KESAVAN Vs. KUDAYATHOOR PANCHAYAT

JUDGEMENT

(1.) The appeal is directed against the Judgment and decree passed in O. S. No. 99 of 1979 on the file of Sub Court, Thodupuzha. Plaintiff Kudayathoor Panchayat represented by its Executive Officer filed the suit for money due under an agreement. Defendant is the owner of a stage carriage bearing registration No. K.L.K. 9037. The plaintiff's case is that on 22.9.1976 at about 10 A.M. the bus belonging to the defendant was driven by its driver in a negligent manner and hit against a waiting shed at Colapra by the side of Thodupuzha-Moolamattam road causing extensive damage to the same. The shed was constructed by plaintiff Panchayat and, therefore, steps were taken to realise damages from the defendant. The defendant offered to carry out the repairs to set right the damages caused to the waiting shed. An agreement was entered in to between the plaintiff Panchayat and the defendant. By that agreement the defendant agreed to carry out the repairs within a period of one month. It was also agreed by the defendant that in the event of failure to repair the waiting shed within the stipulated time the would pay a sum of Rs. 10,000/- to the Panchayat. The agreement was executed four days after the incident. The plaintiff alleged that inspite of repeated demands the defendant failed to discharge his obligations under the agreement. Therefore, the suit was filed for realisation of the amount due under the agreement.

(2.) The defendant filed written statement repudiating the liabilities. The defendant contended that the driver of the bus was not negligent and the agreement between the plaintiff and defendant was executed under duress. The defendant alleged that after the accident the officers of the Kudayathoor Panchayat and other interested persons restrained the defendant from removing the bus from the accident spot and under that circumstances the defendant was forced to execute the agreement. The defendant further alleged that he was prepared to carry out necessary repairs to the waiting shed but the plaintiff was not cooperative and the defendant is bound to pay only the actual amount spent by the plaintiff for repairing the shed. The defendant also alleged that he had requested the plaintiff to prefer a claim before the Insurance Company but the plaintiff did not undertake any such demand and the Insurance Company is a necessary party to the suit.

(3.) During the pendency of the suit, at the instance of the 1st defendant a notice was issued to the Insurance Company. The Insurance Company appeared and filed a statement contending that the Insurance Company is not liable to