CREF No.1 of 2007 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CREF No.1 of 2007 Date of decision: December 11, 2008. CORAM: HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri G.S. Attariwala, Additional Advocate General, Punjab Shri R.D. Sharma, Deputy Advocate General, Haryana. Shri Harsh Aggarwal, Advocate, for respondent(s) No.2. Shri J.P. Sharma, Advocate, for the claimants. ORDER Surya Kant, J. - (Oral): This Reference under Section 113, read with Order 46 Rule 1 CPC has been received from the learned District & Sessions Judge, Narnaul entertaining a reasonable doubt in the mind of the Executing Court regarding executing of an award passed by the Tribunal under the Motor Vehicles Act, 1988 if such an award was solely obtained by playing fraud on the court. The learned District & Sessions Judge, Narnaul has accordingly framed and referred to the following question of law for adjudication by this Court:- “Whether withholding of information of cancellation report about the FIR (when copy of the FIR was produced by the claimants as a vital document in support of their claim CREF No.1 of 2007 -: 2 :- petitions), amounts to fraud on the Court as well as on the insurance company, and the Award being executed as decree, is to be taken as a nullity?” A brief reference to the facts may be made. Two claim petitions by the dependents of Manoj Kumar and Rajiv Kumar were filed as both of them lost their lives in a motor vehicular accident when the motorcycle which they were riding was hit by a jeep bearing registration No.HR-34-A-0498. In order to prove that Manoj Kumar and Rajiv Kumar died in a motor vehicular accident, one of the evidence relied upon by the claimants was a copy of the FIR No.194 dated 12.8.2001 under Sections 279, 337, 304-A IPC registered at Police Station Sadar Narnaul in relation thereto. It appears that during the pendency of the claim petition and after investigation in the criminal case, the police had filed a cancellation report but this fact was not brought on record by the claimants in whose favour a common Award dated 4.6.2003 was passed by the MACT, Narnaul. However, in the execution proceedings, the Insurance Company moved an application claiming that the Award is a nullity and is inexecutable on the ground that the FIR had been filed by the police as untraced and no challan was filed against any person. Pursuant to the aforesaid application, that the question of law, as reproduced above, has been framed and referred to this Court by the learned District & Sessions Judge, Narnaul. I have heard learned Counsel for the claimants and respondent No.2, namely, the United India Insurance Co. Ltd. as well as the Learned State Counsel for Punjab and Haryana to whom also notice of this reference CREF No.1 of 2007 -: 3 :- was issued. There can indeed be no doubt that fraud vitiates every action and no one can take undue advantage or thrive upon a benefit drawn by committing fraud. The court proceedings are also no exception. The question, however, as to whether or not a party to a lis has committed fraud, is purely a question of fact. It is well settled that whosoever alleges fraud, must prove it. In the instant case, the Insurance Company was duly served and in its written statement a categoric plea was taken that if collusion between the claimants and the driver/owner of the jeep is found, the Insurance Company would be entitled to take the defence available under Section 170 of the Motor Vehicles Act. No such application, however, appears to have been moved by it and obviously no evidence led to prove that Manoj Kumar and Rajiv Kumar did not die in a motor vehicular accident caused due to rash and negligent driving of the jeep bearing registration No.HR-34-A- 0498. In fact, it stands crystalized from the award dated 4.6.2003 passed by the Tribunal that while deciding issue No.1, “as to whether the motor vehicle accident that occurred on 11.8.2001, was an outcome of rash and negligent driving of jeep No.HR-34-A-0498”, the Tribunal did not rely upon copy of the FIR alone, rather the said issue has been answered by it in affirmative mainly on the basis of the statement of Yadunandan (PW3) who has been accepted by the Tribunal as an eye-witness to the accident. The Tribunal, thus, independently analyzed the evidence produced before it and did not presume the occurrence of accident by the rash and negligent driving of the jeep driver, solely on the basis of contents of the FIR. CREF No.1 of 2007 -: 4 :- The claimants had no control over the functioning of the investigating agency, if it failed to gather enough material which could enable it to submit a report under Section 173 Cr.P.C. to get the accused driver charge-sheeted. Similarly, the question of playing any fraud by the claimants upon the Tribunal would have arisen only if the Insurance company had proved beyond the pale of any doubt that cancellation of the FIR by the investigating agency was very much in their knowledge at the time of institution of the claim petition and/or thereafter. Suffice it to say that the allegation of fraud is of serious in nature and has to be proved by leading cogent and positive evidence as fraud can not merely be inferred. It necessarily implies that the Insurance Company ought to have taken a plea and led evidence to establish the allegation of fraud. It is equally well settled the executing court cannot go behind the decree. The award under the MACT is at par with the decree of a civil court, therefore, the executing court cannot assume the role of an appellate authority to reverse, modify or set aside the findings returned by a court of competent jurisdiction. Such a plea has to be taken and proved either before the same forum or before a superior court. No such recourse having been followed by the Insurance Company in the present case, the objection taken by it before the executing court is legally misconceived and cannot be entertained. The Reference is accordingly answered with a clarification that the question as to whether or not the claimants withheld the information regarding cancellation of the FIR, is wholly irrelevant on facts as the award is not based upon the said solitary piece of evidence. Similarly, the question CREF No.1 of 2007 -: 5 :- as to whether or not a party has played fraud upon the court, being a question of fact, can be gone into either by the said court only or by a superior court. The executing court shall not be competent to assume both the roles and return any finding in relation thereto. Ordered accordingly. December 11, 2008. [ Surya Kant ] kadyan Judge