K.P. ABDUL GAFOOR, AGED 40 YEARS, S/O. IMBICHI MOYI, KALLUVETTUKUZHIYIL HOUSE, RAROTH AMSOM DESOM, THAMARASSERY, KOZHIKODE DISTRICT Vs. NEW INDIA ASSURANCE COMPANY LTD. SILVER PLAZA, INDIRA GANDHI ROAD, KOZHIKODE

JUDGEMENT

(1.) This appeal is directed against the judgment and award dated 17.5.2010 in O.P.(MV) No.1690/2004 of the Motor Accidents Claims Tribunal, Kozhikode. The appellant, who is the owner-cum-rider of the offending vehicle-motor cycle bearing Reg.No.KL-18-3952, was the first respondent and the respondent herein was the second respondent, before the Tribunal. The claimant therein viz., K.K.Muhammed Rafi was a minor aged 14 years on the day of the accident and he, now became sui juris. He was a pedestrian. He was knocked down by the offending vehicle on 1.6.2004 at about 9.30 a.m. and on sustaining injuries, he was taken to Baby Memorial Hospital, Kozhikode. The injuries sustained in the said accident resulted in permanent disability and hence, he moved O.P.(MV) No.1690/2004 seeking compensation under Sec. 166 of the Motor Vehicles Act (for short 'the Act'). Obviously, after appreciating the evidence on record and the rival contentions, as per the impugned award, the Tribunal granted Rs.1,84,120.00 as compensation with interest at the rate of 7% per annum from 14.9.2004 till realisation. The Tribunal arrived at the finding that the accident occurred due to the negligence of the first respondent/the appellant, and virtually fastened him with the ultimate liability to pay compensation. The Tribunal directed the second respondent/the insurer of the offending vehicle to, initially, pay compensation awarded along with interest and costs and then to recover the same from the R.C. owner-cum-driver, the appellant herein. It is in the said circumstances that the captioned appeal has been preferred by the appellant seeking modification of the award to the extent it fastened the ultimate liability on him and allowed the insurer the right to recover the amount of compensation after satisfying the award at the first instance. In short, it is prayed to modify the award by making the insurer liable to indemnify him and to set aside the judgment/award to the extent the insurance company is given liberty to recover the amount. In view of the nature of the relief sought for in this appeal, the appellant did not make the claimant a party to this appeal.

(2.) We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondent/insurance company.

(3.) In view of the nature of the grievance raised and the relief sought for in this appeal, it is absolutely unnecessary for us to deal with the conclusions and findings of the Tribunal with respect to the accident as also on the question of cause of the accident. The Tribunal found that the accident occurred solely due to the negligence of the appellant herein. The respondent/insurance company did not dispute the valid insurance coverage of the vehicle in question. Ext.B1 is the copy of the insurance policy. It is the common case that at the time of the accident, the appellant was holding only a learner's driving licence. Virtually, the Tribunal granted liberty to the insurer to pay and recover the amount of compensation taking note of the fact that the appellant was driving the motor cycle sans a person having a valid driving licence on its pillion. In short, it was found that the first respondent/appellant herein was solitarily driving the vehicle on the strength only of a learner's licence. It is a fact that, the learner's licence which is marked as Ext.B2, was valid from 22.5.2004 to 21.11.2004 and the accident occurred within a fortnight from its issuance, precisely on 1.6.2004. The Tribunal also found that the accident occurred solely due to the negligence on the part of the appellant/the first respondent therein. The facts that the appellant was holding only a learner's driving licence at the time of the accident and that no one holding a valid driving licence was with him on the pillion of the offending vehicle viz., the motor cycle at the time of accident were not disputed before us. In other words, the findings to that effect by the Tribunal are not at all disputed before us. In the said circumstances, the question is whether the Tribunal was justified in fastening the ultimate liability on the first respondent-appellant and in granting liberty to the insurer to recover the amount after satisfying the amount awarded at the first instance in the factual matrix, in view of the relevant provisions of law and also enunciation of position of law.