IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 MACA.No. 463 of 2011() ---------------------- OPMV.665/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANTS/ESPONDENTS 1 AND 2 IN OP(MV) ------------------------------------------- 1. SULFIKKARALI,S/O.MOIDEENKOYA,RESIDING AT PALAKKUNNUMMAL HOUSE,10/226,(7/475),VAVAD POST, KODUVALLY,KOZHIKODE. 2. HAREESH,S/O.HUSSAIN,CHALUPOKKIL HOUSE, MANIPURAM POST,KALARANTHIRI,KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS/PETITIONERS AND 3RD RESPONDENT IN OP(MV) ------------------------------------------------------- 1. SAREENA,D/O.LATE PATHUMMAI,RESIDING AT PULIKKUNNUMMAL,PARAPPANPOYIL POST,RAROTH AMSOM DESOM,VIA:THAMARASSERY,KOZHIKODE.673573 2. JAMEELA,D/O.LATE PATHUMMAI,RESIDING AT PULIKKUNNUMMAL,PARAPPANPOYIL POST,RAROTH AMSOM DESOM,VIA:THAMARASSERY,KOZHIKODE.673573 3. ICICI LOMBARD GENERAL INSURANCE CO.LTD., 6/255/C.2ND FLOOR,CITY PLAZA BUILDING, YMCA CROSS ROAD,KOZHIKODE.673001 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * M.A.C.A.No.463 of 2011 ---------------------------------------- Dated this the 13th day of October 2011 J U D G M E N T R.BASANT,J Owner and driver are the appellants. They claim to be aggrieved by the impugned award inasmuch as it permits the 3rd respondent/insurer to recover the amount paid to the victim/claimant from the appellants under Section 149(4) of the Motor Vehicles Act. 2. The tribunal came to the conclusion that the driver of the vehicle is not proved to have a valid driving licence at the time of the accident. It is hence that the impugned direction under Section 149(4) of the M.V.Act was issued in favour of the 3rd respondent/insurance company. The learned counsel for the appellants submits that the driver did have a valid driving licence at the relevant time. The counsel wants to produce Annexure A1 which is said to be the licence of the driver of the vehicle. Only a copy has been produced and the original has not been produced. The respondents have not entered appearance also. M.A.C.A.No.463 of 2011 2 3. We are satisfied, in these circumstances, that the ideal course to be followed by this Court is to set side the impugned direction under Section 149(4) of the M.V.Act and direct the court below to consider that question alone afresh after giving the appellants an opportunity to produce the driving licence which is said to be valid and current at the time of the accident. Inasmuch as the 3rd respondent has not chosen to appear before us, it is impossible for us to direct the 3rd respondent to verify whether the driver had a valid driving licence at the relevant time. The original having not been produced before us, we deem it proper to send the matter back to the court below for deciding that question afresh. The appellants have no reason to explain why the valid driving licence was not produced before the court below earlier. While remanding the matter to the court below, we are satisfied that appropriate direction for payment of costs can also be issued. 4. In the result, a) This appeal is allowed in part. b) The impugned direction under Section 149(4) of the M.V.Act is set aside. M.A.C.A.No.463 of 2011 3 c) The tribunal is directed to decide the question afresh as to whether the driver of the vehicle was having a valid driving licence at the relevant time after giving the appellants an opportunity to produce further evidence before the tribunal. d) We direct that the 3rd respondent/insurance company shall be entitled to cost of Rs.5,000/- in this appeal which can be obtained by the insurance company by claiming release from the amount of Rs.25,000/- deposited by the appellants to satisfy the mandate of Section 173 of the M.V.Act. The question of release of the balance amount of Rs.20,000/- shall be decided by the tribunal after the matter is disposed of afresh. e) The parties shall appear before the tribunal on 01/12/2011 to continue the proceedings. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge M.A.C.A.No.463 of 2011 4 M.A.C.A.No.463 of 2011 5 K.M.JOSEPH & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 30/082010