JUDGMENT
Jawad Rahim, J.
1. MFA10166/05 is an appeal by the Insurer and MFA 11578/05 is by the claimant challenging the Judgment and Award of Addl. MACT, Tumkur in MVC 974/2000 dated 7.10.2005. While the Insurer seeks to negate the liability fastened upon it to discharge the award, the claimants have sought for enhancement being not satisfied with the grant.
2. These appeals had come up for admission and at the request of both sides it has been taken up for disposal on merits.
3. We shall, during the course of Judgment refer to the parties according to the rankings in the Trial Court for the sake of brevity and better appreciation of the grounds urged by them. In that, the appellant in MFA 11578/05 shall be referred to as claimants and the appellant in MFA 10166/05 shall be referred to as appellant insurer.
4. Perusal of the impugned Judgment and Award as also the grounds of the appeal indicate that, young boy named Chetan Kumar who was at the verge of completion of law degree studying in Tumkur and the only surviving son of the claimants namely Leelavathi and Sadashivaiah suffered injuries in road traffic accident while riding Yamaha Motor Cycle KA-06.6659 within the territorial limits of Belenahalli Village in Tumkur District. The motor cycle was hit by Lorry bearing No. KA.06.8818 driven in a rash and negligent manner by its driver namely Yogesh. The accident said to have occurred on 12.9.1999 at about 12.30 a.m.
5. Chethan Kumar who suffered head injury was immediately shifted to the local hospital for first aid and subsequently he was shifted to Bhagwan Mahaveer Jain Hospital, Bangalore. The injuries caused to his person, as noticed by the Medical Officer, showed his condition was serious. He was subjected to surgeries and other procedures, but remained in the state of coma for nearly three years and 10 months. From the date of accident he neither gained consciousness nor was in a position to be revived. During this period he was shifted to several major specialty hospitals periodically as he had developed several complications. He succumbed to injuries on 2.7.2003 nearly after three years and ten months.
6. As the injured was in the state of comma, his mother filed claim petition claiming compensation of Rs.25 lakhs towards medical expenses but after his demise they were substituted as legal representatives. The claim was lodged against the Driver-Yogesh and the Owner of the lorry KA 06 8818- Chandramouli, as also the insurer of the offending lorry namely National Insurance Company Limited., Tumkur, seeking compensation.
7. The claim was resisted by the respondent-insured owner as also Insurer. Yogesh, the driver of the lorry did not contest.
8. The insurer has vehemently refuted the charge that the vehicle insured by it was involved in the accident. However, the owner admitted involment of his vehicle in the road accident and in this regard his admission was taken on record. It so transpired that the Tribunal having received the evidence tendered by the claimants and also respondents passed award on 2.8.2004 which was assailed before this Court in appeal MFA No. 8214/04. This Court allowed the appeal in part. As the claimants had also challenged the award, it was set aside, the claim petition was remanded to the Tribunal for further consideration after giving opportunity to both the sides to lead evidence in support of their claim. The insurer was permitted to obtain prior permission to contest the claim as required under Section 170 of the Act. The Tribunal during fresh inquiry, received evidence as offered by the parties and passed award on 7.10.2005 granting to the claimants in all compensation of Rs.27,58,499/- with interest at 8% per annum that judgment and award is impugned in these appeals.
8. We have heard Learned Counsel Sri A.N. Krishna Swamy for the Insurer-Appellant and Learned Senior Counsel Sri S.P. Shankar, for claimants, in supplementation to the material on record.
9. In support of the appeal filed by the Insurer, the Learned Counsel Sri A.N. Krishna Swamy, urged several grounds, firstly, questioning maintainability of claim petition by the parents of the deceased and secondly, seeking to negate their claim attributing fraud and mischief. Following is the core of his contention:
1. M.V.C. 974/2000 was the claim petition filed in personem by Chetan Kumar (since deceased). He died during the pendency of the said claim petition and thus the claim for grant of compensation for personal injury sustained by him could not have been prosecuted by his parents. The petition, therefore, was not maintainable;
2. That the vehicle lorry bearing registration No. KA-06 8818 was not involved in the accident in question. The claimants in collusion with insured-owner falsely implicated the driver of the lorry bearing registration No. KA-06 8818 and the vehicle for unjust enrichment to the determent of the insurer. They played fraud and thus entire proceedings are vitiated.
3. There was a collusion between the owner of vehicle Mr. Chandramouli and the claimants. The compensation awarded by the Tribunal in a sum of Rs. 27,58,499/- was without basis. In this regard he contends that:
a) The Tribunal has seriously erred in awarding to the claimants Rs. 1,10,200/- alleged to have been paid to Red Cross Society towards the salary of the nurses when the evidence on record reveals that the said Society had claimed only Rs. 60,000/-.
b) The claimants claim of Rs. 1,75,000/- paid towards professional charges to Dr. Karthik was not established with the acceptable evidence and the certificates produced in this regard were fabricated. Therefore, the Tribunal should have disallowed the said expenditure in view of conflicting evidence
c) The medical bills produced by the claimants in a sum of Rs. 1,62,189/- were duplication of the bills and clearly establishes that the claimants had inflated the expenditure without basis and thus the Tribunal ought to have disallowed the same.
d) The Tribunal has erred in awarding of sum of Rs.75,000/and Rs. 25,000/- towards payment of rental charges for stay of the claimants in Tumkur and Bangalore respectively without proof and the same was therefore to be disallowed.
e) The Tribunal has erroneously awarded Rs. 16,38,310/towards medical expenditure which amounts was neither claimed by the claimants nor established by any evidence. Thus the same needs to be disallowed.
