SANTHOSH Vs. BINU

JUDGEMENT

(1.) Second respondent in OP (MV) No. 376 of 2008 of Motor Accidents Claims Tribunal, Kalpetta, is the appellant. He was proceeded against as the owner of an autorickshaw bearing registration No. KL 11H / 2406, with the driver and insurer of that vehicle, in the above claim for compensation moved by the pillion rider of a bike who sustained injuries in the accident occurred involving the two vehicles - autorickshaw and bike. That application (OP (MV) No. 376 of 2008) was jointly considered with another claim moved by the rider of bike, who too sustained injuries. A common award was passed by the Tribunal, by which, the 2nd respondent - insurer of the autorickshaw - was directed to pay the compensation adjudged and awarded. On review petition filed by the insurer stating that no finding had been entered by Tribunal over its challenge that the driver of autorickshaw had no valid driving licence, and, thus, there was breach of policy condition by the insured enabling insurer to an order for recovery on payment of compensation, the Tribunal reviewed its previous award to provide recovery right to insurer on payment of compensation. Appeal is filed impeaching the correctness and legality of the reviewed award providing such recovery rights to the insurer, by the owner of the autorickshaw.

(2.) A preliminary objection over the maintainability of appeal is canvassed by the learned counsel for 2nd respondent / insurer on the premise that the award passed in the connected claim petition OP (MV) No. 20 of 2009, in which also under the reviewed award, recovery right on payment of compensation was provided to claimant therein, has not been challenged and it has become final. Since there is no appeal against the award in the connected claim petition, the present appeal is barred by res judicata is the challenge canvassed to contend that the appeal is not entertainable. I do not find any merit in the objection canvassed. Where more than one claim petition arise from an accident, it is desirable and more advantageous for the Tribunal to consider all such claims together. Even if common findings are made with respect to the points for determination arising under such claims, that by itself cannot be viewed as barring one or other party in the proceedings from challenging the legality and correctness of the findings in one of the claim petitions alone disposed under the common award by the Tribunal. In OP (MV) No. 20 of 2009, which was disposed jointly with the claim petition involved in the present appeal, the claimant had been awarded only a meagre sum of Rs.3,700/- as compensation. That may be the reason why the appellant has chosen not to prefer any appeal against the compensation awarded in the claim. Common findings are made when claims of more than one arising in an accident are considered together by the Tribunal can no way affect the right of a party, if he is aggrieved by the common award passed, to file appeal against only one of the claims awarded. Even the principles of res judicata cannot be pressed into service to deny the right of such aggrieved person to limit his challenges against the award passed in one of the claim petitions alone decided under the common award.

(3.) The 2nd respondent / insurer in its written statement had contended that the driver of the autorickshaw had no driving licence. Later, an application moved by it to direct that driver to produce the driving licence was allowed by the Tribunal, but, the licence was not produced. Canvassing the above circumstances, the insurer, after passing of the previous award, applied for review and that was entertained and reviewed awards were passed by the Tribunal. In the reviewed common award, the Tribunal accepted the defence canvassed by the insurer to avoid its liability with the following observation: