Biju Jacob vs Biju Jacob
2021 Latest Caselaw 9079 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                        MACA.No.619 OF 2012

AGAINST THE AWARD IN OPMV 1844/2000 DATED 30-06-2010 OF ADDITIONAL
DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA


APPELLANT/1ST RESPONDENT.:

             BIJU JACOB
             AGED 42 YEARS, S/O.P.C.JACOB, USHUS BUNGLOW,KOCHIKAL,
             MAVELIKKARA.

             BY ADVS.
             SRI.P.J.MATHEW
             SRI.AJITH GEORGE

RESPONDENTSPETITIONES AND 3RD :

      1      M.K.BABY
             S/O.MATHAI, MUKALAYYATHU PADEETTATHIL,
             KALLIMEL,MAVELIKKARA.PIN-688006

      2      THE BRANCH MANAGER
             NEW INDIA ASSURANCE CO.LTD., KAYAMKULAM.
             PIN-688009

             R1 BY ADV. SRI.N.S.MOHAMMED USMAN

OTHER PRESENT:

             SRI.N.S.MOHAMMED USMAN FOR R3

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
18-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.619 of 2012
                                      2




                          P.V.KUNHIKRISHNAN, J.
                       --------------------------------
                          M.A.C.A. No.619 of 2012
                        -------------------------------
                   Dated this the 18th day of March, 2021

                                 JUDGMENT

This appeal is filed by the first respondent in O.P.(MV) No.

1844/2000 on the file of the Motor Accidents Claims Tribunal,

Mavelikkara. It is a claim petition filed by the first respondent

herein claiming compensation for the injury sustained to him in a

motor vehicle accident. (Hereinafter, the parties are referred to

their rank before the Tribunal).

2. The case of the petitioner is that on 23.8.2000 at about

10.20 a.m., near Mavelikkara Gems Hospital, when a car bearing

reg. No.KL-4A-8335, which was driven by the second respondent in

a rash and negligent manner hit on the scooter in which the

petitioner was a pillion rider and he sustained serious injuries.

3. The second respondent died during the pendency of the

claim petition and the first respondent was recorded as his legal

representative.

M.A.C.A.No.619 of 2012

4. To substantiate the case, Exts.A1 to A10 were marked on

the side of the petitioners and Exts.B1 & B2 were marked on the

side of the respondents. After going through the evidence and

documents, the Tribunal passed an award allowing the petitioner to

realise an amount of Rs.55,460/- with interest at the rate of 7.5%

per annum from the date of filing the petition till realisation. The

third respondent Insurance Company was directed to deposit the

amount. But the third respondent was allowed to recover the

compensation amount with interest from the first respondent who is

the appellant in this appeal. Aggrieved by the recovery right given

to the third respondent by the Tribunal, this appeal is filed by the

first respondent.

5. Heard the counsel for the appellant/first respondent and

counsel for the third respondent insurance company.

6. The counsel for the appellant/first respondent submitted

that the second respondent was having a valid driving licence and

badge as on the date of the accident. According to him he was

abroad and therefore, he was not able to produce the driving

licence and badge of his father who is the second respondent M.A.C.A.No.619 of 2012

before the Tribunal during the time of trial. The appellant/first

respondent now produced the driving licence and badge of the

deceased second respondent. I perused the driving lincence and

badge. From a perusal of the same, it is clear that as on the date

of the accident, there is a valid driving licence and badge to the

second respondent. The Tribunal took an adverse inference against

the first and second respondents because even though a notice

was issued to the first respondent calling for the production of

those documents, those documents were not produced. Hence

adverse inference was taken against the first and second

respondents. Consequently, the right of recovery was given to the

third respondent because there is a violation of policy conditions.

In the light of Ext.A1 produced in this appeal, which is the driving

licence and the badge of the deceased second respondent, I think

the finding of tribunal will not stand. It is true that the counsel for

the third respondent submits that this matter ,may be sent back to

the Tribunal for considering the validity of the above driving licence

and badge. This driving lience and badge was produced before this

Court in I.A. No.810/2012 on 26.3.2012. No objection is filed by

the third respondent disputing the genuineness of the driving M.A.C.A.No.619 of 2012

licence or badge. In such circumstances, there is nothing wrong in

accepting the same in this appeal. Therefore I.A. No.810/2012 is

allowed. The driving licence and badge of Sri. P.C.Jacob is marked

as Annexure-A. Consequently, the direction in the impugned award

to recover the compensation amount from the first respondent is

set aside.

In the result, this appeal is allowed. The impugned award is

modified to the effect that the third respondent has no right to

recover the compensation amount and interest awarded by the

Tribunal from the appellant/first respondent.

Sd/-

P.V.KUNHIKRISHNAN

JUDGE

Al/-