10. Per contra, Sri S.P. Shankar, Learned Senior Counsel for claimants, while resisting all grounds so urged by Sri A.N. Krishna Swamy, has elaborately dealt with each of the grounds raised in the appeal by the insurer and very persuasively has drawn our attention to certain very material, relevant facts and circumstances as also settled principles of law on the point. He has at thresh-hold raised question regarding maintainability of the appeal filed by the insurer in the absence of appeal by the insured.
11. Having so heard the persuasive arguments of both sides we raise following questions for our consideration:
1) Whether the appeal filed by the Insurer is maintainable under Section 173 of M.V. Act in the absence of an appeal by the owner-insured?
2) Whether the parents of Chetan Kumar could have pursued the claim petition filed for and on behalf of Chetan Kumar after his demise during the adjudication of the claim?
3) Whether there was collusion between the owner-insured and the claimants to falsely implicate the vehicle lorry bearing Reg. No. KA-06 8818 and to raise the false claim against the Insurer?
4) Whether the entire proceedings in the claim petition filed by the claimants is vitiated by fraud?
12. We shall now consider the question so framed in the same sequence.
Question No. 1:
Whether the appeal filed by the Insurer is maintainable under Section 173 of M.V. Act in the absence of an appeal by the owner-insured?
13. The Learned Senior Counsel, Sri S.P.Shankar at the threshold raised question of maintainability of the appeal by the insurer. He would contend that the defence available to the Insurance Company is very much limited as circumscribed in the provisions of Section 149(2) of the Motor Vehicles Act, 1988 and thus the insurer is not entitled to maintain an appeal with its limited defence. He refers to the decision of the Apex Court in the case of National Insurance Co. v. Nicoletta Rohtigi . Our attention was drawn to para 17 and para 31 of the Judgment of the Apex Court which is as hereunder:
17. Before proceeding further, it may be noticed that while “the Motor Vehicles Act, 1939” was in force, Section 110-C(2-A) was inserted therein in the year 1970 which correspondence to Section 170 of the 1988 Act. The said provision provides that in course of an inquiry of a claim if the Tribunal is satisfied that there is a collusion between the claimant and the insured or the insured fails to contest the claim, the Tribunal for reasons to be recorded in writing, may direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in Sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurance company to contest the claim, in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application is erroneously rejected the insurer can challenge only that part of the order while filing appeal on ground specified in Sub-section (2) of Section l49 of the l988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceedings and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.
14. This contention of Learned Senior Counsel, Sri S.P. Shankar is opposed by the learned Counsel, Sri A.N. Krishnaswamy. He would refer to the remand order passed by this Court in MFA 8214/04 dated 2-8-2004 to contend that this Court had permitted the Insurance Company to resist the claim. The Insurance Company availed the benefit of the order of remand and moved application under provision of Section 170 of the Motor Vehicles Act seeking permission of the Tribunal to contest the case claimed on all grounds in view of the alleged collusion between the owner and the claimant. The Insurance Company had specifically highlighted the unholy nexus between the claimants and the insured-owner which aspect was taken into consideration by the Tribunal and the Tribunal has allowed the application. Therefore, the Insurance Company was entitled to contest the case on all grounds that were available to the owner-insured and hence, the grounds to oppose the claim stood enlarged and were not affected by the mischief of Section 149(2) of the Act. Consequently when the award has been passed after such permission was granted to the Insurance Company, the Insurance Company is entitled to maintain appeal against the impugned judgment and award.
15. We have given due credence to the grounds urged by both sides. We have perused the records of the Tribunal. We regrettably note that though the Insurance Company is right in submitting that it had moved an application under Section 170 of the Motor Vehicles Act seeking permission to contest the case on all grounds, we find no order has been passed by the Tribunal disposing of the said application in a manner required by law. The law is well settled that when the Insurance Company seeks permission to contest the case on all grounds, the Tribunal is required to consider such grounds on its merit. If the ground urged in the application is that there is collusion between the owner and the claimant, the Insurance Company must sustantiate it. Likewise, if it is a ground that the insured has failed to contest the case, the Tribunal must examine such contention with reference to the conduct of the insured. In either case the burden is upon the Insurance Company to substantiate existence of circumstances enumerated in Clause (a) and (b) of Section 170 of the Motor Vehicle Act. If such grounds are urged and substantiated, the Tribunal has to consider it on its merits and pass a considered order justifying the grant of permission to the Insurance Company to enlarge the defence available to it under Section 149(2) of the Act and contest the case on all grounds. In the instant case, it is not disputed that the Tribunal has not passed any considered order, much less any order disposing of the application. While emphasizing that when the Insurance Company seeks permission invoking Section 170 of the Motor Vehicle Act, it is incumbent upon the Insurance Company to establish existence of the circumstances for grant of such permission, it is equally necessary as a statutorily required that the Tribunal must pass a considered order, in the absence of which, if the application is disposed of mechanically with cryptic orders, it will be no order in law as observed by the Apex Court in Shankaraiah’s Case, reported in 1988 ACT 513 (SC) which reads thus:
It clearly shows that the insurance company when impleaded as a party by the Court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for the purpose the insurance company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent No. 1, insurance company in the claim petition but that was cone with a view to thrust the statutory liability on the insurance company on account of the contract of the insurance. That was not an order of the Court itself permitting the insurance company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent 1, insurance company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal.
16. We therefore, accept the contention of the Learned Senior Counsel, Sri S.P. Shankar that in the absence of any considered order to dispose of the application of the Insurance Company, the Insurance Company could not have maintained this appeal. On this ground, the appeal of the Insurance Company could have been disposed off.
