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 5TH FEBRUARY 2010 / 16TH MAGHA 1931 MACA.No. 3096 of 2009 ----------------------- OPMV.363/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): RESPONDENTS 1 & 2 ------------------------------- 1. SASI, AGED 46 YEARS, S/O.CHANDRASEKHARAN, PUTHIYAMADATHIL HOUSE, VELLOORKUNNAM VILLAGE, MUDAVOORKARA, MUVATTUPUZHA TALUK. 2. K.PAUL PETER, KUNNANAYAKAL HOUSE, EAST VAZHAPPILLY, MUDAVOOR, MUVATTUPUZHA BY ADV. SRI.A.K.SAITHU MOHAMMED SRI.V.P.MOHAMMED NIYAZ RESPONDENT(S): CLAIMANTS 1 TO 5 & 3RD RESPONDENT ------------------------------------------------ 1. MUMTHAS, W/O.LATE ABDUL SHUKKOOR, MUNDETH HOUSE, MEKALADY KARA, KALADY VILLAGE. 2. FARISH M.A. (MINOR), AGED 13 YEARS, S/O.LATE ABDUL SHUKKOOR, MUNDETH HOUSE, MEKALADY KARA, KALADY VILLAGE. (REPRESENTED BY HIS MOTHER AND GUARDIAN MUMTHAS, THE IST RESPONDENT). 3. FAMINA M.A. (MINOR), AGED 8 YEARS, D/O.LATE ABDUL SHUKKOOR, MUNDETH HOUSE, MEKALADY KARA, KALADY VILLAGE. (REPRESENTED BY HIS MOTHER AND GUARDIAN MUMTHAS, THE IST RESPONDENT). 4. PAREETH PILLAI (FATHER OF ABDUL SHUKKOOR) AGED 81 YEARS, MUNDETH HOUSE, MEKALADY KARA, KALADY VILLAGE. MACA.No. 3096 of 2009 -2- 5. PATHUMMA, (MOTHER OF ABDUL SHUKKOOR) AGED 77 YEARS, MUNDETH HOUSE, MEKALADY KARA, KALADY VILLAGE. 6. ORIENTAL INSURANCE COMPANY, MUVATTUPUZHA BRANCH, MUVATTUPUZHA. ADV. SRI.P.VIJAYA BHANU FOR R1 TO 5 SRI.VIPIN NARAYAN FOR R1 TO 5 SRI.P.V.JYOTHI PRASAD FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 3096 of 2009 ------------------------------------------------------ Dated: FEBRUARY 5, 2010 JUDGMENT Basheer, J. The appellants are stated to be the driver and the registered owner respectively of a commercial vehicle (tempo) bearing registration No. KL 7/K-4550. The said vehicle was involved in a motor accident on December 5, 2002. 2. The allegation appears to be that there was a collision between the tempo and a two wheeler bearing registration No. KL7/X- 8143. The rider of the two wheeler succumbed to the injuries sustained by him though the pillion rider got away with some injuries. The legal heirs of the rider preferred OP(MV)363/2003 and the pillion rider filed OP(MV) 1014/2003 seeking compensation for the injuries sustained by him. The above two claim petitions were tried jointly. 3. The Tribunal passed a common award on November 19, 2008 holding that the accident occurred due to the composite negligence of both drivers. The percentage of composite negligence was apportioned as 25:75 between the rider of the two wheeler and the driver of the tempo. It was further held by the Tribunal that the Insurance Company of the tempo will not be liable to indemnify the owner since his driver did not possess a driving licence to drive the M.A.C.A. 3096 of 2009 2 vehicle. The said finding is under challenge in this appeal at the instance of the owner and driver of the tempo. 4. It is brought to our notice that the appeal filed by the claimants against the award in OP(MV) 1014/2003 was heard and disposed of by a learned Single Judge of this Court by judgment dated January 19, 2010 remitting the case back to the Tribunal with a direction to consider the correctness of the finding about the liability of the owner and driver. This view was taken by the learned Judge since the owner and driver had produced the driving licence and badge held by the driver at the relevant point of time. 5. The appellants have produced photocopies of the driving licence and badge issued in favour of appellant No.1. Prima facie it appears that appellant No.1 was holding a valid driving licence and badge. However, we hasten to add that it is for the Tribunal to decide the issue after allowing the parties to adduce evidence in this regard. It will be open to the appellants to produce the badge and licence and establish that the driver was truly licensed to drive a commercial vehicle at the relevant point of time. We are persuaded to take this view particularly since a learned Single Judge of this court has already taken such a view in the connected appeal which arose from the common award. M.A.C.A. 3096 of 2009 3 6. In that view of the matter this appeal is disposed of remitting the case back to the Tribunal. The finding with regard to the liability fastened on the appellants is set aside. The Tribunal shall consider the said issue after affording sufficient opportunity to the appellants and the Insurance Company apart from the claimants, if they so choose. It is made clear that the order of remand is confined only to the above question and the quantum of compensation awarded in favour of respondents 1 to 5 in this appeal need not be reconsidered, especially since there is no challenge with regard to the same in this appeal. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-