Ramachandran Nair, J. The appellant herein is the 1st respondent in O.P(MV) No.1555 of 2003 of the Motor Accident Claims Tribunal, Perumbavoor. As per the award, the Tribunal allowed the petitioner/1st respondent herein to recover a total sum of Rs.3,01,965/- with 8% interest per annum from the date of application till realization from respondents 1, 2 and additional 5th respondent jointly and severally. Ultimately the 2nd respondent Insurance Company before the Tribunal was permitted to recover the amount from the 1st and additional 5th respondent jointly and severally. Respondents 3, 4 and additional 6th respondent were exonerated. The appeal was referred to the Full Bench by a detailed reference order by a Division Bench of this Court on 22.08.2011. Prima facie the Division Bench was of the view that another Division Bench in United India Insurance Co. Ltd. V. Manoj [2011 (1) KLT 502] has not correctly understood the dictum laid down by the Apex Court in United India Insurance Co. Ltd. V. Suresh [2008 (4) KLT 552].
2. We heard the learned counsel for the appellant Sri Rajeev Koickal and Sri M.Jacob Murickan, the learned counsel appearing for the Insurance Company. Ultimately the issue turns on one aspect whether the argument of the appellant that the claimant being the owner of the goods and as the vehicle was used only to carry goods, the direction permitting the Insurance Company to recover the amount paid, from the owner can be sustained or not. It is pointed out that in the vehicle in question, a three wheeler goods carriage autorickshaw, even if no separate seat is provided for the owner of the goods, he can share seat of the driver.
3. But during the course of the arguments the learned counsel for the Insurance Company Sri Jacob Murickan submitted that the said issue need be considered only if this Court is satisfied that the appellant had paid the premium in tune with the amended Act in 1994. We have perused the policy marked in evidence as Ext.B1 before the Tribunal. Premium payment schedule of the policy is not found attached along with it. The learned counsel for the appellant asserts that the premium has been collected and fully paid by the insured. A copy of the schedule with regard to payment of premium has been made available to the learned counsel for the Insurance Company. We are not finally pronouncing on that issue, since according to us this is a matter which should be considered by the Tribunal and both parties will have to be given an opportunity to adduce oral and documentary evidence in the matter.
4. The learned counsel for the appellant submits that the larger question whether the Insurance Company can take such a defence in the light of Section 149(2) of the Act may also come up in this case whereas the learned counsel for the Insurance Company submitted that the Insurance Company is perfectly justified in taking up the said defence.
5. In the light of the above factual setting which may require additional evidence to be adduced in the matter, we will not be justified in answering the reference. Therefore, the only course open is to remand the matter to the Tribunal to consider these two issues. Accordingly we set aside the impugned judgment only on these two aspects, viz., findings on issue numbers 5 and 6 and the consequent permission given to the Insurance Company to recover the amount from the 1st and additional 5th respondent before it. The two issues including the validity of defence taken by Insurance Company and the effect of Section 149(2) of the Act will be examined afresh by the Tribunal after evidence. On all other issues namely, issues 1 to 4, ie. with regard to the quantum, finding regarding negligence etc. The findings in the impugned judgment shall remain as such. Accordingly we remand the matter to the Motor Accident Claims Tribunal, Perumbavoor. The parties will appear on 17.11.2014 before the M.A.C.T. Records will be sent back immediately. No costs.
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T.R.RAMACHANDRAN NAIR Judge Sd/-
A.V.RAMAKRISHNA PILLAI Judge rtr/ /true copy/ Sd/-
P.V.ASHA Judge P.S to Judge