SIJEESH KUMAR @ SHIJI KUMAR Vs. ABDUL AZEEZ

JUDGEMENT

(1.) The captioned appeals arise from a common award dated 8.11.2011 passed by the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(M.V)Nos.64, 253 and 351 of 2011. M.A.C.A.No.412 of 2012 is directed against the award in O.P.(M.V)No.351 of 2011, M.A.C.A.No.415 of 2011 is directed against the award in O.P.(M.V) No.64 of 2011 and M.A.C.A.No.464 of 2011 is directed against the award in O.P.(M.V)No.253 of 2011. O.P.(M.V)Nos. 253 and 351 of 2011 were filed by the legal heirs of the deceased persons seeking compensation for death of the respective victims in the accident in question and O.P.(M.V)No.64 of 2011 was filed by the injured minor through the next friend and guardian, her father. All the aforementioned claim petitions arise out of the same occurrence. In the said circumstances, these appeals were heard jointly and are disposed of by this common judgment. For the sake of convenience, the appellants and the common respondents in these cases are referred to hereinafter in this judgment in accordance with their status in M.A.C.A.No.412 of 2012 unless otherwise specifically mentioned. The accident in question occurred at about 6.30 a.m. on 5.4.2010. On that fateful day the first appellant was riding his motor cycle along with his wife Smitha, his elder son Yeswanth Krishna and his daughter Hridhu Nanda -the 2nd appellant, as pillion riders through Payimbara -Ambalam public road. When they reached near a place called Mallisserythazham the offending vehicle which is a bus bearing Reg. No.KL -7 -AK -6582, driven by the 2nd respondent, dashed against their motor cycle. Consequently, Smitha and Yaswanth Krishna succumbed to the injuries instantaneously and the 1st and 2nd appellants sustained injuries. It is in the said circumstances that O.P.(M.V)No.351 of 2011 was filed seeking compensation for the death of Yaswanth Krishna, O.P.(M.V)No.253 of 2011 for the death of Smitha and O.P.(M.V)No.64 of 2011 for the injuries sustained by the 2nd appellant through the first appellant. The Tribunal considered the claim petitions jointly and in the joint enquiry the claimants adduced common evidence. In fact, no oral evidence was adduced by both sides and on the side of the claimants -appellants Exts.A1 to A15 were got marked. On the side of the respondents Ext.B1, the Policy Schedule cum Certificate of Insurance dated 8.12.2009 and Ext.B2, copy of the final report in Crime No.1247 of 2010 of City Traffic Police Station, Kozhikode were produced. Ext.X1 is a 3rd party exhibit and it is the driving licence particulars of the 2nd respondent. It is after considering the evidence on record and the rival contentions that the common award was passed in the above mentioned claim petitions. In O.P.(M.V)No.351 of 2011 as against a claim of 2,00,000/ - the Tribunal awarded a total compensation of 1,49,500/ - with interest at the rate of 7% per annum from 28.4.2011 till realisation and with a cost of 1,200/ -. In O.P.(M.V)No.253 of 2011 a total compensation of 4,55,500/ - was granted with interest at the rate of 7% per annum from 30.3.2011 till realisation and with a cost of 1,500/ -. In O.P.(M.V)No.64 of 2011 an award was passed for a compensation of 22,500/ - with interest at the rate of 7% per annum from 18.1.2011 till realisation along with a cost of 500/ -. It is in the said circumstances that the captioned appeals have been preferred seeking enhancement of the compensation.

(2.) We have heard the learned counsel for the appellants, the learned counsel appearing for the first respondent and also the learned counsel appearing for the 3rd respondent.

(3.) There is no dispute with respect to the accident and the cause of the accident as the negligence from the part of the 2nd At the same time, the 3rd respondent produced Ext.X1 respondent. which is the driving licence particulars of the 2nd respondent to establish that at the time of the accident the 2nd respondent was not having any authorisation to drive a heavy passenger vehicle. Ext.X1 would reveal that the 2nd respondent was not authorised to drive a heavy vehicle at the time of the accident. The Tribunal took note of the fact that the 2nd respondent was charge sheeted for an offence punishable under Section 3(1) read with Section 181 of the Motor Vehicles Act for having driven the offending vehicle without a valid motor driving licence to drive heavy motor vehicles. So also, it was held that the accident occurred solely due to the negligence on the part of the 2nd respondent. In the said circumstances, the Tribunal held that the 3rd respondent insurer got no absolute liability to pay compensation to the claimants and on the other hand, the 3rd respondent got only a primary liability to pay compensation to the claimants/appellants with a right to recover it from the first respondent, the registered owner of the offending vehicle. Despite such a conclusion and finding none of the respondents preferred any appeal challenging the awards passed in those claim petitions. In the said circumstances, we think it absolutely unnecessary to look into the correctness or otherwise of the direction to pay and recover. That apart, it is to be noted that when these matters are taken up for hearing the learned counsel for the first respondent submitted that after effecting payments in terms of the awards the 3rd respondent initiated revenue recovery proceedings and had already recovered an amount of 4,32,130/ - for satisfying the awards partially. In the said circumstances, in all these cases, we are only called upon to consider the question whether the appellants are entitled to get enhancement of the compensation. We will proceed to consider that aspect in respect of the above appeals separately. M.A.C.A.No.412 of 2012