17. However, as the insurer-appellant has alleged fraudulent conduct to the claimants in obtaining the award, applying the ratio of the decision of the Apex Court in the case of United India Insurance Co. Limited v. Rajendra Singh and Ors. and State of Andhra Pradesh and Anr. v. T. Suryachandra Rao , we feel that it would be appropriate to examine this ground of challenge, even though we are firm in our mind that the appeal filed by the insurer with its limited defence is not maintainable. Hence, it will be proper to dispose of these appeals on merit rather than rejecting it on the question of maintainability.
Question No. 2:
Whether the parents of Chetan Kumar could have pursued the claim petition filed for and on behalf of Chetan Kumar after his demise during the adjudication of the claim?
18. Sri A.N. Krishna Swamy, Learned Counsel for Insurer-appellant would contend that the claim petition was initially filed by Sri H.C. Chetan Kumar. He died before it was disposed of and thus, his parents, viz., Smt. Leelavathi @ Leelamma and K. Sadashivaiah, could not have maintained petition in view of Full Bench decision of this Court in the case of Kannamma v. Deputy General Manager and the decision in the case of Uttam Kumar v. Madhav and Anr . Our attention was drawn to the provisions of Section 306 of the Indian Succession Act, 1925 (Central Act No. 39 of 1925). Placing reliance on both these decisions, the learned Counsel assertively canvassed that the claimants could not have continued to prosecute the claim petition filed by the injured H.C. Chetan Kumar after his demise and the same had to be rejected as not maintainable, but the Tribunal erred in adjudicating such a petition and awarding compensation.
19. Sri S.P. Shankar, Learned Senior Counsel resisted the said contention pointing out that after sufferance of injuries in the road traffic accident on 13-9-1999, H.C. Chetan Kumar slipped into coma and remained in that painful condition till his demise on 2-7-2003. During this period the claim petition was presented by him through his guardian but as he died during its pendency the parents continued to prosecute the petition seeking compensation as surviving heirs of the victim of the fatal accident. Such an action was legally permissible, as medical evidence has established the death of H.C. Chetan Kumar was result of sufferance of injuries in the road traffic accident and not due to any other cause. Therefore, on facts, the decisions referred to by the Learned Counsel for insurer does not apply. The parents became claimants and they sought for compensation for pecuniary loss incurred towards treatment of the deceased but also towards loss of dependency.
20. The claimants had only two sons, one had died earlier to H.C. Chetan Kumar, H.C. Chetan Kumar too was killed in an unfortunate road traffic accident, the claimants did their best to reconcile with the situation but could not bare the loss. The plea of the insurer that the claim petition cannot be entertained by reason of Section 306 of the Indian Succession Act, needs to be rejected as the said provision is part of the statute of pre-constitutional law. It clashes with and is violative of directive principles contained under Article 38 part IV of the Constitution, which is inducted to render justice to all.
21. He referred to the decision of the Apex Court in the case of Ram Narain v. The State of Uttar Pradesh , wherein the Apex Court held that one enactment cannot be read into and another, unless that enactment permits application of some other laws.
22. He also referred to the decision of the Apex Court in the case of National Insurance Co. Limited v. Mastan and Anr. , by which decision the Apex Court has over ruled the decision of the Full bench of this Court in the case of Smt. Kavitha Dilip Patil and Ors. v. Ananda Ghanu Patil and Anr. 2004 AIR Kant H.C.R. 2287.
23. He also relied on Section 155 of the M.V. Act, to show that the said provision was incorporated in the re-amended M.V. Act, 1988. He points out that in the instant case there is no question of administration of the estate of the deceased or recovery of debts of the deceased. Therefore, provisions of Section 306 of Indian Succession Act, were not attracted.
24. To appreciate the grounds urged by both sides, we would first refer to the observation of the Full Bench decision of this Court in the case of Kannamma v. Deputy General Manager (Supra). The Full Bench of this Court, while considering the following question referred to it for decision:
Whether in a claim petition presented under Section 110A of the M.V. Act, 1939, claiming compensation for personal injury resulting from a motor accident, as also compensation towards expenses incurred and towards loss of income, etc., if the claimant dies during the pendency of the petition, his legal representatives can come on record and continue the proceedings?
answered the same thus:
In the result, the Full Bench answers the question referred for its decision by the Division Bench thus:
(I) A claim petition presented under Section 110A of the Motor Vehicle Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc. (loss of estate) cannot, on such person’s death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but
(II) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) can, on such person’s death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident.
25. It is thus clear that claimants could be non-suited only if the seek to pursue the claim petition filed by the injured upon his death before final adjudication, if death has occasioned due to causes unrelated to the injuries suffered by him in motor vehicle accident, which may be natural or by other incidents. If it is established that the death of injured is result of injuries suffered by him in the road traffic accident in question, the right to sue would accrue to the dependants to maintain petition seeking grant of compensation regarding loss of dependency, reimbursement of expenditure incurred by them in treatment, loss to estate and also under conventional heads. Keeping in mind the dictum of the decision and the law settled on the point we shall now advert to the facts in this case.
26. It is evident from the ocular and documentary evidence on record that in the road traffic accident in the wee hours on 13-9-1995 H.C. Chetan Kumar, while driving his motor cycle bearing Registration No. KA-06-659 was hit by the offending vehicle creating impact of such intensity that it injured the head and other parts of the body of H.C. Chetan Kumar. Immediately, he was rushed to local hospital at Turnkur and then settled to Mahaveer Jain Hospital at Bangalore for treatment. The medical evidence through PW4, PW5 and PW6, leaves no element of doubt that injuries suffered by H.C. Chetan Kumar had devastating effect on his brain paralyzing cerebral mortars rendering him invalid and he slipped into coma, in which condition he remained for a period of 3 year 10 months and breathed his last on 2-7-2003 leaving behind his mortal remains to be watched helplessly by his parents-claimants.
