IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 MACA.No. 560 of 2004() ---------------------- OPMV.841/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/IST RESPONDENT: ------------------------------------ THE SECRETARY, KANJIRAPPALLY AUTO RICKASHAW WORKERS, CO-OPERATIVE SOCIETY LTD. K-680/80, KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.S.PRASANTH RESPONDENTS: PETITIONER/RESPONDENTS 2 AND 3: --------------------------------------------------------------- 1. RAJEEV M.I. S/O.M.V.ISSAC, MARIN KUNNEL HOUSE, KUNNUM BHAGOM, KANJIRAPPALLY. 2. RAJU @ GEEVARGHESE, S/O.ABRAHAM KATHALANKAL HOUSE, GANDHI NAGAR COLONY MANNARAKKAYAM, VIZHIKKATHODU KARA, KOOVAPPALLY VILLAGE, KOTTAYAM DISTRICT. 3. UNITED INDIA INSURANCE CO.LTD., KOTTAYAM. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ======================== M.A.C.A.No.560 of 2004 ========================= Dated this the 30th day of May, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala, in OP(MV) No.841/1995 whereby the tribunal awarded a compensation of 19,750/- and directed the Insurance Company to pay the amount of compensation to the petitioner and thereafter permitted the 3rd respondent to recover the amount from the first respondent, owner of the offending vehicle. The appeal is preferred by the first respondent against the finding of reimbursement. The learned counsel for the appellant would submit that the first respondent society has only advanced the amount under an hire purchase agreement and it is not the owner of the property for the purpose of claim. He would further contend that under Section 2(30) of the Motor Vehicle Act, in the cases of hire purchase agreement the person in possession is to be the owner of the vehicle. Along with the memorandum of appeal he had produced Annexure A1, A2 etc. which would reveal that one Tomy Mathew had entered in to an agreement with the first M.A.C.A.No.560/2004 2 respondent society and therefore he is the owner of the vehicle and so he is bound to pay the compensation. So really the dispute is in between the first respondent and the Insurance Company and if impleaded Mr.Tomy Mathew. Tomy Mathew has never been made a party before the tribunal. But the documents produced in this case would reveal that there is a point to be considered by the tribunal especially in the light of the decision of the Apex Court reported in Godavari Finance Co. v. Degala Satyanarayanamma (2008 (2) KLT 429 (SC)) wherein the court held that “ the person who is in possession of the vehicle, and not the financier being the owner would be liable to pay damages for the motor accident.” Unfortunately the appellant herein did not raise such contention before the court below and the court did not have an opportunity to consider the same. But it is a point which has to be considered for meeting the ends of justice. Therefore, I am inclined to grant an opportunity and I permit the first respondent, appellant herein to move an application for impleadment of the said Tomy Mathew or any person claiming under him as a party to the proceeding and thereafter the question can be decided afresh including the question of licence. Therefore, the MACA is allowed and the tribunal is directed to consider the matter afresh on the M.A.C.A.No.560/2004 3 following points: 1) The court shall consider whether the first respondent is liable to pay compensation as it does not come within the definition of the owner under Section 2(30) of the Motor Vehicle Act. 2) Whether the proposed person would be liable and whether insurance company can get exonerated of liability on account of the absence of licence. 3) The court below shall permit the appellant herein namely the first respondent to file additional written statement in support of his contention including raising the plea of non-joinder of necessary parties and also can file an application to implead the person whom according to it is the owner of the vehicle. 4) The court shall, after hearing all concerned, decide the question afresh and dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 15.07.2008. M.N.KRISHNAN,JUDGE dvs