Kerala High Court
The New India Assurance Co Ltd vs Appunni on 15 July, 2025
M.A.C.A.No.281 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 15TH DAY OF JULY 2025 / 24TH ASHADHA, 1947
MACA NO. 281 OF 2020
AGAINST THE AWARD DATED 09/05/2019 IN OPMV NO.144 OF
2017 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
OTTAPPALAM.
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO LTD,
BRANCH OFFICE, 1ST FLOOR,
V.V.COMPLEX, CALICUT ROAD,
PERINTHALMANNA, MALAPPURAM DISTRICT,
REPRESENTED BY ITS ADMINISTRATIVE OFFICER,
REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.
BY ADVS.
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2:
1 APPUNNI
AGED 47 YEARS,
S/O.AYYAPPAN, AKKAMPOTHUVAYIL @ YAKKAMPODUVAYIL
HOUSE, CHUNDOTTIKUNNU, EDATHANATTIKARA.P.O,
ALANALLUR VIA, PALAKKAD-678602.
2 ABDUL MANAF.C,
AGED 36 YEARS,
S/O.MANU HAJI, CHAKKAMBTHODY HOUSE,
KODIYANKUNNU,EDATHANATTIKARA.P.O,
ALANALLUR VIA, PALAKKAD DISTRICT, KERALA.
M.A.C.A.No.281 of 2020
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3 ABDUL RAHIMAN,
AGED 67 YEARS,
S/O.UNNIEEN, KOLLARAM HOUSE,
EDATHANATTUKARA.P.O,
ALANALLUR VIA, PALAKKAD-678602
BY ADV SRI.P.JAYARAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07/07/2025, THE COURT ON 15/07/2025 DELIVERED THE
FOLLOWING:
M.A.C.A.No.281 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.281 of 2020
----------------------------------------------------
Dated this the 15th day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the third
respondent/insurer in O.P.(MV) No.144/2017 on the file of the
Motor Accidents Claims Tribunal, Ottapalam (the Tribunal),
aggrieved by the amount of compensation granted by Award
dated 09/05/2019. The respondents herein are the claim petitioner
and respondents 1 and 2 respectively in the petition. In this
appeal, the parties and the documents will be referred to as
described in the original petition.
2. According to the claim petitioner, on
24/03/2016 at about 09:00 p.m., while he was walking through
Kottappalla - Kodiyamkunnu public road and when reached near
Kottappalla grandhshala, jeep bearing registration no.KL-07/J-
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3220 driven by the first respondent in a rash and negligent manner
in great speed knocked him down, as a result of which he
sustained grievous injuries.
3. The second respondent-owner of the offending
vehicle remained ex-parte.
4. The first respondent-driver filed written
statement denying negligence on his part.
5. The third respondent-insurer filed written
statement admitting the policy, but denying negligence on the part
of the first respondent. The averments in the petition regarding
age, income, injuries, treatment underwent, expenses met for the
treatment and disability were denied.
6. Before the Tribunal, PWs.1 and 2 were
examined and Exts.A1 to A11 were marked on the side of the
claim petitioner. No documentary evidence was adduced by the
respondents.
7. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
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negligence on the part of the first respondent-driver of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹2,75,640/- together with interest @ 9% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the third
respondent-insurer has come up in appeal.
8. The only point that arises for consideration in
this appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
9. Heard both sides.
10. It is submitted by the learned senior counsel for
the third respondent/insurer that the actual vehicle involved in the
incident is jeep bearing registration no.KL-09-G-4611 as
mentioned in the private complaint filed before the Judicial First
Class Magistrate concerned. However, in Ext.A7 final report, the
vehicle number has been changed fraudulently because the
vehicle stated in the complaint did not have a valid insurance
policy at the time of the accident. The vehicle subsequently
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added has a valid insurance policy and hence to get the insurance
amount, the vehicle number has been changed and a false final
report filed. As the vehicle actually involved is not insured with
the third respondent-insurer, the insurer cannot be held liable for
the amount and hence the Tribunal went wrong in directing the
insurer to deposit the amount. Per contra, it was quite
persuasively submitted by the learned counsel for the claimant
that it is well settled that the final report filed by the police in the
crime is prima facie proof of negligence. In the case on hand, the
police after investigation filed Ext.A7 final report which proves
the registration number of the vehicle involved in the accident.
