IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 MACA.No. 233 of 2009() ---------------------- OPMV.1145/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): FIRST RESPONDENT ---------------------------------------- TOMY K.K. KOOMAKKIYIL HOUSE, MUTHOLAPURAM KARA, ELANJI VILLAGE. BY ADV. SRI.P.V.ELIAS RESPONDENT(S):PETITIONER AND SECOND RESPONDENT ---------------------------------------------------------------- 1. SAIJU, S/O. GEORGE, RESIDING AT PUTHUSSERIL HOUSE, VAZHAKKULASAM, MANJALLOOR VILLAGE. 2. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE II, JEWEL ARCADE LAYAM ROAD, KOCHIN. ADV. SRI.M.JACOB MURICKAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.260/2009 IN M.A.C.A.NO.233/2009 24.3.2009 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== M.A.C.A NO. 233 OF 2009 =========================== Dated this the 24th day of March,2009 JUDGMENT First respondent in O.P.(M.V.)1145/2004 on the file of Motor Accidents Claims Tribunal, Muvattupuzha is the appellant. First respondent is the Petitioner and second respondent the Insurance Company. First respondent filed a petition under section 166 of Motor Vehicles Act,1988 claiming compensation for the injuries sustained by him on 9.8.2004 at about 7 p.m. According to first respondent, while he was standing near the Panchayat building, near Vazhakkulam private bus stand pick up Van KL- 17-6873 owned and driven by the appellant, due to his negligent driving, ran over his left foot causing grievous injuries and he was hospitalised and treated as an inpatient. He claimed a compensation of Rs.50,000/-. M.A.C.A. 233/2009 2 Appellant remained absent and was set ex parte. Second respondent filed a written statement admitting the insurance policy, but contending that appellant was not having any valid driving licence and therefore Insurance Company is not liable to indemnify the appellant. 2. Motor Accidents Claims Tribunal on Exts.A1 to A7 and B1 found that the accident was caused due to the negligent driving of the appellant and first respondent sustained injuries. A total compensation of Rs.22,450/- was granted . Finding that there is no evidence to prove that appellant was having a valid driving licence, directing second respondent to deposit the compensation amount, Motor Accidents Claims Tribunal passed an award allowing second respondent to recover the amount from the appellant. The award is challenged by the first respondent therein in this appeal. 3. Learned counsel appearing for the appellant and second respondent were heard. 4. There is no dispute in the appeal regarding M.A.C.A. 233/2009 3 the entitlement of the first respondent for the compensation or the quantum of compensation. The only question is whether second respondent is liable to indemnify the appellant and if not whether second respondent is entitled to realise the amount deposited before the Motor Accidents Claims Tribunal, pursuant to the award, from the appellant. 5. Motor Accidents Claims Tribunal permitted second respondent to realise the amount from the appellant holding that appellant was not having a valid driving licence. Along with the appeal appellant has filed an application under Order XL1 Rule 27 of Code of Civil Procedure to receive a copy of the driving licence for the relevant period. Based on it, it was argued that there was valid driving licence and therefore second respondent is liable to indemnify the appellant and hence the award to the extent of permitting second respondent to realise the amount from the appellant is to be set aside. M.A.C.A. 233/2009 4 6. Learned counsel appearing for the second respondent submitted that though copy of the document produced in the appeal shows that there was a valid driving licence if the vehicle was a transport vehicle, the said licence is not sufficient and that question is to be settled and in the absence of evidence to prove that fact, the award cannot be interfered. There is force in the submission. Firstly appellant did not appear and contest before the Motor Accidents Claims Tribunal. Though a copy of the valid driving licence is now produced, the question whether by the said licence appellant was authorised to drive the vehicle involved in the accident is the question to be decided. To consider that aspect it is necessary to remand the petition to the Motor Accidents Claims Tribunal. The appeal is allowed. To the limited extent of fixing the liability of the appellant and the second respondent the O.P is allowed. The award with regard to the quantum of compensation as well M.A.C.A. 233/2009 5 as the entitlement of the first respondent is confirmed. The only question to be considered by the Motor Accidents Claims Tribunal is whether the appellant was having a valid driving licence to indemnify the insured of the vehicle involved in the accident and if so whether second respondent is liable to indemnify the appellant and if not whether second respondent is entitled to realise the amount deposited in court from the appellant. It is also made clear that the Motor Accidents Claims Tribunal shall not direct the first respondent petitioner in the O.P.(M.V) to be present in court and presence of appellant and second respondent alone is necessary to resolve the dispute. Appellant and second respondent are directed to appear before the Motor Accidents Claims Tribunal on 25.5.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006