IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 MACA.No. 1243 of 2004() ----------------------- MVOP.112/1997 of SPL.COURT FOR EC ACT CASES &MACT,TSR .................... APPELLANT/4TH RESPONDENT: --------------------------------------- AMMUKUTTY VARASSIAR A.V., SREE NILAYAM, P.O. PARALAM, THRISSUR. BY ADV. SRI.T.R.RAVI RESPONDENTS: PETITIONER & RESPONDENTS 2,3 & 5: ------------------------------------------------ 1. SUBHADRA, W/O. GOPALAN, PANDARIKAL HOUSE, P.O. CHAZHOOR, THRISSUR DISTRICT. 2. XAVIER E.A., S/O. ANTONY, EDAKULATHUR HOUSE, P.O. VALAPPAD, THRISSUR DIST. 3. M/S. NEW INDIA ASSURANCE CO.LTD., BRANCH NATTIKA. 4. VARGHESE, S/O. ANTONY, EDAKALATHOOR HOUSE, P.O. VALAPPAD, THRISSUR. R2 & R4 BY ADV. SRI.RAJIT R2 & R4 BY SRI.RANJIT BABU R3 BY SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI,JJ. -------------------------------------------- M.A.C.A.No.1243 of 2004 -------------------------------------------- Dated this the 31st day of May, 2011 JUDGMENT Basheer, J. The appellant is stated to be the mother of the erstwhile registered owner of the two wheeler bearing registration No.KEE 6468 which was involved in a road traffic accident that occurred on January 12, 1997. 2. The legal representative of the deceased victim of the accident preferred a claim petition before the Motor Accidents Claims Tribunal seeking compensation from the son of the appellant who was the registered owner of the vehicle on record, and the subsequent transferee as well as the insurer of the said vehicle. It appears that during the pendency of the claim petition, it was revealed that the son of the appellant had transferred the vehicle in question about 4 or 5 years prior to the accident in favour of one Mani who in turn had sold it to respondent No.2 in this appeal who was also arrayed as respondent No.2 in the claim petition. The appellant was impleaded in the case before the Tribunal as respondent No.4 as the legal representative of deceased registered owner. It came on record that though the vehicle had changed hands, the M.A.C.A.No.1243 of 2004 2 registration certificate still stood in the name of the deceased son of the appellant. The Tribunal found that the two wheeler was being driven by a person (respondent No.4 in this appeal) who did not posses a license at the time of the accident and therefore exonerated the Insurance Company from the liability to pay compensation. The Company was however directed to remit the compensation before the Tribunal and recover the same from the appellant and respondent No.4, the rider. The appellant has come up in appeal challenging that portion of the award by which she has been mulcted with the liability to pay the compensation. 3. Sri.Rejith, learned counsel who appears for respondent Nos.2 and 4, namely the subsequent transferee and the alleged rider, fairly concedes that respondent No.2 was the owner in possession of the vehicle at the time of the accident. But according to him respondent No.4 was not in fact riding the two wheeler at the time of the accident and it was he who himself was riding it. But the Tribunal proceeded to hold that respondent No.4 had been riding the two wheeler on the basis of the materials available on record. The final report submitted by the police charge sheeting respondent No.4 was also kept in M.A.C.A.No.1243 of 2004 3 view. However we may place on record that, it had come out in evidence that respondent No.4 was in fact tried before the Jurisdictional Magistrate and acquitted of the charge levelled against him. Any how we do not propose to go into that area of the controversy at this stage in view of the order we propose to pass. 4. Having regard to the entire facts and circumstance of the case, we have no hesitation to hold that the appellant cannot be mulcted with the liability to pay compensation, especially, since respondent No.2 has very fairly conceded that he was the owner in possession of the vehicle at the time of the accident. 5. What remains is the question whether any further opportunity has to be afforded to respondent Nos.2 and 4 to adduce further evidence in the matter to substantiate their contentions especially, since it is beyond controversy that respondent No.3/Insurance Company, had issued a policy cover in respect of the vehicle in the name of the original registered owner namely the son of the appellant. It is the admitted position that the policy cover was being issued in the name of the deceased son of the appellant even after his death. In other words, the vehicle still stood registered in the name of the M.A.C.A.No.1243 of 2004 4 deceased son of the appellant even as on the date of the accident. Yet again we refrain from making any further observation on this aspect. 6. Keeping in view the above peculiar facts and circumstance of the case, we are satisfied that the question regarding liability to pay compensation has to be reconsidered by the Tribunal after giving sufficient opportunity to the parties namely the Insurance Company and respondent Nos. 2 and 4 to adduce evidence in the matter. It is made clear that the quantum fixed by the Tribunal shall not be reconsidered and appellant shall not be directed to appear before the Tribunal. 7. Respondent nos. 2 and 4 shall get such an opportunity to adduce evidence only if they pay a sum of Rs.5,000/- towards cost to the Insurance Company. The cost shall be deposited before the Tribunal within one month from today, failing which the award passed by the Tribunal with the modification indicated above, shall stand confirmed. If the cost is remitted as directed above, the Tribunal shall reconsider the matter to the extent indicated in this judgment and dispose of the case, as expeditiously as possible, at any rate, on or before September 30, 2011. M.A.C.A.No.1243 of 2004 5 8. Respondent Nos. 2 to 4 in this appeal shall appear before the Tribunal on July 4, 2011. Statutory deposit made by the appellant shall be reimbursed. The appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE rkc