United India Insurance Company Limited v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932** **WP(C).No. 2515 of 2004(Y)** **------------------------------------** ## **PETITIONER(S):** - **----------------------** **UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS REGIONAL MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY SRI. N.NANDAKUMARA MENON, SENIOR ADVOCATE ADV.SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM.** **3. ANANDESWARY THANKACHY,** - **W/O. RAJENDRAN NAIR, GOVALLABHAM, MALAYANKIL P.O., NEYYATTINKARA.** ## **4. M.ABDUL SALAM,** **SALAM MANZIL, OORUTTAMBALAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM.** **5. SHAJI KUMAR @ KOCHANI, KUMARASADANAM, NEERAMANKUZHI, OORUTTAMBALAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM.** **6. THE MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA.** **R1,R2 & R6 BY GOVERNMENT PLEADER SRI.K.SANAL KUMAR R3 BY ADV. SRI.NAGARAJ NARAYANAN** **SRI.NAIR AJAY KRISHNAN R4 & R5 BY ADV.SRI.G.APPAN** **SMT.HEMA ANANTHAKRISHNAN** **SRI.SAIJO HASSAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.2515/2004-Y** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/INSURER BEFORE THE MACT, NEYYATTINKARA IN O.P.(MV) 971/99.** - **P2 COPY OF THE I.A.4309/02 FILED BY THE PETITIONER/INSURER BEFORE THE MACT NEYYATTIKARA IN O.P(MV) 971/99 (WITH SUPPORTING AFFIDAVIT)** - **P3 COPY OF THE AWARD DATED 17/10/02 PASSED BY THE MACT NEYYATTINKARA IN O.P(MV) 971/99** - **P4 COPY OF THE COMMON AWARD DATED 05/12/02 PASSED BY THE MACT NEYYATTINKARA IN O.P(MV) 1037/99 AND 1038/99** ## **RESPONDENT'S EXHIBITS:** - **EXT R3 (A) COPY OF THE FIRST INFORMATION REPORT DATED 10/10/1999.** - **EXT R3 (B) COPY OF THE SCENE MAHAZAR DATED 10/10/1999.** - **EXT R3 (C) COPY OF THE RELEVANT PAGES OF THE FINAL REPORT.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 2515 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November, 2010** ## **J U D G M E N T** The insurance company, which was one of the respondents in O.P. (MV) No. 971/1999 before the Motor Accidents Claims Tribunal, Neyyattinkara has filed this writ petition challenging Ext.P3 award of the Tribunal in that O.P. In that O.P. an amount of Rs.51,930/- with 9% interest per annum from 01.11.1999 was awarded to the 3[rd] respondent herein for injuries and resultant disability suffered by her in a motor accident involving a vehicle insured with the petitioner-insurance company. The vehicle belonged to the 4[th] respondent, which was allegedly driven by the 5[th] respondent. The writ petition is filed on the ground that, respondents 3 to 5 have played a fraud on the insurance company insofar as the very same vehicle was involved in another accident at 5.15 pm. on the same day in W.P.(C)No. 2515 of 2004 **-2-** respect of which Ext.P4 award has been passed by the same Tribunal. The alleged accident in this case was at 7.30 p.m. The contention is that, in respect of the earlier accident at 5.15 p.m. an FIR was registered and the vehicle was in the custody of the Police and therefore the very same vehicle could not have been involved in another accident on the same day. The petitioner submits that, although the petitioner had a remedy by way of appeal under the Motor Vehicles Act, they have filed this writ petition since in **United India Insurance Company Limited v. Rajendra Singh and Others** [(2000) 3 SCC 581] the Supreme Court has held that, in case of a fraud the writ petition would lie in respect of a motor accidents claim. 2. The 3[rd] respondent has filed a counter affidavit wherein the stand taken is that, the particular accident happened on 09.10.1999 and the FIR in respect of the earlier accident was registered only at 11 AM on 10.10.1999 and therefore there is no merit in the contention that the offending vehicle was in police custody from W.P.(C)No. 2515 of 2004 **-3-** 5.15 PM on 09.10.1999 onwards. In support of the contention, the 3[rd] respondent had produced Exts.R3 (a) to R3 (c) which are the FIR, mahazar and the relevant portion of the final report filed in the criminal case in respect of the 1[st] accident. The learned counsel for the 3[rd] respondent would argue that, the insurance company cannot be heard to contend that, there was a fraud on the part of the 3[rd] respondent insofar as the petitioner-insurance company has not even chosen to cross-examine the 3[rd] respondent when she gave evidence as PW1 in the O.P.(M.V.), which has been specifically averred in paragraph 7 of the counter affidavit filed by the 3[rd] respondent. It is also submitted that, the insurance company has not even chosen to adduce evidence in support of their contention in the written statement and it is further pointed out that it is not as if the petitioner has no other remedy. The petitioner could very well have filed an appeal in which the matter could have been argued on the basis of evidence as well by re-appreciating the evidence. Therefore according to the W.P.(C)No. 2515 of 2004 **-4-** 3[rd] respondent, this writ petition is not maintainable at all. 3. I have considered the rival contentions in detail. 4. I am of opinion that, this was an eminently fit case for the insurance company to file an appeal insofar as the entire question has to be decided on the basis of evidence as to whether there in fact was fraud on the part of either the claimant or the owner and the driver, which cannot be taken in a writ petition ordinarily. Further apart from a statement in the written statement filed by the insurance company that the very same vehicle was involved in another accident on the same day and therefore the accident could not have been caused by the same vehicle, the insurance company has not done anything to prove their case. I am unable to find prima-facie proof of fraud also insofar as going by the documents produced by the 3[rd] respondent, the FIR was not registered on the same day. As such there is no automatic inference that the vehicle was in police custody. These are all matters which require evidence without which the question as to whether there was fraud ## W.P.(C)No. 2515 of 2004 **-5-** cannot even be considered. Without any fraud being evident from the facts and records of the case, I do not think that, the decision of the Supreme Court in Rajendra Singh's case can be applied automatically to every case where fraud is alleged. I find that the award is dated 17.10.2002 and the writ petition is filed only on 19.01.2004. The counsel for the petitioner has not even got a case that the writ petition was filed within the period of limitation prescribed for filing appeal. As such, I am of opinion that, the petitioner-insurance company should have filed an appeal, with petition to condone delay in filing the same if they wanted to challenge on the ground of fraud. In fact the appropriate remedy in view of the requirement of evidence was to file an appeal insofar as even in appeal the petitioner could have adduced evidence. Therefore I am not inclined to entertain this writ petition in exercise of my discretionary jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed. W.P.(C)No. 2515 of 2004 **-6-** The petitioner seeks permission to file an appeal. I am not expressing any opinion on the same and it is for the petitioner to take appropriate steps in that regard if they wish do so and they can legally do so. S. SIRI JAGAN JUDGE shg/