IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 MACA.No. 193 of 2003() ---------------------- (AGAINST THE AWARD IN OPMV.572/1995 DATED 28/09/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA) .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE RESPONDENT(S): CLAIMANT, RESPONDENTS 1 & 2 ----------------------- 1. SHDHI R.NAIR, SUDHI BHAVAN, CHETHIMATTOM, PALAI. 2. THOMAS SEBASTIAN, KAKANICKAL, ANDOOR, MARANGATTUPALLY, PALA. * 3. GEORGE JOSEPH, (DELETED) ENTHANAKUZHIYIL, ELAKADU, MARANGATTUPALLY, PALA (* R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 25/07/2007 IN I.A.NO.1421/2007) ADV. SRI.RAVIDASAN.N.S. FOR R2 SRI.G.ASHOK KUMAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2008, ALONG WITH M.A.C.A.NO. 256 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA NO.193/2003 ORDER ON CMP NO.686/2003 IN MACA NO.193/2003 DISMISSED. SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) 13/08/2008 SD/- (V.K.MOHANAN, JUDGE) //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- M.A.C.A.Nos.193 of 2003 & 256 of 2003 --------------------------------- Dated, this the 13th day of August, 2008 J U D G M E N T Ramachandran Nair, J. The very same appellant in both the cases, which is Insurance Company, is challenging the common award passed by the MACT awarding compensation for injuries sustained by respondents in a motor accident. Respondents were riders in a bike and the accident was caused on account of collision with a jeep. Appellant's case is that the award is passed by the MACT without holding that the accident was caused on account of negligence of the jeep driver. It is also stated that there was criminal case against the respondents. Even though notice was issued to respondents, there is no appearance for the claimant respondents and appearance is only for the owner of the jeep, represented by its legal heir. 2. We find force in the contention of the Insurance Company because without holding that the driver of the vehicle is negligent, the Insurer cannot be held responsible under Section 166 for payment of compensation under the Motor Vehicles Act. However, limited compensation amount can be awarded under no fault case contained in Section 140 of the Act. M.A.C.A.Nos.193 & 256/2003 -2- In fact, the MACT should have considered the provisions under which application is entertained and compensation should have been awarded without limit only if negligence is proved and if there was contributory negligence on the part of the claimants, reduction should be proportionately ordered. If application was considered under Section 140, then compensation should have been subjected to limitation provided thereon, which in this case is Rs.25,000/- per head. Since the award was passed without reference to the statutory provisions under which application is filed and without the findings on negligence, we set aside the same and restore the matter to the MACT for fresh disposal after hearing the parties. We direct the MACT to dispose of the matter afresh within a period of three months from the date of receipt of a copy of the judgment. Since we have not cancelled the award on merit, the respondents are entitled to retain the amount collected by them until final award is passed and thereafter apportionment of the amount paid by the Insurance Company should be based on fresh orders to be passed by the MACT as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg