IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 FAO.No. 47 of 2011() -------------------- OPMV.5/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/PETITIONER/2ND RESPONDENT: ------------------------------------------------- AMBATTUPARAMBIL YUSUF, S/O.MOHAMMED, PULLIKADAVU, KERALA ESTATE PO, MALAPPURAM DISTRICT BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENTS/RESPONDENTS/CLAIMANTS&RESPONDENTS 1&3: ----------------------------------------------------------------------- 1. MADATHIL SHYLAJA, S/O.GIRISHKUMAR MADATHIL HOUSE, VETTATHUR PO, MELATTUR, MALAPPURAM DISTRICT 676 326. 2. CHAKKUMMADATHIL KUNHILAKSHMI, W/O.GANGADHARAN NAIR, CHAKKUMMADATHIL HOUSE IRINGATTIRI PO, MALAPPURAM DISTRICT 676 523. 3. THEKKANCHERI SALEEM ,S/O.MOHAMMED ADAKKAKUNDU,KALIKAVU, MALAPPURAM DISTRICT 676 525. 4. ORIENTAL INSURANCE CO.LTD, JASEELA COMPLEX,NILAMBUR ROAD, MANJERI PO, MALAPPURAM DISTRICT, REPRESENTED ITS MANAGER 676 121. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R4 SRI.P.JACOB MATHEW FOR R4 SRI.S.SANAL KUMAR FOR R1-2 SMT.BHAVANA VELAYUDHAN FOR R1-2 SMT.T.J.SEEMA FOR R1-2 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- F.A.O.No.47 OF 2011 ------------------------------------ Dated this the 7th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1. This appeal arises from an application for compensation filed before the Motor Accidents Claims Tribunal. The owner of the vehicle involved in the incident remained ex parte. The Tribunal accepted the contention of the insurer and held that the deceased was a passenger in the cabin of the goods autorikshaw which did not have any authorised passenger capacity and therefore, the policy condition in that regard was violated and hence, the insurer was not liable. 2.When the award of the Tribunal reached the stage of execution, the owner moved an application under Order IX FAO.47/11 2 Rule 13 CPC, seeking to have the ex parte award set aside. The Tribunal dismissed it. Hence this appeal by the owner. 3.Before the Tribunal and before us, the contention of the appellant in support of his application to have the ex parte award set aside and for condonation of delay of 135 days in applying to do so, was that he had entrusted the driver to contest the matter; he being the principal offender and also owing to his experience in court proceedings, by reason of which, the appellant remained confident that the application before the Tribunal would be contested. 4.We have looked into the merits of the contentions as well. It appears that the court below acted, among other things, on the First Information Statement recorded by the police to the effect that the deceased was a passenger in the cabin of the autorikshaw. It is suggested on the basis of the Final Report and post mortem certificate as also the testimony of PW2 who was examined before the Tribunal that the FAO.47/11 3 preponderance of probability emanating out of the totality of the evidence on record go to show that the deceased was a pedestrian and hence, the insurer would be liable since it would be only a third party claim. 5.Having regard to the aforesaid, we are of the view that the appellant deserves an opportunity to contest the matter however, on terms. He has already deposited an amount of Rs.10,000/- before this Court under earlier orders issued at the stage of admission. That amount has been released to respondents 1 and 2 through their counsel. We further direct that if the appellant deposits an amount of Rs.50,000/- within a period of 45 days from now before the Tribunal and furnishes security to the satisfaction of the Tribunal for the remaining amount covered by the award within such time, the ex parte award will stand set aside, paving way for a trial and disposal of the main matter in accordance with law. If such deposit is not made or security nor furnished, this FAO will stand dismissed automatically. FAO.47/11 4 6. In the event of the proceedings getting restored on deposit and furnishing security in terms of this judgment, the Tribunal will make an endeavour to expedite the final disposal of the main matter, having regard to the fact that the mother and widow of the deceased are the applicants before it. It is clarified that if ultimately it is found that the insurer is liable to pay the appellant, such liability would pass on to the insurer and the appellant would stand reimbursed to that extent. The FAO is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.8/6.