Sreevidhya Rajan vs Maruti Insurance Broking Private ...
2021 Latest Caselaw 14044 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
   WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                    MACA NO. 2011 OF 2020
 AGAINST THE AWARD IN OP(MV)NO. 2267/2018 OF THE ADDITIONAL
         MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/2ND RESPONDENT:

          MARUTI INSURANCE BROKING PRIVATE LIMITED
          NELSON MANDELA ROAD,
          VASANT KUNJ, NEW DELHI, PIN-110 070,
          REPRESENTED BY ITS AUTHORISED SIGNATORY,
          SURENDRA SRIVASTAVA,
          CEO AND THE AUTHORISED SIGNATORY

          BY ADV P.JAYABAL
RESPONDENTS/PETITIONER/1ST AND 3RD RESPONDENTS:

    1     SREEVIDHYA RAJAN
          W/O RAJAN, CHATHANATTIKKAL HOUSE,
          CHETHOCODE P.O.ERNAKULAM DISTRICT,
          PIN-682 315.

    2     SANJAY KUMAR GUPTHA @ S.K.GUPTHA,
          AGED 46 YEARS,S/O THULSI PRASAD GUPTA,
          ICGS SAMAR, FLEET MAIL OFFICE,
          NAVAL BASE, KOCHI, ERNAKULAM DISTRICT, PIN-682 004
          (DRIVER CUM OWNER, DL NO AN0120120000378),
          .

3 NEW INDIA ASSURANCE COMPANY LIMITED, MULAMTHURUTHY BRANCH, JOHNS PARK, GROUND FLOOR,PALLITHAZHAM, PIN-682 314, REPRESENTED BY ITS BRANCH MANAGER

BY ADVS.

SRI.ABRAHAM K.JOHN SRI.PREMCHAND M.

SRI.RAHUL GOVIND

THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, ALONG WITH CO.77/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No. 2011 of 2020 & Cross Objection 77 of 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943 CO NO. 77 OF 2020 AGAINST THE AWARD IN OP(MV)NO. 2267/2018 OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 26.02.2020 CROSS OBJECTOR/1ST RESPONDENT:

SREEVIDHYA RAJAN,AGED 50 YEARS, W/O.R AJAN, CHATHANATTIKKAL HOUSE, CHETHICODE P.O, ERNAKULAM DISTRICT

BY ADVS.

ABRAHAM K.JOHN SRI.RAHUL GOVIND RESPONDENT/APPELLANT:

1 MARUTI INSURANCE BROKING PRIVATE LIMITED NELSON MANDELA ROAD, VASANT KUNJ, NEW DELHI, PIN 110 070 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. SURENDRA SRIVASTAVA, CEO

2 SANJAY KUMAR GUPTHA @ S.K GUPTHA, AGED 46 YEARS,S/O. THULASI PRASAD GUPTHA, C/O. ICGS SAMAR, FLEET MAIL OFFICE, NAVAL BASE, KOCHI, ERNAKULAM DISTRICT, PIN 682 004

3 NEW INDIA ASSURANCE COMPANY LTD, MULANTHURUTHY BRANCH, JOHNS PARK, GROUND FLOOR, PALLITHAZHAM, ERNAKULAM DISTRICT, PIN 682 314, REPRESENTED BY ITS BRANCH MANAGER.

BY ADV P.JAYABAL THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, ALONG WITH MACA.2011/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA No. 2011 of 2020 & Cross Objection 77 of 2020

C.S.DIAS,J

------------------------

MACA No. 2011 of 2020 & Cross Objection 77 of 2020

------------------------

Dated this the 7th day of July, 2021

COMMON JUDGMENT

The appellant was the 2nd respondent in OP(MV)No.

2267 of 2018 on the file of the Additional Motor Accidents Claims

Tribunal, Ernakulam. The respondents 1 and 3 in the appeal were

the petitioner and the 3rd respondent, respectively, before the

Tribunal.

