IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 MACA.No. 2792 of 2008 -------------------------------------- OPMV.786/2001 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT : 2ND RESPONDENT: ----------------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, CALICUT NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS : PETITIONER & RESPONDENTS 3 & 4: --------------------------------------------------------------------------------------- 1. K.NATARAJAN, S/O KUPPUSWAMY, THERUTHINILAM HOUSE, KAKKODI.P.O, CHELANNUR, CALICUT. 2. K.E.VISWANATHAN, S/O VASUDEVEN, 5/204, CANAL ROAD, ERANHIPALAM.P.O, KOZHIKODE. 3. UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE NO.1, CHEROOTTY ROAD, KOZHIKODE. ADV. SRI.A.A.MOHAMMED NAZIR FOR R3 SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2792 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March 2011 JUDGMENT Basheer, J. This appeal has unravelled a very strange procedure adopted by a Motor Accidents Claims Tribunal, which has, perforce, compelled the appellant/insurance company to file this appeal and drag the victim of the accident to this court. 2. Two stage carriages collided against each other on the Kozhikode Balussery road at about 11 a.m. on September 24, 2000. One of the above two vehicles bearing Reg.No.KLL-4012 was insured with the appellant; and the other (Reg.No.KRZ-3597) with M/S United India Insurance Company, respondent No.3 in this appeal. Two passengers travelling in KLL-4012 sustained injuries. In fact the claimant in this case, who is respondent No.1 herein, lost his right arm at the shoulder level. The other victim, a minor, escaped with some minor injuries. 3. The claimant in this case was awarded a sum of Rs.4,89,500/- with 8% interest and a sum of Rs.2500/- towards cost. Initially, the Tribunal passed the above award on August 3, 2007 directing M/S United India Insurance Company to indemnify the owner of the vehicle bearing Reg.No.KRZ-3597, since Ext.A1 First Information Report revealed that Police had registered Crime No.1387/2000 against the driver of the said vehicle. 4. In this context, it may at once be noticed that the claimant had not impleaded the drivers of the two vehicles involved in the accident. Still further, M.A.C.A.No.2792 OF 2008 :: 2 : no contra evidence was adduced by the owners or insurance companies of the vehicles as regards the rashness and negligence attributed against both drivers. In short, the Tribunal accepted the fact that the police had prima facie found the driver of the vehicle bearing Reg.No.KRZ-3597 responsible for the accident on the basis of the crime registered against him. Under normal circumstances, the matter would have rested there as far as the question of rashness and negligence was concerned. 5. However, the insurer of the vehicle bearing Reg.No.KRZ-3597 namely, United India Company Limited filed I.A.2874/07 three months after the passing of the award (of course with a petition to condone the delay) contending that the police had charge sheeted the driver of the bus bearing Reg.No.KLL-4012 for the offences punishable under Sections 279 and 338 Indian Penal Code. According to the review petitioner, this fact could not be brought to the notice of the Tribunal at the time when the case was taken up for consideration. 6. The Tribunal dismissed the above application for review by its order dated January 25, 2008 which reads thus: “As per the documents produced before this Court respondent Nos.3 and 4 are liable to pay compensation to the petitioner. So I do not find any ground to review the award. Hence dismissed.” 7. It may be noticed that the review petitioner had not produced copy of the charge sheet or any record to show that the police had charge sheeted the driver of the vehicle bearing Reg.No.KLL-4012 though such an averment was made in the review petition. M.A.C.A.No.2792 OF 2008 :: 3 : 8. But the review petitioner did not stop there. Immediately after dismissal of the review petition, yet another application as I.A.242/08 was filed by the Insurance Company under Section 169 of the Act read with Section 151 of the Code of Civil Procedure with a prayer “to reconsider the order passed in I.A.2873/07 and 2874/07 and to pass an order exonerating respondent Nos.3 and 4” (the owner and the Insurance Company). Of course, the company had produced a photocopy of the truncated charge sheet reportedly filed by the police before the jurisdictional Magistrate along with IA 242/08. “This petition is to reconsider the review petition dismissed for default on 25-1-2007. (2) According to the petitioner the accident occurred due to the rash and negligent driving of the bus bearing No.KLL-4012. But the 3rd and 4th respondents were found responsible for the accident. So the review petition was filed. But it was dismissed as no supporting document was produced. Now the copy of the charge sheet has been filed. As per the charge sheet it is seen that the driver of the bus bearing No.KLL-4012 was found responsible for the accident. Hence the respondents 1 and 2 are liable to pay compensation to the petitioner. Hence this petition is allowed. Carry out necessary amendment in the award”. 