27. We have examined the medical evidence with all seriousness and appreciated the same in the perspective it deserves. We are satisfied the medical evidence, establishes that the death of H.C. Chetan Kumar on 2-7-2003 was result of injuries suffered by him in the road traffic accident occurred on 13-9-1999. Nexus between the accident, the sufferance of injuries and his ultimate death is well established. Proved facts, therefore, compel us to record that the conclusion arrived at by the Tribunal that H.C.Chetan Kumar’s death is result of sufferance of injuries in the road traffic accident in question, requires to be confirmed.
28. In the resultant position even by applying the dictum of decisions referred, we are satisfied that the maxim ‘Actio personalis moritur cum persona-Personal action dies with the parties to the cause of action’, is not applicable to the facts of this case. Petition is maintainable and the death of H.C. Chetan Kumar created cause of action for the claimants to seek compensation as provided for under the provisions of Section 166 of the M.V. Act. We, therefore, discount all the contentions of insurance company regarding right of the claimants to maintain petition and give quietus to the finding of the Tribunal on this question.
Questions No. 3 and 4:
3. Whether there was collusion between the owner-insured and the claimants to falsely implicate the vehicle lorry bearing Reg. No. KA-06 8818 and to raise the false claim against the Insurer?
4. Whether the entire proceedings in the claim petition filed by the claimants is vitiated by fraud?
29. The third question posed in this appeal to uproot the finding of the Tribunal regarding the act of negligence is the alleged fraud attributed to the claimants and the attribution of collusion between the claimants and the owner insured of the offending vehicle bearing registration No. KA-06-8818.
30. To consider whether the insurance company had established these contentions it will be gainful to refer to the statement of defence filed by them. The first statement of defence was filed by the insurance company on 13-7-2005, in which there is no averment of alleged collusion between the owner-insured of the vehicle and the claimants. The only ground urged to absolve its liability is that the owner-insured had violated the terms and conditions of the insurance policy by allowing the person to drive a vehicle without licence and also that the owner had failed to produce the permit, driving licence, fitness certificate and registration certificate of the offending vehicle. No where they had alleged the collusion between the owner-insured and the claimants.
31. Additional written statement was filed by the Insurance Company on 13-7-2005 after remand of the case, in which for the first time it has alleged collusion. Reference could be made to para-5 of the Additional Statement of defence, in which also the contention of the insurer is that H.C. Chetan Kumar was driving motor cycle without vehicular traffic sense and was on intoxicant and invited the ‘tragedy’ for which he alone to be blamed. There was no negligence in the driving of the offending lorry. Incidentally, it has mentioned that the complainant has not mentioned the registration number of the offending vehicle but on belated stage, the Police Officers seized the goods vehicle bearing registration No. KA-06-8818. They admitted that the driver of the lorry who was arraigned as accused, pleaded guilty before the jurisdictional criminal Court and he was convicted. In this regard they contend that the charge sheet was filed after 51/2 of the accident indicating collusion between claimants and the owner-insured to allow claimants to make unlawful gain. In other words, they contend that the lorry in question was not involved in accident and that the deceased was intoxicated State.
32. As against such contention of the insurer the owner-insured had also filed his written statement on 17-8-2002, denying petition averments. He has specifically denied the alleged negligence, in the driving of his employee-driver. The owner-insured had, in clear terms averred in para-1, that the petitioners have made false statement about alleged negligence in the driving of the driver of the lorry. He has contributed negligence in the driving of the motor cycle by the deceased. Rest of the averments in the petition have also been denied but not specifically traversed. Likewise, even in the last but one paragraph of the statement of objections the owner-insured has taken the plea that accident was not result of negligence of the driving of the lorry but it was due to negligence of the deceased. Alternatively, he concluded that even if on evidence it is shown that his driver was negligent, the award, if any, has to discharged by insurer who had insured the vehicle. Considering the defence put forward by the owner-insured, it cannot be said that he had colluded with the claimant. No where we find statement from the owner-insured admitting the negligence on the part of his employee-driver or supporting the claim of the claimants. He has examined in this case as PW 1.
33. He has placed reliance on the decision of the Apex Court in the case of State of Andhra Pradesh and Anr. v. T. Suryachandrarao (Supra). The Apex Court observed thus:
‘Fraud’ as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which includes the other person or authority to take a definite determinative stand; as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation, may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded, may not have been bad. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void anticipatory bail initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
34. As the allegations made are serious in nature-alleging fraud and deceit, it is necessary to examine whether the insurance company has established the same. Necessarily the case has to be examined on its merits.
35. In view of the contentions of insurer that the goods vehicle bearing Registration No. KA-06-8818 was not involved in the accident and that it was falsely implicated due collusion between the insured-owner and the claimants, we have examined the evidence on record. It is claimant’s case that the deceased was riding the motor cycle along with his friend M. Shivakumar, who examined as PW2. He has deposed that on 22-9-1999, he along with H.C. Chetan Kumar were riding Yamaha motor cycle on NH-4 and both reached the spot near Seebi Forest area, Sira Taluk, Tumkur District at about 12-30 a.m. A tipper lorry in question driven rashly tried to overtake the motor cycle and hit against them unbalancing, resulting in their fall. H.C. Chetan Kumar suffered injuries to the head, eyes, legs, his petala bone of right leg was fractured and immediately he was shifted to Sridevi Hospital, Tumkur. He has also stated that they were going to meet some friends to discuss about Vidyodaya Law College Student Union elections and at that time the accident occurred. From Sridevi Hospital, Tumkur, the injured was shifted to Mahaveer Jain Hospital at Bangalore.
