IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 MACA.No. 321 of 2011() ----------------------------------- OPMV.990/2002 of ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/1ST RESPONDENT IN O.P.(MV): ----------------------------------------------------------------- P. SANTHOSH, AGED 35 YEARS, S/O.PRABHAKARAN,SANTHOSH BHAVAN, CHERUSSERY BHAGAM, CHAVARA, KOLLAM-691 583. BY ADV. SRI.THOMAS M.JACOB, SRI.AKHIL K.MADHAV. RESPONDENTS/CLAIMANTS IN OP(MV): ---------------------------------------------------------- 1. MASTER PRABODH, S/O.LATE ANILKUMAR AND LATE SMITHA, MINOR, BORN ON 05-05-1997, AGED 13 YEARS REPRESENTED BY GRAND FATHER P.C. RAVI AS GUARDIAN AND NEXT FRIEND, AGED ABOUT 69 YEARS, RESIDING AT SMITHAJI NIVAS, L-106, CHANGAMPUZHA NAGAR. P.O, SOUTH KALAMASSERY, KOCHI-33. 2. BABY ANUPAMA, D/O.LATE ANILKUMAR AND LATE SMITHA, MINOR, BORN ON 02-12-2000, AGED 11 YEARS REPRESENTED BY GRAND FATHER P.C. RAVI AS GUARDIAN AND NEXT FRIEND, AGED ABOUT 69 YEARS, RESIDING AT SMITHAJI NIVAS, L-106, CHANGAMPUZHA NAGAR. P.O, SOUTH KALAMASSERY, KOCHI-33. 3. SUDHA RAVI, AGED ABOUT 57 YEARS, MOTHER OF LATE SMITHA, RESIDING AT SMITHAJI NIVAS, L-106, CHANGAMPUZHA NAGAR. P.O, SOUTH KALAMASSERY, KOCHI-33. 4. CYRIL, FERNANDEZ, AGED ABOUT 33, S/O.JOHN FERNANDEZ, CYRIL MANDIRAM, CHAVARA. P.O, KARUNAGAPPILLY, KOLLAM-691 583. MACA.No. 321 of 2011 5. M/S.ORIENTAL INSURANCE COMPANY LTD., CHINNAKKADA BRANCH, KOLLAM-691 001, REPRESENTED BY ITS MANAGER 6. JAYACHANDRAN, AGE NOT KNOWN, FATHER'S NAME NOT KNOWN, PUZHAVILLA, KANDACHIRA, PERINAD P.O., KOLLAM-691 601. R5 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. R6 BY ADV. SRI.S.SUDHISH KUMAR, SRI.K.B.DAYAL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2011, ALONG WITH MACA NO. 328 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.Nos. 321 & 328 of 2011 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 23rd day of March, 2011 JUDGMENT Basheer, J. Common appellant in these two appeals is admittedly the registered owner of the vehicle, which was involved in a road traffic accident that occurred on July 20, 2001. 2. A young couple lost their lives in the accident. Two minor children and their grandparents instituted the two claim petitions seeking compensation from the appellant, his driver and insurer of the vehicle. 3. Admittedly, neither the appellant nor his driver contested the case before the Tribunal. However the Insurance Company did. One of the contentions raised by the insurer was that the driver did not possess a valid driving licence and badge to drive the vehicle in question at the time of the accident. The said contention was accepted by the Tribunal. Since even after issuing a direction to the MACA 321/2011 & con. case. 2 appellant and his driver to produce the driving licence and badge, they did not respond. The Tribunal, therefore, directed the Insurance Company to pay the compensation to the claimants and recover the same from the appellant (registered owner). 4. These two appeals are directed against the above common award. The grievance of the appellant is only against the right given to the Insurance Company to recover the compensation from the appellant. In other words, there is no challenge against the quantum of compensation awarded to the claimants. 5. In this context, we may notice that the claimants in those two claim petitions have filed M.A.C.A. No.765 and 1395 of 2010 seeking enhancement of the compensation, which are pending consideration before this Court. 6. In these two appeals the short question that arises for consideration is whether the appellant has to be afforded any opportunity to adduce evidence to substantiate his contention that the driver did in fact possess a valid MACA 321/2011 & con. case. 3 driving licence and badge at the time of the accident. 7. Learned counsel for the appellant has invited our attention to the driving licence particulars issued by the Regional Transport Authority, Kollam in favour of his driver. We do not propose to refer to the contents of the said document at this stage for the obvious reason that the said exercise has to be carried out by the Tribunal. 8. It is submitted by the learned counsel that the appellant could appear before the Tribunal for reasons beyond his control. He further submits that the appellant had in fact engaged a counsel and made necessary arrangements to contest the case. The driver had also given the particulars of his licence to the counsel. Yet again we refrain from making any observation on this contention, which if true, is quite unfortunate, to say the least. 9. Sri. Mathews Jacob learned senior counsel who appears for the respondent-Insurance Company points out that there was deliberate omission on the part of the appellant in producing the driving licence and badge of his MACA 321/2011 & con. case. 4 driver. In fact the Tribunal had issued a specific direction to produce these documents. But, they had failed to do so. Learned senior counsel submits that the appellant therefore does not deserve any sympathy. 10. However, keeping in view the entire facts and circumstances of the case, particularly the nature of the contentions raised by the appellant as regards engagement of a counsel before the Tribunal, we are satisfied that the appellant can be granted an opportunity to prove his case, but of course on terms. 11. The award passed by the Tribunal to the extent it gives liberty to the insurer to recover the compensation from the appellant shall stand set aside on condition that the appellant pays an amount of Rs.7,500/- each in these two appeals as costs to be paid to the Insurance company. Cost shall be deposited by the appellant before the Tribunal on or before 30-5-2011, in which event, the Tribunal shall re-consider the matter, confining the consideration only to the question of liability MACA 321/2011 & con. case. 5 12. The parties shall appear before the Tribunal on June 6, 2011. 13. The Tribunal shall dispose of the case as expeditiously as possible, at any rate within three months from the date of appearance of the parties. It is made clear that if the appellant fails to deposit the cost as directed above, the appeals will stand dismissed. 14. The original records produced by the appellant and marked in the case as Annexures along with interlocutory applications shall be returned to the appellant after substituting photo copy of the same. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.