IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 MACA.No. 1731 of 2010 ----------------------- OPMV.473/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): RESPONDENTS 1 & 2 ------------------------------- 1. PHILOMINA JOSE, W/O.VAZHAPILLY JOSE, THALORE VILLAGE AND DESOM, THRISSUR DISTRICT. 2. REGHUNATH, S/O.CHAKKALAPARAMBIL PRABHAKARAN, VIYOOR DESOM, VILVATTOM VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): CLAIMANT AND 3RD RESPONDENT ------------------------------------------ 1. ISHA, W/O.LATE KOYA, KOOMULLUMPARAMBIL HOUSE, ATTOOR POST, CHERUTHURUTHY, THRISSUR. 2. ADAM, S/O.LATE KOYA, DO. DO. 3. SULEKA, D/O.LATE KOYA, DO. DO. 4. MUHAMMED, S/O.LATE KOYA, DO. DO. 5. HASSANAR @ HASSAN, S/O.LATE KOYA, (DELETED) DO. DO. THE NAME OF THE 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 9/11/2010 IN IA.2903/10. 6. HUSSAN, S/O.LATE KOYA, DO. DO. 7. SUBAIDA, D/O.LATE KOYA, DO. DO. 8. IBRAHIM, S/O.LATE KOYA, DO. DO. 9. FATHIMA, W/O.LATE HASSANAR @ HASSAN, DO. DO. 10. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., ROUND NORTH, THRISSUR. ADV. SRI.PMM.NAJEEB KHAN FOR R10 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MACA.No. 1731 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2010 Judgment Basheer, J: Appellants are stated to be the owner and driver respectively of a goods autorickshaw bearing registration No. KL–8/V 454. One Koya sustained some fatal injuries on August 26, 2003 when he was allegedly knocked down by the above vehicle. 2. Legal heirs of the deceased claimed compensation from the appellants and the insurer of the vehicle before the Motor Accidents Claims Tribunal. In response to the notice received from the Tribunal, appellant No.1 entered appearance; but he did not choose to file any statement. Appellant No.2 remained absent and he was set ex parte. The Insurance Company admitted before the Tribunal that the vehicle was covered under a valid insurance policy at the time of the accident. But it was contended that the driver was not holding a valid and effective driving licence at the time of the accident. Thus the Company sought exoneration from any liability to pay compensation to the claimants. 3. The Tribunal after considering the oral and MACA.1731/2010 : 2 : documentary evidence available on record found that the claimants were entitled to get a total sum of Rs.2,24,500/- with interest and costs. Though the Insurance Company was directed to pay the compensation to the claimants, it was made clear that the Company would be entitled to recover the same from the owner of the vehicle. Aggrieved by the above direction granting liberty to the Insurance Company to recover the compensation from the appellants, they have come up in appeal. 4. It is submitted by the learned counsel for the appellants that the finding entered by the Tribunal that the driver did not possess a valid and effective driving licence is against facts and ex facie unsustainable. Learned counsel has pressed into service photocopy of the relevant pages of the licence and badge and contended that the above aspect could not be brought to the notice of the Tribunal due to an inadvertent omission. According to the learned counsel, the contention raised by the Insurance Company about non possession of a valid driving licence and badge by the driver was not known to appellant No.1 at any point of time. The specific case of the learned counsel is that copy of the MACA.1731/2010 : 3 : statement filed by the Insurance Company was not served on his counter part before the Tribunal. 5. But according to learned counsel for the Insurance Company, the above contention cannot be accepted at all since the Company had in fact moved an application before the Tribunal praying for issuance of a direction to the driver to produce the licence and badge. Appellant No.1 who had participated in the proceedings before the Tribunal throughout, was also aware of the above prayer made by the Company. Notice on the application was in fact served on the driver also. But still he had not chosen to produce the licence and badge. 6. We do not propose to go into that area of controversy at this stage in view of the order that we propose to pass. The fact remains that the driver did possess a licence and badge. Learned counsel has in fact produced the same before us for our perusal. Learned counsel for the Insurance Company has some reservation about its validity to the extent as to whether it would have been sufficient to drive a goods autorickshaw. Yet again we refrain from making any comment on this aspect at this MACA.1731/2010 : 4 : stage. In our view, the said issue has to be sorted out before the Tribunal. The appellants shall get such an opportunity on condition that they pay a sum of Rs.5000/- as cost to the Insurance Company. The cost shall be remitted by the appellants before the Tribunal within 15 days from the date of receipt of a copy of this judgment. If the cost is not paid as directed above, the appeal shall stand dismissed. 7. It will be open to the appellants and the Insurance Company to adduce further evidence, both oral and documentary, before the Tribunal, if so advised. However we make it clear that the quantum of compensation fixed by the Tribunal shall not be re-opened. The tribunal shall only consider the question of liability to pay the compensation. 8. The appellants and respondent No.9 Insurance Company shall appear before the Tribunal on December 20, 2010. 9. Coercive steps, if any, initiated against the appellants for recovery, shall be kept in abeyance till the revised award is passed by the Tribunal. 10. The statutory deposit made by the appellants in MACA.1731/2010 : 5 : this appeal shall be subject to the result of the revised award to be passed by the Tribunal in terms of the direction issued in this judgment. The appeal is disposed of in the above terms. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.