36. The cross-examination of PW2-M. Shivakumar, the eye witness to the accident, also reveals that insurance company did not even suggest to him that the lorry in question was not involved in the accident. All that they have suggested is that Chetan Kumar was driving at high speed without following the traffic rules and there was no headlight to the motorcycle. In fact, a categorical suggestion was put to him that the driver of the lorry was driving the lorry very slowly and that Chetan Kumar dashed against that vehicle. Likewise, no suggestion has been put to PW1, mother of the deceased that she had colluded with the owner-insured of the vehicle and falsely implicate he lorry in question.
37. Undoubtedly, PW2-M. Shivashankar, the pillion rider and eye witness to the accident is the prime witness. The insurer-appellant has not explained as to why they failed to suggest to him that the lorry was not involved in the accident. It is also noticed that owner of the vehicle Chandramouli had examined himself as DW2 and admitted that he was the owner of tipper lorry bearing registration No. KA-06 8818 and at the time of accident it was being driven by him employee Yogesh while returning from Sira. He has further, in clear terms, stated that the driver had a valid driving licence and the accident occurred at around 1-00AM on 12-9-1999, about which the driver informed him. He and the driver shifted two injured persons to Sridevi Hospital. He was also important witness, but for unexplained reasons has not been cross examined by the insurer on its defence. Not even a suggestion is put to him that the lorry in question was not involved in the accident and that he had colluded with the claimants. All that has been suggested in cross-examination is a single question that he was deposing falsely to support the claim. As against such evidence, it is clear that the driver of the offending vehicle Yogesh, was prosecuted for rash and negligent driving a penal offence under IPC and to such charges he pleaded guilty. His plea of guilt was accepted by the jurisdictional Magistrate and consequently punished with sentence of fine. This is undisputed.
38. During his cross-examination of PW2 on behalf of the insurer all that has been suggested is that the H.C. Chetan Kumar was driving at high speed which suggestion has been denied. It was also suggested that the head lights of the motor cycle was not functioning and thus the motor cycle rider was negligent. Specific suggestion has also been put that the lorry driver was driving his vehicle very slowly and that H.C. Chetan Kumar by his rash contended in the additional written statement by the insurance company.
39. Besides, the insurance company examined its employee, R. Ramesh, Assistant Manger, as DW1. His evidence is only to the effect that “the vehicle involveo in the accident was insured with their insurance company and as per the Doctor’s report H.C. Chetan Kumar was alcoholic and riding motor cycle under influence of liquor.” He does not dispute that the lorry in question was involved in the accident. Later, the insurer has examined another witness D. Karthika, Administrative Officer, working in Legal Department. In his affidavit for the first time a statement is made that the lorry in question was not involved in the accident and that at the behest of the claimants the driver has pleaded guilty before the Magistrate.
40. There is unexplained inconsistency in the evidence tendered by the insurer-appellant through its witness Sri R. Ramesh, Assistant General Manager (DW1) and D. Karthik, Administrative Officer. While, Ramesh in his examination-in-chief itself has stated that the lorry involved in the accident was insured with the appellant insurance company and that the accident was result of negligence on the part of the deceased Chetan Kumar as he was driving the vehicle after consuming liquor, the evidence of Dr. D. Karthik, brings out a new case that the lorry in question was not involved in the accident. Besides, for unexplained reasons the insurance company after examining Ramesh in chief examination, has not tendered him for cross-examination.
41. The very fact that the driver was charged for rash and negligent driving resulting in injuries to deceased Chetan Kumar after detailed investigation by the jurisdictional Police Officers, is admittedly not questioned by the insurance company till now. Therefore, we must observe that when a collusion between the claimants and insured, is alleged to attribute fraud and deceit to the claimants, it is incumbent upon the person who alleges so to prove it by acceptable evidence. The allegation of fraud is a serious criminal charge. It needs to be established to vitiate any proceedings. Mere statement in the defence is not sufficient. It is important that the ingredients constituting fraud must be established through evidence and evidence must be cogent and clinching. Such proved facts must establish firstly, mense rea and criminality in the conduct of the person who is alleged to have involved in such act. May be a person presumes fraud has been played upon him or her, but to succeed there is no escape but to establish beyond all reasonable doubt. This is because if proved, not only the proceedings will be vitiated but the person accused of such conduct will also be liable for consequential penal actions. The evidence, we have discussed above brings to surface the involvement of lorry bearing registration No. KA-06 8818 in the accident in question and dis-spells all doubts. The defence put up by the insurance company is so feable and its conduct in not establishing the alleged collusion of fraud virtually defeats the very defence. We are, therefore, satisfied that the insurer-appellant has failed to establish the collusion between the owner of the vehicle and the claimants or that there was any fraud.
42. Regarding fourth question, Sri A.N. Krishna Swamy, Learned Counsel for insurance company would contend that even if the petition is maintainable it is vitiated by fraud. The claimants have produced in evidence certain documents purporting to be medical bills and receipts to substantiate expenditure incurred from the treatment of the deceased, which documents were concocted, fabricated and implanted to inflate the claim. Such conduct spells out fraud, deceit and an attempt to make unlawful gain. We have examined all the documents relied by the claimants to sustain their claim. Though the contention of Sri A.N. Krishna Swamy was seemingly attractive, but on closure examination we find all such contentions worth only rejection, except for the mathematical error in the calculation, the learned Member of the Tribunal has committed. We find no concoction or fabrication in the documents relied by the claimants and such accusation is uncharitable in the instant case, for the following reasons.
