M/S. THE ORIENTAL INSRUANCE COMPANY LIMITED, T.G.M.A. BUILDING, 1 v. SHARADAMMA

CROSS OBJECTION 2 AND 3 ARE MINORS HENCE REP. BY THEIR MOTHER AND NATURAL GUARDIAN CROSS OBJECTOR NO.1- SMT. SHARADAMMA

4. LAKSHMAMMA, W/O. LATE SIDDARAMANNA, AGED ABOUT 71 YEARS, CROSS OBJECTION NO.1 TO 4 RESIDENTS OF MUSAKONDLI VILLAGE, KONDLI POST, NITTUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572 101. (BY SRI.K.N. SUNIL, ADVOCATE FOR SRI. RAMESH K.R., ADVOCATE FOR APPELLANTS/CROSS OBJECTORS) ...CROSS OBJECTORS AND:

1. SRI. M.L. LINGARAJU, S/O. LAKKAPPA, AGED ABOUT 45 YEARS, R/A: MUSAKONDLI VILLAGE, KONDLI POST, NITTUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572101.

2. THE ORIENTAL INSURANCE COMPANY LIMITED, TGMA BUILDING, 1ST FLOOR, J.C. ROAD, TUMKUR-572 101. REP. BY ITS BRANCH MANAGER. - 4 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 ...RESPONDENTS (BY SRI. B.S. UMESH, ADVOCATE FOR R2; R1- SERVED AND UNREPRESENTED) THIS MFA IS CROB IN MFA NO.837/2015 FILED U/O 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED1.7.2014 PASSED IN MVC NO.996/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT-17, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL JUDGMENT Aggrieved by the order passed in MVC.No.996/2009 dated 01.07.2014 by the Senior Civil Judge and Member, Addl. MACT-17 at Gubbi, both the insurance company as well as the claimants are before this Court.

2. The Insurance Company’s appeal is MFA.No. 837/2015 and the claimant has filed cross objections i.e., MFA.Crob.73/2015. The claim petition filed seeking compensation of an amount of Rs.25,00,000/- for the death of the deceased in a road traffic accident. The claimants are four in number. It is the case that on 07.01.2008 at 5.00 am., while the deceased i.e., the husband of claimant No.1, father of - 5 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 claimant Nos.2 and 3 and the son of claimant No.4 had been to the house of one M.S.Prakash situated at Kondli Cross, he came out of the said house and went by the side of the road to attend the nature call, at that time a Tipper lorry being driven by its driver with a high speed and in a rash and negligent manner, came from Kondli Cross side and dashed against the deceased, as a result he sustained grievous injuries and succumbed at the spot. It is the case that the deceased was 38 years old as on that day and working as Loading, Screening and Grading Assistant in a Mines and getting a salary of Rs.30,000/- and he was also doing agriculture and had an income of an amount of Rs.2,00,000/- per annum and all the claimants were dependant on him. The respondent/insurance company had filed its objections stating that the deceased had not died because of the accident but, he had died because of the illness. In that regard they had relied on the evidence of the claimant/wife in a criminal case where she has stated that he has died out of illness. The owner has also denied the accident. When it comes to the involvement of the vehicle the Tribunal had given a finding that all the police documents produced by the petitioners are categorically denied by the - 6 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 respondents. But they have not produced the rebuttal evidence to disbelieve the accident alleged to have taken place on

07.01.2008. Further, the Tribunal had observed that the IMV report, Post Mortem Report and Charge sheet i.e., Ex.P.3, Ex.P.11 and Ex.P.12 speak that PW2 is the complainant as well as CW1 and these documents as stated earlier are not disputed. The Tribunal had also observed that the evidence without a pleading has no value in the eye of law and the pleading that the deceased fell into a pit on 06.01.2008 at about 1.00 pm., due to his ill health and weakness and immediately, his colleagues brought the deceased Jagadeesh to Kondli Cross and left out him before the house of his own brother and then the deceased succumbed. But these facts were not pleaded in the written statement and the evidence without pleading has no value in the eye of law and that cannot be considered and the Tribunal had also observed that respondent No.1 has not cross examined PW1 and not led any evidence to substantiate the contents of the written statement. The Tribunal had observed that the RW1 has produced the documents. Ex.R.1 is the copy of FIR, Exs.R.2 and R3 are the mahazars, Ex.P.4 is the seizure mahazar, Ex.P.5 is the IMV - 7 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 Report. Exs.R.1, R3, R4 and R5 and that of Exs.P.1, P9, P10 and P11 are one and the same documents. Ex.R2 is the mahazar drawn on 07.01.2008 in which there is a mention in the first page in last but 4th line that on 06.01.2008 at 1.00 pm., the colleagues have left in front of his brother’s house. Even if this document is believed, then admittedly the present accident is alleged to have taken place at about 5.00 am. on

