIVASHARANA REDDY, ADV FOR CROSS OBJECTOR)

AND:

1.     MANJUNATH
       S/O MANOHAR
       AGE 28 YEARS
       OCC: STUDENT
       R/O YERGOL TQ &
       DISTRICT YADGIRI-585201

2.     JAGADISH
       S/O BHEEMANNA BADGER
       AGE 31 YEARS
       OCC: CARPENTER
       R/O M. KOLLUR, TQ: SHAHPUR
       DISTRICT YADGIR-585201

3.     VEERBHADRAPPA
       S/O VEERANNA
       AGE 45 YEARS
       OCC: AGRICULTURE
       R/O YERGOL TQ &
       DISTRICT YADGIR-585201
                             5           MFA.No.200516/2016
                                 c/w MFA.Crob.No.200048/2016




4.     VEERANNA
       S/O GUNDAPPA HARAKANCHI
       PLOT NO. 60,
       DEVA NAGAR OLD JEWARGI ROAD
       GULBARGA-585102.
5.     THE MANAGER
       ORIENTAL INSURANCE CO. LTD.
       1ST FLOOR NANDI COMPLEX
       OPP. SYNDICATE BANK
       STATION ROAD, YADGIR-585201

6.     THE MANAGER
       THE ORIENTAL INSURANCE CO. LTD.
       OPP. MINI VIDHANA SOUDHA
       MAIN ROAD, KALABURGI-585102

                                          ... RESPONDENTS
(V/O DATED 14.02.2020 NOTICE TO R1 TO R4 ARE
     DISPENSED WITH
     SRI.S.S.ASPALLI, ADV FOR R5 & R6)
       THIS MFA.CROB IS FILED UNDER ARTICLE 41 RULE 22 OF
THE CODE OF CIVIL PROCEDURE, 1908 PRAYING TO MODIFY
THE IMPUGNED JUDGMENT AND AWARD DATED 16.06.2015
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND ADDL.
MACT, SHORAPUR, IN MVC.NO.76/2011 AND PASS AN ORDER
FOR ENHANCEMENT OF COMPENSATION AS DEEMED FIT BY
THIS    HON'BLE    COURT    UNDER     THE     FACTS    AND
CIRCUMSTANCES OF THE CASE INCLUDING THE COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY

       THIS MFA CONNECTED WITH MFA.CROB BEING HEARD
AND RESERVED FOR JUDGMENT ON 25.01.2022, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
                            6          MFA.No.200516/2016
                               c/w MFA.Crob.No.200048/2016



                      JUDGMENT

These two appeals are arising out of impugned

judgment and award, whereby the Tribunal has

granted compensation in a sum of Rs.11,46,000/-

with interest at 6% p.a. and directed respondent

Nos.5 and 6 to pay the same.

2. MFA.No.200516/2016 is filed by

respondent Nos.5 and 6 i.e., Oriental Insurance

Company Ltd., whereas MFA.Crob.No.200048/2016 is

filed by the claimants seeking enhancement.

3. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4. The facts leading to the filing of claim

petition are that on 02.07.2009, at 11.30 a.m.,

deceased Mannappa Pattar along with respondent

No.2 - Jagadish was proceeding on motorcycle No.KA-

32-U-7781 to go to Shahapur. It was driven by

c/w MFA.Crob.No.200048/2016

respondent No.2 and deceased was the pillion rider. At

12.30 p.m., when they were near Rubnalli Cross,

while respondent No.2 was trying to over take a jeep,

which was going in front of him, a motorcycle bearing

registration No.KA-33-E-5719 driven by respondent

No.1 came from the opposite side and dashed against

the motorcycle on which deceased was proceeding.

The accident occurred due to the rash or negligent

driving by respondent Nos.1 and 2.

5. In the accident, deceased sustained head

injuries. Immediately, he was shifted to Basaveshwara

Hospital, Gulbarga and from there he was taken to

Yashodhara Hospital, Sholapur. However, he died on

04.07.2009, while undergoing treatment.

6. At the time of accident, deceased was aged

37 years. He was a goldsmith by profession and

earning Rs.8,000/- p.m. Claimants are the wife and

children of deceased - Mannappa.

c/w MFA.Crob.No.200048/2016

7. At the time of accident, both vehicles were

covered by a valid policy issued by respondent Nos.5

and 6 and as such they are liable to pay the

compensation.

