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2010 DIGILAW 671 (KAR)

New India Assurance v. K. Shashi Kumar

2010-05-31

RAM MOHAN REDDY

body2010
Judgment :- Common questions of law and fact arises for decision making and hence with the consent of the Learned Counsel for the parties, the petitions are clubbed together, finally heard and disposed of by this common order. 2. These petitions arise to of a common order dated 01.01.2008 dismissing Misc.Nos.262/2006 and 263/2006 of the Motor Accidents Claims Tribunal, Bangalore, for short MACT. 3. Facts in brief are: The petitioner New India Assurance Company when arraigned as party respondent in the claim petitions registered as MVC Nos. 492/2003 and 4694/2006 before the MACT, for compensation, invoking Section 166 of the Motor Vehicles Act, 1988, entered appearance and opposed the claims by filing statement of objections, inter alia denying the claim, while admitting the fact of issuing a policy of insurance for the motor vehicle being a tempo maxi cab bearing certificate of registration No. KA 21 – 1162 effective for the period 22.03.2002 to 21.03.2003 indemnifying the owner, of the maxi cab from claims arises out of an accident. The accident involving the Motor Vehicle occurred on 10.12.2002 leading to injuries and death of the passengers travelling in the vehicle. The MACT on the basis of material on record including the evidence both oral and documentary, returned a finding of negligence on the driver of the motor vehicle in question and as the vehicle was insured by the petitioner, clamped on it, the liability to pay the compensation by common judgment and award dated 20.03.2006 in MVC No. 492/2003 and 4694/2006. The petitioner having noticed the report dated 21.01.2003 of its surveyor disclosing that the maxi cab bearing registration No.KA 21 – 1162 was not involved in the accident, but was the motor vehicle being a maxi cab bearing registration No. KA 07 2148 owned by K Shashi Kumar who allegedly, immediately after the accident, swapped the number plate of the vehicle KA 07 2148 by fixing the number plate bearing No. KA 21 1162 and that the chassis number of the vehicle involved in the accident was punched with two numbers the first being No. 357010 J 93808900, said to be the original with neat punch marks, on proper alignment, at proper place on the left long members of the chassis belonging to vehicle bearing registration No.KA-07-2148, while the other number 357012-MWQ 816770 punched on the chassis at a different location with improper alignment in a haphazard manner belonging to vehicle bearing certificate of registration No.KA 21 1162 (insured vehicle). The report is said to have disclosed a manipulation in the engine number, 497SP21 – MWQ 733003 on the engine allegedly slit/cut by the use of an axe, without mounting, though that engine belongs to the motor vehicle bearing registration No.KA 21 – 1162 (insured vehicle). In the premise of the report, the petitioner suspecting the insured to have played a fraud the petitioner Insurance Company filed Misc.Nos.262/2006 and 263/2006 before the MACT, to set aside the Judgment and award dated 20.03.2006 in MVC 492/03 and 4694/06, in so far as it relates clamping liability on it to pay the compensation. The owner of the motor vehicles arraigned as party respondent No. 1 on being served with the notice of the Misc. petitions before the MACT, remained absent and was placed exparte. The claimants arraigned as second respondent in each of the petitions, on notice, entered appearance, filed statement of objections denying the claim, before the MACT. The petitioner examined two witnesses its official Sri.Chidambaram PW.1 and Surveyor Sri. S N Venugopal PW2, and marked Exs.P1 to P10, while for the 2nd respondent, the brother of the first respondent-owner of the vehicle was examined as RW1 and no documents were marked. The petitioner examined two witnesses its official Sri.Chidambaram PW.1 and Surveyor Sri. S N Venugopal PW2, and marked Exs.P1 to P10, while for the 2nd respondent, the brother of the first respondent-owner of the vehicle was examined as RW1 and no documents were marked. The MACT having regard to the material on record and the evidence both oral and documentary, held that the petitioner failed to establish the alleged fraud since RW1 was not examined as petitioners witness to corroborate the evidence of PW2 the Surveyor who claimed to have taken the impression of the numericals and alphabets punched on the chassis of the vehicles involved in the accident, in the presence of RW1 Manjunath, the brother of the owner of the vehicle. In addition, when RW1 was examined as the witness for the respondent, the petitioner failed to confront the wiriness with his alleged statement Ex.P5 said to be recorded by PW2, there was no clinching evidence to support the claim of fraud, and hence declined to accept the case of the petitioner and by the common order impugned, dismissed the Misc. petitions. 4. Learned Counsel for the petitioner submits that there were as many as four claims in different courts and though the Surveyor’s report Ex.P2 was in existence, nevertheless, due to inadvertence, the plea was not advanced in the statement of objection filed in MVC Nos.492/2003 and 4694/2006. According to the learned Counsel the plea of fraud by etching the chassis’s number of Motor Vehicle bearing Registration NO.:KA21-1162, (insured Vehicle) on the chassis of the vehicle bearing Registration No.:KA07-2148, involved in the accident, was advanced in MVC No.179/2003 in respect of which MFA 1538/2006 filed by the petitioner Insurance Company is pending consideration before the Division Bench of this Court and therefore, any finding recorded in these petitions would have a bearing on the finding to be recorded in the appeals. 5. In my considered opinion, the contention advanced by the learned Counsel cannot be countenanced. 5. In my considered opinion, the contention advanced by the learned Counsel cannot be countenanced. I say so because, the Insurance Company fully aware of an alleged fraud played on it which came to light on 13.12.2002 two days after the accident that occurred on 10.12.2002 and in respect of which a report Ex.P2 dated 21.01.2003 was filed by its surveyor, coupled with the fact that the petitioner advanced the plea of fraud in MVC No.179/2003, it is too farfetched to contend that the plea was inadvertently not raised or advanced in MVC 493/03 and 4694/06, subject matter of present writ petitions. The “inadvertence” pressed into service, in the circumstances, when fraud of the magnitude pointed out supra, is unacceptable. 6. The petitioner Insurance Company must succeed or fail on the evidence both oral and documentary marshaled before the MACT in the Misc. petitions. The petitioner having invoked the jurisdiction under Article 227 of the Constitution of India it is relevant to refer to the decision of the Apex Court in Surya Dev Rai Vs Ram Chander Rai and Others reported in AIR 2003 SC 3044 , holding that the jurisdiction is exercised for keeping the sub ordinate Court within the bounds of their jurisdiction and it is only when the sub ordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, then alone this Court would interfere in the orders of the subordinate Courts. 7. In the instant case, such is not the ground pleaded in the present petition and therefore, it is not possible to accept the submissions of the learned Counsel that the finding recorded in these petitions would have an adverse impact on the finding to be recorded by the Division Bench of this Court in the pending appeal calling in question the judgment and award in MVC 179/03. More over, it is not known as to what evidence is produced before the MACT in MVC No.179/2003 and whether that constitutes substantial legal evidence of the allegation of fraud. In that view of the matter, the petitioner cannot have any dispute over the hearing of these petitions. 8. More over, it is not known as to what evidence is produced before the MACT in MVC No.179/2003 and whether that constitutes substantial legal evidence of the allegation of fraud. In that view of the matter, the petitioner cannot have any dispute over the hearing of these petitions. 8. It is next contended by Sri.A. K Bhat, learned Counsel for the petitioner that the testimony of PW2 established the alleged fraud of swapping the vehicle bearing registration No.KA 07 2148 said to have met with an accident with vehicle bearing registration No.KA 21 1162 insured by the petitioner, so as to claim liability on the petitioner to pay compensation under the policy of insurance. 9. Per Contra, learned Counsel for the contesting respondent-claimants seeks to sustain the order impugned as being well merited, fully justified and not calling for interference. In addition, it is contended that there is no clinching evidence to establish the alleged fraud. 