IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 MACA.No. 642 of 2008() ----------------------------------- OPMV.213/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): ADDL. 4TH RESPONDENT: ------------------------ UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 3 RESPECTIVELY: ------------------------- 1. JOSEPH E.K., AGED 51 YEARS, S/O.KURIAN, ERATHEDATHY HOUSE, KELAKAM, KELAKA AMSOM DESOM, THALASSERY TALUK. 2. JOSEPH, AGED 32 YEARS, S/O.P.M.SIMON, PALAKKAPPILLI HOUSE, KAPPAD AMSOM DESOM, KELAKAM, THALASSERY TALUK. (DRIVER OF THE JEEP KL 13/B 2250) 3. ROSAKUTTY, AGE NOT KNOWN, W/O.M.J.JOHN, MEMANA HOUSE, P.O.PERAVOOR, PARAVOOR VILLAGE, THALASSERY TALUK. 4. M/S.ORIENTAL INSURANCE CO. LTD., THALASSERY BRANCH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.793/2008 IN MACA. NO.642/2008 DISMISSED 16/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO. JUDGE tss M.N. KRISHNAN, J. ........................................... M.A.C.A. No.642OF 2008 ............................................. Dated this the 16th day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Claims Tribunal, Kalpetta in OP(MV)No.213/1998. The claimant sustained injuries in a road accident and he was a passenger in a private vehicle and the tribunal has awarded him compensation and directed the insurance company to pay the amount. The insurance company has come up in appeal challenging its liability contending for the position that the policy issued is only an act only policy which does not cover the risk of a passenger in a private vehicle. Along with the Memorandum of Appeal, it has filed an application for amendment of the written statement to raise the contention that the vehicle is not covered since it is only an act only policy. 2. The accident had taken place as early as on 27.8.1997 and an attempt is made to incorporate a new pleading in the year 2007, that is after a decade. There was no difficulty for the insurance company to raise such a : 2 : M.A.C.A. No.642OF 2008 contention even if the decisions were against it at that point of time. Therefore If I entertain the application for amendment after 10 years, it will result in substantial injustice to the other side, which cannot be allowed. 3. Therefore, I refuse to entertain the application for amendment of the written statement. When the request is refused to amend the written statement, then it goes without saying the question with respect to the exoneration of the liability of the insurance company would not arise. Therefore the tribunal cannot be found fault with in making the company liable. It is seen from the award that the United India Insurance Company was impleaded in the party array only on 28.4.2005 as per I.A.No.754/2005. It cannot be saddled with the liability of paying interest on the amount prior to that. For the prior amount, the owner can be made liable and he can pay the interest. Therefore the appeal is disposed of with the only modification that the insurance company's liability to pay interest will commence only from 28.4.2005 and not earlier and the claimant can recover interest for the prior period : 3 : M.A.C.A. No.642OF 2008 from the owner of the vehicle. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A. No.642OF 2008