Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 MACA.No.1731 OF 2008(C) AGAINST THE AWARD IN OPMV 996/2004 DATED 23-01-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA APPELLANT/S:
ORIENTAL ERNAKULAM, REPRESENTED BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN RESPONDENT/S: 1 ANU BINU W/O BINU, EDAYADIYIL HOUSE, POONJAR.P.O, PERINNILAM. 2 BALAKRISHNAN NAIR S/O.NARAYANAN NAIR MAZHUVANCHERIYIL HOUSE,KONDOOR VILLAGE,, THIDANADU KARA, VAIKANAPARA BHAGOM. 3 SINU W/O SHAJAHAN PATHALAPURAYIDATHIL HOUSE, ERUMELY THEKKU VILLAGE, KARIMKALLUMMOOZHY, BHAGOM. 4 P.T.THOMAS PULICKAL HOUSE POONJAR.P.O ERATTUPETTA.P.O. R1 BY ADV. SRI.JACOB E SIMON R3 BY ADV. SRI.P.BABU KUMAR R3 BY ADV. SRI.P.YADHU KUMAR R3 BY ADV. SRI.VISHNU BABU R4 BY ADV. SRI.BABY THOMAS R4 BY ADV. SRI.J.PRAKASH C.VADAKKAN OTHER PRESENT: SRI.GEORGE CHERIAN(THIRUVALLA) AND SMT.K.S.SANTHI FOR APPELLANT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0403-2021, ALONG WITH WP(C).23340/2008(C), WP(C).23341/2008(D), WP(C).23342/2008(D), WP(C).23343/2008(D), WP(C).23344/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23340 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 395/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S:
THE ORIENTAL INSURANCE CO.LTD ERNAKULAM REP. BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 NARAYANANKUTTY NADACKAL HOUSE, THALANADU VILLAGE AND KARA, THALANADU PO. 2 BALAKRISHNAN NAIR SO.NARAYANAN NAIR MAZHUVANCHERIYIL HOUSE,, VEYILUKANAMPARA BHAGOM, THIDANADU KARA, KONDOOR VILLAGE. 3 SAINU SHAJAHAN PATHALUPURAYIDATHIL HOUSE, ERUMELY NORTH VILLAGE, ERUMELY KARA, KARIMKALLUMMOOZHY BHAGOM. 4 P.T.THOMAS PULICKAL ERATTUPETTA. R1 BY ADV. SRI.AJEESH K.SASI R4 BY ADV. SRI.MATHEW JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23341/2008(D), WP(C).23342/2008(D), WP(C).23343/2008(D), WP(C).23344/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23341 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 409/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S:
THE ORIENTAL INSURANCE CO.LTD. ERNAKULAM, REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH,, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 RADHAMANI AMMA THAZHAKKAVANAL HOUSE, CHENNADU OFFICE, VILLAGE AND KARA, CHENNADU PO., 2 BALAKRIASHNAN NAIR S/O.NARAYANAN NAIR, MAZHUVANCHERIYIL HOUSE, VEYILAKUNAMPARA BHAGOM, THIDANADU KARA, KONDOOR VILLAGE. 3 SAINU SHAJAHAN PATHALUPURAYIDATHIL HOUSE, ERUMELY NORTH VILLAGE, ERUMELY KARA, KARIMKALLUMOOZHY BHAGOM 4 P.T.THOMAS PULICKAL ERATTUPETTA. R1 BY ADV. SRI.BABY THOMAS R1 BY ADV. SRI.MATHEW JOHN K THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23340/2008(C), WP(C).23342/2008(D), WP(C).23343/2008(D), WP(C).23344/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23342 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 995/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S:
THE ORIENTAL INSURANCE CO. LTD. ERNAKULAM, REP. BY ITS ASSISTANT MANASGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 SINU SEBASTIAN POONJAR PO., PERUNNILAM. 2 BALAKRISHNAN NAIR S/O.NARAYANAN NAIR, MAZHUVANCHERIYIL HOUSE, KONDOOR VILLAGE, THIDANADU KARA, VEYILUKANAMOARA BHAGOM.
