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Judgment
B. Rajendran, J.—The Insurance Company has come forward with this appeal in respect of an award of Rs. 3,37,000/- granted for an
injury caused to the claimant in an motor accident.
According to the Insurance Company, the claim itself is a bogus claim and the claimant has tried to cheat the very Court itself by mis-
representing, suppressing and also by filing three cases for the same accident on three different places and having chosen to withdraw two cases,
has continued the third case in which an exorbitant amount has been awarded as compensation in an injury case that too by applying and adopting
the multiplier method which is against the dictums of the Hon''ble Supreme Court and the Hon''ble High Court and therefore it is a fittest case
where the mis-use and abuse of the motor accident has to be exposed. Hence, the appeal is preferred by the Insurance Company.
As per the appellant, according to the claimant, the claimant on 03.03.2003 at about 7.00 pm., when the claimant was riding his Hero Hondo at
the left side of the road, a Mahindra Tractor bearing registration No. TN 49Y 8587 came in a rash and negligent manner and hit against the two
wheeler. Due to this, the petitioner fell down and sustained grievous injuries, namely, fracture in the right thigh and right ankle bone and lost two
teeth over his upper jaw for which he has claimed a compensation of Rs. 6,00,000/- and the lower Court after taking into consideration, the
disability certificate, issued by the Doctor Ex.P11 and Ex.P13, fixed 50% disability in respect of loss of teeth and granted the compensation which
is extraordinary because it has applied the multiplier theory. Furthermore, in the counter itself they had specifically pleaded that the claimant had
filed three different applications stating that he met with an accident on 03.03.2003 and the particulars were given as follows:
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Court Sub Court, Sankari District Court, Salem District Court, Salem
now at Additional now at Additional
District Judge Court, District Judge Court,
Salem. Salem.
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Number M.C.O.P. 56 OF 2003 M.C.O.P. 778 OF 2003 M.C.O.P. 1315 OF 2003
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Date of
Filing
2/5/03 2/6/03 25.08.2003
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Amount Rs. 3,00,000/- Rs. 4,00,000/- Rs. 6,00,000/-
Claimed
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Stage of Dismissed as not pressed Dismissed as not Pending
procee- on 23.07.2004 pressed on 26.11.2004
dings
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Even at the time of filing he has suppressed the fact that he has filed two other applications which he has done willfully, wantonly and therefore it
amounts to cheating the Court and cheating the Insurance Company to make un-lawful gain by making fraud and misrepresentation on the Court.
In fact the Insurance Company in the counter, even stated that the claimant has not even met with an accident, as the Radiologist to whom the
claimant was sent to take X-Ray had reported no injuries and therefore, he has suddenly absented from the Headquarters hospital and therefore
went to private hospital which leads to suspicion. Therefore, they denied the accident. They deny the claim and especially they also would deny the
suppression of facts in other two cases. They are not liable to pay and they also filed additional counter that there is a discrepancy between the
F.I.R. and Wound Certificate Ex.A8 issued by the Kovai Medical Centre in respect of the very timing of the accident itself. Therefore, the claim
made by the party is not genuine. But the lower Court has granted the award. Hence, they have come forward with this appeal.
The learned Counsel appearing for the claimant/respondent would contend that the accident is true accident and is genuine. The injury sustained
is correct as even from the Kovai Medical Centre documents especially when the originals has been sent for. The timings has been correctly
proved and the fact that the claimant had multiple injuries would also entitle him to get the benefit as per the multiplier method. The not-pressing of
the two applications would not be a bar for him to claim as there is no order passed in those cases and it would not amount to res judicata and
therefore also claim is sustainable. But in so far as the method of applying three petitions for the same accident, he only would state that he has
been mis-led. Therefore, that could be excused was his argument.
Heard both sides.
The short point for consideration in the appeal is
(i) whether a claimant could file three applications for a very same accident and not-pressing the two, is he entitled to continue the third one?
(ii) Whether the claimant who has come to Court without clean hands is entitled to any relief at all?
(iii) Whether the amount awarded by the Court below is excessive especially applying multiplier theory in the case of injury?
This is a peculiar case filed by the claimant to enrich himself at the cost of the Insurance Company for an alleged accident occurred to him in
which he has lost two of his teeth and there was a fracture of the right leg and left tibia. According to the evidence of the claimant P.W.1 when he
was driving in the motor cycle on the left side of the road, the Mahindra van which came on the opposite side dashed against him and in view of the
accident, he sustained injuries on the right ankle and there was a fracture on the right leg in the thigh and he lost two teeth and immediately he was
admitted in the Salem Government Hospital. He took treatment there for one day. Thereafter, he has gone to the Kovai Medical Centre at
Coimbatore wherein he took treatment for 14 days and he has spent more than Rs. 1,00,000/- towards his medical expenses and in view of the
accident he is unable to stand and therefore he has claimed the compensation.
According to the F.I.R. Ex.A1, the claimant has given the complaint in respect of the accident on 04.03.2003 at about 07.30 p.m. in the
Government General Hospital and as per the F.I.R., the recording was taken by the constable between 08.00 and 08.30 p.m. When he was
admitted in the Government General Hospital, he has narrated about the accident which is recorded as the F.I.R. Therefore, according to the
claimant the F.I.R. was given by him at 07.30 to 08.00 O'' Clock in the night in respect of the accident, when he was admitted in the Government
Headquarters Hospital. Whereas, as per Ex.A3, the petitioner was admitted at the Kovai medical Centre Hospital, Coimbatore at 07.10 p.m. on
04.03.2003 and he was discharged on 20.03.2003 at about 12.37 p.m., as this was a computer generated statement and discharge summary. In
this history which is recorded would state that the injured claimant was travelling in a two wheeler, collided in a tractor at about 07.30 p.m.,
wherein he was treated for the fracture in the thigh of the right leg. Therefore, the Insurance Company appellant would say if really the F.I.R. is
prepared when the police has found him at 07.30 p.m. in the Government Headquarters Hospital and recorded statement at 08.00 to 08.30 p.m.
at Salem it is admittedly not possible for him to get admitted at Coimbatore, namely, on 04.03.2003 at 07.10 p.m. F.I.R. was recorded on
04.03.2003 at about 07.30 p.m. He could not be admitted at Coimbatore at 07.10 p.m. on the same day. He could not be at two places at the
same time. Therefore, they would contend that the very F.I.R. itself is wrong and the accident itself is a concorted one.
In this connection, the learned Counsel appearing for the respondents brought to the notice of the Court Ex.A9 which is the Medical Report
Admission Register records sent for from the Government Headquarters Hospital, Salem. Originals have been produced. As per these records, the
Government Headquarters Hospital, Salem admitted him on 03.03.2003 at about 08.35 p.m. and the time of the accident is noted as 07.00 p.m.
On 03.03.2003 and the treatment has commenced by 08.40 p.m. when Doctors have treated and also sent for the X-Ray report and the X-Ray
was taken at about 09.00 p.m. The timings have been recorded. Complete entry has been made. Thereafter, on 04.03.2003 at 02.15 p.m. there is
an entry that the patient is not willing for surgery and discharged against medical advice at 02.15 p.m. on 04.03.2003 and they also find entry by
stating to his maternal uncle stating that he is taking him against the medical advice at 02.15 p.m.
Therefore, from the Government record available in the Hospital original record, which has been produced, he was admitted at the earliest
point of time namely as early as 08 O'' Clock on 03.03.2003 itself immediately after the accident and on the treatment injuries which is complained
of were all entered and treated in the same Government Hospital and he got discharged from the hospital against medical advice on the next day
and thereafter on 04.03.2003, he has been admitted in Kovai Medical Centre at 07.00 O''Clock in the night would prove that he is continuously in
the treatment and expenditure is genuine, sustained injuries is genuine. The only difference is when the F.I.R. which is recorded on 04.03.2003, the
timings recorded in the F.I.R. is not correct. Barring that, the involvement of the person, the accident, the injury are all proved to be correct.
Therefore, the contention of the Insurance Company regarding the genuineness of the accident cannot be taken into consideration.
But the main contention of the Insurance Company is in regard to the attitude of the claimant trying to cheat the Insurance Company as well as
to mis-lead the Court and an abuse the process of the Court has definitely has got to be taken into consideration. In this case, as rightly pointed
out, the claimant has chosen to file three applications, namely M.C.O.P. No. 56 of 2003 on the file of the Sub Court, Sankari on 02.05.2003,
M.C.O.P. No. 778 of 2003 on the file of the District Court, Salem now at Additional District Judge Court, Salem on 02.06.2003 and M.C.O.P.
No. 1315 of 2003 on the file of the District Court, Salem now at Additional District Judge Court, Salem on 25.08.2003. On the very same Court,
two applications were filed on two different dates and the first application namely before the Sub Court, Sankari was dismissed as not pressed on
23.07.2004 and the second application before the Additional District Judge Court, Salem was dismissed as not pressed on 26.11.2004. Infact,
the second application before the very same Court was dismissed as not pressed only when the present case was taken up for trial.
Therefore, the learned Counsel appearing for the Insurance Company would contend that the petitioner has not come to Court with clean
hands. He has chosen this mode of enriching himself unjustifiably and to cheat the Court. Infact, he has also suppressed and mis-represented in
Court as follows:
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Column M.C.O.P.56 OF 2003 M.C.O.P.778 OF 2003 M.C.O.P.1315 OF 2003
No.
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Full Unchakadu, 4/67, C Kombadipatti, 26/139, Mariappa
Address Kaligoundampalayam Kalparapatti Post, Salem Goundar Street,
Village and Post, District. Meiyanoor, Salem 4.
Magudanchavadi Via,
Sankari Taluk.
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Fracture in right thigh Right thigh right leg Fracture in right thigh and
bone and right ankle blow knee multiple right ankle bone.
bone injuries
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11.a. Motor cycle completely --- Motor cycle fully
damaged damaged.
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will be intimated later. Duty Doctor, Duty Doctor, Covai
G.M.K.M.C. Hospital, Medical Centre.
Salem, Duty Doctor,
K.M.C.H., Kovai
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will be intimated later 30 days as in-patient still From 03.03.2003 till
taking treatment as in- today, the Petitioner is
patient undergoing treatment.
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13.a. Document will be Permanent disability Will be furnished at the
produced later. could not walk, work time of the trial.
and do any work as
before the accident
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16.a. Thanga Rajendran, son N.Thiruvarasan, N. Thiruvarasan,
of Thangavel Udaiyar, S/o. T. Nallusamy, S/o. T. Nallusamy,
Maruthuvakudi, Kesingam Attur Post, Kesingam Attur Post,
Aadhanur Post, Mayiladurai Taluk, Mayiladurai Taluk.
Papanasam Taluk, Thanjore District.
Tanjore District.
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Unchakadu, 4/67, C Kombadipatti, 26/139, Mariappa
kaligoundampalayam Kalparapatti Post, Salem Goundar Street,
Village and Post, District. Meiyanoor, Salem 4.
Magudanchavadi Via,
Sankari Taluk.
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Rs. 3,00,000 Rs. 4,00,000 Rs. 6,00,000
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21.a Rs. 30,000.00 Rs. 40,000.00 Rs. 3,00,000.00
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21.b Rs. 20,000 Rs. 20,000 Rs. 10,000
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21.c. Rs. 5,000 Rs. 10,000 Rs. 2,000
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21.d. Rs. 10,000 Rs. 10,000 Rs. 8,000
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21.e. --- Rs. 10,000 Rs. 10,000
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21.f. --- Rs. 90,000 Rs. 1,00,000
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21.g. Rs. 35,000 Rs. 20,000 Rs. 50,000
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21.h. Rs. 1,00,000 Rs. 1,00,000 Rs. 20,000
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21.i. Rs. 1,00,000 --- Rs. 1,00,000
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A reading of the comparison of the statement made by the petitioner in the three different cases by itself prove beyond any reasonable doubt
that the petitioner has not approached the Court with clean hands. He has chosen to file three different applications for the very same accident. As
stated supra even in the F.I.R., the timings is different and when he has chosen to not press these two applications, he has not reserved any right to
file the other case. But here is a case which is not that, he filed one case after another case but almost simultaneously all these three cases was filed
within a period of two months and the applications were not pressed at two different times but yet he continued the third case which is wrong.
Further in the column in the application whether any other previous application has been filed, he has completely suppressed the fact of filing the
other two application in each of the cases, which is a clear mis-representation to the Court. Infact this column is meant only to avoid multiplicity of
applications. But knowing fully well that he has filed the earlier case, he has filed the subsequent case without disclosing the same to the Court.
Therefore, as rightly pointed out by the appellant counsel, the applicant''s intention to come to Court is only to cheat and not otherwise and
such a person cannot seek the relief of the Court whatever may be the reason or the cause. In this connection, the learned respondent counsel
pointed out because of the fact that he has not pressed the two applications, by itself the third application cannot be said to be not maintainable.
For which the learned Counsel appearing for the respondent relied upon the two Judgments, one of the Supreme Court reported in Kandapazha
Nadar and Others Vs. Chitraganiammal and Others, of the Hon''ble Division Bench of this Hon''ble Court reported in Dr. E. Muralidharan Vs.
Union of India (UOI), Government of India, Dr. M.S. Ananth, Director, I.I.T., Dr. A.E. Muthunayagam, Chairman, Board of Governors, I.I.T.
and Dr. Usha Titus, Former Registrar, I.I.T., Director, Social Welfare Department, Government of Kerala, and would contend that there is no
order passed. It cannot be a res judicata as he had only not pressed the applications. Therefore, the third application is legally maintainable and
hence the petition cannot be summarily rejected only on the ground that he has not pressed the other two applications. The mere fact of not
pressing the application would not debar the petitioner from seeking the remedy in the third application. No doubt even though it is a mis-
representation.
The fact that not pressing of the two applications would be a res judicata or not need not be taken up for consideration here but the fact that he
has come to Court suppressing the earlier two applications itself is a fraud committed to the Court. Infact, fortified by the Judgment of the Supreme
Court and the judgment of this Hon''ble High Court that the parties have come to Court not with clean hands and suppressing earlier cases, such
attitude should not be encouraged and in such event the suit should be nibbed in the bud. Infact, in the case, this Hon''ble Court has even struck off
the very suit itself for suppressing the earlier injunction suit and filing second suit having not able to get injunction, he suppressed and filed the
second suit. In that case, this Court has also thought such a suit should be nibbled in the bud.
Here is a case where a person filed three applications for the very same accident, claims three different amount of Rs. 3,00,000/-, Rs.
4,00,000/- and Rs. 6,00,000/- and thereafter conveniently, chooses to withdraw two cases and establish one case in the very same Court.
Therefore, such a petition could not be and should not be entertained. On this ground, the application is liable to be dismissed in limine only when
such act is done to cheat the Court.
At this juncture, it is relevant to rely upon paragraph 19 of the judgment of this Hon''ble Court reported in P.S.K. Kanagaraj and Others Vs.
Kamaraj and Another, which reads as follows:
In view of the binding precedents, when a fraud is manifested and abuse of process of court is also brought to the notice of the court and when
the plaintiff has obtained unfair advantage at the cost of others, naturally, it is the duty of the court to see that the miscarriage of justice does not
survive further. The Plaintiff is only a namelender, who should not take advantage by the fraud and abuse of process of court committed by him.
and to rely upon paragraphs 7 and 12 of the judgment of this Hon''ble Court reported in Hindustan Photo Films Manufacturing Co. Ltd. Vs. R.
Lakshmanan, which reads as follows:
Eventhough I do not want to make any remark, I would say that the filing the later suit before the Subordinate Court, Udhagamandalam was not
proper. After filing O.S. No. 289 of 1997, the respondent himself wanted that suit to be transferred to the Subordinate Court, Udhagamandalam. I
do not know the reason why the said request was made. When that attempt failed, he files another suit before the Subordinate Court and gets the
relief. All these taken together creates a suspicion as to the bona fides of the respondent herein and sharp practice exercised by him. The lower
Court has also not considered whether such a suit is not maintainable. From the relief portion of O.S. No. 37 of 1998, it is clear that already a suit
is pending on the same cause of action and the relief sought in O.S. No. 37 of 1998 could very well be obtained in the suit filed earlier. That is
why, in the later suit, he wanted an injunction to restrain the petitioner herein from superannuating him till the disposal of the earlier suit. How such a
suit could be filed is nowhere stated.
In the result, I find that the suit filed by the plaintiff in O.S. No. 37 of 1998 on the file of the Subordinate Court, Udhagamandalam is purely an
abuse of process of Court and is a sharp practice exercised by the respondent herein. It is not proper to retain the same on file. The plaint in O.S.
No. 37 of 1998 on the file of the Subordinate Court, Udhamandalam shall stand struck off the file and the Registry is directed to inform the same
to the Court concerned.
But in as much as we have stated taking into consideration the suppression in filing the very case itself is wrong and mainly on the ground that
the intention of the party was not genuine is seeking the relief before this Court, this Court feels that the claimant should not be entertained to get
the relief when his intention is not correct, good and when he specifically, wantonly, willfully filed application after application with an intention to
cheat the Court itself. Therefore, on the ground of suppression in material facts and given false information to the Court, the claimant would not be
entitled to get any relief from the Court, much less the compensation as sought for by him and as granted by the Court below which again is
extraordinary and excessive in nature.
Here is a case where the party has sustained only an injury namely fracture in the right leg and loss of two teeth. He has produced two Medical
Certificate, Disability Certificate which Ex.A11 and Ex.A13. Wherein, the Doctor has certified that shows of his fracture of femur and loss of teeth
and fracture. He has sustained 50% disability but does not in anywhere mention in what way his earning capacity is lost. Whereas the lower Court
has given the benefit under the multiplier method. When this Hon''ble Court has categorically held that even in the case of amputation of the leg, the
multiplier way should not be applied and only the percentage of Rs. 1,000/- to Rs. 2,000/- should be applied. But unfortunately, in this case,
without assigning any reason and without assigning the actual earning power, damage to the earning power, the Court below has in an
extraordinary manner given a relief under the multiplier theory applied 16 multiplier and granted the relief amount of Rs. 1,92,000/-only under the
head loss of earning power. Again Rs. 16,000/- has been awarded under the head of disability which as per the Hon''ble Full Bench of this
Hon''ble Court is also not permissable. Therefore, the award granted by the Court below is without any basis.
The respondent/claimant Counsel pleaded, whether the Court can totally deprive him of the claim? Can he not be given some amount at this
point of time, the learned Counsel appearing for the respondents specifically pleaded that for the suppression, misrepresentation and non-
genuineness in the case made out by the claimant, the Court may give a punishment but the entire amount need not be denied. The counsel pleaded
that atleast taking into consideration, the accident is proved genuine and suffering was there, any minimal amount could be granted taking into
consideration the pathetic situation of the person, even though he has suppressed, misrepresented. Probably he has been mis-led by people there.
He would also plead that even in a case of no fault liability under the act automatically Rs. 25,000/- is granted and hence he pleaded to grant some
amount atleast.
Accepting the contention of the learned Counsel appearing for the respondents, since there was loss of two teeth and a fracture of the right leg
for which he has taken treatment totally for 16 days and even accepting the 50% disability, applying Rs. 1000/- per percentage for 50% disability
comes to Rs. 50,000/- and only this sum of Rs. 50,000/- is awarded as a total compensation in this case, which would also prove to the claimant
that the mode he has approached this Court is wrong and this Court feels its suffice that a consolidated compensation amount of Rs. 50,000/- only
can be awarded and no interest can be granted in this case because he has filed on three different occasions not pressed the applications to suit to
his convenience. A consolidated amount of Rs. 50,000/- is directed to be paid by the Insurance Company only for the injury caused to him and the
treatment taken by him.
In the result, the appeal is allowed fixing the compensation only to a consolidated total compensation of Rs. 50,000/-. This Court directs the
Insurance Company to deposit the balance amount of Rs. 25,000/- only within a period of four weeks from the date of receipt of a copy of this
order and on such deposit, the petitioner would be permitted to withdraw the same. Accordingly, the appeal is allowed. No costs. Consequently,
the connected miscellaneous petition is also closed.