8. Respondent Nos.1 and 2 being the riders

and respondent Nos.3 and 4 being the owners of the

motorcycles in question, have filed written statement

making general denials. They have specifically

contended that at the time of accident, respondent

Nos.1 and 2 were holding a valid and effective driving

license. Both vehicles were covered by a valid policy

issued by respondent Nos.5 and 6 and in the event of

granting compensation, they may be directed to pay

the same.

9. Respondent Nos.5 and 6 have appeared

and filed written statement denying the allegations

that the accident occurred due to the rash or negligent

c/w MFA.Crob.No.200048/2016

driving by respondent Nos.1 and 2 and that deceased

died on account of the injuries sustained in the said

accident. Though respondent Nos.5 and 6 have

contended that both the vehicles were covered by

valid policies, they have pleaded that the drivers were

not having valid and effective driving license.

10. The Tribunal has framed the issues.

11. In support of their claim petition, claimant

No.1 has examined herself as PW.1 and documents

Exs.P.1 to 8 are marked. On the other hand, on behalf

of respondents No.5 and 6, RW.1 is examined and

Exs.R.1 and R2 are marked.

12. After hearing the arguments of the learned

counsel for both the parties, the Tribunal has come to

the conclusion that the death of deceased occurred

due to road traffic accident involving both vehicles and

that in the capacity as the insurer respondents No.5

c/w MFA.Crob.No.200048/2016

and 6 are liable to pay the compensation and granted

compensation in a sum of Rs.11,46,000/- as detailed

below:-

                Heads                    Amount
                                          In Rs.
     Loss of future income                9,11,250/-
     Funeral Expenses                       25,000/-
     Transportation of dead body            10,000/-
     Loss of consortium                    1,00,000/-
     Loss of love and affection            1,00,000/-
     Total                               11,46,250/-
     Rounded off                         11,46,000/-

13. Respondents No.5 and 6 have challenged

the judgment and award of the Tribunal contending

that the judgment and award of the Tribunal is against

the law, evidence and circumstances of the case and

is liable to be set-aside.

13.1 The alleged accident occurred on

02.07.2009 and deceased - Mannappa Pattar, died on

04.07.2009. However, a private complaint under

Section 200 of Cr.P.C. is filed on 09.10.2009 before

c/w MFA.Crob.No.200048/2016

the JMFC Court at Shahapur. There is a delay of 98

days in filing the complaint. The complainant has not

explained the delay. The contents of the complaint are

imaginary. The said false complaint was filed before

the JMFC Court after lapse of 98 days colluding with

rider and owner of the motorcycles with a malafide

intention to claim the compensation and as such the

claim petition is liable to be dismissed.

13.2 No witnesses are examined before the

Tribunal to prove the alleged accident involving the

both motorcycles. No visible damage was caused on

both the motorcycles as per Ex.P.5.

13.3 The postmortem report of the deceased

state that it is a medico-legal case (MLC). On the

other hand, the claimants have produced the death

certificate of the deceased, which is marked as Ex.P.4,

which clearly reveals that the case is not registered as

c/w MFA.Crob.No.200048/2016

a medico-legal case. In the absence of P.M. report and

in the absence of case being medico-legal case, it

cannot be held that deceased died in the road traffic

accident involving the motorcycle in question and that

he was pillion rider at the time of alleged accident. No

evidence or documents are produced to show that

rider of the both motorcycles nor the pillion riders

sustained any simple or grievous injuries in the

alleged accident.

13.4 The complainant has filed a false complaint

involving respondents No.1 to 4 with a malafide

intention to claim compensation from respondents

No.5 and 6. As held by the Division Bench of this

Court in MFA.8488/2004 (M.V. Veerappa and another

vs. Siddappa and another), decided on 03.11.2008

that since fraud affects the solemnity, regularity and

orderliness of the proceedings of the Court and also

amounts to an abuse of the process of the Court, the

c/w MFA.Crob.No.200048/2016

Courts have held to have inherent powers to set-aside

the order obtained by fraud practiced upon the Court.