3 SINU WO.SHAJAHAN PATHALUPURAYIDATHIL HOUSE, ERUMELY THEKKU VILLAGE, KARIMKALLUMMOOZHY BHAGOM. 4 P.T.THOMAS PULICKAL HOUSE ERATTUPETTA PO., THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23340/2008(C), WP(C).23341/2008(D), WP(C).23343/2008(D), WP(C).23344/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23343 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 501/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S: THE ORIENTAL INSURANCE CO.LTD. ERNAKULAM REP. BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 MOHANAN KATHIL HOUSE, PUTTOOR VILLAGE, KOTTATHALAMURI, SARIGA JN., BHAGOM, KOLLAM. 2 P.T.THOMAS PULICKAL H POONJAR PO.
3 BALAKRISHNAN NAIR S/O.NARAYANAN NAIR,, NAZHUVANCHERIYIL HOUSE, THIDANADU KARA, KONDOOR VILLAGE, VEYILUKANAMPARA BHAGOM 4 SAINU SHAJAHAN PATHALUPURAYIDATHIL HOUSE, ERUMELY NORTH VILLAGE, ERUMELY KARA, KARIMKALLUMMOOZHY BHAGOM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23340/2008(C), WP(C).23341/2008(D), WP(C).23342/2008(D), WP(C).23344/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23344 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 10216/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S: THE ORIENTAL INSURANCE CO. LTD. ERNAKULAM, REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH,, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 BIBIN K.BABU KALLOLIL HOUSE, REP. BY THE NEXT FRIEND AND, GUARDIAN, BABU. 2 P.T.THOMAS PULICKAL POONJAR PO. 3 BALAKRISHNAN NAIR NAZHUVANCHERIYIL HOUSE VAILKANAMPARA, ERATTUPETTA-2. R1 BY ADV. SRI.AJEESH K.SASI R1 BY ADV. SRI.MATHEW JOHN K THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23340/2008(C), WP(C).23341/2008(D), WP(C).23342/2008(D), WP(C).23343/2008(D), WP(C).23345/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942 WP(C).No.23345 OF 2008 AGAINST THE ORDER/JUDGMENT IN OPMV 1050/2004 DATED 23-01-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA PETITIONER/S: THE ORIENTAL INSURANCE CO.LTD. REP. BY ITS ASSISTANT MANAGER,, REGIONAL OFFICE, ERNAKULAM, KOCHI.18 BY ADV. SRI.GEORGE CHERIAN (SR.) RESPONDENT/S: 1 ABIN K.BABU (MINOR) ARUVITHURA PO., ERATTUPETTA-11, REP. BY NEXT, FRIEND AND GUARDIAN, BABU. 2 P.T.THOMAS PULICKAL HOUSE POONJAR.P.O., 3 BALAKRISHNAN NAIR MAZHUVANCHERIYIL HOUSE, VAILKANAMPARA,, ERATTUPETTA-2.,
4 SAINU SHAJAHAN PATHALUPURAYIDATHIL HOUSE, ERUMELY NORTH VILLAGE, ERUMELY KARA., KARIMKALLUMMOOZHY BHAGOM. R1 BY ADV. SRI.AJEESH K.SASI R1 BY ADV. SRI.MATHEW JOHN K THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-032021, ALONG WITH MACA.1731/2008(C), WP(C).23340/2008(C), WP(C).23341/2008(D), WP(C).23342/2008(D), WP(C).23343/2008(D), WP(C).23344/2008(D), THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING: 23342,23343, 23344 & 23345 OF 2008 8
P.V.KUNHIKRISHNAN, J ----------------------------------------------- M.A.C.A. No.1731 of 2008 and W.P.(C.) Nos.23340, 23341, 23342, 23343, 23344 & 23345 of 2008 ------------------------------------------------------------------ Dated this the 5th day of March, 2021
JUDGMENT
The captioned cases are six writ petitions and one MACA. All these writ petitions and the MACA are connected and therefore, I am disposing of all these cases by a common judgment.
2. These cases are filed challenging the common award in O.P.
(M.V.) Nos. 395,409, 501, 995, 996, 1046 and 1050 of 2004 on the file of the Motor Accidents Claims Tribunal, Pala. All these claim petitions were filed under Sec. 166 of the Motor Vehicles Act by the claimants/injured in a road traffic accident. Hereinafter the respondents are mentioned in accordance to their rank in O.P.(M.V.) No. 501/2004, which is the subject matter in W.P.(C.) No. 23343/2008.
3. The short facts are like this :
The petitioners in these claim petitions sustained injuries in a road traffic accident happened on 29.01.2004 at about 9.50 p.m. at Thidanad. All the petitioners were travelling in a bus bearing registration No. KL- 8/G-6919 through Kanjirappally-Erattupetta road. The driver 23342,23343, 23344 & 23345 OF 2008 9 lost control of the vehicle and it turned turtle. The claimants contended that the accident occurred due to the rash and negligent driving by the 2nd respondent, who is the driver of the bus. The 1 st respondent is the owner and the 3 rd respondent is the insurer of the vehicle.
4. All these claim petitions were tried together. To
substantiate the case, Exts. A1 to A26 were marked on the side of the claimants and Exts. B1 to B14 were marked on the side of the respondents. After going through the available documents and pleadings, the Tribunal allowed the claim petitions and ordered compensation to the claimants and directed the Insurance Company to pay the compensation. In the award, there is a finding by the Tribunal that there is collusion between the Insurance Company and one Sainu Shajahan, who is arrayed as 4th respondent in O.P.(M.V.) No. 501/2004. According to the 1st respondent, 4th respondent is the owner of the bus. Aggrieved by this award, these cases are filed by the Insurance Company. The writ petitions are filed because the compensation awarded in the impugned awards in all those cases are below Rs.10,000/-. The appeal is filed against the award in O.P.(M.V.) No.996/2004 in which the amount of compensation awarded is Rs.23,000/-. 23342,23343, 23344 & 23345 OF 2008 10
5. Since common contentions were raised in all these cases
before the Tribunal, I will narrate the contentions in brief. The 1 st respondent in O.P.(M.V.) Nos. 501/2004, 1046/2004 and 1050/2004, who is the additional 4th respondent in the other claim petitions filed separate written statements raising similar contentions. According to him, he sold the vehicle to Sri.P.M.Hameed, S/o Meera Sahib, Pathalupurayidathil, Erumely on 8.3.2000 and he intimated the sale to the registering authority as well as the 3 rd respondent Insurance company. After 8.3.2000, according to this respondent, he had no interest over the vehicle. In December, 2001 this respondent came to know that the transfer was not endorsed in the registration certificate. Therefore, this respondent and transferee of the vehicle filed a joint application before the RTO to transfer the permit. The transferee made this respondent believe that the endorsement was made in the RC book and the permit will be transferred in the name of the transferee's son. The permit was later transferred in the name of Sainu Shajahan, daughter-in-law of P.M.Hameed as per proceedings No.C7-738 dated 23.01.2002 of the RTO. Since the tax remained unpaid, revenue recovery proceedings were initiated. Sainu Shajahan 23342,23343, 23344 & 23345 OF 2008 11 moved this Court by filing a writ petition for an order directing the RTO to transfer the ownership and permit in her name. This Court permitted Sainu Shajahan to pay the tax arrears in instalments. Therefore, this respondent contended that he is an unnecessary party in these claim petitions. According to him, there is no contract between this respondent and the 3rd respondent-Insurance Company. According to him, after conniving with the owner of the vehicle, the 3rd respondent-Insurance Company issued policy in the name of this respondent. According to him, he has no liability whatsoever and the amount of compensation claimed is excessive.
6. The 3rd respondent (Insurance Company) filed separate
written statements in all the cases raising the following similar contentions : They denied the averments in the claim petitions. According to the Insurance Company, the vehicle bearing registration No.KL-8/G-6919 was insured with the Company in the name of the 1 st respondent-P.T.Thomas, Pulickal, Erattupetta for the period starting from 7.11.2002 and ending in the midnight of 6.11.2003. The policy was renewed in the subsequent year. Premium was paid in cash. According to the Insurance Company, premium of the policy No.1883/2004 was paid by way of a cheque issued by one Shajahan 23342,23343, 23344 & 23345 OF 2008 12 drawn on the Catholic Syrian Bank Ltd, Koovappally branch. It was sent for collection. The cheque was dishonoured for want of funds in the account of the drawer. The Company cancelled the policy issued to P.T.Thomas and registered notice of cancellation was given to him. Copy of that notice was sent to the RTO on 2.12.2003. According to the Insurance Company, the registered owner was advised to pay premium amount in cash. However, registered owner approached the Insurance Company only on 30.01.2004. Accordingly, a fresh policy No.2633 was issued for the period from 30.01.2004 to 29.1.2005. On the date of accident, according to the Insurance Company, there was no insurance for the vehicle. Hence, they contended that, they are not liable to indemnify the registered owner and to pay compensation. The Insurance Company also contended that, there is no negligence on the part of the 2 nd respondent. According to the Insurance Company, the amount of compensation claimed is also excessive.
