IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 MACA.No. 423 of 2005() ---------------------- OPMV.1048/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/2ND RESPONDENT: --------------------------------------- JOYIKURIACKOSE, S/O. C.J. KURIACKOSE, AGED 42 YEARS, RESIDING AT CHAKKANKULAM, PATTIPARAMBU, THIRUVILLWAMALA, THRISSUR. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): CLAIMANT-RESPONDENTS: ------------------------------------ 1. JANU @ JANAKI AMMA, D/O. LATE AYYAPPAN RESIDING AT PULIKKODE HOUSE, NEAR TARUR MADRASA, TARUR, ALATHUR, PALAKKAD. 2. SANUDEEN, S/O. CHELLAPPAN, RESIDING AT VILARKODU, TARUR, PALAKKADU. 3. THE NATIONAL INSURANCE CO.LTD., R.V.N. BUILDING 1ST FLOOR, 157 KARAMADI ROAD, METTUPPALAYAM. 4. K. CHELLAPPAN @ CHELLAPPAN, S/O. KRISHNAN, PANDARAKULUMBU, PAZHAMBALAKODE. 5. K.P. MOHAMMED HANEEFA, S/O. SAIDALAVI, KARIMPARAMBIL HOUSE, KOLATHUR P.O., MALAPPURAM. ADV. SRI.M.A.GEORGE FOR R3 SMT.DEEPA GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 423 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 13th day of December, 2011 JUDGMENT Ramkumar, J. In this appeal filed under section 173 of the Motor Vehicles Act (M.V.Act for short) the appellant who was the 2nd respondent in O.P.(MV) No.1048/1996 on the file of the Motor Accidents Claims Tribunal, Palakkad challenges that part of the award permitting the 3rd respondent Insurance Company to recover a sum of Rs.50,500/- (awarded in the said O.P.(MV) from respondents 2 and 5 before the Tribunal). 2. We heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3rd respondent Insurance Company. 3. The learned counsel for the appellant has made the following submissions before us in support of the appeal:- The appellant is the owner of the jeep in question bearing registration No.KL-10A/ 8220, MACA 423/2005 2 which was insured by the previous owner K.P.Mohammed Haneefa (the 5th respondent before the Tribunal). As per Ext.A1 F.I.S. given by one of the injured persons, the person who was driving the vehicle stopped the jeep near a canal bund for passing urine. While so, another jeep came from behind and finding no sufficient space to take the vehicle forward the 1st respondent before the Tribunal, who was standing near the parked jeep, was asked to provide sufficient space to take the second jeep and when the 1st respondent before the Tribunal had taken the parked jeep, it dashed against three persons who were injured. The claimant in this case was one of the injured persons. The 4th respondent (Chellan @ Chellappan) is the duly authorized driver of the appellant and at the most he might have been negligent in leaving the key in the jeep when he left the vehicle for MACA 423/2005 3 passing urine, but the 4th respondent never gave any permission to the 1st respondent before the Tribunal to take the jeep and merely because the 1st respondent before the Tribunal did not have a valid driving licence the liability cannot be saddled on respondents 2 and 5 before the Tribunal. 4. The learned counsel for the Insurance Company would contend that the person who actually drove the vehicle is admittedly the 1st respondent before the Tribunal and he had no licence also. Even though the 4th respondent had a case in his counter that he had left the key in the vehicle itself, when examined as RW1 he deposed that he had taken the key also with him. RW1 further admitted that he does not know who is the owner of the jeep. 5. It was inter alia holding that the conduct of the appellant (2nd respondent) in not initiating any proceedings against the 1st respondent for unauthorizedly taking the vehicle, that the Tribunal saddled the liability on MACA 423/2005 4 respondents 2 and 5 with permission to the Insurance Company to recover the award amount from them. 6. Except the bare assertion before us that 4th respondent was the duly authorized to drive the jeep and the accident took place in the manner stated in Ext.A1 F.I.S., there is no evidence adduced in that behalf either by the claimant or by the appellant. There is no evidence to the effect that the 4th respondent is the duly authorized driver of the appellant. Moreover, there is also no evidence to the effect that the 1st respondent before the Tribunal took control of the vehicle in the manner as alleged in Ext.A1. 7. Faced with the above difficulty, the learned counsel for the appellant prays for an opportunity to the appellant to prove the basic facts in which case alone the appellant will be entitled to contend that the burden is on the Insurance Company to prove the ingredients of section 149 (2)(a)ii) of the M.V.Act. We are inclined to give the appellant an opportunity to prove the same. 8. Accordingly, the impugned award is set aside and MACA 423/2005 5 the matter is remanded to the Tribunal below giving an opportunity to the appellant to substantiate the above contention. The Insurance Company shall also be entitled to adduce evidence to substantiate its contention. We make it clear that we are not interfering with the assessment of the compensation awarded by the Tribunal below. This remand is only for the purpose of deciding the person or persons who are liable to pay the compensation assessed. The parties shall appear before the Tribunal on 16-1-2012. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn. MACA 423/2005 6 I.A. No. 829 of 2005 in M.A.C.A No. 423 of 2005 Dismissed. Sd/-V.RAMKUMAR, JUDGE. 13-12-2011. Sd/- P.Q.BARKATH ALI, JUDGE.