IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 MACA.No. 1106 of 2010() ----------------------- OPMV.780/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): SUPPL.4TH & 5TH RESPONDENT ---------------------------------------- 1. K.SATHYAN,S/O.P.P.KUNHAPPU,KOROKKARAN HOUSE,CHERUTHAZHAM,MANDOOR.P.O,KANNUR DISTRICT-1. 2. K.SAJEEVAN,S/O.NARAYANAN,KOKKOM HOUSE, P.O.THAVAM,CHERUKUNNU,KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): PETITIONER ------------------------- 1. K.SANTHOSH KUMAR,S/O.NARAYANAN, 25 YEARS,KAKKONAM HOUSE,P.O.THAVAM,CHERUKUNNU, KANNUR. 2. T.RAJESH KUMAR,S/O.KUNHIRAMAN, GANGA NIVAS,IRIVANU,KANNUR DISTRICT, P.O.IRIVANU. 3. KADIYAN VINOD,S/O.DAMODARAN, 29 YEARS,KANNAPURAM,MOTTAMMAL,MOTTAMMAL POST. 4. M/S.UNITED INDIA INSURANCE CO.LTD, REP.BY DIVISIONAL MANAGER,FORT ROAD,KANNUR. 5. M/S.NATIONAL INSURANCE CO.LTD, REP.BY DIVISIONAL MANAGER,P.B.NO.40,BANK ROAD, KANNUR. BY ADV.SRI.LAL GEORGE FOR R5 BY ADV. SMT.D.GEETHA FOR R4 SMT.K.SHERIN MOHAN FOR R4 SRI.N.RENJITH FOR R4 BY ADV. SMT.C.A.SEENA FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH MACA NO. 1107 OF 2010, THE COURT ON THE SAME ````````DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- M.A.C.A.Nos.1106 & 1107 of 2010 ------------------------------- Dated this the 11th day of November, 2011 J U D G M E N T Basant, J. Respondents 4 and 5, the owner and rider of a motor cycle are the appellants before us. A pedestrian and a pillion rider travelling in the vehicle of the appellants had claimed compensation for personal injuries suffered by them in a motor accident which took place on 16.12.2002. There was a collission between a bus and the motor cycle. The driver, owner and insurer of both the vehicles were arrayed before the Tribunal as respondents 1 to 6. Claim was staked against the owner, driver and insurer of the bus. It was a case of both claimants that the accident occurred on account of the rashness and negligence of the driver of the bus. The owner, driver and insurer of the bus had disputed the assertion that the driver of the bus was responsible for the accident. A contention was raised that the rider of the motor cycle did not have a valid driving licence at the time of the accident. 2. Parties went to trial on these contentions. Both the claimants examined themselves as PWs 1 and 2. Ext.A1 F.I.R was produced. It is further seen that Ext.B2 case diary (evidently including charge sheet) was also produced. The oral evidence of PWs 1 and 2 as M.A.C.A.Nos.1106 & 1107/2010 2 well as Exts.A1 and B2 showed that the accident had taken place on account of the negligence of the driver of the bus. However, the Tribunal took note of the contention that the rider of the motor cycle, ie. the 5th respondent before the Tribunal and the 2nd appellant before us, did not have a valid driving licence. He had not produced his driving licence before the Tribunal. On that sole circumstance, the Tribunal itself recorded the oral evidence of PWs 1 and 2. Exts.A1 and B2 sail to the conclusion that both the driver of the bus and the rider of the motor cycle are equally responsible for the accident. It is accordingly that the impugned award was passed directing each set of owner, driver and insurer to pay 50% of the total awarded amount to the claimants. 3. Before us, the learned counsel for the appellants, the learned counsel for the claimants and the learned counsel for the insurance companies have advanced their arguments. The learned counsel for the appellants contend that in any view of the matter, the conclusion of the Tribunal that the rider of the motor cycle was also responsible for the accident is legally unsustainable. There is no semblance of material to support that conclusion. The mere fact that an allegation was raised that the rider did not have a valid driving M.A.C.A.Nos.1106 & 1107/2010 3 licence and the rider did not produce that driving licence is not sufficient to discard the overwhelming evidence tendered by Pws.1 and 2 duly supported by Exts.A1 and B2 and come to the conclusion that both drivers/riders were responsible for the accident. Moreover, the learned counsel for the appellants produced the original driving licence of the rider of the motor cycle in court. The counsel for both the insurance companies after perusal of the same do now accept that the rider of the motor cycle was having a valid driving licence. Thus, the only plank on which the Tribunal was persuaded to hold that both drivers were equally responsible for the accident has given way. It is now prayed that the driver of the bus may be held responsible and the driver, owner and insurer of the bus may be directed to pay the entire amount of compensation to the claimants. 4. We find merit in the contention of the learned counsel for the appellants. The oral evidence of Pws.1 and 2 as also Exts.A1 and B2 support the case of the claimants that respondents 1, 2 and 4 herein are liable to compensate the claimants/appellants. The appellants herein and the fifth respondent cannot in these circumstances have any liability. The challenge raised by the appellants must in these circumstances succeed. M.A.C.A.Nos.1106 & 1107/2010 4 5. In the result, a) These appeals are allowed. b) The driver, owner and insurer of the bus, i.e., respondents 1, 2 and 4 are found to be wholly liable to compensate the claimants for the loss suffered by them. c) All other directions of the Tribunal are upheld. d) The statutory amount of Rs.25,000/- each deposited by the appellants before the Tribunal to satisfy the proviso to section 173 shall now be released to be appellants by the Tribunal. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj.