IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MACA.No. 180 of 2007() -------------------------------- OPMV.378/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/2ND RESPONDENT --------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/PETITIONER & 1ST RESPONDENT RESPECTIVELY ----------------------------------------------------------------------------------------------- 1. ABDUL RASAK, AGED ABOUT 30 YEARS, S/O.MOIDUNNI, PAMPALATH VALAPPIL HOUSE, CHAZHIYATTIRI AMSOM, KARUKAPUTHOOR DESOM, OTTAPALAM TALUK, PALAKKAD DIST. 2. ABDUL SALAM, AGED ABOUT 31 YEARS, S/O.ABU, -DO. DO-. ADV. SRI.C.A.CHACKO FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.255/2007 IN MACA. NO.180/2007. DISMISSED 04/08/2008. M.N.KRISHNAN, JUDGE // TRUE COPY // P.S. TO JUDGE Rs/ M.N.KRISHNAN, J ===================== MACA No.180 OF 2007 ===================== Dated this the 4th day of August 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV)No.378 of 2003, whereby the Tribunal awarded a total compensation of Rs.48,003/-. The Tribunal directed the insurance company to pay the amount. It is against that decision, the insurance company has come up in appeal. The contention of the insurance company is to the effect that the claimant was a pillion rider in a two wheeler and the vehicle was only issued an Act only policy which does not cover a pillion rider and therefore by virtue of the decision in United India Insurance Co.Ltd. v. Tilak Singh(2006(2) KLT 884(SC),it is not liable to indemnify the owner. Learned counsel for the appellant very strongly contends before me that the insurance company has filed two applications,I.A.Nos.1347 & 1360 of 2006, one for reopening the case and the other for receiving an additional written statement and to accept the copy of the policy. It was submitted that the case was posted to 27.7.2006, but, without any notice the Tribunal suo motu advanced the case to MACA 180/2007 -:2:- 30.6.2006 and passed the award. When it came to the notice of the learned counsel he moved another I.A.No.1593 of 2006 for considering I.A.Nos.1347 & 1360 of 2006. But the Tribunal dismissed both of them along with I.A.No.1593/2006. Whatever it may be, if an order is passed without notice, it is not fair. Whether the case has to be reopened or additional written statement is to be received are all matters which the Tribunal could have considered after issuing notice. There was no point in passing an award and as a corolary dismissing the applications. It was not a proper procedure to be followed. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for the sole purpose of consideration regarding liability of the insurance company. Since the absence of liability may exonerate the insurance company totally for the reason that a pillion rider may not be a 3rd party it is desirable that the claimant can also proceed with the matter to establish that factum. Since the owner has not appeared before this Court in spite of notice and as the liability has to be fixed on him in respect of the finding that the insurance company is not liable, the insurance company shall take out notice to the owner as well. All the parties are permitted to produce both documentary as well as oral evidence in support of their respective contentions. Parties are directed to appear MACA 180/2007 -:3:- before the Tribunal on 5.9.2008. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-