MACA.No. 1110 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MRS. JUSTICE K.HEMA** ## **TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929** **MACA.No. 1110 of 2007** **-------------------------------OPMV.517/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** **........................................** ## **APPELLANT/1ST RESPONDENT** **--------------------------------------------** **M.K.NISHANTH, S/O KANNAN, AGED 28 YEARS, MARTHAMKANDY HOUSE, KOLOLAM, P.O.EDAYANNUR, CHALODE, KANNUR.** **BY ADV. SRI.N.NAGARESH SRI.K.BABU** ## **RESPONDENTS: PETITIONERS & RESPONDENTS 2 & 3** **------------------------------------------------------------------------------** **1. KALYANI.K., W/O KUNHIRAMAN, AGED 64 YEARS, RESIDING AT MOOTIL HOUSE, VESALA, KUTTIATTOOR, KANNUR.** **2. UMA.K., W/O RAJAN.K., AGED 33 YEARS, RESIDING AT MOOTIL HOUSE, VESALA, KUTTIATTOOR, KANNUR.** **3. NAVYA.K., D/O RAJAN.K., AGED 9 YEARS (MINOR), REPRESENTED BY HER MOTHER UMA.K (2ND RESPONDENT), RESIDING AT MOOTIL HOUSE, VESALA, KUTTIATTOOR, KANNUR.** **4. ARJUN RAJ.K., S/O RAJAN.K., AGED 7 YEARS(MINOR), REPRESENTED BY HIS MOTHER UMA.K(2ND RESPONDENT), RESIDING AT MOOTIL HOUSE, VESALA, KUTTIATTOOR, KANNUR.** ## **M.A.C.A NO. 1110/2007** **5. C.ASHOKAN, S/O GOPALAN, CHERAN HOUSE, NEAR PALOTTU KAVU, AZHIKODE P.O., KANNUR.** ## **6. UNITED INDIA INSURANCE CO. LTD.,** **BRANCH OFFICER, BROTHER'S COMPLEX, THALASSERRY ROAD, KANNUR-2.** **R5 BY ADVS. SRI.P.M.PAREETH** **R6 BY SRI.JOHN JOSEPH VETTIKAD R1 TO R4 BY SRI.P.U.SHAILAJAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2008 ALONG WITH M.A.C.A NO. 1369/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **J.B.KOSHY & K.HEMA, JJ. ------------------------------C.M.APPLN.NOS.1041 & 1341 OF 2007 & M.A.C.A.NOS.1110 & 1369 OF 2007 (F) ----------------------------------Dated this the 8[th] day of January, 2008 J U D G M E N T** ## **KOSHY,J.** These appeals are filed with delay condonation petitions by owner and driver of the vehicle bearing Registration No.KLC 7702. On 5.11.1999, the above lorry hit one Rajan and the back tyre of the lorry ran over his head and he died on the spot due to the injury caused on him. His legal representatives wife, two children and mother filed an application for compensation and tribunal passed an award for an amount of Rs.2,95,000/- with interest and costs. Tribunal found that lorry was insured by United India Insurance company limited (6[th] respondent in the appeal) and directed the driver to recover the amount. At the relevant time, lorry was driven by the 1[st] respondent and 2[nd] respondent was the registered owner. Driver was charge sheeted for not having driving licence also and specific contention was taken by the Insurance M.A.C.A.1110 & 1369/2007 2 company that driver was not having any valid licence. A petition was also filed by the Insurance company directing the driver to produce the driving licence. Driving licence was not produced and there is no case that he was holding a valid driving licence at the time of accident. Since there was no driving licence for the driver of the lorry, tribunal found that there is violation of policy condition, and therefore, Insurance company was given the right of recovery from the insured as well as the driver. If there was no insurance, driver and owner are jointly liable to pay the amount. The driver of the vehicle 1[st] respondent before the tribunal filed M.A.C.A.No.1110/2007 with a petition for condoning the delay of 317 days. Registered owner of the lorry filed M.A.C.A.No.1369/2007 with a petition to condone the delay of 307 days in filing the appeal. Main contention raised in the appeal is that they were not given proper notice regarding the date of posting. After verifying the A-diary it is reported as follows: “On perusal of the A-diary and connected case records, it is seen that on receipt of records M.A.C.A.1110 & 1369/2007 3 in O.P.(MV).517/2000 in Additional M.A.C.T. Thalassery the same has been posted to 15.9.2003. On 15.9.2003 1[st] respondent absent. No representation and the case was posted to 5.11.2003 for appearance of R1 and hearing on issues. On 5.11.203 issued framed and posted for steps to 24.12.2003. On 24.12.2003 petitioner and counsel absent and posted to 5.3.2004 along with petitions. Meanwhile on 20.2.2004 the above case has been retransferred to M.A.C.T., Thalassery as per O.M.No.E375861/03 dated 18.12.2003 along with 556 unripe OP(MV) cases. Nevertheless, on the hearing date of 5.3.2004 itself entry has been made in A-diary regarding retransfer of the above case to MACT, Thalassery. After retransfer of the case the same has been disposed by the Principal MACT. It is submitted that respective entries has been made in A-diary on all the posting dates mentioned above. Further it is also submitted the one copy of the list of OP(MV) cases transferred from MACT, Thalassery, and retransferred from Addl. MACT, Thalassery to MACT, Thalassery has been served to Bar Association, Thalassery and one copy of the above list has been published in the Court Notice Board as evidence from the office copy of list mentioned in this office.” Even otherwise, appellant was not able to produce the driving licence even now. It is a case that there was no valid driving M.A.C.A.1110 & 1369/2007 4 licence at the time of accident and they did not produce the driving licence. In the appeal there is no contention that the 1[st] respondent was having driving licence at the time of accident. The contention of the owner of the vehicle is that he is the transferee of the vehicle before the accident. The tribunal did not accept the above contention. Apart from the above, the Supreme Court in _**Dr.T.V.Jose v. Chacko P.M. @ Thankachan and others (AIR 2001 SC 3939)**_ held that notwithstanding the transfer, registered owner will be continued to be liable to the third parties. Driver has no case in the appeal memorandum that he was not driving the vehicle at the time of incident. Accident occurred due to his negligence. He is personally liable and owner of the vehicle is vicariously liable. Hence the Insurance company was directed to deposit the amount and take recovery from the registered owner in the absence of Insurance company. Claimants is also jointly and severally liable. If the registered owner has sold the vehicle before the accident, it is for him to file claims against the owner and get the amount realised. But we see no ground to set M.A.C.A.1110 & 1369/2007 5 aside the impugned award on merits. We are also of the view that no satisfactory reasons are stated to condone the long delay of more than 300 days in filing these appeals. Therefore delay condonation petitions are dismissed and consequently appeals are also dismissed. ## **J.B.KOSHY, JUDGE** **K.HEMA, JUDGE** prp ## **J.B.KOSHY & K.HEMA, JJ.** **--------------------------------------------------------** **M.F.A.NO. OF 2006 ()** **--------------------------------------------------------J U D G M E N T ---------------------------------------------------------** **1[st] January, 2008**