N. Kumar, J.
1. This is claimant's appeal against the order of dismissal of the claim petition by the Tribunal.
2. For the purpose of convenience, parties are referred to as they are referred to in the original proceedings.
3. Claimants are the parents of one Ravindra @ Ravi who was working as Assistant Engineer in APMC, Sub-division Bijapurand earning Rs. 9,000/- P.M. On 26.6.2001, when he was riding his Hero Honda motor cycle bearing No. KA-29/H-6217 on Bagalkot-Navanagar road at 12.10 A.M. i.e. at midnight, he met with an accident. The case of the claimants is that one mini goods lorry bearing No. KA-28/5177 came from the opposite direction being driven by its driver in a rash and negligent manner and dashed against the motor cycle. Due to the impact, said Ravindra fell on the ground and sustained multiple fractures on his head and became unconscious. Mobile police who were on duty found his body, informed his family, and shifted him to Bagalkot hospital. From there, he was moved to Shivakrupa Hospital, Hubli, for further treatment. Unfortunately, two days thereafter, i.e. on 28.6.2001 at 4.30 P.M., he died in the hospital while undergoing treatment. Appellants/claimants contended that they spent Rs. 1,00,000/- towards medical treatment and thus sought compensation for the death of their son.
4. The 1st respondent-owner of the lorry has filed statement admitting the accident and contended that his vehicle was insured with the 2nd respondent and therefore if at all any compensation is payable, it is the 2nd respondent who is liable to pay the amount.
5. The 2nd respondent Insurance Company filed detailed written statement contending that deceased Ravindra got himself injured due to skid of the motor cycle while riding in an intoxicated state. The insured vehicle was never involved in the accident. Claimants have filed false private complaint in No. 135/01 on 31.8.2001 in the Court of JMFC, Bijapur falsely involving the vehicle bearing No. KA-28/5177 in order to make unlawful gain from it. The matter was got investigated through one Shambu Alagundagi, investigator who has submitted his report, which discloses the aforesaid facts. Therefore they sought dismissal of the petition.
6. The Tribunal framed the following issues:
1) Whether the petitioners prove that Ravindra @ Ravi s/o Veerappa Kolhar died in the accident that occurred on 26.6.2001 at about 12.10 A.M. on Bagalkot-Navanagar road in Bagalkot, was due to rash and negligent driving of mini goods lorry bearing No. KA-28/5177 by its driver?
2) Whether the 2nd respondent proves that deceased Ravindra was careless, rash and negligent in driving his motor cycle and dashed the same to the truck?
3) Whether the petitioners are entitled for the compensation? If so, what is the quantum and from which respondent?
4) What order or award?
7. The 1st claimant was examined as PW1 and he examined another witness as PW2 and produced 31 documents marked as Exs.P1 to P31. The insurance company examined the investigator as RW1 and his report was marked as Ex.R1. They produced 5 documents marked as Exs.R2 to R6.
8. The Trial Court on appreciation of the aforesaid oral and documentary evidence on record, held that the claimants have failed to prove that their son, Ravindra died in an accident that occurred on 26.6.2001 at 12.10 A.M. on Bagalkot-Navanagar road due to rash and negligent driving of mini goods lorry bearing No. KA-28/5177 by its driver. The 2nd respondent has proved that the insured vehicle was not involved in the accident and therefore, the claim petition was dismissed. Aggrieved by the same, the claimants are before this Court.
9. Learned Counsel for the claimants assailing the impugned judgment and award of the Tribunal, contended that, when once the owner of the vehicle admitted the accident and the vehicle was insured, the Tribunal committed a serious error in not acting on the aforesaid admission and in dismissing the claim petition. He further submitted that the evidence of PW2 coupled with other documentary evidence on record independently established the accident in question and therefore, dismissal of the petition is erroneous. Therefore, he contended that the appellants are entitled to compensation.
10. Per contra, Learned Counsel for the insurance company supported the impugned award.
11. The insurance company had appointed an investigator to investigate the accident. He has submitted his report which is marked as Ex.R1. Along with the said report, FIR dated 26.6.2001 is marked as Ex.R2, spot mahazar conducted on 26.6.2001 as Ex.R3, charge sheet filed against the deceased as Ex.R4 and letter addressed by the police inspector to the public prosecutor as Ex.R5. These documents clearly establish that on 26.6.2001, the traffic police at Bagalkot had lodged a complaint to traffic division Bagalkot. The said complaint discloses that he (police inspector) was on night patrol on 26.6.2001 from 10.00 P.M. at Bagalkot along with driver and Reserve constable. He received a wireless message from CPI, Bagalkot, that one person had fallen down from the motor cycle on Navanagar road and requested him to take action. Accordingly, he reached the place and found the victim with bleeding injuries on the nose and knees; there was a motor cycle bearing No. KA-29/H-6217. He found a diary which had the name of Ravi Kolhar. The injured was shifted to the hospital. There was a telephone number mentioned in the diary and on being informed, one Mallappa identified the injured as Ravindra, s/o Veerappa Kolhar. Thereafter he was shifted to Shivakrupa Hospital, Hubli where he died on 28.6.2001 while undergoing treatment. Bagalkot police filed charge sheet against the deceased for the offences punishable under Sections 279 and 304(A), I.P.C. The police recorded the statement of the father of the deceased in the investigation. He did not whisper anything about his son having met with any accident and the insured vehicle having dashed against the Hero Honda driven by his son. As the victim died, the case was closed.
12. The specific case now pleaded is that on 28.8.2001 they went to the police station to lodge a complaint, but police refused to receive it. Therefore, on 31.8.2001, a private complaint was filed before the jurisdictional magistrate. The case sought to be made out was on 26.6.2001 at 10.30 P.M. their son was riding motor cycle and a mini goods lorry bearing No. KA-28/5177 came from the opposite direction and dashed against the motor cycle, on account of which Ravindra fell and sustained grievous injuries; he was shifted to Bagalkot Govt. hospital and later to Shivakrupa Hospital at Hubli where he died two days after the accident. Admittedly, PW1 is not a witness to the incident; he came to know about it through PW2 two days after the incident. PW2 is also not an eyewitness. No doubt on the direction issued by the jurisdictional Magistrate, a case was registered and charge sheet filed after conducting spot mahazar. Those documents are produced to support the case of the claimant.
13. It is interesting to note that in the entire proceedings there is no mention about the earlier complaint, and the charge sheet filed by the very police. It is under these circumstances the Tribunal, on a careful appreciation of the entire documentary evidence on record, held that the case now made out by the complainant is not supported by any acceptable evidence. Even though the owner of the vehicle in unmistakable terms, has admitted the incident, that admission has no value in the eye of law. He has admitted something about which he has no knowledge and, which he has not seen. It is clear that the said admission is made with the sole object of getting compensation to the claimants as it is the insurance company which will pay, and not the owner. Though admission is the best piece of evidence, it cannot be accepted as gospel truth. The Court can insist on proof of facts, if the admission is not satisfactory. In the instant case, since the Court was not satisfied, it wanted the claimants to prove their case independently. The claimants have miserably failed to prove their case. The accident took place on 26-6-2001. The injured died on 28-6-2001. No complaint is lodged by the father of the injured setting out the case now pleaded. According to him he went to lodge a complaint on 28-8-2001. They refused to receive it. Therefore, he lodged a private complaint before the jurisdictional Magistrate on 31-8-2001. The earlier FIR, charge sheet are all suppressed both by the Police and the claimant. The vehicle involved in the accident was never seized by the Police. The truth came out during investigation by the insurer. Under these circumstances, the Tribunal was justified in dismissing the claim petition. We do not see any good ground to interfere with the well considered order passed by the Tribunal as it is based on legal evidence.
14. Learned Counsel for the 1st respondent/owner submitted that the evidence on record clearly establishes that his vehicle was involved in the accident though he was not an eyewitness; as he has taken insurance policy covering third party risk, it is the insurance company which has to pay compensation, thus indemnifying the owner. In the light of the aforesaid discussion which is based on the material on record, we are satisfied that it is a clear case of fraud played on the Court by the claimants with the connivance of 1st respondent. Once the insured plays fraud, admits liability with the sole object of foisting liability on the insurance company, though in fact he knew that it is not true, liability of the insurance company to indemnify such insured ceases. Therefore, there is no obligation on the part of the insurance company to indemnify the insured even though he has taken the policy and the statute mandates that the insurance company has to indemnify the insured and pay compensation to third party. When fraud is established from the material on record, such statutory obligation stands discharged.
