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 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 MACA.No. 1006 of 2005 (Against the judgment in OP(MV)418/1995 dated 30-11-2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda) APPELLANTS / APPELLANTS: 1. AMMINI, AGED 50 YEARS, WIDOW OF VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O., RESIDING AT CHENGATTUMMURI DESOM, KADUPPISSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. AJITHA, AGED 26 YEARS, D/O.VELAYUDHAN, POTTAKKAL HOUSE,KADUPPISSERY P.O. 3. JAYA, AGED 24 YEARS, D/O.VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O. 4. SHEELA, AGED 23 YEARS, D/O.VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O. 5. PREMA, AGED 21 YEARS, D/O.VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O. 6. SAVITHA, AGED 19 YEARS, D/O.VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O. 7. SHALU, AGED 18 YEARS, S/O.VELAYUDHAN, POTTAKKAL HOUSE, KADUPPISSERY P.O. 8. JIJI, AGED 15 YEARS, D/O.VELAYUDHAN, MINOR REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER AMMINI, POTTAKKAL HOUSE, KADUPPISSERY P.O. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN OP(MV): 1. A.A.BENNY, ARANGATH HOUSE, ALAGAPPANAGAR P.O., THRISSUR DIST, OWNER OF KER 4806 STAGE CARRIAGE. MACA.No. 1006 of 2005 :: 2 :: 2. P.K.VIJAYAN, S/O.KORAN, PALLATHERI HOUSE, NANDIPULAM P.O., THRISSUR DISTRICT, DRIVER OF KER 4806 STAGE CARRIAGE. 3. THE NATIONAL INSURANCE CO. LTD., ROUND EAST, THRISSUR, INSURER OF KER 4806 STAGE CARRIAGE. 4. E.P.DAVIS, EACHERATH HOUSE, KODAKARA P.O., OWNER OF KL-8/B 6029 MOTORCYCLE. 5. THE ORIENTAL INSURANCE CO.LTD., SOUTH JUNCTION, CHALAKUDY INSURER OF KL-8/B 6029 MOTORCYCLE. 6. A.V.SATHEESAN, S/O.VELAYUDHAN, ARACKAL HOUSE, NO.12/V, KODAKARA P.O., R C OWNER OF KL-8/B 6029 MOTORCYCLE. ADV. SRI.LAL GEORGE FOR R3 SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R2 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R-5 SRI.RAJESH CHAKYAT FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, ALONG WITH MACA NO.1869 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1006 & 1869 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of December 2010 JUDGMENT Basheer, J. Since these two appeals are directed against the same award passed by the Motor Accident Claims Tribunal, we are disposing them off by this common judgment. 2. Appellants in MACA 1006/05 are the mother, brothers and sisters of one Lohidakshan who succumbed to the fatal injuries sustained by him in a road traffic accident on March 20, 1995. It is revealed from the materials available on record that the two wheeler on which the deceased was travelling as a pillion, collided with a stage carriage driven by respondent No.2 and owned by respondent No.1. The said vehicle was insured with respondent No.3. 3. According to the appellants, the two wheeler on which Lohidakshan was travelling belonged to respondent No.4 and it was insured with respondent No.5. It appears that respondent No.6 was impleaded later in the case, since the two wheeler stood in the name of the said person. Appellants claimed compensation under Section 163A of the Motor Vehicles Act. 4. PW1 and 2 were examined and Exts.A1 to A12 were marked on the side of the appellants. RW1 was examined and Exts.B1 to B7 were marked on the side of the respondents. 5. It may be noticed that the claim petition filed by the appellant was tried along with yet another claim petition filed by the legal heirs of the rider of the M.A.C.A.Nos.1006 & 1869 OF 2005 :: 2 :: two wheeler who also succumbed to the injuries sustained by him in the accident. 6. The tribunal, after considering the oral and documentary evidence available on record, found that the appellants would be entitled to get a sum of Rs.2,22,000/- with 6% interest from the insurer of the two wheeler - M/S Oriental Insurance Company. 7. It is contended by learned counsel for the appellants/claimants that the Tribunal committed serious illegality in exonerating the insurer of the stage carriage on the ground that the company had cancelled the policy since the cheque issued by the insured had been dishonoured. It is further contended by the learned counsel that the Tribunal was not at all justified in considering the question of negligence in the claim petition filed by the appellants since admittedly the claim was made under 163A of the Act and not under 166 of the Act. There is a further contention that the amount awarded is too meager and inadequate. 8. M/S Oriental insurance company, the insurer of the two wheeler, has preferred MACA 1869/05. The primary grievance of this appellant is that the Tribunal had mulcted the appellant with the liability to indemnify the owner of the two wheeler, though it was specifically contended in the written statement that the owner of the two wheeler had not taken out a policy in respect of the said vehicle. It is further contended that exoneration of the insurer of the stage carriage is totally illegal and unjustified. 9. We have heard learned counsel for the appellants and the respondents in both appeals. We do not propose to refer to or deal with the various other M.A.C.A.Nos.1006 & 1869 OF 2005 :: 3 :: contentions raised by the parties at this stage in view of the order that we propose to pass. 10. It is revealed from the statement filed by the appellant/insurance company in MACA 1869 of 2005 before the Tribunal that it had raised a very specific contention that the two wheeler was not covered under any policy issued by it. But nevertheless the Tribunal has proceeded to hold that the appellant would be liable to indemnify the owner of the two wheeler even without considering the above contention. The said finding is ex-facie unsustainable and therefore it is set aside. In this context, it may also be noticed that the original owner had remained absent and he was set ex- parte. Even the claimants did not have a case that the two wheeler was covered under a policy. In that view of the matter also, the said finding entered by the Tribunal cannot be sustained at all. 11. It is contended by Sri.Lal George, learned counsel who appears for M/S National Insurance Company, that the policy issued in respect of the stage carriage had been cancelled by the company as soon as the cheque offered by the owner of the vehicle was dishonoured. According to the learned counsel, the company had intimated about the dishonour of the cheque to all concerned including the owner and the transport department. Yet again, we refrain from making any observation on this aspect at this stage. 12. As regards the contention raised by the learned counsel for the appellants/claimants with regard to the alleged negligence on the part of the rider, we are of the view that the Tribunal has to necessarily reconsider the matter. In this context, it may be noticed that the legal representatives of the M.A.C.A.Nos.1006 & 1869 OF 2005 :: 4 :: deceased rider have not challenged the award passed in that case dismissing their claim petition. Therefore, it would not be proper on our part to make any further observation on this aspect. 13. Anyhow, having regard to the entire facts and circumstances of the case, we are satisfied that the impugned award is liable to be set aside. We do so. The Tribunal shall reconsider the matter and pass a fresh award after affording sufficient opportunity to the parties to be heard. It will be open to the parties to adduce further evidence in the matter, if so advised. The parties shall appear before the Tribunal on January 21, 2011. Appeals are disposed of in the above terms. Registry shall send back the records to the Tribunal forthwith. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes