Oriental Insurance Co.Ltd vs Ganesan(Died)(Addl R4 ...
2021 Latest Caselaw 13188 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
   THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                    MACA NO. 1624 OF 2007
    AGAINST THE AWARD IN OP(MV)NO. 1061/2000 OF THE MOTOR
             ACCIDENT CLAIMS TRIBUNAL ,THRISSUR
APPELLANT/3RD RESPONDENT:

          ORIENTAL INSURANCE CO.LTD
          KUNNAMKULAM,
          REPRESENTED BY ITS, ASSISTANT MANAGER,
          REGIONAL OFFICE,,
          ERNAKULAM NORTH, KOCHI-18.

          BY ADVS.
          SRI.GEORGE CHERIAN (SR.)
          SMT.K.S.SANTHI
          SMT.LATHA SUSAN CHERIAN


RESPONDENTS/CLAIMANTS:

    1     GANESAN, S/O.SANKARANKUTTY, (DIED)
          APPANEDATH HOUSE P.O.,
          ENGANDIYUR,
          THRISSUR DT.,
          REP. BY HIS MOTHER KAMALA,
          W/O.SANKARANKUTTY,,
          APPANEDATH HOUSE,
          P.O.ENGANDIYUR, THRISSUR DT.

    2     KUTTAN S/O.VELAYUDHAN
          CHITTILEDATH HOUSE, P.O.,
          VATANAPPILLY,
          THRISSUR DISTRICT.

    3     K.T.NATARAJAN
          KANNACHANPURAKKAL HOUSE.
          P.O., VATANAPPILLY,
          THRISSUR.

*ADDL.R4 SMT.KAMALA
         W/O SANKARANKUTTY,
         APPANEDATH HOUSE,
 MACA No. 1624 of 2007
                                2

           P.O ENGANDIYUR,
           THRISSUR DISTRICT,

           (THE LEGAL HEIR OF THE DECEASED FIRST RESPONDENT IS
           IMPLEADED AS THE ADDL 4TH RESPONDENT AS PER ORDER
           DATED 11/9/13 IN IA NO.2459/2013.)

           BY ADVS.
           SRI.A.R.GEORGE(B/O)
           SRI.P.V.CHANDRA MOHAN
           SRI.RAJIT
           SRI.RANJIT BABU


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.06.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA No. 1624 of 2007
                                 3

                           C.S.DIAS,J
                ------------------------
                   MACA No. 1624 of 2007
                ------------------------
              Dated this the 24 day of June, 2021
                                 th




                          JUDGMENT

The appellant ― insurance company ― was the 3 rd

respondent in OP (MV) No.1061 of 2000 on the file of the

Motor Accidents Claims Tribunal, Thrissur. The respondents

in the appeal were the petitioner and respondents 1 and 2,

respectively in the claim petition. The additional 4 respondent th

in the appeal is the legal representative of the deceased 1 st

respondent. In fact, the additional 4 respondent is the mother th

of the deceased 1 respondent, who had represented him before st

the Tribunal as his next friend. The parties are, for the sake of

convenience, wherever the context so requires referred to as

per their status in the claim petition.

2. The congealed facts in the claim petition, relevant for

the determination of the appeal are: on 17.11.1999 at about

4.30 p.m., while the petitioner was riding his motorcycle MACA No. 1624 of 2007

bearing registration No.KBE 3083, along the Vatanappally-

Chettuva National Highway No.17 from north to south, when

he reached Ezhamkallu Katti Colony, an autorickshaw bearing

registration KL8/A.8083 (offending vehicle) proceeding in

front of the petitioner suddenly turned towards the eastern

side without giving any signal. The petitioner lost control of

his motorcycle and hit on the rear side of the autorickshaw and

then dashed against a tree and sustained serious injuries. He

was treated as an inpatient at the M.I. Hospital, Engandiyur

and, thereafter, at the West Fort Hospital, Thrissur, till

30.12.1999. The petitioner went into a comatose state. The

accident occurred solely due to the negligence on the part of

the 1 respondent. The 2 respondent was the owner of the st nd

vehicle and the 3 respondent was the insurer. The petitioner rd

was employed in the Gulf and was earning Rs.5,000/- per

month. The respondents were jointly and severally liable to

pay compensation to the petitioner, which he quantified at

Rs.12,86,000/-, but limited to Rs.10,00,000/- MACA No. 1624 of 2007

3. The 1 respondent did not contest the proceedings st

and was set ex-parte.

