IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 MACA.No. 1074 of 2008() ----------------------- OPMV.644/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT:3RD RESPONDENT: ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE – T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: --------------------------------------------------------------------------------------------------------- 1. PIOUS, S/O.MATHEW, PAMPAKKAL HOUSE, PALAM VILLAGE, PAIPPAR KARA, MEENACHIL TALUK, MUNDAKKAL P.O., KOTTAYAM DISTRICT. 2. MATHEW EAPEN, PUTHANPURACKAL HOUSE, PONKUNNAM P.O., KOTTAYAM DISTRICT. *3. VENUGOPAL.K.R., KOKKAPPILLIL HOUSE, HONAD – KAROOR, KOTTAYAM DISTRICT. (D E L E T E D) *R3 DELETED AS PER ORDER DTD. 28/07/2005 IN I.A.2252/05. BY ADV. SRI.MATHEW JOHN (K) -R1 SRI.SUJESH MENON V.B. - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1074 OF 2008 = = = = = = = = = = = = = = = Dated this the 26th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)644/97. At the out set I may like to say a Motor Accidents Claims case is celebrating its silver jubilee without a final relief for the party. But it appears that, it has to continue for some more time. The core question before the Tribunal as well as this Court is regarding the existence of a policy with respect to the vehicle which had been involved in the accident. Existence of a policy is disputed by the insurance company. The Tribunal, on perusal of A.M.V.I.'s report came to a conclusion that there is a policy and affixed the liability on the insurance company. I am informed that A.M.V.I. was examined. The Company would raise a contention that in spite of repeated attempts to get a copy of the policy it has not succeeded. Therefore it is helpless. It is submitted by the learned counsel for the Insurance company that under M.A.C.A. 1074 OF 2008 -:2:- the Rules they are not bound to keep the copies of the policy for more than five years. Here an unfortunate situation has arisen and I am not sure whether there is any rule with respect to the maintenance of a register which normally will be of a permanent character. Unless there are rules which says that registers also need not be preserved after the period of five years or so, it has to be stated that the production of those registers may help the Tribunal to resolve the dispute especially in the back drop that some materials are available from the A.M.V.I's report. It has to be stated that the persons who had prepared this and who had issued a policy might have all retired from service for the reason that 25 years are over. Since there is a serious dispute, the Court may have to decide it on the preponderance of probabilities for which I feel maximum opportunity can be given to both sides. One cannot simply throw away the report of a A.M.V.I's report for the reason it is prepared in the ordinary course of the business which also gets support from Section 114 of the Indian Evidence Act. If M.A.C.A. 1074 OF 2008 -:3:- the registers are permanent registers and one is unable to produce, then necessarily an adverse inference has to be drawn. If it is otherwise, then the only possible method is to weigh the evidence which is available before the Tribunal and come to the conclusion on the preponderance of probabilities. So, in order to allow the insurance company to have a chance to prove that there was no policy I am inclined to grant an opportunity and I make it clear that possible steps may be taken for proving their contentions and if not the Court may again rely upon the materials available before it and arrive at a fresh conclusion. It is unfortunate that this Court is forced to remand the case because further particulars if possible which requires evidence cannot be entertained by this Court at the appellate stage and so a remand is called for. Therefore the award of the Claims Tribunal is partly set aside and the matter is remitted back for the sole consideration of the question whether there was a policy issued to the vehicle involved in the accident for which all the parties are M.A.C.A. 1074 OF 2008 -:4:- permitted to adduce evidence and produce documents in support of their respective contentions. All the parties are directed to appear before the Tribunal on 29.7.08 and all shall co-operate with the Tribunal for a speedy disposal so that it does not get unnecessarily prolonged. M.N. KRISHNAN, JUDGE. ul/- M.A.C.A. 1074 OF 2008 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = M.A.C.A. No. 1074 OF 2008 = = = = = = = = = = = J U D G M E N T 26th June, 2008.