Common questions of law and fact arises for decision making and hence with the consent of the Learned Counsel for the parties, the petitions are clubbed together, finally heard and disposed of by this common order.

2. These petitions arise to of a common order dated 01.01.2008 dismissing Misc.Nos.262/2006 and 263/2006 of the Motor Accidents Claims Tribunal, Bangalore, for short MACT.

3. Facts in brief are:

The petitioner New India Assurance Company when arraigned as party respondent in the claim petitions registered as MVC Nos. 492/2003 and 4694/2006 before the MACT, for compensation, invoking Section 166 of the Motor Vehicles Act, 1988, entered appearance and opposed the claims by filing statement of objections, inter alia denying the claim, while admitting the fact of issuing a policy of insurance for the motor vehicle being a tempo maxi cab bearing certificate of registration No. KA 21 – 1162 effective for the period 22.03.2002 to 21.03.2003 indemnifying the owner, of the maxi cab from claims arises out of an accident. The accident involving the Motor Vehicle occurred on 10.12.2002 leading to injuries and death of the passengers travelling in the vehicle. The MACT on the basis of material on record including the evidence both oral and documentary, returned a finding of negligence on the driver of the motor vehicle in question and as the vehicle was insured by the petitioner, clamped on it, the liability to pay the compensation by common judgment and award dated 20.03.2006 in MVC No. 492/2003 and 4694/2006.

The petitioner having noticed the report dated 21.01.2003 of its surveyor disclosing that the maxi cab bearing registration No.KA 21 – 1162 was not involved in the accident, but was the motor vehicle being a maxi cab bearing registration No. KA 07 2148 owned by K Shashi Kumar who allegedly, immediately after the accident, swapped the number plate of the vehicle KA 07 2148 by fixing the number plate bearing No. KA 21 1162 and that the chassis number of the vehicle involved in the accident was punched with two numbers the first being No. 357010 J 93808900, said to be the original with neat punch marks, on proper alignment, at proper place on the left long members of the chassis belonging to vehicle bearing registration No.KA-07-2148, while the other number 357012-MWQ 816770 punched on the chassis at a different location with improper alignment in a haphazard manner belonging to vehicle bearing certificate of registration No.KA 21 1162 (insured vehicle). The report is said to have disclosed a manipulation in the engine number, 497SP21 – MWQ 733003 on the engine allegedly slit/cut by the use of an axe, without mounting, though that engine belongs to the motor vehicle bearing registration No.KA 21 – 1162 (insured vehicle). In the premise of the report, the petitioner suspecting the insured to have played a fraud the petitioner Insurance Company filed Misc.Nos.262/2006 and 263/2006 before the MACT, to set aside the Judgment and award dated 20.03.2006 in MVC 492/03 and 4694/06, in so far as it relates clamping liability on it to pay the compensation.

The owner of the motor vehicles arraigned as party respondent No. 1 on being served with the notice of the Misc. petitions before the MACT, remained absent and was placed exparte. The claimants arraigned as second respondent in each of the petitions, on notice, entered appearance, filed statement of objections denying the claim, before the MACT. The petitioner examined two witnesses its official Sri.Chidambaram PW.1 and Surveyor Sri. S N Venugopal PW2, and marked Exs.P1 to P10, while for the 2nd respondent, the brother of the first respondent-owner of the vehicle was examined as RW1 and no documents were marked.

The MACT having regard to the material on record and the evidence both oral and documentary, held that the petitioner failed to establish the alleged fraud since RW1 was not examined as petitioners witness to corroborate the evidence of PW2 the Surveyor who c