To prove Ext.A7, the claim petitioner also examined the
investigating officer, namely, PW1. Therefore, the claim
petitioner has discharged his burden. If the third
respondent/insurer had any grievance/complaint against Ext.A7
final report, they ought to have adduced evidence to disprove the
same. Having not done so, the Tribunal rightly relying on Ext.A7
found the offending vehicle to be jeep bearing registration no.KL-
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07/J-3220 and proceeded to award compensation. There is no
infirmity calling for an interference by this Court, goes the
argument.
11. The accident in this case is alleged to have taken
place on 24/03/2016. A private complaint dated 08/08/2016 is
seen filed before the Magistrate concerned, which was forwarded
under Section 156(3) Cr.P.C. on the basis of which crime
no.532/2016, Nattukal Police Station, alleging commission of
offences punishable under Sections 279, 337 and 338 IPC was
registered on 18/08/2016 at 18:16 hours. The FIR and the FIS
have been marked as Ext.A3. The private complaint is seen filed
by the nephew of the claim petitioner. The registration number of
the offending vehicle in the complaint is stated to be KL-09-G-
4611. In the case diary, that is seen marked as Ext.A1, the
investigating officer says that on 19/08/2016, the witnesses were
questioned and then the complainant stated that it was by mistake
the registration number of the offending vehicle was referred to as
KL-09-G-4611 in the complaint. Now the question is - was it a
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bonafide or genuine mistake committed in the complaint in
referring to the registration number of the vehicle as KL-09-G-
4611 in the place of KL-07/J-3220. Let me examine.
12. As noticed earlier, in the complaint which was
treated as the FIS as well as in the FIR registered on the basis of
the same marked as Ext.A3, the registration number of the
offending vehicle is stated to be KL-09-G-4611. In the written
statement filed by the third respondent-insurer, it was contended
thus- "This respondent denied that vehicle bearing Reg No. KL 07
J 3220 owned by second respondent and allegedly driven by the
1st respondent involved in this accident. In the complaint filed by
the petitioner through his relative before the honorable JFCM
Mannarkkad the vehicle number shown as KL 09 G 4611. The
date of alleged accident was on 24.03.2016. The complaint filed
before the court is only on 08.08.2016. There is no proper
explanation in the charge sheet for the difference occurred in
respect of the vehicle number. So this respondent is not liable to
any compensation to the petitioner. The vehicle No. KL. 07 J
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3220 had been insured with this respondent company under a
valid policy No. 76020131150200023382 for the period from
17.01.2016 to 16.01.2017 subject to the terms and conditions
exceptions and limitation stipulated therein and subject to the
M.V.Act and Rules. ... ... ..."
12.1. The third respondent-insurer filed
I.A.No.522/2019 before the Tribunal for directing the first
respondent-driver to produce the registration certificate, policy
and permit of the vehicle bearing registration no.KL-09-G-4611.
This application is seen allowed on 20/02/2019 by the Tribunal.
However, the documents were never produced before the
Tribunal. In the appeal, the third respondent-insurer has filed
I.A.No.4/2020 under Order XLI Rule 27 read with Section 151
C.P.C. to receive additional documents, that is, the policy of
insurance issued by United India Insurance Company Ltd. for
vehicle bearing registration no.KL-09-G-4611 for the period from
20/12/2014 to 19/12/2015 and copy of the registration particulars
of the said vehicle. The application is allowed and the documents
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shall stand marked as Exts.A12 and A13 respectively. The
registration particulars marked as Ext.A13 shows that the owner
of vehicle bearing registration no.KL-09-G-4611 is the first
respondent herein. Ext.A13 certificate of insurance shows that
the vehicle was insured with United India Insurance Company
Ltd., not a party here, for the period from 20/12/2014 to
19/12/2015. The accident in this case took place on 24/03/2016.
