IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 MACA.No. 245 of 2006 ------------------------------------ O.P.(MV)1133/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT / 3RD RESPONDENT: ---------------------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER,REGIONAL OFFICE SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT / PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: ------------------------------------------------------------------------------------------------------------- 1. ABDUL AZEEZ, POOVATHINAL HOUSE, KANGAZHA P.O., PATHANADU. 2. MOHAN KUMAR @ PAPPU PILLAI, S/O. PARAMESWARAN NAIR, KRISHNAVILASAM HOUSE, VAZHOORKARA, VAZHOOR VILLAGE. 3. SHAJAN XAVIER, S/O. XAVIER, NEDUMTHANAM, CHAMAMPATHAL, VAZHOOR. ADV. SRI.P.C.JOSEPH PAZHEPARAMBIL FOR R1 SRI.V.K.SUNIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.245 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June 2010 JUDGMENT Basheer, J. Appellant who is the insurer of a vehicle which was involved in an accident has preferred this appeal challenging the award passed by the Tribunal. By the impugned award, the appellant has been directed to indemnify the owner of the vehicle and pay a sum of Rs.90,526/- as compensation to the victim (respondent No.1). 2. The primary contention raised in the appeal is that the appellant is not at all liable to indemnify the owner in as much as he had taken out only an “Act only policy” informing that he intended to use the vehicle (Registration No.KLO 9685)as a private passenger vehicle. However, the records available before the transport authorities clearly revealed that he had been using the said vehicle as a contract carriage. The vehicle got involved in an accident when it hit against a two wheeler on which the victim was riding. 3. It is the contention of the learned senior counsel that the owner of the vehicle being guilty of suppression of material facts and he having played fraud on the insurance company, the Tribunal ought to have held so, in no uncertain terms, and exonerated the appellant from the liability to indemnify him. We do not propose to refer to or to deal with the above contention at this stage in view of the order that we propose to pass. M.A.C.A.No.245 OF 2006 :: 2 :: 4. Though the owner of the vehicle had received notice in the case, he did not choose to appear or defend the case. 5. It may be noticed that the appellant did not, admittedly, produce any document before the Tribunal to substantiate the contention that the vehicle was being used by the owner as a public carriage. But the appellant has now produced before this Court annexure A1, which is stated to be a permit issued by the Regional Transport Authority, Kottayam in respect of the vehicle under Rule 144(b) of the Kerala Motor Vehicles Rules which on the face of it indicates that the transport authority had allowed the said vehicle to be used as a public carriage. Yet again, we refrain from making any further observation on this aspect. In our view, the appellant ought to have substantiated the above and all other contentions before the Tribunal. The question whether the victim, who was admittedly a third party, can be denied compensation by the insurer of the offending vehicle on the plea that the owner had obtained the policy through deceitful means, etc. is yet again a larger issue which necessarily has to be decided by the Tribunal. Anyhow, the fact remains that the Tribunal did not have an opportunity to address this issue, since the appellant had not produced Annexure A1 when the case was being taken up for trial. 6. In the peculiar facts and circumstances of the case, we are satisfied that the Tribunal has to be directed to consider the case afresh in the light of the additional materials including Annexure A1, that may be produced by the appellant. We make it clear that we have not disturbed the quantum of compensation fixed by the Tribunal or the finding entered by the Tribunal as M.A.C.A.No.245 OF 2006 :: 3 :: regards the negligence on the part of the driver of the offending vehicle. The only question that will have to be decided by the Tribunal is whether or not the appellant can be exonerated on the ground that the policy obtained by the owner of the vehicle was by suppressing any material fact. 7. The appellant/insurance company is granted an opportunity to adduce further evidence on condition that it pays a sum of Rs.15,000/- as cost to the claimant/respondent No.1. The cost shall be deposited before the Tribunal within one month from today, and on such deposit being made, the Tribunal shall release the same to the claimant/respondent No.1. Parties shall appear before the Tribunal on July 13, 2010. The Tribunal shall dispose of the case as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. It is made clear that it will be open to all the parties to adduce further evidence, both oral or documentary in support of their rival contentions. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes