IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 MACA.No. 20 of 2009() --------------------- OPMV.14/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): RESPONDENT NO.2 ----------------------------- GLADSON JACOB, KARACHIRA, VADUKKATTIL, PURTHENPURA HOUSE, VAKATHANAM, KOTTAYAM. BY ADV. MR. S.EASWARAN MR. P.M. MURALEEDHARAN RESPONDENT(S): 2ND PETITIONER & RESPONDENTS 1 & 3 ------------------------------------------------- 1. K.M.LEELAMMA, W/O NARAYANAN NAIR, PPUTHUSSERIKUDIYIL HOUSE, ERAMALLOOR, KOTHAMANGALAM. 2. THE ORIENTAL INSURANCE CO.LTD, KOTTAYAM. 3. ROY, S/O.KURIAKOSE, PULIYELIL HOUSE, ELAMBRA, ERAMALLOOR, KOTHAMANGALAM. ADV. MR. MATHEWS JACOB, SENIOR ADVOCATE FOR R2 MR. P.JACOB MATHEW FOR R1 MR. P.V.JAYACHANDRAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.20/09 ORDER ON I.A. 19 OF 2009 IN M.A.C.A.20 OF 2009 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 17.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- M.A.C.A.No. 20 OF 2009 -------------------------------------------------- Dated this the 17th day of March, 2009 J U D G M E N T Appellant is the second respondent in O.P(MV) 14 of 1995 on the file of Motor Accident Claims Tribunal , Muvattupuzha. Motor Accident Claims Tribunal awarded compensation of Rs.58,600/- to first respondent, the petitioner finding that the accident on 30.1.1990 was caused due to the negligent driving of third respondent, the driver, and the appellant being the owner is vicariously liable and second respondent being the insured is liable to pay the compensation. Second respondent challenged that award before this Court in MFA.24 of 1998 contending that as the third respondent was not having a valid driving licence, for the violation of policy conditions second respondent should have been permitted to realise the amount from the appellant. This Court as per judgment dated 12.1.2007 confirmed the finding of the Tribunal regarding the quantum of the compensation and the liability of the appellant and the third respondent. Relying on the decision MACA.20/2009-A 2 of the Apex Court in National Insurance Company Ltd. Vs. Swaran Singh (2004 (1) KLT 781) this Court found that the matter requires re-consideration by the Tribunal and the parties are to be granted opportunity to amend the pleadings and to adduce further evidence, if they so wish. The award to that extent was set aside and remanded to Motor Accident Claims Tribunal for granting an opportunity to second respondent Insurance company to prove necessary facts to enable it to realise the compensation from the appellant, in the light of Swaran Singh's case (supra). Parties were directed to appear before the Tribunal on 12.1.2006. Appellant did not appear and he was therefore set exparte. No further evidence was adduced and none of the pleadings was amended. The Tribunal on the evidence, already on record, found that there was violation of policy conditions and third respondent was not having a valid driving licence and the appellant having permitted him to drive the vehicle, second respondent is entitled to realise the compensation from the appellant. Appeal is filed challenging the said award. 2. Learned counsel appearing for appellant and learned MACA.20/2009-A 3 senior counsel appearing for second respondent were heard. 3. Learned counsel appearing for appellant pointed out that even though this Court directed the appellant to appear before the Tribunal on 12.2.2007, that was not intimated to the appellant and the counsel who was appearing for the appellant before the Tribunal had expired on 2.6.2000, as is clear from the copy of the death certificate produced and therefore appellant could not appear before the Tribunal. Learned counsel also pointed out that in spite of the opportunity granted by this Court to the second respondent to adduce evidence, no further evidence was adduced before the Tribunal and in such circumstances the award is to be set aside and an opportunity is to be granted to the appellant. 4. It is clear from the judgment of this Court that the case was remanded to the Tribunal for granting an opportunity to the parties to adduce further evidence especially to second respondent, the appellant in M.F.A.24 of 1998, to prove the necessary facts as stated in Swaran Singh's case (supra) to enable the Insurance company to realise the amount from the appellant. Evidently as the appellant remained absent, no MACA.20/2009-A 4 further evidence was adduced by the second respondent in spite of the opportunity granted. So also, as the appellant could not be represented, the necessary facts could not be brought to the notice of the Tribunal. In such circumstances interest of justice warrants that a further opportunity is to be granted to the appellant as well as to the second respondent. The appeal is allowed. The award dated 31.8.2007 is set aside to the limited extent and the Tribunal is directed to decide the question afresh to the extent as directed in M.F.A.24 of 1998 after granting opportunity to the appellant and second respondent to amend the pleadings and to adduce evidence. Parties are directed to appear before the Tribunal on 29.4.2009. M. SASIDHARAN NAMBIAR, JUDGE okb