7. The following issues were framed by the Tribunal for consideration.
1. Who is responsible for the accident ?
2. Whether the third respondent is liable ?
3. Whether the petitioner is entitled to get compensation ? If
so, what is the quantum? 23342,23343, 23344 & 23345 OF 2008 13 As far as the point No.1 is concerned, the Tribunal found that the accident occurred due to the negligence of the driver of the offending vehicle. As far as point No.2 is concerned, the Tribunal considered the relevant documents produced by both parties. Thereafter, the Tribunal came to a definite conclusion that there is some collusion between Sainu Shajahan (R4) and the Insurance Company. The Tribunal exonerated P.T.Thomas (R1), who is alleged to be the RC owner. The Tribunal ordered compensation to the injured and directed the Insurance Company to pay the compensation. Aggrieved by the above finding against the Insurance Company and directing the Insurance Company to pay the compensation, this appeal and the other writ petitions are filed.
8. Heard counsel for the Insurance Company, counsel for
P.T.Thomas and counsel for Sainu Shajahan (hereafter, I will mention the name of the respondents, because in some of the O.P.(M.V.), the rank is shown to these respondents differently).
9. The counsel for P.T. Thomas argued that in the light of
Exts.B1 to B14 documents, it is clear that P.T. Thomas has no connection to the vehicle as on the date of the accident. The counsel takes me through Ext.B1 sale agreement dated 9.3.2000, Ext.B2 23342,23343, 23344 & 23345 OF 2008 14 certified copy of the Kacheettu dated 29.3.2004, Ext.B3 copy of the
order No.C7/738/2001 of RTO, Kottayam dated 23.1.2002 and the
certified copy of the writ petition in O.P. No. 24596/2002 filed before this Court. According to the counsel appearing for P.T.Thomas, it is clear from the above documents that his client has no connection to the vehicle as on the date of the accident. The counsel takes me through Ext.B5 copy of the judgment in O.P. No. 24596/2002 also. The counsel submitted that even though the name of P.T.Thomas is mentioned in Exts.B7 and B8 policy certificates, the proposal submitted by the person before the Insurance Company is suppressed by the Insurance Company. According to him, he has not submitted any application before the Insurance Company to get the policy renewed because he already transferred the vehicle long back. According to the counsel, if the proposal document is produced before the Court that will clinch the issue. According to him, his client has not signed any proposal form and he has not submitted any proposal before the Insurance Company for getting the policy. If there is such a proposal, that is a forged document. The counsel also submitted that if this Court direct the Insurance Company to produce that proposal before this Court that will prove the case of Sri.P.T.Thomas. The 23342,23343, 23344 & 23345 OF 2008 15 counsel submitted that the cheque issued for payment of the premium is by Shajahan. His case is that the Tribunal after considering the entire evidence, concluded that there is collusion between the Insurance Company and Sainu Shajahan. The counsel for Sainu Shajahan submitted that there will not be any proposal if it is a renewal of the existing policy. The counsel submitted that he is not the RC owner as on the date of the accident and therefore, he may be exonerated from paying the compensation.
10. The counsel for the Insurance Company vehemently argued
that the findings of the Tribunal is without any evidence. The senior counsel who appeared for the Insurance Company takes me through the documents produced by the respondents as Exts. B1 to B14. The senior counsel submitted that there is no collusion as stated by the Tribunal. The senior counsel submitted that the Tribunal without any oral evidence to substantiate the documents produced came to a
conclusion that there is collusion between the Insurance Company
and Sainu Shajahan. According to the senior counsel, the finding of the Tribunal is unsustainable for the simple reason that there is no oral evidence to substantiate the documentary evidence produced before the court. The contention of the senior counsel is that, when 23342,23343, 23344 & 23345 OF 2008 16 there is dispute about a document, oral evidence is necessary and when there is no oral evidence, the disputed documents cannot be relied by the Tribunal.
