K.R. Appukuttan Pillai v. K.S. Radhika Devi and others (MFA Nos. 1054/2000 & 36/2001)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930** **MFA.No. 1054 of 2000(B)** **----------------------OPMV.1846/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** **....................** ## **APPELLANT: 1ST RESPONDENT:** **-------------------------------------------------** **K.R.APPUKUTTAN PILLAI, S/O.RAMAN PILLAI, KRISHNA VILASAM, MANAYILKULANGARA, THIRUMULLAVARAM P.O., KOLLAM – 12.** **BY ADV. SRI.K.P.DANDAPANI (SR.)** **RESPONDENTS: PETITIONERS & RESPONDENTS 2 TO 5:** - **------------------------------------------------------------------------------------** **1. K.S.RADHIKA DEVI, AGED 44, W/O.DECEASED GOPALAKRISHNA PILLAI, ARATHI, KOTTAKKAKOM, KOLLAM – 13.** **2. RAJEEV. G., AGED 20, S/O.DECEASED GOPALAKRISHNA PILLAI, ..DO..DO...** **3. R. DEEPA, AGED 13, D/O.DECEASED GOPALAKRISHNA PILLAI, ...DO..DO..** **4. AMMUKUTTY AMMA, M/O.DECEASED GOPALAKRISHNA PILLAI, ..DO..DO...** **5. THE BRANCH MANAGER, M/S. THE NATIONAL INSURANCE CO.LTD., KOLLAM.** **6. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., KOTTARAKKARA, BRANCH OFFICE, KOTTARAKKARA.** - **ADV. SRI.E.M.JOSEPH FOR R5 SRI.M.JACOB MURICKAN FOR R6** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008 ALONG WITH MFA NO. 36 OF 2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ **ORDER ON C.M.P.NO.5903/2000 IN M.F.A.NO.1054/2000** **==> picture [358 x 180] intentionally omitted <==** **----- Start of picture text -----**<br> DISMISSED<br>31/07/2008 SD/- J.B.KOSHY, JUDGE<br>SD/- V.K.MOHANAN, JUDGE<br>/TRUE COPY/<br>P.A.TO JUDGE<br>**----- End of picture text -----**<br> _Kss_ ## **J.B.KOSHY & V.K.MOHANAN, JJ. --------------------------------------------M.F.A.No. 1054 of 2000 & M.F.A.No. 36 of 2001 --------------------------------------------Dated this the 31[st] day of July, 2008** ## **J U D G M E N T** ## **Koshy,J:** The appellant in these cases is the owner cum driver of a scooter bearing Regn. No.KRU 855. It hit the scooter with Regn. No.KRU 1306. The rider of the scooter bearing Regn.No.KRU 1306 died. The appellant sustained injuries. The legal representatives of the deceased driver filed a claim petition as O.P(MV) No.1846 of 1991 before the Tribunal. The appellant also filed claim petition O.P (MV) No.1094 of 1992 for compensation. The appellant's application for compensation was dismissed on the ground that the accident occurred due to the negligence of the appellant himself. The application filed by the legal representatives of the deceased rider of the other scooter was allowed and the appellant was directed to pay the compensation because, according to the Tribunal, there was no valid insurance at the time of accident. Therefore, two appeals are filed. **MFA Nos.1054/2000 & 36/2001** ## **:-2-:** 2. It is contended that finding of negligence by the Tribunal is not correct as according to the appellant, the scooter of the deceased driver was overtaking a bus and that is the reason for the accident. The Tribunal considered the matter in detail. In paragraph 9 in O.P. (MV) No.1846 of 1991, the Tribunal found as follows:- “It is the admitted case that the accident in dispute, the deceased sustained injuries and injuries sustained in the accident has caused his death. PW1 is the wife of the deceased who is not an occurrence witness. PW2 is an occurrence witness. PW2 has stated that on 20.6.91 at about 9.30, the deceased was riding in his scooter and was coming towards the western side and that scooter having Reg.No.KRU 855 has overtaken his scooter and thereafter it has overtaken an autorikshaw and hit upon the scooter driven by deceased KRU 1306. According to PW2, by the hit the deceased fell on the road and he became unconscious and immediately he was taken to the hospital but reported to have died. PW2 had stated that the accident occurred because of the negligent riding of the scooter KRU 855. R1 is the rider of the scooter KRU 855 involved in the accident. It is contended by R1 that the accident occurred due to the negligence of the deceased. **MFA Nos.1054/2000 & 36/2001** ## **:-3-:** RW1 is the first respondent. He has stated that he was coming from east-west and he had started his scooter at a place in front of the village office where he was working and he was riding at a normal speed and the accident occurred only at a distance of 40M. from the place where he has started riding. According to him, he was riding the scooter at a low speed and the scooter ridden by the deceased was coming from the opposite side at a high speed and while it was overtaking a bus which was parked therein and hit upon his scooter. But in the written statement filed by R1, he has no case that the deceased hit upon his scooter while overtaking the bus parked on the side of the road. Hence, this version given by RW1 can only be an after thought. Ext.A1 is the FIR in crime No.449/91. In Ext.A1, the first respondent herein is arrayed as the accused and he is alleged to have committed offence punishable u/s.279 and 304(A) IPC. Ext.A2 is the copy of the scene mahazar. As per Ext.A2, the scene of occurrence is at distance of 2.95 metres towards the southern side from the northern tar end, and the tar portion of the road is having a width of 6M 65cm. The first respondent was coming from east to west and as per Ext.A2, the place of occurrence is on the northern side of the road and that it is the wrong side of the first respondent, the accident has taken place. Ext.A2 itself is therefore sufficient to hold that the version given by RW1 that while the deceased was **MFA Nos.1054/2000 & 36/2001** ## **:-4-:** overtaking a bus which was parked on the side of the road that the accident occurred is not correct. He has no stated any reason for going to the wrong side of the road and hitting on the scooter. The evidence discussed above would establish that the accident occurred due to the negligence of the first respondent. Issue found accordingly.” 3. We are of the view that on the basis of the evidence adduced in this case, no other finding is possible. The scooter of the appellant was on the wrong side and the story that the scooter of the deceased driver was overtaking a bus cannot be accepted and the Tribunal correctly held that the accident occurred due to the negligence of the appellant himself. We affirm the above finding. 4. The second question to be considered is whether the appellant is entitled to indemnification of the insurance company. The contention of the appellant is that the scooter was covered by a valid insurance policy. It is his case that he paid the insurance premium **MFA Nos.1054/2000 & 36/2001** ## **:-5-:** by cheque and Ext.B1 is the Cover Note issued by the Insurance company covering his vehicle with effect from 11.45 am on 17.6.1991 to 16.6.1992. The above Ext.B1 policy produced by the insurance company shows that it was signed by the authorised representative of the company, the authorised insurer as well as the Region in charge. It also contained the seal of the insurance company which shows that effective insurance started from 17.6.1991 to 16.6.1992. The contention of the Insurance company is that the above Cover Note was issued by the Field Officer in collusion with the appellant and the above Field Officer is a relative of the appellant and disciplinary action was taken against him. It is also contended that the policy was issued only on 1.7.1991 and the accident occurred on 20.6.1991, before the policy was issued. It is further contended that even the proposal form was given only on 1.7.1991 and the vehicle was inspected on the same date and therefore, **MFA Nos.1054/2000 & 36/2001** ## **:-6-:** coverage will start only on 1.7.1991. The office copy of Ext.B4 receipt shows that the date of issuance of receipt is 1.7.1991. These contentions were ipso facto accepted as RW-2, according to the Tribunal, proved these facts. RW-1 is the appellant and RW-2 is the Officer of the Insurance company. Now whether such a finding is justified on evidence is to be considered. It is admitted by RW-2 and certified by the insurance company that the Cover Note is valid up to 15 days from the date of issue. It is written in the Cover Note also that the validity period of the Cover Note will expire on 15 days from the date of issuance of the Cover Note. RW-1 deposed that he went to the Office of the Insurance Company and paid the premium by cheque and a Cover Note was issued on 17.6.1991 itself. According to him, he did not go to the Office of the Insurance Company on 1.7.1991 as he was in the hospital and Ext.B5 proposal form is a forged one. He also stated that he did not **MFA Nos.1054/2000 & 36/2001** **:-7-:** produce the vehicle on 1.7.1991 as he was hospitalised in the period. No question was asked to RW1 regarding the alleged relationship of RW1 and the Filed Officer of the insurance company as alleged in the written statement. RW-2 was examined to prove the version of the insurance company. He was the Divisional Manager of the insurance company. He admitted that the Cover Note is valid for 15 days and according to him, Ext.B3 Insurance Policy was issued and it is valid from 1.7.1991 to 30.6.1992. The office copy of the receipt was marked as Ext.B4. According to him, the appellant himself gave Ext.B5 Proposal Form on 1.7.1991. Inspection of the vehicle was caused on 1.7.1991. The vehicle was produced by RW1, but in the office copy of Ext.B6 Cover Note, it is mentioned that the policy is valid from 17.6.1991. B1 and B6 tallies. Therefore, it is not disputed that the Cover Note shows that insurance is valid from 17.6.1991. He also stated that premium ## **MFA Nos.1054/2000 & 36/2001** ## **:-8-:** amount in cash was received on 1.7.1991 and the amount was paid by cheque. He also stated that the cheque dated 17.6.1991 was received subsequently after the issuance of Cover Note. He also stated that the Cover Note was issued by the Field Officer and he has got authority to issue the Cover Note. Even