IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 MACA.No. 181 of 2011() ---------------------- OPMV.234/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/2ND RESPONDENT ---------------------------- K.THANKAPPAN, VALLIKKATTU HOUSE, IRINGOLE P.O., PERUMBAVOOR. BY ADV. SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN RESPONDENTS/ PETITIONER AND RESPONDENTS 1 AND 3: ---------------------------------------------------------------- 1. SUNIL, AGED 28 YEARS, S/O.THANKAMMA, VILAKKATHARA HOUSE, PERUMBAVOOR VILLAGE, IRINGOLE KARA-683548. 2. ANOOP KUMAR V.R., S/O.BALAN, VALLIKKATTU HOUSE, PERUMBAVOOR VILLAGE, IRINGOLE KARA-683548. 3. THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, P.B.NO.6, SHANTI PART, KOLENCHERY-682311. ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA ,J. ------------------------- M.A.C.A No.181 of 2011 -------------------------- Dated this the 12th July, 2011 J U D G M E N T Appellant is the owner of the vehicle involved in the motor accident. He remained ex parte before the Motor Accidents Claims Tribunal (hereinafter referred to as “Tribunal” for short) and an award was passed allowing the claimant/1st respondent to recover an amount of Rs.38,672/- with 8% interest per annum from the driver,owner and insurer jointly and severally. The Insurer was directed to produce the cheque for the amount in the name of the petitioner and insurer was also permitted to recover the amount from the owner-appellant. The cheque was produced and it was released to the claimant also. 2. According to appellant, he did not get any notice from the Tribunal. There was only a paper publication which did not come to the notice of appellant. It was in such circumstances that he was set ex parte. It is also contended that the vehicle involved in this case is a non-transport vehicle but the Tribunal proceeded as if, it is a transport (commercial) vehicle. Therefore, the insurer was permitted M.A.C.A No. 181 of 2011 2 to realise the amount from the appellant. 3. Learned counsel for the appellant also argued that Annexure-A1 is produced before this Court which will clearly show that the autorickshaw involved in this case is a non-transport vehicle. Appellant has other documents also to prove this fact and hence, Insurance Company has no right to realise the amount from the appellant , it is argued. 4. Learned counsel for the 3rd respondent, insurer vehementally contended that records which were available before the Tribunal, particularly the policy, reveal that the vehicle involved is a commercial vehicle. Therefore, the award passed cannot be said to be unsustainable. However, he fairly conceded that in the light of the document produced as Annexure A1, the matter may require a re-consideration on the disputed issue. If the appeal is kept pending and stay is granted, it will only delay recovery from appellant. Hence, he has no objection in remanding the case for fresh consideration and disposal. 5. On hearing both sides, I am satisfied that the matter requires reconsideration particularly in the light of M.A.C.A No. 181 of 2011 3 Annexure-A1. But it is made clear that the only question to be decided by the Tribunal is whether the vehicle involved is a transport vehicle or non-transport vehicle. Depending on the finding on this disputed question, the Tribunal will decide whether the amount can be allowed to be realised by insurer from appellant or not. Both sides shall be given opportunity to adduce evidence on the crucial point whether the vehicle involved is a transport vehicle or a non-transport vehicle. In the result, the following order is passed. (i) The order allowing the 3rd respondent insurer to recover the amount from appellant is set aside. (ii) The case is remanded to the Tribunal for fresh consideration and disposal, in the light of the observations made in this judgment, after affording opportunity to adduce evidence on the disputed question. (iii) Parties shall appear before the Tribunal on 11.8.2011. Appeal is allowed. (Sd/- K.HEMA, JUDGE) ma /True copy/ P.A to Judge M.A.C.A No. 181 of 2011 4 M.A.C.A No. 181 of 2011 5