IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP (MACT).No. 2470 of 2011(O) ----------------------------- OPMV.35/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... PETITIONER : -------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18 BY ADV. SRI.P.JACOB MATHEW RESPONDENTS: ------------------- 1. JINSE, S/O.JOSE, THEKKADASSERIL HOUSE AMANAKARA KARA, RAMAPURAM VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT 686 001 2. JOMON JOSE, S/O.JOSE, THEKKADASSERIL HOUSE METHIRI P.O., AMANAKARA KARA, RAMAPURAM VILLAGE MEENACHIL TALUK, KOTTAYAM DISTRICT 686 001 ADV. SRI.P.RAMAKRISHNAN FOR R1 & R2 THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(MAC) No. 2470/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE COMMON AWARD DATED 28.5.2007 IN OP(MV) 35 & 36 OF 2004 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA EXT.P2 : COPY OF THE JUDGMENT DATED 4.1.2011 IN MACA 2329 OF 2007 IN OP (MV) 35 OF 2004 BEFORE THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- O.P.(MAC) No. 2470 OF 2011 -------------------------- Dated this the 2nd day of August, 2011 J U D G M E N T The petitioner is the insurer of an autorickshaw bearing registration No.KL-5/L-3595. At about 5 pm on 22.11.2003 it collided with a scooter bearing registration No.KL-6/6673. In the accident, Sri.K.B.Jayaprakash, who was riding the scooter and Sri.Devassia, who was a passenger in the autorickshaw, sustained injuries. Sri.K.B.Jayaprakash filed OP(MV) No.35 of 2004 and Sri.Devassia filed OP(MV) No.36 of 2004 on the file of the Motor Accidents Claims Tribunal, Pala against the petitioner and the respondents herein claiming compensation. The insurer resisted the claim petition contending that though a policy of insurance had been issued in respect of the autorickshaw, the first respondent who was driving the vehicle did not possess a valid licence and a badge and therefore as the conditions of the policy were violated, the insurer is not liable to pay compensation. 2. The Tribunal on an analysis of the evidence, oral and documentary, held that the accident arose as a result of the negligent driving of the autorickshaw by the first respondent, who is none other than the brother of the second respondent, the owner of OP(MAC) No.2470/2011 2 the autorickshaw. In the claim petition, the insurer had filed an application for an order directing the first respondent to produce his driving licence and badge. The said application was allowed. The first respondent did not comply with the said direction. In answer to the insurer's contention that the first respondent had driven the vehicle without a valid licence, his brother, the second respondent who was examined as RW1, stated in the affidavit filed by him in lieu of chief examination that he had entrusted the vehicle on hire to Sri.Martin Jose, who held a valid driving licence, which was produced as Ext.P2, but the first respondent took it without his permission and therefore it cannot be said that he had violated the conditions of the policy. Accepting that contention, the Tribunal held that there is no evidence to show entrustment of the vehicle by the second respondent to the first respondent and therefore it cannot be said that the conditions of policy have been violated. By Ext.P1 award passed on 28.5.2007 the Tribunal awarded the sum of Rs.1,63,630/- as compensation to the claimant in OP(MV) No.35 of 2004 and the sum of Rs.8,000/- as compensation to the claimant in OP(MV) No.36 of 2004 and directed the insurer to pay the compensation. Aggrieved by the award in OP(MV) No.35 of 2004, the insurer filed MACA OP(MAC) No.2470/2011 3 No.2329 of 2007 in this Court. That appeal was allowed by Ext.P2 judgment delivered by a Division Bench of this Court on 14.1.2011. This Court held that the insurer (the petitioner herein) will be entitled to recover the amount of compensation paid by it from respondents 1 and 2 herein who were respondents 1 and 2 in the said appeal also. The instant original petition was thereupon filed on 28.7.2011 challenging Ext.P1 award in so far as it relates to OP(MV) No.36 of 2004. Relying the decision of the Division Bench, evidenced by Ext.P2, it is contended that Ext.P1 award is liable to be modified so as to enable the insurer to recover the compensation paid by it to the claimant from respondents 1 and 2. 3. It is evident from Ext.P1 award that the two claim petitions were heard and disposed of by a common award. The finding that there was no violation of the policy conditions was common to both the claim petitions. However the insurer did not challenge the award in OP(MV) No.36 of 2004 by filing a petition under Article 226 or 227 of the Constitution of India. The insurer filed an appeal from the award only in so far as it relates to OP(MV) No.35 of 2004. That appeal was allowed by Ext.P2 judgment dated 14.1.2011 holding that there was violation of the policy conditions and therefore the insurer OP(MAC) No.2470/2011 4 should be given liberty to recover the compensation paid by it from the owner and driver of the offending vehicle. It was six months thereafter that the instant original petition was filed seeking the benefit of Ext.P2 judgment. In my opinion, on the facts stated in the original petition, the challenge to Ext.P1 award in so far as it elates to OP(MV) No.36 of 2004 is highly belated. The insurer who canvassed the correctness of the finding in Ext.P1 award in so far as it relates to OP(MV) No.35 of 2004 by filing an appeal in this Court in the year 2007 cannot be heard to contend that it was awaiting the disposal of the appeal to challenge the award in the connected case. The challenge to Ext.P1 award in so far as it relates to OP(MV) No.36 of 2004 is in my opinion highly belated. There is no explanation whatsoever on the part of the petitioner in not taking steps to challenge the award in OP(MV) No.36 of 2004 till 28.7.2011. I accordingly hold that the challenge to the award passed in OP(MV) No.36 of 2004 is highly belated. I therefore decline jurisdiction and dismiss the original petition. The original petition fails and is accordingly dismissed. P.N.RAVINDRAN, (JUDGE) vps OP(MAC) No.2470/2011 5