The New India Assurance Co. Ltd. v. Government of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933** **WP(C).No. 30526 of 2010(M)** **-----------------------------------------** ## **PETITIONER(S):** **-------------------------** **THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMARAN NAIR, MANAGER), REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011.** **BY ADV. SRI.M.JACOB MURICKAN** ## **RESPONDENT(S):** **---------------------------** **1. THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 014.** **3. THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL, PIN-695 101.** **4. K.R.BEENA, W/O.LATE DR.SUDHAKARAN NAIR, "THAPASYA", HOUSE NO.12/193, PALAYAM, NEDUMANGADU, NEDUMANGADU P.O., THIRUVANANTHAPURAM-695 561.** **5. INDU SUDHAKARAN,** - **D/O.LATE DR.SUDHAKARAN NAIR, "THAPASYA",HOUSE NO. 12/193, PALAYAM, NEDUMANGADU, NEDUMANGADU PO, THIRUVANANTHAPURAM-695 561.** **..2/-** **Kss** **..2...** ## **WPC.NO.30526/2010 M** **6. NANDA KUMAR (MINOR), S/O.LATE DR.SUDHAKARAN NAIR, "THAPASYA",HOUSE NO. 12/193, PALAYAM, NEDUMANGADU, NEDUMANGADU PO, THIRUVANANTHAPURAM-695 561, REPRESENTED BY THE 4TH RESPONDENT (MOTHER) AS NEXT FRIEND AND GUARDIAN.** - **7. V.KUNJUKRISHNA PILLAI,** **S/O.LATE KUTTAN PILLAI, KAITHARA PUTHEN VEEDU, CHENKOTTUKONAM, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM DISTRICT, PIN 695 587.( D I E D)** **8. AJAYKUMAR, S/O.GOPALAKRISHNAN ACHARI.N., 'RAJASREE', HOUSE NO.X/567(A), PANAVOORKUZHI, NCC ROAD, PEROORKKADA P.O., THIRUVANANTHAPURAM, PIN 695 005.** **9. GOPAN, S/O.CHARLES, LAL BHAVAN, RANNI LANE NO.2, VAZHAYILA, PEROORKKADA P.O., THIRUVANANTHAPURAM-695 005.** **10. LEELA BAI.E., W/O.GOPAN, LAL BHAVAN, RANNI LANE NO.2, VAZHAYILA, PEROORKKADA P.O., THIRUVANANTHAPURAM-695 005.** ## ***ADDL.R11 TO R15 IMPLEADED:** - **R11. K.SREEDHARAN PILLAI, S/O.LATE V.KUNJUKRISHNA PILLAI, KAITHARA VEEDU, CHENKOTTUKONAM, CHEMPAZHANTHY PO, THIRUVANANTHAPUARAM - 695 587.** - **R12. K.SASIDHARAN NAIR, S/O. LATE V.KUNJUKRISHNA PILLAI, KAITHARA VEEDU, CHENKOTTUKONAM, CHEMPAZHANTHY PO, THIRUVANANTHAPUARAM - 695 587.** - **R13. K.VIDYADHARAN NAIR, S/O.LATE V.KUNJUKRISHNA PILLAI, KAITHARA VEEDU, CHENKOTTUKONAM, CHEMPAZHANTHY PO, THIRUVANANTHAPUARAM, PIN - 695 587.** **..3/-** **Kss** **...3....** ## **WPC.NO.30526/2010 M** - **R14. SUJATHA, D/O.LATE V.KUNJUKRISHNA PILLAI, CHITHIRA HOUSE, THAALIPARAMBA, VENCODE PO, PARIYARAM, NEDUMANGAD, THIRUVANANTHAPUARAM - 695 028.** - **R15. SUBHASHINI, D/O.LATE V.KUNJUKRISHNA PILLAI, KARTHIKA, NEW AISWARYA NAGAR, H.NO.150, THEMPURAM JUNCTION, VADAKKEVILA PO, KOLLAM - 691 017.** - **(*ADDL.R11 TO R15 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES** - **OF THE DECEASED 7TH RESPONDENT VIDE ORDER DTD. 10/01/2011 IN I.A.NO.141/2011)** **R1 TO R3 BY PUBLIC PROSECUTOR SRI. MANU R4 TO R6 BY ADV. SRI.NAGARAJ NARAYANAN,** **SRI.RAJAN VELLOTH, SRI.SAIJO HASSAN, SRI.PRATHAP PILLAI, SRI.BENOJ C AUGUSTIN, SRI.SEBIN THOMAS.** **R8 BY ADV. SRI.MANUEL KACHIRAMATTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.30526/2010 M** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE AWARD IN OP(MV) NO.1799/2002 PASSED BY THE MACT, ATTINGAL DTD. 23/05/2009.** - **P2: COPY OF THE REQUEST SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE 2ND RESPONDENT, DTD. 12/01/2010.** - **P3: COPY OF THE SCHEDULE OF ATTACHMENT FILED BY THE RESPONDENTS 4 TO 7 BEFORE THE MACT, ATTINGAL.** - **P4: COPY OF THE FIR NO.697/2002 DTD. 01/05/2010.** - **P5: COPY OF THE VEHICLE MAHAZAR DTD. 01/05/2002.** - **P6: COPY OF THE REPORT OF THE MOTOR VEHICLE INSPECTOR RELATING TO THE MOTOR CYCLE NO.KCT 269 DTD. 09/05/2002.** - **P7: COPY OF THE REPORT OF THE MOTOR VEHICLE INSPECTOR RELATING TO THE MOTOR CYCLE NO.KL-7/L-4297 DTD. 09/05/2002.** - **P8: COPY OF THE REPORT OF THE MOTOR VEHICLE INSPECTOR RELATING TO THE MOTOR CYCLE NO.KL-1/J 4081 DTD. 07/06/2002.** - **P9: COPY OF THE CHARGE SHEET NO.1384/2002 DTD. 11/11/2002.** - **P10: COPY OF THE FINDING OF THE INVESTIGATING AGENCY (SIXTH SENSE, THIRUVANANTHAPUARAM) WITH THEIR SEAL DTD. 11/10/2010.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **THOMAS P JOSEPH, J.** **----------------------------------------** **W.P(C).No.30526 of 2010** **---------------------------------------** **Dated this 01[st] day of June, 2011** ## **JUDGMENT** The New India Assurance Company Ltd, insurer of motor cycle with registration No.KL-01J 4081 is the petitioner in this writ petition seeking a direction or order directing the second respondent/Director General of Police to direct fresh investigation as prayed for in Ext.P2, request made by the petitioner to the second respondent, declare that Ext.P1, award passed by the M.A.C.T, Attingal in O.P(M.V).No.1697 of 2002 is null and void having being obtained by fraud and to stay execution of the said award. Two cases were filed before the M.A.C.T, Attingal - O.P(M.V).Nos.1799 of 2002 and 2245 of 2002 the former, by the legal representatives of the deceased, Dr.Sudhakaran and the latter, by the eighth respondent who claimed to have sustained injuries in the accident. In those claim petitions it was alleged by the claimants that the accident occurred on 30.04.2004 involving three motor cycles bearing registration numbers KL-01/C-4297 which was ridden by the deceased, KCT-269 ridden by the eighth respondent and KL-01J 4081 ridden by Prabhakara Menon. The last of those vehicles W.P(C).No.30526 of 2010 -: 2 :- was insured with petitioner. The Tribunal found that accident occurred due to the negligence of the said Prabhakara Menon in that the motor cycle with registration number KL-01J 4081 which he was riding hit motor cycle with registration registered number KCT-269 which in turn hit motor cycle with registration number KL-7/L 4297 which deceased Dr.Sudhakaran was riding and accordingly awarded compensation in both the cases in favour of claimants directing the amount to be deposited by petitioner/insurer of KL-01J 4081. It is not disputed before me that the awards were not challenged by petitioner or any other party involved in the claim petitions. According to the petitioner, since the amount involved exceeded the limit of Divisional office, the matter was referred to its Regional office, Ernakulam where the legal unit expressed some doubt as to the involvement of motor cycle with registration number KL-01J 4081. They felt that the said vehicle was fraudulently brought into the picture since the motor cycle bearing registration number KCT-269 had no valid policy at the relevant time. Thereon, petitioner engaged a private investigator to enquire into the matter. He enquired and submitted Ext.P10, report stating that motor cycle with registration number KL-01J 4081 is not involved in the accident. In the meantime, the City Traffic Police, Thiruvananthapuram W.P(C).No.30526 of 2010 -: 3 :- who had registered Crime No.697 of 2002, after investigation submitted final report against Prabhakara Menon, rider of motor cycle with registration number KL-01J 4081. Learned Judicial First Class Magistrate-I, Thiruvananthapuram took cognizance of the offence and took the case on file as C.C.No.551 of 2002. During the pendancy of that case, Prabhakara Menon, alleged rider of motor cycle with registration number KL-01J 4081 expired and the case was closed as the charge abated. 2. Following Ext.P10, report of the private investigator petitioner preferred Ext.P2, representation to the second respondent requesting further/re-investigation (as the case may be) setting out its case. Petitioner alleged that in spite of Ext.P2, representation, no action was taken in the matter and hence this writ petition seeking reliefs above mentioned. Learned counsel for petitioner contends that the statement submitted by the Assistant Commissioner of Police, City Traffic, Thiruvananthapuram bears testimony for the plea of petitioner that motor cycle with registration number KL-01J 4081 was falsely implicated in the case to ensure that compensation was obtained from the petitioner since the vehicle actually involved, KCT-269 had no valid policy of insurance at the time of accident. Learned counsel therefore prayed that there may be a direction W.P(C).No.30526 of 2010 -: 4 :- for further/re-investigation of the case and in view of the fraud played by the claimants and others, the award being a nullity be set aside. Learned counsel has placed reliance on the decision in ## **United India Assurance Co.Ltd Vs. Rejendra Singh and Ors.** **(AIR 2000 SC 1165)** where it is held that an order obtained by fraud cannot be recognised by any Court and that it is open to the insurer to challenge the award in appeal as well on the ground of fraud. Learned counsel for contesting respondents argue that Ext.P10, report of the private investigator has no value under law, no further or re-investigation is required and that in O.P (M.V).No.2245 of 2002 filed by the eighth respondent, the rider of motor cycle with registration number KCT-269 petitioner has deposited the amount even without a murmer, none of the awards have been challenged by petitioner as provided in the statute so far, no contention also was taken in the written statement regarding the alleged fraud and hence this Court may not interfere with the award in O.P(M.V).No.1799 of 2002. Learned Public Prosecutor submitted that the Assistant Commissioner of Police, Traffic North, Thiruvananthapuram submitted report before learned Judicial First Class Magistrate-I, Thiruvananthapuram and has taken over further/re-investigation of the case and that in such investigation, it was revealed that the W.P(C).No.30526 of 2010 -: 5 :- motor cycle with registration number KL-01J 4081 was not involved in the accident. Learned Public Prosecutor was however not able to tell me whether any final report has been filed pursuant to the further/re-investigation as the statement was filed by the Assistant Commissioner of Police as early as on December 20, 2010. 3. It is the settled position of law that an order obtained by fraud and collusion is not to be recognised by any Court and that even in collateral proceedings such order could be challenged on the ground that it is vitiated by fraud and collusion. That is because an order obtained by fraud or collusion has no force or sanctity under law. Authority for the proposition is available in the decisions in **Jai Narain Parasrampuria (Dead) vs. Pushpadevi Saras and Ors. ((2006) 7 SCC 756), Hamsa Haji Vs. State of Kerala** (( **2006)7 SCC 416) and A.V Papayya Sasthri Vs. Govt. of A.P ((2007) 4 SCC 221).** 4. However, the question where exactly is the allegation of fraud or collusion is to be raised requires consideration. No doubt, in collateral proceedings also such question could be raised but, this writ petition is not a collateral proceeding so far as O.P(M.V).No.1799 of 2002 is concerned. In **Hamsa Haji Vs.** W.P(C).No.30526 of 2010 -: 6 :- ## **State of Kerala** (supra) the Supreme Court held that “when seeking to question the decision as vitiated by fraud, the proper course to adopt was to move the Court that had tendered the decision, by an application ............. The basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof”. 5. True that the Assistant Commissioner of Police in his statement dated December 20, 2010 has pointed out that in the further/re-investigation it was revealed that the Sub Inspector, Traffic Police station arrayed the rider (Prabhakara Menon) of motor cycle with registration number KL-01J 4081 as an accused on the strength of statement of two witnesses but in the further investigation, it was revealed that the said person or motor cycle are not involved in the accident. But, merely based on that statement this Court cannot quash the award in O.P(M.V). No.1799 of 2002 as obtained by fraud or collusion. As I pointed out, that is a matter which the Court which passed the award has to decide in case a proper application is moved by the party aggrieved in that regard. I leave the affected party to that course. 6. So far as further/re-investigation conducted by the Assistant Commissioner of Police as above stated is concerned, W.P(C).No.30526 of 2010 -: 7 :- that should take its course. In view of further/re-investigation which conducted by the Assistant Commissioner of Police as above stated, it is not necessary to issue any further direction in that regard. Resultantly this writ petition is disposed of without prejudice to the right if any of petitioner to move the M.A.C.T, Attingal to recall the award/awards passed in the cases concerned on the ground of (alleged) fraud or collusion etc as provided under law. It is open to the respondents to defend such application on appropriate ground. I make it clear that I have not expressed any opinion either way on the merit or otherwise of the contention regarding fraud or collusion. Further/re-investigation conducted by the Assistant Commissioner of Police, City Traffic, Thiruvananthapuram shall take its course as provided under law. Execution of award in O.P(M.V).No.1799 of 2002 of the M.A.C.T, Attingal will stand in abeyance for a period of one month from this day. ## **(THOMAS P JOSEPH, JUDGE)** Sbna/- /True Copy/ P.A to Judge