P.N.RAVINDRAN, J The first respondent in O.P.(M.V.).Nos.771 of 1997 and 1042 of 1997, both on the files of the Motor Accidents Claims Tribunal, Thrissur has filed the above appeals. The claim petitions were filed by the first respondent in these appeals claiming compensation for the personal injuries sustained by them in a motor accident involving motor cycle bearing Reg.No.KL-8G/4398 owned by the appellant, driven by the second respondent and insured with the third respondent. The claimant in O.P.(MV)No.771 of 1997 was travelling as pillion rider on the motor cycle bearing Reg.No.KL-8H/5079 driven by the petitioner in O.P.(M.V.).No.1042 of 1997. The accident took place when the two motor bikes collided with each other. They had in the claim petitions prayed for award of the sum of Rs.2,50,000/- each as compensation on the allegation that the second respondent was responsible for the accident.
2. Though summons was served, the appellant herein remained ex-parte. The second respondent, the rider of the motor M.A.C.A.No.67 of 2006 and M.A.C.A.No.1308 of 2005 2 cycle bearing Reg.No.KL-8G/4398 appeared and filed a written statement admitting the fact that he was driving the motor cycle but denying the allegation of negligence on his part. He contended that the rider of the motor cycle in which the claimants were travelling was negligent and was responsible for the accident. He further contended that the motor cycle which he was riding was insured with the third respondent insurer and therefore, the compensation if any awarded has to paid by it. He also contended that he possessed a valid driving licence to drive the motor cycle.
3. The third respondent insurer filed a written statement admitting insurance coverage for the motor cycle bearing Reg.No.KL- 8G/4398, but denying negligence on the part of the second respondent. It further contended that the petition is bad for non- joinder of necessary parties, as the owner and insurer of the motor cycle bearing Reg.No.KL-8H/5079 involved in the accident were not made parties. It also contended that the second respondent did not possess a valid driving licence to drive the motor cycle and therefore, it is not liable to indemnify the insured. It prayed for dismissal of the claim petitions.
4. Before the tribunal, on behalf of the claimants, the petitioner in O.P.(M.V.).No.771 of 1997 and one Abdul Salam were examined as PW1 and PW2 and Exts.A1 to A16 series were produced M.A.C.A.No.67 of 2006 and M.A.C.A.No.1308 of 2005 3 and marked. Though no oral evidence was adduced on the side of the respondents, Exts.B1 and B2 produced by them were marked. After considering the rival contentions and the evidence on record, the tribunal held that the accident occurred due to the negligent driving of the motor cycle by the second respondent and awarded compensation to the claimants. Since it was found that the second respondent had no driving licence to drive the motor cycle, the insurer was directed to pay the amount awarded as compensation and to recover it from the first respondent, the owner of the motor cycle. The first respondent owner has aggrieved thereby filed these appeals. On the averment that he had transferred the motor vehicle to one Sreedharan, the appellant had filed an application to implead him as the additional fourth respondent in the appeals. The said applications were allowed. Later it was revealed that he had passed away even before the appeal was filed and thereupon, his legal representatives were impleaded as additional respondents 5 to 10 in the appeals as per orders passed on I.A.No.3498 of 2015 in MACA No.1308 of 2005 and I.A.No.3530 of 2015 in MACA No.67 of 2006. Though notice was served on them, they have not so far entered appearance.
5. We heard Sri.Santheep Ankarath, learned counsel appearing for the appellant, Sri.Ganappan, learned counsel appearing for the third respondent in M.A.C.A.No.1308 of 2005, Sri.Jayashankar, M.A.C.A.No.67 of 2006 and M.A.C.A.No.1308 of 2005 4 learned counsel appearing for the third respondent in M.A.C.A.No.67 of 2006 and Sri.T.C.Suresh Menon, learned counsel appearing for the claimants. Learned counsel for the appellant submitted that the evidence on record would show that even prior to the accident, the motor bike bearing registration No.KL-8G/4398 was transferred to the additional fourth respondent in this appeal and therefore, the tribunal ought to have directed the claimants to implead the real owner and that without the real owner on the party array, the tribunal should not have fastened the liability on the appellant. Learned counsel for the appellant submitted that the tribunal was not justified in holding the appellant liable and should have dismissed the application for non- joinder of the real owner of the motor bike bearing registration No.KL- 8G/4398.
6. Per contra, learned counsel appearing for the insurer submitted that insurer had filed M.F.A.Nos.508 of 1999 and 302 of 1999 in this court with the present appellant on the party array as a respondent, challenging the award passed against it and seeking complete exoneration, that this court had by judgment delivered on 30.06.2005 dismissed the appeals, confirming the award passed by the tribunal relying on the decision of the Apex Court in National Insurance Company v. Swaren Singh and others (AIR 2004 (SC) 1531), that as the said judgment has not been challenged by the M.A.C.A.No.67 of 2006 and M.A.C.A.No.1308 of 2005 5 present appellant, it is binding on him and that the present appeals which were filed only after the insurer filed an execution petition to recover the amount paid by it, are not maintainable. Learned counsel submitted that the appellant is therefore bound by the decision of the tribunal, holding him liable to pay the amount deposited by the insurer.
7. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The claimants cannot in our opinion be found fault with for the non-impleadment of the real owner of the motor bike originally owned by the appellant. It was a fact exclusively within the knowledge of the appellant and as he had not filed a written statement disclosing the fact that he had transfered the motor bike to another person prior to the accident and named that person, the claimants cannot be blamed for not impleading the transferee. In the absence of such a case for the appellant in the tribunal, it cannot be said that the award passed by the tribunal is liable to be set aside for non joinder of the transferee. The entitlement of the insurer to recover the compensation paid by it from the appellant has been upheld by this court in M.F.A.Nos.508 of 1999 and 302 of 1999 and the appellant who was a party to the said appeals cannot now contented that he is not liable to repay the amount paid by M.A.C.A.No.67 of 2006 and M.A.C.A.No.1308 of 2005 6 the insurer.
8. As regards the inter-se liability between the appellant and the alleged transferee, we are of the opinion that it is for the appellant to work out his remedies in other appropriate proceedings by impleading the alleged transferee and in his absence, his legal heirs and recover the loss if any sustained by him on account of the negligence of the transferee. We therefore, do not find any reason to interfere with the impugned award. The appeals fail and are accordingly dismissed with the aforesaid observation. No costs.
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( P.N. Ravindran, Judge) Sd/-
(K. Ramakrishnan, Judge) //True Copy// P.A. to Judge ss