IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 MACA.No. 2728 of 2009 ----------------------- OPMV.170/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT: PETITIONER IN OP(MV) ---------------------------------- JOHNSON,S/O.KANDAMKULATHY POULOSE, NORTH KAROOR DESOM,KODAKARA VILLAGE, MANKULANGARA.PO,MUKUNDAPURAM VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. THE MANAGING PARTNER,KECEE TRADERS, MARKET ROAD,CHALAKUDY. 2. JAYARAJ,S/O.THOTTIPARAMBIL RADHAKRISHNAN,THURUTHIPARAMBU,ALOOR.PO, 3. UNITED INDIA INSURANCE CO.LTD, SOUTH JUNCTION,CHALAKUDY. 4. P.M.YOHANNAN,MANAGING PARTNER, M/S.HIGHWAY CONTRACTORS,11/97,T.B.ROAD, PALAKKAD. 5. MOHANAN,S/O.PERALAPPILLY MANIKKAN, VERKOLY.PO,PALAKKAD. 6. NATIONAL INSURANCE CO.LTD,DIVISIONAL OFFICE,1ST FLOOR,AJAY VIHAR,M.G.ROAD,KOCHI-16. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R6 SRI.P.JACOB MATHEW FOR R6 SRI.A.KUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010, ALONG WITH MACA.1449/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MACA.Nos. 2728/2009 &1449/2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2010 Judgment Basheer, J: These appeals are directed against the award passed by the Motor Accidents Claims Tribunal in a petition filed under Section 166 of the Motor Vehicles Act claiming compensation for the alleged injuries sustained by the claimant in a road traffic accident that occurred on October 18, 2003. 2. MACA.2728/2009 is preferred by the claimant seeking enhancement of the compensation awarded to him, while the other appeal viz., MACA.1449/2010 is at the instance of the registered owner of one of the two vehicles involved in the accident. We will deal with the appeal preferred by the registered owner first, which decision will decide the fate of the other appeal, for reasons to be stated by us later in the judgment. MACA.No.1449/2010: 3. Appellant (hereinafter referred to as 'the registered owner') admits that one of the two vehicles viz, tipper lorry bearing registration No. KL 9A 3740 stood in his name at the time of the accident. But according to him, the above vehicle was purchased at MACA.2728/09 & 144910. : 2 : the time when he was one of the Managing Partners of a registered firm in the name and style of “Highway Contractors” at Palakkad. But his case is that the firm had overall control over and possession of the vehicle, and he had nothing to do with its operation at any point of time, leave alone at the time of the accident. The said vehicle happened to be registered in his name only in his capacity as the Managing Partner. Nothing more nothing less. Therefore it is contended by the learned counsel that the Tribunal ought not to have fastened the liability to pay compensation on the appellant only for the reason the offending vehicle stood registered in his name. 4. The other contention raised by the learned counsel is that the appellant had never been served with notice from the Tribunal in the claim petition. He came to know about the award only when recovery proceedings were initiated against him at the instance of the claimants. Immediately appellant had filed a petition before the Tribunal to set aside the ex parte award. Appellant had also approached this Court under Article 226 of the Constitution of India seeking to quash the recovery proceedings. But the writ petition was disposed of by this Court by judgment dated July 2, MACA.2728/09 & 144910. : 3 : 2010 giving liberty to pursue the remedy available to him as provided under the Motor Vehicles Act itself. It is thereafter that the appellant has instituted this appeal with a petition to condone the delay. 5. It is brought to our notice that the appellant has since withdrawn the petition filed by him before the Tribunal to set aside the ex parte award. Learned counsel submits that the appellant, if given an opportunity, is prepared to establish that the vehicle happened to be registered in his name only because he was the Managing Partner of the firm at the time of the accident. MACA.No.2728/2009: 6. In the appeal preferred by the claimant the only grievance is that the compensation awarded by the Tribunal is too meagre and inadequate considering the nature and extent of the injuries sustained by him. It is also contended by the claimant that the attempt of the registered owner appears to be to delay execution of the award. It cannot be believed that the registered owner was not aware of the proceedings pending before the Tribunal nor it can be assumed that the vehicle happened to be registered in his name only because he happened to be the Managing MACA.2728/09 & 144910. : 4 : Partner of the firm. We do not propose to deal with that issue any further, in view of the order that we propose to pass. 7. The main grievance of the registered owner is that he had not been afforded an opportunity to present his case before the Tribunal. We have carefully perused the award. The Tribunal has found that the accident occurred because of the rash and negligent driving by the driver of the vehicle owned by the registered owner. The driver has not challenged the above order. The Insurance Company was exonerated by the Tribunal for the reason that the claimant was travelling as a gratuitous passenger in the Goods vehicle (Tipper Lorry). Thus the liability to pay compensation has fallen on the registered owner. 