United India Insurance Co. Ltd. v. Komalam and others (MACA No. 2639 of 2008)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY ,THE 10TH DAY OF DECEMBER 2018/19TH AGRAHAYANA, 1940** ## **MACA.No. 2639 of 2008** **AGAINST THE AWARD IN OPMV 34/1998 of ADDL.D.C.& MACT,PATHANAMTHITTA DATED 23-06-2008** ## **APPELLANT/S:** **UNITED INDIA INSURANCE CO. LTD. REP. BY ITS DY. MANAGER, REGIONAL OFFICE,, SHARANYA, HOSPITAL ROAD, ERNAKULAM.** **BY ADV. SMT.RAJI T.BHASKAR** ## **RESPONDENT/S:** |**1**|**KOMALAM, AGED 45, W/O.LATE SAMBASIVEN**| |---|---| ||**KARIMBOLIKKAL HOUSE, KARIMLAVU P.O.,, KOTTANADU**| ||**VILLAGE, RANNI TALUK, PATHANAMTHITTA, DISTRICT.**| |**2**|**SANJU AGED 26 SO. LATE SAMBASIVEN**| ||**DO......DO........**| |**3**|**SONY AGED 22 DO. LATE**| ||**SAMBASIVEN, DO....DO......**| |**4**|**THE DIRECTOR GENERAL OF POLICE KERALA**| ||**THIRUVANANTHAPURAM.**| |**5**|**SASI SO. GOPALAN P.C. 6128 ARMED**| ||**RESERVE, KOZHIKKODU RURAL, MALOORKUNNU.**| |**6**|**LEELA**| ||**AGED 62, D/O. LATE MADHAVIAMMA, KARUMBOLICKAL**| ||**VEEDU, PERUMPETTI P.O.**| MACA No.2639/2008 2 **7 SAUDAMINI AGED 60, D/O. LATE MADHAVIAMMA, NELLINIKKUNNATHIL, SEETHATHODU PO, CHITTAR** **8 SUGATHAMMA AGED 57, D/O LATE MADHAVI AMMA, KARUMBOLICKAL VEEDU, PERUMPETTI PO, PATHANAMTHITA** ## **BY ADV. GOVERNMENT PLEADER** ## **OTHER PRESENT:** **SR GP B.R. MURALEEDHARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2639/2008 3 ## **MACA No.2639/2008** ## **J U D G M E N T** **The appeal is filed by the Insurance Company challenging the negligence as found by the Tribunal. One Sambasivan died in a motor traffic accident which occurred on 29.05.1997. Before the Motor Accidents Claim Tribunal, the 1[st] petitioner was the widow and the petitioners 2 and 3 were the children of the deceased. Respondents 4 and 5 were parents of the deceased. The father of the deceased died when the matter was pending before the Tribunal and additional R4 to R6 were impleaded; being the sisters of the deceased. The mother also died after the award was passed. Respondents 6 to 8 in the appeal are the sisters of the deceased. They have not been served in the appeal. However, the notice against them is dispensed with since the wife and children of the deceased substantially represents the estate of the deceased.** MACA No.2639/2008 4 **2. The learned Counsel for the Insurance Company has specifically pointed out that the very same Tribunal has entered into a contrary finding on the very same accident. The accident is said to have occurred when the vehicle driven by Sambasivan was allegedly hit by a police bus driven by the 2[nd] respondent and owned by the 1[st] respondent herein. The specific contention taken up was that on the very same accident, there was a claim petition filed by an injured who was traveling in the police bus, alleging negligence against the driver of the car who died in the accident. The wife and children were impleaded therein. The earlier award of the Tribunal is produced as Ext.B1 in this proceedings. The Tribunal read through the award and found two significant aspects to hold that** _**resjudicata**_ **would not apply in this particular case.** ## **3. The Tribunal noticed the decisions in** MACA No.2639/2008 5 _**1998(2) KLT 239 (Krishnan v. United India Insurance Company Ltd (1998 (2) KLT 239) and 1991(1) KLT 320 (New India Insurance Company Ltd., v. Koyammu).**_ **Relying on the aforesaid decisions the Tribunal found that Section 11 of the Civil Procedure Code (CPC for brevity) would not be applicable to the Motor Accidents Tribunal.** **4. It is to be observed that as far as the CPC is concerned, Section 169(2) of the Motor Vehicles Act, 1986(for brevity “M V Act”) confer on the Claims Tribunal the powers of a Civil Court. The procedure of a Claims Tribunal under Section 169(1) of the M V Act, is subject to any rules that may be made in this regard. Rule 395 of the Kerala Motor Vehicle Rules, prescribes the specific provisions under the CPC which are applicable to the Tribunal which does not include Section 11.** **Even then the decision in** _**Krishnan**_ **cannot be of any help to the claimants herein.** MACA No.2639/2008 6 _**Koyammu**_ **a Division Bench finding the Claims Tribunal to be not a Court subordinate to the High Court was followed** _**in Krishnan.**_ **The owner of the bus which met with an accident, in** _**Krishnan,**_ **approached the Civil Court to enforce the policy and claim indemnification insofar as the damages caused to the vehicle. The insurance company raised grounds of violation of policy. The insuredplaintiff raised the question of** _**resjudicata**_ **on the ground that in the Claims Tribunal; where the injured had approached for compensation, the insurer had raised the very same contentions which were negatived by the Tribunal. It was in that context the Court ruled that the findings of the Tribunal would not act as** _**resjudicata**_ **in the suit filed before the Civil Court. Here both the proceedings were before the Tribunal. We do not find any assistance from** _**Koyammu**_ **also to uphold that contention of the appellants herein.** MACA No.2639/2008 7 ## **5. However, the Tribunal further negatived** **the plea of** _**resjudicata**_ **as against the minor children and parents who were not impleaded properly in the other proceedings before the Tribunal, which culminated in Ext.B1. The parents admittedly were not impleaded, in that proceeding as the legal representatives of the deceased driver & the registered owner of the Maruti Car as is seen from the party array in Ext.B1. The minors though impleaded were not represented by the legal guardian. Further the owner of the bus which caused the accident was not impleaded properly. The owner of the Bus is the Director General of Police whereas the person impleaded in Ext. B1 is the Superintendent of Police Kozhikkode. Hence all of the claimants and respondents herein cannot be said to have been represented in Ext.B1. This Court has to accept the findings of the Tribunal to affirm the view of the Tribunal that Ext. B1 and** MACA No.2639/2008 8 **the findings therein would not act as** _**resjudicata.