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2012 DIGILAW 937 (KAR)

National Insurance Company Ltd. v. Baramappa

2012-11-16

S.N.SATYANARAYANA

body2012
Judgment S.N. Satyanarayana, J. 1. The second respondent - insurance company in MVC. No. 565/2006 on the file of MACT-V, Jamkhandi, has come up in this appeal impugning the judgment and award dated 25.5.2007 in awarding compensation for the alleged injuries suffered by claimant in a road traffic accident said to have taken place on 26.1.2006. 2. Brief facts leading to this appeal are as under: The case of claimant before Tribunal is that on 26.1.2006 while he was going back to his house from his field, he was hit by motor cycle bearing No. KA-25/X.0863 belonging to first respondent, insured with second respondent before Tribunal. It is stated that in said accident, he suffered fracture of middle shaft of tibia of right leg and other injuries. It is also his case that immediately after accident he took treatment for the alleged injuries and thereafter, filed police complaint and subsequently, filed claim petition seeking compensation from the owner and insurer of offending vehicle, which has caused accident. 3. In the proceedings before Tribunal, claimant examined himself as PW.1 and also got examined Doctor, who has given disability certificate to him as PW.2 to substantiate injuries suffered by him and also to support his case for substantial compensation for the said injuries. The Tribunal on appreciation of pleadings, oral and documentary evidence available on record proceeded to allow claim petition awarding compensation to claimant in a sum of Rs. 1,85,600/-. The second respondent - insurance company being aggrieved by said judgment and award has come up in this appeal challenging liability and as well as quantum. 4. Heard the Counsel for appellant and contesting respondent-claimant. The first line of argument of appellant-insurance company is that claim is fraudulent one, inasmuch as, documents regarding accident are concocted and created for the sake of this case. It is brought to the notice of this Court that accident has taken place on 26.1.2006 at about 8.00 p.m., near the village where claimant is residing. According to claimant, the person who hit him is none other than resident of his village, namely, Manjunathagouda, second respondent in this appeal and said Manjunathagouda took him to his house and said that he would provide medical assistance to him. According to claimant, the person who hit him is none other than resident of his village, namely, Manjunathagouda, second respondent in this appeal and said Manjunathagouda took him to his house and said that he would provide medical assistance to him. The next day around 11.45 am., claimant went to KIMS Hospital, Hubli, where x-ray was taken, wherein it was seen that he had suffered fracture of middle shaft of tibia and other injuries, for which, he underwent treatment. Thereafter, he filed complaint on 22.2.2006 contending that since Manjunathagouda, the person who caused accident did not provide expenses for treatment, hence he is filing complaint against him. Based on said complaint, FIR was registered, charge sheet was filed and thereafter, claim petition was pursued. 5. In the evidence it is seen that documents, namely, wound certificate vide Ex.P7 is said to have collected on 4.3.2006. Based on that claimant obtained disability certificate on 9.4.2007 from Dr. S.S. Teli, who has not treated him as admitted by said doctor in his evidence. In the cross-examination, said doctor also made it very clear that injury suffered by claimant is not because of accident but, it is caused because of himself falling down and suffering said injury. Inspite of said admission by PW.2, which remained unchallenged and also delay in filing FIR for nearly one month after accident, Tribunal has not taken any of that seriously. On the contrary, proceeded to believe everything that is stated by claimant as gospel truth, even at the cost of ignoring the evidence of PW.2 who clearly admits that accident is not because of the involvement of vehicle however, it is because of claimant falling down by himself. In that view of matter, this Court doubts genuineness of claim. 6. It is further seen that though there is reference to fracture in wound certificate, the radiologist report and as well as x-ray, are not summoned from KIMS Hospital, Hubli and marked in the proceedings before Tribunal. Incidentally, the doctor who is said to have treated claimant in KIMS Hospital is also not summoned to give evidence. On the contrary, evidence that is adduced does not support that accident infact has really taken place in the manner in which it is stated to have taken place. Incidentally, the doctor who is said to have treated claimant in KIMS Hospital is also not summoned to give evidence. On the contrary, evidence that is adduced does not support that accident infact has really taken place in the manner in which it is stated to have taken place. Therefore, it is seen that as in many fraudulent cases, where an unfortunate incident resulting in some injuries to claimant is attempted to be converted in to road traffic accident by using vehicle belonging to a person known to claimant, this appeal also appears to be one such fraudulent case and appears to be yet another classic example of such exercise. Surprisingly, Tribunal has not looked in to any of these things. 7. Though all these discrepancies are glaring at the face to show that this is fraudulent case, counsel for respondent/claimant tried to substantiate the same by relying on several decisions of Apex Court and as well as this Court to say that delay in filing FIR should be ignored for the reason that conditions in this country are such that a person who suffers accident will have to voluntarily go and get complaint lodged by himself and many a time he will not have the assistance of others. Hence, these things will have to be taken in to consideration and in such circumstances the evidence of kith and kin is required to be taken in to account. 8. Assuming for a moment, that this is one such incident where because of his inability claimant could not move around, nothing prevented him in getting the information regarding accident passed on to police through doctor and getting complaint registered when he was in hospital. On the contrary, claimant would say that there was some tacit understanding between himself and rider of offending vehicle to settle the dispute outside court and since the same did not come through, complaint is lodged belatedly, which is unbelievable and appears to be make believe story to get over the lacuna in lodging complaint belatedly after fixing a known vehicle that too a vehicle having insurance coverage to see that claimant would get enough compensation. 9. It is also seen that based on these judgments several other judgments are also passed by Division Bench of this Court and learned single Judges of this Court. 9. It is also seen that based on these judgments several other judgments are also passed by Division Bench of this Court and learned single Judges of this Court. Many of them are under the circumstances, where there was genuinely some mistake in filing such cases and such cases by themselves will not be guiding factors to the Courts to decide each and every case. Infact, each and every case will have to be decided on the facts and circumstances of said case. These judgments will only assist the Court in rightly assessing the facts available on record with the probabilities to weigh in which accident is said to have taken place or the probabilities of some delay being there. It does not mean that these judgments lay a rigid rule that under a particular circumstance the Tribunals and High Courts should follow a fixed or particular path, which cannot be accepted. Therefore, on going through several judgments of Apex Court, Division Bench judgments and judgments rendered by learned Single Judges of this Court cited in this proceedings it is clearly seen that facts and circumstances in the present case are totally different from that of those cases. Therefore, relying on them as if they are straight jacket guidelines, does not arise. The same cannot also be applied mutatis mutandis without looking in to the facts of each case. In that view of matter, this Court is of the opinion that in the facts and circumstances of the present case it is clearly seen that the unfortunate incident of claimant suffering injuries in some accident is tried to be converted in to injury suffered in the road traffic accident, by fixing a vehicle as involved in the accident and manipulate the same in such a manner to ensure that there would be suitable compensation for the unfortunate injury which he has suffered otherwise than in road traffic accident. Further, it is noticed that even in such fraudulent case also Tribunal appears to be too generous in awarding sumptuous compensation for the fracture of middle shaft of tibia, the compensation which is awarded exorbitantly on higher side. 10. In that view of matter, the appeal filed by insurance company is allowed. The judgment and award dated 25.5.2007 passed in MVC. No. 565/2006 on the file of MACT-V, Jamakhandi, is set aside. 10. In that view of matter, the appeal filed by insurance company is allowed. The judgment and award dated 25.5.2007 passed in MVC. No. 565/2006 on the file of MACT-V, Jamakhandi, is set aside. In view of the appeal being allowed, the amount in deposit is ordered to be refunded to appellant.