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2017 DIGILAW 853 (KER)

National Insurance Co. Ltd. v. Sajeev S/o. Soman

2017-06-07

ANIL K.NARENDRAN, C.T.RAVIKUMAR

body2017
JUDGMENT : Ravikumar, J. The former appeal filed by the National Insurance Company Ltd., arises from an order passed by the Motor Accident Claims Tribunal, North Paravur, on 24.3.2006 in I.A.No.2529/04 in O.P. (MV)No.874/04. The appellant was the 3rd respondent in the claim petition. Essentially, it is an interim award passed under Section 140 of the Motor Vehicles Act. As per the same, the appellant-National Insurance Company Limited, which is the 3rd respondent in the claim petition, was directed to deposit a sum of Rs.25,000/-. Evidently, while issuing such a direction, the Tribunal took note of the fact that Ext.P7 produced before it contained a certification to the effect that the claimant incurred 25% permanent disability due to the injuries sustained in the accident in question, which led to the filing of the above mentioned claim petition. The contention of the appellant in the former appeal is that though the aspect of negligence need not be looked into for passing an interim award under Section 140 of the MV Act, it would not empower the Tribunal to call for an insurer having no statutory liability at all, to indemnify the insured owner of the vehicle allegedly involved in a motor vehicle accident. The foundation for the said contention is that one of the vehicles allegedly involved in the accident, viz., the motorcycle bearing registration No.KL-7/U-3882, though insured with the appellant, was then having insurance coverage only by an 'act only' policy which is distinct and different from package policy/comprehensive policy inasmuch as, it would not cover the risk of a pillion rider in the said motorcycle. The petitioner in the claim petition was a pillion rider on the aforesaid motorcycle. The appeal was admitted on 23.12.2011 and an interim stay of implementation of the order in I.A.No.2529/04 in the aforementioned claim petition, was also granted by this Court as per order dated 23.12.2011 in I.A.No.1480/06. Evidently, during the pendency of the former appeal, the Tribunal passed the judgment and award in O.P.(MV)No.874/2004 on 15.10.2011. As per the said judgment, the additional 5th respondent-Kerala State Road Transport Corporation, whose vehicle was found involved in the accident, was mulcted with the liability to satisfy the award and the appellant in the former appeal was exonerated fully from the liability. As per the said judgment, the additional 5th respondent-Kerala State Road Transport Corporation, whose vehicle was found involved in the accident, was mulcted with the liability to satisfy the award and the appellant in the former appeal was exonerated fully from the liability. The Tribunal held that the accident had caused due to the negligence on the part of the driver of the KSRTC, viz., the additional 4th respondent. The additional 5th respondent-KSRTC, viz., his employer was held vicariously liable and was directed to satisfy the award since the said bus was not validly covered by an insurance policy. That constrained the additional 5th respondent in the claim petition to prefer the latter appeal. The judgment and the award in O.P.(MV)No.874/04 is challenged in the latter appeal mainly on the ground that the Tribunal had entered into a finding that the occurrence of accident was solely due to the negligence of the additional 4th respondent, is against the weight of evidence and therefore, it is absolutely unsustainable. 2. We will refer to the rival contentions, in detail, a little later. As noticed herein-before, as per the judgment in O.P. (MV)No.874/04, the 3rd respondent was completely exonerated from the liability. The learned counsel appearing for the appellant in the former appeal submitted that the order in I.A.No.2529/04 in O.P.(MV)No.874/04, which is under challenge in the former appeal, cannot be sustained in the light of the judgment and award in O.P.(MV)No.874/04. It is submitted that in view of the said judgment, the liability to pay the amount covered by the interim award also should have been saddled on the additional 5th respondent-KSRTC. In the circumstances mentioned above and also taking note of the fact that the appeals arise from one and the same claim petition, though the former appeal arises from an order passed thereon in an interlocutory application and the latter appeal is preferred against the judgment and award, they are jointly heard and are being disposed of by this common judgment. For the sake of convenience, the parties are referred to hereinafter in this judgment in accordance with their status before the Tribunal in O.P.(MV)No.874/04 unless otherwise specifically mentioned. 3. After hearing the learned counsel on both sides, we are of the view that it is proper to consider M.A.C.A.No.1904 of 2012, first. For the sake of convenience, the parties are referred to hereinafter in this judgment in accordance with their status before the Tribunal in O.P.(MV)No.874/04 unless otherwise specifically mentioned. 3. After hearing the learned counsel on both sides, we are of the view that it is proper to consider M.A.C.A.No.1904 of 2012, first. Before adverting to the rival contentions raised therein, it is only worthwhile to refer to the facts, in succinct, that led to the filing of the claim petition. At the time of the accident, the petitioner was aged 27 years. He claimed to be a mason by profession. On 18.2.2004 at about 10 p.m., he was travelling as a pillion rider on the motorcycle bearing registration No.KL-7/U-3882 through Aluva-Paravur public road from west to east. The 1st respondent was the rider of the said motorcycle. When the motorcycle reached Anachal, it collided with a KSRTC bus that came from the opposite direction. The petitioner sustained serious injuries which admittedly resulted in 25% permanent disability. It is seeking compensation for the injuries sustained by him and caused permanent disability that he filed the claim petition seeking a total compensation of Rs.13,82,000/- which was limited to Rs.10 lakhs. It was filed under Section 166 of the Motor Vehicles Act, 1988. Before the Tribunal, the claimant got himself examined as PW1 and on the side of the respondents, one Sabeesh and Sreenivasan were examined respectively as RWs.1 and 2. On the side of the petitioner, Exts.A1 to A9 were got marked and on the side of the respondents, a copy of the insurance policy document was marked as Ext.B1. The Tribunal on appreciation of evidence and the rival contentions, passed the impugned award; whereby a compensation of Rs.4,13,760/- with interest @ 7.5% per annum from the date of petition till realisation was granted. The additional respondents 4 and 5 therein were held jointly and severally liable to compensate the petitioner and the claim put forth against respondents 1 to 3, viz., the appellant in the former appeal and respondents 1 and 2 therein, who are respectively the rider, owner and insurer of the motorcycle bearing registration No.KL-7/U-3882, was dismissed. 4. The fact that the accident in question, in respect of which the compensation was granted to the petitioner, was a motor vehicle accident is not in dispute. It is to be noted that the quantum of compensation is not under challenge. 4. The fact that the accident in question, in respect of which the compensation was granted to the petitioner, was a motor vehicle accident is not in dispute. It is to be noted that the quantum of compensation is not under challenge. To identify the points of polemics, it is appropriate to refer to the rival contentions, in detail. As noticed hereinbefore, the additional 5th respondent-KSRTC in the former appeal, is the appellant in the latter appeal. The learned standing counsel appearing for the additional 5th respondent contended that it is worthwhile to refer to the original pleadings as also the position obtained after the amendment of the claim petition on the aspect of negligence, for the purpose of disposal of these appeals. Learned counsel further submitted that originally the case of the petitioner was that the accident in which he sustained injuries, occurred due to the exclusive negligence on the part of the rider of the motorcycle in which he was then a pillion rider. In tune with the said case, he had arrayed only the rider, the owner and the insurer of the said motorcycle as party respondents in the claim petition. Evidently, the 2nd respondent - the owner of the motorcycle involved in the accident remained ex parte. The 3rd respondent - insurance company filed a written statement taking up the contention that the accident occurred due to the negligence of the driver of the KSRTC bus and therefore the driver of the said bus as also the KSRT Corporation are necessary parties. Virtually, that persuaded the petitioner to move I.A.No.2413/09 seeking an amendment to the original petition and also to implead the driver of the KSRTC bus and the KSRTC as additional respondents 4 and 5 respectively in the claim petition. Evidently, as per the said interlocutory application, an amendment was also sought for, with respect to the averments on negligence. The petitioner got amended the original petition to incorporate the averments to the effect that the negligence on the part of the additional 4th respondent had also contributed to the cause of the accident in question. Evidently, as per the said interlocutory application, an amendment was also sought for, with respect to the averments on negligence. The petitioner got amended the original petition to incorporate the averments to the effect that the negligence on the part of the additional 4th respondent had also contributed to the cause of the accident in question. In other words, the change that was brought in, by the amendment, is to the effect that the accident had occurred due to the composite negligence of the rider of the motorcycle and the driver of the KSRTC bus and therefore, all the respondents are jointly and severally liable to pay compensation. The learned counsel for KSRTC brought to our attention the aforesaid aspects to drive home the point that at no point of time the injured petitioner got a case that the cause of accident is the exclusive negligence on the part of the driver of the KSRTC bus involved in the accident. It is further contended that the petitioner made a volte-face while being examined as PW1 and deposed that the accident occurred only due to the negligence of the driver of the KSRTC bus. According to the learned counsel, his oral evidence is not in tune with his pleadings. Even if the case put forth by the petitioner after the amendment is taken as true and proved, it would indicate only composite negligence on the part of the rider of the motorcycle and the driver of the bus involved in the accident. At any rate, the Tribunal ought not