United India Insurance Company Ltd. v. Anuroop and Satheendran and Sarath S. Nair (MACA Nos. 763/2020 & 1756/2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** ## **MACA NO. 763 OF 2020** **AGAINST THE AWARD DATED 24.05.2019 IN OP(MV)NO.1312/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LTD., 2ND FLOOR , MALANKARA BUILDING, VJT HALL, PALAYAM, THIRUVANANTHAPURAM, REP BY THE AUTHORISED SIGNATORY THE MANAGER, REGIONAL OFFICE, KOCHI-682 011.** ## **BY ADV RAJAN P.KALIYATH** ## **RESPONDENTS/ PETITIONER & R1 AND 2:** - **1 ANUROOP, AGED 26 YEARS, S/O SATHEENDRAN, TC 36/634, PANAYIL VEEDU, ERNCHAKKAL, PERUMTHANNI, PETTAH, THIRUVANANTHAPURAM, PIN-695 010.** - **2 SATHEENDRAN, S/O GOPI, MADATHU VILAKATHU PANAYIL VEEDU, PERUNTHANI, THIRUVANANTHAPURAM, PIN-695 010** - **3 SARATH S NAIR, S/O SASIDHARAN NAIR, TC 36/1088, MEDAYIL VEEDU, PERUNTHANI, VALLAKKADAVU, THIRUVANANTHAPURAM, PIN-695 008** **BY ADVS. SRI.RINU. S. ASWAN SRI.GYOTHISH CHANDRAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH MACA.1756/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.763 & 1756/2020 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **MACA NO. 1756 OF 2020** **AGAINST THE AWARD DATED 24.05.2019 IN OP(MV)NO.1312/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **ANUROOP, AGED 26 YEARS, S/O. SATHEENDRAN, T.C NO. 36/634, PANAYILVEEDU, EANCHAKKAL, PERUNTHANNI, PETTAH P.O, TRIVANDRUM 24.** **BY ADVS.SMT.M.ARDRA KRISHNAN SRI.M.S.UNNIKRISHNAN SMT.ALEENA MARIA JOSE SMT.SUSAN JACOB (S-3481) SRI.B.ARUN BABU** ## **RESPONDENTS/ RESPONDENTS:** **1 SATHEENDRAN, AGE NOT KNOWN, S/O. GOPI, MADATHU VILAKATHU PANAYILVEEDU, PERUNTHANNI, THIRUVANANTHAPURAM 695 008** - **2 SARATH S NAIR, S/O. SASIDHARAN NAIR, T.C NO. 36/1088 MEDAYILVEEDU, PERUNTHANNI, VALLAKKADAVU, TRIVANDRUM 695 008** - **3 M/S. UNITED INDIA INSURANCE CO.LTD, REPRESENTED BY ITS MANAGER, 2ND FLOOR, MALANKARA BUILDINGS, VJT HALL, PALAYAM, THIRUVANANTHAPURAM 695 034** **BY ADV SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021, ALONG WITH MACA.763/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.763 & 1756/2020 -:3:- _Dated this the 5[th] day of October,2021_ ## **C O M M O N J U D G M E N T** As the appeals arise out of the same award in O.P. (MV) No.1312/2015 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, between the same parties, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 _(in short, Act')_ , claiming compensation on account of the that he sustained in an accident on injuries 07.04.2015. It was his case that, while he was travelling pillion on a motorcycle bearing registration No.KL-01/BG-4639 through the Kalliyoor-Kakkamoola road, when the motorcycle reached the Kalliyoor Stadium, the second respondent who was riding the M.A.C.A.Nos.763 & 1756/2020 -:4:- motorcycle swerved the vehicle in a negligent manner, causing the petitioner to fall on the ground and sustain injuries, including a fracture. The petitioner was treated as an inpatient and outpatient at the Medical College Hospital, Thiruvananthapuram. The accident occurred due to the negligence of the second respondent. The first respondent was the owner and the third respondent was the insurer of the motorcycle. The petitioner claimed from the respondents a compensation of Rs.4,00,000/-. 3. The respondents 1 and 2 filed separate written statements. 4. The third respondent had filed a written statement admitting that the motorcycle had a valid insurance coverage. However, the third respondent specifically contended that the claim petition was not maintainable, since the accident had not occurred as alleged in the claim petition. It was the specific case of the third respondent that the petitioner was riding the M.A.C.A.Nos.763 & 1756/2020 -:5:- motorcycle and was not a pillion rider. The City Traffic Police had registered the crime only after a long period of 50 days, as a Senior Civil Police Officer had suddenly got a premonition that the petitioner was undergoing treatment in his house. Thereafter, the second respondent was implanted as the rider of the motorcycle. The motorcycle is owned by none other than the father of the petitioner-the first respondent. The above rapacious act is contrary to the ratio laid down by the Hon'ble Supreme Court in _**Lalithakumary v. State of U.P.**_ [2013(4) KLT 632 (SC)]. The Traffic Police was not authorised by the Jurisdictional Magistrate to hold a belated investigation, dispensing with the preliminary enquiry, nor had informed the Motor Accidents Claims Tribunal as per the mandate under the Statute. The Police did not follow the procedure established by law. The third respondent who is holding money on trust, caused an enquiry through an investigator, who met the first M.A.C.A.Nos.763 & 1756/2020 -:6:- respondent and made spot inspection and enquired with the local people who had seen the accident. It was informed that the motorcycle was ridden by the petitioner himself. There was no pillion rider. The subsequent conduct of the second respondent in admitting to the guilt and remitting the fine was to saddle the liability on the third respondent. Although the petitioner had claimed to have been treated at the Medical College Hospital, immediately after the accident, no Accident Register-cum-Wound Certificate was drawn. Instead a treatment certificate which is bereft of any contemporaneous relevance dated 27.05.2015 was produced. Mere mentioning of a Road Traffic Accident(RTA) after long 50 days would not have any probative value. The scene mahazar would go to show that the place of occurrence lies in Kalliyoor-Kakkamoola road in the east-west direction which is straight and visible towards 75 meters on either side without any alley or the presence of other M.A.C.A.Nos.763 & 1756/2020 -:7:- vehicle necessitating to swerve the motorcycle to the south. Hence, the occurrence was not an accident as alleged to claim damages. The cumulative effect of forgoing assertions would establish that the motorcycle was ridden by the petitioner, who himself caused the accident and, therefore, the claim petition under Section 166 of the Act is unsustainable in law and contrary to the object of the Act. Hence, the claim petition may be dismissed. 5. The petitioner produced and marked Exts.A1 to A11 in evidence. Neither party adduced any oral evidence. 6. The Tribunal, on the basis of the decision of the Division Bench of this Court in _**New India Assurance Co. Ltd. v. Pazhaniammal and Others**_ [2011 (3) KLT 648], held that since the respondents have not challenged the police records, the negligence on the part of the second respondent stands proved. Accordingly, the claim petition was allowed, by M.A.C.A.Nos.763 & 1756/2020 -:8:- directing the third respondent-insurer to pay the petitioner an amount of Rs.2,23,250/- as compensation, with interest and cost. 7. Aggrieved by the impugned award, the third respondent/insurer has filed M.A.C.A.No.763/2020, and dissatisfied with the quantum of compensation, the petitioner has filed M.A.C.A.No.1756/2020. 8. Heard; Sri. Rajan P. Kaliyath, the learned counsel appearing for the appellant/third respondent-insurer in M.A.C.A.No.763/2020 and Sri. Rinu S. Aswan, the learned counsel appearing for the appellant/petitioner in M.A.C.A.No.1756/2020. Even though notice has been served on respondents 1 and 2 in M.A.C.A.No.763/2020, there is no appearance for them. 9. Sri. Rajan P. Kaliyath had argued that the third respondent-insurer had categorically pleaded in the written statement that the police had at the instigation of the Senior Civil Police Officer implanted M.A.C.A.Nos.763 & 1756/2020 -:9:- the second respondent as the rider of the motorcycle, without following the procedure established by law. The first respondent – the owner of the motorcycle – is none other than the father of the petitioner. Even though the accident occurred on 07.04.2015, the First Information Statement(FIS) was given to the police at 11 am on 06.06.2015 i.e., after a unexplained and inordinate delay of 50 days, that too, at the residence of the petitioner. Pursuant to FIS, the police registered the First Information Report(FIR) at 12.20 pm on the same day. Mysteriously at 1.15 pm, the police prepared Ext.A2 scene mahazar. Again surprisingly, a vehicle inspection report was prepared on 09.06.2015 at 12.00 pm and Ext.A7 final report was laid on the same day before the Jurisdictional Magistrate, after dispensing with the AMVI inspection report. The hasty and astute manner in which things have been done substantiate that the police was in cahoots with the petitioner and the first respondent, in order to mulct the liability on M.A.C.A.Nos.763 & 1756/2020 -:10:- the third respondent-insurer, and swindle public money. The Tribunal has without adverting to any of the contentions in the written statement, merely relying on the decision of this Court in _**Pazhaniammal**_ (supra) has accepted the chargesheet, as the gospel truth for the proof of negligence. He drew the attention of this Court to paragraph No.8 of _**Pazhaniammal**_ (supra), wherein it has been emphatically held that, in the case of collusive chargesheets, which does not satisfy the judicial conscience of the Tribunal, such chargesheet shall not be looked into. In such cases,the issue of negligence has to be decided on other evidence, ignoring the chargesheet. Hence, he prayed the appeal be allowed by setting aside the award and remanding the matter to Tribunal, to afford both sides an opportunity to let in additional evidence and substantiate their respective pleadings. 