IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 MACA.No. 992 of 2011() ------------------------------- OPMV.285/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER : ------------------------------------ JOBBY, S/O.MATHEW, KOLLAMKUNNEL (H), THANKAMANI VILLAGE, IDUKKI. BY ADVS. SRI.MATHEW JOHN SRI.DOMSON J.VATTAKUZHY RESPONDENTS : ---------------------- 1. JOSEPH MATHAI, KOLLAMPARAMBIL (H), VETTIMUKAL P.O., ETTUMANOOR, 686631. 2. JOMON, OF -DO-. 3. THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM-686001. ADV. SRI. RAJAN KALLIATH FOR R3 (B/O) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & N.K. BALAKRISHNAN, JJ. ------------------------------------------------------------------ M.A.C.A. No. 992 of 2011 ------------------------------------------- Dated this the 28th day of July, 2011 JUDGMENT R. BASANT,J. The claimant is the appellant. His claim for compensation before the Tribunal under Section 166 of the Motor Vehicles Act was dismissed by the Tribunal. According to the claimant, he was travelling as a pillion rider in a motor cycle. Another was riding the motor cycle. An autorickshaw owned by the first respondent driven by the second respondent and insured with the third respondent hit the motor cycle on its rear, whereby the claimant suffered injuries. He therefore, staked claim against respondents 1 to 3 herein -owner, driver and insurer of the vehicle. 2. The respondents 1 and 2 did not appear and chose to remain exparte. The Insurance Company raised an interesting plea that the first respondent is not the owner and some other person is the real owner. For a moment, they did not explain how they happened to issue the policy of the insurance in the name of the first respondent. A vague and empty plea was raised that the M.A.C.A. No. 992 of 2011 2 first respondent is not the owner and another person is the real owner. How did the Insurance company come to know this ? We have no valid explanation except that in some police records the name of another was shown as the owner of the vehicle. In spite of the fact that they had issued the policy of the insurance in the name of the first respondent the insurance company did not take steps to find out, who was the real owner on the date when policy of the insurance was issued or when the accident took place. On that vague and general plea the Tribunal proceeded to dismiss the claim of the appellant/claimant. 3. We must say, we are dissatisfied with the nature of the plea raised by the third respondent as also the approach made by the Tribunal. The burden must heavily be placed on the shoulder of the third respondent to explain who the real owner was on the date of the accident as also on the date of issue of the policy of insurance. The claimant asserted that to his knowledge the first respondent was the owner of the vehicle, at the relevant time. To further fortify his contentions, he has now produced before this Court a copy of the registration certificate of the vehicle, which shows that one Joy.P.K.(who the Insurance Company described to be the owner as per the police records) was the original M.A.C.A. No. 992 of 2011 3 owner as per the registration certificate. But he had transferred the vehicle to the first respondent herein with effect from 19.03.1999, endorsement to that effect is available in the R.C. Book, contends the learned counsel for the appellant on the strength of the photocopy produced. 4. We are certainly of the opinion that in the absence of an explanation by the third respondent as to how and under what circumstances, the third respondent happened to issue policy of the insurance in favour of the first respondent, the Tribunal should not have reckoned this contention as serious or substantial as to justify the dismissal of the petition. 5. The learned counsel for the Insurance Company submits that the anxiety of the insurer was only to ascertain whether there has been subsequent transfer of the vehicle after issue of a policy of insurance. Even in that event, the Insurance Company would continue to be liable by the play of Section 157 of the Motor Vehicles Act, but the Insurance Company will then be entitled to recover the amount from the real owner, whoever he be as there is a plea that the driver were not having a valid driving licence at the relevant time. The learned counsel for the Insurance Company further points out that in the police charge M.A.C.A. No. 992 of 2011 4 sheet produced by the claimant, there is clear indication that the driver was not having a valid driving licence. 6. We do appreciate the valiant attempt made by the learned counsel for the Insurance Company to explain why the plea was raised. But we are dissatisfied that the plea was raised by the Insurance Company without proper enquiry and investigation. It must have been very easy for the Insurance Company to apply for and obtain a copy of the relevant entry in the register maintained by the authorities so that the Insurance Company could have raised a specific plea. We are disturbed by such pleas raised by the Insurance Company without itself doing the necessary homework. In this context we must say that we completely deprecate this type of defences raised by the Insurance Company, without sufficient preparation and verification of facts. 7. The learned counsel for the appellant submits that the driver of the vehicle was having a valid driving licence. He has a photocopy of the driving licence, it is submitted. The same has not been produced. 8. It is submitted by the learned counsel for the appellant that the appellant does not want to further dispute the M.A.C.A. No. 992 of 2011 5 quantification of loss by the Tribunal. The appellant shall be satisfied if this court directs the third respondent to pay the amount of loss fixed under the award to the appellants with the rider that the claim of the third respondent for a direction under Section 149(4) shall be considered afresh by the Tribunal. 9. We find the said course to be the best course available in the interest of justice. By following that course, we think we can spare the Insurance Company of the liability to pay costs which we thought initially of imposing to show our disapproval of the course adopted by the Insurance Company of raising contentions without sufficient investigation/homework. 10. In the result, a. This appeal is allowed in part. b. The third respondent Insurance Company is held liable and directed to pay an amount of Rs.26,038/- which is quantified by the Tribunal to be the loss suffered by the claimant along with interest @ 7.5% p.a from the date of the petition to the date of deposit/realisation. The amount shall be paid along with costs of Rs.2,500/-. M.A.C.A. No. 992 of 2011 6 c. The amount due shall be deposited before the Tribunal within a period of two months from this day, in which event the Tribunal shall afford an opportunity for the third respondent to press for an order under Section 149(4) of the Motor Vehicles Act to recover the amount from the owner of the vehicle. d. The parties shall appear before the Tribunal on 28.09.2011. If the amount is not deposited the Tribunal shall close the proceedings and reckon the directions hereby issued as a mere direction to the third respondent to pay the amount. 11. Hand over a copy of this order to the learned counsel for the third respondent straightaway. R. BASANT, JUDGE N.K. BALAKRISHNAN, JUDGE ln