IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 MFA.No. 264 of 2002(A) ---------------------- OPMV.149/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: 6TH RESPONDENT: --------------------------------------------------- THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, SALEM NOW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS: PETITIONER AND RESPONDENTS 1 TO 5: -------------------------------------------------------------------------------------- 1. BIJI JOSEPH,KAYYALACKAL, ANTHINADU, KOLLAPPALLY. * 2. VARGHESE M.C., S/O.CHACKAPPAN, ROSE VILASAM, VALAKODE, PUNALUR. A(D E L E T E D) * 3. K.V.SASIDHARAN, S/O.VISWAMBHARAN, KALATHARADI HOUSE, PIRAVANTHOOR, PUNALUR.(D E LE T E D) 4. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, PUNALUR. 5. SUNDARAM, S/O. NALLIYAM, PALANIYETTAN PALAYAM,KOKKASAYAMPETTY, SALEM. 6. R.SANKAR, S/O.RAJA GOWDER, 23B, VELLOOR ROAD, SALEM. *THE NAMES OF 2ND AND 3RD RESPONDNETS ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD.8/8/2007 IN I.A.NO.1702/2007. R1 BY ADV. SRI.P.C.HARIDAS R4 BY ADV. SRI.JOE KALLIATH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008 ALONG WITH MFA NO. 265 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1301/2002 IN M.F.A.NO.264/2002 DISMISSED 21/05/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NOs. 264 And 265 OF 2002 = = = = = = = = = = = = = = = Dated this the 21st day of May 2008. J U D G M E N T These two appeals are preferred against the award of the Motor Accidents Claims Tribunal, Pala in OP(MV) 149/95 and 148/95. By the said common award the Court below awarded Rs.18,500/- in O.P.149/95 and Rs.10,400/- in O.P.148/95. Respondents were jointly and separately held liable for the amount. 2. The 6th respondent namely the New India Assurance Company is the appellant before me. It is specifically contended that it has raised a specific contention to the effect that the lorry which is involved in the accident which is said to be insured with that Company is not all insured with the 6th respondent and therefore the Court below has erred in fixing the compensation against the 6th respondent. The learned senior counsel had invited my attention to the specific contentions raised and also referred to paragraph 19 of the judgment. The Court below has just held that it has been persuaded to find that there is a valid insurance coverage for the lorry. There is nothing to show that the claimant had established that the lorry was insured with the respondent Company. It is MFA Nos. 264 and 265 of 2002 -2- a settled law that when the existence of a policy is denied there is a duty cast upon the person to at least prima facie supply some materials to prove the same. If such a primary evidence is adduced and that is not rebutted there may not be difficulty to hold that the company has not discharged its burden. So far as this case is concerned there is absolutely no evidence before the Tribunal to hold that lorry was insured with the Company. Therefore the said finding is erroneous and it requires to be set aside. But I feel it is desirable to give an opportunity to all concerned to prove regarding the existence of a valid insurance coverage. For the said purpose the matter has to be remanded. Therefore the appeals are allowed and the finding on the liability of R6 is set aside and the matter is remitted back to the Tribunal for the limited purpose of considering whether the lorry involved in the accident had been insured with the 6th respondent insurance company. For the said purpose liberty is granted to both sides to adduce evidence in support of their respective contentions Parties are directed to appear before the Court below on 30.6.08. M.N. KRISHNAN, JUDGE. ul/- MFA Nos. 264 and 265 of 2002 -3- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A.264 & 265 OF 2002 = = = = = = = = = = = J U D G M E N T 21st May, 2008