IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 MACA.No. 1377 of 2004() ------------------------------------ OPMV.240/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/ RESPONDENT ------------------------ KERALA STATE INSURANCE DEPARTMENT, DIRECTORATE OF INSURANCE, HOUSING BOARD BUILDING, THAMPANOOR, TRIVANDRUM. BY GOVERNMENT PLEADER MR.BENNY VARGHESE RESPONDENT(S): RESPONDENT & SUPPL. RESPONDENT 7 TO 10 -------------------------- 1. ARUNKUMAR, S/O. LATE KRISHNANKUTTY NAIR AMBIKA NIVAS, ANNACODE, VEERANAKAVU P.O., (VIA) KATTAKKADA, THIRUVANANTHAPURAM. 2. D.JOSHY, T.C.NO.9/319, JAWAHAR NAGAR, THIRUVANANTHAPURAM. 3. BIJU J. BIJU NIVAS, THOLIKKADU, P.O.NEDUMANGADU, THIRUVANANTHAPURAM. 4. DAMODARAN NAIR, KULANGARA VEEDU, HOUSE NO.V/712, VANCHIYOORKONAM, KATTAKKADA.(DIED) 5. AJITH KUMAR, KULANGARA VEEDU, HOUSE NO.V/712, VANCHIYOORKONAM. 6. M/S. NEW INDIA ASSURANCE CO.LTD., DIVISIONAL OFFICE, NO.II, GANDHARI AMMANCOIL ROAD, THIRUVANANTHAPURAM. MACA. NO.1377/2004 *ADDL.RESPONDENTS 7 TO 10 IMPLEADED. **7. SMT.LEELAVATHY AMMA, W/O. LATE DAMODARAN NAIR, THEKKEKARA KULANGARA VEEDU, VANCHIYOORKONAM, KATTAKKADA P.O. **(DELETED) 8. SMT.SAROJAM, D/O. LATE DAMODARAN NAIR, THEKKEKARA KULANGARA VEEDU, VANCHIYOORKONAM, KATTAKKADA P.O. 9. SRI.ANILKUMAR, S/O.LATE DAMODARAN NAIR, THEKKEKARA KULANGARA VEEDU, VANCHIYOORKONAM, KATTAKKADA P.O. 10. SMT.SANDHYA. S , D/O. LATE DAMODARAN NAIR, SREEKRISHNA, MULAYAMOODE, THOTTAMBARA, KATTAKKADA P.O. *ADDL. R7 TO R10 ARE IMPLEADED AS PER ORDER DTD 08.02.2010 IN IA. 3401/2008. **ADDL. R7 DELETED AS PER ORDER DT. 8.2.2010 IN IA. 3425/2008. R2 & R3 BY ADVS.MR.R.T.PRADEEP, MR.V.VIJULAL. R6 BY ADV.MR.JOY GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1377 OF 2004 = = = = = = = = = = = = = = = Dated this the 8th day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyantinkara in O.P.(MV)240/00. The claimant who sustained injuries in a road accident has been awarded a compensation of Rs.36,960/- with 9% interest and the liability is cast on respondents 1 to 3. It is against that decision the State Insurance Department has come up in appeal. The brief facts would reveal that while the claimant was travelling as a pillion rider in a motor bike it collided with a JCB and he sustained injuries. The Tribunal found the driver of the JCB as negligent. The insured, according to the claim of the JCB is the State Insurance Department. A perusal of the claim petition itself would reveal that the period of insurance was from 2.2.00 to 31.1.2001. The accident had taken place on 31.1.2000 which indicates the said policy does not cover the period of accident. The Tribunal had cast the liability of proving the M.A.C.A. 1377 OF 2004 -:2:- non existence of policy on the insurance company which is incorrect and therefore the said finding has to be interfered with. Now there is appearance for the owner of the JCB before this Court and if really there is a policy I do not want to put the burden on the insurance company and put it on the owner of the JCB who could produce necessary documents to establish that there was a valid policy. Similarly there is also some challenge regarding the quantum and that also can be looked into. Since R4 to R6 are totally exonerated from the liability their junction hereafter may not be necessary and the case can be disposed of in the presence of R1 to R3. Therefore the award under challenge is set aside both on the quantum as well as the liability and the matter is remitted back to the Tribunal with a direction to permit the owner of the JCB to file written statement and allow all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since the M.A.C.A. 1377 OF 2004 -:3:- claimant was not represented I feel a notice should be issued to him at the time of consideration of the matter by the Tribunal. The State Insurance Department is directed to take out notice to the claimant before it proceeds further in the matter. Parties are directed to appear before the Tribunal on 5.3.2010. The amount deposited may lie in Court deposit till a final decision is taken in the matter. M.N. KRISHNAN, JUDGE. ul/-