IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 MACA.No. 1958 of 2007() ----------------------- OPMV.359/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/ PETITIONER: --------------------- FRANCIS, AGED 51 YEARS, S/O.PAILY, THEKKANATH HOUSE, P.O.PULLUT, PANTHEERAMPALAM, KODUNGALLUR. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENTS: RESPONDENTS: ------------------------- 1. MOHANAN, ORAVANTHIRUTHI HOUSE, P.O.ANCHAPALAM, METHALA VILLAGE, KODUNGALLUR, PIN- 680 664. 2. SATHEESAN, S/O.BALAKRISHNAN, PONNAMBILLY HOUSE, ELTHURUTH, METHALA VILLAGE, KODUNGALLUR. 680 664. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, MANAPPATT BUILDING, NORTH NADA, KODUNGALLUR. 680 664 BY ADV. SRI.K.S.RAJESH - R1 & 2 SRI.M.SHAJU PURUSHOTHAMAN - R1 & 2 SRI.MATHEWS JACOB (SR.) - R3 SRI.P.JACOB MATHEW - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2008, ALONG WITH MACA. NO.684/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1958 OF 2007 AND 684 OF 2008 = = = = = = = = = = = = = = = Dated this the 16th day of June, 2008. J U D G M E N T MACA 1958/07 is filed by the claimant in O.P.(MV) 359/02 for enhancement of compensation and the other is filed by respondents 1 and 2 in the claim petition against the question of negligence, quantum as well as their liability. The brief facts of the case would reveal that the claimant was a passenger in an auto rickshaw which met with an accident. He sustained injuries. Though the respondents were served with notice in the claim application, 2nd respondent entered appearance through counsel but did not file any written statement. The first respondent filed a written statement raising the allegations but unfortunately neither the first respondent nor the 2nd respondent in the claim application contested the case which ultimately resulted in the finding against them whereby the Tribunal awarded a compensation of Rs.26,800/- to be paid by respondents 1 and 2 jointly and M.A.C.A. Nos. 1958/07 & 684/08 -:2:- severally. The Tribunal held that there was no valid driving licence for the rider of the scooter and therefore exonerated the insurance company from the liability. 2. The learned counsel for respondents 1 and 2 in MACA 1958/07 who has filed the other appeal would contend that even the negligence aspect is not properly considered and if an opportunity is given he may be able to establish the same. So far as the driving licence is concerned he has referred to the decision of the Apex Court reported in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781). He has also further referred to paragraph 102 (iii) and (vi) whereby the Apex Court held that mere absence of a driving licence or it happened to be a fake licence, will not disentitle the insurance company to be indemnified by the insurer unless it is proved that the owner in spite of specific knowledge about the absence of licence had authorised the driver to ply the vehicle. In paragraph (vi) the Apex Court held that the absence of the said driving licence has to be connected so as to form a fundamental cause for the accident. So in the absence of these materials the insurance company cannot get rid of the liability and M.A.C.A. Nos. 1958/07 & 684/08 -:3:- that is also a matter which requires consideration. In these cases there is a dissatisfaction about the amount of compensation awarded. So taking into consideration all these factors I feel the award passed in O.P.(MV)359/02 can be completely set aside and the matter be remitted back for fresh consideration on all points including the quantum, liability and exoneration of the insurance company. Respondents 1 and 2 in the appeal MACA 1958 of 2007 are permitted to produce documentary as well as oral evidence and also they are permitted to file any written statement or additional written statement and the insurance company is also permitted to raise additional pleas so as to arrive at a proper decision in the case. In the result the MACA Nos. 1958/07 and 684/08 are allowed and remitted back. Parties are directed to appear before the Tribunal on 24.7.08 and there may be an expeditious trial and disposal. M.N. KRISHNAN, JUDGE. ul/-