IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 MACA.No. 263 of 2006(G) ---------------------- O.P(MV) NO.876/1994 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM APPELLANT : ADDITIONAL 6TH RESPONDENT ----------------------- VARGHESE PERARA, SURESH BHAVAN, TC XLV/119, CHERIYA THUMBU, VALLAKKADAVU P.O. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS : ADDITIONAL APPLICANTS 2 TO 4/1ST RESPONDENT --------------- 1. F.HOULLATH BEEVI, TC 35/970, BILAL NAGAR, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 2. M.SIRAJUDEEN, TC 35/970, BILAL NAGAR, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 3. H.JANEETHAAL, TC 35/970, BILAL NAGAR, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 4. SULAIMAN, S/O.SYED ALI, SULAIMAN STREET, VALLAKKADAVU, NEAR FOOD CORPORATION OF INDIA BUILDING, THIRUVANANTHAPURAM. ADV. SRI.K.N.CHATHUKUTTY FOR R1TO3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** C.M.Appl.No.395 of 2006 and M.A.C.A No.263 of 2006-G ***************************** Dated this the 24th day of August, 2011 ORDER/JUDGMENT BASANT, J. This petition is to condone the delay of 581 days in filing the M.A.C.A. The appellant/6th respondent is described now to be the owner of the vehicle. Originally 5 respondents were arrayed before the Tribunal. The 1st respondent before the Tribunal (ie. the 4th respondent herein) was stated to be the owner. Subsequently the appellant herein was arrayed as the additional 6th respondent. Later respondents 2 to 5 were deleted from the array of parties. It was contended that the appellant was the owner of the vehicle. 2. The appellant/6th respondent contended before the Tribunal that he had transferred the vehicle in favour of the 1st respondent. The 4th respondent herein, it appears, did not appear before the Tribunal. 3. The Tribunal by the impugned award came to the conclusion that the accident had taken place and the 1st claimant has suffered injuries. The amount of compensation was fixed by M.A.C.A No.263/06 2 the Tribunal at Rs.49,800/- (rounded off to Rs.50,000/-). The appellant and the 4th respondent herein were directed to satisfy the award. They were held to be jointly and severally liable. 4. The learned counsel for the appellant submits that the appellant was not the owner of the vehicle at the relevant time. Admittedly he was the owner till 25.02.1993. According to him, he had transferred the vehicle on that day to the 4th respondent herein. The accident had taken place on 21.06.1993. In these circumstances, the appellant is not liable to pay compensation to the claimant, it was contended. 5. The Tribunal by the impugned award took the view that the appellant, who admitted that he was the owner till 25.02.93, had not adduced any evidence to show that he was not the owner of the vehicle at the relevant time. The appellant or the 4th respondent herein had not advanced any evidence – oral or documentary to prove such transfer. It was, in these circumstances, that the Tribunal proceeded to pass the impugned award. 6. An amount of Rs.25,000/- has already been deposited before the court below by the appellant as insisted by Section 173 of the Motor Vehicles Act. 7. The learned counsel for the appellant prays that the M.A.C.A No.263/06 3 delay of 581 days may be condoned and the appeal may be allowed. The learned counsel for respondents/claimants on the contrary submits that there is absolutely no justifiable reason to condone the gross and inordinate delay of 581 days. The learned counsel for the respondents further contends that the appellant is not entitled for the luxury of a further opportunity and that on the basis of the materials available at present, the approach made by the Tribunal is absolutely justified. The delay does not deserve to be condoned. At any rate, the appeal does not deserve to be considered favourably, contends the learned counsel for the respondents/claimants. The learned counsel for the respondents points out that even before this Court in this appeal also nothing is brought on record to even suggest that there was a transfer as alleged by the appellant. 8. We have considered all the relevant inputs. We must say that we are not satisfied that there is sufficient reason to condone the delay of 581 days. The very contention of the appellant is that not he, but the 4th respondent herein is liable. Surprisingly no materials whatsoever have been produced before the Tribunal or this Court in support of the case of the appellant that he had prior to the accident transferred the vehicle to the 4th respondent herein. No explanation is forthcoming as to why the M.A.C.A No.263/06 4 appellant did not examine any witness or prove any documents before the Tribunal in support of his contention that he had transferred the vehicle prior to the date of the accident to the 4th respondent. According to the learned counsel for the appellant, he had produced the relevant documents before the court below. But surprisingly no attempt was admittedly made by him to mark and prove such documents. 9. We have considered all the relevant circumstances. We must say that prima facie we are not satisfied that there is any sufficient reason to justify the prayer for condonation of delay. We are satisfied that the prayer for remand to enable the appellant to avail of an opportunity to adduce evidence to prove transfer by him to the 4th respondent herein prior to the accident does not deserve to be granted. 10. However, we take note of the circumstance that if really the dispute between the appellant and the 4th respondent were resolved in favour of the appellant, the 4th respondent herein and not the appellant herein would be liable to compensate the claimants. 11. The learned counsel for the appellant challenges the impugned award on the further ground that no accident has taken place and that the loss has not been established. We find M.A.C.A No.263/06 5 no merit in this contention. The contention only deserves to be rejected. 12. No other challenge is raised against the impugned award. 13. Having considered all the relevant inputs, we are satisfied that appropriate directions can be issued in the interests of justice. We take that view because we want to give the appellant the luxury of an opportunity to substantiate his claim that really the 4th respondent herein and not the appellant is liable to compensate the claimants. But, that opportunity cannot be secured at the expense of the respondents/claimants. In the facts of this case the suspicion lingers in the mind of this Court that the appellant and the 4th respondent are acting in collusion and this appeal is filed belatedly only to avoid and delay execution of the impugned award. In these circumstances, we are satisfied that subject to appropriate safeguards, such luxury of a further opportunity can be granted to the appellant. 13. In the result: A) The application for condonation of delay and the appeal are allowed subject to conditions; i) The application for condonation of delay and the M.A.C.A No.263/06 6 appeal shall stand allowed on condition that the appellant deposits the entire amount payable under the impugned award till the date of deposit, before the Tribunal within a period of two months from this date; ii) If such amount is deposited (including the amount now in deposit), the Tribunal shall straightaway release such amount in deposit (including all amounts that have been deposited by now) to the claimants immediately; iii) If such amount is paid, the appellant shall have a further opportunity to substantiate his claim that he had actually transferred the vehicle to the 1st respondent before the Tribunal; iv) The Tribunal shall grant opportunity to the appellant to adduce appropriate evidence and if the appellant's claim is substantiated, appropriate directions shall be issued by the Tribunal enabling the appellant to recover the amounts deposited by him from the 4th respondent, ie. the alleged transferee; v) The deposit of the entire amount under the impugned award shall be made by the appellant on or before 24.10.2011. The Tribunal shall call O.P(MV) again on 25.10.2011. If the amount is not deposited by then,the Tribunal shall record that fact and thereupon the impugned award shall revive; M.A.C.A No.263/06 7 vi) The amounts deposited by the appellant before the Tribunal shall be released immediately to the claimants; vii) We make it clear that the appellant shall in no case be entitled to recover the amount deposited/released to the claimants; viii) The steps in execution need not be suspended or stayed and such steps shall continue till deposit is made. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/