to have entered into a finding that the accident caused due to the sole negligence on the part of the 4th respondent - the driver of the KSRTC bus and consequently, mulcting of the entire liability on the appellant is also unsustainable, it is contended. It is also the contention of the learned counsel for the additional 5th respondent - the appellant in the latter appeal that the documentary evidence produced by the petitioner himself would go against the case of the petitioner as PW1 and it would only support the original case of the petitioner. To buttress the said contention, the learned counsel drew our attention to Exts.A1 to A3. Ext.A1 is the copy of the FIR in Crime No.161/04 registered at Aluva Police Station. To buttress the said contention, the learned counsel drew our attention to Exts.A1 to A3. Ext.A1 is the copy of the FIR in Crime No.161/04 registered at Aluva Police Station. Evidently, in respect of the accident in question, the said crime was registered against the 1st respondent, i.e., the rider of the motor cycle. Ext.A2 is the final report in the said crime. Evidently, it would reveal that after the investigation in the aforesaid crime, the 1st respondent was charge sheeted for having committed offences under Sections 279 and 338 of IPC. Ext.A3 is the scene mahazar prepared in connection with the said crime. The contention of the learned counsel for the additional 5th respondent is to the effect that in the light of the decision of a Division Bench of this Court reported in New India Assurance Company Limited v. Pazhaniammal and others ( 2011(3) KHC 595 ) production of a charge sheet in a crime registered in connection with a motor vehicle accident which led to the filing of a claim petition under Section 166 of the MV Act, is a prima facie sufficient evidence in the matter of negligence. Since it was produced by the petitioner himself to support his original contention that the accident in question occurred solely due to the negligence of the rider of the motor cycle, it should have been taken as a prima facie evidence regarding the said case. It is submitted by the learned counsel for the 5th respondent that at any rate, Exts.A1 to A3 would not support the case of the petitioner as PW1 and at the same time, they would support his original case. 5. Along with an affidavit in I.A.No.2320/12 in the latter appeal, the judgment in C.C.No.2104/04 arising from Crime No.161/04 of Aluva Police Station was produced by the additional 5th respondent, viz., the appellant therein and it is sought to be marked as Annexure-A. It is submitted that it would reveal that the 1st respondent, viz., the rider of the motorcycle pleaded guilty before the Magistrate. We do not think it necessary to accept the said document and to go into the details revealed from Annexure- A at this stage, especially in view of the order which we propose to pass in these appeals. We do not think it necessary to accept the said document and to go into the details revealed from Annexure- A at this stage, especially in view of the order which we propose to pass in these appeals. Even otherwise, going by the settled position of law, a judgment of a criminal Court is not binding on the Tribunal when being called upon to adjudicate a claim petition, although it is relevant. It is also trite law that the judgment of a criminal Court, based on pleading guilty, by itself, cannot be a ground for holding negligence against such a party who pleaded guilty, in a claim petition. The simple reason is that upon pleading guilty, he alone would be jeopardized in a criminal proceedings whereas in a claim petition, finding on the question of negligence on the part of the driver in almost all cases, would fasten vicarious liability on the owner of the vehicle concerned and in the absence of availability of permissible defence, would make the insurer to indemnify the insured owner of the vehicle concerned. In other words, it would be open to and therefore, desirable for, the Tribunal to arrive at an independent finding based on the evidence before it, while making adjudication in a claim petition, on the question of negligence. In this case, apart from the documentary evidence, the petitioner himself mounted the box and got himself examined as PW1. Exts.A1 and A2 were also marked through him. The rider of the motorcycle was examined as RW1 and one Sreenivasan, who allegedly witnessed the accident, was examined as RW2. According to the learned counsel for the 5th respondent, the Tribunal acted upon the oral testimony of PW1 that gained support from the oral testimonies of RWs.1 and 2, but totally ignored the documentary evidence in Exts.A1 and A2. It is submitted that Exts.A1 and A2 are documents produced and marked on the side of the petitioner. Therefore, it is contended that the Tribunal ought not have accepted their evidence in toto, especially taking note of the fact that they were deposing totally against the specific case of the petitioner or rather, the specific pleadings in the claim petition which, virtually, were in tune with the documentary evidence in Exts.A1 and A2. Therefore, it is contended that the Tribunal ought not have accepted their evidence in toto, especially taking note of the fact that they were deposing totally against the specific case of the petitioner or rather, the specific pleadings in the claim petition which, virtually, were in tune with the documentary evidence in Exts.A1 and A2. It is submitted by the learned counsel that in a claim petition filed under Section 166 of the MV Act, proving the factum of negligence either on the part of the owner or on the part of the driver as the cause of the accident, is the sine qua non for awarding compensation. Hence, the petitioner should have a consistent case with respect to the actionable negligence. 6. Though Claims Tribunals are not strictly governed by the rules of evidence, it would be disastrous to say that the basic and fundamental principles under the Evidence Act do not apply at all in such proceedings. The difference between proceedings before a Motor Accidents Claims Tribunal and criminal prosecutions can be pithily summed up by referring to the decisions of the Hon'ble Apex Court in Parameshwari v. Amir Chand [ (2011) 11 SCC 635 ] and of this Court in Venugopala Panicker v. Unnikrishna Panicker ( 2015(2) KHC 621 ). In Parameshwari's case (supra), the Hon'ble Apex Court held that in road accidents claims, strict principles of criminal case are not attracted. After referring to its earlier decision in Bimla Devi v. Himachal Road Transport Corporation [ (2009) 13 SCC 530 ], it was further held that in proceedings before the Accidents Claims Tribunal, the claimant need only to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not be applied. In Venugopala Panicker's case (supra), it was held that the standard of proof required to prove negligence in a claim petition filed under Section 166 of the M.V. Act is different from the standard of proof required in a criminal case. In short, a claimant may prove his case by a mere preponderance of evidence. Then the question is with respect to preponderance of probabilities. Such degree of probability as would satisfy the mind of a prudent man as to the existence of a fact is what is called preponderance of probability. In short, a claimant may prove his case by a mere preponderance of evidence. Then the question is with respect to preponderance of probabilities. Such degree of probability as would satisfy the mind of a prudent man as to the existence of a fact is what is called preponderance of probability. In the context of the case on hand, it is also relevant to refer to the decision in Roop Chand Jain v. Dr.(Mrs.) V.N. Naik reported in [1991 (1) TAC 558 (M.P.)]. It was held therein that the oral evidence of the witness in the absence of any foundation in the plea would not be relevant and could not be acted upon. We find no reason to disagree with the said view. Bearing in mind the aforesaid positions of law, the evidence on record ought to have been appreciated by the Tribunal. Now, we will consider the contentions. 7. The very contention of the 5th respondent is that the original case of the petitioner was that the accident had occurred due to the sole negligence of the rider of the motorcycle. Later, he got it amended and put forth a case that the accident had occurred due to the composite negligence of the rider of the motorcycle and the driver of the bus. The evidence to the extent it goes against such basic pleadings or/and the amended pleadings ought not to have been acted upon, as the basic principles of law is that one cannot be permitted to adduce evidence against his own pleadings, it is further submitted by the learned counsel for the 5th respondent. On the other hand, the learned counsel appearing for the petitioner submitted that the Tribunal cannot be found fault with, in finding credence in the oral testimonies of PWs.1 and 2 as also the oral testimonies of RWs.1 and 2, as it would be open to a Tribunal to answer the question of negligence after considering the evidence before it. When the petitioner's case as PW1 gained support from the evidence of Rws.1 and 2, the Tribunal is perfectly justified in accepting the said case, it is further contended. When the petitioner's case as PW1 gained support from the evidence of Rws.1 and 2, the Tribunal is perfectly justified in accepting the said case, it is further contended. In short, the contention is that in such circumstances, the finding of the Tribunal that the accident occurred solely due to the negligence of the driver of the vehicle in question - the additional 4th respondent, cannot be said to be perverse or against the weight of evidence, warranting an interference. The learned counsel also drew our attention to an observation made by the Tribunal with reference to the factual position that the additional 4th respondent had not mounted the box to rebut the contentions of the petitioner. But at the same time, the question is whether the additional 4th respondent can be found fault with in not mounting the box in such circumstances to give evidence when going by the original pleadings, the attribution of negligence was entirely against the rider of a motor vehicle and after the amendment, the attribution is only that of composite negligence. Even upon his failure to enter appearance and refute the case based on the amendment, how can that be taken as a ground to hold that the petitioner had succeeded in proving a totally different case which he had not actually pleaded at any point of time. The provisions of the Code of Civil Procedure (for short 'CPC' only), except those provisions made specifically applicable, do not proprio vigore apply to claim petitions before the Claims Tribunals. But, as per Section 169 of the M.V. Act, the Tribunal acts generally as a 'Court' and vested with necessary powers of CPC in certain matters and in respect of other matters, it is certainly bound to follow the procedure consistent with the principle of fair play, propriety and natural justice. Going by Rule 395 of the Kearla Motor Vehicles Rules, 1989, the provisions under Rules 16 to 18 of Order VI, CPC, are applicable to the proceedings before Motor Accidents Claims Tribunals. Rule 379(1) of the Kerala Motor Vehicles Rules enjoins framing of issues before the evidence is recorded and Rule 379(2) permits amendment or deletion of issues already framed or to frame additional issues on such terms as the Tribunal thinks fit. Rule 379(1) of the Kerala Motor Vehicles Rules enjoins framing of issues before the evidence is recorded and Rule 379(2) permits amendment or deletion of issues already framed or to frame additional issues on such terms as the Tribunal thinks fit. Under Order VI, Rule 17, either party can alter or amend his pleadings in such a manner and on such terms as may be just and reasonable. In Thomas v. Chacko reported in (1998(2) KLT SN 36) this Court held that amendment of pleadings seeking alternative relief should be allowed if the relief sought for is not a new plea or inconsistent with the earlier stand and that it did not basically alter the nature of the suit and that there would be no bar of limitation involved in the matter. We have already found that the Tribunal had earlier permitted the appellant to amend the pleadings and we have noted the amendment of pleadings brought out. We have also noted that such amendment, mentioned hereinbefore, was incorporated without seeking permission to delete the earlier stand on the question of negligence and needless to say that without deleting the original stand. In view of the original stand and the amendment allowed and carried out, the amended plea can at best be taken as an alternative plea. Certainly, it cannot be taken as a plea attributing negligence exclusively against the 4th respondent, the driver of the bus, because, such a plea would go inconsistent with the earlier stand, viz., the original stand sought to be proved by producing Exts.A1 and A2. Evidently, going by the rival pleadings before the Tribunal, it was nobody's case that the accident in question had occurred due to the negligence exclusively on the part of the 4th respondent, the driver of the KSRTC bus. The petitioner was not certainly, having any such case, going by his pleadings. The original pleadings as also his pleadings after the amendment and the documents produced by him, would not reveal any such case. What the 4th and 5th respondents averred in their written statement was that the accident had occurred due to the negligence of the 1st respondent, the rider of the motorcycle on which the petitioner was travelling at the time of the accident. What the 4th and 5th respondents averred in their written statement was that the accident had occurred due to the negligence of the 1st respondent, the rider of the motorcycle on which the petitioner was travelling at the time of the accident. The motorcycle in question was moving from west to east through Aluva-Paravoor road and going by the averments, the bus was proceeding in the opposite direction. As per Ext.A3 scene mahazar, the place of occurrence is the middle of the road. The learned counsel appearing for the petitioner as also the 3rd respondent, the appellant in the former appeal, initially contended that amendment was sought for only to project the case that the accident had occurred solely due to the negligence of the additional 4th respondent, the driver of the KSRTC bus. But then, the learned counsel appearing for the additional 5th respondent submitted that a perusal of the interlocutory application filed for amendment would reveal that the petitioner had never sought for deletion of his original pleadings and what was actually sought for and permitted, was to incorporate an amendment on the question of negligence to make it as an attribution of composite negligence. In elaboration of the said contention, the learned counsel submitted that even in the application seeking amendment, what was sought for is to hold all the respondents, viz., respondents 1 to 5, jointly and severally liable to pay compensation to the petitioner. In a bid to resist the said contention, the learned counsel for the petitioner submitted that it is after the receipt of the written statement of the 3rd respondent that the petitioner was constrained to seek for an amendment of pleadings regarding negligence, as an abundant caution. However, it is fairly conceded that in the amendment application, no prayer was made to delete the original pleadings regarding negligence. A bare perusal of the impugned judgment would reveal that the Tribunal had also taken that it allowed amendment of pleadings only to permit the petitioner to bring forth a contention of 'composite negligence' against the rider of the motorcycle and the driver of the KSRTC bus. This is evident from the opening sentence in paragraph 12 dealing with 'issue No.(1)', in the impugned award. This is evident from the opening sentence in paragraph 12 dealing with 'issue No.(1)', in the impugned award. It reads as follows :- “Now as per the amended original petition the definite case of the petitioner is that the accident occurred due to the composite negligence of the drivers of both the vehicles involved in the accident. xxxxxxxx” 8. We have perused the records. Obviously, as per the amended original petition, the definite case of the petitioner is that the accident had occurred due to the composite negligence of the drivers of both the vehicles involved in the accident and his prayer was to make all the respondents jointly and severally liable to compensate him. Thus it can be seen that at no point of time, the petitioner pleaded a case that the accident had occurred solely due to the negligence of the additional 4th respondent, the driver of the KSRTC bus. In a claim petition filed under Section 166 of the Motor Vehicles Act, amendment of pleadings in terms of Order VI, Rule 17, CPC, is permissible in appropriate cases as per Rule 395 of the Kerala Motor Vehicles Rules. (See the decision in Mathew Alexander v. Bhaskaran Pillai Sreedharan Pillai reported in 1990 ACJ 898). Nevertheless, it has to be held that an amendment of pleadings carrying plea inconsistent with the earlier stand is impermissible in view of Order VI Rule 7, CPC, though the said provision is not specifically made applicable to proceedings before claims Tribunals as it would completely change the nature of the case and totally displace the earlier claim petition. (See the decision of the High Court of Punjab and Haryana in Rachhpal Singh v. Union of India reported in 1994 ACJ 666 ). But in the case on hand, despite the fact that the Tribunal had allowed the amendment of pleadings as aforesaid, the petitioner had not challenged the same in an independent appeal or otherwise. But, at the same time, the learned counsel for the 5th respondent, as already noticed, took up a contention that the petitioner did not have a case at all, going by the pleadings, that the accident had occurred due to the sole negligence of the 4th respondent, the driver of the KSRTC bus. But, at the same time, the learned counsel for the 5th respondent, as already noticed, took up a contention that the petitioner did not have a case at all, going by the pleadings, that the accident had occurred due to the sole negligence of the 4th respondent, the driver of the KSRTC bus. In this context, it is pertinent to note that Ext.A1 FIR and Ext.A2 final report are produced and got marked by the petitioner himself and they would lend support only his original pleadings regarding negligence. But, the oral testimonies of PW1, RWs.1 and 2 would reveal that they had deposed totally in conflict with the pleadings of the petitioner, both original and the amended version, regarding the cause of the accident. In the decision in Talasila Sandhya v. AP State Road Transport Corporation reported in (1999 ACJ 629 [AP]) the High Court of Allahabad held that although the Evidence Act, 1872 had not been made applicable to claim petitions before Claims Tribunals, yet the fundamental principles of evidence are applicable. If by way of amendment, a plea inconsistent with earlier stand is impermissible to be incorporated, the question is how can evidence inconsistent with pleadings could be let in ? We had already expressed our concurrence with the view taken by the High Court of Madhya Pradesh in Roop Chand Jain's case that oral evidence of a witness in the absence of any foundation in the plea would not be relevant and therefore, could not be acted upon. In view of the nature of evidence let in by the petitioner, it is only befitting to refer to certain decisions of the Honourable Apex Court. In Trojan and Co. v. Nagappa ( AIR 1953 SC 235 ), the Hon'ble Apex Court held that no case could be decided on grounds or facts outside the pleadings. In S.N.Ranade v. Union of India reported in AIR 1964 (SC) 24 , the Hon'ble Apex Court held that no kind of evidence could be looked into on a plea which was never put forward. In Omprabha v. Abinash Chand (AIR 1968 SC 2025), the Apex Court held that the cardinal rule of law is that evidence could be given only on plea properly raised and not in contradiction to the plea. In Omprabha v. Abinash Chand (AIR 1968 SC 2025), the Apex Court held that the cardinal rule of law is that evidence could be given only on plea properly raised and not in contradiction to the plea. The Tribunal ought to have bestowed very serious consideration on the evidence on record while appreciating the evidence and the case of the appellant. That apart, certainly the Tribunal ought to have considered the question whether evidence could be given to the evidence of RW1 and to what extent it could have been relied on in view of the fact that he was the accused in the crime registered in connection with the accident in question and also in the final report laid in the said crime after investigation. Admittedly, it was he who was charge sheeted for having committed offences under Sections 279 and 338 of IPC in respect of the accident in question. The learned counsel appearing for the additional 5th respondent submitted that neither the petitioner nor the 1st respondent – the rider of the motorcycle had a case that the accident in question was witnessed by RW2. At any rate, the appreciation of evidence by the Tribunal, as reflected in the impugned judgment, would reveal total lack of serious consideration on all the aforesaid aspects. Despite the service of notice, respondents 1 and 2 did not enter appearance and contest the appeal. In such circumstances, a proper consideration after affording a fair opportunity to them, is not possible in this proceedings. Considering the aspects, which we have adverted to hereinbefore, it is only fair to afford a reasonable opportunity to respondents 1 and 2, to address on such matters, especially in view of the case of the 3rd respondent regarding the nature of the policy in relation to the motorcycle involved in the accident and the absence of rebuttal evidence or even pleadings against its case that it was only an 'act only policy' and did not cover the risk of the pillion rider. In the wake of the said circumstances, nature of pleadings and evidence on record, we have no hesitation to hold that all the above mentioned aspects also require serious consideration for arriving at a conclusion regarding negligence, as also the consequential liability, especially in view of the specific case of the petitioner, at the hands of the Tribunal. 