Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 423 (MP)

Brijpal v. Munni Bai

2016-06-13

ROHIT ARYA

body2016
ORDER : Rohit Arya, J. These appeals arise out of the one and same incident and common order passed by the Motor Accidents Claims Tribunal whereby review petitions have been heard and allowed of by the impugned order. For the purpose of disposal of these cases, facts in M.A. No. 1662/2011 are now dealt with. 2. Appellants/owner and driver of tractor No. UP 80-W-7679 being aggrieved by the order of the Motor Accident Claims Tribunal, Ambah, District Morena dated 30/8/2011 in Case No.8/2009 (Review Petition) have filed this appeal. 3. Facts relevant for disposal of this appeal are to the effect that on 25/4/2006 the deceased-Rashid Khan S/o Alauddin was travelling in a bus bearing No. MP 06-B-1699. Due to rash and negligent driving of tractor bearing No.UP 80-W-7679 (hereinafter referred to as the offending vehicle) owned by one Asharam (appellant No.2) driven by Brijpal (appellant No.1), the same dashed against the bus at Bah Fatehabad Road, Baba Ki Tiwariya falling within territorial jurisdiction of Police Station Fatehabad, District Agra as a result Rashid Khan died leaving behind six members in the family viz., wife, sons, mother and younger brothers. The tribunal taking into consideration the evidence placed before it, reached the conclusion that due to rash and negligent driving of the tractor, the accident occurred and the offending vehicle, i.e., the tractor being insured with the National Insurance Company (respondent No.7), it is held liable to pay the compensation. For calculation of the amount of compensation, the tribunal has taken into consideration that the deceased-Rashid Khan was engaged in tailoring job, his annual income was assessed at Rs. 36,000/- per year, dependency of claimants was adjudged at Rs. 27,000/- and Rashid Khan being of the age of 36 years multiplier of 16 was applied and accordingly, compensation was awarded to the tune of Rs. 3,65,000/- with 6% interest per annum vide award dated 20/3/2008. No appeal was preferred by the insurance company. However, after lapse of about two years six months on 30/6/2009 a review application was filed by the insurance company along with an application under Section 5 of the Limitation Act for condonation of delay. Reply to such application was also filed by the appellants. 4. No appeal was preferred by the insurance company. However, after lapse of about two years six months on 30/6/2009 a review application was filed by the insurance company along with an application under Section 5 of the Limitation Act for condonation of delay. Reply to such application was also filed by the appellants. 4. Relevant facts as pleaded in the review petition are to the effect that claim petitions were filed on the factual premise that the offending vehicle was insured with the Insurance Company and the said policy was renewed by policy dated 26/04/2006 with effect from 21/04/2006 to 20/04/2007. The accident since had occurred in the mid-night of 24/25-04-2016, therefore, the Insurance Company is liable for payment of compensation. As a result, award was passed on 20/3/08. However, as the accident had occurred within 05 days' from the date of renewal of insurance policy on 21/04/2006, in view of internal circulars of the Insurance Company, such cases are classified as “Close Proximity”. Therefore, to avoid possibility of any fraud or collusion, the matter was got investigated by the Insurance Company through a private investigator, Shishram Singh (P.W.1). During investigation, it is found that the offending vehicle was purchased under hire purchase agreement financed by Uco Bank, Branch Pinahat Agra, State of Uttar Pradesh. There was a tie up between Uco Bank with the Insurance Company on terms and conditions whereof the offending vehicle was required to be insured. It was the obligation of the Uco Bank to ensure insurance of the offending vehicle and pay premium regularly. The Bank has shown to have prepared draft No.614658 dated 21/04/2006 of premium amount and thereafter the same was shown to have been dispatched by the Bank to the Insurance Company whereas the same was made available with the Insurance Company only on 25/04/2006. But, the insurance policy was made effective from 21/04/2006 on the strength of the aforesaid demand draft. It was also found that demand draft Nos.614653 to 614657 were of later dates, viz., 22/04/2006, 24/04/2006 & 25/04/2006 whereas subsequent demand draft No.614658 in question was shown to have been prepared 21/04/2006, but, the same could have been prepared either on 25/04/2006 or thereafter. It was also found that demand draft Nos.614653 to 614657 were of later dates, viz., 22/04/2006, 24/04/2006 & 25/04/2006 whereas subsequent demand draft No.614658 in question was shown to have been prepared 21/04/2006, but, the same could have been prepared either on 25/04/2006 or thereafter. As such, there was collusion between owner of the offending vehicle and the Bank in preparation of the demand draft with ante date to avoid liability and ensure fastening of the liability on the Insurance Company in respect of the accident occurred in the mid-night of 24/25-04-2006. 5. Appellant/owner has filed reply to the aforesaid applications of review and condonation of delay. The allegations of fraud and collusion levelled against the appellant with the Bank were emphatically denied. The offending vehicle; tractor with registration No.UP80-W-7679 was hypothecated with the UCO Bank, Branch Pinahat Agra, State of Uttar Pradesh under the hire purchase agreement. As per the procedure in vogue, the Bank used to debit the premium amount from the loan account of the original appellant/owner of the offending vehicle, Asharam (since dead) now represented by his legal heirs Shiv Singh & another and thereafter, the amount was transferred to the Insurance Company for renewal of the policy. The appellant/owner has no role to play in the aforesaid transaction. It is denied that the draft No.614658 towards the premium amount was not prepared on 21/04/2006. It is submitted that only after debiting the amount of the premium from the loan account of the appellant/owner on 21/04/2006, the demand draft was prepared, otherwise, the Insurance Company could not have issued the renewal cover note of the policy with effect from 21/04/2006 if the draft was prepared on the subsequent date. That apart, the insurance policy at no point of time was cancelled by the Insurance Company. As a matter of fact, the award was passed by the Motor Accidents Claims Tribunal on 20/03/2008 and the private investigator was appointed by the Insurance Company after lapse of two years six months. During pendency of the original proceedings, no such objection was raised by the Insurance Company. It is submitted that in one of the cases, viz., Munni Bai in the execution proceedings, the Insurance Company has already deposited the entire amount of the award, i.e., Rs. 5,15,626/- vide exhibits D/1, D/2 and D/3 on 09/07/2009. During pendency of the original proceedings, no such objection was raised by the Insurance Company. It is submitted that in one of the cases, viz., Munni Bai in the execution proceedings, the Insurance Company has already deposited the entire amount of the award, i.e., Rs. 5,15,626/- vide exhibits D/1, D/2 and D/3 on 09/07/2009. Hence, there is no explanation forthcoming as to why after such long lapse of time since the award was passed, the private investigator was appointed. 6. That apart, the private investigator has prepared the report on surmises and conjectures. At no point of time ever noticed the appellant in the so called enquiry/investigation but made allegations of fraud and collusion against the appellant. With the aforesaid factual assertions, it was contended that after the award was passed under section 166 of the Motor Vehicles Act, there is no provision for review of the award by the Motor Accidents Claims Tribunal. Even otherwise if the proceedings under Order 47, Rule 1 CPC are found to be available to the respondent/Insurance Company, the scope of review thereunder is limited and that too the same is required to be filed within thirty days from the date of the award. The application for condonation of delay is skeleton in nature without any plausible explanation for the delay caused. Hence, the explanation offered in the application for condonation of delay under section 5 of the Limitation Act by no stretch of imagination could be said to have been satisfactory in nature for the purpose of condonation of delay of two and half years. 7. It was also contended that the so called enquiry/investigation is not upon complete verification of facts and documents, particularly the terms and conditions of the agreement between the Bank and the Insurance Company in the matter of insurance of the vehicles. The conclusion of fraud and collusion appears to have been drawn only for the reason that the demand draft Nos.614653 to 614657 were prepared subsequent to demand draft No.614658 in question. Therefore, according to the private investigator, Shishiram Singh (P.W.1), the demand draft No.614658 could not have been prepared prior thereto and is ante dated. The conclusion of fraud and collusion appears to have been drawn only for the reason that the demand draft Nos.614653 to 614657 were prepared subsequent to demand draft No.614658 in question. Therefore, according to the private investigator, Shishiram Singh (P.W.1), the demand draft No.614658 could not have been prepared prior thereto and is ante dated. This conclusion is not only perverse in nature but also de hors terms and conditions of the agreement between Bank and Insurance Company and practise in vogue of the Bank inasmuch as if exhibit P/2 is carefully perused, preparation of the demand draft Nos.614653 to 614657 though are subsequent to demand draft No.616458 in question but demand draft nos. 614660 and 614661 are prepared on 21/04/2006. Actually, there are many books for preparation of demand drafts against vouchers issued after debiting the amount from the accounts of the borrowers. In this case what is relevant is procedure followed by the Bank for debiting the amount from the loan account of the appellant by preparing voucher and against the same demand draft was prepared and submitted to the Insurance Company by the Bank. Therefore, the serial number of the demand draft is of no relevance qua the date on which the same was prepared. The terms and conditions of agreement between the Bank and the Insurance Company vide circular dated 27/01/2004 (Annexure P/7 in connected W.P.No.181/2014) in the matter of renewal of policy inter alia provides as under: “2. Where the earlier has been expired the renewal coverage may be granted without physical inspection of the vehicle provided the premium has been debited by the bank after debiting the account of borrower and also after obtaining the confirmation from the bank official that to the best of their knowledge the vehicle is on the road worthy condition and not accident has taken place in between the expired policy period.” It is therefore, contended that as per the aforesaid clauses what is relevant for a valid policy was that of debiting the premium amount from the account of the borrower for a valid policy. It is not the case of the Insurance Company that premium amount for renewal of the policy was not debited from the account of the appellant/borrower on 21/4/06. It is not the case of the Insurance Company that premium amount for renewal of the policy was not debited from the account of the appellant/borrower on 21/4/06. As such, only for the reason that with prior serial numbers some demand drafts were prepared on subsequent dates, this by itself could not have been said to be an instance of ante dating of draft amounting to fraud. Such an allegation is also falsified by the fact that in the communication exhibit P/2, the Bank has also shown that the demand drafts of later numbers, viz., 614660 and 614661 were also prepared on 21/04/2006. There is no explanation given by the so called investigator in that behalf. Under such circumstances, the conclusion drawn by the investigator is in fact and effect against the terms and conditions in-between the Bank and the Insurance Company as well as policy of the Bank in the matter of preparation of demand drafts after debiting the amount from the account of the borrower. In fact, the so called investigation is based on surmises and conjectures. Hence, the report could not be basis seeking review of the award dated 20/03/2008 passed by the Motor Accidents Claims Tribunal. 8. The Tribunal negated the submissions advanced by the appellants and concluded that fraud was played upon by the Bank in collusion with the appellants by preparing draft no. 614658 of the premium amount of offending vehicle (Tractor No. UP80-W-7679) which though was of 26/4/2006, yet the same was ante dated as 21/4/2006 to cover the risk of accident occurred in the intervening night of 24/25.4.2006. Consequently, reviewed the Award dated 20/3/08 and set aside the same. 9. Taking exception to the impugned order, learned counsel for the appellants besides reiterating the submissions made before the Tribunal in review proceedings, also further referred to evidence of witnesses to substantiate the contention that as a matter of fact no fraud was played either by the appellants or by the Bank as such. Rameshwar Prasad (AW2) in paragraph 21, Officer of the Insurance Company, has deposed that it is true that appellants Asharam and Brajpal did not play any fraud with the Company. In para 15 he deposed that appellant Asharam had never come to the office of the Company for deposit of premium. Rameshwar Prasad (AW2) in paragraph 21, Officer of the Insurance Company, has deposed that it is true that appellants Asharam and Brajpal did not play any fraud with the Company. In para 15 he deposed that appellant Asharam had never come to the office of the Company for deposit of premium. In para 19 he has deposed that the insurance policy dated 21/4/06 issued by the Insurance Company was never cancelled. The witness explained the procedure that there was tie up between the Insurance Company and the Bank in the matter of deposit of premium. The Bank has deposited the premium with the Insurance Company twice by demand draft (DD). Against deposit of premium by the Bank, Insurance Policy was issued for the period 21/4/06 to 20/4/07. In paragraph 26 it is stated that for the alleged fraud, neither any complaint was filed in the police station nor any proceedings were initiated in the Court of law. In paragraphs 23 and 24 it is stated that after passing of the Award, the Insurance Company has deposited the entire Award amount in respect of one of the claimants Munni Bai in Execution Case No. 71/07-08 (Ex.D/1, D/2 and D/3). 10. Pramod Kumar (AW1), Branch Manager, UCO Bank, Pinahat, District Agra, in paragraphs 3 and 6 has stated that voucher was prepared on 21/4/06 (Ex.P/4). He has clarified that there are number of books containing draft leaves. Many a times when one or two drafts are left to be prepared, then the same are prepared later. 