4. The 2 respondent filed a written statement, inter nd

alia, contending that the offending vehicle was not involved in

the accident. On the alleged date of accident, the offending

vehicle was in the workshop. It was only when the 2 nd

respondent received the summons from the Tribunal he

became aware that his vehicle was allegedly involved in an

accident. Nevertheless, the vehicle was insured with the 3 rd

respondent.

5. The 3 rd respondent filed a written statement

admitting that the offending vehicle had a valid insurance

policy from 17.11.1999 to 16.11.2000, but the policy was

obtained by suppressing material facts. The 2 respondent had nd

issued a letter to the 3 respondent stating that the vehicle was rd

not involved in any accident as it was in the workshop since

13.09.1999. The 2 respondent had not authorised any person nd

to take the vehicle from the workshop. Even though the MACA No. 1624 of 2007

accident took place on 17.11.1999, the FIR was registered only

on 18.12.1999. The petitioner is a close relative of the 1 st

respondent and there is collusion between them to grab money

from the 3 respondent. The vehicle was taken into custody rd

only on 27.12.1999. The autorickshaw was allegedly released to

the 1st respondent, which is unusual, as he is not the registered

owner of the vehicle. The compensation claimed under the

different heads was excessive.

6. The mother of the petitioner and an independent

witness were examined as PWs1 and 2 and Exts.A1 to A14 were

marked. The 2 respondent was examined as RW1 and Exts.B1 nd

to B9 were marked in evidence.

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

directing the 3 respondent to pay an amount of Rs.5,51,900/-

rd

with interest at the rate of 7% per annum from 29.04.2000 till

the date of actual payment along with proportionate costs.

8. Aggrieved by the impugned award, the 3 respondent is rd

in appeal.

MACA No. 1624 of 2007

9. Heard Sri.George Cherian, the learned Senior

Counsel appearing for the appellant/3 rd respondent,

Sri.R.Rajit, the learned Counsel who was appearing for the

deceased 1st respondent and also who was permitted to make

his submissions on behalf of the additional 4 respondent, who th

is stated to be indisposed, and the learned Government

Pleader appearing for the State.

10. Sri.George Cherian argued that the instant case is a

classic example of how a vehicle is planted in a bogus

insurance claim by perpetrating fraud. He illustrated the

following instances, to drive home his contention that there is

collusion between the petitioner and the 1 respondent in st

connivance with the Police, namely (i) the alleged accident

took place on 17.11.1999, but Ext.A1 - FIR was registered only

on 18.12.1999 (ii) As per Ext.B8 seizure mahazar the offending

vehicle was seized on 28.12.1999, but the motor vehicle

inspection was conducted on 27.12.1999 as per Ext.B2, which

is impossible (iii) RW1 ― the 2nd respondent ― the owner of MACA No. 1624 of 2007

the offending vehicle had categorically deposed that the

vehicle was in the workshop on the date of accident (iv) the

vehicle was allegedly produced before the police by the 1 st

respondent and released to him without the authority of

the 2nd respondent (RW1) as evident from Ext.B8 seizure

mahazar, which is impermissible in law (v) the brother of the

petitioner had filed Ext B-6 claim petition before the same

Tribunal claiming compensation on behalf of the petitioner,

giving a totally contradictory version than what is pleaded in

the present claim petition etc. He emphatically argued that the

instant case is concocted for the purpose of grabbing public

money, which may not be permitted. He hence contented that

the appeal be allowed and the claim petition be dismissed.