In collusion with the respondent Nos.1 to 4, the

claimants have played fraud and prays to dismiss the

claim petition by allowing the appeal.

14. Respondent Nos.5 and 6 have also pleaded

that the compensation granted is on the higher side

and prays to dismiss the claim petition.

15. On the other hand, in the cross-objections,

the claimants have pleaded that the compensation

granted is on the lower side and prays to enhance the

same.

16. I have heard elaborate arguments of both

sides and perused the records.

17. The points that would arise for consideration

of this Court are:

c/w MFA.Crob.No.200048/2016

(i) Whether respondent Nos.5 and 6 have proved that claimants in collusion with respondent Nos.1 to 4 have played fraud on the Court in securing the impugned judgment and award?

(ii) Whether the claimants are entitled for enhancement ?

(iii) What order ?

18. My findings to the above points are:

Point No.(i): In the Affirmative Point No.(ii): In the Negative Point No.(iii): As per the final order for the following:

REASONS

19. Point Nos.(i) & (ii): Since these points

involved common discussion, they are considered

together.

20. Thus respondent Nos.5 and 6 have

disputed the claim of the claimants that the husband

of claimant No.1 and father of claimant Nos.2 to 5

Mannappa Dadappa Pattar died in a motor vehicle

c/w MFA.Crob.No.200048/2016

accident. They have made specific allegations that in

collusion with respondent Nos.1 to 4, claimants have

played fraud on the Court for the purpose of securing

award. In the light of the specific defence taken by the

respondent Nos.5 and 6, heavy burden is on the

claimants to establish that the death of deceased

Mannappa Pattar occurred in a road traffic accident

involving the motorcycles in question.

21. During the course of her evidence, claimant

No.1 who is examined as PW-1 has deposed with

regard to the petition averments. Admittedly, she is

not an eye-witness to the incident. The claimants have

not chosen to examine any eye-witness to prove the

accident in question and the fact that in the said

accident, deceased sustained head injuries and died

while taking treatment after two days.

22. It is the definite case of the claimants that

immediately after the accident, deceased was taken to

c/w MFA.Crob.No.200048/2016

Basaveshwara Hospital, Gulbarga and on the advice of

the Doctors, he was taken to Yashodahara Hospital,

Sholapur and while undergoing treatment, he died on

04.07.2009. In the claim petition, though claimants

have pleaded that they have spent Rs.50,000./- for

treatment of the deceased, not even a single scrap of

paper is produced in the form of bills, prescriptions or

any other documents to show that deceased was

admitted to those two Hospitals for the injuries

sustained in a road traffic accident and that he died

while undergoing treatment at Yashodhara Hospital,

Sholapur. Those documents would have been of great

help to corroborate with the case of the claimants that

the death of deceased was due to the injury sustained

in a motor vehicle accident.

23. Admittedly, the claimants have not

produced the P.M. examination report of the deceased

to prove his death in a road traffic accident. What they

c/w MFA.Crob.No.200048/2016

have produced is Ex.P.4 which is titled as Cause of

Death Certificate said to have been issued by the

Department of Forensic Medicine, Dr. V.M. Medical

College and Shri. Chhatrapati Shivaji Maharaj Civil

Hospital, Sholapur. In this document it is stated that a

postmortem examination was conducted on the dead

body of one Sri. Monesh Dodappa Pattar. The word of

Monesh is struck off and substituted by the word

Mannappa Dodappa Pattar, aged 37 years. The date of

postmortem is overwritten as 04.07.2009. The column

for MLC/IPD/OPD number is left blank and the date of

admission to Yashodhara Hospital, Sholapur is given

as 02.07.2009. The cause of death is given as head

injury.

