IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 MACA.No. 220 of 2004()B ---------------------- OPMV.1039/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): /PETITIONER ---------------------------------- CHACKO S/O. KURUVILLA, EDAYANGADU HOUSE, VENGALLOORKARA, MANAKKADU VILLAGE. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S): RESPONDENTS 2 AND 3 ----------------------------------------------- 1. C.A.KAREEM, KARTHIKA, KANJIRAMATTOM, THODUPUZHA. 2. NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA. ADV. SRI.MATHEWS JACOB (SR.) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 220 OF 2004 = = = = = = = = = = = = = = = Dated this the 14th day of November, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)1039/99. The Tribunal found that all is not well with the case and dismissed the case. The crucial point that arises for determination in this case is not regarding the sustainment of injury in a road accident by the claimant but it is the involvement of the vehicle. According to the claimant in the petition the vehicle involved in the accident is KL-6/7242 but according to the insurance company the vehicle involved in the accident is KLW-2688. Therefore the insurance company would contend that the case is not true and therefore request for the dismissal of the claim petition. 2. It is true that there may be cases where fraud is played on the Court or on the party. Fundamental principle in understanding fraud is that, (1) Fraud is a matter which cannot be proved by direct evidence. (2) It can be only M.A.C.A. 220 OF 2004 -:2:- proved from the circumstances emanating in a particular context and (3) It is equally important that fraud cannot be presumed or inferred by mere conjectures and surmises. 3. Now, what is the element of fraud in this case. It is true that when the claimant was being admitted in a hospital and when he was on his hospital bed he gave a statement to the effect that the vehicle involved in the accident was KLW-2688. The scene mahazar is prepared on the next day and unfortunately the vehicle was not available there, then the vehicle alleged to have been involved in the accident was inspected by the Assistant Motor Vehicle Inspector as well as police who prepared the body mahazar of the vehicle. Body mahazar of the vehicle prepared on 6.3.97 with reference to the vehicle KL6-7242 did reveal that there was some damages sustained to that vehicle. Now the insurance company wants to raise a contention that most probably on account of some extraneous factors the claimant wanted to avoid the vehicle which was involved in the accident and is attempting to fabricate a false case by roping M.A.C.A. 220 OF 2004 -:3:- in another vehicle in order to claim compensation. As I stated earlier, in order to prove fraud, there must be some positive evidence. When a person is admitted in a hospital and from there gives the number of the vehicle there is every possibility of one committing an error. I do not say that it must always happen. But, just because in First Information Statement the injured has given a wrong number one cannot directly jump to the conclusion that everything is fraud. One must have some confidence and credence to the system of law by which the criminal case is being prosecuted, investigation done by the police, final charge submitted before the Court and the Court on the basis of that charge proceeds against the accused for having committed certain offences which shall not be totally thrown out because in the First Information Statement given by one person there is mistake with respect to the number. Ordinarily it will be the person who is entitled to get compensation, be more anxious to have a correct picture before Court to arrive at a decision. Here the investigating agency after investigation M.A.C.A. 220 OF 2004 -:4:- had found that the vehicle involved in the accident is KL6- 7242 against this what is the evidence available is the next question. I find except for the statement given by the injured immediately after the accident there is no other evidence. Then what is the specific circumstance to incorporate a number or a vehicle which is not at all involved in the accident. A person who pleads fraud must at least tell what is the basis of fraud which is also not there in this case and we have come across rules of pleading which states that when fraud is played the facts and circumstances which leads to fraud has also to be pleaded. It is also totally absent in this case. Merely on account of some suspicion or from mere surmises it is not correct to hold that the whole case is a fraudulent one. Therefore on an analysis of the materials available and looking into the reliability of evidence that has been tendered I feel this is a case where the accident had taken place as stated in the claim petition and therefore I hold that the claimant has succeeded in proving the accident as well as the negligence. No contra evidence is tendered to M.A.C.A. 220 OF 2004 -:5:- show that there was no negligence on the part of the rider of the vehicle at the time of the accident. Hence the said finding of the Tribunal is vacated. 4. So far as the compensation is concerned the claimant has been only awarded a moderate compensation of Rs.6,620/-. Therefore it also does not require any interference. Therefore I set aside the award passed by the Tribunal and allow the appeal. The claimant is awarded a compensation of Rs.6,620/- with 6% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-