D.N. Upadhyay, J. - This appeal has been preferred by Kapildev Chaudhary (owner of the vehicle) against the judgment and award dated 17th March, 2010 passed by the 5th Additional District Judge cum Motor Accident Claim Tribunal, Dumka in Title Claim Suit No. 53/2008 whereby the appellant has been fastened with the liability to pay compensation to the extent of Rs.3,29,600/-besides the interim compensation of Rs.50,000/- already paid under Section 140 of the M.V. Act and awarded amount shall be distributed and deposited as per the direction given in the impugned judgment. It was further directed that the amount of compensation so awarded shall be paid within one month from the date of order failing which the appellant will have to pay 7% simple interest from the date of institution of the case till realization of the amount.

2. The facts in brief is that the deceased Faruk Ansari, Home Guard No.7850 was a member in the police patrolling party and in course of patrolling, the police Jeep stopped near Karma More. The deceased was going to ease himself and in course of crossing the road, he was caught under the wheels of a Truck which was being driven rashly and negligently and died at the spot. Registration number of offending vehicle was BR-12H-0023. After chase the Truck was apprehended and the driver disclosed his name as Bramhdeo Yadav, son of Sidho Yadav. In this connection Dumka (Muffasil) P.S. Case No. 23/2007, G.R.No. 253/2007 under Sections 279, 304 A of the Indian Penal Code was registered. The dependent of the deceased filed application for grant of compensation which was registered as Title Claim Suit No. 53/2008.

3. The owner, driver and insurer in receipt of the notice appeared before the court-below and filed their respective show-cause. After adjudication in that matter, award, as indicated above was passed.

4. The appellant has assailed the impugned judgment and award mainly on the ground that the offending vehicle at the relevant point of time was insured with respondent no.6-United India Insurance Company Limited and therefore, the awarded amount should have been directed to be indemnified and the Insurance Company should have been directed to pay the compensation amount. The learned Tribunal has considered that driver of the offending vehicle was not having valid licence to drive heavy motor vehicle and held that insured had violated the terms and conditions of policy and therefore his liability cannot be indemnified by the insurer. The appellant has challenged this part of the observation of learned Tribunal, Firstly on the ground that the driver was having valid licence and the report of the investigator appointed by the Insurance Company is not conclusive to decide the issue. Secondly the vehicle in question as per definition enumerated in Section 2 (21) of the Motor Vehicle Act, 1988 was a light motor vehicle because unladen weight of the vehicle was below 7500 k.g. Thirdly the appellant has not violated any terms and conditions of the policy and he had taken all precaution before handing over the vehicle to the driver and therefore the respondent-Insurance Company is liable to pay the awarded amount.

5. On the other hand, learned Counsel appearing for the respondent-Insurance Company has submitted that by order dated 2.3.2012 this appeal was finally disposed of and the matter was remanded to the Claims Tribunal to decide a question whether the vehicle involved in the accident i.e. Tata 407 is a ‘heavy vehicle’ or a ‘light motor vehicle’. The question was directed to be decided within a period of three months from the date of presentation of certified copy of the said order. Since the matter was finally disposed of, the appellant cannot raise the same issue in the present appeal again. If he is dissatisfied with the finding of the Tribunal, he should have filed separate Misc. Appeal.

The matter has finally been disposed of, therefore, principle of res judicata will also apply. He has further submitted