IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY 2015 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA M.F.A.No.5727/2011(MV) C/W M.F.A.No.5728/2011(MV) MFA.No.5727/2011:
BETWEEN:
SRI. UMESH HIREMATA, S/O. SIDDAIAH HIREMATA, AGED ABOUT 53 YEARS, R/O.VINOBHANAGARA, SHIVAMOGGA – 577 201. …APPELLANT. (BY SRI SAMEER S NAGAPPA , ADVOCATE) AND:
1. SRI. GANGADHARAIAH, S/O. VEERAIAH, AGED ABOUT 67 YEARS, R/O. HASUDI FARM, HASUDI VILLAGE, SHIVAMOGGA TALUK AND DISTRICT – 577 201.
2. SRI. MANJUNATA, S/O. GANGADHARAIAH, AGED ABOUT 35 YEARS, HASUDI FARM, HASUDI VILLAGE, SHIVAMOGGA TALUK AND DISTRICT – 577 201.
3. THE BRANCH MANAGER, TATA AIG GENERAL INSURANCE CO., LTD. KHANIJA BHAVANA, R.C.ROAD, BENGALURU – 560 001.
…RESPONDENTS.
(BY SRI O.MAHESH, ADVOCATE FOR R3 R1 AND R2 – SERVED.) *-*-*-*-*-*-*-* THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 10/11/2010 PASSED IN MVC No.159/2006 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE & AMACT- 7, SHIVAMOGGA, AWARDING A COMPENSATION OF Rs.2,10,255/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
MFA. No.5728/2011:
BETWEEN:
SRI. GANGADHARAIAH, S/O. VEERAIAH, AGED ABOUT 67 YEARS, R/O. HASUDI FARM, HASUDI VILLAGE, SHIVAMOGGA TALUK AND DISTRICT – 577 201.
…APPELLANT.
(BY SRI SHIMOGGA NAGARAJ H.H., ADVOCATE) AND:
1. SRI. MANJUNATA, S/O. GANGADHARAIAH, AGED ABOUT 35 YEARS, HASUDI FARM, HASUDI VILLAGE, SHIVAMOGGA TALUK AND DISTRICT – 577 201.
2. SRI. UMESH HIREMATA, S/O. SIDDAIAH HIREMATA, AGED ABOUT 53 YEARS, R/O.VINOBHANAGARA, SHIVAMOGGA – 577 201.
3. THE BRANCH MANAGER, TATA AIG GENERAL INSURANCE CO., LTD. KHANIJA BHAVANA, R.C.ROAD, BENGALURU – 560 001.
…RESPONDENTS.
(BY SRI O.MAHESH, ADVOCATE FOR R3 R1 & R2-SERVED) THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 10/11/2010 PASSED IN MVC No.159/2006 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant and 2nd respondent in MVC No.159/2006 on the file of Addl. M.A.C.T-7., Shivamogga, have come up in these two appeals impugning the judgment and award dated 10.11.2010. The appeal in MFA No.5727/2011 is by 2nd respondent in MVC No.159/2006, who is said to be the owner of Yamaha motorbike bearing registration No.KA-14-Q- 9269 involved in the accident that occurred on 21.11.2005. The appeal in MFA No.5728/2011 is by the claimant in MVC No.159/2006 seeking enhancement of compensation for the injuries suffered by him in the aforesaid accident.
2. Though these two appeals are posted for admission, since lower Court records are secured, they are taken up for final disposal at the request of learned counsel appearing for the appellant in both the appeals and the contesting respondent – Insurance Company.
3. Brief facts leading to these two appeals are as under:
In the claim petition, claimant has stated that on 21.11.2005 at about 10:30 a.m., his son, 1st respondent before the Tribunal, was riding motorbike bearing registration No.KA-14-Q-9269 belonging to 2nd respondent before the Tribunal and he was traveling as pillion rider on the said motorbike and when they were proceeding from Shivamogga towards Machenahalli dairy near Malavagoppa, all of a sudden, a stray dog came across the road and while manoeuvring the motorbike to avoid the dog, his son lost control of the motorbike, which skidded and as a result, himself and his son fell down and sustained injuries. The said case of the claimant is supported by 1st respondent and 2nd respondent before the Tribunal, who are incidentally, the son of claimant and owner of the alleged vehicle said to have caused the accident.