11. Sri.R.Rajit contended that a proceeding under the

Motor Vehicles Act, 1988 is summary in nature, and there is

no necessity to conduct a roving enquiry. The Tribunal based

on the pleadings and materials on record has rightly arrived at

a conclusion that the offending vehicle was involved in the MACA No. 1624 of 2007

accident. Therefore, the appellant insurance company is liable

to indemnify the liability of the owner of the vehicle. Exts.A1

FIR A2 FIS and Ext.A3 scene mahazar all substantiate that the

accident was caused due to the negligence of the 1 st

respondent. Moreover, the appellant has not let in contra

evidence to discredit the oral testimony of PW1 and Pw2 and

materials on record, as held by this Court in New India

Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648]. There

is no merit in the appeal, which is only to be dismissed.

12. Consequent to the directions of this Court on

16.01.2020, the learned Government Pleader has filed a memo

dated 07.02.2020 producing the statement of SHO,

Vatanappilly Police Station along with a copy of the charge-

sheet filed in Crime No.344 of 1999, which was registered

against the 1 st respondent for offences punishable under

Sections 279 and 338 of the Indian Penal Code.

13. The questions that emanate for consideration in the

appeal are:

MACA No. 1624 of 2007

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

(ii) Whether there are cogent reasons to remand the

matter to the Tribunal for fresh consideration?

14. The specific case of the petitioner in the claim

petition was that while he was riding his motorcycle on

17.11.1999, the offending vehicle which was proceeding in front

of him suddenly turned towards the eastern side without

giving any signal and he hit on the rear side of the

autorickshaw and then he dashed against a tree and sustained

injuries.

15. Admittedly, the FIR was registered only on 18.12.1999

i.e., a month after the accident. The offending vehicle was

seized by the police on 28.12.1999 as reflected in Ext.B8

seizure mahazar. Strangely, in Ext.B2 motor vehicle inspection

report, the inspection of the vehicle was conducted by the

Assistant Motor Vehicles Inspector on 27.12.1999. How the

inspection was conducted on the previous day of seizure

stands shrouded in mystery. Likewise, on what basis the Police MACA No. 1624 of 2007

allegedly seized the vehicle from 1st respondent and released

the same to him on the same day, when admittedly he was not

the registered owner of the vehicle is not seen explained

anywhere.

16. On a re-appreciation of the oral testimony of PW1 ―

the next friend of the petitioner, it is seen that she had initially

deposed that the accident occurred while the offending vehicle

was coming from the opposite direction. Subsequently, she

took a volte face and deposed in tune with the averments in the

claim petition. Even more glaring are the contradictions in

Ext. B-6 claim petition, filed by the petitioner's brother at the

first instance, wherein it is pleaded that the petitioner was a

pillion rider on the motor cycle ridden by his friend and the

petitioner was working a broker getting a monthly income of

Rs.15,000/-.

17. The 2nd respondent had specifically pleaded that his

vehicle was not involved in the accident and on the alleged

date of accident the offending vehicle was in the workshop. MACA No. 1624 of 2007

Moreover, the 2nd respondent corroborated his pleadings by

giving evidence as RW1. He emphatically deposed that his

vehicle was in the workshop on the eventful day; that the

petitioner was a close relative of the 1st respondent and they

were in cahoots with each other.

18. Even more suspicious is the final report produced

before this Court in Crime No.344 of 1999, the date is

30.02.2000; a date non-existent in the English calendar.

19. Now, whether the above suspicious final report was

intentionally not produced before the Tribunal or not is a

matter to be probed into.

20. Assuming that the final report is genuine and the 1 st

respondent was negligent in causing the accident as found by

the Police, the same has fallen into a pale of insignificance in

light of the evidence of RW-1 and the law laid down by this

Court in Pazhaniammal (supra) and Kolavan v. Salim [2018 (1)

KLT 489].

