F.A.O.NO. 5578 OF 2002 and F.A.O.No. 1311 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 5578 OF 2002 and Cross Objection No. 14-CII of 2006 Date of decision:8th October, 2010 Smt Milkho Kaur and others .......Appellants Versus Munshi Lal and others ........Respondents F.A.O.No. 1311 of 2006 Oriental Insurance Company Limited, through its Regional Mangaer, SCO No. 109-111, Sector 17-D, Chandigarh. ......Appellant Versus Milkho Kaur and others .......Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ashwani Talwar, Advocate, for the Insurance Company. Mr. Ajit Attri, Advocate and Mr. Ashit Malik, Advocate, for the claimants. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) F.A.O.NO. 5578 OF 2002 and F.A.O.No. 1311 of 2006 2 1. The appeal and the cross appeal arise out of the same accident. The case had the chequered history. For an accident alleged to have taken place on 22.02.2000, allegedly involving the insured's vehicle, claim had been made and after examination of certain witnesses, the Tribunal found that the insured's vehicle was guilty of negligence and passed an award against the insured and the insurer. 2. An appeal had been filed before this Court and it appears that the matter was consigned to Lok Adalat for settlement and a settlement was also reached. The insurance company suspected the genuineness of the claim by the claimants and collected materials to the effect that there had been a collusion between the claimants, the owner/driver of the vehicle, the police and other witnesses to bolster up a fake claim. Even when the review application was pending since award had been passed in the Lok Adalat, a Civil Writ Petition No. 20205 of 2003, had been filed, challenging the award passed in the Lok Adalat. The Court had allowed the writ petition staying the recovery through the award made in the Lok Adalat and directed conclusion of the application for review. In the review application, the Court ultimately found that there had been collusion between the claimants, driver/owner and the advocates, police and the witness and that the accident as narrated in the claim petition was not proved. 3. The Tribunal however, did not set aside the award which had already been passed and stopped short at recording a finding F.A.O.NO. 5578 OF 2002 and F.A.O.No. 1311 of 2006 3 relating to the accident and did not set aside the award on an assumption that the order for review had not authorised the Tribunal to modify the award, which had already been passed. 4. The Insurance Company, therefore, filed an independent appeal i.e. FAO 1311 of 2006 against the original award with an application for contention of delay and would rely on the findings rendered in the review application that the award had been fraudulently brought about by collusion. The claimants themselves have preferred an independent appeal in FAO 5578 of 2002 and in the same appeal the Cross Objection No. 14-CII has been filed by the insurance company. 5. Since the award had been subsequently considered through the review application by the Tribunal and it had also held that the previous award had been secured through collusion. I had directed the counsel appearing for claimants to sustain the evidence brought through witnesses and prove the involvement of the insured's vehicle. Learned counsel appearing for the claimants would only state that the witnesses were not the relatives and that they believed the version of persons who claimed to be eye witnesses and that they had no role to play in bringing about collusion. It is a kind of argument that is neither here nor there. If the Tribunal had found that the ultimate decision in the case was wrought through a concerted action of several persons fraudulently making up a claim, claimants cannot disassociate themselves and say they are innocent. F.A.O.NO. 5578 OF 2002 and F.A.O.No. 1311 of 2006 4 Parties appear through counsel and if fraud or collusion is found to be established by the Tribunal and the Tribunal also records its specific finding that the person who was alleged as an eye witness was actually acting in collusion with the driver to fake a claim, then it only means that the accident as alleged by the claimants had not been established. May be the deceased died in a motor accident but the question before me is whether the deceased died by involvement of the insured's vehicle to make the insurer liable. If that evidence is not available then the award which is impugned in appeal by the insured cannot stand by the reasoning of the Tribunal itself has come through such decision in the review application. 6. The appeal filed by the insurance company in FAO 1311 of 206 is therefore, allowed setting aside the award of the Tribunal. The claim for enhancement in FAO No. 5578 of 2002, filed at the instance of the claimant shall therefore, fail. The cross objection No. 14-CII of 2006 filed FAO NO. 5578 of 2002 filed by the insurance company ought to succeed for the same reasons which find favour in the decision to set aside the award passed in FAO NO. 1311 of 2006. The cross objection is therefore, allowed. The claimants shall be at liberty to approach the government for release of funds in the manner provided under Section 163 of the Motor Vehicles Act. If any such plea is made, the government shall not be required to again examine whether the deceased died out of motor accident or not. It shall F.A.O.NO. 5578 OF 2002 and F.A.O.No. 1311 of 2006 5 consider the fact that the case had been pending for these orders and therefore, shall not take up the issue of limitation against the claim by the claimants. [K.KANNAN] JUDGE 8th October, 2010 Shivani Kaushik