IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 MACA.No. 699 of 2010 ------------------------------------ OPMV.801/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): 1ST AND 2ND RESPONDENT IN OPMV: --------------------------------------------------------------------------------------- 1. ABDUL SHUKKOOR, S/O.KUNJAMMU, PAININGAL HOUSE, MUPPATHADAM KARA, KADUNGALLOOR VILLAGE, PARAVOOR TALUK. 2. R.K.SIVAN, S/O.KESAVAN, EERAYIL HOUSE, RAMAKRISHNAN VILAS, P.O.CHENGAMANADU, ALUVA TALUK. BY ADV. SRI.SIRAJ KAROLY RESPONDENT(S): 3RD RESPONDENT AND PETITIONER IN OPMV: -------------------------------------------------------------------------------------------------------- 1. THE NEW INDIA ASSURANCE CO. LTD., KODAVATH SHOPPING COMPLEX, ALUVA P.O., ALUVA. 2. VIJESH, S/O.VARGHESE, MUTTAMTHOTTIL HOUSE, MALAYATTOOR VILLAGE, P.O.MALAYATTOOR, ALUVA TALUK. ADV. SRI.A.C.DEVY FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.699 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May 2010 JUDGMENT Basheer, J. Appellants are the driver and owner respectively of a mini lorry bearing Reg.No.KL 7E 8537 which was admittedly involved in a road accident in 2004. 2. Respondent No.2 herein laid a claim before the Motor Accident Claims Tribunal seeking compensation from the owner, driver and insurer of the above vehicle. The Tribunal, after considering the merit of the claim and the contentions raised by the insurance company, passed the award in favour of the claimant for a sum of Rs.88,650/- with interest thereon. 3. The Tribunal noticed that the owner and driver had failed to appear before the Tribunal and contest the case. The insurance company contended that the vehicle in question did not have a valid fitness certificate at the time of the accident. Therefore, the Tribunal directed the insurance company to satisfy the award and recover the amount of compensation from the owner and driver respectively. 4. The award was passed on September 29, 2008. It appears that the insurance company satisfied the award and initiated recovery proceedings against the appellants under the Kerala Revenue Recovery Act. It is at that stage that the appellants have preferred this appeal M.A.C.A.No.699 OF 2010 :: 2 :: raising various contentions. It is primarily contended that the vehicle in fact did have a certificate of fitness issued by the competent authority which is now made available for our perusal. We do not propose to refer to or make any observation as regards the said certificate at this stage. 5. It is the admitted position that the appellants have deposited the amount, which was sought to be recovered from them, before the Revenue authorities. The limited prayer made by the learned counsel is to grant an opportunity to the appellants to contest the case before the Tribunal. It is submitted by the learned counsel that the lapse on the part of the appellants to appear before the Tribunal was not deliberate or willful. Yet again we refrain from making any comment on the lapse on the part of the appellants. 6. Having regard to the fact that the appellants have already deposited the amount before the Revenue authorities and also since it appears, prima facie, that the vehicle did have a valid certificate of fitness at the time of the accident, we are satisfied that they should be afforded an opportunity to substantiate their contention that they are not liable to pay compensation to the victim of the accident. This issue has to be necessarily adjudicated by the Tribunal. Therefore, we propose to give an opportunity to the appellants to agitate the matter before the Tribunal. But such an opportunity can only be on terms. M.A.C.A.No.699 OF 2010 :: 3 :: 7. Therefore, the impugned award is set aside only to the extent it fastens the liability on the appellants. In other words, the quantum of compensation awarded to the claimants shall not be reopened or disturbed and the Tribunal shall consider only the question whether or not the appellants are liable to compensate the claimant. The award shall stand set aside to that extent on condition that the appellants do pay a sum of Rs.5,000/- as cost to the insurance company. 8. If the cost is deposited within ten days from today before the Tribunal concerned, the award will stand set aside, failing which the appeal will stand dismissed. 9. If the cost is paid, the Tribunal shall reconsider the matter as directed above and pass a fresh award within a period of three months from the date of receipt of a copy of this judgment. The interim order passed by this court on 9th April 2010 shall remain in force till passing of a fresh award. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes