MACA.No.708/2004 & con.case (Cross Objection No.56/2008) & W.P.(C) No.17118 of 2004 v. O.P.(MV) Nos.733/1994 & 734/1994, MACT Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930** **MACA.No. 708 of 2004()** **--------------------------------** ## **OPMV.733/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** **....................** ## **APPELLANT/5TH RESPONDENT:** **------------------------------------------** **P.C.RAMACHANDRAN NAIR, DY.S.P., S.P'S OFFICE, KOLLAM (FORMERLY DETECTIVE INSPECTOR, C.B. C.I.D., KOLLAM), RESIDING AT PULINTHANATHU VEEDU, KILIKOLLUR P.O., KOLLAM.** **BY ADV. SRI.K.SUBASH CHANDRA BOSE** ## **RESPONDENTS/ RESPONDENTS 1 TO 4 & PETITIONERS:** **--------------------------------------------------------------------------------** **1. N.BALASUBRAMANIYAN, THAYYIL VEEDU, MUNDAKKAL.** ## **2. KERALA STATE INSURANCE COMPANY.** ## **3. CHIEF SECRETARY, KERALA STATE.** ## **4. D.I.G OF POLICE, THIRUVANANTHAPURAM.** ## **5. DHARMARAJAN C., NEDUMKADATHODIYIL VEEDU, MUNDAKKAL, KOLLAM.** ## *** ADDL. R6 IS IMPLEADED** ## **ADDL. R6: UNITED INDIA INSURANCE COMPANY, KOLLAM BRANCH** - **ADDL. R6 IS IMPLEADED AS PER ORDER DATED 28/07/2008 IN I.A.3110/2005.** ## **BY SR. GOVERNMENT PLEADER SRI.V.P.K.MOHANAN- R2 TO R4** **ADV. SRI.ALEX N.MATHEW (KOLLAM) - R5** **SRI.H.RAMANAN - R5** **SRI.M.M.VINOD KUMAR - R5 SRI.P.JAYASANKAR - R6** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2008, ALONG WITH CROSS OBJECTION NO.56 OF 2008 AND WPC NO. 17118 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA. NO.708/2004** **ORDER ON I.A. NO.1681/2004 IN MACA.708/2004 DISMISSED 28/07/2008. SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // P.S. TO JUDGE** **Rs/** ## **M.N.KRISHNAN, J** ## **===================== MACA No.708/2004, CROSS OBJECTION NO.56/2008 & W.P.(C)NO.17118 OF 2004** ## **===================== Dated this the 28th day of July 2008 JUDGMENT** W.P.(C)No.17118 of 2004 is preferred against the award of the Motor Accidents Claims Tribunal, Kollam in O.P.(MV)No.734 of 1994 and MACA No.708 of 2004 is preferred against the award in O.P.(MV)No.733 of 1994 of the same Tribunal. The brief facts necessary for the disposal of the cases are that the petitioners in both the claim petitions were travelling in an auto rickshaw which happened to collide with a police jeep resulting in injuries to both of them. The Tribunal awarded a compensation of Rs.40,000/- in O.P.(MV)No.733 of 1994 and a sum of Rs.3,880/- in O.P. (MV)No.734 of 1994. Under the provisions of the Motor Vehicles Act, when an award is passed for less than Rs.10,000/- there is a bar in preferring an appeal by the respondents. So, it is contended that a writ petition is maintainable. 2. On the other hand, it is contended that when there is a specific bar of appeal under Section 173 of the Motor Vehicles Act, that provision cannot be overcome by invoking the original jurisdiction or supervisory jurisdiction of the court under Articles 226 and 227 of the Constitution of MACA 708/2004 & con.case -:2:- India. But, here is a case where a peculiar situation may arise if the opportunity is shut out. Admittedly, the 5[th] respondent in the claim applications is the appellant in both the cases. He was the driver of the police jeep involved in the accident. The Tribunal has found the question of negligence against him. In such a situation, if the finding in one of the cases is allowed to become final by virtue of a statutory bar, then the principles of res judicata will apply and it will bind him in the other case as well thereby refraining him from challenging the question of negligence. But, what the courts have to find out is whether there is an absolute bar to invoke jurisdiction under Article 226 and 227 of the Constitution of India. The Supreme Court in the decision reported in Sadhana Lodh v. National Insurance Co.Ltd.((2003) 3 SCC 524) had held that if there is a bar under Section 115 C.P.C to entertain a revision, then the party can resort to Articles 226 and 227 of the Constitution of India under exceptional circumstances. I had perused Rule 395 of the Kerala Motor Vehicles Rules. That rule specifically stipulates the provisions of C.P.C , i.e applicable to the Tribunal. It can be seen from Rule 395 that Section 115 C.P.C is not made applicable to the Motor Vehicles Act pertaining to claim cases before the Tribunal. So when it is so, there is a prohibition implied that Section 115 C.P.C. Cannot be invoked in motor accident cases. MACA 708/2004 & con.case -:3:- 3. Then the next question will be whether under such circumstances a writ petition can be maintainable. In the decision reported in Oriental Insurance Co.Ltd. v. MACT, Perumbavoor and others(2000(3) TAC 133 (Kerala), this court held that bar created against maintainability of appeal cannot be bypassed by filing an original petition except in extraordinary circumstances. In another decision of this Court reported in Oriental Insurance Co.Ltd. v. MACT and others(1999(2) TAC 225(Kerala), this Court held that when there is a specific bar