The petitioner is aggrieved by Ext.P5 Award, passed in OP(MV).3 of 2009 wherein the Kerala State Electricity Board had filed an application for damages for the loss caused to the Board by the Tanker lorry driven by the 5th respondent herein, who was the 1st respondent before the Tribunal. The Tanker lorry belonged to the petitioner who was the registered owner of the vehicle and was impleaded as the 2nd respondent before the Tribunal. Admittedly the 1st and 2nd respondents remained ex parte. The Tribunal found that the claimant is entitled to damages. But on the finding of violation of policy conditions insofar as the driver having no proper driving licence to drive the vehicle carrying hazardous goods, absolved the insurer OP(MAC).23/14 2 from the liability. The liability was mulcted on the 2nd respondent, the registered owner and the Insurance Company was directed to pay compensation; however reserving liberty to proceed against the owner.
2. Only when revenue recovery proceedings were taken, the petitioner woke up to his rights and allegedly found that the driving licence of the driver was proper. Petitioner hence filed applications before the Tribunal produced as Ext.P7 for condoning the delay of more than 500 days and for setting aside the ex parte Award passed against the 2nd respondent. The only ground stated is that the documents were handed over to the Insurance Company for contesting the matter. In fact, if the contention of the Insurance Company was that the driver did not have proper licence, it was incumbent upon the petitioner to have appeared OP(MAC).23/14 3 before the Tribunal and produced documents to evidence that there was absolutely no violation of policy conditions.
3. In any event, since the petitioner has made such a prayer before the Tribunal now and contented that the driver had a valid licence with necessary endorsements, which is disputed by the learned senior counsel appearing for the Insurance Company, it is deemed fit that the Tribunal consider the application to set aside the ex parte order. In fact, the specific contention of the petitioner is that Ext.P2 is a certificate issued from an Institute certifying that he is competent to drive vehicles carrying dangerous and hazardous goods. However, the learned senior counsel appearing for the Insurance Company would categorically submit that what is required is not a certificate issued from an Institute but endorsements in OP(MAC).23/14 4 the driving licence to that effect. Ext.P1 licence produced does not show any such endorsement. Since these are disputed questions, it is directed that the Tribunal shall consider Ext.P7 in accordance with law. If the Tribunal is of the opinion that a prima facie finding cannot be entered and evidence should be led to adjudicate upon the controversy now raised, the Tribunal should also decide on imposing appropriate terms for allowing the applications filed before it.
4. In such circumstances, the Original Petition is disposed of directing the Tribunal to consider Ext.P7 and P8 applications and if at all, the Award is to be set aside, the same shall be done only to the extent required to decide upon the insurer's liability and no notice need be issued to the claimant. The claimant has admittedly received the OP(MAC).23/14 5 compensation. The revenue recovery steps initiated as per Exts.P3 and P4 shall be kept in abeyance for a period of four months from today. The Tribunal shall pass orders on the Interlocutory Applications within a period of three months from the date of appearance of the parties. The petitioner and the Insurance Company either by themselves or through counsel shall appear before the Tribunal on 22.4.2014.
The Original Petition is disposed of, leaving the parties to suffer the respective costs.
Sd/-
K.VINOD CHANDRAN, Judge Mrcs