11. It is an admitted fact that no oral evidence is adduced in this case. The findings of the Tribunal is based on the pleadings and the documents produced. The relevant portion of the award is extracted hereunder :
“18. The main controversy in all the cases is between the insurance company on the one side and respondents 2 and 4 on the other side. Fourth respondent's contention is that he has nothing to do with the vehicle because a joint application was filed before the RTO for transferring the certificate of registration and permit was allowed. Learned counsel for the fourth respondent submits that no amount of evidence produced on the side of the insurance company to make the fourth respondent liable would have any impact, inasmuch as the fourth respondent is not the owner of the vehicle. According to the learned counsel for the fourth respondent, the insurance company and the 2nd respondent colluded. He submits that premium was paid by the 2nd respondent by way of a cheque at the time when the 2 nd respondent was the owner of the vehicle, that the insurance company after accepting the cheque turned round to make a claim against the 4th respondent, though he has nothing to do with the vehicle or payment of premium.
19. Ext.B1 is the sale letter. The sale letter indicates that on
receipt of consideration 4th respondent handed over possession of the vehicle to the transferee. It appears from the document that the 2 nd respondent possessed the vehicle prior to the transfer by virtue of a hypothecation agreement in favour of M/s. N.P.R.Finance Company. The recital in the document indicates that the vehicle was transferred to one Hameed s/o Meera Sahib. After the transfer and after the accident, police released the vehicle to Shajahan, the husband of 2nd respondent. This indicates that at the time of accident Shajahan was in possession of the vehicle. Ext.B3 is the copy of proceedings of the RTA, Kottayam in an application to transfer permit of vehicle running in the route Erattupetta-Kanjirappllay (via) Thidanadu, Pinnakkanad and Anakkallu. The applicants are the 4 th respondent and 2nd respondent herein. It is evident that the RTA had allowed this application on 23.1.2002. Ext.B4 is the copy of original
23342,23343, 23344 & 23345 OF 2008 17
petition filed before the Hon'ble High Court by the 2 nd respondent. In that, 2nd respondent avers that sanction was accorded by the RTA, Kottayam on 23.1.2002 and the copy of the proceedings is marked as Ext.B1 in the original petition before the Hon'ble High Court. The original petition was filed by the 2 nd respondent for a Writ of Mandamus directing RTO to tranfer the permit sanctioned by Ext.P1 in favour of the 2nd respondent. By Ext.B5 order, the Hon'ble High
Court allowed the Writ Petition. The Hon'ble High Court also held
that the 2nd respondent herein who is the petitioner in the original petition before the Hon'ble High Court was liable to pay arrears of tax. Hon'ble High Court closed the matter since the Secretary, RTA had already allowed the application for transfer and no further action was necessary in the matter. All these matters happened in the year
2002. The application for transfer of permit was allowed as early as
on 23.1.2002. It is now evident from the documents produced in this case that the 2nd respondent was in possession of the vehicle in pursuance of Ext.B1 agreement and she was plying the vehicle as per the permit transferred in her name by virtue of Ext.B2 order of the RTA, Kottayam. Second respondent therefore was in absolute possession of the vehicle after the transfer of permit, and almost certainly, the 4th respondent had nothing to do with the vehicle.