01.07.2008 and the same is not denied by the respondents. And it is substantiated by Ex.P.2 that is the complaint lodged by PW2. The Tribunal had came to the conclusion that all the documents reveal that accident had taken place by observing that in the accident cases, it is not essential for the claimants to prove the accident beyond reasonable doubt as it is required under the criminal cases. Hence, the police documents relied on by the claimants clearly revealed that the accident has occurred because of the rash and negligent driving of the driver of the Tipper lorry and when it comes to the liability, as the said vehicle is insured with the insurance company, it is held that the insurance company is liable to pay the compensation. When it comes to the income of the deceased, though the claimant had pleaded that he has produced the salary certificate, as - 8 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 nobody was examined in support of the same, the Tribunal had taken the income at an amount of Rs.5,500/- and as there were four claimants 1/4th was deducted. Learned counsel submits that though it is stated as 1/4th, 3/4thwas deducted and accordingly, the Tribunal had granted the compensation as per the table given below: Heads of Compensation Amount in Rs. Sl. No.

1. Loss of estate or loss of Rs.2,80,500/- dependency

3. Transportation and obsequies Rs.11,000/- Loss of love and affection Rs.50,000/- Total Rs.3,41,500/-

3. Altogether the Tribunal had granted compensation of an amount of Rs.3,41,500/-. Aggrieved thereby the appellants/claimants are before this Court seeking enhancement of compensation.

4. Learned counsel the respondent/insurance company submits that as per the evidence given by the wife before the Criminal Court, it is stated that the husband died due to ill health, nowhere it is stated that the husband has died - 9 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 because of the road traffic accident. He submits that though it is stated that along with the copy of the FIR, the complaint is also annexed to that. According to the learned counsel for respondent, all these documents are created, fabricated for the purpose of claiming the compensation. Ex.P.9 is the Spot Mahazar, Ex.R2 and R3 are the Spot Mahazars. According to him, Ex.Rs2 and R3 were the Spot Mahazars at the earliest point of time and Ex.P.9 is a Spot Mahazar at the later point of time and these documents reveal that all the documents are fabricated documents. It is submitted that the Tribunal had failed to consider the case of the insurance company and had failed to look into all these documents which demonstrates that the accident had not taken place and the death of the deceased is due to ill health. He submits that it is nothing but playing fraud on the Court. When these kinds of contentions are taken, when there is sufficient evidence on record to show that the fraud is played on the Court, the Court has to dwell with the same with a iron hand. He had relied on the judgment of the Coordinate Bench of this Court in case of Smt. Arathy and - 10 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 another Vs. S.M. Umesha and others1 where the Court had observed as follows:

8. When involvement of the insured vehicle in the accident is disputed, it is for the claimants to place acceptable evidence to prove involvement and to prove that the accident arose out of use of the insured vehicle. If the claim is based on fault, then negligent user of the vehicle also requires to be proved.

9. Fraudulent claims are on the rise. Hence, it is necessary to state that, filing of complaint to the police, or -7- M.F.A.No.7025/2011 filing of charge sheet by the police, by itself, is no proof of involvement of the vehicle in the accident. Delayed filing of complaint to the police by giving particulars of a vehicle stating that it is involved in the accident, or delayed noting of particulars of a vehicle in the police record is prima facie indicative of its false implication in the accident. In such cases, stricter scrutiny of the evidence is required. The evidence requires to be assessed with great care and caution. The main test is one of reliability.

10. On the facts of the case, in my opinion, the finding recorded by the Tribunal that the appellants have failed to prove the involvement 1 MFA.No.7025/2011 dated 09.11.2015 - 11 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 of the car in the accident is based on a correct appreciation of the evidence on record. The appeal is devoid of merit and is accordingly dismissed.

5. He had also relied on another judgment of the Coordinate Bench of this Court in case of Bajaj Allianz General Insurance Co. Ltd. Vs. B.C. Kumar2 where the Court had observed as follows:

24. UNFORTUNATELY, the Tribunal did not carefully appreciate the evidence from every angle and had put much emphasis on the submission of the claimant that the driver had pleaded guilty. At the cost of repetition, it has to be mentioned that, to show that the driver of the vehicle pleaded guilty, no document is marked in evidence. Even otherwise, for the reasons already stated, mere pleading guilty before the criminal Court itself will not be sufficient to accept the case of a claimant before the MACT when the evidence before the claims Tribunal tells a different story and gives rise to doubt the very case of the claimant.

25. IN view of the foregoing reasons, the award passed by the Tribunal cannot be sustained as, in my view, the claimant has failed to establish that the accident occurred on the day, time and 2 LAWS (KAR) 2009 (6) 40 - 12 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 place as alleged by him in his claim petition. In other words, a false claim petition was filed in order to make unlawful gain and to make the Insurance Company a victim of such an act on the part of the claimant. Therefore, in order to prevent serious miscarriage of justice, it is necessary to observe before closing this judgment that a copy of this order shall be sent to all the MACTs in the State for guidance.

6. He had also relied on the judgment of the Coordinate Bench of this Court in the case of Manju Vs. R.R. Ravi and others 3where the Court had observed as follows:

18. The learned counsel for the Insurance Company has relied upon a decision of the Hon’ble Apex Court reported in AIR 2000 SC 1165 [ United India Insurance Co. Ltd. Vs. Rajendra Singh and Others] and contended that though no specific plea was taken in the written statement, if any is obtained by playing fraud, every Court/Tribunal has power to recall such orders. In view of the said decision, in case, if an order is obtained by practicing fraud, every Court/Tribunal has power to recall such order and subsequently, if it is discovered that an order is obtained by a fraudulent act, the remedy to move 21 Tribunal for recall of award 3 MFA.No.3651/2010 C/w MFA.No.8416/2010, Dated 16.09.2020 - 13 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 ought not to be foreclosed. The learned counsel further submits that, in the case on hand, though no specific defence was taken in the written statement, but, the documents placed by the claimant itself show that a fraudulent claim was made narrating different story in the complaint and in the claim petition wherein the document ie., Ex.P5–Case sheet indicate that two vehicles are involved in the accident and subsequently, as an after thought, after lapse of 28 days, a complaint was lodged through the wife of the claimant on a reason, ‘since the claimant was under treatment, there was a delay in lodging the complaint’.

19. Having considered the materials, particularly EX.P5 and Ex.R5, as I have already pointed out, there is discrepancy in the averments and in order to substantiate the claim, while adducing evidence before the Tribunal, the claimant has not produced proper documents to substantiate his claim and respondent-Insurance Company pointed out that the claimant has played fraud with the Tribunal and 22 obtained the impugned judgment and award. It is a settled law that the fraud and justice shall not dwell together and when it comes to the notice of the court that fraud has been played, such a practice should be handled with an iron hand. In this case, it is clear that a false complaint has been lodged after thought, after 28 days by - 14 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 implicating some other vehicle to the case and with a fraud a claim was made and obtained an award.

7. Relying on these judgments, it is submitted that it's a clear case of fraud and they cannot be permitted to go away with that and the Tribunal had failed to examine all these relevant issues.

8. Learned counsel appearing for the claimant submits that when the evidence available on record shows that the accident had taken place and the post mortem report also shows, that he has died in a road traffic accident. Basing on her evidence wherein she had denied though in the first line, it is stated that the husband had died 8 months back on account of ill health and in the further evidence she had denied the ill health and heart attack and other things, the Tribunal cannot take that aspect into consideration. He submits that the FIR, spot mahajar, charge sheet, complaint, postmortem report, medical records as well as the police records clearly shows that an accident had taken place, when the accident had taken place on 07.01.2008 at 5.00 a.m., the report was lodged at 11.30 p.m., and the post mortem was at 3:30 p.m. on the same day, - 15 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 and all these documents clearly shows the involvement of the vehicle. He submits that when the insurance company is denying so many of the documents, they have not chosen to examine any one in support of their case. Hence, it's not open to them to raise all these grounds before this Court. Then coming to the compensation, is submitted that the compensation awarded by the Tribunal is not a reasonable compensation and that needs to be enhanced.