43. The learned Counsel Sri A.N. Krishna Swamy has questioned the award of Rs. 16,38,310/- towards reimbursement of expenditure incurred by the claimants for treatment of the deceased at Mahaveer Jain Hospital. He refers to the summary of bills produced in the case through the evidence of DW-2 and placed reliance on the letter addressed by the insurance company to the Mahaveer Jain Hospital dated 20-9-2005 and reply sent to the said letter by the Mahaveer Jain Hospital on 21 -9-2005 indicating that the hospital charges totaling to Rs. 2,12,655/- and after rebate of Rs. 3,655/- the claimants have paid only Rs. 2,09,000/-. He alleged fraudulent exaggeration of the claim relying on the estimates refer page 88 to 119 of paper book. This according to him is deceitful conduct of the claimants to inflate the bills to Rs. 16,38,310/- for unjust enrichment.
44. The Learned Senior Counsel Sri S.R Shankar, refuted all such allegations and very rightly refers to the grounds in the memorandum of appeal filed by the claimants themselves. The claimants have preferred MFA No. 11578/05 against the judgment and award in which, while seeking enhancement of compensation under other heads, they have fairly referred to mathematical error conducted by the Tribunal in awarding Rs. 16,38,310/-. The claimants have on their own restricted the claim to Rs. 2,10,200/-.
45. We are satisfied that the Tribunal while considering the documents produced by the claimants has committed an error as noticed from the discussions at Para-21 of the impugned judgment and award. Such an error is attributable to non application of mind by the Tribunal and consequent mathematical error. As the claimants themselves have restricted their claim to Rs. 2,10,000/-, the award of the Tribunal under this head at Rs. 16,38,310/- is modified to Rs. 2,10,000/- that should necessarily, satisfy the insurer appellant.
46. Secondly, the claimants have claimed Rs. 1,62,189/- incurred towards purchase of medicines, etc., Ex.P15 (bills are collectively marked) and Ex. P27 are produced in support of their claim. We have examined the bills. Though the learned Counsel Sri A.N. Krishna Swamy alleged that there is duplication of bills, we have examined all the medical bills produced and are satisfied that it reflects the fact of purchase of medicines from various medical centers and also from the druggists. The claimants have spoken to about such expenditure in evidence and have produced bills for treatment of the deceased for a long period of 3 years ten months from the date of accident till his demise.
47. We do not find any reason to disallow such expenditure and consequently, we find no need to interfere with the award so far as it relates to expenditure under this head. It is also material to note that the expenditure covered under Ex.D2 (hospital charges) is towards bed and nursing charges and excluded Doctor’s fee and expenditure towards purchase of medicine. In fact, insurers have availed full opportunity to lead evidence through PW3 in this regard. The relevant documentary evidence at Ex.P5 to Ex.P50 is available at page 149 to 299 and 355 to 406 of the paper book. Thus, award of Rs. 1,62,189/is confirmed.
48. Regarding salary paid to nurses, who were requisitioned for nursing the deceased during the period from April 2002 till his demise, is claimed at Rs. 2,10,000/-. This has been seriously disputed by the insurer contending that the claimants have falsified the claim by producing concocted salary certificates under signature of nurses. Those salary certificates are fabricated and concocted documents.
49. In this regard Learned Counsel Sri A.N. Krishna Swamy would refer to the letter written by the Mr. Mallikarjuna, Advocate, for the claimants to the Indian Red Cross Society, who had provided the paramedical cover to the deceased during the period of his treatment. He points out that nursing services were provided by the Indian Red Cross Society. The said society has issued certificate certifying the total amount paid towards salary of nurses vide Annexure-3. He further points out that the salary certificates produced by the claimants are in conflict with the bills raised by the Indian Red Cross Society.
50. We have examined the evidence on record. It is noticed that the claimants had claimed Rs. 2,10,000/- referring to salary certificate at Ex.P 16 (salary bills). Each of the salary receipt is issued by the nurses acknowledging the salary amount. It is seen Ex.D3 is issued by the Indian Red Cross Society indicating the actual, salary paid to these nurses. Ex.D3 furnishes details of nurses, who were out sourced at the request of the claimants and it also shows the period during which they worked and the monthly salary paid to them during the period April 2002 to April 2003. Total amount indicated therein is Rs. 72,000/-.
52. In this regard learned Senior Counsel Sri S.P. Shankar, would submit that the amounts mentioned by the Indian Red Cross Society vide Ex.D3 is the salary that the society has fixed to be paid to the nurses. But the claimants had incurred additional expenditure towards boarding charges, food, conveyance of nurses out sourced from Indian Red Cross Society. In acknowledgment of the amount received from the claimants, each of the said nurses has issued certificates which they have produced vide Ex. P16. He submits that it reflects true expenditure to Rs. 2,10,000/-.
53. Having examined Ex.D3 it could be said that Ex.D3 reflects only the amounts paid towards salary to the nurses. The salary certificate at Ex.P16 issued by each of those nurses has not been proved as those nurses have not been examined. Therefore, there is doubt whether really those nurses and received the amount mentioned as salaries. At the same time, we cannot ignore the fact that the claimants might have incurred expenditure towards food of the nurses, during the period they rendered service to the deceased. Thus keeping in mind possible exaggeration, we feel that the amounts covered under Ex.D3 as canvassed by the insurer could be awarded towards actual salary paid to the nurses and additional reasonable sum towards incidental expenses. In all, under this head the claimants would be entitled to Rs. 90,000/- as against Rs. 2,10,000/- as claimed by them. The award is accordingly modified under this head.
54. The insurers have also challenged the award of Rs. 1,75,000/towards the professional charges paid to Dr. Karthik. It was urged on behalf of the insurer that the certificate issued by Dr. Karthik marked as Ex.P47 was also concocted document and the claimants are not entitled to a sum of Rs. 1,75,000/-.
55. We have considered the evidence on record Dr. Karthik has been examined as PW4, who has spoken to of professional services rendered by him to the deceased. The evidence shows that Dr. Karthik had traveled from Tumkur to Bangalore to perform physiotherapy on the deceased continuously and has issued receipts for having received his fee. It also shows that while he traveled to Bangalore to treat the deceased he charged Rs. 3,000/- per month and while it is at Tumkur he charges Rs. 2,000/-. Ex.P4 are issued by him. Such testimony has been seriously impeached in the cross-examination but we find nothing has been elicited to disbelieve his statement on oath that he had treated the deceased for a period of 31/2 years for performing physiotherapy, which was essential part of the treatment as the deceased had remained in the State of coma and uncontious. The evidence on record substantiates the expenditure incurred by the claimants in a sum of Rs. 1,75,00/- towards professional charges of Dr. Karthik covering the period of 31/2 years. The insurers have failed to point out anything which would render such evidence dis-believable and negate the claim. We are, therefore, satisfied that a sum of Rs. 1,75,000/- awarded towards professional charges paid to Dr. Karthik is well established and therefore, confirmed.
56. The insurer-appellant has not seriously challenged the award regarding expenditure incurred by the claimants towards rental in respect of transit accommodation occupied by them at Tumkur during the hospitalization and treatment of the deceased at various hospitals at Tumkur. A sum of Rs. 75,000/- has been awarded by the Tribunal by way of reimbursement of rent paid to the landlord.
57. PW-6-Vijayakumar, has testified that K. Sadashivaiah 2nd claimant herein had obtained his residential building on rent at Rs.3,000/- per month from January 2000 till 2002. He had also paid an advance of Rs. 30,000/-. He was cross-examined, but nothing else is elicited to negate his testimony. The Tribunal has accepted that evidence and we find no reason to take a different view. Medical evidence on record also establishes that deceased Chetan Kumar was shifted to Tumkur in the state of coma as there was no medical facility in their native village and was under constant treatment of Doctors as also physiotherapist. We are, therefore, satisfied that sum of Rs.75,000/- awarded by way of reimbursement of that expenditure isjustified.
58. Similarly, the claimants have sought reimbursement of Rs.25,000/- incurred by them towards rent in respect of transit accommodation at Bangalore during inpatient treatment of the deceased at Mahavir Jain Hospital, Aruna Hospital and Lakeside Medical Centre and Hospital. As seen from the evidence of PW-5-Aswath Narayan, he had rented out his residential house at Vijayanagar, Bangalore to the claimants for a period of six months from September 1999 at Rs. 5,000/- per month and has issued receipts acknowledging rent. The Tribunal has accepted that evidence and awarded Rs. 25,000/-to them. Insurer-appellant sought to negate his testimony, but only suggested that he was deposing falsely to support the claimants. Nothing has been salvaged to negate his contention that there was a transaction of lease between him and the claimants and that he has received the rent of Rs.5,000/- per month. The award of the Tribunal towards reimbursement of Rs. 25,000/- in respect of such expenditure is justified and we find no reason to interfere with such award.
59. Award towards loss of dependency is seriously questioned by the insurer-appellant. Their contention is that the claim petition itself was not maintainable, as the deceased died three years 10 months after occurrence of the accident and his death is not as a consequence of injuries sustained. We have dealt with this aspect in detail in the foregoing paragraphs and on the basis of proved facts held that the dead of Chetan Kumar was direct consequence of the injuries sustained by him in the road traffic accident and the nexus was established between the accident, injury and his ultimate death. On such finding we have held that the claim petition by the dependant parents is maintainable. Now, we shall consider whether they are entitled to be compensated towards loss to the estate of the deceased or loss of dependency. Determination of compensation would therefore, depended on proof about earning of the deceased.
60. It is not in dispute that Chetan Kumar was aged 24 years pursuing graduation in law and had reached final year to qualify for LL.B Degree. Evidence of PW2 further shows that while they were proceedings to Sarvodaya College at Tumkur for making arrangements for next day’s function, the unfortunate road traffic accident occurred rendering Chetan Kumar invalid. Had he survived, within a year he would have been a practicing Advocate as hoped by his parents. Besides, PW-1 mother of the deceased, as also PW8-father, have narrated the family background, the interest evinced by the deceased to adopt legal profession as his career and they have also testified that he had engaged himself in gainful business of selling empty bottles, estate agency along with two individuals. PW7 and PW8 have through their ocular testimony substantiated this aspect.
61. PW8-Hanumantharayappa, claims to be a business partner of the deceased and together they were conducting joint venture of selling empty bottles near Civil Bus Stand, Tumkur, along with one Hemanth. They were purchasing bottles from taluka Head quarters and the whole sellers at Tumkur purchase from them. They had income of Rs. 12,000/- to Rs. 13,000/-per head per month. Despite cross-examination of this witness by the insurer-appellant nothing has been elicited to falsify his testimony, which indicates that Chetan Kumar was in joint venture with PW8 and that was also one of the source of his income. Of course, no documents are produced to substantiate incomeofRs. 12,000/-to Rs. 13,000/-per head but it does establish that Chetan Kumar was in such business.