10. Sri. Rinu S. Aswan vehemently countered the M.A.C.A.Nos.763 & 1756/2020 -:11:- above submissions. He raised a preliminary objection as to the maintainability of the appeal by the insurer. He contended that as long as the third respondent-insurer did not obtain leave from the Tribunal, as provided under Section 170 of the Act, the appeal filed by the third respondent itself is not maintainable. He placed reliance on the Division Bench decision of this Court in _**National Insurance Company Ltd. v. Madhusoodhanan**_ [2001(2) KLT 255], wherein this Court has held that the insurer cannot maintain a joint appeal with the owner or driver with the defence on any ground under Section 149(2) of the Act. Unless and until, the insurer obtains leave of the Tribunal, after satisfying Section 170 of the Act, the insurer is _estopped_ from raising the contentions on the merits in an appeal under Section 173 of the Act. Hence, he prayed that the appeal of the insurer be dismissed on the said ground _in limine._ He also argued that the petitioner had produced Ext.A8 M.A.C.A.Nos.763 & 1756/2020 -:12:- OP records issued by the Medical College Hospital, Thiruvananthapuram, dated 07.04.2015 recorded at 3.00 pm, wherein it is clearly mentioned that the petitioner was involved in a Road Traffic Accident(RTA) while riding as a pillion rider on a motorcycle. The said document is the conclusive proof of the accident having taken place on the uneventful day as pleaded in the claim petition. He also submitted that it was due to the latches on the part of the hospital authorities, who had not informed the police about the accident, that the FIR was not registered on the same day. After the convalescing period, the petitioner lodged FIS before the police and the FIR was registered on the same day. There is nothing wrong in the police filing the chargesheet within three days, which only substantiates their efficiency. Moreover, even though the third respondent-insurer had filed its written statement raising several contentions, it has not let in any evidence to prove its M.A.C.A.Nos.763 & 1756/2020 -:13:- assertions. Therefore, M.A.C.A.No.763/2020 may be dismissed and M.A.C.A.No.1756/2020 filed by the petitioner be allowed by enhancing the compensation amount. 11. The questions that emerge for consideration in these appeals are: - _(i) whether M.A.C.A.No.763/2020 filed by the third respondent-insurer is maintainable in law?_ - _(ii) whether the Tribunal has erred by not adverting to the specific contentions of the third respondent-insurer in the impugned award?_ - _(iii) whether there are cogent reasons to remand the matter back to the Tribunal for fresh consideration._ ## **Question No:(i)** 12. The learned counsel for the petitioner strenuously contended that, M.A.C.A.No.763/2020 filed by the insurer is not maintainable in law in the light of M.A.C.A.Nos.763 & 1756/2020 -:14:- the decisions of this Court in _**Madhusoodhanan**_ (supra) because the insurer had not obtained leave under Section 170 of the Act, to contest the case on all grounds. 13. The above question is no longer _res integra._ The Hon'ble Supreme Court in _**United India Insurance Company Ltd. v. Shila Datta**_ [2011(4) KLT 378 (SC)] has empathetically held that, when an insurer is made a party respondent either on account of being impleaded as a party by the Tribunal under Section 170 of the Act or being impleaded as a party respondent by the claimants, the insurer will be entitled to contest the matter on all grounds, including disputing the quantum of compensation, without being restricted to the grounds available under Section 149(2) of the Act. The above legal position has been reiterated by the Division Benches of this Court in _**United India Insurance Company v. Beena Pathrose**_ [2017(2) KLT 577(DB)] and in _**Sheela O.K.**_ M.A.C.A.Nos.763 & 1756/2020 -:15:- _**and others v. New India Insurance Co. Ltd., Aluva**_ [2016(5) KHC 427]. Therefore, _**Madhusoodhanan**_ (supra) is no longer good law. Thus, I answer question No.(i) against the petitioner. I hold that M.A.C.A.No.763/2020 filed by the insurer is maintainable in law. ## **Question No.(ii) & (iii):** 14. As these questions are intertwined, I deem it appropriate to consider them together. 15. The case of the petitioner was that he sustained injuries in an accident on 07.04.02015 at 1.30 pm. Admittedly, the motorcycle on which he was allegedly riding pillion belonged to his own father-the first respondent. In Ext.A7 final report filed by the police, it is seen that the motorcycle was taken by the second respondent – the rider of the motorcycle – to the police station and the same was released to him on self bond. The second respondent, thereafter, pleaded guilty to the charges. The close relationship between M.A.C.A.Nos.763 & 1756/2020 -:16:- the petitioner and the respondents 1 and 2 is gatherable from the pleadings and Ext.A1 FIR, and Ext.A7 final report. 16. The Tribunal has fixed negligence on the first respondent on the basis of the ratio in _**Pazhaniammal**_ (supra). 17. The precise case of the third respondent-insurer, which has already been extracted in the fourth paragraph, is that the case was a collusive affair between the petitioner and the respondents 1 and 2, in order to grab public money from the third respondent. 18. In the light of the contention of the third respondent in the written statement, it was imperative and rudimentary for the Tribunal as enjoined in law, to have formulated an issue, regarding the genuineness of the claim. 19. Even though the Tribunal placed strong reliance on the decision in _**Pazhaniammal**_ (supra), the M.A.C.A.Nos.763 & 1756/2020 -:17:- Tribunal completely lost sight of paragraph No.8 of the said decision, wherein it clearly held that, if the chargesheet does not satisfy the judicial conscious of the Tribunal, the Tribunal is to consider the issue of negligence based on other evidence ignoring the chargesheet. Unfortunately, the above course has not been followed by the Tribunal. 20. Admittedly, the petitioner and the respondents have also not let in oral evidence to prove the assertions in the pleadings. Although the third respondent contended that it had enquired about the incident through an investigator, the said person was also not examined. 21. Nevertheless, in view of the rival pleadings and the ratio laid down in paragraph No.8 of _**Pazhaniammal**_ (supra), it was imperative for the Tribunal to have decided the question of negligence _dehors_ Ext.A7 final report. Since the same has not been done, I hold that the finding arrived at by the M.A.C.A.Nos.763 & 1756/2020 -:18:- Tribunal by fixing negligence of the second respondent is with non application of mind. 22. Moreover, the circumstances under which Ext.A1 FIR was registered after 50 days after the accident and the final report being filed by the police on the third day, after the registration of the crime, also does not inspire the judicial conscious of this Court to accept Ext.A7 as the final word for fixing negligence on the second respondent. 23. On a comprehensive re-appreciation of the pleadings, materials on record, the rival contentions and the law on the point, I hold that the Tribunal has passed the impugned award without considering the matters already mentioned above. Notwithstanding the mandate under Order XLI Rule 23(A) of the Code of Civil Procedure, 1908, in the light of the cogent reasons mentioned above and to meet the ends of justice, and also to afford both sides a further opportunity to substantiate their respective M.A.C.A.Nos.763 & 1756/2020 -:19:- contentions, I remit the matter back to the Tribunal for fresh consideration. The petitioner and the respondents shall be afforded an opportunity to let in additional evidence. In the result, these appeals are disposed of by setting aside the impugned award passed by the Tribunal and remitting O.P.(MV)No.1312/2015 to the Motor Accidents Claims Tribunal, Thiruvananthapuram, for fresh consideration in accordance with law. The Tribunal shall reconsider the claim petition after adverting to legal contentions raised by both sides and the law on the point, untrammelled by any observation made by this Court in this judgment. Keeping in mind the fact that the claim petition is of the year 2015, I direct the Tribunal to make every endeavour to dispose of the claim petition, as expeditiously as possible. The petitioner and respondents are directed to appear before the Tribunal on 15.11.2021. If the respondents 1 and 2 do M.A.C.A.Nos.763 & 1756/2020 -:20:- not appear on the said day, the Tribunal shall issue fresh notice to them. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/05.10.2021 //True copy/ P.A.To Judge