IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 MACA.No. 857 of 2004() ---------------------- OPMV.7/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP.BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.M.JACOB MURICKAN RESPONDENT(S): PETITIONERS & RESPONDENTS 1,2&4 TO 6 RESPECTIVELY. ----------------------------------------------------------------- 1. V.SYED ALAVI S/O.BAVUTTY, VADAKKINIYEDATH HOUSE, TANALUR AMSOM, AREEKAD DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. CHANDRAN S/O. BHARGAVAN, CHENKODI VEETTIL, ULLOOR P.O., THIRUVANANTHAPURAM DISTRICT. 3. T.CHANDRA BABU, SANDHYA BHAVAN, T.C.1/444, NEAR THIRUVANANTHAPURAM MEDICAL COLLEGE THIRUVANANTHAPURAM. 4. KATHIR VELU S/O. ARUMUGAN, MUTHARAMMANKOVIL STREET, DOOR NO.25, THIRUCHENTHOOR, TAMIL NADU. 5. T.R.JAYAKUMAR, S/O. RAMAYYA NADAR, 23 SATHYANAYOOR, SOUTH STREET, P.O.UDAL KUDI, THIRUCHENTHOOR TALUK, TAMIL NADU. 6. UNITED INDIA INSURANCE COMPANY LTD., TUTICORIN BRANCH OFFICE, B T C EGC ROAD P.O., TATICORIA TAMIL NADU. ADV. SRI.N.S.MOHAMMED USMAN FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A. No.857 of 2004 ------------------------------------- Dated this the 26th day of February, 2009 JUDGMENT BASANT, J. The 3rd respondent before the Tribunal is the appellant before us. The claimant had staked a claim for compensation for personal injuries suffered by him in an accident which occurred on 11.08.1995. He was travelling in an ambulance which had collided with another vehicle - a lorry. Respondents 1 to 3 arrayed in the petition were the owner, driver and insurer of the ambulance van; whereas respondents 4, 5 & 6 arrayed in the claim petition were the owner, driver and insurer of the lorry. The appellant herein was the 3rd respondent/insurer of the ambulance in which the victim/claimant was travelling. 2. In the written statement filed by the appellant/3rd respondent it was contended that the driver of the ambulance did not have a valid driving licence at the relevant time. 3. Parties went to trial on these contentions. No oral evidence was adduced. Exts.A1 to A13 were marked. These documents include Ext.A10 final report submitted by the police M.A.C.A. No.857 of 2004 2 after due investigation raising allegations of rash and negligent driving against the driver of the ambulance. That final report- Ext.A10 does not at all show that the driver of the ambulance van did not have a valid driving licence. 4. The Tribunal by the impugned award directed the owner, driver and insurer of the ambulance van to pay an amount of Rs.1,21,000/- as compensation. No direction was issued that the appellant herein/insurer would be entitled to recover amounts from the insured on the ground that there was violation of condition of policy that the driver who drove the vehicle at the relevant time should have a valid driving licence. 5. This appeal though filed in 2004, it is seen that service is not complete. Notice to the owner is returned with the endorsement that there is no such addressee. Notice to the claimant is returned with the endorsement that he has left India. The 2nd respondent/driver of the ambulance, it is reported, has expired. 6. The learned counsel for the respondent, in these circumstances, was called upon to explain the basis on which the challenge is raised in this M.A.C.A. The learned counsel for the appellant submits that the only contention which the appellant M.A.C.A. No.857 of 2004 3 wants to raise is that the driver of the insured vehicle at the relevant time did not have a valid driving licence and consequently the appellant is entitled to a direction in his favour to get the amount paid to the claimant recovered from the owner/insured and the driver. 7. What evidence was adduced by the insurer to show that the driver of the vehicle did not have a valid driving licence at the relevant time ? To this pointed query, the learned counsel for the appellant is unable to point out any circumstances to justify the acceptance of his contention that the driver at the relevant time did not have a valid driving licence. The only relevant indication that is available is Ext.A10, the charge sheet filed against the said driver. That document does not show that the driver did not have a valid driving licence at the relevant time. Was any attempt made during the pendency of the proceedings to oblige the 1st and 2nd respondents to produce the driving licence of the driver ? Admittedly no steps have been taken also. It is now evident and conceded that the driver of the vehicle is no more. 8. In these circumstances, we are satisfied that on the basis of the materials available the contention that the driver did M.A.C.A. No.857 of 2004 4 not have a valid driving licence has not been substantiated and cannot be accepted. We are satisfied that it is not necessary to wait indefinitely to complete the formality of service on the remaining respondents. We are satisfied that this appeal needs only to be dismissed as there is no material to justify the challenge raised against the impugned award. 9. This appeal is accordingly dismissed. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-