11. In the backdrop of the aforesaid contentions and referring to the evidence on record, learned counsel for the appellants contends that there was no fraud played upon the Insurance Company and, therefore, the impugned order deserves to be set aside. 12. Per contra learned counsel for the respondent-Insurance Company has supported the order passed by the Tribunal. 13. Heard, learned counsel for the parties. 14. Undisputedly, the offending vehicle (Tractor No. UP80-W- 7679) was hypothecated with UCO Bank, Branch Pinahat on being purchased under hire purchase agreement. As per the tie up between UCO bank and Insurance Company, the Bank had got the vehicle insured with the Insurance Company and has been paying the premiums periodically. As such, the liability was that of the Bank to pay the premiums. As per the tie up between UCO bank and Insurance Company, the Bank had got the vehicle insured with the Insurance Company and has been paying the premiums periodically. As such, the liability was that of the Bank to pay the premiums. The policy was purchased on 21/4/06 after debiting of the amount of premium from the loan account of the borrower and the draft was prepared on 21/4/06 as per the record of the Bank and oral evidence of Pramod Kumar (AW1). There is no documentary evidence on record to displace the aforesaid evidence. At this stage, it is relevant to refer to the relevant extract quoted above of letter dated 27/01/2004 (Annexure P/7 in connected W.P.No.181/2014) which in fact and in effect clinches the issue. The letter has neither been looked into by the Private Investigator Shishram Singh (AW3) nor by the Tribunal. A careful perusal thereof reveals that in the event insurance policy has expired, the renewal coverage can be granted without physical inspection of the vehicle provided premium has been debited by the Bank after debiting the account of borrower....... (remaining part of the clause is not relevant to the controversy involved in the instant case as no case is set up by the Insurance Company on the strength of the aforesaid part of clause). There is no denial to the fact that the voucher was prepared on 21/4/06 and the draft was prepared on 21/4/06. Under such circumstances, if the draft is prepared on 21/4/06 of the premium amount but submitted before the Insurance Company on 26/4/06, this by itself would not lead to the conclusion that the Bank had ante dated the same in collusion with the appellants to cover the risk of accident occurred on the intervening night of 24/25.4.06. Such a conclusion is totally perverse and without any basis. 15. The Tribunal has failed to appreciate the fact that preparation of draft by the Bank is a routine matter and is prepared by more than one person after preparation and compilation of vouchers. There are number of books that contain blank draft leaves. Therefore, if against the voucher of earlier date, draft is prepared on a later date or vice versa, this by itself would not lead to the conclusion that the draft was ante dated. There are number of books that contain blank draft leaves. Therefore, if against the voucher of earlier date, draft is prepared on a later date or vice versa, this by itself would not lead to the conclusion that the draft was ante dated. What is relevant is debiting of premium amount from the loan account and preparation of voucher as without voucher draft cannot be prepared. Therefore, no fault is found with the policy issued on 21/4/06 covering the risk period 21/4/06 to 20/4/07. It appears that inference of fraud was drawn in relation to demand draft no. 614658 dated 21/4/06 issued in favour of National Insurance Company Limited only on the basis of a letter issued on 18/9/10 by the UCO Bank to the Insurance Company under the RTI wherein information with regard to five preceding and five succeeding draft numbers with dates of issuance has been mentioned, for the reason that draft no.614658 shown to be issued on 21/4/06 could not have been issued on that date as earlier draft numbers were issued on later dates. However, the Tribunal failed to take note of the fact that even the later draft numbers like 614660 and 614661 were also issued on 21/4/06 and as such presumption of fraud could not have been drawn merely on the strength of said letter, moreso when the procedure has been explained by the Bank witness as regards preparation of drafts as discussed above. 16. Now, coming to the question of scope of review, the law is well settled by now that review is invoked only if there is any error apparent on the face of record and not on the basis of allegations of fraud having no foundation and also being contrary to the material placed on record and that too after a gap of 2 years 6 months. 17. Consequently, the appeals succeed and the impugned order is set aside. Copy of this judgment be retained in each of the connected appeals.