24. In Ex-P.4 nowhere, it is stated that the said

head injury was on account of a road traffic accident

as per the history provided to the medical officer. If at

all, as per this document postmortem examination

c/w MFA.Crob.No.200048/2016

was conducted on the dead body of the deceased,

there was no impediment for the claimants to secure

the certified copy of the postmortem report and

produce the same. This document is addressed to the

police inspector Jail Road Police Station Sholapur. A

reference number of the police inspector is given as

AID.No.0109-CRPC-174 dated 03.07.2009. The date

03 is overwritten and made as 04. As already noted in

Ex-P.4 earlier date is noted as 03 and it is overwritten

as 04.07.2009. If at all, the deceased has died on

04.07.2009, then there was no occasion for the police

officer to give requisition on 03.07.2009 itself and the

medical officer to conduct postmortem examination on

03.07.2009. It appears that to corroborate with the

case of the claimants, the date of postmortem

examination, which is earlier written as 03.07.2009 is

overwritten and made as 04.07.2009.

c/w MFA.Crob.No.200048/2016

25. The postmortem report would have been

best evidence for the claimants to establish that the

death of the deceased was on account of injuries

sustained in a road traffic accident. For the reasons

best known to them, the claimants have withheld the

best evidence available to them.

26. Immediately, after the accident or at least

after the death of the deceased, neither claimant No.1

nor any other person concerning them have chosen to

file complaint to the police regarding the accident in

question. After expiry of 98 days i.e., on 09.10.2009

she has chosen to file a private complaint. The

claimant No.1 has not given any reason as to why she

did not chose to file the complaint before the police.

Before filing the complaint, she has not made any

attempt to file regular complaint before the police.

There are no averments that she has tried to lodge a

complaint before the jurisdiction police and on their

c/w MFA.Crob.No.200048/2016

refusals she has also approach the higher police

officials and after they failed to respond to lodge

complaint, she chose to file a private complaint. In the

absence of any justifiable reasons, I find no reasons to

accept the case of the claimants that on the failure of

the police to register a case, she filed a private

complaint.

27. If at all a postmortem examination was

conducted on the dead body of the deceased in

respect of injuries sustained by him in a road traffic

accident, necessarily the concern police might have

conducted inquest on the dead body. The claimants

could have secure those documents, in corroboration

of their case. For the reasons best known to them, the

claimants are not chosen to produce any such

evidence. In the absence of the same, I have no

hesitation to hold that only for the sake of claiming

compensation, in collusion with the respondents No.1

c/w MFA.Crob.No.200048/2016

to 4, the claimants have chosen to make a false claim.

The Tribunal without examining these aspect, has

mechanically proceeded to hold that the death of the

deceased was due to injuries sustained in a road

traffic accident involving the motorcycles and saddled

the liability on respondent Nos.5 and 6.

28. The documents at Ex.P.1 - FIR, Ex.P.3 -

Chargesheet, Ex.P.5 MVI Report, Ex.P.6 - seizure

panchanama of the motorcycles, Ex.P.7 - spot

panchanama and Ex.P.8 - sketch/map, are the results

of the belated private complaint filed by the claimants

after expiry of nearly 90 days of the alleged accident.

Therefore, they do not carry any evidentiary value to

support the case of the claimants. Examination of

these documents, leave no room to doubt that the

claim made by the claimants is fraudulent one.

Consequently, the claimants have failed to establish

that the deceased died in a road traffic accident

c/w MFA.Crob.No.200048/2016

involving the motorcycles in question and giving rise

to the liability on the part of respondent Nod.5 and 6.

Consequently, the claim petition filed by the claimants

is liable to be dismissed.

29. When the claim made by the claimants is

held to be fraudulent, there is no question of

considering their cross-objection for enhancement of

the compensation. In the result, the appeal filed by

respondent Nos.5 and 6 deserves to be allowed and

the cross-objection filed by the claimants and

consequently, their clam petition are liable to be

dismissed and accordingly, point No.1 is answered in

the Affirmative and point No.2 is answered in the

Negative.

30. Point No.3: In view of my findings on point

Nos.1 and 2, I proceed to pass the following;

c/w MFA.Crob.No.200048/2016

ORDER

I. MFA.No.200516/2016 filed by the respondent Nos.5 and 6 is allowed.

II. MFA.Crob.No.200048/2016 filed by the cross-objectors is dismissed.

III. Consequently, claim petition filed by the claimants is dismissed.

IV. Appellants in MFA.No.200516/2016 who are respondent Nos.5 and 6 before the Tribunal are permitted to withdraw the amount in deposit.

Registry is directed to send back the Trial Court records along with copy of this judgment to the concerned Tribunal.

Sd/-

JUDGE

RR