IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RP.No. 102 of 2011() ----------------------------- AGAINST THE JUDGMENT/ORDER IN MACA.645/2010 DATED 23/11/2010 .................... REVIEW PETITIONER/APPELLANT -------------------------------------------------- ONDEN PRAMODKUMAR, S/O.APPU, AGED 48 YEARS, NELLERI HOUSE, KANATHUR WARD, KANNUR-1. BY ADV. SRI.M.V.AMARESAN RESPONDENTS/RESPONDENTS ----------------------------------------------- 1. DIRECTOR GENERAL OF POLICE, KERALA, TRIVANDRUM, PIN-695 001. 2. NAJEEB, DRIVER HEAD CONSTABLE, ARMED RESERVE CAMP, QUILON, QUILON DISTRICT, PIN-602 033. 3. DIRECTOR, KERALA STATE INSURANCE DEPARTMENT, TRIVANDRUM, PIN-695 001. 4. UNITED INDIA INSURANCE CO. LTD., C.W.C. BUILDING, L.M.S. COMPOUND, TRIVANDRUM, PIN-695 001. R1 & R3 BY GOVT. PLEADER SMT.BINDU. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21/03/2011, ALONG WITH MACA NO.1624 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------- R.P. No.102 of 2011 in M.A.C.A. No.645 of 2010 & M.A.C.A.No.1624 of 2010 ------------------------------------------------------------ Dated this the 21st day of March, 2011 JUDGMENT A.K. Basheer, J. In the peculiar facts and circumstances of the case, the review petition is allowed and the judgment dated November 23, 2010 in M.A.C.A No.645 of 2010 is recalled. M.A.C.A Nos. 645/2010 & 1624/2010 These appeals arise from two claim petitions relating to a road traffic accident that occurred on March 30, 1999. There is no dispute that the police jeep bearing registration No. KL-01/P 3018 collided with a private car bearing registration No.KL- 13C-918 near Kakkayam on the Alappuzha-Kollam National Highway at about 8.30 am on March 30, 1999. Appellant in MACA No. 645/10 was admittedly driving the car, while the appellant in MACA No. 1624/10 was admittedly driving the police jeep. 2. Appellant in MACA No. 645/2010 instituted OP(MV) R.P. No.102 of 2011 in M.A.C.A. No.1624 of 2010 2 No. 240/2000 before the Motor Accidents Claims Tribunal Thalassery, claiming compensation from the owner, driver and insurer of the police jeep. The tribunal after considering the oral and documentary evidence adduced by the appellant as well as the respondent held that he had not succeeded in proving that the accident occurred because of the negligent driving of the jeep driver. Accordingly, the claim petition was dismissed. However, the tribunal directed the petitioner to refund the interim award amount of Rs.25,000/- to the Insurance Company. The said award is under challenge in this appeal primarily on the ground that the Tribunal had failed to take note of the fact that the driver of the jeep had been found negligent in OP(MV) No. 450/00 filed by a co-passenger in the car and that no contra evidence was adduced by the said jeep driver to show that he was not negligent. 3. The grievance of the appellant in MACA No. 1624/10 (jeep driver) against the award in OP(MV) No. 450/00 is that his superior officers had assured him that the case would be defended appropriately before the Tribunal by engaging a counsel. He being only an employee in the Police Department, he had believed his superiors' words. He was not aware of the result of the case at any point of time till recovery proceedings R.P. No.102 of 2011 in M.A.C.A. No.1624 of 2010 3 were initiated against him, by the Department. 4. It is seen that in OP(MV) No. 450/00, the Tribunal found that the driver of the Police jeep (appellant) was negligent and accordingly held him liable to pay the compensation of Rs.12,000/- to the claimant in that case with 9% interest. Of course, respondent No.1 Director General of Police being the owner of the vehicle was directed to pay the same. It appears that the police department has discharged its liability by making payment to the claimant and thereafter proceeded against the appellant, for recovery of the said amount. It is at that stage the appellant has filed this appeal with a delay of 1729 days. 5. In fact by judgment dated November 23, 2010 in MACA No.645/10 filed by the car driver, we had concurred with the view taken by the Tribunal and held that there was no sufficient evidence to show that the jeep driver was responsible for the accident. At that stage it was brought to our notice that the police had registered crime No.88/95 against the car driver, the appellant in this appeal. In fact the appellant could not adduce any evidence before the Tribunal to show as to what had happened to that crime. 6. It is true that the appellant had contended before the Tribunal that the police had registered Crime No. 337/99 against R.P. No.102 of 2011 in M.A.C.A. No.1624 of 2010 4 the police jeep driver. But no satisfactory evidence was adduced before the Tribunal to show as to who was ultimately charge sheeted by the police. Now the appellant has produced certain documents relating to these two crimes before us. We do not propose to deal with them at this stage in view of the order that we are propose to pass. The appellant in MACA No. 645/10 had not bothered to appear before the Tribunal and adduce any evidence in support of his case. His explanation is that his superior officers had informed and assured him that his interests would be protected by engaging a counsel. Yet another aspect of the matter in that case (OP(MV) No. 450/10) is that the claimant had not impleaded M/s United India Insurance Co. which is stated to have issued a policy certificate in respect of the police jeep. Therefore, the Tribunal passed the award holding the owner and driver of the police jeep liable to pay the compensation. 7. Appellant has impleaded M/s. United India Insurance Company in this appeal with leave. Sri. Mathews Jacob who appears for the said Company submits that a valid policy had been issued in respect of the jeep during the relevant period. But according to him the award in OP(MV) No. 450/10 could not be contested, for the obvious reason that the company was not R.P. No.102 of 2011 in M.A.C.A. No.1624 of 2010 5 impleaded in that claim petition; where as in OP(MV) No. 240/00 filed by the car driver the company had contested the case while admitting the policy coverage in respect of the police jeep. 8. The sum and substance of the above discussion is that there was in fact a valid policy in respect of the police jeep. It is on record that in OP(MV) No. 450/00 the Tribunal has held that the driver of the jeep was negligent, while the same tribunal in the other claim petition viz. OP(MV) No. 240/00 has held that the driver of the car was negligent. These two findings, though entered by different presiding officers are contradictory to each other. Keeping in view the entire facts and circumstances of the case, we are satisfied that a further opportunity can be granted to all the parties to adduce further evidence in the cases. However, we hasten to add that the award passed in OP(MV) No.450/00 is not being disturbed by us. The only issue to be decided in that case shall be confined to the question relating to liability to pay the compensation to the claimant in that case. 9. In OP(MV) No.240/00, it will be open to the appellant to adduce further evidence in respect of his contention. However, keeping in view the entire facts and circumstances, the appellant in MACA No. 645/10 shall pay a sum of Rs.15,000/- as cost to the Insurance Company. Similarly the appellant in MACA No. R.P. No.102 of 2011 in M.A.C.A. No.1624 of 2010 6 1624/10 shall pay a cost of Rs.5,000/- payable to the Insurance Company. If the cost is not paid by the appellants on or before April 8, 2011 the appeals shall stand dismissed. 10. No recovery steps shall be initiated against the appellant in MACA No. 1624/10 for the time being. Impugned awards are set aside to the extent indicated above. Parties shall appear before the Tribunal on May 26, 2011. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. rkc