15. Fraus et jus munquam cohabitant, Fraud and justice never dwell together, is a pristine maxim which has never lost its temper over all these centuries. Fraud avoids all judicial acts, ecclesiastical or temporal. Ajudgment or decree obtained by playing fraud on the Courts is a nullity and non est in the eyes of law. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
16. Sub-section (2) of Section 149 provides the grounds on which the insurance company can avoid the liability to pay the compensation under the Act. One such ground is, if a policy is obtained by a representation of fact which was false in some material particular. Section 172 confers on the Claims Tribunal a power to award compensatory costs, if it is satisfied that the policy of insurance is void on the ground that it was obtained by representation of fact which was false in any material particular or any party or insured has put forward a false or vexatious claim or defence. Sub-section (3) of Section 172 also speaks of criminal liability in respect of such misrepresentation. However, it restricts the compensatory costs to be awarded to only Rs. 1,000/-. Therefore, the Act provides for taking action against a party who sets up a false or vexatious defence. However, the cost of Rs. 1,000/- prescribed under the aforesaid provision, has failed to act as a sufficient deterrent to the parties setting up false claim or defence. The experience has shown that this branch of law is slowly getting into the hands of unscrupulous people who are making a mockery of judicial process. A disturbing trend of unholy alliance among the police, the doctors, the lawyers and some times even the Insurance Company, to siphon out the public money, and make an unlawful gain is fast emerging. It is also gaining respectability and persons who indulge in such practices are acclaimed as most success till in their respective profession. This is a dangerous trend, if unchecked would undermine the judicial process. As the existing law is inadequate to check this malady, the Courts not only have to be careful in adjudicating such claims but also find ways to prevent such abuse. They have to balance the interest of these accident victims and their legal heirs on one side, by giving them just compensation at the earliest, thus giving effect to the mandate of the parliament, and on the other hand, to see that the very process is not abused and exploited by a handful of persons, who have attained specialization in this field, to make personal gains at the cost of the exchequer. An onerous responsibility lies on the Courts. Therefore, it is imperative that a strong message is to be sent to the abusers of the judicial process to discourage them from indulging in such practices as well as the consequences of such abuse may result in foisting the liability exclusively on the insured-owner of the vehicle.
17. In the instant case there is an attempt on the part of the 1st respondent/owner to collude with the claimants with the fond hope of saddling the insurance company to pay compensation. Though we feel sorry for the deceased and claimants, our sympathy should not offend the law. When the owner of the vehicle admitted the accident and had no objection for award of compensation, in order to see that in future such admissions are not made, it is proper for us to direct the 1st respondent who has made a categorical admission that his vehicle was involved in the accident, to pay compensation. It serves dual purpose. The claimants if they intend to recover compensation from the owner of the vehicle, this award would enable them to do so. It would also act as a sufficient deterrent to such owners who are planted in the case to foist liability on the Insurance Company, if they are made to pay from their pockets. Therefore, we proceed to assess the compensation payable by the insured only.
18. The deceased was aged 28 years and was working as an Assistant Engineer drawing Rs. 9,000/- salary per month. Claimants being parents aged between 45 and 52 years, the applicable multiplier would be 13. As the deceased was a bachelor, deducting 50% of his earning towards personal expenses, loss of dependency per month would come to Rs. 4,500/-. Hence, Rs. 4,500/- x 12 x 13 would be Rs. 7,30,000/-. The claimants are said to have spent Rs. 1,00,000/-towards medical expenses for which they have produced records. Money spent in shifting the injured from Bagalkot to Hubli has to be considered and we award Rs. 5,000/- under that head. We also award Rs. 10,000/- towards loss to estate, Rs. 10,000/- towards loss of love and affection and Rs. 5,000/- towards funeral expenses, in all Rs. 8,50,000/-.
19. It is once again made clear that notwithstanding the vehicle of the 1st respondent was insured with the 2nd respondent, the insurance company is not liable to indemnify the insured as we have recorded a finding that it was not involved in the accident. Therefore, there is no third party liability on the part of the insurance company to pay compensation to the claimants. This amount is awarded in order to see that in future such false defences are not filed before Court, judicial process is not abused. Therefore, it is only the 1st respondent/owner who is liable to pay the aforesaid amount. Ordered accordingly. Hence, we pass the following order.
ORDER
(a) The 1st respondent, the owner of the Mini Goods Lorry, is directed to pay Rs. 8,50,000/- (Eight Lakhs Fifty Thousand) with interest at 6% per annum from the date of the petition, till the date of payment.
(b) The order of the MACT dismissing the claim petition against the Insurance Company--the second respondent, is affirmed by holding the Insurance Company not liable to indemnify the owner of the vehicle who has played fraud and not liable to pay any compensation to the claimants who are also party to the fraud.