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Judgment
S. Sujatha, J.—1. These appeals are directed against the judgment and award passed by the Motor Accident Claims Tribunal, Bijapur.
Briefly stated the facts are:
That the claimants approached the Claims Tribunal contending that on 21.5.2005 at about 8.30 P.M., when they were proceeding towards Ballaganur Village for visiting their relatives from Talekote in Mini Door Auto No. KA-28/8826, met with a road traffic accident and as a result of which, the claimants sustained grievous injuries and took treatment in BLDE Hospital, Bijapur as inpatients and further, follow-up treatment was taken as per the advise of doctors in a private hospital. Based on these grounds, sought for suitable compensation. The Tribunal awarded the compensation of Rs. 1,00,281/- to Sri Ningappa (MVC No. 937/2006) and Rs. 40,380/- to Smt. Kamalbai (MVC No. 110/05) with interest @ 6% p.a.
Being aggrieved by the said judgment and award passed by the Tribunal, the insurer as well as the claimants are before this Court.
Heard Sri Manvendra Reddy, learned counsel appearing for the insurer, Smt. Shailaja, learned counsel for Smt. Rathna Shivayogimath for claimant in MFA No. 31535/2009 and Sri C.L. Koujalagi, for claimant in MFA No. 30405/2010.
The undisputed facts are that the alleged road traffic accident occurred on 21.5.2005. Complaint was lodged before the jurisdictional police on 2.9.2005. In the Criminal proceedings initiated by the police authorities, driver of the offending vehicle pleaded guilty on 21.7.2006. Ex. P. 5 in both the cases are the wound certificates produced by the claimants.
The learned counsel appearing for the insurer strenuously contended that the wound certificate - Ex. P. 5 in MVC No. 937/2006 of Ningappa Sharanappa shows that he was examined in R.M. Patil Medical College & Hospital, Bijapur on 22.5.2005 at 3.30 am for the injuries caused at 6.30 PM on 21.5.2005 and the cause of injuries mentioned in Ex. P. 5 would indicate that the accident occurred from the bullock cart in Balagnur, Muddebihal, Bijapur. Similarly, it is also emphasised by the learned counsel that Ex. P. 5 in MVC No. 110/2005 indicates that the claimant Smt. Kamalal Bai was first examined by the doctor at Government Hospital, Bijapur at 5.30 PM on 4.6.2005 for the injuries said to have been sustained on 21.5.2005 due to road traffic accident. Based on these factual aspects, learned counsel submitted the alleged accident never happened as set-out by the claimants, it was a false and concocted story built up by the claimants in connivance with the owner of the Tom-tom vehicle/offending vehicle insured with the appellant. The long gap between the date of accident and filing of the complaint indicates the fraud played by the claimants, in order to gain compensation under the guise of road traffic accident. In support of these contentions, learned counsel for the appellants placed reliance on the following Judgments:
(1) RAM CHANDRA SINGH vs. SAVITRI DEVI AND ORS. (, 2004 SAR (Civil) 1)
(2) BAJAJ ALIANZ GENERAL INSURANCE CO. LTD. vs. B.C. KUMAR & ANR (2009 (6) AIR Kar R 349)
(3) VEERAPPA AND ANOTHER vs. SIDDAPPA AND ANOTHER (, ILR 2009 KAR 3562)
(4) NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION vs. GOURABAI AND OTHERS (, (2009) 15 Supreme Court Cases 165)
(5) BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. vs. HARISH KUMAR AND ANOTHER (MFA NO. 4446/2010 (MV) DATED : 06.01.2012)
(6) Judgment of this Court in MFA Nos. 30811/12 c/w 30812/12 disposed off on 11.1.2016
Per contra, learned counsel appearing for the claimants/respondents would contend that the wound certificates were prepared by the hospital staff on the information given by the Auto driver, immediately after the accident. It is submitted that no complaint was lodged before the police authorities immediately, since the injured were hospitalized for treatment. It is also further contended that the author of PW. 5 - Doctor is not examined by the insurer. In such circumstances, no case is made out by the insurer for interference of the award passed by the Tribunal. On the other hand, it is the case of the claimants that the compensation awarded is too meagre and requires enhancement, the Tribunal failed to consider the material evidence available on record in the right perspective and awarded the compensation disproportionate to the injuries suffered by the claimants. Accordingly, claimants seek for enhancement of compensation awarded by the Tribunal.
The learned counsel Sri C.L. Koujalagi, appearing for the claimant in MFA No. 30405/2010 places reliance on the Judgment of this Court in MFA No. 31772/2010 disposed of on 14.08.2014 to contend that this Court in the cases involving minimum compensation below Rs. 50,000/- even in case of dispute on liability had refrained from interfering with the award passed by the Tribunal.
I have given my anxious consideration to the rival submissions made at the bar and perused the records.
It is an admitted fact that there is an inordinate delay in filing the complaint after the alleged road traffic accident. Discrepancy is manifest from the medical records. The arguments of the learned counsel appearing for the appellants that the police authorities manipulated police records based on the false theory put up by the claimants implicating the offending vehicle insured with the appellant appears to have some force. The inconsistency found in the medical records coupled with the delayed complaint is not satisfactorily explained by the claimants in their evidence. From these circumstances, the only just conclusion that could be reached is that the claimants have manipulated the true facts to turn it out as the road traffic accident involving a vehicle insured with the appellant. The Tribunal has failed to appreciate this vital aspect which goes to the root of the matter. In the context, it is apposite to extract the passage from the Judgment of the Apex Court in the case of Ramachandra Singh (supra) at paras 16, 17 and 18
Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.
A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is fraud in law if a party makes representation which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
In Derry v. Peek (1889) (14 AC 337, it was held:
In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest better that it is true, is not fraudulent and does not render the person make it liable to an action of deceit,
In Kerr on Fraud and Mistake at page 23, it is stated:
"The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this: that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry Peek A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false. Cannot be said Lord-Herschell, "is no doubt an important aid in ascertaining whether the belief was really entertained. A man''s mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so."
It is beneficial to extract the relevant passage from the Judgment of B.C. Kumar (supra) at para 16:
The above observation is made with the full knowledge that there has been spate of cases wherein false claims have been made before the Claims Tribunal and false implications are also on the increase. This Court in several such case, has found that a self accident is given a turn and it is made to appear as an accident involving a motor vehicle. In face, in one of the cases decided by this Court on 12-03-2009, in MFA No. 962/2007, this Court had occasion to make certain observations as regard false cases being filed before the Tribunal and also gave direction to the Tribunals to put themselves and guard and see to it that no person is allowed to abuse the process of law and make unlawful gain to himself by suppressing the true facts.
A Division Bench of this Court in the case of Veerappa & Anr. (supra) has held thus;
Fraus et jus munquam cohabitant Fraud and justice never dwell together, is a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. A judgment or decree obtained by playing fraud on the Courts is a nullity and non-est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order.
This Court in BAJAJ ALLIANZ GEN. INS. CO. LTD.''s case (supra) has held as under:
Here in the above case Ex-R-1, medical record discloses the manner of the accident, which was different from the one stated by the petitioner. In these circumstances, the Apex Court observed that Ex. R1. Establishes beyond the shadow of doubt that the injuries sustained are not on account of any vehicular accident. So prime importance has to be given to the entries made in the medical records unless the first information report is lodged to the police immediately after the accident. Even for the delay in lodging the complaint, there is no acceptable explanation offered by the petitioner. The circumstances will lead to only conclusion that the petitioner used the occasion to get the compensation by involving a vehicle, which had no concern with the accident at all. In that view of the matter. I am of the opinion that the Tribunal committed an error in appreciating the evidence and in coming to the conclusion that the accident was due to the rash and negligent driving of the car by its driver.
The Judgments cited above are squarely applicable to the facts of the present case. It is well settled law that when a fraud/misrepresentation is established from the material record, Courts should not come to the rescue of such claimants. Considering the totality of the circumstances, I am of the considered opinion that the Tribunal erred in awarding the compensation overlooking the vital aspects.
It is pertinent to note that both these cases arise out of the same road traffic accident and there is manipulation of the true facts as discussed above, which should apply to both the cases irrespective of the quantum of compensation awarded by the Tribunal. Hence, the Judgment of this Court in MFA No. 31772/2010 is not applicable to the facts of the present case.
For the foregoing reasons, the judgment and award passed by the Tribunal in MVC Nos. 110/2005 and 937/2006 are set-aside. The appeals i.e., MFA Nos. 31714/2009 and 30637/2010 filed by the insurer/appellant are allowed and the MFA Nos. 31535/2009 and 30405/2010 filed by the claimants are dismissed.
Amount deposited if any, shall be transmitted to the jurisdictional Tribunal and the insurer is permitted to withdraw the same.