IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZUL PURKAR CIVIL REVISION PETITION No. 469 OF 2008 Between: United India Insurance Company Ltd, Rep. by its Branch Manager, Machilipatnam ......petitioner AND Chebrolu Venkata Rao and others ......Respondents The Court made the following:- THE HON'BLE SRI JUSTICE VILAS V.AFZUL PURKAR CIVIL REVISION PETITION No. 469 OF 2008 ORDER: This revision is at the instance of the insurance company, which is impleaded as respondent No.3 in M.V.O.P.No.113 of 2005 on the file of District Judge, Krishna District. While the said O.P. was under trial P.Ws.1 and 2 were examined. PW.1 was examined on 04.07.2007. The petitioner/respondent No.3 in the O.P. filed the application I.A.No.690 of 2007 seeking leave of the Court under Section 178 of the Motor Vehicles Act, 1988, (for short, ‘the Act’) to contest the claim petition. The said application was opposed by the claimants and has been dismissed under the impugned order. Hence, this revision. Heard the learned counsel for the petitioner and Sri V.V.L.N.Sarma, learned counsel appearing for the claimants. The petitioner’s counsel contends that according to the petitioner the claimants as well as respondent Nos.1 and 2 are in collusion with each other and the circumstances relied upon in support of the said contention is that the deceased as well as respondent No.2 are working as colleagues in State Bank of India and only to help the claimants, the 2nd respondent has accepted that his scooter was involved in the accident. The petitioner relied upon the circumstances that Motor Vehicle Inspector’s report alleging accident between the two vehicles i.e., one of deceased and that of respondent No.2 is however not established from the said Motor Vehicle Inspector’s report. The petitioner also placed reliance upon the circumstances that PW.1 was examined on 04.07.2007 and admitted his involvement in the accident and the 2nd respondent supported PW.1 by adopting the cross examination of RW.1 contrary to R.2’s averments in his counter. The learned counsel placed reliance upon a decision of this Court in United India Insurance Company Limited, Divisional Office v. Gorla Bondamma and others[1] in support of his contention that the fact that the claimants are contesting the present application gives rise to a presumption that there is collusion between claimants and respondent Nos.1 and 2. He also submits that under Section 170 of the Act, the Court shall exercise discretion to implead and permit the insurance company to contest the claim, if the insurance company establishes that there is absolute collusion between the person making the claim and the person against whom the claim is made or when the person against whom the claim is made fails to contest the claim. The learned counsel therefore states that the present case the insurance company has vital interest in contesting the claim and they have made out ingredients enumerated under Section 178 of the Act. Sri V.V.L.N.Sarma, learned counsel for the respondents submits that though respondent No.3 is impleaded in the O.P., this application is made only on 05.07.2007, after cross examination of PW.1. He submits that thereafter, PWs.2 and 3 were also examined on 12.07.2007 and submits that there is absolutely no ground to contend that there is any collusion between the claimants and respondent Nos.1 and 2, inasmuch as the said respondents have filed counter and are contesting the case. They have not cross examined PW.1 and since it is not necessary to repeat the same questions put on behalf of the respondent No.1, respondent No.2 is adopted the same cross examination. Learned counsel therefore submits that at this distance of the time, it would be highly unjustified to permit such application of the petitioner. Having considered the aforesaid contention, I have also examined the decision relied upon by the learned counsel for the petitioner in the light of Section 170 of the Act. The learned counsel for the respondents has placed before this Court the affidavit in lieu of chief examination filed by PW.1 and the cross examination of PW.1 dated 04.07.2007. It is true that respondent No.2 has adopted the cross examination by respondent No.1. It also shows that respondent No.3 had requested the Court that new facts would come to light and the insurance company accepted to furnish information in a day or two and sought deferment of cross examination by him. The Tribunal however, rejected the said request on the ground that it is an old identified case. Accordingly, the cross examination on the part of the petitioner was recorded as nil. I also find that on 18.01.2008 PW.1 was recalled and further examined. I am unable to see any cross examination with respect to the said further examination, which was recorded on 18.01.2008 and further cross examination on behalf of respondent No.3. In the meanwhile, respondent No.3 filed the present application seeking leave on 05.07.2007 itself. But the same was dismissed on 18.12.2007 and whereas the other application I.A.No.690 of 2007 filed by the petitioner to recall PW.1 for cross examination was allowed and accordingly, PW.1 was cross examined by the petitioner-insurance company on 18.01.2008. I also find that the petitioner has elaborately cross examined PW.1 pursuant to the orders of the Tribunal in I.A.No.690 of 2007 dated 18.12.2007. Similarly PWs.2 and 3 have been cross examined by the petitioner. Keeping in view the facts and circumstances of the case including the fact that the claimants have contested in the present application, following the decision of the Court referred to above, it has to be held that the fact that the claimants are opposing this application is a prima facie ground to presume that there is collusion between the claimant and respondent Nos.1 and 2. It would therefore be in the interest of justice to permit the petitioner to contest the claim as contemplated under Section 178 of the Act. The impugned order of the Court below declining to grant the said leave is not sustainable inasmuch as the Court below has rejected the said request of the petitioner on the ground that he has not cross examined PW.1. It has not been appreciated by the Court below that unless the application for leave is filed and ordered the insurance company would not have a right to contest and dispute the claim. In that view of the matter and subsequent event that the petitioner was permitted to recall PW.1 and respondents have cross examined PW.1, I am of the view that leave to contest under Section 170 of the Act as sought for in I.A.No.690 of 2007 deserves to be allowed. The impugned order is accordingly set aside and I.A.No.690 of 2007 is allowed. In view of the fact that the petitioner has already cross examined all the witnesses of the claimants in detail, the Tribunal shall consider the request of the petitioner, if any, if they need to cross examine, the claimants witnesses any further. Further the petitioner now shall have right to lead evidence and contest the claim in accordance with law. Civil Revision Petition is accordingly allowed. Since claim petition is pending for the last three years, the Tribunal shall endeavour to hear and in any case dispose of the same as early as possible within two (2) months from the date of receipt of a copy of this order. No order as to costs. ______________________ VILAS V.AFZUL PURKAR, J Date: 17.06.2010 [1] 2006 (5) ALT 588