Oriental Insurance Co. Ltd. v. Ganesan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF JUNE 2021 / 3RD ASHADHA, 1943 MACA NO. 1624 OF 2007** **AGAINST THE AWARD IN OP(MV)NO. 1061/2000 OF THE MOTOR** # **ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/3RD RESPONDENT:** **ORIENTAL INSURANCE CO.LTD KUNNAMKULAM, REPRESENTED BY ITS, ASSISTANT MANAGER, REGIONAL OFFICE,, ERNAKULAM NORTH, KOCHI-18.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/CLAIMANTS:** **1 GANESAN, S/O.SANKARANKUTTY, (DIED) APPANEDATH HOUSE P.O., ENGANDIYUR, THRISSUR DT., REP. BY HIS MOTHER KAMALA, W/O.SANKARANKUTTY,, APPANEDATH HOUSE, P.O.ENGANDIYUR, THRISSUR DT.** **2 KUTTAN S/O.VELAYUDHAN CHITTILEDATH HOUSE, P.O., VATANAPPILLY, THRISSUR DISTRICT.** **3 K.T.NATARAJAN KANNACHANPURAKKAL HOUSE. P.O., VATANAPPILLY, THRISSUR.** ***ADDL.R4 SMT.KAMALA W/O SANKARANKUTTY, APPANEDATH HOUSE,** _MACA No. 1624 of 2007_ _2_ **P.O ENGANDIYUR, THRISSUR DISTRICT,** **(THE LEGAL HEIR OF THE DECEASED FIRST RESPONDENT IS IMPLEADED AS THE ADDL 4TH RESPONDENT AS PER ORDER DATED 11/9/13 IN IA NO.2459/2013.)** **BY ADVS. SRI.A.R.GEORGE(B/O) SRI.P.V.CHANDRA MOHAN SRI.RAJIT SRI.RANJIT BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 1624 of 2007_ _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1624 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of June, 2021 ## **JUDGMENT** The appellant ― insurance company ― was the 3[rd] respondent in OP (MV) No.1061 of 2000 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the petitioner and respondents 1 and 2, respectively in the claim petition. The additional 4[th] respondent in the appeal is the legal representative of the deceased 1[st] respondent. In fact, the additional 4[th] respondent is the mother of the deceased 1[st] respondent, who had represented him before the Tribunal as his next friend. The parties are, for the sake of convenience, wherever the context so requires referred to as per their status in the claim petition. 2. The congealed facts in the claim petition, relevant for the determination of the appeal are: on 17.11.1999 at about 4.30 p.m., while the petitioner was riding his motorcycle _MACA No. 1624 of 2007_ _4_ bearing registration No.KBE 3083, along the VatanappallyChettuva National Highway No.17 from north to south, when he reached Ezhamkallu Katti Colony, an autorickshaw bearing registration KL8/A.8083 (offending vehicle) proceeding in front of the petitioner suddenly turned towards the eastern side without giving any signal. The petitioner lost control of his motorcycle and hit on the rear side of the autorickshaw and then dashed against a tree and sustained serious injuries. He was treated as an inpatient at the M.I. Hospital, Engandiyur and, thereafter, at the West Fort Hospital, Thrissur, till 30.12.1999. The petitioner went into a comatose state. The accident occurred solely due to the negligence on the part of the 1[st] respondent. The 2[nd] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer. The petitioner was employed in the Gulf and was earning Rs.5,000/- per month. The respondents were jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.12,86,000/-, but limited to Rs.10,00,000/- _MACA No. 1624 of 2007_ _5_ 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent filed a written statement, i _nter alia,_ contending that the offending vehicle was not involved in the accident. On the alleged date of accident, the offending vehicle was in the workshop. It was only when the 2[nd] respondent received the summons from the Tribunal he became aware that his vehicle was allegedly involved in an accident. Nevertheless, the vehicle was insured with the 3[rd] respondent. 5. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy from 17.11.1999 to 16.11.2000, but the policy was obtained by suppressing material facts. The 2[nd] respondent had issued a letter to the 3[rd] respondent stating that the vehicle was not involved in any accident as it was in the workshop since 13.09.1999. The 2[nd] respondent had not authorised any person to take the vehicle from the workshop. Even though the _MACA No. 1624 of 2007_ _6_ accident took place on 17.11.1999, the FIR was registered only[st] on 18.12.1999. The petitioner is a close relative of the 1 respondent and there is collusion between them to grab money from the 3[rd] respondent. The vehicle was taken into custody only on 27.12.1999. The autorickshaw was allegedly released to the 1[st] respondent, which is unusual, as he is not the registered owner of the vehicle. The compensation claimed under the different heads was excessive. 6. The mother of the petitioner and an independent witness were examined as PWs1 and 2 and Exts.A1 to A14 were marked. The 2[nd] respondent was examined as RW1 and Exts.B1 to B9 were marked in evidence. 7. The Tribunal allowed the claim petition, in part, by directing the 3[rd] respondent to pay an amount of Rs.5,51,900/with interest at the rate of 7% per annum from 29.04.2000 till the date of actual payment along with proportionate costs. 8. Aggrieved by the impugned award, the 3[rd] respondent is in appeal. _MACA No. 1624 of 2007_ _7_ 9. Heard Sri.George Cherian, the learned Senior Counsel appearing for the appellant/3[rd] respondent, Sri.R.Rajit, the learned Counsel who was appearing for the deceased 1[st] respondent and also who was permitted to make his submissions on behalf of the additional 4[th] respondent, who is stated to be indisposed, and the learned Government Pleader appearing for the State. 10. Sri.George Cherian argued that the instant case is a classic example of how a vehicle is planted in a bogus insurance claim by perpetrating fraud. He illustrated the following instances, to drive home his contention that there is collusion between the petitioner and the 1[st] respondent in connivance with the Police, namely (i) the alleged accident took place on 17.11.1999, but Ext.A1 - FIR was registered only on 18.12.1999 (ii) As per Ext.B8 seizure mahazar the offending vehicle was seized on 28.12.1999, but the motor vehicle inspection was conducted on 27.12.1999 as per Ext.B2, which is impossible (iii) RW1 ― the 2[nd] respondent ― the owner of _MACA No. 1624 of 2007_ _8_ the offending vehicle had categorically deposed that the vehicle was in the workshop on the date of accident (iv) the vehicle was allegedly produced before the police by the 1[st] respondent and released to him without the authority of the 2[nd] respondent (RW1) as evident from Ext.B8 seizure mahazar, which is impermissible in law (v) the brother of the petitioner had filed Ext B-6 claim petition before the same Tribunal claiming compensation on behalf of the petitioner, giving a totally contradictory version than what is pleaded in the present claim petition etc. He emphatically argued that the instant case is concocted for the purpose of grabbing public money, which may not be permitted. He hence contented that the appeal be allowed and the claim petition be dismissed. 11. Sri.R.Rajit contended that a proceeding under the Motor Vehicles Act, 1988 is summary in nature, and there is no necessity to conduct a roving enquiry. The Tribunal based on the pleadings and materials on record has rightly arrived at a conclusion that the offending vehicle was involved in the _MACA No. 1624 of 2007_ _9_ accident. Therefore, the appellant insurance company is liable to indemnify the liability of the owner of the vehicle. Exts.A1 FIR A2 FIS and Ext.A3 scene mahazar all substantiate that the accident was caused due to the negligence of the 1[st] respondent. Moreover, the appellant has not let in contra evidence to discredit the oral testimony of PW1 and Pw2 and materials on record, as held by this Court in New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648]. There is no merit in the appeal, which is only to be dismissed. 12. Consequent to the directions of this Court on 16.01.2020, the learned Government Pleader has filed a memo dated 07.02.2020 producing the statement of SHO, Vatanappilly Police Station along with a copy of the chargesheet filed in Crime No.344 of 1999, which was registered against the 1[st] respondent for offences punishable under Sections 279 and 338 of the Indian Penal Code. 13. The questions that emanate for consideration in the appeal are: _MACA No. 1624 of 2007_ _10_ (i) Whether the impugned award is sustainable in law? (ii) Whether there are cogent reasons to remand the matter to the Tribunal for fresh consideration? 14. The specific case of the petitioner in the claim petition was that while he was riding his motorcycle on 17.11.1999, the offending vehicle which was proceeding in front of him suddenly turned towards the eastern side without giving any signal and he hit on the rear side of the autorickshaw and then he dashed against a tree and sustained injuries. 15. Admittedly, the FIR was registered only on 18.12.1999 i.e., a month after the accident. The offending vehicle was seized by the police on 28.12.1999 as reflected in Ext.B8 seizure mahazar. Strangely, in Ext.B2 motor vehicle inspection report, the inspection of the vehicle was conducted by the Assistant Motor Vehicles Inspector on 27.12.1999. How the inspection was conducted on the previous day of seizure stands shrouded in mystery. Likewise, on what basis the Police _MACA No. 1624 of 2007_ _11_ allegedly seized the vehicle from 1[st] respondent and released the same to him on the same day, when admittedly he was not the registered owner of the vehicle is not seen explained anywhere. 16. On a re-appreciation of the oral testimony of PW1 ― the next friend of the petitioner, it is seen that she had initially deposed that the accident occurred while the offending vehicle was coming from the opposite direction. Subsequently, she took a volte face and deposed in tune with the averments in the claim petition. Even more glaring are the contradictions in Ext. B-6 claim petition, filed by the petitioner’s brother at the first instance, wherein it is pleaded that the petitioner was a pillion rider on the motor cycle ridden by his friend and the petitioner was working a broker getting a monthly income of Rs.15,000/-. 17. The 2[nd] respondent had specifically pleaded that his vehicle was not involved in the accident and on the alleged date of accident the offending vehicle was in the workshop. _MACA No. 1624 of 2007_ _12_ Moreover, the 2[nd] respondent corroborated his pleadings by giving evidence as RW1. He emphatically deposed that his vehicle was in the workshop on the eventful day; that the petitioner was a close relative of the 1[st] respondent and they were in cahoots with each other. 18. Even more suspicious is the final report produced before this Court in Crime No.344 of 1999, the date is 30.02.2000; a date non-existent in the English calendar. 19. Now, whether the above suspicious final report was intentionally not produced before the Tribunal or not is a matter to be probed into. 20. Assuming that the final report is genuine and the 1[st] respondent was negligent in causing the accident as found by the Police, the same has fallen into a pale of insignificance in light of the evidence of RW-1 and the law laid down by this Court in Pazhaniammal (supra) and Kolavan v. Salim [2018 (1) KLT 489]. 21. The 3[rd] respondent had also specifically contended that _MACA No. 1624 of 2007_ _13_ the 2[nd] respondent had issued a letter to them stating that the vehicle was not involved in the accident, as it was given to the workshop on 13.09.1999; that the 2[nd] respondent had not authorised any person to take the vehicle from the workshop; that the petitioner was a close relative of the 1[st] respondent and there is collusion between them to grab money from the 3[rd] respondent. 22. Although the above definite contentions were raised by the respondents 2 and 3, unfortunately, none of these aspects were dealt with by the Tribunal while deciding Issue Nos.1 and 4. 23. In fact, in Issue No.1 the Tribunal had taken note of the contradiction in the oral testimony of PW1, but simply brushed aside the same without giving any reason. Similarly, the Tribunal blindly accepted the explanation of PW1 regarding the delay in lodging the FIR, that it was because of the laxity on the part of the hospital authorities. 24. There is no discussion or reasons given in the award _MACA No. 1624 of 2007_ _14_ regarding the contradictions in the claim petition and Ext.B6, how the vehicle could be inspected by the AMVI on the previous day of seizure, how the vehicle reached the hands of the 1[st] respondent when its owner (RW1) had stated that vehicle was in the workshop, how the vehicle could be released to a third party without the intervention of the Court as per the procedure prescribed in the Code of Criminal Procedure. 25. It is also interesting to note that in Ext.B2 inspection report no damage is seen on the offending vehicle. Nonetheless, the Tribunal has entered a finding that the vehicle might have been repaired, which is nobody’s case. The Tribunal has also rendered a finding that as the insurance policy of the offending vehicle was issued by the 3[rd] respondent on 17.11.1999 i.e., on the date of accident, the vehicle might have been taken for inspection to the 3[rd] respondent. Again, I do not find any material on record for the Tribunal to have arrived at the said findings. 26. On an overall re-appreciation of the pleadings and _15_ _MACA No. 1624 of 2007_ materials on record, I find that there are inconsistencies in the pleadings, contradictions in the testimonies of witnesses and incongruities in the materials on record, which were not adverted or dealt with by the Tribunal. The Tribunal has decided the claim petition in an unilateral and slipshod manner and against the ratio decidendi in Pazhaniammal and Kolavan (supra), especially when the respondents had let in oral and documentary evidence and the final report was not placed on board. Therefore, I hold that the impugned award is unsustainable in law for non-adverting to all the contentions raised by the respondents. 27. Even though I am fully conscious of the mandate under Order XLI Rule 23 A of the Code of Civil Procedure, I am of the firm opinion that there are cogent reasons and grounds warranting the invocation of the power of this Court under Order XLI Rule 23 A to remand the claim petition to the Tribunal for fresh consideration for the purpose of deciding on all the contentions raised by both sides, which would subserve _MACA No. 1624 of 2007_ _16_ the ends of justice. Thus, I answer question No.2 accordingly. In the result I allow the appeal by setting aside the impugned award in M.V.O.P 1061/2000 of the Motor Accidents Claims Tribunal, Thrissur. M.V.O.P 1061/2000 is remitted back to the Tribunal for fresh consideration, to decide on all the contentions raised by both sides, in accordance with law, untrammelled by any observation made by this Court in this judgment. The parties are at liberty to let in additional evidence, if any. Considering the fact that the 1[st] respondent is no more and that the 4[th] respondent is indisposed, I direct the Tribunal to issue notice to parties for their appearance. As the claim petition is of the year 2000, an endeavour shall be made by the Tribunal to dispose the claim petition as expeditiously as possible. The Registry is directed to forthwith transmit the lower court records to the Tribunal. The parties shall bear their respective costs. **Sd/C.S.DIAS, dlK 24.06.2021 JUDGE**