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2016 DIGILAW 418 (KAR)

AJITKUMAR M. PANCHAKSHARAYYA v. SADANAND

2016-06-07

H.G.RAMESH, RATHNAKALA

body2016
JUDGMENT : H.G. RAMESH, J. 1. This appeal is directed against the judgment and award dated 11.08.2011 passed by the Fast Track Court, Sirsi (‘the Tribunal’ for short), dismissing the appellant’s claim petition in M.V.C.No.31/2008 as false, fabricated and collusive. The claim was filed for grant of compensation for the injuries suffered by him in a motor vehicle accident alleged to have occurred on 12.09.2007. 2. We have heard learned counsel appearing for the appellant, perused the impugned judgment, the record of the Tribunal and the certificate of insurance of the appellant’s own motorcycle bearing registration No.KA-31/J-6999 produced as additional evidence along with I.A.No.2/2012. I.A.No.2/2012 is filed by the appellant for production of the aforesaid certificate of insurance as additional evidence. 3. Learned counsel for the appellant contended that the reasoning of the Tribunal in holding that the appellant’s claim was false, fabricated and collusive is erroneous. In support of his contention, he referred to the certificate of insurance of the appellant’s own motorcycle referred to above. 4. The appellant had filed the aforesaid claim petition for award of compensation stating that he suffered injuries in a motor vehicle accident on 12.09.2007 at 10.30 p.m. while he was going towards his house as a pillion rider on his friend’s motorcycle bearing registration No.KA-31-K-9958. It was further alleged that the accident occurred due to rash and negligent riding of the said motorcycle by respondent No.3 and that the motorcycle belonged to respondent no.1. 5. The Insurance company pleaded that the claim of the appellant was false stating that the accident happened due to the appellant’s own rash and negligent riding of his own motorcycle bearing No.KA-31/J-6999 and not of the motorcycle of respondent no.1 as stated in the claim petition. In this behalf, the insurance company examined its employee as RW2 and produced the complaint filed by it to the police as Ex.R-4. 6. The Tribunal, on a detailed appreciation of the evidence adduced before it, has found that the claim made by the appellant against the respondents is a false one. It is appropriate to refer to the following reasoning of the Tribunal in holding the appellant’s claim as false: “11. It is surprising to note that, said Krishnananda who is examined as P.W.2 in this case, has stated that, in the complaint he has mentioned the registration number of the vehicle as K.A.-31/J-6999. It is appropriate to refer to the following reasoning of the Tribunal in holding the appellant’s claim as false: “11. It is surprising to note that, said Krishnananda who is examined as P.W.2 in this case, has stated that, in the complaint he has mentioned the registration number of the vehicle as K.A.-31/J-6999. But after re-verification the registration number of the vehicle involved in the accident was found to be KA-31/K-9958 and hence, he has given a restatement to police. In the cross-examination, this witness has denied the suggestion that, the petitioner himself was driving the motor cycle bearing No.KA-31/J-6999 and met with an accident. The complaint at Ex.P-2 was filed on 13.8.2007 at 00.30 hours (12.30 in the early morning). The police have drawn spot panchanama as per Ex.P-3 on 13.09.2007 between 9.45 to 10.45 a.m. Surprisingly, in this panchanama the registration number of motor cycle is changed as “KA-31/K-9958”. This P.W.2 is not an illiterate person, but he is an educated man and doing some job. It is highly impossible to accept his version that, he was not in a position to understand the difference between the nature of vehicle and registration number i.e. “TVS Victor motor cycle bearing No.KA-31/J-6999” as “TVS Star Std No.KA-31/K-9958”. 13. Further, it is also important to note that, the present respondent No.2 Company had given a petition to P.S.I., new market police station, Sirsi dated 3.5.2010, as per Ex.R-4, stating that, the actual motor cycle involved in the accident is bearing Reg. No.KA- 31/J-6999. But motor cycle bearing registration number No.KA-31/K-9958 is subsequently introduced. Hence, it was requested to re-investigate the case. Of course, this petition was belatedly given. But the result of this petition is not clarified. …………. 14. By going through the above documentary evidence and appreciating the oral evidence, one thing is clear that, the motor cycle, which was really involved in the accident is “TVS Victor bearing No.KA-31/J-6999,” but in the spot panchanama at Ex.P-3 and charge-sheet at Ex.P-5, the motor cycle involved in the accident is shown as “TVS Star M/c No.KA-31/K-9958”. It can be presumed that, either the petitioner himself was riding the motor cycle No.KA-31/J-6999 or there was no valid insurance at the time of accident. It can be presumed that, either the petitioner himself was riding the motor cycle No.KA-31/J-6999 or there was no valid insurance at the time of accident. In order to cover up these two aspects, the petitioner, in connivance with respondent No.1, respondent No.3 and some other invisible hands, the motor cycle bearing KA-31/K-9958 is intentionally inserted in the records, though it was not actually involved in the accident. All this is done only with an intention to obtain compensation from respondent No.2-Company and nothing else. Thus, the petitioner has built up a false story to claim compensation. 