IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 1027 of 2004() ---------------------------------- OP(MV).983/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): 6TH RESPONDENT. ------------------------ THE ORIENTAL INSURANCE CO.LTD., REP. BY ITS MANAGER, REGIONAL OFFICE, METRO PLAZA, NORTH RAILWAY STATION ROAD, ERNAKULAM. BY ADV. MR.VPK.PANICKER RESPONDENT(S): RESPONDENTS 1 TO 5 & 7 AND PETITIONER -------------------------- * 1. RADHAKRISHNAN, AGED 43 YEARS, S/O.AMMINI, VALIYAPARAMBIL VEEDU, THALAKKAT, GURUVAYOOR, THRISSUR DISTRICT (DRIVER OF CAR NO.KRH/185, DL.NO.2870/79, BADGE NO.975/80). (DELETED) 2. ABDUNNI, S/O.KUNJUMON, RAYAMARAKKAR HOUSE, ORUMANAYUR, CHAVAKKAD, (OWNER OF CAR NO.KRH/185). 3. THE NEW INDIA ASSURANCE COMPANY LTD., ANURAGA BUILDINGS, WADAKKANCHERRY ROAD, KUNNAMKULAM(INSURANCE OF CAR NO.KRH/185 - POLICY NO.3176030263974 - VALID FROM 29-1-01 TO 28-1-2002 4. A SHAMBU, S/O.GOVINDAN NAMBOODIRI, NEAR GANAPATHY TEMPLE, PERINGANDOOR P.O. VIA. CHATHANOOR, OTTAPPALAM TALUK, DRIVER OF KBR 3607, AUTORICKSHAW DL.NO.1479/97/P.P. BADGE NO.1449/97/PP). 5. E.DHAMAYANTHI, W/O.GOPINATHAN, ELAVALLY MULLACKALL VEEDU, IRINGOOTTOOR, THIRUMITTAKKODE, OTTAPPALAM TALUK.(OWNER OF KBR 3607 AUTORICKSHAW). MACA. NO.1027/2004 6. JAYAKUMAR, S/O.GOPINATHAN NAIR, ELAVALLY MULLAKKAT VEEDU, IRINGOOTTOOR, THIRUMITTAKKODE, OTTAPPALAM TALUK,(AMENDMENT CARRIED OUT AS PER THE ORDER IN IA.NO.91/03, DATED 4/4/2003). 7. AJITH,AGED 7 (MINOR) REP. BY FATHER KRISHNAN, KAIPPALLY ILLAM, EZHUMANGAD, OTTAPPALAM TALUK, PALAKKAD DISTRICT. R3 BY MR.MATHEWS JACOB, SENIOR ADVOCATE R3 BY ADV. P.JACOB MATHEW R6 BY MR.SANTHEEP ANKARATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009, ALONG WITH MACA. NOS.1084 OF 2004 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1027/04 & 1084/04 and W.P.C.Nos.30387/04 & 30388/04 = = = = = = = = = = = = = = = Dated this the 23rd day of September, 2009. J U D G M E N T All these appeals are filed by the 6th respondent in O.P. (MV) 997, 993, 982, and 981 of 2001 of the Motor Accidents Claims Tribunal, Ottapalam. The claimants in these cases sustained injuries in a road accident. The allegations are to the effect that the petitioners were travelling in an auto rickshaw bearing Reg.No.KBR/3607 and at that time a car bearing Reg.No.KRH/185 came and there was a collision between the vehicles which resulted in injuries to the petitioners. The Tribunal, on a consideration of the materials, found that the accident took place on account of the negligence of the car driver and the auto rickshaw driver and apportioned the negligence at 40% on the car driver and 60% on the auto rickshaw driver. But the Tribunal did not decide the question whether the 4th respondent or the 7th respondent was the driver of the auto rickshaw at the time of M.A.C.A. NOs. 1027/04 & con. Cases. -:2:- the accident. The insurance company's definite contention is to the effect that it was the 7th respondent who was driving the auto rickshaw at the time of the accident and a criminal case has been registered against him and he was a person who was not holding any valid licence thereby there has been breach of policy conditions which would entitle the insurance company to get exonerated from the liability or at least the right to get reimbursement as the case may be. The Tribunal should have decided the question who was the driver of the auto rickshaw at the time of the accident. 2. In a motor accident case the driver is primarily liable and the owner is vicariously liable and by the terms of the insurance contract the insurance company has to indemnify the insured. Suppose there is breach of policy conditions necessarily the insurance company may get exoneration from the liability. So without deciding the crucial question who was driving the auto rickshaw at the time of the accident the Tribunal should not have disposed of the applications. Because it will decide the interse liability M.A.C.A. NOs. 1027/04 & con. Cases. -:3:- between the owner of the auto rickshaw and the insurance company of the auto rickshaw. After going through the materials I find there is no necessity to disturb the finding on the quantum of negligence as well as the quantum of compensation fixed by the Tribunal. The only question that has to be decided is to find out who was driving the auto rickshaw at the relevant time of the accident and assess the liability between the owner and the insurance company of the auto rickshaw. In the result both the M.A.C.As. and both the writ petitions are allowed in part and the matter is remitted back to the Tribunal with a direction to frame a specific issue to the effect that who was driving the auto rickshaw at the relevant time of the accident and thereafter consider the question whether the insurance company is liable to indemnify the owner or is entitled to get exoneration from the liability or at least the right to get reimbursement of the amount. For the said purpose the parties are permitted to produce both documentary as well as oral evidence in M.A.C.A. NOs. 1027/04 & con. Cases. -:4:- support of their respective contentions and the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 17.11.2009. The junction of the claimants and respondents 1 to 3 need not be insisted for the proper disposal of the case. M.N. KRISHNAN, JUDGE. ul/-