9. Having heard the learned counsels on either side, perused the material on record. According to the claimant, the accident had taken place on 07.01.2008 at 5.00 am., while the deceased came out of the house and went by the side of the road to attend the nature call at that time Tipper lorry being driven by the driver with a high speed in a rash and negligent manner, came from Kondli road side and dashed against the deceased, he died on the spot. On the same day, the complaint was lodged. In the complaint, the registration number of the vehicle was also mentioned. On the same day, the post mortem was done. Postmortem also says about the road traffic accident. It is the case of the insurance company that there are certain interpolations/corrections in the post mortem report. If - 16 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 that is the case of the insurance company, they ought to have examined the concerned before the Tribunal. As rightly observed by the Tribunal, on several aspects without there being any pleading and evidence, the Tribunal cannot consider the case of the insurance company. In an appeal before this Court, the Insurance Company cannot put forth its argument with regard to Ex.R.2 and 3 that it is the original spot mahazar and the latest spot mahazar is the fabricated document. In that case, to come to any conclusion, the Court needs evidence which the insurance company had failed to adduce. In view of the same, the contention of the learned counsel for the insurance company on the spot mahazar and the post mortem report, this Court is not inclined to consider the said grounds. The claimant had filed a petition under Section 166 of the Motor Vehicles Act, 1989 seeking compensation. In support of his case, he had filed the police documents and the medical documents to show that the accident had taken place because of the rash and negligent driving of the driver of the offending vehicle. When the insurance company is denying several documents and also alleges fraud and the documents are concocted documents, it is for the insurance company to - 17 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 adduce evidence. The rebuttal evidence has to be on the insurance company where the initial burden lies on the claimant which has been discharged by producing all the documents. The judgments that are relied on by the learned counsel appearing for the insurance company do not apply to the facts and circumstances of this case and in this case there are several lapses on the part of the insurance company in examining the concerned and placing the evidence on record. In the absence of the rebuttal evidence from the insurance company this Court cannot go into all these aspects in this appeal. As rightly observed by the Tribunal in a MVC, the burden of proof is preponderance of probability but not beyond reasonable doubt. On the touch stone of preponderance of probability, the claimants have successfully proved that the accident had occurred and the vehicle was involved basing on Exs.P.1 to P16. Hence, this Court is of the view that the Tribunal had rightly considered and rightly held that the accident had taken place and as the vehicle is insured with the insurance company, the insurance company is liable to pay the compensation.

10. Now coming to the aspect of enhancement of compensation, the accident had taken place in the year 2008. - 18 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 According to the claimant, he is earning Rs.30,000/- per month and Rs.2,00,000/- per annum as agricultural income. He has not placed any evidence before the Court. Considering that the accident had taken place in the year 2008, this Court is taking the notional income at Rs.4,500/- per month. The age of the deceased is 38 years. Future prospects at 40% would come to Rs.1,800/-. As there are four claimants, 1/4th has to be deducted towards his personal expenses i.e., Rs.1,575/-. Then, his contribution to the family would be Rs.4,725X12 and the relevant multiplier is 15. Towards loss of dependency this Court granting amount Rs.8,50,500/-, (Rs.4,725x12x15) as there are 4 dependents, towards consortium this Court is granting amount of (44,000X4)=Rs.1,76,000/-, towards funeral expenses this Court is granting an amount of Rs.36,000/-.

11. In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER4, the claimant is entitled for an amount of Rs.10,000/- towards Legal Expenses. 4 (2014) 11 SCC 178 - 19 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015

12. The claimants are therefore, entitled to the compensation under the following heads: Sl. No. Heads of Compensation Compensation Compensation Awarded by Awarded by Tribunal this Court

1. Loss of estate or loss of Rs.2,80,500/- Rs.8,50,500/- dependency

2. Transportation Rs.11,000/- - obsequies

3. Loss Rs.50,000/- Rs.1,76,000/- affection

4. Funeral Expenses

5. Legal Expenses Total Enhanced compensation - - Rs.36,000/- Rs.10,000/- Rs.3,41,500/- Rs.10,72,500/- Rs.7,31,000/-

13. Altogether, the claimants in MVC.No.996/2009 are entitled for compensation of an amount of Rs.10,72,500/-. Accordingly, the appeal filed by the insurance company is dismissed and the cross objections filed by the claimant is allowed-in-part by enhancing the compensation from an amount of Rs.3,41,500/- to Rs.10,72,500/-. The compensation amount shall be paid by the Insurance Company. - 20 - NC: 2025:KHC:12164 MFA No. 837 of 2015 C/W MFA.CROB No. 73 of 2015 i. The amount in deposit shall be forthwith transmitted to the Trial Court. ii. The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization. iii. The insurance company shall deposit amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security. iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay. v. No costs. vi. Pending miscellaneous petitions, if any, shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE BN, List No.: 1 Sl No.: 18