8. The claimant in his appeal has raised a specific contention that the driver of the other vehicle bearing registration No. KL 8T 2857 was responsible for the accident and that the Tribunal went wrong in holding otherwise. In short, the contention of the claimant in his appeal is that the finding of the Tribunal as regards culpability of the driver of the vehicle bearing registration No. KL 9A 3740 is not correct. In other words, the claimant is also supporting the cause of the MACA.2728/09 & 144910. : 5 : registered owner whose specific contention is that the finding entered by the Tribunal as regards negligence is not correct. Yet again, we refrain from making any further observation on this aspect at this stage. The owner, driver and insurer of the other vehicle viz., KL 8T 2857 have not entered appearance in this appeal though they have been served with notice. 9. The Tribunal had raised the following issues: “1. Whether the accident in this case occurred due to the composite rashness and negligence on the part of respondents 2 and 5, or due to the sole rashness and negligence on the part of the 2nd respondent? 2. Whether the petitioner is statutorily covered u/s 147 of the M.V.Act, or as a workman under the policy issued by the 6th respondent. 3. What is the amount of compensation payable, and who is liable for the compensation?” 10. As has been indicated earlier, the Tribunal exonerated the insurer of the vehicle (Tipper Lorry) owned by the appellant in MACA.No.1499/2010 MACA.2728/09 & 144910. : 6 : holding that the claimant was a gratuitous passenger, though it was found that the driver of the said vehicle was rash and negligent. In our view, issue Nos.1 and 2 have to be reconsidered in the peculiar facts and circumstances of the case particularly since the registered owner of the vehicle did not get an opportunity to put forth his case, albeit due to his own fault. It will be only just and proper that he is given an opportunity to contest the case especially because he has got a case that the vehicle happened to be registered in his name only because he was the managing partner of the firm. But such an opportunity can be had only on terms. 11. In the light of the discussion made above, we are satisfied that the two appeals can be disposed of with the following directions. 12. The award to the extent it fixes the liability to pay compensation on the registered owner (appellant in MACA.1449/2010) is set aside, on condition that he deposits a sum of Rs.75,000/- before the Tribunal on or before September 30, 2010, in addition to the sum of Rs.25,000/- remitted by him before this Court at the time of institution of the appeal. This deposit is only by way of an interim measure and subject to the MACA.2728/09 & 144910. : 7 : decision to be taken by the Tribunal on the two issues referred to above. 13. It will be open to the claimant to withdraw the amount of Rupees Seventy Five Thousand deposited by the registered owner before the Tribunal. Similarly the amount of Rs.25,000/- in deposit before this Court shall also be released to the claimant (respondent No.6 in MACA.No.1449/2010). 14. The Tribunal shall reconsider issue Nos. 1 and 2 after hearing all the parties. The Tribunal shall issue notice to the other respondents also who have not appeared before this Court. It is made clear that the Tribunal shall confine its decision only to issue Nos. 1 and 2. We make it clear that the quantum now fixed by the Tribunal shall not be disturbed. We make it further clear that it will be open to the claimant to raise all his contentions as regards inadequacy of the quantum now fixed by the Tribunal at a later stage, if so advised, after the Tribunal passes a revised award. 15. The parties shall appear before the Tribunal on September 30, 2010. 16. If the appellant/registered owner fails to make the deposit on or before September 30, 2010 MACA.No.1499/2010 shall stand dismissed and MACA.2728/09 & 144910. : 8 : MACA.No.2728/2009 shall be posted before the Bench for further orders. The two appeals are disposed of in the above terms. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.