K.M. Agarwal, J.
1. This appeal Under Section 110-D of the Motor Vehicles Act, 1939, (hereafter called the 'Act'), has been filed by the Insurance Company against the award of compensation to the tune of Rs. 40,000/- with interest at the rate of 9 per cent per annum made by the claims Tribunal. Gwalior in favour of the respondent No.1,Kalka Prasad.
2. In this claims petition, the respondent No. 1 alleged that the about 4 O'clock in the morning of 14-8-1980, he alighted from his 'Tonga' at Maharaj Bada, when he was dashed from behind by Tempo No. CPH 5095 belonging to and driven by the respondent No. 2 and insured with the appellant. As a result of the impact, he fell down and his right leg was run over and crushed by the rear left wheel of the Tempo. It was alleged that the accident caused fractures, latceration and bleeding on the right leg, besides fracture of the left ankle joint. On 14-8-1980 itself, he was admitted in the J.A. Group of Hospital, Gwalior, but as he did not get proper treatment he left that hospital on 16-8-1980 and got himself admitted in the private clinic of Dr. Chandak, (incorrectly described as 'Dr. Chanakya' in the claims petition). On 16-8-1980, X-ray was taken in the hospital of Dr. Chandak and therefore, at about 5.00 p.m. his leg was plastered, after making him senseless. He was required to spend a lot of money over his treatment in the hospital of Dr. Chandak, where he continued to remain admitted till the date of the claims petition and over thereafter. Accordingly a sum of Rs. 50 '50/-was claimed by way of compensation from the owner-cum-driver and the insurer of the vehicle, as per details given in paragraph 13 of the claims petition.
3. The appellant filed its written statement on 1-8-1981, denying the alleged accident and the entire claims of the respondent No. 1. It was specifically stated in the paragraph 2 of the written statement that according to the information received from the respondent no 2, (i.e. the owner-cum-driver of the vehicles), he was out of Gwalior on the date of the alleged accident and the Tempo was closed in a garage.
4. The respondent No. 2 filed his written statement on 14-10-1981 admitting the alleged accident, but denying his liability for payment of compensation. Under the circumstances, the appellant amended its written statement and in paragraph 19 of its amended pleadings, it was stated that the respondent No. 2 had colluded with the respondent No. 1 to support his false claims against the appellant.
5. It may be mentioned that initially the counsel appearing for the appellant was also representing the respondent No. 2 till 4-9-1981 when he was replaced by one Shri D.R. Sharma, Advocate. Thereafter, on 14-10-1981 the written statement of the respondent No. 2 was filed by Shri D R Sharma Advocate. A part of the claimsant's evidence was recorded for the first time on 14-7-1982 and from this date onwards, no one appeared on behalf of the respondent No. 2. On 21-7-1982, the remaining witness of the claimsant was examined and the case was closed for arguments, after rejecting the appellant's prayer for time to produce its evidence. The arguments were finally heart on 27-7-1982, but the claims Tribunal did not deliver its judgment on any date earlier than 4-10-1982.
6. It may also be stated that the counsel for the appellant was not allowed to cross-examine the claimsant on the factum of the alleged accident, although it was specifically denied by the appellant in its written statement. In this connection, the whole of paragraph 14 of the deposition of Kalka Prasad (PW 1) is relevant, which is reproduced here-in-below
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7. During the course of arguments of this appeal, the learned Counsel for the respondent No. 1 had raised a preliminary objection about the maintainability of the appeal on the ground that the claims by the insurer of the vehicles was limited to the matters enumerated in Section 96(2), read with Section 96(6) of the Act and therefore, the appellant, being the insurer of the vehicle, could not challenge the quantum of damages or the findings on rash and negligent driving. This objection was overruled by me vide my order, dated 18-4-1985 on the ground that the present case was covered by the exception given in Section 110-C (2-A) of the Act and consequently the insurer was entitled to challenge the findings of the claims Tribunal on the quantum of compensation, as well as on negligence.
8. As the counsel for the appellant was not allowed to cross-examine the claimsant's witnesses on matters outside the scope of Section 96(2) of the Act J decided to re-examine the claimsant Kalka Prasad (PW 1) and Dr. B.P. Chandak (PW 3) as Court witnesses, instead of remanding the case the claims Tribunal the claimsant was also directed to be re-examined by the Civil Surgeon, Gwalior.
9. While directions were being given for production of certain documents by Dr. B.P. Chandak, a request was made on behalf of the claimsant for requisitioning the relevant records of treatment given to him in J. A. Group of Hospital at the relevant time.The request was accepted and the summons was issued for production of the required documents from J A. Group of Hospital. On 26-7-1983, the following documents were produced by one Shri F.A. Khan, Medical Record Offcer, J.A. Group of Hospital, Gwalior:
(i) Slip referring Kalka Prasad for admission in J.A. Group of Hospital by the Casualty Medical Officer.
(ii) Admission Slip No. 40887-15265 40887-15265 , dated 16-8-1980.
(iii) Case Record (Ex, C/2) of Kalka Prasad, w e.f. 16-8-1980 7.30 a.m. to 18-8-1980 10.00 a.m.
10. This Court examined Dr. B.P. Chandak as C.W. 1 on 2-8-1985 and the claimsant Kalka Prasad as CW on 9-8-1985.
11. The slip referring Kalka Prasad for admission in J.A, Group of Hospital by the Casualty Medical Officer, the admission slip No. 40887-15265 40887-15265 and the case record (Ex. C/2) of Kalka Prasad, produced from J.A. Group of Hospital at the instance of the claimsant Kalka Prasad show that Kalka Prasad was admitted in that Hospital on 16-8-1980 and not on 14-8-1980 and that he left the hospital on 18-8-1980 and not on 16-8-1980, as alleged in the claims petition or as deposed by Kalka Prasad before the claims Tribunal. The case record (Ex. C/2), written on 16-8-1980, mentions the history of present illness as 'Pt. was alright 3 hrs. back when while sleeping his right lower limb was run over by bullock cart and got the injury. 'It does not show that Kalka Prasad had any gas gangrene.
12. The aforesaid facts would show that no accident took place on 14-8-1980, the tempo in question was not involved in any accident and a totally false and fictitious claims was built up against the appellant.
13. It may be mentioned that the slips and case-record (Ex. C/2) were produced from a proper custody and through a proper person at the instance of the claimsant Kalka Prasad J.A. Group of Hospital is a Government hospital. The slips and the case-record were written by the doctors and/or the officers of the hospital in the ordinary course of business and in discharge of their official duties. Kalka Prasad as C.W. 2 admitted before this Court that the case-record (Ex. C/2) contained his signature at portion marked A to A, although he denied to have written the portion marked B to B that he did not want to lodge a report with the Police. He admitted that he was questioned by the doctor about the cause of his injuries, but denied to have staged the cause of injuries as written by the doctor in the case-record. Under the circumstances, a presumption arises that the slips (marked Ex. C/4 and Ex. C/5) were correctly prepared and the entries in the case-record were faithfully made by the persons responsible to do so. Entries in the prescription register in Government dispensary by a Compounder (D. Crwz v. D. Cruz AIR 1927 Oudh 310 and an out door ticket and discharge certificate granted by authority of a public hospital (Ramani Bala v. Kanai Lal AIR 1965 Tripura 17) have been held to be admissible Under Section 35 of the Evidence Act, even in the absence of examination of the makers thereof. Consequently the entries in the said slips and the case-record must also be held to be admissible Under Section 35 of the Evidence Act. Yet I would have examined Dr. V. Lekhi, who was the House Surgeon in the Department of Orthopaedic Surgery, J.A. Group of Hospital, Gwalior at the relevant time and who had made the entries in the case-record (Ex. C/2). However, it did not seem feasible without loss of a considerable time, because as per information given by Shri F.A. Khan, Medical Record Officer, Dr. Lekhi was no longer at Gwalior and it was difficult to locate his present address. In this back-ground and in the light of the agreed submission made by the learned Counsel for the contesting parties that the examination of Dr. V. Lekhi was not necessary for disposal of the appeal on merits, the idea of calling him as a Court witness was given up.
14. The case-record (Ex. C/2) and the slip (Ex. C/4) written by the Casualty Medical Officer mention compound fractures of right tibia and fibula bones of Kalka Prasad. The unexhibited report, dated 24-4-1985 of the Chief Medical and Health Officer, District Gwalior confirmed rual-united fracture of Rt. mid tibia and old united fracture of Rt. mid fibula bone' Dr. B.P. Chandak also deposed before the claims Tribunal as well as before me that Kalka Prasad had sustained compound fractures of his right tibia and fibula bones. Except the change in the date of the incident, admission and discharge from the hospital and the case of injury, there is no material change about the timings of the incident, admission and discharge of Kalka Prasad from J.A. Group of Hospital as mentioned in the case-record (Ex. C/2) and as deposed by the claimsant Kalka Prasad. The report of the incident was not lodged with the Police, as admitted by Kalka Prasad in paragraph 13 of his deposition before the claims Tribunal. It appeal s that no report was sent to the Police from the J.A. Group of Hospital, because the cause of the injury was disclosed to be the 'run over by the bullock cart,' because it was not considered to be a medico-legal case and further because the patient also did not want to make any report of the incident to the Police. Although on comparison of the specimen writing (Ex. C/3), with that of the portion market B to B in the case-record (Ex. C/2) it is manifest that both are written by one and the same person, Kalka Prasad denied to have written the portion marked B to B in case-record (Ex. C/2) in his deposition recorded by this Court, apparently with a view to avoid contradiction with his earlier statement before the claims Tribunal. I am, therefore, of the view that the entries in the case-record (Ex. C/2) are conrrectly recorded and on the basis of these entries, it can safely be concluded that no accident occurred on 14-8-1980 and the Tempo in question was not involved in any accident on 14-8-1980 or on 16-8-1980, Accordingly the claims for compensation made by the respondent No. 1 was false and fictitious to his knowledge.
15. It may be stated that Dr. B.P. Chandak intentionally came forward to support the false claims of the respondent No. 1. His deposition before the claims Tribunal does not show that he had brought the bed-sheet of Kalka Prasad at the time of his examination as a witness. Head it been brought, it would have been exhibited in the case. Yet he claimsed before this Court that on the basis of bed-sheet, he had stated before the claims Tribunal that Kalka Prasad was admitted in his hospital on 16-8-1980. According to him, Kalka Prasad's case was that of an emergency. He had fractures of tibia and fibula bones with localised gas gangrene on his right leg and therefore, he was operated on 16-8-1980 itself. It is strange to find that none of the 4 X-ray plates (Ex P 1 to Ex. P 4) produced by him in the Court was obtained on 16-8-1980, i.e. before subjecting Kalka Prasad to operation or before plastering his leg. The earliest of the 4 X-ray plates was obtained on 18-8-1980. It would thus, appear that Kalka Prasad was admitted in his hospital on 16-8-1980 on 18-8-1980 itself X-ray (Rx. P 1) was taken and his leg was plastered ' This date fits in with the date of discharge mentioned in the case-record (Ex C/2) of the J.A. Group of Hospital, Gwalior, as also with the deposition of Kalka Prasad. if the date of accident is taken to be 16-8-1980 instead of 14-8-1980. The X-ray plates (Ex. P 1 to Ex. P 4) were produced by Dr B P Chandak himself on the date of his examination by the claims Tribunal They do not show existence of localised gas gangrene in the leg of Kalka Prasad. In paragraph 10 of his deposition recorded by this Court, he claimsed to have debeted gas gangrene on the right leg of Kalka Prasad on the basis of clinical diagnosis. He deposed that In its early stages, gas gangrene cannot be detected by X-ray. When confronted with Chapter XLV III of 'A text Book of X-ray Diagnosis British Aughors' 4th Edition, published by London H.L. Lewis & Co. Ltd. 1971, he stated that he was not a radio-logist and therefore, unable to say if gas gangrene in its earlier stages could also be detected by X-ray. His evidence is full of contradictions and irre-consilable statements, leading to one conclusion that he is a man having no regard for truth and/or his professional ethics. Kalka Prasad was not his old acquaintance, yet he was treated on credit. The details of treatment given or of the fees charged were not furnished. Surprisingly no account was main-tained, although a huge amount was still outstanding against Kalka Prasad. He did not maintain admission and discharge register about the patients admitted in his hospital, although he maintained beds for his indoor patients. All these facts depict a very poor picture of Dr. Chandak and his conduct as a Surgeon.
16. It seems that initially Kalka Prasad had no intention to cheat the appellant and therefore, he did not manipulate things at earlier stages. Accordingly the cause of injury was correctly stated by him to the House Surgeon, who recorded the entries in the case-record (Ex. C/2) and he did not keep any record of the actual date of accident or the date of his admission in the H.A. Group of Hospital. Even after he was admitted in the hospital of Dr. Chandak and perhaps, till the end of November 1980, he or Dr. Chandak had no plan to cheat the appellant. As admitted by Dr. Chandak, he did not maintain any admission or discharge register in respect of his indoor patients. Under the circumstances and after finalisation of the scheme, it appears that a mistaker was committed and an incorrect date of accident as well as of admission of Kalka Prasad in the hospital of Dr. Chandak was mentioned in the claims petition, without suspecting that this mistake might expose the fraud and knock out the claims for compensation. The conspirators did not know or remember that in the case-record of J. A. Group of Hospital, the cause of injury was mentioned a 'run over by a bullock-cart' and that it produced and proved, it would give a death blow to the claims for compensation.
17. The claims petition bears '10-12' as the date on which it was signed by Kalka Prasad. '10-12' clearly means 10-12-1980, because the claims petition was sent by registered post by Kalka Prasad's counsel Shri N.M. Haswani, Advocate on 10-12-1980 (as per postal envelope at page 17 of the claims Tribunal's record, containing miscellaneous papers), which was received in Court on 11-12-1980. It is, therefore, reasonably possible that a few days before the date of the claims petition, it began to dawn on Kalka Prasad at the suggestion, assurance or promise of someone, may be his counsel, That a substantial amount could be realised from an Insurance Co. just by distorting the facts of the mishap and describing it as an accident by an automobile, insured with some company. Accordingly it appears that a scheme was chalked out, Tempo No. CPH 5095 and its insurer were discovered and then the claims petition was drafted and filed in the claims Tribunal in the manner aforesaid.
18. It is deducible from the materials brought on record at Dr. B.P. Chandak was a party to the fraud or criminal conspiracy from its very inception and that the respondent No. 2, Subhash Pobli joined the conspiracy after service of summons of the claims petition on him and before the date of filing his witness statement. Similarly Vijay Chopra (PW 2) appears to have joined the conspiracy after the date of the claim petition and before 5-3-1982, when the list of witnesses was submitted by Kalka Prasad before the claims Tribunal. Had they not been parties to the conspiracy, they would not have intentionally afforded materials to support the false claims of the respondent No. 1. Though there was no accident on 14-8-1980 with Tempo No. CPH 5095 the respondent No. 2 admitted such an accident in his written statement, dated 14-10-1981 and Vijay Chopra (PW 2) falsely deposed to have witnessed the accident with the said Tempo. As earlier stated, Dr. B.P; Chandak (PW 3) also gave false evidence to the effect that Kalka Prasad was admitted in his hospital on 16-8-1980 and that he conducted his operation on the very day.
19. From the aforesaid facts, it appears that offences Under Sections 193, 208, 209 and/or 210 read with Section 120B IPC have been committed in or in relation to claims Case No. 65 of 1980 M.V. Act, dated 4-10-1982 of the claims Tribunal, Gwalior by the claimsant Kalka Prasad, Dr. B.P. Chandak (PW 3), Vijay Chopra (PW 2) Subhash Popli (respondent No. 2) and the man who had the master mind, which generated the scheme to cheat the appellant in the manner aforesaid. I am, therefore, of the vies that it is expedient in the interests of justice that an inquiry should be made into the said offences, but before doing so or making a complaint thereof in writing, I think it necessary to hold a preliminary inquiry into the said offences and to give a hearing to the said persons, before taking a final decision in the matter. I accordingly direct that a separate miscellaneous civil case Under Section 340 Cr.P.C. be registered against Kalka Prasad Dr. B.P. Chandak, Vijay Chopra and Subhash Popli and be placed before me for appropriate orders about issuance of notices against them.
20. In the result, this appeal succeeds and it is hereby allowed. The impugned award of the claims Tribunal is set aside and the claims of the respondent No. 1 for compensation is dismissed with costs throughout Counsel fee as per certificate or the Schedule, whichever is less, if already certified.
21. In the peculiar circumstances of the case, I could have awarded compensatory costs to the appellant, but such a claims was not made by the appellant in its written statement and the provisions of Section 35A CPC also did not appear to have been made applicable to the proceedings before the claims Tribunal and therefore, I refrained from making any such order in favour of the appellant.
22. It was pointed out that a sum of Rs. 10,000/- was deposited by the appellant in the claims Tribunal in pursuance of the order, dated 28-2 1983, which has been withdrawn by the respondent No. 1 Kalka Prasad in accordance with the directions given by this Court on 6-5-1983. A prayer was, therefore, made for directing restitution of the amount with interest at the rate awarded to the respondent No. 1 by the claims Tribunal. The prayer is reasonable. Accordingly it is hereby ordered that the respondent No. 1 Kalka Prasad should deposit in the claims Tribunal the amount of Rs. 10,000/- with interest at the rate of 9 per cent per annum from the date of withdrawal and till the date of deposit, as also the costs of litigation, within a period of two months from the date of this order, which shall be payable to the appellant.