IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 5975 of 2009(N) ------------------------------------- PETITIONER: ------------------- N.G. SHAJI, S/O. GOPALAN, NELLIKKAL HOUSE, KUZHIMATTOM.P.O, KOTTAYAM. BY ADV. MR.B.PREMOD. RESPONDENTS: ------------------------ 1. ORIENTAL INSURANCE COMPANY LTD., REPRESENTED BY ITS SENIOR DIVISIONAL MANAGER, KOTTAYAM. 2. THE DEPUTY TAHSILDAR (RR), KOTTAYAM. R1 BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV. MR.P.JACOB MATHEW, R2 BY GOVT. PLEADER MR. MATHEW VADAKKEL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5975/2009-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AWARD PASSED BY THE MACT, KOTTAYAM DT. 21/03/2001. EXT.P.2: COPY OF THE EXECUTION APPLICATION NO. 28/2002 IN O.P. M.V. NO. 1272/97 DT. 03/04/2002. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.12828/2004 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE DEMAND NOTICED SERVED ON THE PETITIONER BY THE R.2. DT. 19/03/2004 AND 25/03/2004 FOR AN AMOUNT OF RS.44,651. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J. ------------------------------------------------ WP(C) No.5975/2009 ------------------------------ DATED THIS THE 24th DAY OF JUNE 2009 JUDGEMENT The Petitioner has approached this Court challenging the recovery steps taken by the 2nd respondent at the instance of the 1st respondent/ Insurer, who was directed to satisfy Ext.P1 Award passed by the Motor Accidents Claims Tribunal,Kottayam in OP(MV) No.1272/97, with liberty to proceed against the 1st and 2nd respondents before the Tribunal ( who are the owners and driver of the vehicle respectively ) since the 2nd respondent/driver of the vehicle was not holding a valid driving licence/badge at the time of the incident. 2. The petitioner was the owner of the stage carriage bearing register number KRK-7056 which met with an accident on 26-2-1997, whereby some passengers got injured. One of the injured filed OP(MV)No.1272/97 claiming compensation, attributing negligence on the part of the driver of the vehicle. The claim was WP(C) No.5975/2009 2 contested by the Insurance Company alone, since the 1st and 2nd respondents ( petitioner herein and the driver of the vehicle) chose to remain Ex-parte. On the basis of the contentions raised by the Insurer, that the vehicle was being caused to be driven without valid licence/badge, Ext.P1 Award was passed by the Tribunal holding towards the end of para.7 as follows:- “so far as the 2nd respondent driver has no badge, the 3rd respondent is liable to get it reimbursed from the first and 2nd respondents. The 3rd respondent is directed to pay the amount.” The learned Counsel for the Petitioner submits that, since the operative portion of Ext.P1 Award ie. para.8 does not contain any such observation or direction as made by the Tribunal in para.7, no liability stands mulcted on the driver and owner of the vehicle. 3. It is the case of the Petitioner, that the absence of driving licence/badge can never be a ground to enable the Insurer to WP(C) No.5975/2009 3 proceed against the owner & driver of the vehicle for realization of the amount after satisfying the liability towards the 3rd party. The learned Counsel also places reliance on the decision reported in 2007(4) KHC 385 (P.T Moidu Vs.Oriental Insurance Co.Ltd and Ors.). The absence of valid licence was considered by 3 member Bench of the Supreme Court in National Insurance Co.Ltd V.Swaran Singh reported in 2004(1) KLT 781(SC). Subsequently, the Apex Court had occasion to consider the scope and applicability of the dictum in Swaran Singh's case referred to supra and it was explained in Kusum Rai case (2006(2) KLT 300 = 2006(4) SCC 250) and Meena variyal's case (2007(5)SCC 428) whereby the right of the Insurer to succeed on proving the violation stands upheld. The rights and interest of the Insurance Company to challenge the Award and scope and applicability of the dictum in Swaran Singh's case was considered by the Supreme Court even in a very recent case WP(C) No.5975/2009 4 reported in 2009 (5) SCC 136 (Bhuvan Sigh Vs.Oriental Insurance Co.Ltd. asserting the position as above in favour of the Insurer. 4. In the above facts and circumstances, there is absolutely no merit in the contentions raised from the part of the petitioner. Above all, it is also pertinent to note that the petitioner had approached this Court earlier, challenging the adverse orders passed by the Tribunal, when interference was declined in the petition filed seeking to review the 'Ex-parte Award', that too, without filing any petition for condoning the delay. After considering the facts and circumstances, this Court, as per Ext.P3 judgment in WP(C) No. 12828 of 2004 observed that the petition for review was not at all maintainable and the petitioner ought to have filed either a petition to set aside the Ex-parte Award or an Appeal as provided under Sec. 173 of the Kerala Motor Vehicles Act. Admittedly, the petitioner has not filed any such petition to set aside the Ex-parte Award, nor has he filed any statutory Appeal before this Court. This being the position, the idea to pursue the WP(C) No.5975/2009 5 matter through a Writ Petition is quite wrong and misconceived. There is no scope for interference. Writ Petition is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE pkk