IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 MACA.No. 834 of 2010() ---------------------- OPMV.2374/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): 1ST RESPONDENT ------------------------------------------------ M.P.IBRAHIM, AGED 50 YEARS, SON OF IMBICHIMAMMU, KIZHAKKEDATHU PARAMBU, P.O.KALLAI, KOZHIKODE-673003. REP. BY P/A. SHYJAL.M. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): 2ND RESPONDENT & PETITIOENR ------------------------------------------------------------------------- 1. UNITED INDIA INSURANCE CO.LTD., MAVOOR ROAD, BRANCH, KOZHIKODE. 2. K.P.USMAN, AGED 63 YEARS, SON OF MAMOONHI, KUNNODIYIL HOUSE, OLAVANNA, KOZHIKODE. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R1 SRI.P. JACOB MATHEW FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ----------------------------------- M.A.C.A NO. 834 OF 2010 ------------------------- DATED THIS THE 12TH DAY OF AUGUST, 2010 JUDGMENT --------- Barkath Ali, J. The appellant is the first respondent in OP(MV)No. 2374/2004 on the file of Motor Accidents Claims Tribunal, Kozhikode. The claimant in OP(MV) who is the 2nd respondent in the appeal filed O.P before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2 lakhs for the loss caused to the claimant on account of injuries sustained by him in a motor accident which occurred on August 14, 2004 at about 9 a.m. The accident happened while the motor cycle ridden by the claimant was hit by a Jeep bearing registration No. KL-9-F-1350. The claimant sustained fracture to shaft of femur and left clavicle. Alleging negligence against first respondent, owner cum driver of the Jeep, the claimant filed O.P before the Tribunal claiming compensation. Only the 2nd respondent, insurer M.A.C.A NO. 834 OF 2010 2 of the offending Jeep contested the matter and admitted the policy. 2. Before the Tribunal only PW1, the claimant was examined and Exts. A1 to A4 were marked on the side of the claimant and Ext. B1 was marked on the side of contesting 2nd respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the first respondent and awarded a compensation of Rs. 63,250/- with interest at 7% per annum from the date of petition till realization. The Tribunal also held that the first respondent was not holding a valid driving license at the time of accident and that therefore the Insurance company can recover the amount from the first respondent. The first respondent has now come up in appeal challenging the said finding of the Tribunal. 3. Heard the counsel for the appellant and counsel for the respondents. M.A.C.A NO. 834 OF 2010 3 4. The accident is not disputed. The findings of the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent, the owner cum driver of the offending Jeep is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the Insurance Company is liable to indemnify the 1st respondent. 5. The counsel for the 2nd respondent argued that the appellant did not hold a valid driving license at the time of accident which amounts to violation of condition of the policy and therefore ordered that the Insurance Company can recover the amount from the first respondent. But it is seen from the Police records that the appellant is having a valid driving license at the time of accident bearing the number 11/2744/1984 of LA Kozhikode. That being so, we feel that an opportunity should be given to the appellant to produce his driving license before the Tribunal. Therefore, we set aside the impugned award and M.A.C.A NO. 834 OF 2010 4 remand the case to the Tribunal for fresh disposal in accordance with law. 6. As regards the quantum of compensation awarded by the Tribunal, the claimant sustained fracture of shaft of femur and fracture of left clavicle and fracture of proximal humerus. He was referred to Medical Board by the Tribunal to assess the disability, but was returned stating that Board cannot assess his disability as the claimant required further treatment. The Tribunal awarded a compensation of Rs. 63,250/-. Taking into consideration the nature of the injury sustained by the claimant, we feel that the compensation awarded by the Tribunal is quite inadequate. Therefore, the Tribunal shall decide afresh the question of quantum of compensation the claimant is entitled to. 7. In the result, the appeal is allowed by way of remand. The judgment and award of M.A.C.T, Kozhikode in OP(MV) No. 2374/2004 dated November 7, 2008 is hereby set aside and the M.A.C.A NO. 834 OF 2010 5 matter is remanded to the Tribunal to decide all the questions afresh. Parties to the proceedings are entitled to produce further evidence, if any, in this matter to substantiate their contentions. The Tribunal shall depose of the case within three months from the date of receipt of copy of this judgment. Parties shall appear before the Tribunal on October 14, 2010. sd/- A.K. BASHEER JUDGE sd/- P.Q. BARKATH ALI JUDGE PKK M.A.C.A NO. 834 OF 2010 6