10. Indisputably the only evidence is that of PW2 said to be the Surveyor assigned to investigate into the accident, who submitted a report Ex.P2 on 21.01.2003, disclosing that on the left side of the chassis of the vehicle which met with the accident had punching marks of two separate and distinct chassis numbers and alphabets of both vehicles bearing registration No.KA 21 1162 as well as KA 07 2148; PW2 states that report discloses that the engine bearing no.497SP21 MWQ 733003, without mounting kept on the bed, had a clear slit/cut by use of an axe and said to be the engine that was removed from the vehicle KA21-1162 (the insured vehicle), to replace the engine, belonging to the motor vehicle bearing registration No.KA 07-2148 which was not insured. 11. According to PW2 the paper containing the impression of the numbers and alphabets on the chassis of the vehicle involved in the accident, were taken in the presence of RW1 brother of the registered owner of the motor vehicle who is said to have also made a statement in writing Ex.P5 under his signature. Very strangely this Manjunath who is said to have been privy to the investigation by PW2 was not examined as a witness of the petitioner, but when examined as RW1 the witness for the respondent was not confronted with either Ex.P5 the alleged statement of RW1 nor contents of Ex.P2 investigating report submitted by PW2. Very strangely this Manjunath who is said to have been privy to the investigation by PW2 was not examined as a witness of the petitioner, but when examined as RW1 the witness for the respondent was not confronted with either Ex.P5 the alleged statement of RW1 nor contents of Ex.P2 investigating report submitted by PW2. Therefore, in my opinion except for the self interested testimony of PW2 there was no evidence to corroborate the testimony of both oral and documentary of PW2 leading to the conclusion that there was no acceptable evidence 12. Yet again, a perusal of Ex.P2 report dated 21.01.2003 discloses that on the chassis of the motor vehicle which met with the accident was etched two sets of numericals and alphabets distinct and separate relating to the two motor vehicle of same make bearing registration Nos.KA 21- 1162 and KA 07 2148 as evident from Ex.P3 and Ex.P4, the ‘B’ register extract issued by the motor vehicle department of the state. The engine bearing No.:497 SP 21 MWQ 733003, found at the site of accident by the PW2, is the very same engine number certified in the ‘B’ register extract Ex.P3 as belonging to the vehicle bearing registration No.KA 21 1162 (insured vehicle). If that is so, it cannot but be said that the vehicle involved in the accident was the vehicle bearing registration No.KA 21 1162 (insured vehicle) and not the motor vehicle bearing registration No.KA 07 2148. I must say so because the engine belonging to the motor vehicle KA 07 2148 was not found at the site. 13. Even otherwise, the enliven which was allegedly silt by an axe was not proved in the testimony of PW2. There is neither corroboration nor evidence of an expert to conclude that an engine of a maxi cab could be easily slit by the use of an axe. Hence on that score too the oral testimony of PW2 is unacceptable. 14. The conduct of the petitioner in not lodging a complaint with the jurisdictional notice on 13.12.2002 immediately after the alleged fraud was unearthed or on 21.01.2003, the date of report Ex.P2, what could be reasonably inferred is a genuine doubt over the report Ex.P2. Hence on that score too the oral testimony of PW2 is unacceptable. 14. The conduct of the petitioner in not lodging a complaint with the jurisdictional notice on 13.12.2002 immediately after the alleged fraud was unearthed or on 21.01.2003, the date of report Ex.P2, what could be reasonably inferred is a genuine doubt over the report Ex.P2. Had the petitioner immediately informed the motor vehicle inspector about the alleged etching of two separate and distinct numericals and alphabets on the left side of the chassis of the motor vehicle involved in the accident indication chassis number belongs to two motor vehicle registered as Nos.KA 21 1162 (insured vehicle and KA 07 2148 (without insurance), the authorities would have had an opportunity to examine the veracity of the claim. Thus no credence or evidentiary value could be placed on Ex.P2 report. It is rather difficult to believe that the petitioner Insurance Company did sleep over the fraud of the magnitude alleged. 15. Looking at it from any angle, petitioner having failed to make out a case of fraud, no exception can be taken to the reasoning, finding and conclusion arrived at by the MACT in the order impugned. The writ petitions being devoid of merits are accordingly rejected.