IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 MACA.No. 932 of 2004() ----------------------------- OPMV.3155/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S)/4TH RESPONDENT --------------------------------------- ABDUL NAZAR S/O. ABDUL RAHIMAN, ARIKANATTUPARAMBIL HOUSE, NAMBIAPURAM, PALLURUTHY, COCHIN-6. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 3 & 5 --------------------------------------------------------------------- 1. T.A.SIVAN S/O. AYYAPPAN, THADIYANKADAVIL HOUSE, SOUTH END, EDACOCHIN, COCHIN -6. 2. PONNAMMA JEROME, W/O. P.P.JEROME, PUTHENPURACKAL HOUSE, SOUTH OF ST.ALOSIOUS CONVENT PULLAR DESOM ROAD, PALLURUTHY, COCHIN-6. 3. P.P.JEROME,S/O. PETER, PUHTENPURACKAL HOUSE, SOUTH OF ST.ALOSIOUS CONVENT PULLAR DESOM ROAD, PALLURUTHY, COCHIN-6. 4. M.G.THANCHAN S/O. GEORGE, 44/1414, ASOKA ROAD, KALOOR, COCHIN-17. 5. THE NEW INDIA ASSURANCE COMPANY LTD., BY ITS REGIONAL MANAGER, KANDOMKULATHY BUILDING, M.G.ROAD, COCHIN-11. R1 BY ADVS. SRI.R.SUDHISH SMT.MANJU SUDHISH R4 BY ADVS. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU R5 BY ADV.SRI.E.R.VENKATESWARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ A.K.BASHEER & P.Q.BARKATH ALI, JJ. ---------------------------------------------------- M.A.C.A. No.932 of 2004 ------------------------------------------- Dated this the 7 th day of October, 2010. JUDGMENT P.Q.BARKATH ALI, J Appellant is the 4th respondent in O.P.(M.V) No.3155/1996 on the file of the Motor Accident Claims Tribunal, Ernakulam. The Ist respondent in this appeal is the claimant in the O.P. He sustained the following injuries in a motor accident that occurred on 19th March 1996 at Puthiyaroad at Pallurithy. 1. (1) Punctured wound over left leg middle 3rd with deformity and crepitus on the left leg middle 3rd and the lower third junction. (2) X-ray shown spiral fracture on both bone left leg, RUA and A.K. Cast applied. 2. The accident happened while the claimant was pillion riding on the scooter bearing Registration No.KL-7F / 134 along Thoppumpady, Edakochi road, when he reached at Puthiyaroad near Pallurithy he was knocked down by the M.A.C.A. No.932 /2004 2 car bearing Registration No.KL-Z / 3023 driven by the 2nd respondent. Alleging negligence against the driver of the car as well as the rider of the scooter, claimant filed the O.P before the Tribunal under Section 166 of Motor Vehicle Act, claiming a compensation of Rs.1,50,000/-. 3. Respondents 1, 2 and 5 in the O.P are the owner, driver and insurer of the car involved in the accident and respondents 3 and 4 are the owner and the rider of the scooter. Respondents 1 to 4 remained absent before the tribunal. Only 5th respondent insurer of the offending car contested the matter. The 5th respondent in O.P. admitted the policy of the scooter but contended that the accident occurred due to the negligence of the driver of the car and that the 4th respondent in the O.P had no valid driving license to ride the scooter. 4. PWs 1 to 3 were examined and Exts. A1 to A9 were produced on the side of the claimants before the tribunal. No evidence was adduced by the respondents in the O.P. M.A.C.A. No.932 /2004 3 On an appreciation of evidence, the tribunal found that the accident occurred due to the negligence of the 4th respondent in the O.P./ the rider of the scooter and awarded a compensation of Rs.60,500/-with interest at 9% per annum from the date of petition till realization and proportionate cost against respondents 3 to 5. The tribunal has also found that 4th respondent in the O.P and has no valid driving license at the time of the accident. Therefore, the Tribunal permitted the Insurance Company to recover the compensation amount awarded from the respondent 3 and 4 in the O.P. The 4th respondent who is the rider of the scooter has come up in appeal challenging the finding of the tribunal permitting the Insurance Company to recover the compensation amount from him. 5. Heard the counsel for the appellant and the counsel for the Insurance Company. 6. The following points arise for consideration: (1) Whether the finding of the tribunal that the accident occurred due to the negligence of the M.A.C.A. No.932 /2004 4 rider of the scooter/ the 4th respondent in the O.P can be sustained. (2) Whether the finding of the tribunal that the 4th respondent had no valid driving license at the time of the accident and therefore, the 5th respondent in O.P./Insurance Company can recover the compensation amount from the respondents 3 and 4 in the O.P can be sustained. 7. Point No.1:- The claimant attributed negligence to the driver of the car / the 2nd respondent in the O.P as well as the rider of the scooter, the 4th respondent in O.P who is the appellant herein; but when he was examined as PW1 before the Tribunal he testified that the accident occurred due to the negligence of the rider of the scooter. As there was no contra evidence adduced on the side of the contesting respondents, we are inclined to accept the evidence of PW1 and hold that the accident occurred due to the negligence of the rider of the scooter, the 4th respondent in the O.P. The finding of the Tribunal on this point is confirmed. M.A.C.A. No.932 /2004 5 8. Point No.2:- Next point to be considered is whether 4th respondent had valid driving license at the time of the accident. The 4th respondent / appellant remained absent before the tribunal, but before this court he produced his driving license. It seen from that the applicant has taken license on April 1, 1996. The accident happened on March 1996 that means he must have learners' license prior to April 1, 1996. Therefore, it has to be held that the appellant had a valid driving license at the time of the accident. That being so, the Insurance Company, that is, the 5th respondent in the O.P is bound to indemnify the 3rd respondent, the owner of the offending scooter. It follows that the finding of the tribunal permitting the 5th respondent in the O.P, the Insurance Company to recover the compensation amount from the respondents 3 and 4 in the O.P cannot be sustained. Therefore, the said finding is set aside. In the result, appeal is allowed in part. The finding of the tribunal that the accident occurred due to the M.A.C.A. No.932 /2004 6 negligence of the appellant/ 4th respondent is confirmed. The finding of the tribunal that the 5th respondent in the O.P, the insurance company can recover the compensation amount from the appellant /4th respondent is set aside. The 5th respondent in the O.P is bound to indemnify the owner/ 3rd respondent in the O.P. Sd/- A.K.BASHEER, JUDGE Sd/- P.Q.BARKATH ALI, JUDGE ss/- //True copy// P.A to Judge