IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 MACA.No. 1642 of 2004() ----------------------- OPMV.886/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANTS/RESPONDENTS: ------------------------------------- 1. SEBASTIAN @ APPY, MANIYAMMACKAL, ANTHINADU KARA, LALAM VILLAGE. 2. THRESSIAMMA, W/O.KUNJAMMAN, MANIYAMMACKAL, ANTHINADU P.O. 3. JOSE THOMAS, S/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. 4. GEORGE THOMAS, S/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. 5. TOMMY THOMAS, S/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. 6. ROY THOMAS, S/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. 7. SHAJI THOMAS, S/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. 8. MOLLY, D/O.M.D.THOMAS, MANIYAMMACKAL, ANTHINADU P.O. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): PETITIOENR AND 3RD RESPONDENT: --------------------------------------------- 1. JOBY(MINOR) REP. BY HIS NEXT FRIEND MARY, W/O.CYRIAC, PLATHOTTATHIL HOUSE, ANTHINAD KARA AND VILLAGE. 2. NATIONAL INSURANCE COMPANY LTD., KOTTAYAM. ADV. SRI.E.M.JOSEPH FOR R2 SRI.P.C.HARIDAS FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1642 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of February, 2011 JUDGMENT Basheer, J. Appellants are stated to be the driver and legal representatives of the owner of a vehicle which was allegedly involved in a road traffic accident that occurred on June 5, 1980 near Anthinadu on Pala-Thodupuzha road. The victim was a minor at the time of the accident. Compensation was claimed from the owner, driver and insurer of the vehicle alleging rashness and negligence on the part of the driver in causing the accident. 2. It may at once be noticed that the claim petition was laid in the year 1993, nearly 13 years after the alleged accident. In the counter statement filed by the owner and the driver before the Tribunal, it was contended that their vehicle was not involved in any accident and that it would be difficult to find out the truth of the alleged accident after such a long delay. 3. The Insurance Company also contended that such an accident had never taken place. It was further contended that the company had never issued a policy in respect of the alleged vehicle. MACA.No.1642/2004 2 4. The mother of the minor victim, who prosecuted the case, produced Exts.A1 to A13 in support of the claim though no oral evidence was adduced. An officer of the Insurance Company was examined as RW1. He asserted before the Tribunal that on verification of the records it had been revealed that no policy certificate had ever been issued in respect of the alleged vehicle. 5. The Tribunal after considering the evidence available on record held that the alleged accident did in fact take place and quantified the compensation at Rs.45,600/- payable with 9% interest. The Tribunal exonerated the Insurance Company from the liability to indemnify the owner and the driver since according to the Tribunal, it had not been established that a valid policy certificate had been issued in respect of the vehicle. The Tribunal, therefore, directed the owner and the driver of the vehicle to pay the compensation to the claimant. 6. It is on record that Gandhi Nagar police had registered a crime against appellant No.1 in connection with the accident as Crime No. 454/1980. It is also seen from Ext.A1(2) that the criminal case been compounded and the accused acquitted under Section 320(8) of the Code MACA.No.1642/2004 3 of Criminal Procedure in S.T.No.675/1980 on the file of the Judicial Magistrate of First Class, Pala. 7. In view of the controversy as to whether or not a valid policy had been issued in respect of the vehicle, we had directed the criminal court at Pala to produce the records relating to the above criminal case. But the learned Magistrate has reported that the records in the above case (S.T.No.675/1980) had been destroyed already. 8. We have carefully perused the materials available on record. It is true that in the claim petition, the policy number had been referred to (992/JJ/794/80). When Senior Divisional Officer of the Insurance Company was examined before the Tribunal as RW1, he deposed that he had in his capacity as the Divisional Manager verified the counter statement after perusing the criminal case records, investigation reports, premium register, policy numbering book, collection register etc. He further stated that during 1980, the company did not have a branch office at Pala. The business in Pala and the surrounding area was being managed by Kottayam office. He further stated that if in fact a policy certificate had been issued in respect of a vehicle which was being plied in Pala, MACA.No.1642/2004 4 records would be available in Kottayam. According to this witness, all these documents would be consigned to the record room and later they would have been destroyed. He asserted that those records were not available with the company. 9. It is true that in the course of cross examination, RW1 stated that the company had not issued a policy bearing the number referred to in the claim petition. But according to this witness, a Development Officer was appointed in Pala area. Policy certificates used to be issued after collecting premium from the owners of vehicles in that area. Thereafter, the policy would be entered in the policy register maintained at Kottayam. He further stated that records will be available indicating the details of the documents, which had already been destroyed. 10. It is significant to note that neither in the statement nor in the deposition, this witness has specifically denied the existence of a policy in the number referred to in the claim petition, though of course as has been noticed already, he had denied in the course of cross examination that the policy bearing the number mentioned in the claim petition had not been issued. Still further, this witness did not have a case that the Registers MACA.No.1642/2004 5 indicating the documents which had already been destroyed were not available in the office. More importantly, the company did not bother to produce any of those registers which would have given a clear indication as to which were the documents that had been destroyed already. 11. Keeping in view the above facts and circumstances, we are satisfied that the Tribunal was not justified in exonerating respondent No.3-Insurance Company from the liability to pay compensation to the claimants. We are persuaded to take this view particularly since the claimant had specifically referred to a policy number in the claim petition which was not specifically disputed or denied by the Insurance Company. Therefore, the impugned award is modified to the extent of holding that compensation shall be payable by the the Insurance Company. The appeal is disposed of in the above terms. Sd/- A.K.BASHEER, JUDGE Sd/- P.Q.BARKATH ALI, JUDGE sv. True copy P.A. to Judge