IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 MACA.No. 2560 of 2008() ----------------------- OPMV.257/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/RESPONDENT ---------------------------------------- N.J.JOSEPH, S/O.JOSEPH, NEERALAKKOTTIL HOUSE, NEZHOOR VILLAGE, NEZHOOR POST, NEZHOOR KARA. BY ADV. SRI.P.BABU KUMAR RESPONDENT(S): PETITIONERS -------------------------- 1. MATHEW S/O.LUKA,KALAMATTATHIL, VADAKKENIRAPPU, NEEZHOOR, NOW RESIDING AT EDETTU(H) KALATHOOR KARA, KURAVILANGADU VILLAGE. 2. ANTONY JAIMON, KUTTEZHATHU HOUSE, ALAPPAT CROSS ROAD, KOCHI. 3. THE NATIONAL INSURANCE CO.LTD., REP.BY ITS DIVISIONAL MANAGER, ERNAKULAM. BY ADV. M.A.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 2560 of 2008() ORDER ON I.A. NO. 3043 OF 2008 IN MACA NO. 2560 OF 2008 DISMISSED SD/- M.N.KRISHNAN, JUDGE 28.11.2008. // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 2560 OF 2008 --------------------------------- Dated this the 28th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Pala in O.P.(MV) No.257/2003. The 2nd respondent in the claim petition, who is the driver of the vehicle is the appellant before me. The tribunal awarded a compensation of Rs. 23,750/- with 7.5% interest. The tribunal found that the appellant did not have a valid effective driving licence at the time of the accident and therefore directed the Insurance Company to pay the amount and get it recovered from the owner and the driver. It is against that decision the driver has come up in appeal. 2. The learned counsel would contend that the driver is not a party to the insurance contract and therefore there is no liability for him to get the amount. The decision reported in Ashraf v. Fathima [2004(2) KLT 598], the division bench of this court considered that, though a person may in actual possession of the vehicle, the Insurance Company may not be able to recover the amount for the reason that there is no contract between the two. If the said principle is extended to the driver, then there is some force M.A.C.A.No. 2560/2008 -2- in the contention by the learned counsel for the appellant. But the fundamental aspect that the driver is the tortfeasor and that the owner is vicariously liable for the act of the driver and the Insurance Company is to indemnify the vicarious liability of the insured cannot be forgotten. But there is no direct contract between the Insurance Company and the driver and therefore it is always desirable that the Insurance Company is permitted to proceed against the owner of the vehicle and only in case of non realisation, to proceed against the driver for the realisation of the amount. In the result, M.A.C.A. is partly allowed and the award passed by the tribunal is modified and the Insurance Company is directed to proceed against the Insurer of the vehicle for realisation of the amount and only on failure to recover the amount to proceed against the driver for the realisation of the same. With this modification appeal is disposed of. Any proceedings initiated against the driver shall be kept in abeyance until it is found that the amount is not recoverable from the owner. M.N. KRISHNAN,JUDGE vkm