though it is stated that disciplinary action was taken against the Field Officer, no evidence was produced to prove the same. He deposed that cover note has validity of 15 days from 17.6.1991. Ext.B3 policy was issued before the expiry of the Cover Note. He was asked a specific question as to whether the above statement (Ext.B3 policy was issued not after the expiry of the validity of the Cover Note) was a false one. No answer was given. As already stated, the Cover Note is valid for 15 days. Therefore, on 1.7.1991 the policy was issued. It adds to the contention of the appellant that the Cover Note was issued correctly and before the expiry of the validity, **MFA Nos.1054/2000 & 36/2001** ## **:-9-:** policy was issued. He also stated that before the issuance of Proposal Form, Cover Note cannot be issued. The Officer has stated that the cheque was changed to cash. He did not explain when the cheque was received by the company and when the cheque was presented. He did not answer to the specific question as to whether he was telling lie that there was no valid policy. He also stated that there were typing errors in B2 which were erased. Ext.B1 equivalent to Ext.B6 is the Cover Note issued by the insurance company which bears the signature of the company. It is signed not only by the authorised representative of the company, the authorised insurer as well as the Region in charge which shows that the vehicle was insured from 17.6.1991 which is valid for 15 days. 5. We have perused the signature of the proposer in the proposal form dated 1.7.1991 as well as the signature of the appellant in the deposition, vakalath **MFA Nos.1054/2000 & 36/2001** ## **:-10-:** filed before the Tribunal etc. and we see that the signature in the Proposal Form is not at all comparable when compared with the signature of the appellant in the deposition and vakalath filed before the Tribunal. It adds to the contention of the appellant that he did not sign the Proposal Form on 1.7.1991. However, we also note that he has specifically stated before the court that it is a forged one and he was hospitalised during the period and he was unable to produce the vehicle for inspection on 1.7.1991. But, RW2 stated that the appellant himself has produced the vehicle for inspection. Exts.A5 wound certificate and A6 discharge card and A7 case records would show that he was hospitalised on 1.7.1991. Therefore, the statements of RW2 that the appellant went to the Insurance Office and produced the vehicle and signed the Proposal Form cannot be believed. It is pertinent to note that before the claim petition was filed, even though Ext.B6 Cover **MFA Nos.1054/2000 & 36/2001** ## **:-11-:** Note was issued which was marked by RW2, no communication was sent cancelling the same. 6. In a decision reported in **Oriental Insurance Company Limited** v. **Inderjit Kaur and others** [(1998)1 SCC 371] , a three member Bench had held in para Nos.9 and 11 as follows:- “9. We have, therefore, this position. Despite the bar created by Section 64-VB of the Insurance Act, the appellant, an authorised insurer, issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act, the appellant became liable to indemnify third parties in respect of the liability which that policy covered and to satisfy awards of compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that the cheque issued in payment of the premium thereon had not been honoured.” “11. We may note in this connection the following passage in the case of **Montreal Street Rly.Co.** v. **Normandin** . ## **MFA Nos.1054/2000 & 36/2001** ## **:-12-:** “When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.” In the above case, the cheque issued was dishonoured. Here, the cheque issued was encashed and therefore, the insurance company is also liable from the date mentioned in the Cover Note. Therefore, on the facts of this case and also on evaluation of facts, we are of the view that there is a valid coverage of insurance at the time of accident and therefore, the amount awarded as third party statutory liability in O.P.(MV) No.1846 of 1991 due to the legal representatives of the deceased scooterist is to be paid by the insurance company. The **MFA Nos.1054/2000 & 36/2001** **:-13-:** amounts deposited by the appellant in M.F.A.No.1054 of 2000 should be reimbursed to him. Considering the delay in disposing of the long pending matter, we reduce the interest awarded from 12% to 9%. M.F.A.No.1054 of 2000 is accordingly allowed. MFA No. 36 of 2001, regarding the claim of the appellant in O.P(MV) No.1094 of 1992, is dismissed as we have affirmed the finding of the Tribunal that the accident occurred due to his own negligence. ## **J.B.KOSHY, Judge.** ## **V.K.MOHANAN,Judge.** MBS/ **MFA Nos.1054/2000 & 36/2001** **:-14-:** **J.B.KOSHY & V.K.MOHANAN, JJ.** -------------------------------------------- **MFA Nos.1054/2000 & 36/2001** -----------------------------------J U D G M E N T DATED:31-7-2008 ## **MFA Nos.1054/2000 & 36/2001** **:-15-:**