IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 MACA.No. 1691 of 2011() ----------------------- OPMV.1564/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): -------------- 1. VARGHESE.K.A, S/O.ANTONY, AGED 56 YEARS, KOCHUPARAMBIL HOUSE, CHANDANAKKAMPARA P.O., PAYYAVOOR (VIA), TALIPARAMBA TALUK, KANNUR DISTRICT. 2. SMITHA VARGHESE, D/O.VARGHESE, AGED 28 YEARS, KOCHUPARAMBIL HOUSE, CHANDANAKKAMPARA P.O., PAYYAVOOR (VIA), TALIPARAMBA TALUK, KANNUR DISTRICT. 670 141 3. MANEESH.K.V, S/O.VARGHESE, AGED 24 YEARS, KOCHUPARAMBIL HOUSE, CHANDANAKKAMPARA P.O., PAYYAVOOR (VIA), TALIPARAMBA TALUK, (BY POWER OF ATTORNEY IST APPELLANT).670 141 BY ADV. SRI.C.VALSALAN RESPONDENT(S): --------------- 1. BABU RAJ @ BINOY, S/O.C.A.MATHEW, CHAKKALAYIL HOUSE, POTTEN PLAVU P.O., CHEMPERI, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 143. 2. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., PARCO TOWERS, P.M.TAJ ROAD, CALICUT, KOZHIKODE DISTRICT, PIN-673 001. 3. JINU DEVASSIA, S/O.DEVASSIA, MULAKKAL HOUSE, CHANDANAKAMPARA P.O., SREEKANDAPURAM, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 142. 4. THOMSON, S/O.MATHAI, KOTTARATHIL HOUSE, CHANDANAKAMPARA P.O., TALIPARAMBA TALUK, KANNUR DISTRICT, PIN-670 142. 5. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, MARINA SHOPPING CENTRE, N.H.TALIPARAMBA-670 141, KANNUR DISTRICT- 670 141. ADV. SRI..GEORGE CHERIAN THIRUVALLA FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJ R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ MACA NO:1691 OF 2011 ----------------------------------------------------------- Dated this the 2nd November, 2011. JUDGMENT Basant, J. C.M.Appln. 2548 of 2011 This petition is to condone the delay of 65 days in filing the appeal. Heard. We take a lenient view. Petition allowed. Delay condoned. M.A.C.A.1691 of 2011 Claimants are the appellants. They claim compensation for the loss suffered by them as a result of the death of Valsamma, wife of the first claimant and mother of claimants 2 and 3 who suffered injuries in a motor accident that took place on 17-10-2004 and succumbed to injuries. The claim under Section 163A of the Motor Vehicles Act was dismissed by the Tribunal following the decision in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004 ACJ 934) 2. The appellants claim to be aggrieved by the impugned award. What is their grievance? The learned counsel for the appellants submits that even if the claim were not maintainable MACA No.1691 of 2011 2 under Section 163A of the Motor Vehicles Act in the light of the pronouncement of the judgment in Deepal Girishbhai Soni (supra) the claim must have been considered by the Tribunal under Section 166 of the Motor Vehicles Act. The wrong quoting of a section should not have been entailed omnibus dismissal of the claim. A Tribunal, the primary mandate to which under Section 165 of the Motor Vehicles Act is to make just compensation available should not have relied on technicalities to non-suit the claimants/appellants. In these circumstances it is prayed that the Tribunal may be directed to dispose of the matter afresh reckoning the claim as one under Section 166 of the Motor Vehicles Act. 3. We find merit in the request. Though in the light of Deepal Girishbhai Soni (supra) such a claim is not maintainable under Section 163A of the Motor Vehicles Act it is imperative that the Tribunal, imbibing the commitment under Section 165 to make just and reasonable compensation available to the victims, should have considered the claim under Section MACA No.1691 of 2011 3 166 of the Motor Vehicles Act. The challenge in this appeal can succeed only to that limited extent. 4. We note that notice has been given and counsel have taken notice for respondents 2 and 5 Insurance Companies. 5. In the result, a) This appeal is allowed in part. b) The dismissal of the claim under Section 163A by the impugned order is upheld. But it is held that the Tribunal must have disposed of the claim under Section 166 of the Motor Vehicles Act. c) The parties are directed to appear before the Tribunal on 15.12.2011. The Tribunal shall now dispose of the claim afresh reckoning the same as one under Section 166 of the Motor Vehicles Act. The matter shall be disposed of as expeditiously as possible - at any rate within a period of three months from 15.12.2011. Compliance shall be reported to this Court. MACA No.1691 of 2011 4 d) Hand over a copy of this judgment to the learned counsel for the appellant for production before the Tribunal when they appear before the Tribunal on 15.12.2011. The Registry shall forthwith communicate a copy of this judgment to the Tribunal. Sd/- R. BASANT Judge Sd/- K. SURENDRA MOHAN Judge jj & css P.S.to Judge MACA No.1691 of 2011 5