Kerala High Court
N.Sameer vs Thayumma on 4 August, 2010
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 25TH DAY OF JANUARY 2016/5TH MAGHA, 1937
MACA.No. 1250 of 2015 ()
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AGAINST THE AWARD IN OPMV 1211/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MANJERI DATED 04-08-2010
APPELLANT/RESPONDENT NO.2:
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N.SAMEER, S/O.MOHAMMED, AGED 28 YEARS
NALAKATH HOUSE, VIKAS NAGAR, IRITTY P.O
KANNUR DISTRICT - 670 703.
BY ADV. SRI.MAHESH V RAMAKRISHNAN
RESPONDENT(S)/CLAIMANTS & RESPONDENTS 1&3:
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1. THAYUMMA, W/O.MOHAMMED, AGED 62 YEARS
2. ALI, S/O.MOHAMMED, AGED 36 YEARS
3. KADEEJA, D/O.MOHAMMED, AGED 34 YEARS
4. MARIYUMMA, D/O.MOHAMMED, AGED 31 YEARS
5. SAINABA, D/O.MOHAMMED, AGED 29 YEARS
6. AMINAKKUTTY,D/O.MOHAMMED, AGED 26 YEARS
7. THAHIRA, D/O.MOHAMMED, AGED 24 YEARS
8. ABDURAHIMAN, AGED 20 YEARS
ALL ARE RESIDING AT ESSURAMMAL HOUSE
THRIPPANACHI P.O, PALAKKAD - 673 641.
9. NITHESH KARAYIL, S/O.NANU
MUZHAKKUNNU, PERAVOOR P.O, KANNUR DISTRICT-670 673.
10. THE NEW INDIAASSURANCE CO. LTD.
ARISTO COMPLEX, MAIN ROAD
MAHE-673 310 REPRESENTED BY ITS BRANCH MANAGER.
R10 BY ADV. SRI.P.JACOB MATHEW
SRI.A.A.ZIYAD RAHMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ORDERS ON
25-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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C.M.Application No.1390 OF 2015
&
M.A.C.A.No.1250 OF 2015
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DATED THIS THE 25th DAY OF JANUARY, 2016
JUDGMENT
ANIL K.NARENDRAN, J.
The appellant is the 2nd respondent in OP (MV) No.1211/2007 on the file of the Motor Accident Claims Tribunal, Manjeri, an application filed by respondents 1 to 8 herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Mohammed (husband of the 1st respondent and father of respondents 2 to 8) in a motor accident occurred on 18.4.2007. While the deceased was walking along the side of a public road, an autorickshaw bearing registration No. KL-13/A-7552 owned by the appellant herein, driven by the 9th respondent and insured by the 13th respondent knocked him down, resulting fatal injuries and he succumbed to the injuries. Claiming compensation under different heads, a Claim Petition was filed before the Tribunal.
2. Before the Tribunal, Exts.A1 to A4 were marked on the side of the claimants and Exts.B1 and B2 were marked on the side of the respondents. Both sides have not chosen to adduce any oral C.M.Appln. No.1390/15 & M.A.C.A.No.1250/15 -2- evidence.
3. After considering the materials on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 9th respondent driver. Though the vehicle in question was covered by Ext.B1 policy of insurance, the Tribunal found that the 9th respondent, who was driving the vehicle was not having authorisation to drive an autorickshaw and as such the 10th respondent insurer was exonerated from liability.
4. Aggrieved by the award passed by the Tribunal, the owner of the autorickshaw is before this Court in this appeal, which was filed along with C.M.Application No.1390/2015 to condone the delay of 1546 days. The reason stated in Para.3 of the affidavit accompanying the C.M. Application for condonation of delay reads as follows:
"3. The learned Tribunal while awarding the compensation incorrectly imposed the liability on the appellant and permitted the Insurance Company to recover the amount from the appellant. This was on the ground that the 9th respondent, who was the driver had no valid driving licence. It was held that Ext.B2 which is the licence of the C.M.Appln. No.1390/15 & M.A.C.A.No.1250/15 -3- 9th respondent does not show that he was licensed to drive autorickshaw. The case of the appellant is that it was the duty of the 10th respondent Company to prove by adducing evidence that the appellant was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time. In fact the 9th respondent had valid licence."
5. Paras.4 and 5 of the affidavit contain explanation for the delay of 1546 days in filing the appeal. According to the appellant, he did not appear before the Tribunal, since he was under the impression that the 10th respondent insurer will take care of the matter since the vehicle was covered by a valid insurance policy and the 9th respondent was holding valid driving licence.
6. To the above application, a counter affidavit has been filed on behalf of the 10th respondent insurer, contending that no valid reasons have been stated in the affidavit to condone the inordinate delay of 1546 days in filing the appeal.
7. When the matter came up for consideration before this Court on 28.10.2015, the learned counsel for the appellant C.M.Appln. No.1390/15 & M.A.C.A.No.1250/15 -4- submitted that the driver of the autorickshaw was having a valid licence to drive the concerned vehicle and as such he sought for time to produce documents before this Court. Today when the matter was taken up for further consideration, the learned counsel for the appellant would submt that in spite of a registered letter dated 1.12.2015 issued to the appellant, no reply is received.
8. We heard arguments of the learned counsel for the appellant and also the learned counsel appearing for the 10th respondent insurer.
9. A reading of the Award passed by the Tribunal would show that the 10th respondent insurer was exonerated from the liability on a finding that, at the time of accident the 9th respondent who was driving the vehicle was not having authorisation to drive an autorickshaw. In the appeal filed before this Court, the appellant has not chosen to produce any materials to show that the 9th respondent driver was holding authorisation to drive autorickshaw, at the relevant time. Even after affording a reasonable opportunity, the appellant could not produce any C.M.Appln. No.1390/15 & M.A.C.A.No.1250/15 -5- reliable materials in this regard before this Court. Further, a reading of the affidavit in support of the C.M. Application would show that it contains absolutely no valid reasons to condone the inordinate delay of 1546 days in filing the appeal. In spite of receipt of notice, the appellant has not chosen to appear before the Tribunal and contest the matter. In that view of the matter, we find absolutely no grounds to condone the delay of 1546 days in filing the appeal.
In the result, C.M. Application for condonation of delay is dismissed. Accordingly, the appeal is also dismissed.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN, JUDGE dsn True copy P.S.to Judge