IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 MACA.No. 377 of 2004(G) ---------------------- OPMV.896/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): /5TH RESPONDENT -------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, PALAKKAD NOW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 4 ------------------------------------------------------------------- 1. LATHEF.V., S/O.SIDDIQUE, VELUTHAKANTHODI HOUSE, P.O.KARUMANAMKURUSSY, VIA VELLINEZHY, PALAKKAD SISTRICT. 2. RIYAS.P., S/O.ABOOBACKER, PULLORAPPANKATTIL HOUSE, P.O.ANGADIPURAM, MALAPPURAM DISTRICT. 3. ABDUL RAHIMAN, S/O.VEERANKUTTY, ALIKKAL HOUSE, P.O.ANGADIPURAM, MALAPPURAM DISTRICT. 4. THE UNITED INDIA INSURANCE COMPANY LIMITED, PERINTHALMANNA BRANCH, P.O.PERINTHALMANNA MALAPPURAM DISTRICT. 5. K.T.GAFOOR, S/O.MOHAMMAD, IX/635, KANAKANTHODI HOUSE, P.O.THRIKKADIRI, PALAKKAD DISTRICT. ADV. SMT.K.C.BEENA FOR R4 SRI.SANTHEEP ANKARATH FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 377 OF 2004 = = = = = = = = = = = = = = = Dated this the 15th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV)896/01. The claimant originally filed an application u/s 166 of the M.V.Act for compensation and later amended it u/s 163A of the M.V.Act. He was riding a motorbike. That motorcycle collided with a tempo van resulting in injuries to him. Respondents 1, 2 and 3 are the owner, driver and insurance company of the tempo van and supplemental R4 and R5 are the owner and insurance company of the motorcycle. Now, the Tribunal has directed both the insurance companies to deposit 50% of the award amount and challenging the same the National Assurance Company, the insurer of the motorbike had come up in appeal. Even if the accident has taken place on account of the negligence of the claimant since he was not having a valid driving licence the liability to indemnify may not arise for the reason of absence of licence. M.A.C.A. 377 OF 2004 -:2:- Or at least there should have been an order for reimbursement of the amount from the owner. 2. At the out set I may like to point out it is an accident that had taken place on account of the collision between the motorbike and a tempo van. The question of negligence is not a point for consideration for the Tribunal or the Court u/s 163A. In view of the specific embargo imposed u/s 163A of the M.V.Act I am afraid that the Tribunal had gone wrong in directing the companies to deposit 50% of the amount each in a case of this nature. The question of apportionment arises only when the act is committed by several tortfeasors which means it contemplates an enquiry u/s 166 of the M.V.Act to find out the negligence on the part of the person who has caused the accident and in such cases if composite negligence is found in the light of the enunciated principles and decisions then the compensation has to be apportioned to be paid by the respective tortfeasors. But such a contingency does not arise in this case at all for the reason that the negligence need not be looked into by the Court. M.A.C.A. 377 OF 2004 -:3:- 3. The next question to be considered is who can be made liable. U/s 163-A if an accident had taken place by the use of a motor vehicle, then the owner, insurer of the vehicle is liable to pay the compensation. When the case was filed, to start with the negligence was attributed only on the driver of the tempo van and it should have been proceeded in that fashion and it was that petition which was amended u/s 163- A and therefore the liability would be on the insurer of the tempo van and not otherwise. Therefore there was no necessity at all for the Tribunal to apportion the compensation but it would have been sufficient if it had directed the insurance company to compensate the claimant as it is liable u/s 163A of the Act. Therefore I modify the award of the Tribunal and direct the United India Insurance Company, 3rd respondent in the O.P.(MV) to deposit the amount and if any amount is deposited by the National Assurance Company which is lying in Court deposit let it be reimbursed to them. MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-