IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 MACA.No. 293 of 2004() -------------------------------- OP (MV)370/1995 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , PALA. .... APPELLANTS/RESPONDENTS: 4 & 5 ----------------------- 1. MR. TOMY CYRIAC, AGED 37 YEARS, S/O. JOSEPH CHERIAN, KUNNATHU HOUSE, THELLAKAM, KOTTAYAM. 2. MR. K.M. SHAJI, AGED 43 YEARS, S/O. NARAYANAN, NADUMALAYIL VEEDU, KATTAMPAK, KOTTAYAM. BY ADV. SRI.P.V.JAYACHANDRAN RESPONDENTS: CLAIMANT- RESPONDENTS 1 TO 3 & 6 ---------------------- 1. MR. P.A. PRAKASH, S/O. AYYAPPAN, PERINGATTU, IRATTAYAR P.O., IDUKKI. 2. MR. SREENIVASAN, S/O. RAGHAVAN, VILANGUMPURAYIL, MONIPPALLY, KURAVILANGADU, KOTTAYAM. 3. MR. RAGHAVAN, VILANGUMPURAYIL, MONIPPALLY, KURAVILANGADU, KOTTAYAM. 4. MANAGER, ORIENTAL INSURANCE COMPNAY LIMITED, THODUPUZHA, REPRESENTED BY DIVISIONAL MANAGER, KOTTAYAM. 5. ORIENTAL INSURANCE COMPANY LIMITED KANJIKKUZHI, KOTTAYAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.A.R.GEORGE - R4 & R5 SRI.O.P.NANDAKUMAR SRI. AJAIKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008,ALONG WITH MACA NO.338 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA Nos.293 & 338 OF 2004 ===================== Dated this the 13th day of June 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)Nos.370 & 364/1995). The appellants herein are respondents 4 and 5 in the claim application. They are aggrieved by the decision of the Tribunal that they have been made liable to pay the amount. The claimants in these applications were proceeding in a jeep bearing Regn.No.KEK 7075 and when it reached the place of the accident it collided with another jeep KRK 7181 resulting in injuries to these persons and others. The present appellants, who are the driver and the owner of KEK 7075 did not contest the case before the Tribunal. Now they have come up in appeal challenging (1) the question of negligence, (2) the ownership of the vehicle and (3) the liability of the insurance company. 2. The first appellant in these cases filed an application for compensation for the injuries sustained in the accident as O.P.(MV) 370 of 1995 before the Motor Accidents Claims Tribunal, Pala. The Tribunal held that the accident had taken place on account of the negligence of the driver MACAs 293 & 338/04 -:2:- of the jeep KEK 7075 and therefore dismissed the claim for compensation. This decision has not been challenged in appeal and it has become final. So when such a finding has become final, now they are estopped from contending that the said finding is not binding on them. Therefore this court is not in a position to consider the case of negligence independently as there is a legal bar. 3.The next question is regarding the ownership of the vehicle. It is seen from the copy of the award made available for perusal, one E.C.Cherian has filed a claim before the Tribunal for the damages sustained to vehicle KEK 7075 claiming to be the owner of the jeep. Learned counsel for the appellants would submit before me that since the hire purchase agreement was not paid and there was auction and it was purchased by E.C.Cherian he became the owner of the jeep. But, this fact has not been considered by the Tribunal for the reason that no such contention was raised and Mr.E.C.Cherian was not a party to the Tribunal. There was negligence on the part of the appellants in prosecuting the case properly. Therefore I am inclined to give an opportunity to the appellants herein to file a written statement before the Tribunal raising the contention regarding the ownership of the vehicle. 4.The last contention is regarding the liability of the insurance MACAs 293 & 338/04 -:3:- company. Whether Mr.Tomy Cyriac is the owner of the vehicle or Mr.E.C.Cherian is the owner of the vehicle even according to the parties, the contention is that the claimants herein were travelling in a jeep or accompanying the goods and therefore they are liable to be indemnified by the insurance company. The legislative intent had been clarified by the amendment in the year 1994 whereby the statutory requirement to insure the owner of the goods of the vehicle or his representative became imperative only with effect from 14.11.1994. Therefore till that, i.e. prior to 14.11.1994, there is no coverage. For the first time under the Motor Vehicles Act by amendment to Section 147, it was incorporated that statutory policy is necessary for the owner of the goods or the representative of the owner of the goods accompanying the vehicle. Here, admittedly the accident had taken place in the year 1991 and therefore as held in Asha Rani's case(2003(1) KLT 165(SC) there will not be any liability for the insurance company to indemnify the owner in such cases. So that point also cannot be accepted. 5. Therefore the awards passed in the above cases are set aside to the extent for determining the question of ownership of the vehicle, viz., whether it is Tomy Cyriac or E.C.Cherian is the owner of the vehicle KEK 7075 and accordingly modification can be made or confirmed with respect MACAs 293 & 338/04 -:4:- to the liability between those two. For that limited purpose, the matter is remitted back to the Tribunal by permitting the appellants herein to file a written statement with reference to the ownership of the vehicle and the Tribunal shall decide the same after permitting all concerned to produce materials or evidence in support of their respective contentions. Parties are directed to appear before the Tribunal on 24.7.2008 and the Tribunal shall try to dispose of the matter as expeditiously as possible. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-