Therefore, it is apparent that the said vehicle did not have a valid
insurance policy at the time of the accident. It is in this
background, the evidence on record needs to be appreciated.
13. In the complaint filed before the Magistrate
concerned, there is a mere statement that though information was
given to the police regarding the accident, due to the undue
influence of the first respondent/driver of the offending vehicle,
no action was taken by the police. In this context, I refer to the
dictum in Priyanka Srivastava v. State of U.P., 2015 KHC
4242: (2015) 6 SCC 287, in which the Apex Court held that
applications under Section 156(3) Cr.P.C. are to be supported by
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an affidavit duly sworn by the complainant who seeks the
invocation of the jurisdiction of the Magistrate. It has been held
that when an application under Section 156(3) Cr.P.C. is filed,
the filing of applications under Sections 154(1) and 154(3) must
be clearly spelt out and the copies of the same also produced
along with the complaint. The Apex Court made it clear that the
warrant for giving a direction that an application under Section
156(3) Cr.P.C. should be supported by an affidavit, is to make the
person making the application conscious and also to see that no
false affidavit is filed. This is because once an affidavit is found
to be false, the complainant will be liable for prosecution in
accordance with law. This would also deter him/her to casually
invoke the authority of the Magistrate under Section 156(3)
Cr.P.C.
14. In the case on hand, no such affidavit is seen filed
along with the complaint. As noticed earlier, there is a mere
statement in the complaint that though the police was informed of
the accident, no action was taken. No details are given. No copy
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of the information alleged to have been given to the police
regarding the accident under Section 154(1) Cr.P.C. has been
produced. If the police had not taken any action on the basis of
the information given under Section 154(1) Cr.P.C., resort to the
remedy under Section 154(3) Cr.P.C. ought to have been made.
Here, the complainant has no case that resort to the remedy under
Section 154(3) had been made. From the materials on record it is
not clear as to the date on which the private complaint was filed
before the Magistrate concerned. The complaint is dated
08/08/2016. The police on receiving the complaint is seen to
have registered the crime on 18/08/2016. The accident in this
case took place on 24/03/2016. Therefore, the complaint is seen
filed after a delay of nearly 5 months after the accident. No
reasons are given for the inordinate delay in filing the complaint.
15. The claim petitioner in order to prove Ext.A7 final
report, examined the investigating officer as PW1. The cross
examination of PW1 reads thus- "Private complaint police-ലലകക refer ച യ
പ ക രമ ണക അല ഷണ ടത യതക. ട complaint KL 09/G 4611 എന വ ഹ മ ണക
അ കടത ക ക രണമ യതക എന ണക റഞട"ളതക. അങച ഒര" വ ഹ പ ത യ ലണ
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എനക ഞ ല ഷ ച ല. അ ) യക ര റഞത ണക complaint-ചല വണ മറ" ചതറ
ല യത ചണനക. KL 09/G 4611 എന വ ഹ ത ക insurance coverage ഇല തത ൽട
വണ മ റ insurance ഉളമചറ ര" വ ഹ ല ർതത ചണനക റയ"ന" (Q) ശര യല. KL 09/G
4611 എനവണ അല ഷ ച" കണ" ക ട യ ല. KL 09/G 4611 എനവണ യകകകinsurance ഉലണ
എനല ഷ ച ട ല. Complaint-ൽ റഞ വണ യ"ചട ക ര)ങൾ എന" ചക ണല ഷച ല
(Q) No answer. KL 07/J 3220 എന വ ഹ ഇപ ക ര accident-ൽ ച ട ട ചലന"
അ ) യക രച സഹ യ ക യ insurance ഉളവണ ല ർതകcharge ചക ട"തത ചണന"
റയ"ന" (Q) ശര യല." This translated roughly reads - "The
investigation was conducted as per the private complaint referred
to the police. The complaint states that the vehicle involved in the
accident is KL 09/G 4611. I did not inquire whether the said
vehicle was the offending vehicle. It was the complainant who
said that the vehicle number in the complaint was wrong. Since
the vehicle KL 09/G 4611 did not have a valid insurance
coverage, it is said that the said vehicle was replaced with another
vehicle having valid insurance (Q). Not correct. Though
investigation was conducted regarding vehicle KL 09/G 4611, the
same could not be traced out. No investigation was done to find
out whether the vehicle bearing registration no.KL-09/G-4611
had insurance. Why was no investigation conducted regarding the
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vehicle mentioned in the complaint (Q). No answer. It is said that
the vehicle bearing registration no.KL 07/J 3220 was not involved
in the accident and that in order to help the complainant, a vehicle
with insurance was roped in and the charge sheet submitted (Q).
