Cholamandalam M/s General v. Kanwal Singh & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Ms. Vandana Malhotra, Advocate for the petitioner. L. N. MITTAL, J (ORAL) This is revision petition by Insurance Company filed under Article 227 of the Constitution of India, assailing order dated

14.09.2009 (Annexure P-1) passed by learned Motor Accident Claims Tribunal, Karnal whereby application (Annexure A-2) moved by the petitioner herein under Section 170 of the Motor Vehicles Act, 1988 (in short, the Act) for permitting the insurer-petitioner to defend the claim petition on merits, has been dismissed. Respondent No.1 has filed claim petition against respondent Nos.2 and 3 and the petitioner being driver, owner and insurer respectively of the alleged offending vehicle. In the title of the claim petition, respondent No.3 herein has also been mentioned to be driver of the offending vehicle, but in paragraph 14 of the claim petition, he has been depicted as owner of the vehicle. Even as per insurance policy, respondent No.3-Joginder Singh is owner of the vehicle as submitted by learned counsel for the petitioner. The petitioner moved application Annexure A-2 alleging C.R No.7000 of 2009 -2- that driver and owner of the vehicle have colluded with the claimant and will try to lose the valuable right of the insurer and will fail to contest the claim petition. The said application has been dismissed by the Claims Tribunal vide impugned order (Annexure P-1). I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner referred to various pleas mentioned in the application (Annexure A-2) to depict that the claim of alleged accident made by the claimant-respondent No.1 is patently false. However, this contention of learned counsel for the petitioner is irrelevant for the decision of application under Section 170 of the Act. Whether the claim of the claimant made in the claim petition is true or false has to be adjudicated upon by the Claims Tribunal after evidence is adduced by the parties. For the purpose of Section 170 of the Act, it has to be seen whether owner and driver of the vehicle have colluded with the claimant or have failed to contest the claim petition and only in that event, insurer may be permitted under Section 170 of the Act to contest the claim petition on merits. In the instant case, even the insurer in application (Annexure A-2) did not allege that owner and driver of the vehicle have failed to contest the claim petition. It has been alleged that owner and driver of the vehicle will fail to contest the claim petition. However, it is not explained as to on what basis, this prediction has been made by the petitioner in application (Annexure A-2). On the contrary, written statement filed by owner and driver of the vehicle has been shown by counsel for the petitioner. In the written statement, owner and driver of the vehicle have even denied the factum of accident and have C.R No.7000 of 2009 -3- pleaded that false case has been registered against the driver of the vehicle in collusion with local police. Learned counsel for the petitioner contended that owner and driver of the vehicle have colluded with the claimant. However, except bald, vague and general assertion to this effect in application (Annexure A-2), there is no circumstance or material to substantiate the same. It is correct that by its very nature, there cannot be direct evidence of collusion. However, collusion can be inferred from circumstances. In the instant case, no circumstance has come on record to depict any collusion between the claimant on the one hand and owner and driver of the vehicle on the other hand. The pleas raised by the petitioner in the application (Annexure A-2) to depict that the claim of the claimant is false would not depict any collusion of the claimant with owner and driver of the vehicle. There is not even a shred of material or circumstances on record to infer any collusion of claimant with driver and owner of the vehicle. Consequently, no ground is made out for grant of permission to the petitioner-insurer under Section 170 of the Act to contest the claim petition on merits. There is no infirmity much less illegality in the impugned order of the Claims Tribunal. Learned counsel for the petitioner relied on a judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd. versus Meghji Naran Soratiya and others, 2009(2) RCR (Civil) 558. However, even in this judgment, the Hon’ble Supreme Court observed that the Tribunal will implead the insurer as party under Section 170 of the Act, if it is found that there was collusion between the claimants and owner/driver of the vehicle and that driver C.R No.7000 of 2009 -4- and owner were not contesting the claim petition. In the instant case, however, these ingredients have not been established and, therefore permission under Section 170 of the Act cannot be granted to the insurer to contest the claim petition on merits. Learned counsel for the petitioner referred to observations made in paragraph 7 of the aforesaid judgment. However, Hon’ble Apex Court simply observed that generally there being collusion between the claimants and owners/drivers of the vehicles, these are matters that invite serious consideration particularly by Parliament and Law Commission and other stake holders. However, these observations in no way support the claim of the petitioner under the law as it exists today. Unless the Parliament amends the law, the petitioner cannot be granted permission to contest the claim petition on merits, without establishing that owner and driver of the vehicle have colluded with the claimant or have failed to contest the claim petition. In the instant case, the petitioner has failed to establish the same prima facie. The revision petition is without any merit and is accordingly dismissed.

04.02.2010 A. Kaundal ( L. N. MITTAL ) JUDGE