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 30TH MARCH 2011 / 9TH CHAITHRA 1933 MACA.No. 395 of 2004(G) ---------------------- OPMV.252/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ................... APPELLANT/APPLICANT ----------------------------------- M. MUHAMMED BASHEER S/O. NOORUDEEN HABUSA MANZIL, T.B.JUNCTION, NEYYATTINKARA. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL SRI.T.A.PRASANTH RESPONDENTS/RESPONDENTS -------------------------------------------- 1. P. VIMALA DEVI, 6, PILLAYAR COIL EAST STREET, MEENAKASHIPURAM, THIRUNELVELI. 2. A. SUNDARAM THAMPI, PLANKALA PUTHEN VEEDU, THIRUVATTAR P.O., K.K.DISTRICT. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY, MADRAS. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. --------------------------------------------- M.A.C.A.No. 395 OF 2004 --------------------------------------------- Dated this the 30th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.252/1993 on the file of Motor Accidents Claims Tribunal, Neyyattinkara. In this appeal he challenges the judgment and award of the Tribunal dated November 15, 2003 awarding a compensation of Rs.1,00,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on December 6, 1981 at about 12.45 at T.B. Junction near Neyyattinkara. While claimant was cycling along the road he was knocked down by a tourist taxi bearing registration No.TNI-4143 driven by the 2nd respondent. He sustained serious injuries in the accident. He was a fish vendor aged 39 earning Rs.2,000/- per month. 3. Alleging negligence against the second respondent claimant filed the O.P. under Section 110 (A) of Motor Vehicles Act, 1939 as OP No.1159/1987 before MACA No.395/2004 -2- the Motor Accidents Claims Tribunal, Thiruvananthapuam which was transferred to Motor Accidents Claims Tribunal, Neyyattinkara and re-numbered as this OP. 4. Respondents 1 and 2, the owner and the driver of the offending car remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle filed a written statement denying the liability on the ground that the offending car was not insured with the 3rd respondent company. 5. Initially, PW1 and PW2 were examined and Exts.A1 to A10 were marked before the Tribunal The Tribunal on an appreciation of evidence found that the accident occurred due to rashness and negligence of the 2nd respondent and that the vehicle was insured with the 3rd respondent and an award was passed for Rs.1,00,000/-. The 3rd respondent was directed to pay the amount. Challenging the correctness of the award the 3rd respondent filed MFA No.532/1994 before this Court. This Court by judgment dated March 14, 2003 set aside the finding of the Tribunal regarding insurance coverage of the offending vehicle and MACA No.395/2004 -3- remanded the case to the Tribunal to consider the contention regarding the absence of policy and to enable the claimants to prove the existence of the policy based on Ext.A6. After remand, PW3, the Joint RTO, Sub R.T. office, Neyyattinkara was examined. The Tribunal on an appreciation of evidence found that claimant has not proved that on the date of accident the offending vehicle was covered with a valid insurance policy with the 3rd respondent company and exonerated the 3rd respondent and passed an award against respondents 1 and 2 alone. Claimant has now come up in appeal challenging the finding of the Tribunal exonerating the insurance company. 6. Heard the counsel for the claimant and the counsel for the Insurance Company. 7. The following points arise for consideration (i) Whether findings of the Tribunal that the claimant has failed to prove the insurance coverage of the offending vehicle with the 3rd respondent can be sustained? 8. Exhibit A6 is the inspection report of the offending vehicle prepared by the Assistant Motor Vehicle MACA No.395/2004 -4- Inspector. In column 16 of Ext.A6 it is stated that the offending vehicle was covered by a valid Insurance policy with the third respondent Insurance Company and that the same expires on June 10, 1982. PW3 Joint RTO, RT office, Neyyattinkara has testified that inspection report of Ext.A6 in respect of this vehicle is not available in his office, that there is no chance of obtaining records from the office and that the person who prepared the same is not working in the said RT office. The summons to the person who prepared Ext.A6 report was returned with an endorsement “witness expired”. 9. When the appeal came up for hearing the counsel for the 3rd respondent was directed to produce relevant records regarding the policy of the offending vehicle. Though the 3rd respondent produced the records the details of the policy issued in respect of the said vehicle was not there. Under these circumstances we have no other option but to accept the endorsement in Ext.A3 with regard to the policy of the offending vehicle as correct. Especially in view of the fact that there is no specific denial on the part of the MACA No.395/2004 -5- 3rd respondent regarding the correctness of the said endorsement. That apart the person who prepared Ext.A6 is reported dead. That being so, it has to be taken that the offending vehicle was insured with a valid insurance policy with the 3rd respondent company on the date of the accident. It follows that the 3rd respondent Insurance Company is bound to indemnify the 1st respondent, owner of the offending vehicle. In the result appeal is allowed. The finding of the Tribunal exonerating the 3rd respondent Insurance Company is set aside. It is hereby found that the 3rd respondent Insurance Company is bound to indemnify the owner of the offending vehicle, the first respondent and shall deposit the compensation awarded with cost and interest within one month from the date of receipt of a copy of this judgment. Sd/- A.K. BASHEER, JUDGE. Sd/- P.Q. BARKATH ALI, JUDGE. AMG True copy P.A. to Judge