9. In the wake of the said circumstances, nature of pleadings and evidence on record, we have no hesitation to hold that all the above mentioned aspects also require serious consideration for arriving at a conclusion regarding negligence, as also the consequential liability, especially in view of the specific case of the petitioner, at the hands of the Tribunal. 9. We do not propose to delve deep into the matter any further, as in view of our earlier findings, the matter is to be remanded to the Tribunal. But, at the same time, we are of the considered view that the non-consideration of the aforesaid questions that constrained us to take the decision to remand the matter, shall not make the order of remand an open remand. In other words, since there is absolute absence of any challenge by any of the respondents before the Tribunal including the appellants herein, against the quantum of compensation awarded by the Tribunal, we confirm the judgment and award in O.P. (MV)No.874/2004 to the extent it awarded compensation to the petitioner. It is also relevant to note in this context that the petitioner before the Tribunal had not challenged the quantum in an independent appeal and also had not chosen enter appearance and prefer a cross-objection in this appeal. As noticed hereinbefore, the former appeal is filed against the order passed by the Tribunal in I.A.No.2529/04 in O.P.(MV)No.874/04 whereby the 3rd respondent insurer was directed to deposit Rs.25,000/- awarded under Section 140 of the M.V. Act and the latter appeal was filed against the judgment and the award in O.P. (MV)No.874/04. 10. The learned counsel appearing for the 3rd respondent/ appellant in the former appeal, viz., M.A.C.A.No.1332 of 2006 contended that in the light of the award passed in O.P. (MV) No. 874/04 dated 15.10.2011 and also in view of the fact that the policy in respect of the motorcycle was only an 'act only' policy, the 3rd respondent is not liable to deposit the amount payable in terms of the interim award passed under Section 140 of the MV Act. It is the contention that though negligence is not an aspect to be looked into while passing an interim award under Section 140 of the MV Act, on an application filed therefor, the Claims Tribunal is bound to consider whether the conditions precedent specified in Section 140 have been satisfied and whether going by the conditions of the policy, the Insurance company could be called upon to indemnify the insured owner of the motorcycle involved in the accident in question. Though in support of the said contention, the policy was produced, the Tribunal did not consider the same while passing the order in I.A.No.2529/04, it is further submitted. To sustain the challenge against the impugned order based on the said contention, the learned counsel relied on a decision of the Honourable Apex Court reported in Yallwwa v. National Insurance Co. Ltd. [2007(3) KLT 91(SC)]. In the said decision, the Honourable Apex Court held that when a separate application was filed in terms of Section 140 of the Act and the insurer had been given notice, it would be open to the insurance company to plead and prove its non-liability to indemnify the owner of the alleged offending vehicle. In short, the contention is that a mere perusal of the order in I.A.No.2429/03 would reveal that the Tribunal had not applied its mind to satisfy itself whether the conditions specified in Section 140 of the MV Act had been satisfied and in the light of the conditions of the contract of insurance, whether the insurer could be made liable to pay the amount awarded under Section 140 of the M.V. Act, despite non-liability to indemnify the owner being raised by the insurer. That apart, it is contended that now, as per the judgment and award, the insurance company was completely exonerated from the liability. However, the finding of the Tribunal with respect to the question of negligence has been found not sustainable by us and we have already held that the said issue and consequential question of liability, are to be decided afresh by the Tribunal after considering the pleadings, the position of law, the provisions of law as also the evidence on record. As per the impugned award in O.P.(MV)No.874/2004, the Tribunal had rejected the claim as against respondents 1 to 3. As per the impugned award in O.P.(MV)No.874/2004, the Tribunal had rejected the claim as against respondents 1 to 3. Hence, in terms of the same, the 5th additional respondent found vicariously liable to pay the amount to satisfy the award. But at the same time, on a perusal of the impugned award, we found that there is absolutely no discussion with respect to the nature of the insurance policy, in other words, the impact and effect of conditions of Ext.B1 policy in respect of the motorcycle involved in the accident. As a matter of fact, the exoneration of the 3rd respondent, the appellant in the former appeal, was not based on a finding that the insurance policy in respect of the motorcycle in question is an 'act only' policy and therefore, it would not cover the risk of a pillion rider on the motorcycle involved in the accident. On the other hand, the exoneration of the 3rd respondent was solely due to the specific finding of the Tribunal that the accident in question in which the petitioner sustained injuries had occurred exclusively due to the negligence on the part of the additional 4th respondent and the consequential fixation of liability to compensate the petitioner jointly and severally on the additional 4th and 5th respondents. In such circumstance, even though we are of the view that at present the 3rd respondent need not be called upon to effect payment of the amount covered by the interim award passed under Section 140 of the MV Act, a situation might arise for calling upon the 3rd respondent in that regard either jointly and severally with respondents 1 and 2 therein, viz., the driver and owner of the motorcycle or along with all the other respondents before the Tribunal, subject, of course of the outcome of the decision on the questions now to be decided on remand and also in view of the nature of the policy in respect of the motorcycle. Needless to say that if it is ultimately found that the policy in respect of the motorcycle in question is only an 'act only' policy, the 3rd respondent-the appellant in the former appeal could not be called upon to indemnify its insured owner even in case of finding of negligence against the rider of the motorcycle alone or against both the rider and also the driver of the vehicles involved in the accident. We may hasten to add that we shall not be understood to have made any finding on the cause of the accident in question in any of the aforesaid manner. The question as to who is liable for the accident and the consequential fixation of ultimate liability, are matters now to be decided by the Tribunal after appreciating the evidence on record, in accordance with law. The aforesaid question shall be considered by the Tribunal untrammeled by any observation made in the judgment but at the same time, taking into account the positions of law enunciated hereinbefore. In view of the discussions made above, M.A.C.A.No.1904/12 is disposed of as hereunder :- The impugned award dated 15.10.2011 in O.P. (MV)No.874/04 passed by the Motor Accidents Claims Tribunal, North Paravur, is set aside to the extent of findings regarding fixation of negligence and consequential liability to compensate the petitioner. Accordingly, the quantum of compensation awarded by the Tribunal as per the impugned award to the petitioner will stand confirmed. Consequent upon the setting aside of the judgment and award to the above extent, the matter is remanded to the Tribunal to consider afresh, taking into account the rival pleadings and the evidence on record to arrive at a clear finding as to the cause of the accident, in accordance with law. Needless to say that subject to the finding thereon, the liability has to be fixed afresh among the respondents, in accordance with law. However, for the time being, the 5th respondent before the Tribunal, viz., the KSRTC, shall satisfy the entire award including the amount awarded under Section 140 of the M.V. Act. Subject to the outcome of fresh consideration of O.P.(MV)No.874/2004, on the aforesaid questions, the 5th respondent will have the liberty and right to recover the amount paid to satisfy the award from the party/parties concerned. The parties will be at liberty to raise all contentions in accordance with law before the Tribunal. Subject to the outcome of fresh consideration of O.P.(MV)No.874/2004, on the aforesaid questions, the 5th respondent will have the liberty and right to recover the amount paid to satisfy the award from the party/parties concerned. The parties will be at liberty to raise all contentions in accordance with law before the Tribunal. The parties shall appear before the Tribunal within two weeks from the date of receipt of copy of this judgment. Since the petitioner in O.P.(MV)874/2004 as also the 2nd respondent therein had not entered appearance before this Court, in these proceedings, the Tribunal shall issue notice to them and fix a day for disposal. After fresh consideration on the aforesaid questions, judgment shall be passed as expeditiously as possible, at any rate, within three months from the date fixed for appearance of all parties. M.A.C.A.No.1332 of 2006 In the light of the judgment in M.A.C.A.No.1904/12, this appeal is closed by making it clear that for the time being, the 3rd respondent, viz., the appellant in this appeal need not have to satisfy the interim award passed under Section 140 of the M.V. Act, as per order in I.A.No.2529/2004 in O.P.(MV)No.874/04. However, its liability to satisfy the award would depend upon the decision on remand. It is made clear that the appellant herein, the 3rd respondent will also be at liberty to raise all contentions at the time of consideration of O.P.(MV)No.874/04 by the Tribunal in terms of the judgment in M.A.C.A.No.1904/12. There will be no order as to costs in both these appeals. All pending interlocutory applications in both the appeals are closed.