62. Likewise, PW7-Siddaramanna, who also happen to be the uncle of Chetan Kumar has referred to the estate agency run by him in the name and style of M/s Jagat Jyothi Real Estate Agency, in which Chetan Kumar was a business partner. Together they had income of Rs. 25,000/- to Rs. 30,000/- per month. In the year 1999 they had Rs. 50,000/- profit. But, there is no documentary evidence produce and hence such evidence could only be considered as proof of Chetan Kumar engaging himself in an avocation.
63. On question of computation of proper compensation to be awarded to the claimants by way of ‘loss of dependency’, well established facts manifest from the records show that the deceased Chetan Kumar was on the verge of completing his Law Degree and was aspiring to pursue legal profession. The parents who are claimants had lost their elder son sometime before the unfortunate accident in which Chetan Kumar also suffered injuries. His death which occurred after 3 years and 10 months has created void in their life leaving none of the sons to look upon. The evidence also shows that while pursuing his Law Degree, he was gainfully employed in two businesses viz., sealing of bottles and estate agency. We have referred to the evidence on this aspect in the foregoing paragraphs. Therefore, we are satisfied that the deceased Chetan Kumar had regular earning from two sources of business. The Tribunal considering the defences of the Insurance Company, has notionally fixed the income of the deceased at Rs. 6,000/per month and subjecting it to 1/2 deduction, fixed his contribution to the family at Rs. 3,000/-. Considering the age of the mother (45 years) at the time of death, the Tribunal chose the multiplier of 13, the Tribunal, in all has awarded Rs. 4,68,000/- towards loss of dependency. As against the said award, the claimants have sought enhancement on the basis that the deceased had annual income of Rs. 1,00,000/- and deducting 1/3rd out of it towards his personal expenses, claimants are entitled to compensation of Rs. 10,29,600/-towards loss of dependency. We have considered this aspect. In the absence of any documentary proof about the actual income of the deceased but taking into consideration the oral evidence regarding his avocation and source of income it will be reasonable to take income of the deceased at Rs. 7,000/- per month. Annually, it will be Rs. 84,000/-. Deducting 1/3rd out of it towards the notional personal expenses the annual loss of dependency would be Rs. 56,000/-. This shall be the multiplicand. The multiplier shall depend upon the age of the deceased or the age of the dependents whichever is higher. The parents are the dependents. Though the deceased was aged 24 years, amongst the parents, the mother is aged 45 years. Therefore, the multiplier has to be taken on the basis of her age. 13 would be the appropriate multiplier. Thus, the multiplicand of Rs. 56,000/- multiplied by 13 gives us the loss of dependency at Rs. 7,28,000/-. This, we consider as a reasonable amount to be awarded towards the loss of dependency as against Rs. 4,68,000/- awarded by the Tribunal. Therefore, we modify the award of the Tribunal under this head and award to the claimants Rs. 7,28,000/-.
64. The second head under which the claimants need to be compensated is towards ‘loss to estate’. Undisputed facts are the deceased was about to complete Law Degree and was hoping to pursue legal profession. Apart from that, had he done so in times to come, he would have established in life. However, taking into consideration the vicissitudes of future and also keeping in mind the brighter prospects he had, under this head, claimants could be awarded Rs. 30,000/-. Besides, it is seen that the claimants had to shift the deceased from one hospital to another till he died. Therefore, towards the cost of expenses of transportation, we award to the claimants Rs. 20,000/-.
65. Generally, a notional sum is awarded to the surviving spouse towards loss of consortium of married life and to the children of the deceased towards loss of love and affection. But, in this case, even though the parents are the claimants, glaring evidence speaks of the agony of pain the parents have endured for a period of three years and ten months while Chetan Kumar was lying in the state of coma without hope of life. The unfortunate parents had to watch their only surviving son being engulfed by the slow process of death. This is a fit case for award of special damage. They have to be compensated as far as money could do towards the mental turmoil which they have undergone. Therefore, we find by way of special damages, the claimants could be awarded a sum of Rs. 50,000/- under this head.
66. In the result, we modify the award of the Tribunal to the following extent:
_________________________________________________
Heads Amount (In Rupees)
_________________________________________________
(a) Loss of dependency 7,28,000/-
(b) Loss of estate 30,000/-
(c) expenses of transportation
(for a period of 3 years and
10 months 20,000/-
(d) Special damages/loss of love
and affection 50,000/-
(e) Funeral and other expenses 10,000/-
(f) Hospital Charges (a) 2,10,000/-
(g) Hospital Charges (b) 1,61,189/-
(h) Physiotherapy charges 1,70,500/-
(i) Salary paid to nurses/
attendant charges 90,000/-
(j) Rental amount paid at Tumkur 75,000/-
Rental amount paid at Bangalore 25,000/-
Total 15,69,689/-
_________________________________________________
67. For the foregoing reasons, we are satisfied that the insurer-appellant has failed in establishing collusion between the claimants and the owner-insured as also the alleged fraud in their conduct. While discounting all such contentions as untenable, we term it as uncharitable, specially, in the circumstances in which the claimants’ son died and they have suffered prolonged agony.
68. As regards appeal filed by the claimants is concerned and taking into consideration the mathematical error committed by the Tribunal and evidentiary value of certain documents relating to expenditure towards nursing charges, the award passed by the Tribunal shall stand modified to the extent indicated in this order.
69. In the result, the appeal in M.F.A. No. 10166/2005 filed by the insurer and the appeal in M.F.A. 11578/05 filed by the claimants, stand disposed of in terms of this judgment. In the resultant position the amount of compensation awarded by the Tribunal in a sum of Rs. 27,58,499/- is reduced to Rs. 15,69,689/-.
Rest of the direction contained in the impugned judgment and award with regard to rate of interest and disbursement is confirmed.
There shall be no order as to costs.