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 8TH OCTOBER 2010 / 16TH ASWINA 1932 MACA.No. 2159 of 2007() ----------------------- OPMV.338/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANTS/ PETITIONERS ------------------------------------- 1. MADHAVAN AGED 50 YEARS S/O.CHATHAKUTTY,KANNAMKULAM HOUSE KAIPAMANGALAM P.O., THRISSUR DISTRICT (FATHER OF THE DECEASED) 2. JINESH,AGED 23 YEARS, S/O. MADHAVAN,KANNAMKULAM HOUSE P.O.KAIPAMANGALAM,THRISSUR DISTRICT (TWIN BROTHER OF THE DECEASED) 3. NEENA,AGED 26 YEARS,D/O.MADHAVAN KANNAMKULAM HOUSE P.O.KAIPAMANGALAM, THRISSUR DISTRICT (SISTER OF THE DECEASED) BY ADV. SRI.N.KRISHNANKUTTY PILLAI RESPONDENT(S): DEFENDANTS ------------------------- 1. N.A.JOSE,S/O.NEELANKAVIL ANTHONY, 11/145, ARIMBOOR, THRISSUR DISTRICT. 2. K.V.SIDHAN,S/O.VELALYUDHAN KUUMMATHOLLY HOUSE, MANALOOR, THIRSSUR DISTRICT. 3. THE MANAGER, NEW INDIA ASSURANCE CO. LTD SREE HARI BUILDINGS, IIND FLOOR, MAIN ROAD, NEYYATTINKARA. 4. V.RAJENDRAN, S/O.VELAYUDHAN, VELAYUDHA MANDIRAM,PONGUMOODU, KOOVALASSERY P.O., NEYYATTINKARA, TVPM.DIST. ADV. SRI.BABU KARUKAPADATH FOR R.2 SMT.M.A.VAHEEDA BABU FOR R.2 SRI.K.A.NOUSHAD FOR R.2 SRI.P.G.PRAMOD FOR R.2 SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/10/2010, ALONG WITH MACA NO. 1539 OF 2008 MACA NO. 2165 OF 2007, MACA NO. 2160 OF 2007 MACA NO. 1540 OF 2008, MACA NO. 1343 OF 2008 & MACA NO. 1174 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MACA.Nos.2159, 2160 & 2165/2007 & 1343, 1539 & 1540 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October, 2010 Judgment Basheer,J: These six appeals are directed against a common judgment/award passed by the Motor Accident Claims Tribunal in three Claim Petitions in respect of a road traffic accident that occurred on December 2, 2001. 2. A transport vehicle (Mahindra Van) bearing registration No. KL 01 B 8767 allegedly dashed against a two wheeler bearing registration No. KL-B/E 8470. The rider of the two wheeler sustained fatal injuries to which he succumbed later. The two pillion riders suffered grievous injuries. 3. The legal representatives of the deceased victim and the two injured pillion riders preferred Claim Petitions under Section 166 of the Motor Vehicles Act claiming compensation from the owner, driver and insurer of the tempo van alleging that the accident occurred due to the rash and negligent driving of the said vehicle by its driver. 4. The Insurance Company, which has preferred MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 2 : M.A.C.A.Nos.1343, 1539 and 1540 of 2008, resisted the claim for compensation contending, inter alia, that the accident occurred not due to the sole negligence or rashness of the driver of the tempo van but because of the contributory negligence on the part of the rider of the two wheeler, as well. It was also contended that the driver of the tempo van did not possess a valid driving licence and badge at the time of the accident and therefore the Company could not be made liable to indemnify its owner. It was also contended that the vehicle in question had changed hands and the person who had been initially arrayed as the owner was not covered under the policy issued by the Company. According to the Company, it was in fact respondent No.4 who was the insured. 5. The three Claim Petitions were tried jointly. No oral evidence was adduced by any of the parties though Exts.A1 to A25 were marked on the side of the claimants. Ext.B1, the policy certificate in respect of the tempo van, was produced by the Insurance Company. The Tribunal after considering the documentary evidence available on record held that the legal heirs of the deceased victim (rider) would be entitled to recover Rs.1,35,000/- from the Insurance Company with 7% interest. The claimant in MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 3 : O.P.No.251/2002 (first pillion rider) was awarded a sum of Rs.88,200/-, whereas the claimant in OP.No.451/2002 (second pillion rider) was awarded a sum of Rs.2,67,550/-. 6. The claimants have filed MACA.Nos.2159, 2160 & 2165/2007) questioning the adequacy of compensation awarded in their respective cases. 7. We do not propose to deal with the adequacy of the award in the appeals preferred by the claimants at this stage, in view of the order that we propose to pass. 8. As has been noticed already, the primary contention raised by the Insurance Company in their appeals, is that the driver of the tempo van did not have a valid licence and badge to drive the transport vehicle in question at the time of the accident. It is beyond controversy that the owner and the driver of the tempo van did not contest the case. Both of them remained absent and they were set ex parte. 9. But the driver has appeared before us and produced an authenticated extract obtained from the registering authority concerned which would prima facie show that he did, in fact, possess a badge and a driving licence. The driving licence particulars issued by the Motor Vehicles Inspector, Thrissur, produced along with IA MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 4 : 2586 of 2010 in MACA 1540 of 2008 is taken on record and marked as Ext.X1. But, as rightly pointed out by learned counsel for the Insurance Company, the said document would not indicate whether on the crucial date the said respondent possessed a valid licence and badge. Yet again we do not propose to deal with that issue at this stage for the obvious reason that it is a matter for evidence. The Tribunal could not consider this issue in its proper perspective, especially since the driver did not choose to respond to the notice received from the Tribunal. 10. But there is yet another aspect of the matter. The award reveals that the owner and driver had filed a written statement before the Tribunal after they were set ex parte. The Tribunal while referring to this aspect, observed that these respondents had not got the ex parte order set aside and obviously for that reason the Tribunal did not refer to or deal with the contentions raised by these two respondents in their written statement. We have not seen the written statement, if any, that was filed by these respondents. 11. It is submitted by Ms. Vaheeda, learned counsel who appears for the driver, that the omission on the part of this respondent to contest the case was only for the reason MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 5 : that he was informed by the owner that the vehicle was covered by a valid insurance policy and that his interest will be taken care of by the Insurance Company. 12. It is contended by the Insurance Company that the rider and the two pillion riders had also contributed to the accident in equal measure, if no more. According to the learned senior counsel, the rider was not supposed to or permitted under law to carry more than one pillion rider. But admittedly there were two pillion riders on the two wheeler at the time of the accident. According to the learned senior counsel this might have contributed to the accident in no small measure. He points out that the Tribunal did not bother to look into this aspect at all. We refrain from making any observation on this contention at this stage. However, since the Insurance Company had not raised the plea of contributory negligence on the part of the rider, such a plea cannot be allowed to be raised now. 13. Learned counsel for the claimants submits that the compensation awarded by the Tribunal under all heads is too meager and inadequate and therefore interference is warranted at the hands of this court. But having regard to the entire facts and circumstances of the case, we are of the view that the question whether the claimants would be MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 6 : entitled to get enhancement of the compensation awarded to them need not be considered at this stage, particularly since we are satisfied that the claim petitions have to be reconsidered by the Tribunal for reasons more than one. 14. As indicated by us earlier, the question whether or not the driver of the offending vehicle possessed a valid driving licence and badge at the time of the accident has to be necessarily looked into by the Tribunal. This can be done only if the driver is afforded an opportunity to adduce evidence. We are persuaded to accept the plea raised by the driver to afford him an opportunity to adduce evidence on condition that he pays a sum of Rs.1000/- each to the claimants and the Insurance Company in the three claim petitions (Rs.6000/- in aggregate). 15. The cost shall be remitted by him before the Tribunal within one month from today. If the driver fails to pay the cost as directed above, his defence shall be struck off. 16. The driver shall be entitled to file his written statement, if he has not already done so. It will be open to the parties to adduce further evidence, if so advised. 17. The Tribunal shall consider the three claim petitions afresh and dispose them of in accordance with law MACA.Nos.2159,2160,2165/07 & 1343,1539,1540/08 : 7 : as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. It will be open to the Tribunal to reconsider the quantum of compensation also on the basis of the materials available on record. In other words, all issues are left open. In the meanwhile the amount in deposit shall be disbursed to the claimants subject to the award to be passed later. 18. The parties shall appear before the Tribunal on November 8, 2010. The appeals are disposed of in the above terms. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-