IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2844 of 2009()
1. M.SUBAIR, S/O.HAMSA,
... Petitioner
Vs
1. MAHESH, S/O.VASAVAN,
... Respondent
2. THE DIVISIONAL MANAGER,
3. SHAJIMON, S/O.ABDULKHADERKUNJU,
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/02/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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C.M.Appl.No.3352 OF 2009 &
M.A.C.A.No.2844 OF 2009
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Dated this the 22nd day of February 2010
JUDGMENT
Basheer, J.
Having heard learned counsel for the parties and having perused the
affidavit filed in support of the application for condonation of delay in filing the
appeal, we are satisfied that the delay is liable to be condoned. We do so.
2. Appellant is the registered owner of a mini lorry bearing Reg.No.KL-
4/5963 which was involved in a motor accident. The allegation appears to be that
appellant’s vehicle hit against a motor cycle resulting in some injuries to the rider.
3. In the claim petition filed by the victim, the Motor Accidents Claims
Tribunal found that the driver of the mini lorry owned by the appellant did not have
a license and badge to drive a commercial vehicle. The Tribunal, after quantifying
the amount of compensation at Rs.91,000/- with 7.5% interest thereon, directed the
insurance company to indemnify the registered owner, with liberty to recover it
from the latter. The said direction is under challenge in this appeal.
4. It may at once be noticed that appellant remained absent before the
Tribunal eventhough he was served with notice. The driver also did not appear
before the Tribunal. The contention raised by the insurance company that the
driver did not possess a valid license and badge was accepted by the Tribunal in
the absence of any evidence contra.
5. Learned counsel for the appellant submits that the driver did infact
possess a badge and license. Appellant has produced before this court photocopy
of the driving license of the driver which indicates that he possessed a valid license
and badge.
C.M.Appl.No.3352 OF 2009 &
M.A.C.A.No.2844 OF 2009
:: 2 ::
6. Anyhow, we do not propose to deal with that aspect of the matter at this
stage. In our view, appellant has to necessarily appear before the Tribunal and
adduce necessary evidence to substantiate the above contention. However, such
an opportunity cannot be granted to the appellant as a matter of course. The
appellant has to necessarily pay for the laches on his part.
7. Therefore, while confirming the award in respect of the quantum passed
by the Tribunal in favour of the victim, we set aside the finding of the Tribunal as
regards the liability. It will be open to the appellant to adduce evidence in this
regard by producing the original license and badge and by examining the driver
and other witnesses if necessary.
8. The award is modified to the above extent and the case is remitted back
to the Tribunal only for the purpose indicated above. Appellant shall be entitled to
get the above benefit only if he pays a sum of Rs.5,000/- as cost to the insurance
company. The above sum shall be deposited by the appellant before the Tribunal
within one month from today.
If such deposit is made, the Tribunal shall consider and decide the question
of liability as indicated above. Appellant shall appear before the tribunal on
March 31, 2010.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
jes