Disposed

The Divisional Manager v. Sri Srinivasa Reddy

Karnataka HC1 Mar 2018RP/112/2010

Case brief

AI extract

What is this about?

This judgment records an order on interlocutory applications filed to recall a review order that had recalled a compensation award. The court held that a factual enquiry regarding the alleged relationship between parties was necessary and remanded the matter to the Tribunal, though it condoned the delay in filing the recall application.

What did the court decide?

Order dated 01.03.2018 in review petition recalled; application to recall dismissal dismissed; matter remanded to Tribunal for enquiry on relationship; delay condoned.

The Divisional Manager Vs Sri Srinivasa Reddy — Insurance | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF MARCH, 2018

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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R.P.No.112/2010

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BETWEEN:

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., D O No.3, No.15-17-19, ST.MARKS ROAD, BENGALURU

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REPRESENTED BY THE MANAGER, NATIONAL INSURANCE CO. LTD., BANGALORE REGIONAL OFFICE, SUBHARAM COMPLEX, No.144, MAHATMA GANDHI ROAD, BENGALURU-560 001.

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... PETITIONER

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(BY SRI C M POONACHA, ADVOCATE)

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AND:

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SRI SRINIVASA REDDY AGED 53 YEARS S/O KONDA REDDY RESIDING AT HANDENAHALLI, SARJAPUR HOBLI, ANEKAL TALUK BANGALORE RURAL DISTRICT.

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SRI K NARAYAN S/O KONDA REDDY RESIDING AT JAUTHAGONDAHALLI

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MUTHSANDRA POST, VIA VARTHUR BANGALORE DISTRICT.

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... RESPONDENTS

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(BY SRI SURESH M LATUR, ADVOCATE FOR R1-ABSENT R-2 SERVED)

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THIS REVIEW PETITION IS FILED U/O 47(1) OF CPC, PRAYING FOR REVIEW OF THE JUDGMENT DATED 06-082009 PASSED IN M.F.A.No.1693/2008, ON THE FILE OF THE HON'BLE HIGH COURT OF KARNATAKA, BENGALURU.

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THIS REVIEW PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petition is presented under Order XLVII(1) of C.P.C seeking reviewing the Judgment passed in M.F.A.No.1693/2008 dated 06.08.2009 originally MVC No.3362/2006 filed by one Sri.Srinivasa Reddy against Sri.K.Narayan, owner of the offending vehicle and Divisional Manager, The National Insurance Company Ltd., came to be allowed in part and a compensation

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of `1,75,980/- together with interest at the rate of 6% p.a. from the date of petition till realisation was ordered by the learned Member, MACT, Bengaluru, SCCH-14.

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Claim petition came to be partly allowed and compensation amount stated above was granted. It was against this order the claimant-petitioner Srinivasa Reddy preferred appeal before this Court in M.F.A.No.1693/2008(MV) seeking enhancement of compensation. The appeal came to be allowed in part. Compensation was enhanced by an amount of `26,520/- and liability was saddled on the insurance company.

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Sri.C.M.Poonacha, learned counsel for petitioner

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would submit that an amount of `1,91,333/- was deposited by the insurance company on 16.01.2008

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in full discharge of its liability. Enhanced amount is yet to be paid. The insurance company had constituted vigilance to investigate the credibility and veracity of the claim and it was reported that it was total conspiracy between the owner of the vehicle, his son and brother of the owner. Owner of the vehicle is none other than brother of the petitioner. It was submitted that by virtue of the report of the vigilance, it was revealed that the petitioner before the Tribunal Sri. Srinivasa Reddy, aged about 52 years, S/o Konda Reddy residing at Handenahalli, Sarjapura Hobli, Anekal Taluk had filed the petition claiming compensation for injuries sustained in an accident on 16.03.2006 at about 9.00 A.M near Handenahalli gate when waiting for a bus to go to Sarjapura wherein a Mahindra Jeep bearing registration No.KA-04-N-3939 came in a rash and negligent manner and dashed against the petitioner. Due to which petitioner fell

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down and sustained grievous injuries. He was shifted to hospital, treated as inpatient, became permanently disabled and a case was registered in Crime No.33/2006 for the offence punishable under Sections 279, 338 of IPC.

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The offending vehicle was insured with 2^nd respondent. It is owned by the 1^st respondent. Tribunal granted compensation of `1,75,980/- with interest @ 6% pa. Thus, respondents therein were made jointly and severally liable and Tribunal directed the insurance company to deposit the compensation amount.