of appeal the defeated party cannot be permitted to upset the decision of the Tribunal by resort to proceedings under Articles 226 and 227 of the Constitution of India. So, in the light of the decision in 2000(3) TAC 133 and when it is found that there is a bar in approaching the High Court under Section 115 C.P.C on account of the fact that the said provision is not made applicable and only other provisions are made applicable which leads to the conclusion that there is an implied bar if circumstances exist this court under exceptional circumstances is empowered to invoke jurisdiction under Articles 226 and 227 of the Constitution. As stated by me earlier, here is a case where on account of a technicality, the party will loose the right to contest the other appeal also which is perfectly maintainable on account of the principles of res judicata, if the writ petition is not maintainable. Therefore being a very MACA 708/2004 & con.case -:4:- exceptional circumstance I entertain the writ petition. 4. Now we will proceed to decide the case on other materials. The claimant has come forward with a cross objection in MACA No.708 of 2004. The State Government in the writ petition has filed a counter contending that the vehicle is insured with the United India Insurance Company and the present appellant has come forward with an application to implead the State Insurance Company in the appellate stage. So far as the insurance company is concerned, it is totally kept in the dark till this time and therefore the question whether there is a valid policy, whether it is bound to indemnify, whether it is entitled to contest the case under Section 170 of the Motor Vehicles Act, etc. are matters to be decided. So far as the question of negligence is concerned, the police filed a refer report holding that neither the auto driver nor the jeep driver is responsible for the accident. It was not on account of the mechanical defect, act of God or inevitable accident. Therefore, such a reference report is absolutely not correct at least for the purpose of a case under the Motor Vehicles Act. The accident had taken place and the Tribunal would observe that there is a hit on the back. The vehicle was turning. So whether it was really a hit on the back or whether both the drivers had contributed negligence to the accident etc. are matters which require fresh consideration by the Tribunal. I do not MACA 708/2004 & con.case -:5:- want to go deep into the case because it may affect the parties. 5. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration on the question of negligence. Since the insurance company is impleaded here, then necessarily the insurance company has to be given the right to put forward its contention which is permissible under law. The question whether the insurance company is liable to pay interest and ultimately if it is found liable and from which date and who are liable to pay interest, etc. are also to be considered by the Tribunal. 6.So far as the cross objection is concerned, since the matter is going back and as there is a grievance that disability has not been properly considered, the Tribunal may consider that also after hearing all concerned, and find out whether the claimants are entitled to an additional compensation or not. Therefore both the awards passed by the Tribunal are set aside and the matter is remitted back to the Tribunal for consideration of the following: (1) The Tribunal will decide afresh regarding the question of negligence in between the auto driver and the driver of the police jeep, (2) the Tribunal shall permit the United India Insurance Company to file a written statement and if a petition is filed under Section 170, that also may be considered, (3) The question of adequacy of compensation in MACA MACA 708/2004 & con.case -:6:- No.708/2004 be reconsidered by permitting the appellant herein to adduce fresh evidence. Other parties may also be permitted to raise their contentions on the same. If ultimately it is found that there is negligence on the appellant herein and that there is insurance coverage by the United India Insurance Company, the Tribunal shall consider the question of payment of interest, who is liable and to what extent and from which date. The appellant herein is permitted to file a formal application to implead the United India Insurance Company in the claim application for the reason that they are impleaded as a party in the appellate stage. 7. Lastly, the Tribunal shall dispose of the matter in accordance with law. Ultimately, if it is found that the insurance company is bound to indemnify the State then the amount which is already drawn by the claimants in these cases be reimbursed to the appellant on proper applications after the final disposal of the cases. The Tribunal shall try to dispose of the matter as expeditiously as possible. The MACA and writ petition are disposed of as above. The cross objection is also allowed to the above extent. ## **M.N.KRISHNAN, JUDGE** ## **Cdp/-** MACA 708/2004 & con.case -:7:-