9. It is seen from the records that on the same day the Tribunal passed an order on IA 2874/07 directing that necessary amendment be carried out in the operative portion of the award holding the insurer of the bus bearing No.KLL 4012 liable. The Tribunal passed the following order on February 8, 2008. M.A.C.A.No.2792 OF 2008 :: 4 : 10. The appellant viz. the Oriental Insurance Company, impugns the original award as well as the order of review passed by the Tribunal in this appeal. 11. We have heard learned senior counsel who appears for the appellant. We have also heard learned counsel for the claimant and the other insurance company and perused the records which were called for by us. 12. It is seen from the last order that the Tribunal has fastened the liability to indemnify the owner of the vehicle bearing registration No.KLL-4012 relying solely on the photocopy of the truncated charge sheet produced by the other insurance company viz. M/S United India Insurance Company. We need not repeat what the Tribunal has stated for arriving at the conclusion that the driver of the vehicle bearing Reg. No.KLL-4012 was responsible for the accident. The Tribunal simply accepted the photocopy of the charge sheet (if we may call it so) and held the driver of KLL 4012 liable. If in fact the Tribunal was of the view that the document produced by the other insurance company was sufficient enough to hold this particular driver responsible for the accident, necessarily the award ought to have been reopened and posted for further evidence giving opportunity to all concerned to adduce evidence. Under normal circumstances the issue could have been given a quietus at this stage itself. 13. There is yet another aspect of the matter. The earlier petition filed by the insurance company for review under Order 47 Rule 1 of the Code of Civil Procedure was not dismissed for default as observed by the Tribunal in the order. In fact the earlier order would show that the said application was dismissed on M.A.C.A.No.2792 OF 2008 :: 5 : merit. Therefore, the second application filed by the same review petitioner under Section 169 of the Act read with Section 151 of the Code of Civil Procedure to reconsider the earlier order could not have been entertained at all for reasons more than one. We need not elaborate. Having perused the entire materials available on record, we have no hesitation to set aside the orders passed by the Tribunal on I.A.2874/2007 and I.A.242/08. 14. The records reveal that the parties had not rendered proper assistance to the Tribunal in the course of the trial. Strangely, the claimant had also not impleaded the drivers of the two vehicles involved in the accident. Though the registered owners were on the party array, they did not contest the case. No oral evidence was adduced by the claimant though he has produced Exts.A1 to A6 on his side. 15. As has been noticed already, the claimant had produced only the copy of the First Information Report registered by the Police in respect of the crime against the driver of the bus bearing registration No. KRZ 3579 which was insured with respondent No.3 in this appeal. But learned counsel for respondent No.3 points out that subsequently the Police had charge sheeted the driver of the bus bearing registration No.KLL 4012 after completing the investigation. The above aspect has not been denied or controverted by the appellant. Be that as it may; the fact remains that the question as to who among the two drivers was responsible for the accident has not been properly considered by the Tribunal. The liability of the insurer will depend on a definite finding on the above issue. M.A.C.A.No.2792 OF 2008 :: 6 : 16. In any view of the matter, we are satisfied that the case has to be remitted to the Tribunal for a fresh decision on the above issue. We hasten to add that the quantum of compensation fixed by the Tribunal is not being disturbed. The Tribunal shall only consider the issue relating to the alleged rash and negligent driving of one of the two drivers and the liability of the respective owner of the vehicle concerned. It will be open to the appellant and the third respondent to adduce further evidence in the matter, both oral and documentary, if they are so advised. The Tribunal shall pass a revised award as indicated above as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment. Parties shall appear before the Tribunal on March 23, 2011. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes