Mathai P.C. (Babu) vs Mathai P.C. (Babu) on 30 June, 2015

[Cites 9, Cited by 1]

Kerala High Court

Mathai P.C. (Babu) vs Mathai P.C. (Babu) on 30 June, 2015

The captioned appeals arise from a common judgment dated 30.6.2015 passed by the Additional Motor Accidents Claims Tribunal-IV, Pathanamthitta in O.P.(M.V.)741/2011, 742/2011 and 743/2011. MACA 3261/2015 is directed against the judgment and award in O.P.(M.V.) 743/2011, MACA 3262/2015 is directed against the judgment and award in O.P.(M.V.) 741/2011 and MACA 3266/2015 is preferred against the judgment and award in O.P.(M.V.) 742/2011. In fact, all the appeals are filed by the same person viz., one Mathai P.C. @ Babu and he was the first respondent in all the said claim petitions. He was the owner of the offending vehicle involved in the said cases and it is a jeep bearing registration No.KL-53-A-3333. The first respondent in these appeals were passengers in the aforesaid offending vehicle and they were the petitioners in the aforesaid claim petitions filed under Section 166 of the M.A.C.A.Nos.3261, 3262 & 3266 of 2015 2 Motor Vehicles Act, 1988 seeking compensation for the injuries satisfied by them in a motor vehicle accident occurred on 29.5.2011. The accident in question was a collision between the aforesaid jeep and another jeep bearing registration No.KL-34-A-4725. Consequently, the petitioners therein viz., the first respondent in these appeals sustained injuries and it is seeking compensation for the injury sustained in the said accident that they filed the above mentioned claim petitions. Obviously the first respondent therein/the appellant herein was served with notice in the said proceedings. However, he has not chosen to enter appearance and consequently he was set exparte in all the said claim petitions. It was after appreciating the evidence on record and the rival contentions of the parties that the aforementioned common award was passed. In O.P. (M.V.) 741/2011 the Tribunal passed an award for Rs.28,801/- with interest at the rate of 9% per annum from the date of petition till realization. In O.P.(M.V.) 742/2011 a total compensation of Rs.3,33,662/- was awarded with 9% M.A.C.A.Nos.3261, 3262 & 3266 of 2015 3 interest from the date of petition till realization. In O.P. (M.V.)743/2011 the Tribunal granted a total compensation of Rs.1,19,097/- with interest at the rate of 9% per annum from the date of petition till realization. After entering into a finding that the first respondent/appellant herein who is the owner-cum- driver of the vehicle bearing registration No.KL-53-A-3333 was not holding a valid driving licence at the time of the accident the Tribunal found that the accident occurred due to the negligence on the part of the first respondent and further finding that on the date of the accident he was not having a valid driving licence the second respondent, insurer of the said vehicle was directed to pay the amount awarded along with interest and costs at the first instance with the right to recover the amount paid to satisfy the award from the first respondent. It is in the said circumstances that the aforesaid appeals have been preferred challenging the above mentioned awards to the extent they ordered pay and recovery.

2. We have heard the learned counsel appearing for M.A.C.A.Nos.3261, 3262 & 3266 of 2015 4 the appellant and also the learned counsel appearing for the respondents.

3. The learned counsel appearing for the appellants contended that since the appellant was set exparte before the Tribunal and taking into account the documents which is now produced in these appeals i.e. photocopy of the original licence and the original of the renewed licence the matter may be remanded for fresh consideration after allowing the appellant to adduce evidence and for the said purpose that the judgment and award in question may be set aside. While considering the sustainability of such contentions, we are of the view that certain admitted facts are to be looked into. There is absolutely no case for the appellant that he was not served with notice in the proceedings before the Tribunal. Obviously, on receipt of notices in those proceedings, for reasons best known to him, he did not respond to the same and enter appearance. Consequently he was set ex parte. True that remaining ex parte in the proceedings before the Tribunal cannot be a M.A.C.A.Nos.3261, 3262 & 3266 of 2015 5 reason for holding that the appellant would not be entitled to prefer an appeal but at the same time we have no hesitation to hold that a person who had not responded to the notice issued by the Claims Tribunal, on being set ex parte, cannot be heard to raise grievance that he was deprived of an opportunity to adduce evidence and contest the matter effectively. Certainly, in such circumstances, such a reason would fall short of sufficient reason for setting aside the award for a remand. When it is evident that the said person claiming the status of a 'person aggrieved' was served with notice and then remained ex parte a matter cannot claim for a remand for fresh consideration after setting aside the awards obtained by the climants from the Tribunal in their favour solely to enable the person who remained ex parte to adduce evidence. We are of the considered view that the question of setting aside the award and remanding the matter for fresh consideration would arise only if sustainable grounds are made out.

M.A.C.A.Nos.3261, 3262 & 3266 of 2015 6

4. In such circumstances mentioned hereinbefore, we will proceed to consider the question whether the appellants had succeeded in establishing a sustainable ground so as to justify and sustain the prayer to set aside the award in question and to remand the matter for fresh consideration after affording him an opportunity to adduce evidence. Obviously to lend support to his contention that he was holding a valid driving licence on the date of the accident and that the Tribunal went wrong in holding that he was not having a valid driving licence the appellant produced a photocopy of the driving licence originally granted to him and the original of the renewed driving licence issued on 28.5.2016 along with I.A.No.2423/2016. We have perused the affidavit accompanying the said petition. In the petition it is stated that the appellant was issued with a driving licence on 10.5.1996 with effect from 10.5.1996. In fact, a copy of the same has been produced along with I.A.No.4527/2015. Evidently, it is only a photocopy of the driving licence allegedly issued to the M.A.C.A.Nos.3261, 3262 & 3266 of 2015 7 appellant. No reason whatsoever has been stated by the appellant as to why he is producing only the photocopy of the said document. Evidently, the case of the insurance company was that the appellant herein was not having a valid driving licence at the time of the accident it is to be noted that the appellant remained ex parte before the Tribunal. By now, it is very well known to the appellant the main dispute is whether or not the appellant was having a valid driving licence at the time of the accident. The circumstances and evidence obtained in this case would only justify the conclusion arrived at by the tribunal on that question. Now, the appellant assails the finding of the Tribunal on that question and claims that he was having a valid driving licence at the time of the accident. It is in the said circumstances the question why the appellant is withholding the original licence assumes relevance. Absolute absence any reason or explanation in the affidavit regarding non-production of the original licence also assumes relevance in the circumstances. Section 169(2) of M.A.C.A.Nos.3261, 3262 & 3266 of 2015 8 the M.V. Act vests the Tribunal with all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of document's and material objects and for such other purposes as may be prescribed. Therefore, in respect of matters not specifically covered by CPC its provisions do not proprio vigore apply. But, the provisions under Section 169(2) will certainly imply that the fundamental principles of Evidence Act will have general application though the Evidence Act, 1872 as such has not been made applicable. Going by Section 63 of the Evidence Act secondary evidence means and includes the documents of the nature enlisted under sub-sections (1) to (5) thereunder. Though the strict rules laid down by the Evidence Act would not be applicable in an enquiry before the Claims Tribunal in order to make the secondary evidence admissible the provisions of Section 65 of the Evidence Act has to be complied with. True that the petitioner has also produced the original of the renewed M.A.C.A.Nos.3261, 3262 & 3266 of 2015 9 licence. In the light of the decision of the Hon'ble Apex Court in Sital Das v. Sant Ram [AIR 1954 SC 606] for producing a secondary evidence the foundation have to be laid out. In the absence of any specific averments for producing the photocopy and for not producing the original no reason whatsoever has been stated. The learned counsel appearing for the appellant submits that it could not be produced as the original was surrendered for the purpose of getting the renewed licence. Evidently along with I.A.No.2423/2016 the original of the renewed licence issued on 28.5.2016 has been produced. The renewed driving licence No.28/1913/2006 issued on 28.5.2016 produced along with I.A.No. 2423/2016 would reveal that he was authorized to drive 'non-transport' vehicles from 7.6.2016 to 6.6.2021. There is no specific entry against the category 'transport'. The learned counsel submitted that the period of licence in respect of transport vehicles is also the same i.e. 7.6.2016 to 6.6.2021. Even if it is taken as correct it would only establish that he was issued with a driving licence M.A.C.A.Nos.3261, 3262 & 3266 of 2015 10 authorized him to drive transport vehicle only from 7.6.2016 to 6.6.2021. The accident in question was occurred on 29.5.2011. Therefore the renewed licence issued to him on 28.5.2016 would not lend any support to his contentions and it would not improve his case. Therefore, to consider the question whether he was having a valid driving licence on the date of the accident, we will have to look into the document produced along with I.A.No.4527/2015. We are of the view that for the purpose of considering whether any fruitful purpose could be served by remanding the matter and affording the appellant an opportunity to adduce the same as evidence the said document has to be looked into. Document No.1 would reveal that he was authorized to drive non- transport vehicles from 7.6.2011 to 6.6.2016. As in the case of the renewed licence issued on 28.5.2016 no specific entry has been made as against the category of the vehicle 'transport'. Therefore even if it is taken that he was authorized to drive transport vehicles from 7.6.2011 to 6.6.2016 it would not improve the case of the appellant as it M.A.C.A.Nos.3261, 3262 & 3266 of 2015 11 would not reveal that as on 29.5.2011 he was holding a valid driving licence. Therefore, as in the case of the renewed driving licence produced along with I.A.Nos.2423/2016 the photocopy of the licence produced alogn with I.A.No.4527/2015 also would not lend any support to the case of the appellant. Both the said documents would reveal that the date of birth of the appellant is 7.9.1960. In the contextual situation it is relevant to refer to Clause (b) (i) (A) and (B) of proviso to Section 14 (2) of the Motor Vehicles Act, 1988 it reads thus:

14. Currency of licences to drive motor vehicles:-

(1) x x x (2) A driving licence issued or renewed under this Act shall:-

x x x (A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of fifty years, whichever is earlier;

It would reveal that in the case of a person who obtained M.A.C.A.Nos.3261, 3262 & 3266 of 2015 12 licence either originally or renewed thereof had not attained the age of 50 years on the date of issue it would be effective for a period of 20 years from the date of such issue or renewal or until the date on which such person attains the age of 50 years, whichever is earlier. Since the appellant was issued firstly the licence on 10.5.1996 the 20 years period would expire on 9.5.2016. But at the same time as his date of birth was 7.9.1960 indisputably he completed 50 years as on 6.9.2010. In such circumstances by virtue of the operation of the clauses under the proviso the licence issued to him would remain valid only up to the age of 50 years. i.e up to 6.9.2010. Evidently, it must have been in the said circumstances that the appellant approached the authorities for getting it renewed and consequently he got it renewed from 7.6.2011 to 6.6.2016. There is nothing on record which would reveal that in between i.e. from 6.9.2010 till 7.6.2011 he was holding a valid driving licence authorizing him to drive a class of vehicle to which the offending vehicle belongs. In that M.A.C.A.Nos.3261, 3262 & 3266 of 2015 13 contextual situation sub clause (ii) of (B) of proviso to Section 14 (2) would assume relevance. It reads thus :

(ii) If the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or, as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal:

Going by the same if a person referred to in sub clause 1 has attained the age of 50 years on the date of issue or as the case may be renewal thereof it would be effective for a period of 5 years from the date of such issue or renewal. Therefore it is obvious from the aforesaid provision that if the appellant had actually submitted an application for getting it renewed from 7.9.2010 onwards and got it renewed it would have remained valid for another 5 years going by the operation of the said provision. The very fact that he was issued with a driving licence only on 8.6.2011 with effect from 7.6.2011 to 6.6.2016 would unerringly M.A.C.A.Nos.3261, 3262 & 3266 of 2015 14 pointing out to the fact that in between he was not holding a licence. At any rate, no document either original or a secondary evidence was produced by the appellant to show that he was having a valid driving licence from 7.9.2011 or at any rate, as on 29.5.2011, the date of the accident. If the petitioner has a case that he was actually holding a licence it is to be noted that the original of the same or at least a photocopy of the same could have been produced. In such circumstances it is evident that even now i.e. in this appeal also, no document which would at least indicate the fact that the appellant was holding a valid driving licence during the relevant point of time is not produced. When that be the situation, we have no hesitation to hold that remanding the matter would be a farce and it would definitely resulting in a wasteful exercise of the valuable time of the Tribunal. There cannot be a doubt with respect to the position that the invaluable time of a court or a Tribunal cannot be exercised for a futility. For the forgoing reasons, we are of the view that the captioned appeals must fail. Consequently, M.A.C.A.Nos.3261, 3262 & 3266 of 2015 15 these appeals are dismissed.

There will be no order as to costs.

Sd/-

C.T. RAVIKUMAR JUDGE Sd/-

K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/

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