20. The 4th respondent categorically averred in the written
statement that he did not take any policy, that a policy was issued in his name as a result of the collusion between the third respondent and the owner of the vehicle, the 2 nd respondent. Third respondent avers that premium amount for policy No.1883/04 was paid by way of cheque drawn on the Catholic Syrian Bank Ltd, issued by one Shajahan who happens to be the husband of the 2 nd respondent. This cheque was presented for collection and it was admittedly dishonoured. In the written statement, third respondent insurance company avers that registered notice was sent to the 4 th respondent who approached the company and paid premium of Rs.21,197/-. This is disputed by the learned counsel for the 4 th respondent. In order to prove their case, the insurance company placed reliance on Ext.B12, a letter purported to have been sent to the 4 th respondent by the Senior Branch Manager of the third respondent on 2.12.2003. it is stated in this document thus :”We have been advised by our bankers that your cheque collected by us vide our Receipt No.1103980 dated 6.11.2003 had been dishonoured by the drawee bank with the remark “INSUFFICIENT FUND” (emphasis supplied). It is evident that there is a significant deceptive statement in the letter namely the words “your cheque”. The cheque was not drawn on an account maintained by the 4th respondent. On the contrary, it appears that the drawer of the cheque was one Shajahan, who happens to be the husband of the 2nd respondent. This cheque bounced. There is also one another clear suggestion in this document that the insurance company, third respondent and the 2nd respondent are hand in glove. In the copy of the letter, a Mobile number is noted and it is written in
23342,23343, 23344 & 23345 OF 2008 18
that document “Shajahan is informed”. Who could be this Shajahan? Obviously, he is none other than the husband of the 2 nd respondent. Therefore, it is clear that the third respondent insurance company was aware of the fact that at that time, the 4 th respondent was not in possession of the vehicle; that it was with Shajahan, the husband of the 2nd respondent, who paid premium by a cheque, which bounced on presentation. These matters posit an inference that the insurance company was aware of the transfer. Learned counsel for the 4 th respondent emphatically submitted that no proposal form was signed and handed over by the 4th respondent to the insurance company and that no payment of premium was made after 23.1.2002.
21. A proposal form has a great deal of importance in an
insurance contract. It is the usual practice in non-marine insurances for the insurer to require the applicant for insurance to complete a proposal form containing a number of questions put with a view to ascertaining the exact nature of the risk to be assessed and covered. The applicant declares that he warrants the truth of the statements made in the proposal form and agrees that it shall be the basis of the contract and that he will accept the usual form of the policy issued by the insurer in such cases (M.N.Srinivasan's Principles of Insurance Law, Seventh Edition). The proposal form in this case is with the insurance company. According to the 4 th respondent, proposal form was not signed by him; no contract was entered into with the insurance company and therefore, he has no liability whatsoever. The proposal form has been withheld from this Tribunal. In Hiralal v.Badkulal (AIR 1953 SC 225 1953 SCR 758) the Hon'ble Supreme Court held that it is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court written evidence, which is in their possession, which could throw light upon the issues in controversy, and to rely upon the mere doctrine of onus of proof. In such circumstances, adverse inference has to be drawn against the party in possession of the same and in this case, it is the insurance company, the third respondent herein. A court possibly will draw adverse inference against a party for withholding material documents in its possession (Atyam v. Pechitti, A 1966 SC 629; Baljit v. S, A 1976 SC 2273; Ramdas Oil Mills v. Union A 1977 SC 638). Adverse inference possibly will be drawn for non-production insurance company withheld the proposal form from this Tribunal. Besides officers have not mounted the witness box. These matters speak volumes about the complicity between the second respondent and the officers of the insurance company. The insurance company accepted cheque from the 2 nd respondent. When the cheque bounced, it informed the drawer of the cheque, produced by the insurance company. Thereafter, a letter was produced before this Tribunal with a false statement that the cheque was issued by the 4th respondent, which apparently is shown to be untrue by a mere reading of the document relied on by the 2 nd respondent. Thereafter, a policy was issued by the insurance
23342,23343, 23344 & 23345 OF 2008 19
company in the name of the 4th respondent and the 4th respondent's case is that no cash was paid by him; that no proposal form was signed by him and that therefore, he is not liable. The insurance company did not produce the proposal form. Therefore, I am unable to hold that there was any contract between the insurance company and the 4th respondent. On the contrary, perusal of the documents and a careful analysis of the evidence posit an irresistible inference that the insurance company, the third respondent was aware of the fact that the Shajahan was in possession of the vehicle. Therefore, there is not only callous indifference on the part of the insurance company's officials, but the company officials and the 2 nd respondent are hand in glove to foist a false claim against the 4 th respondent. Now, an attempt is made to mulct the liability on the 4 th respondent by saying that a cheque issued by him bounced. Learned counsel for the third respondent relies on a document produced after the close of evidence, a certified copy of the permit in respect of the stage carriage, which stands in the name of the 4 th respondent. This has no
significance inasmuch as the Hon'ble High Court by Ext.B5 judgment
observed thus : Ext.P1 shows that the application for transfer of permit had been allowed, by the Secretary, RTA, Kottayam.....The endorsement will be carried out by making an entry in the registration certificate about this arrangement.” Therefore, for all practical purposes, the 4th respondent ceased to be the owner of the vehicle; a fact which was known to the insurance company, which accepted a cheque from Shajahan towards payment of premium. Therefore, the fact that the RTO did not obey the orders of the Hon'ble High Court is of no consequence as far as the 4 th respondent is concerned. Fourth respondent cannot carry out change or endorsement in the RTO's book. It is for the RTO to do that. The insurance company cannot take shelter behind the incorrect endorsement by the RTO with regard to a document produced by them when they themselves were aware of the fact that 4 th respondent has nothing to do with the vehicle. Therefore, since there was no contract between the 4th respondent and the insurance company, the insurance company cannot now seek the aid of Sec. 149(2) to recover the amount from the 4 th respondent. Fourth respondent has no liability whatsoever. The issue is answered thus.”