2. The 1st respondent had filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the injuries sustained by her. She had,

inter-alia, averred that on 03.06.2008, while she was riding her

Scooter bearing registration No.KL-39/F 3015 along the Piravom-

Mulanthuruthy road, a Car bearing bearing registration No.AN-

01/G 6094 (offending vehicle) driven and owned by the 2 nd

respondent in a rash and negligent manner hit her Scooter. The

appellant was the insurer of the offending vehicle and the 3 rd MACA No. 2011 of 2020 & Cross Objection 77 of 2020

respondent was the insurer of the 1st respondent's vehicle.

3. The appellant and the 1st respondent were set ex parte.

4. The 3rd respondent filed a written statement contending

that they were an unnecessary party to the proceeding, as the

offending vehicle was not insured by them. They sought for a total

exoneration from the case.

5. The 1st respondent produced and marked Exts.A1 to A11

in evidence.

6. The Tribunal, allowed the claim petition in part, by

permitting the 1st respondent to recover from the appellant an

amount of Rs.16,44,000/- with interest at the rate 9% per annum

from the date of petition till the date of realisation along with costs.

7. Aggrieved by the impugned award the appellant/2 nd

respondent has filed the appeal and dissatisfied with the quantum

of compensation awarded, the 1st respondent/petitioner has filed

the cross objection. The 1st respondent has also filed a counter

affidavit in the appeal.

8. Heard the learned counsel appearing for the

appellant/2nd respondent and the learned counsel appearing for the MACA No. 2011 of 2020 & Cross Objection 77 of 2020

1st respondent/cross objector/petitioner.

9. The learned counsel appearing for the appellant argued

that the appellant was not the insurer of the offending vehicle. The

appellant is an Insurance Brokering Company for the National

Insurance Company Limited and is duly recognised by the

Insurance Regulatory and Development Authority of India, to

carry on the said business. The appellant had only collected the

premium from the 1st respondent and handed over the same to the

National Insurance Company, who had issued the insurance policy

for the offending vehicle. The appellant cannot be mulct with the

liability to pay the compensation to the 1 st respondent; therefore,

the appellant may be completely exonerated. Although an

application was filed before the Tribunal, under Order 1 Rule 10 of

the Code of Civil Procedure (in short 'Code'), to strike off/delete

the appellant from the party array, the Tribunal not only did not

consider the application, but denied the appellant an opportunity

to contest the case on merits. The claim petition had to be

dismissed at the threshold for non-joinder of necessary parties.

Unfortunately, the Tribunal has erroneously directed the appellant MACA No. 2011 of 2020 & Cross Objection 77 of 2020

to pay the compensation. Hence the appeal may be allowed by

setting the aside the award.

10. The learned counsel appearing for the 1 st

respondent/petitioner contended that the appeal is only an abuse

of process of law and there is absolutely no bona fides on the part

of the appellant. The appeal is not maintainable since the appellant

had not even filed an application to set aside the ex-parte order.

There is no error in the award warranting interference by this

Court since the appellant has only challenged the merits of the

award. The Tribunal could not be found fault with because the

appellant was provided with umpteen opportunities to file their

written statement, which was not done; therefore, the Tribunal

proceeded with the matter and decided the claim petition. No copy

of the so-called application under Order 1 Rule 10 of the Code was

served on the 1st respondent. There is wilful laches and negligence

on the part of the appellant. Hence, the award may not be

interfered with, that too on the mere asking of the appellant as it

would cause severe hardship, prejudice, and pecuniary loss to the

1st respondent/petitioner. The cross-objection may be allowed by MACA No. 2011 of 2020 & Cross Objection 77 of 2020

enhancing the compensation as claimed in the claim petition. The

accident occurred in the 2018 and the impugned award was passed

after nearly two years. It only for the want of necessary details that

the petitioner was disabled from impleading the insurer of the

offending vehicle as a party in the proceedings. Moreover, in

charge sheet filed by the Police, the appellant's name figures as the

Insurance Company. Hence the 1st respondent was under the bona

fide belief that the appellant was the insurance company. As the

appellant is an agent of the Insurance Company, they can very well

pay the amount and recover it from the Insurance Company. If the

matter is remitted back to the Tribunal for fresh consideration, it

would cause further delay, hardship and inconvenience to the

appellant.

11. The questions that emanate for consideration in the

appeal are:

(i) Whether the impugned award is sustainable in law?

(ii) Whether the cross-objection is to be allowed?

(iii) Whether there are cogent reasons to remand the matter

to the Tribunal for fresh consideration to provide the appellant an MACA No. 2011 of 2020 & Cross Objection 77 of 2020

opportunity to contest the claim petition?

12. The 1st respondent/petitioner has filed a counter affidavit

in the appeal, producing Annexure R1(a) insurance policy issued

by the National Insurance Company Ltd, in respect of the

offending vehicle as on the date of accident. Undisputedly it was

the National Insurance Company Ltd., who was the insurer of the

offending vehicle and not the appellant as averred in the claim

petition and has held by the Tribunal. Nevertheless, the 1 st

respondent/petitioner cannot be blamed because in the charge

sheet filed by the Police, the appellant was shown as the Insurer.

Naturally, the appellant was under the genuine belief that the

appellant was an insurance company, like many new players in the

field.

13. The contention of the appellant that an application was

filed under Order 1 Rule 10 of the Code to delete them from the

party array is neither appealing nor inspiring for more reasons

than one. Firstly, even the copy, number, or the date on which the

purported application was presented is not forthcoming. Secondly,

merely by throwing an application in the filing box, the Tribunal is MACA No. 2011 of 2020 & Cross Objection 77 of 2020

not bound to act upon the same unless the application is numbered

and listed for hearing. Admittedly, the appellant had not filed a

written statement and produced the insurance policy along with

the purported application, which was rudimentary on their part.

Thus, I hold that the Tribunal could not be found fault with in

proceeding with the matter and deciding the case with the

available pleadings and materials.

14. Even though the appellant is the agent of the National

Insurance Company Ltd, it may not be proper to direct the

appellant to pay the compensation amount and recover it from the

Insurance Company because the said course would cause prejudice

to the Insurer, who is not a party in the proceeding and would

hence be denied an opportunity to defend itself. The said course

may give rise to another round of unwarranted litigation, which

would procrastinate the matter further and cause more harm than

good to the 1st respondent. In the fitness of things and to meet the

ends of justice, especially with the materials now available on

record, I am of the considered opinion that matter is to be remitted

back to the Tribunal for fresh consideration, so as to give the MACA No. 2011 of 2020 & Cross Objection 77 of 2020

appellant and the 1st respondent an opportunity to rectify the

anomalies in the pleadings and to place the entire materials on

record; of course at the cost of the appellant, who could have

avoided the entire confusion and mess up if it had diligently

defended itself instead of sleeping in the armed chair.

15. Even though, I am fully conscious of the mandate under

Order XLI Rule 23A of the Code of Civil Procedure, taking into

account the peculiar facts and circumstances of the case, and also

to avoid another unwarranted litigation, I am convinced that there

are cogent reasons and grounds warranting the invocation of the

power of this Court to remand claim petition back to the Tribunal

for fresh consideration which would subserve the ends of justice.

Consequently, I set aside the impugned award on condition that

the appellant pays an amount of Rs.25,000/- (Rupees Twenty Five

Thousand only) to the 1st respondent. If the above condition is

fulfilled the impugned award will stand set aside and the cross

objection will stand closed. Accordingly, I answer the above

questions.

In the result, the appeal is allowed by setting aside the MACA No. 2011 of 2020 & Cross Objection 77 of 2020

impugned award in OP(MV) 2267/2018, on condition that the

appellant pays an amount of Rs.25,000/- (Rupees Twenty Five

Thousand only) to the 1st respondent/learned Counsel appearing

for the 1st respondent before this Court within a period of four

weeks from today and produces a memo to the effect along with

the certified copy of the judgment before the Tribunal. If the same

is done, the parties shall mark their appearance through their

respective Counsel before the Tribunal on 09.08.2021. The

Tribunal shall afford both the parties' sufficient opportunity to

raise their respective contentions, including granting leave to

amend the pleadings and to implead additional parties in the case.

The parties' would be at liberty to let in additional evidence, if any.

Taking into consideration that the claim petition is of the year

2018, every endeavour shall be made by the Tribunal to dispose of

the claim petition as expeditiously as possible and with priority.

Resultantly, I close the Cross Objection.

Sd/- C.S.DIAS, JUDGE

dlk 07.07.2021