21. The 3 respondent had also specifically contended that rd MACA No. 1624 of 2007

the 2 respondent had issued a letter to them stating that the nd

vehicle was not involved in the accident, as it was given to the

workshop on 13.09.1999; that the 2nd respondent had not

authorised any person to take the vehicle from the workshop;

that the petitioner was a close relative of the 1 respondent and st

there is collusion between them to grab money from the 3 rd

respondent.

22. Although the above definite contentions were raised

by the respondents 2 and 3, unfortunately, none of these

aspects were dealt with by the Tribunal while deciding Issue

Nos.1 and 4.

23. In fact, in Issue No.1 the Tribunal had taken note of

the contradiction in the oral testimony of PW1, but simply

brushed aside the same without giving any reason. Similarly,

the Tribunal blindly accepted the explanation of PW1

regarding the delay in lodging the FIR, that it was because of

the laxity on the part of the hospital authorities.

24. There is no discussion or reasons given in the award MACA No. 1624 of 2007

regarding the contradictions in the claim petition and Ext.B6,

how the vehicle could be inspected by the AMVI on the

previous day of seizure, how the vehicle reached the hands of

the 1st respondent when its owner (RW1) had stated that

vehicle was in the workshop, how the vehicle could be released

to a third party without the intervention of the Court as per the

procedure prescribed in the Code of Criminal Procedure.

25. It is also interesting to note that in Ext.B2 inspection

report no damage is seen on the offending vehicle.

Nonetheless, the Tribunal has entered a finding that the

vehicle might have been repaired, which is nobody's case. The

Tribunal has also rendered a finding that as the insurance

policy of the offending vehicle was issued by the 3 respondent rd

on 17.11.1999 i.e., on the date of accident, the vehicle might

have been taken for inspection to the 3 respondent. Again, I rd

do not find any material on record for the Tribunal to have

arrived at the said findings.

26. On an overall re-appreciation of the pleadings and MACA No. 1624 of 2007

materials on record, I find that there are inconsistencies in the

pleadings, contradictions in the testimonies of witnesses and

incongruities in the materials on record, which were not

adverted or dealt with by the Tribunal. The Tribunal has

decided the claim petition in an unilateral and slipshod

manner and against the ratio decidendi in Pazhaniammal and

Kolavan (supra), especially when the respondents had let in

oral and documentary evidence and the final report was not

placed on board. Therefore, I hold that the impugned award is

unsustainable in law for non-adverting to all the contentions

raised by the respondents.

27. Even though I am fully conscious of the mandate

under Order XLI Rule 23 A of the Code of Civil Procedure, I

am of the firm opinion that there are cogent reasons and

grounds warranting the invocation of the power of this Court

under Order XLI Rule 23 A to remand the claim petition to the

Tribunal for fresh consideration for the purpose of deciding on

all the contentions raised by both sides, which would subserve MACA No. 1624 of 2007

the ends of justice. Thus, I answer question No.2 accordingly.

In the result I allow the appeal by setting aside the

impugned award in M.V.O.P 1061/2000 of the Motor

Accidents Claims Tribunal, Thrissur. M.V.O.P 1061/2000 is

remitted back to the Tribunal for fresh consideration, to decide

on all the contentions raised by both sides, in accordance with

law, untrammelled by any observation made by this Court in

this judgment. The parties are at liberty to let in additional

evidence, if any. Considering the fact that the 1 st respondent is

no more and that the 4th respondent is indisposed, I direct the

Tribunal to issue notice to parties for their appearance. As the

claim petition is of the year 2000, an endeavour shall be made

by the Tribunal to dispose the claim petition as expeditiously

as possible. The Registry is directed to forthwith transmit the

lower court records to the Tribunal. The parties shall bear their

respective costs.

Sd/-

                                          C.S.DIAS,
dlK 24.06.2021                             JUDGE