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 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 MACA.No. 2822 of 2008() ----------------------- OPMV.3464/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): -------------- NATIONAL INSURANCE COMPANY LTD., BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOR TOWERS, M.G. ROAD, COCHIN -35. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): --------------- 1. USMAN, S/O. USSAINKUTTY, AGED 65 YEARS. 2. NAFEESA, W/O. USMAN AGED 55 YEARS, 3. ZAKEENA, W/O. LATE BASHEER AGED 33 YEARS 4. RUBEENA (DOB 28/12/1986), D/O. LATE BASHEER. 5. RASHIQ (DOB 20/08/1989), S/O. LATE BASHEER. 6. MUHASINA (DOB 25.06.1991) MINOR D/O. LATE BASHEER. 7. ROSIRA (DOB 25.06.1991) MINOR D/O. LATE BASHEER, (RESPONDENTS SIX AND SEVEN MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE THIRD RESPONDENT). 8. MOIDEENKUTTY, S/O.MAYINKUTTY, BABU NIVAS, KALOTH IST MILE, KUNDOTTY, POST MALAPPURAM. ADV. SRI.P.VENUGOPAL (1086/92) FOR R8 SRI.AVM.SALAHUDIN FOR R2-7 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MACA.No. 2822 of 2008-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of November, 2010 Judgment Basheer, J: This appeal is at the instance of the Insurance Company which had allegedly issued a policy in respect of a stage carriage bearing registration No. KL 11 H 3846 owned by respondent No.8 herein. 2. The legal heirs of the deceased victim of the accident claimed compensation from the owner, driver and insurer of the above vehicle, alleging that the accident occurred due to the negligence of the driver. 3. The claim was resisted by the appellant/Insurance Company contending that there was no valid insurance policy for the vehicle at the time of the accident. According to the appellant, a policy certificate was in fact issued in respect of the vehicle on February 13, 2001 on the strength of a cheque for Rs.13007/- issued by the owner. But the cheque was dishonoured when it was presented for encashment. The matter was communicated to the owner of the vehicle and thereafter the policy was cancelled. It was thus contended by the appellant that as on the date of the accident viz., November 1, 2001 there was no valid policy cover for the vehicle and therefore appellant/Insurance Company was not liable to indemnify MACA.2822/2008. : 2 : the owner. 4. The Tribunal did not accept the above contention, particularly for the reason that the Insurance Company did not produce any document to show that the cheque issued by the owner of the vehicle had been dishonoured or that any communication was issued by the Insurance Company to the owner informing him that the policy had been cancelled. On the contrary, it was noticed by the Tribunal that the policy issued by the appellant Insurance Company was in fact available on record, which was marked in the case as Ext.A3. Further, there was no material before the Tribunal to show that policy had been cancelled or that the factum of cancellation had been intimated to the owner of the vehicle. Therefore the Tribunal directed the appellant/Insurance Company to pay a sum of Rs.2,74,000/- towards compensation to the claimants with 7% interest. 5. Sri. Rajan P Kaliyath learned counsel for the appellant submits that the award passed by the Tribunal will cause irreparable loss and damage to the appellant Company, especially since there was no liability at all on the appellant to indemnify the owner, in the absence of a valid policy. Learned counsel concedes that there was lapse on the part of the appellant in failing to produce the relevant MACA.2822/2008. : 3 : records before the Tribunal at the time of the trial. 6. The appellant has now pressed into service certain documents, which, according to the appellant, would show that the cheque issued by the owner was dishonoured and that the factum of dishonour was in fact communicated to the owner. We do not propose to make any comment on those documents at this stage in view of the order that we propose to pass. 7. It may be noticed that the owner of the vehicle did not choose to contest the case before the Tribunal. However learned counsel who appears for the owner/respondent No.1 before this Court submits that the vehicle did have a valid policy at the time of the accident. He further submits that respondent No.1 had transferred ownership of the above vehicle in favour of one Vijayan prior to the accident. Yet again, we refrain from making any observation on this aspect also. 8. Learned counsel for the claimants submits that the amount of compensation has not been deposited by the Insurance Company so far even though more than 3 years have elapsed after passing of the award. 9. Having regard to the entire facts and circumstances of the case, we are of the view that the appellant-Company can be granted an opportunity to MACA.2822/2008. : 4 : substantiate its contentions by adducing oral and documentary evidence, if so advised. However such an opportunity can be granted only on payment of exemplary costs. The appellant shall also deposit the amount of compensation since, in our view, the claimants need not be put to any further harassment because of the lapse of the appellant. 10. Therefore while upholding the finding of the Tribunal as regards the quantum of compensation payable to the claimants, the case is remanded to the Tribunal to consider the question of liability alone, particularly whether the appellant Insurance Company would be liable to indemnify the owner. It will be open to the appellant and respondent No.8 herein to adduce further evidence in support of their rival contentions. It will also be open to the parties to implead other necessary parties, if any, with the permission of the Tribunal. 11. Therefore the finding entered by the Tribunal on issue No.1 in the impugned award alone is set aside. The Tribunal shall decide the said question afresh as directed above, as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment. 12. The appellant shall deposit the amount of compensation before the Tribunal within one month from MACA.2822/2008. : 5 : the date of receipt of a copy of this judgment subject to the finding on issue No.1 as indicated above. The appellant shall also pay a sum of Rs.10,000/- towards cost to the Mediation Centre attached to this Court. If the above two conditions are not fulfilled by the appellant, the appeal shall stand dismissed. 13. On deposit of the amount it will be open to the claimants to withdraw the same in terms of the directions contained in the award. The appellant and respondents 2 and 8 shall appear before the Tribunal on November 29, 2010. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.