IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1027 of 2004()
1. THE ORIENTAL INSURANCE CO.LTD.,
... Petitioner
Vs
1. RADHAKRISHNA, AGED 43 YEARS,
... Respondent
2. ABDUNNI, S/O.KUNJUMON, RAHAMARAKKAR
3. THE NEW INDIA ASSURANCE COMPANY LTD.,
4. A SHAMBU, S/O.GOVINDAN NAMBOODIRI,
5. E.DHAMAYANTHI, W/O.GOPINATHAN, ELAVALLY
6. JAYAKUMAR, S/O.GOPINATHAN NAIR,
7. AJITH,A GED 7 (MINOR) REP. BY FATHER
For Petitioner :SRI.VPK.PANICKER
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/09/2009
O R D E R
M.N. KRISHNAN, J.
= = = = = = = = = = = = = =
M.A.C.A. NOs. 1027/04 & 1084/04 and
W.P.C.Nos.30387/04 & 30388/04
= = = = = = = = = = = = = = =
Dated this the 23rd day of September, 2009.
J U D G M E N T
All these appeals are filed by the 6th respondent in O.P.
(MV) 997, 993, 982, and 981 of 2001 of the Motor Accidents
Claims Tribunal, Ottapalam. The claimants in these cases
sustained injuries in a road accident. The allegations are to
the effect that the petitioners were travelling in an auto
rickshaw bearing Reg.No.KBR/3607 and at that time a car
bearing Reg.No.KRH/185 came and there was a collision
between the vehicles which resulted in injuries to the
petitioners. The Tribunal, on a consideration of the
materials, found that the accident took place on account of
the negligence of the car driver and the auto rickshaw driver
and apportioned the negligence at 40% on the car driver and
60% on the auto rickshaw driver. But the Tribunal did not
decide the question whether the 4th respondent or the 7th
respondent was the driver of the auto rickshaw at the time of
M.A.C.A. NOs. 1027/04 &
con. Cases. -:2:-
the accident. The insurance company’s definite contention is
to the effect that it was the 7th respondent who was driving
the auto rickshaw at the time of the accident and a criminal
case has been registered against him and he was a person
who was not holding any valid licence thereby there has been
breach of policy conditions which would entitle the insurance
company to get exonerated from the liability or at least the
right to get reimbursement as the case may be. The Tribunal
should have decided the question who was the driver of the
auto rickshaw at the time of the accident.
2. In a motor accident case the driver is primarily
liable and the owner is vicariously liable and by the terms of
the insurance contract the insurance company has to
indemnify the insured. Suppose there is breach of policy
conditions necessarily the insurance company may get
exoneration from the liability. So without deciding the
crucial question who was driving the auto rickshaw at the
time of the accident the Tribunal should not have disposed of
the applications. Because it will decide the interse liability
M.A.C.A. NOs. 1027/04 &
con. Cases. -:3:-
between the owner of the auto rickshaw and the insurance
company of the auto rickshaw. After going through the
materials I find there is no necessity to disturb the finding on
the quantum of negligence as well as the quantum of
compensation fixed by the Tribunal. The only question that
has to be decided is to find out who was driving the auto
rickshaw at the relevant time of the accident and assess the
liability between the owner and the insurance company of the
auto rickshaw.
In the result both the M.A.C.As. and both the writ
petitions are allowed in part and the matter is remitted back
to the Tribunal with a direction to frame a specific issue to
the effect that who was driving the auto rickshaw at the
relevant time of the accident and thereafter consider the
question whether the insurance company is liable to
indemnify the owner or is entitled to get exoneration from
the liability or at least the right to get reimbursement of the
amount. For the said purpose the parties are permitted to
produce both documentary as well as oral evidence in
M.A.C.A. NOs. 1027/04 &
con. Cases. -:4:-
support of their respective contentions and the matter be
disposed of in accordance with law. Parties are directed to
appear before the Tribunal on 17.11.2009.
The junction of the claimants and respondents 1 to 3
need not be insisted for the proper disposal of the case.
M.N. KRISHNAN, JUDGE.
ul/-