4. According to claimant immediately after the accident on the same day at about 2:05 p.m., complaint was lodged by him, in Shivamogga rural Police Station against his son, Manjunata, who is 1st respondent before the Tribunal. The sum and substance of the complaint is that the complainant`s son drove motorbike bearing registration No.KA-14-Q-9994 in a rash and negligent manner with the complainant as pillion rider. When they were proceeding near Malanagoppa, a stray dog suddenly came across the road, the rider of motor cycle while trying to avoid hitting the said dog, lost control of his motorbike. The said vehicle skidded resulting in fall of complainant and his son who was the rider, from the motorbike and suffering injuries.
5. As could be seen from the lower Court records, at the first instance, the complaint is against his own son as rider of motorcycle bearing registration No.KA-14-Q-9994. The statement of the claimant was recorded by Police on the date of the accident i.e., 21.11.2005 between 1:30 and 1:45 p.m as per Ex.P5 even before registering the complaint, wherein he has reiterated that the accident has taken place involving motorbike bearing registration No.KA-14-Q-9994. However, in mahazar drawn on 03.12.2005 as per Ex.P4, the number of the vehicle is changed and it is shown as if the vehicle involved in the accident is bearing registration No.KA-14-Q- 9269 and belongs to 2nd respondent, who is said to be relative of the claimant and 1st respondent. The records would further indicate that immediately after the accident, claimant was taken to McGann hospital, Shivamogga and thereafter, he was taken to Kasturba hospital, Manipal, for treatment. It is stated that he was in Kasturba hospital for more than four months for the injuries, namely, puncture wound over anterior aspect of left knee; communited supracondylar fracture of left femur and fracture of proximal half of left tibia. Subsequently, claim petition is filed by the claimant – appellant in MFA No.5728/2011 against: his son, who was riding the motorbike at the relevant point of time; his relative, owner of motorbike bearing registration No.KA-14-Q-9269 and insurer of the said motorbike, who are arrayed as respondent Nos.1, 2 and 3 respectively in the claim petition.
6. In the said proceedings, on service of notice, respondent Nos.1 and 2 filed statement of objections jointly contending that the accident has taken place exactly as stated in the claim petition and tried to make an improvement over the same. However, there is nothing on record to show as to why the number of the vehicle, which was initially given as KA-14-Q-9994 was changed to KA-14-Q- 9269. Though the complaint and FIR – Ex.P2 clearly demonstrate that the vehicle bearing No.KA-14Q-9994 involved in the accident is different from the vehicle belonging to 2nd respondent bearing No.KA-14-Q-9269, 2nd respondent does not even raise an objection to the said discrepancy and 1st respondent, who is said to be the rider of motorcycle bearing registration No.KA-14Q-9994 as per FIR – Ex.P2 also does not speak anything about the police records viz., mahazar - Ex-P4 and IMV report – Ex.P5, wherein number of the vehicle which caused the accident is subsequently changed as KA-14-Q-9269. With the said manipulated documents, claimant preferred claim petition and tried to seek compensation, wherein though a statement of objections is filed by respondent Nos.1 and 2, it is more in the nature of supporting the claim of claimant.
7. The Tribunal, having seen game plan of the claimant, his son, respondent No.1 and their relative, respondent No.2 in the claim petition, declined to accept the case of the claimant that the motorbike bearing No.KA-14-Q- 9269 belonging to 2nd respondent and insured with 3rd respondent was involved in the accident and consequently, dismissed the claim petition as against insurer. However, Tribunal has awarded compensation to the claimant in a sum of Rs.2,10,255/- together with interest at 6% per annum from the date of petition till the date of deposit and held that respondent Nos.1 and 2 in the claim petition are jointly and severally liable to pay compensation awarded to the claimant. Further, respondent No.2 was directed to deposit the compensation amount along with interest. Being aggrieved by the same, 2nd respondent in MVC No.159/2006 has filed MFA No.5727/2011 seeking for modification of the judgment and award impugned by fixing liability to pay compensation on the insurer of the offending motorbike, respondent No.3 before the Tribunal. The Claimant has preferred appeal in MFA No.5728/2011 seeking enhancement of compensation awarded by the Tribunal.
8. Heard the learned counsel for appellant in both the appeals and the learned counsel for contesting respondent – Insurance Company. Respective appellant in both the appeals are none other than the registered owner of motorcycle bearing No.KA-14-Q-9269 and the claimant, who suffered injuries in the accident. On going through the material available on record, it is clearly seen that an unfortunate incident like fall of the claimant from motorbike while his son was riding the same, is sought to be converted into a road traffic accident case. There is a concerted effort on the part of the claimant and 1st respondent before the Tribunal to see that compensation is secured from the insurer of motorbike bearing No.KA-14-Q-9269 with the active connivance of the owner – 2nd respondent before the Tribunal. The Tribunal, having seen the game plan of the parties, has rejected the claim petition as against respondent No.3 – Insurance Company. Since there was an admission on the part of respondent Nos.1 and 2 before the Tribunal with reference to the accident having taken place as stated in the claim petition, the Tribunal has fastened liability to pay compensation on them.
9. In MFA No.5727/2011, the appellant, who is respondent No.2 before the Tribunal, is trying to wriggle out of the liability fastened on him to pay compensation. In MFA No.5728/2011, the appellant – claimant in addition to seeking enhancement of compensation, is also seeking to shift the liability to pay compensation on respondent No.3 – Insurance Company. Heard the counsel appearing for appellant in both the appeals and the contesting respondent – Insurance Company. It is clearly seen that there cannot be more fraudulent claim than the one on hand, which is filed by the injured in an unfortunate accident resulting in his fall from his own motorbike bearing No.KA-14-Q-9994, which his son was riding at the relevant time. For whatever reason best known to claimant, he has tried to implicate the vehicle of 2nd respondent bearing No.KA-14-Q-9269, which had nothing to do with the accident. In the aforesaid facts and circumstances, the conduct of claimant, respondent Nos.1 and 2 before the Tribunal in implicating the vehicle bearing No.KA-14-Q-9269, which is not involved in the accident and trying to secure compensation to claimant and in persuading their effort to shift liability on respondent No.3 - Insurance Company to make unlawful gain out of an unfortunate incident is nothing but a criminal act. This Court find that the manner in which the entire case is conducted by the claimant, 1st respondent and 2nd respondent is highly deplorable. Having found that there is no merit in the appeal filed by 2nd respondent in MFA No.5727/2011, owner of motorcycle bearing No.KA-14-Q- 9269, which is alleged to have caused the accident to the claimant and his son, this Court feel that the said appeal is liable to be dismissed. Similarly, appeal filed by claimant in MFA No.5728/2011 for enhancement of compensation is also liable to be dismissed. While doing so, exemplary cost is required to be imposed on appellant in MFA No.5728/2011 for taking the shortcut method of filing false case by implicating the motorbike bearing No.KA-14-Q-9269 belonging to 2nd respondent as vehicle causing the accident and trying to defraud respondent No.3 - Insurance Company and in the bargain, wasting valuable time of this Court from 2006 to 2010 in tenaciously contesting and pursuing their false claim. Cost is also required to be imposed on 2nd respondent before the Tribunal, appellant in MFA No.5727/2011, who knowing fully well that his vehicle was not involved in the accident, has joined respondent No.1 in filing the common statement of objections in MVC No.159/2006 and supporting claimant and 1st respondent to secure shifting of liability on the Insurer of motorbike belonging to him.
10. Accordingly, these appeals are dismissed by imposing cost of Rs.10,000/- each on respective appellant in both the appeals. The judgment and award passed by Additional M.A.C.T. – VII, Shivamogga, in MVC No.159/2006 is hereby confirmed. Registry shall recover cost from the claimant - appellant in MFA No.5728/2011 and appellant in MFA No.5727/2011, who is respondent No.2 before the Tribunal. They shall deposit the said cost within 8 weeks from today, failing which, Registry shall initiate appropriate proceedings including their arrest and detention in civil prison till such time the entire cost is deposited by them before this Court.
Sd/- JUDGE sma