16. The learned counsel for respondent No.2 has placed reliance on the unreported decision of the Hon’ble High Court of Karnataka in MFA NO.3475/2008. As per this decision the MACT has to decide the claim petition on the basis of evidence adduced before it and plea of guilt by the driver before the Criminal Court is not the sole criterion, but it may be piece of evidence. In the present case also, the respondent No.3 is admitted to have pleaded guilty before the Criminal court. As already noticed, the available evidence on record clearly indicates that, the motor cycle bearing No.KA-31/K-9958 has been intentionally inserted in the criminal records instead of the motor cycle bearing No.KA-31/J-6999. Therefore, the respondent no.3 pleading guilty before criminal court is of no help to the present petitioner in this case. Because said plea of guilt is also part of conspiracy. Therefore, I am of the considered opinion that the petitioner has utterly failed to prove that, the motor cycle bearing No.KA-31/K-9958 was involved in the accident and due to said accident only, he sustained injuries. Therefore, I answer the Issue No.1 in the negative.” (Emphasis and underlining supplied) 7. The accident was alleged to have occurred at 10.30 p.m. on 12.09.2007. Ex.P-2 is the complaint given to the police by PW-2 on that very night at 00.30 a.m. on 13.09.2007. The complaint was produced in evidence as Ex.P-2 by the appellant himself. It is clearly stated therein that the accident was due to rash and negligent driving of the motorcycle namely, TVS Victor No.KA-31/J-6999 by respondent no.3 and the appellant was its pillion rider at the time of accident. The complaint was produced in evidence as Ex.P-2 by the appellant himself. It is clearly stated therein that the accident was due to rash and negligent driving of the motorcycle namely, TVS Victor No.KA-31/J-6999 by respondent no.3 and the appellant was its pillion rider at the time of accident. It is not in dispute that the appellant was the owner of the aforesaid motorcycle and as could be seen from the certificate of insurance produced before this Court along with I.A.No.2/2012, the motorcycle also had insurance cover from 05.12.2006 to 04.12.2007. PW-2 who gave the complaint (Ex.P-2) to the police has stated in his evidence that he knew the appellant for the last 23 years as he was coming to his shop (Sweets shop) and he also knew the registration number of the appellant’s own motorcycle. 8. Subsequently, the appellant’s own motorcycle was given up and a third party’s (R1) motorcycle namely, TVS Star No.KA-31-K-9958, was brought in to make the claim, obviously for the reason that the appellant, being himself the insured in respect of his own motorcycle, could not have maintained a claim under the Motor Vehicles Act, 1988 (‘the Act’ for short) against his own insurer for the injuries suffered by him due to user of his own vehicle. A claim petition against an insurer under the Act is maintainable in law only by a third party to the insurance policy i.e. by a person who is not a party to the insurance policy issued by the insurer. Under Section 149 of the Act, an insurer can be made liable for the award only if a judgment and award is obtained against its insured in respect of any liability covered by the terms of the insurance policy or required to be covered under the provisions of the Act. A contract of motor insurance is a contract of indemnity. If the appellant had filed the claim petition against the insurer of his own motorcycle, it would have been dismissed against his insurer, for the reason that without saddling the liability to pay the award amount on the insured, the insurer cannot be made liable. Therefore, a third party’s (R1) motorcycle namely, TVS Star No.KA-31-K-9958 having insurance cover was brought in by the appellant to make the claim in question and to make a wrongful gain, if possible. 9. Therefore, a third party’s (R1) motorcycle namely, TVS Star No.KA-31-K-9958 having insurance cover was brought in by the appellant to make the claim in question and to make a wrongful gain, if possible. 9. Registration numbers of both the motorcycles are totally different and are in no way similar. There is no acceptable explanation for changing the appellant’s motorcycle, which is clearly described in the complaint- Ex.P-2 including its model as TVS Victor No.KA-31/J-6999, with a third party‘s (R1) motorcycle of a different model namely, TVS Star No.KA-31-K-9958 for the purpose of making a claim. The alleged rider of the motorcycle (R3) was also not examined in the case. 10. For the aforesaid reasons, we find no error in the finding of the Tribunal that the first respondent’s motorcycle bearing No.KA-31-K-9958 was not involved in the accident and the further finding that the appellant’s claim against the respondents was a false one, as the findings are based on the evidence on record. No ground to admit the appeal. The appeal is accordingly dismissed. In view of dismissal of the appeal, I.A.No.2/2012 filed for production of certificate of Insurance of the appellant’s motorcycle, which document has been considered by us and referred to above, and I.A. No.3/2012 filed to implead United India Insurance company-the insurer of the appellant’s motorcycle also stand dismissed.