**_ **Hence though a contrary finding was entered into in an earlier petition, the Tribunal could very well look into the various aspects which led to the accident, to adjudicate on the aspect of negligence.** **6. Ext.A1 is the FIR registered in the Payoli Police Station in Kozhikode District, as against the deceased Sambasivan, the driver of the Maruti car. One has to notice that the vehicle which caused the accident itself was a police vehicle and the registration of the crime against the dead person becomes very suspicious. There obviously was no fruitful investigation carried out since the crime itself abates. It was in such circumstance that the Tribunal examined the scene mahazar and the four photographs taken from the place of the accident showing the lie of the Maruti car and the police bus. The Tribunal found that** MACA No.2639/2008 9 **none of the respondents came forward to adduce any evidence to show that the deceased who drove the Maruti car was negligent. The Driver of the police vehicle also was a silent spectator in the proceedings. The Tribunal specifically referred to the evidence of PW1, the wife of the deceased, who was traveling along with the deceased when the accident occurred. The appellants have specifically contended that manipulations were made at the stage of investigation and filing of the final report, especially since one of the vehicles involved in the accident was a police vehicle. The evidence of PW 1 an eye witness stood unchallenged and it is borne out from the records that PW1 was injured in the accident and was traveling with the deceased.** **7. Ext.A1 First Information Statement is asserted to be a concocted document and the first informant was alleged to be a fictitious person. The Tribunal issued notice as against the first** MACA No.2639/2008 10 **informant and summons could not be served for reason of the whereabouts of the person not being revealed. The case of PW1 before the Tribunal was that while the deceased attempted to overtake a stationary private bus, the police bus which was coming in the opposite side was noticed and the car was stopped behind the stationary bus. The police bus which came in a rash and negligent manner hit on the front side of the stationary bus as also the Maruti car. The version of the police in Ext.X1 case diary was that the deceased Sambasivan sought to overtake the stationary private bus in a rash and negligent manner when it resulted in the police bus coming from the opposite side hitting the Maruti car. It was found that damages were sustained by the Maruti car and the private bus which has been clearly noticed in Ext.A2 mahazar. There was also an allegation that the scene mahazar was manipulated by the police officer who recorded** MACA No.2639/2008 11 **the same.** **8. There were wide discrepancies noticed in the length and width of the Maruti car as noted in Ext.A2 Scene Mahazar; from the length and width as noticed by the Assistant Motor Vehicle Inspector in Ext.X2 certificate. The measurement noticed in Ext.A2 scene mahazar was found to be patently wrong and it was also found that the length and width of the Maruti 800 car and the police bus was noted as similar. Ext.A2 scene mahazar was found to be not worthy of any reliance. The damages as noticed from the police bus itself indicate that the police bus had hit the stationary bus before hitting the Maruti car. The side mirror adjacent to the driver's seat of the police bus was found to have been damaged as a result of the accident, which could not have been by the collision with the car. There was also damage caused one meter above the front bumper of the police bus. The damage caused** MACA No.2639/2008 12 **to the stationary bus, was found to be 95 cm in length and 88 cm in height above its right bumper. The extensive damage so caused to the front portion of the private bus was found to be a definite indication as to there being no head on collision between the Maruti car and the private bus. The damage caused to the police bus, one meter above the front bumper could only have been caused by the collision with the stationary bus. It was found that the spot in the road where the accident occurred, had direct vision to both sides, ie; towards north and south, sufficient enough for the driver of the Maruti car to see the vehicle coming from the opposite side. The version of the police that the car hit the stationary bus after head on collision with the police bus was disbelieved; which this Court finds to be on sufficient material available from the records and also the eye-witness account of PW1, both of which were un-controverted** MACA No.2639/2008 13 **by the respondents. From an overall analysis of the accident and the attendant circumstances, it was found that there could be some liability on the Maruti car also. The Tribunal apportioned 75% negligence on the police bus and 25% on the Maruti car. Considering the entire circumstances, this Court is of the opinion that the order of the Tribunal is not liable to be interfered with.** **The appeal would stand dismissed. No order** **as to costs.** **Sd/K. Vinod Chandran, Judge** **jma**