MOHANKUMAR Vs. KUNIYEL IBRAHIM

JUDGEMENT

(1.) The above appeals arise from the judgment and award dated 27.04.2016 in O.P.(M.V.)No.332/2009 passed by the Motor Accidents Claims Tribunal, Vatakara. The former appeal has been preferred by the first respondent who is the owner of the vehicle involved in the accident viz. the bus bearing registration No.KL-18-D-2070, challenging the right to recover the amount to satisfy the award upon its satisfaction, granted to the insurer of the offending vehicle. The latter appeal has been preferred by the injuredpetitioner seeking enhancement of the quantum of compensation awarded. In the said circumstances, the appeals were jointly heard and they are being disposed of by this common judgment. For the sake of convenience hereafter in this judgment the parties are referred to in accordance with their rank and status before the Claims Tribunal in O.P.(M.V.)No.332/2009 unless otherwise specially mentioned.

(2.) We have heard the learned counsel for the 1st respondent-appellant in MACA 2893/2016, the appellant -petitioner in MACA 2947/2016 as also the third respondent, the insurer of the offending vehicle. From the arguments advanced before this court it is evident that there is no dispute regarding the accident and also the insurance coverage of the offending vehicle. Virtually, the dispute is only with respect to the question as to who was driving the vehicle in question at the time of the accident. This assumes relevance as according to the third respondent-insurance company the vehicle was then being driven by the fourth respondent who was not then possessing a valid driving licence. However, the precise case of the claimant and also the first respondent, is that the offending vehicle was then being driven by the second respondent and he was having a valid driving licence at the time of the accident. In fact, the second respondent also endorsed the said contentions of the claimant and the first respondent.

(3.) In view of the nature of the arguments advanced before us and also the manner in which the Tribunal had appreciated the evidence on record and arrived at a conclusion on the aforesaid question a point of law crop up for consideration. In the claim petition as also before the Claims Tribunal the petitioner contended that it was the second respondent who drove the vehicle at the time of the accident. But, the learned counsel appearing for the third respondent submitted that the petitioner had amended the claim petition to incorporate an averment to the effect that the offending vehicle was driven by the fourth respondent at the time of the accident. The learned counsel for the petitioner, on the other hand, submitted it is incorrect to say that the petitioner had amended the claim petition. It is further submitted that it is a misconception that made the third respondent to make such a submission. According to him, I.A.Nos.909/2013 and 910/2013 which formed the basis for such a submission did not carry a prayer as alleged by the third respondent. It is submitted that taking note of the averment of the third respondent insurance company in its written statement that at the time of the accident the vehicle in question was being driven by one Anil who was then the cleaner of the said bus, in I.A.No.909/2013 prayer was only to implead the aforesaid Anil as supplemental 4th respondent. In I.A.No.910/2013 the prayer was to amend the cause-title by incorporating the name of the aforesaid Anil as supplemental 4th respondent and also to amend the claim petition by incorporating the word 'bus' instead of the word 'motorcycle' in the second line of paragraph 4 of the claim petition. It is submitted that these are the only interlocutory applications which were allowed by the Tribunal. The learned counsel, in the said circumstances, submitted that the granting of the aforesaid prayers made as per the aforesaid interlocutory applications, therefore, could not and would not result in deviation from the original pleadings, as alleged by the third respondent. In other words, it is submitted that all along the contention of the petitioner is that the offending vehicle was being driven at the time of the accident by the second respondent. That precisely, is the case of the first respondent - the owner of the bus as also the second respondent. It is pertinent to note that the 2nd respondent who was arrayed in the claim petition in his capacity as the driver of the offending bus also admitted the fact that it was he who was driving the vehicle at the time of the accident, in his written statement. However, a perusal of the impugned judgment would reveal that the Tribunal had accepted the contention of the third respondent that the offending vehicle was being driven at the relevant point of time by the fourth respondent, relying on Ext.B3 charge sheet in crime No.406/2008 of Kuttiadi Police Station registered in connection with the accident in question, evidently referring to the dictum laid down by this court in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]. The contention of the learned counsel appearing for the third respondent is that in the light of the dictum laid down in Pazhaniammal's case it cannot be said that the Tribunal had erred in holding that the 4th respondent was the person who was driving the offending bus at the time of the accident.