Not Correct."
16. Referring to the testimony of PW1, it was
submitted by the learned counsel for the claim petitioner that
merely because PW1 did not answer a question, fraud cannot be
assumed or presumed. The burden was on the insurer to prove
fraud and that the final report is false, in which endeavour, they
have miserably failed, argued the counsel.
17. Here as noticed earlier, the insurer in their
written statement has disputed the involvement of the vehicle with
registration no.KL-07/J-3220. To substantiate the same, they
also took steps for directing the first respondent to produce the
RC particulars and the insurance policy of the vehicle bearing
registration no.KL-09/G-4611 referred to in the complaint. When
PW1 was cross examined, no explanation is given as to why no
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investigation was conducted regarding the vehicle referred to in
the complaint. The claim petitioner never entered the box to prove
that the vehicle number referred to in the complaint was a
mistake. The insurer can prove his case or bring in probabilities
in support of his case through cross examination of the witness of
claim petitioner also. Here the testimony of PW1 is quite relevant
and material. He has no explanation as to why he did not conduct
any investigation regarding the vehicle mentioned in the
complaint. Going by his testimony and Ext.A1 case diary, it
appears that Ext.A7 final report was filed based merely on the
statements given by the witnesses of the claim petitioner. No
independent investigation seems to have been conducted by PW1.
The materials on record probabilise the case of the third
respondent-insurer that realizing that vehicle bearing registration
no.KL-09/G-4611 referred to in the private complaint owned by
the first respondent-driver did not have a valid insurance policy at
the time of the accident, the vehicle was changed and the vehicle
of the second respondent brought in to the picture as the same has
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a valid insurance policy. It appears that the offending vehicle is
actually KL-09 G-4611 and as the third respondent is not the
insurer of the said vehicle, they cannot be made liable to
indemnify the insured.
18. Be that as it may, the fact that the accident took
place in which the claim petitioner sustained injuries, is not
disputed. The first respondent in his written statement does not
dispute the fact that he was at the wheel when the accident took
place. The negligence of the 1st respondent alleged is not disputed
by third respondent/insurer. However, as the vehicle bearing
registration no. KL-09 G-4611 was not insured with the third
respondent or with any other insurance company, they cannot be
held liable to indemnify the owner of the offending vehicle,
namely, the first respondent. Hence the liability to pay the
compensation would be on the first respondent, the driver of the
offending vehicle. The third respondent/insurer in the aforesaid
circumstances is exonerated of the liability.
In the result, the appeal is partly allowed as aforesaid.
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Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
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PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE POLICY OF INSURANCE IN
RESPECT OF THE VEHICLE KL-09G 4611
ANNEXURE 2 TRUE COPY OF THE REGISTRATION
PARTICULARS OF THE VEHICLE KL 09 G 4611
OBTAINED FROM THE WEBSITE OF MOTOR
VEHICLES DEPARTMENT KERALA