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Both the sides were examined. MFA was disposed of by this Court on 06.08.2009. At this stage, it is necessary to present relevant dates through a tabular representation:

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Sl. No.	Date of filing	Proceedings before this Court	Date of disposal	Date of review petition
1.	07.02.2008	MFA No. 1693/2008 (MV)	06.08.2009	11.03.2010

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Learned counsel Sri.C.M.Poonacha for the review

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petitioner would submit that a clever but wrong idea was engineered by the claimant Srinivasa Reddy, his son Manjunath and owner of the vehicle K.Narayan. He contended that the siblings and the son of one of them, enacted a drama to project false as reality. The matter came to be notified to the Insurance Company and investigation was conducted by the team that was constituted by it on the basis of suspicion being generated. It was further submitted that the Investigation Committee inducted the said 3 persons to have played fraud by presenting falsity and imaginations before the Tribunal at Bengaluru and before this Court as well, only for the purpose of

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making wrongful gain with dishonest intention of causing wrongful loss to the Insurance Company. It is stated that the name lending was done by Narayan and the son of the petitioner Manjunath. The roles that were played by the injured was that of a claimant, son – Manjunath of that of complainant and the respondent – K.Narayan as owner. These three conspired and acted with their roles, victimized the Insurance Company in order to make gain.

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A story that was generated was being used as a realty in the complaint dated 27.03.2006 and it is stated that the claimant and his son were standing at a particular place between Handenahalli and Sarjapur and in the meanwhile, a jeep driven by owner and driver came in a speed, rash and negligent manner and dashed against the father of Manjunath, because of which he sustained injuries thereby disability, loss, medical expenditure etc. In the context, it is alleged

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that there was a total abuse of social legislation for making wrongful gain.

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No doubt, insurance is also a form of contract as recognized by the Indian Contract Act, 1872, wherein Section 10 of the said Act provides that a consent to a contract means consensus -ad-idem t hat it should not be a resultant product of misconduct, misrepresentation, fraud, coercion and undue influence. The flaws may play their role for obtaining consent to a contract or may erupt during the post contractual period. It may be innocent or intentional. In the latter case it becomes a fraud which was designed for making wrongful gain. When the statement of facts are wrong, it is called as misrepresentation. Further, misrepresentation may be known or unknown to the person who makes it. He reasonably believes the representation to be true.

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In this case, Srinivasa Reddy being the person who was injured, presented facts of accident sustaining injury, entitlement for compensation and son of the petitioner Manjunath presents a complaint that came to be registered in Crime No.33/2006 for the offence punishable under Sections 279 and 338 of IPC against the driver Narayan who is none other than the natural brother of injured Srinivasa Reddy. The matter was investigated by the police who promptly believed that the petitioner Srinivasa Reddy was injured because of the offence committed by Narayan who was the driver of the vehicle jeep bearing registration No.KA-04 N-3939. As submitted by the learned counsel, the interesting point is that even the police for the reasons best known to them, took care to not to mention the relationship between the owner - accused and the injured. However, for the obvious reasons, the accused pleaded guilty and the matter

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was disposed of with a fine of `600/- and the accused

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chose to pay amount on the date of hearing after he was being enlarged on bail. The amount of compensation of `1,75,980/- was granted for various

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injuries and fractures as under:

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		Amount in`
1.	Pain and suffering	35,000/-
2.	Loss of income during the period of treatment	10,000/-
3.	Medical expenses	61,900/-
4.	Loss of future earning	46,080/-
5.	Loss of future amenities	10,000/-
6.	Conveyance, food and nourishment expenses	5,000/-
7.	Future surgery	8,000/-
	Total	1,75,980/-

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Learned counsel who appeared for claimant ensured that the proceedings are completed and the matter came to be disposed of on 12.09.2007 in MVC No.3362/2006 which was filed on 09.06.2006.

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Learned counsel for the review petitioner Sri.C.M.Poonacha would submit that the entire amount that was ordered by the Tribunal was deposited by the review petitioner – Insurance Company. The learned counsel for petitioner would pray for a decree or order a refund or receipt of money by playing fraud is liable to be refunded by the person who played fraud to the aggrieved.

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There was no embargo for a person to claim compensation so long he was aggrieved party with injuria sine damnum but it is otherwise in this case asserts the counsel for petitioner. Ultimately, the amount of compensation was ordered and was drawn. He would submit further that the fraud that was played by the respondent – owner and driver of the jeep was discovered subsequent to the disposal of the case. This important piece of evidence going to the

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roots of case was not in the knowledge of the Insurance Company till the date of passing of the judgment. It was the investigating team that brought out the reality. Thus, the set of facts and the ingredients that constitute the offence played by the said persons for making wrongful gain, formed the set of facts that renders probably to the Court for proving the damage and loss for getting monetary compensation, is the basis for filing the review petition.

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He would also submit that he has not preferred appeal against the order passed in the MFA No.1693/2008. He would further submit that by the said fact of the incident which was not in the form of document was however crucial for adjudicating the matter. Hence, the same were presented at the earliest and the best opportunity in the form of

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review. It is necessary to find out the transparency in the ends of justice and the system.

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In the circumstances, in view of the suppressions, misleadings and misrepresentations being made intentionally by the claimant, his brother – owner of the vehicle, son and complainant, who never gave an opportunity for the truth to come out which might have disqualified them from getting compensation. It was not within the knowledge of the court as it was not presented before it. Fraud and suppression of facts, if prima facie show to reasonably hold that there is a case prima facie made out by the petitioner. No hesitation is necessary to take steps for undoing the wrong that was already done. I do not find any slip or oversight in presenting the petition under Order 47 Rule 1 of CPC and the order granting compensation invariably requires to be recalled and

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the amount of compensation ordered is to be withdrawn.

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Hence, the following:

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ORDER

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The review petition filed by the Insurance

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company under Order 47 Rule 1 of CPC is hereby allowed.

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The Judgment dated 06.08.2009 passed in MFA No.1693/2008 is recalled. MFA No.1693/2008 stands dismissed. Consequently MVC No.3362/2006 is also dismissed by setting aside the Judgment and award dated 12.09.2007 passed by the MACT, Bengaluru, (SCCH-14).

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The claimant and appellant in MFA No.1693/2008 -Srinivas Reddy, S/o Konda Reddy, R/o Handenahalli, Sarjapura Hobli, Anekal Taluk,

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Bangalore Rural District, is hereby directed to refund the amount drawn by him in MVC No.3362/2006 and MFA No.1693/2008 with interest at the rate of 6% p.a. from the date of withdrawal till the date of deposit within three months from the date of appearance.

Sd/JUDGE

SBN/RV

NKSJ:

26.11.2021 R.P.No.112/2010

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ORDER ON I.A.1/2019 & I.A.2/2019

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I.A.2/2019 is filed under Section 5 of the

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Limitation Act seeking condonation of delay of 452 days in filing the recalling application. I.A.1/2019 is filed under Order 9 Rule 13 read with Section 151 CPC praying to recall the order dated 01.03.2018.

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In order to have clarity and convenience the

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operative portion of the order passed in review petition dated 01.03.2018 is extracted as under:

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ORDER

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"The review petition filed by the Insurance company under Order 47 Rule 1 of CPC is hereby allowed.

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The Judgment dated 06.08.2009 passed in MFA No.1693/2008 is recalled. MFA No.1693/2008 stands dismissed.

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Consequently MVC No.3362/2006 is also dismissed by setting aside the Judgment and award dated 12.09.2007 passed by the MACT, Bengaluru, (SCCH-14).

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The claimant and appellant in MFA No.1693/2008 -Srinivas Reddy, S/o Konda Reddy, R/o Handenahalli, Sarjapura Hobli, Anekal Taluk, Bangalore Rural District, is hereby directed to refund the amount drawn by him in MVC No.3362/2006 and MFA No.1693/2008 with interest at the rate of 6% p.a. from the date of withdrawal till the date of deposit within three months from the date of appearance."

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Review petition was filed under Order 47 Rule 1 of CPC praying to review the order dated 06.08.2009 passed in MFA No.1693/2008. The operative portion of the Judgment and order in MFA No.1693/2008 is as under:

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"In the result, the appeal is allowed in part. In modification of the Judgment and award passed by Motor Accident Claims Tribunal, the appellant is entitled to additional compensation of Rs.26,520/- which shall carry interest at 6% p.a. from the date of filing of claim petition till the date of deposit by the respondent. The second respondent shall deposit the enhanced compensation amount with interest in the Motor Accident Claims Tribunal within a period of 3 months from today. No costs.

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Registry is directed to draw modified award."

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A compensation of Rs.1,75,980/- with interest at 6% p.a. was awarded by the Tribunal in MVC No.3362/2006 and in MFA No.1693/2008 appellant was held entitled for an additional compensation of Rs.26,520/- with interest at 6% p.a.

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Review petition was filed by insurance

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company to review the Judgment and order dated 06.08.2009 passed in MFA No.1693/2008 on the ground of fraud wherein it is stated misrepresentation made by claimant, owner of the vehicle and complainant who is the son. It was not disclosed about the relationship and a tacit understanding was reached among them to claim compensation of Rs.1,75,980/- however additional compensation was ordered in the MFA No.1693/2008 and on being satisfied about the contentions raised by the insurance company review petition No.112/2010 was allowed on 01.03.2018 wherein the Judgment and order in MFA No.1693/2008 was recalled and appeal was dismissed and consequently MVC No.3362/2006 was also dismissed. Claimant/appellant- Srinivasa Reddy was directed to deposit the amount of compensation drawn

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by him together with interest at the rate of 6% to be deposited within three months.

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Learned counsel for respondent No.1 in R.P.No.112/2010 remained absent and the matter was disposed of after hearing learned counsel for review petitioner.

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Present application is filed on the ground no blood relationship exists among owner of the offending vehicle, complainant and claimant and matter is falsely represented in the review petition.

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Learned counsel Sri.Suresh Latur submits

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that he was not feeling well when the matter was taken up for disposal and seeks for recalling the order by condoning the delay.

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Learned counsel for claimant Sri.Suresh Latur submits when the matter is taken up today he

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submitted that he has filed voter's list to show that there is no relationship between claimant-Srinivas, owner of the vehicle -Narayan, and the complainant. The claimant -Srinivasa Reddy s/o Konda Reddy is stated to be resident of Handenahalli. Owner - K.Narayan, S/o Konda Reddy.

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Learned counsel Sri.Suresh Latur submits the names of father of Srinivasa Reddy and K.Narayan are same but they are not brothers. Similarity of names do not make the same person. In the context and circumstances of the case the application is filed on the ground that no such relationship existed and made misuse of opportunity and has obtained an order of recalling of the Judgment with malafide intention.

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Learned counsel for insurance company submits that it is not open for the claimant to deny

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the contention of the insurance company and produce voter's list without corroboration or supporting material to enable the court to take judicial note. Hence the order in review petition is not liable to be recalled.

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Certain matters whether claim or contention or denial of material assertions relate to facts, documents that are necessary to be looked into and they may have presumptive value. But in the peculiar circumstances of the case the claimant made a petition for compensation under Section 166 of the M.V. Act in MVC No.3362/2006 wherein the claim petition came to be allowed in part and compensation of Rs.1,75,980/- was awarded. Being aggrieved by the quantum of compensation claimant preferred appeal in MFA No.1693/2008 wherein additional

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compensation Rs.26,520/- was ordered with interest @ 6% p.a.

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Review petition was filed by insurance company on the ground fraud was played misrepresenting the fact and concealing the truth with definite collusive act among claimant, owner of the vehicle and complainant.

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This court for the reasons mentioned

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therein allowed the review petition. Here again fresh application is filed under Order 9 Rule 13 for recalling the order passed in R.P.No.112/2010 and application for condonation of delay of 452 days in filing the recalling application and learned counsel Sri.Suresh Latur submits that he had no occasion to oppose the review petition as he was absent and submits a memo is filed along with voter's list and claims that father's name of Srinivas Reddy is Konda Reddy and father's

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name of Narayan, owner of the vehicle is also Konda Reddy but they are not same. But these facts are to be ascertained only in a full fledged enquiry with reference to the documents of corroboration. As such moreover the said documents are disputed regarding authenticity and also its contents. It is also contended that claimant misinterpreted the name of the father of claimant and the owner.

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Under these circumstances, I find enquiry is necessary but considering the quantum of work before this court it may not be possible to go for the same here. Hence, the matter has to be enquired into by the Tribunal and for the said purpose the matter has to be remanded by setting aside the Judgment and award.

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For the reasons mentioned in the affidavit accompanying the application and in the ends of

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principles of natural justice, delay of 452 days is condoned subject to payment of cost of Rs.2,000/- to the Prime Minister's Relief Fund. I.A.2/2019 and I.A.1/2019 are allowed.

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Order passed in R.P.No.112/2010 is recalled and disposed off in accordance with this order. Judgment and award passed in MFA No.1693/2008 is recalled. Consequently Judgment and award passed in MVC No.3362/2006 is recalled and matter is remanded to Tribunal with a direction to hold enquiry regarding the contention of misrepresentation and suppression of relationship as claimed by the insurance company and denied by the claimant.

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The Tribunal shall give opportunity to claimant and his witnesses and also respondent including witnesses and also to file documents.

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Considering the age of the matter the whole exercise shall be completed by the Tribunal within three months from the date of receipt of the certified copy of this order.

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The claimant is not entitled for interest from 01.03.2018 till today. Claimant shall Execute indemnity bond to the satisfaction of the Tribunal.

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Sd/JUDGE

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SBN

The Divisional Manager v. Sri Srinivasa Reddy

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Sri Srinivasa Reddy

Case brief

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