IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 628 of 2005()
1. N.G.GOPI, S/O.GOPALAN,
... Petitioner
Vs
1. SAROJINI, W/O.DHARMARAJAN,
... Respondent
2. RADHAKRISHNAN, S/O.DHARMARAJAN,
3. PRADEEP, S/O.DHARMARAJAN, PARUTHIYEZATHU
4. SREEDEVI, D/O. DHARMARAJAN,
5. SREEJA, D/O.DHARMARAJAN,
6. SHUKKOOR, S/O.ABDULKHADER,
7. NEW INDIA ASSURANCE CO. LTD.,
8. MALIK, S/O.KUNJU BUHARI,
For Petitioner :SRI.MATHEWS V.JACOB (PARAVUR)
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :03/09/2010
O R D E R
A.K. Basheer & P.Q. Barkath Ali, JJ.
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M.A.C.A. No. 628 of 2005-B
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Dated this the 3rd day of September, 2010
Judgment
Basheer, J:
Appellant who is admittedly the registered owner
of a vehicle involved in a road traffic accident that occurred
on December 20, 1998, impugns the award passed by the
Motor Accidents Claims Tribunal awarding compensation
to the injured-victim in that accident. Appellant contends
that the Tribunal was not justified in exonerating the
Insurance Company from the liability to pay the
compensation on the ground that driver, respondent No.2
herein, did not hold a valid and effective driving licence at
the time of the accident.
2. It may at once be noticed that the appellant did not
choose to contest the case before the Tribunal. According
to him, he had transferred the vehicle in question to another
person viz., Mr.Malik, S/o.Kunju Buhari of Kunnukara
village in Ernakulam district, prior to the accident. But it is
admitted by the appellant that going by the relevant records
he remained to be the registered owner-cum-insured of the
vehicle at the time of the accident. Anyhow, since the
appellant did not appear before the Tribunal in response to
MACA.628/2005. : 2 :
the notice issued to him, this aspect was not brought to the notice
of the Tribunal, even assuming the above contention is correct.
3. The driver contested the case. According to him, he
possessed a valid and effective driving licence at the time of the
accident. He produced a certified copy of his driving licence which
was marked in the case as Ext.X1. But the Insurance Company
disputed the genuineness of the said licence. The Company, it
appears, deputed RW.1 to go to the Regional Transport Office at
Chennai which had allegedly issued the licence, to verify the
records. RW.1 deposed before the Tribunal that though Ext.X1 was
produced before the Transport Office with a request to issue an
appropriate certificate indicating the genuineness of the licence,
the Transport Officer did not respond. The Tribunal observed that
in the facts and circumstances of the case, particularly in view of
the evidence tendered by the Insurance Company through Rw.1, it
can be assumed that respondent No.2 did not possess an effective
and valid driving licence at the time of the accident. It was
therefore that the Tribunal had exonerated the Insurance Company
from the liability to pay the compensation.
4. However learned counsel for the appellant submits that the
view taken by the Tribunal cannot be justified, especially since
there was nothing on record to indicate that Ext.X1 licence was
MACA.628/2005. : 3 :
forged or fabricated. He submits that the appellant is prepared to
take necessary steps to show that the licence issued to respondent
No.2 was genuine and valid by summoning the original records
from the Transport Office concerned. In fact a photocopy of the
driving licence that was allegedly issued to respondent No.2 is
made available for our perusal.
5. Sri.Mathews Jacob, learned senior counsel who appears
for the Insurance Company, submits that the appellant is not
entitled to get a further opportunity to contest the case at this
belated stage, especially since he had failed to appear before the
Tribunal though admittedly he was served with notice.
6. However having regard to the peculiar facts and
circumstances of the case, we are of the view that appellant can
be granted an opportunity, of course, on terms.
7. The case is remanded to the Tribunal on condition that the
appellant pays a sum of Rs.15,000/- as costs to respondent No.3-
Insurance Company. The cost shall be paid within six weeks from
today failing which this judgment shall stand recalled.
8. The appellant shall take all necessary steps to establish
that respondent No.2 did possess a valid and effective driving
licence at the time of the accident. To put it differently, the entire
burden to prove that respondent No.2 was holding a valid and
MACA.628/2005. : 4 :
effective driving licence as on the date of the accident shall rest on
the appellant. Respondent No.2 shall also be entitled to adduce
further evidence in support of his case, if he is so advised.
9. Further, it will be open to the appellant to implead the
transferee of the vehicle, if any, before the Tribunal if he has a case
that he had already transferred the same to a third party prior to the
accident. Respondent No.3 shall also be entitled to adduce further
evidence.
10. The Tribunal shall dispose of the case as expeditiously
possible at any rate within 4 month from the date of receipt of a
copy of this judgment.
11. Parties shall appear before the Tribunal on September
28, 2010.
The appeal is disposed of in the above terms.
A.K. Basheer
Judge.
P.Q. Barkath Ali
Judge.
an.