IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 MACA.No. 2227 of 2007(C) ------------------------------- (OP(MV)NO.1027/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA) .................... APPELLANT(S): APPELLANT/2ND RESPONDENT ------------------------------------------------------- BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, NEAR KSRTC BUS STAND, THIRUVALLA. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND R1 ------------------------------------------- 1. VIJAYAKUMAR, PONPUZHANJIYIL HOUSE, VAZHARMANGALAM POST, CHENGANNOOR VILLAGE AND TALUK. 2. HARI, MEENKUZHIYIL, MANGALAM, CHENGANNOOR. R1 BY ADV. SRI.T.K.KOSHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.N.KRISHNAN, J ===================== MACA No.2227 OF 2007 ===================== Dated this the 6th day of September 2010 JUDGMENT This appeal is preferred against the award passed by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P. (MV)No.1027 of 2000. It is the case of the claimant that while he was travelling in an autorickshaw bearing Regn.No.KL-4/G 4791 due to the rash and negligent driving of the driver the autorickshaw capsized resulting in injuries to him. He has been awarded a compensation of Rs.71,250/-. It is against that decision, the insurance company has come up in appeal challenging the very accident and also the absence of a driving licence. 2. I do not find any petition under Section 170 of the Motor Vehicles Act. Since the question raised is that of non- happening of an incident I will consider it for the purpose of MACA 2227/2007 -:2:- completion of judgment. According to the claimant, he was travelling in an autorickshaw. He sustained injuries on account of the overturning of the auto. There was no other external agency involved in the accident. The police has taken the first information statement, registered a crime, prepared scene mahazar as well as the vehicle mahazar and also after due investigation has laid the charge sheet before the court. It is all in consequence of the injuries sustained in the road accident. I find from the written statement of the insurance company that there is a very vague statement to the effect that the first respondent had not met with the accident as alleged in the petition. The insurance company has never pleaded that it is not an accidental injury. Therefore any amount of evidence even attempted to be put into service cannot help the insurance company for the reason that they have not denied the accident as such in the written statement. Further, the records produced by the claimant and the charge sheet laid by the MACA 2227/2007 -:3:- police all point out in one direction that the incident had resulted in injuries to the claimant by the overturning of the auto. Therefore I find that the accident is proved and that the driver alone is responsible for the accident. 3.The next question is regarding the insurance company's liability. Learned counsel for the claimant had brought to my notice the mahazar prepared by the police wherein there is a specific reference to the validity of the licence for the period from 1998 to 2007. When it is a public vehicle, learned counsel for the insurance company would submit before me that licence is not issued for 8 years. The insurance company did have the particulars regarding the licence, as is seen from the mahazar produced by the claimant, they did not attempt to get a copy of the licence from the transport authorities to negative the endorsement seen in the scene mahazar. Rule 376 of the Kerala Motor Vehicles Rules casts an imperative responsibility on the insurance company to supply details regarding licence MACA 2227/2007 -:4:- to the court. It is also seen that though they moved an application to an ex parte respondent for a direction to produce the copy of the licence they did not pursue it further and it remained idle in the bundle with an order issue of notice. It was their duty to see that the said application was taken up and appropriate orders were passed. They did not do that. The statutory responsibility of the insurance company to supply particulars regarding licence is not proved. Secondly, in order to draw an adverse inference they moved an application and they did not properly pursue it. Since the responsibility is on the insurance company to prove the absence of a licence and as they have failed, I cannot find fault with the Tribunal for holding the insurance company has failed to discharge its burden especially in the back drop that materials are available from the police records demonstrating the existence of a valid licence upto 2007. So far as the quantum is concerned, since there is no 170 petition the MACA 2227/2007 -:5:- insurance company cannot challenge it. But even otherwise a disability certificate issued by the District Medical Board, Pathanamthitta had been relied upon by the Tribunal for awarding compensation. That also does not call for any interference. Therefore the appeal fails and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-