MANOHARAN Vs. SHAJI

JUDGEMENT

(1.) These appeals arise from the common award passed by the Motor Accidents Claims Tribunal, Tirur on 5/2/2008 in O.P.(M.V.) Nos.45, 46, 59 and 60 of 2006. The claimants in O.P.(M.V.)Nos.60 of 2006 and 46 of 2006 are husband and wife respectively. They were travelling in an autorickshaw bearing registration No.KL-11/C-5965 along with their son Mahesh, a minor aged 7 years (the claimant in O.P.(M.V.)No.45 of 2006) and their six month old daughter by name Manju. The said autorickshaw collided with a motor car bearing registration No.KL-10/V-5482, owned by the first respondent, driven by the second respondent and insured with the third respondent. In that accident, the claimant in O.P.(M.V.)Nos.45, 46 and 60 of 2006 sustained personal injuries and the minor daughter of the claimants in O.P.(M.V.)Nos.46 and 60 of 2006, sustained fatal injuries and passed away on the same day. The claim petitions were thereupon filed seeking compensation on the allegation that the accident took place solely on account of the rash and negligent driving of the motor car by the second respondent.

(2.) The first respondent before the tribunal, the owner of the motor car entered appearance and filed written statements in O.P. (M.V.)Nos.45 and 46 of 2006. Though he entered appearance in O.P. (M.V.)Nos.59 and 60 of 2006, he did not file a written statement in the said claim petitions. In the written statements filed in O.P.(M.V.)Nos.45 and 46 of 2006, the first respondent, the owner of the motor car contended that his driver was not negligent. He contended that it was the driver of the autorickshaw who was negligent and that he had no licence to drive the autorickshaw. He also contended that his motor car is insured with the third respondent and therefore, the insurer is liable to pay the compensation if any awarded.

(3.) The second respondent before the tribunal, the driver of the autorickshaw did not enter appearance though he was served in O.P. (M.V.)No.45 of 2006 and therefore, he was set exparte. He was not served in the other three claim petitions. Since personal service on him was not possible, the tribunal directed the claimants to take steps to effect substituted service by affixture and by publication in a newspaper daily, but steps were not taken in that regard.