12. These findings by the Tribunal is without any oral
evidence. The Tribunal came to the conclusion that there is collusion between the Insurance Company and Sainu Shajahan. The Insurance Company has got a definite case based on Exts.B1 to B16 documents. 23342,23343, 23344 & 23345 OF 2008 20 But these documents are not proved in accordance to law. When there is dispute about a document from one party, it is the duty of the other party who produce the documents to adduce oral evidence to substantiate their case. In such situation, the cases should be remanded for fresh consideration. I don't want to make any observation about the merit of the case. Even though the counsel appearing for P.T.Thomas submitted that if this Court direct the Insurance Company to produce the proposal form that will solve the issue. I don't want to decide that issue while considering these appeal and writ petitions. I am leaving open all those issues to be decided by the Tribunal. The Tribunal will consider the entire aspects afresh based on the documents already produced and the oral evidence, if any adduced by the parties. I am setting aside all the impugned awards and directing the Tribunal to consider the matter afresh. Therefore, these writ petitions and appeal are disposed in the following manner :
1) All the writ petitions are allowed and the impugned awards are set aside. The Motor Accidents Claims Tribunal, Pala is directed to restore O.P.(M.V.) No.395, 409, 501, 995, 104 & 1050 of 2004. 23342,23343, 23344 & 23345 OF 2008 21
2) MACA No.1731/2008 is allowed. The impugned award in O.P.(M.V.) No. 996/2004 is set aside. The Tribunal is directed to restore O.P.(M.V.) No.996/2004.
3) The Tribunal will allow the parties to adduce fresh oral and documentary evidence, if any. If an application is filed by P.T.Thomas for issuing direction to produce the proposal for renewing the document from the Insurance Company, that petition will be allowed by the Tribunal. Thereafter, the Tribunal will dispose the case afresh.
4) The Tribunal will dispose the cases, as expeditiously as possible, at any rate, within 6 months from the date of receipt of a copy of this judgment.
5) The parties will appear before the Tribunal on 5.4.2021. The Registry will return the LCR to the Tribunal. sd/- P.V.KUNHIKRISHNAN JUDGE SKS 23342,23343, 23344 & 23345 OF 2008 22 APPENDIX OF WP(C) 23340/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.395/2004 ON THE FILE OF MACT, PALA 23342,23343, 23344 & 23345 OF 2008 23 APPENDIX OF WP(C) 23341/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.409/2004 ON THE FILE OF MACT, PALA 23342,23343, 23344 & 23345 OF 2008 24 APPENDIX OF WP(C) 23342/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.995/2004 ON THE FILE OF MACT, PALA 23342,23343, 23344 & 23345 OF 2008 25 APPENDIX OF WP(C) 23343/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.501/2004 ON THE FILE OF MACT, PALA 23342,23343, 23344 & 23345 OF 2008 26 APPENDIX OF WP(C) 23344/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.1046/2004 ON THE FILE OF MACT, PALA 23342,23343, 23344 & 23345 OF 2008 27 APPENDIX OF WP(C) 23345/2008 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AWARD DATED 23.1.08 IN O.P.(M.V.) NO.1050/2004 ON THE FILE OF MACT, PALA