Anuroop vs Satheendran
2021 Latest Caselaw 20633 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

         TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

                            MACA NO. 763 OF 2020


   AGAINST THE AWARD DATED 24.05.2020 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

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE C.S.DIAS

TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

MACA NO. 1756 OF 2020

AGAINST THE AWARD DATED 24.05.2020 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

Dated this the 5th day of October,2021

COMMON JUDGMENT

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

injuries that he sustained in an accident on

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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