IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 MACA.No. 503 of 2011() ---------------------- OPMV.940/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): IST RESPONDENT ---------------------------- THE MANAGING PARTNER,SAJIMON TRANSPORT, WILLINGDON ISLAND,COCHIN,ERNAKULAM-682003, REPRESENTED BY RAJEEV. BY ADV. SRI.P.GOPALAKRISHNA MENON SRI.M.JITHESH MENON RESPONDENTS/ CLAIMANT & RESPONDENTS 2 AND 3 ----------------------- 1. BIJU.K.S,S/O.SUPRAN,KONNATHARA VEETTIL, POONITHURA VILLAGE,THAIKOODAM,VYTTILA, ERNAKULAM DISTRICT. 2. VARGHESE GEORGE @ BIJU,S/O.GEORGE, KIZHAVANA VEETTIL,KADAVANTHRA,ELAMKULAM VILLAGE, KOCHI,ERNAKULAM. 3. THE NEW INDIA ASSURANCE CO.LTD, REP.BY ITS REGIONAL MANAGER,3RD PARTY CLAIM CELL, ERNAKULAM SOUTH M.G.ROAD, ERNAKULAM. ADV. SRI.N.R.RAJESH FOR R1 SRI.MANU ROY FOR R1 SMT.K.BHAVYA GOPAL FOR R2 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.503 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the first respondent in O.P.(MV)No.940/2005 on the file of Motor Accidents Claims Tribunal, Ernakulam. He is the owner of the offending lorry bearing Reg.No.KL-7AP/9196 which met with an accident on August 8, 2004 at about 1.30 a.m. In this appeal, he challenges the judgment and award of the Tribunal awarding a compensation of Rs.3,41,810/- to the claimant who sustained serious injuries in the accident. 2. The accident happened while the claimant was travelling in the lorry, which is driven by the second respondent, from Ernakulam to Ettumanoor along Ernakulam-Thalayolaparambu road. While negotiating a curve near DB junction, it overturned. The right leg of the claimant was trapped beneath the lorry and it was later amputated below knee. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal claiming a compensation of MACA.No.503/2011 2 Rs. 7,00,000/-. 3. First respondent, the owner of the offending lorry remained absent before the Tribunal. The second respondent, the driver of the offending lorry filed a written statement admitting the accident, but denied the liability. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contended that as the claimant was a gratuitous passenger in the vehicle whose risk is not covered by the policy issued. 4. Exts.A1 to A12 were marked on the side of the claimant. No evidence was adduced by the contesting respondents. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent and awarded a compensation of Rs. 3,41,810/-. The Tribunal has also found that as the claimant was a gratuitous passenger in the offending vehicle, his risk is not covered by the policy issued by the third respondent and allowed the third respondent to satisfy the award and thereafter recover the amount from respondents 1 and 2. The first respondent, the owner of the offending lorry has now come up in appeal challenging the said MACA.No.503/2011 3 finding of the Tribunal. 5. Heard the counsel for appellant and the counsel for the respondents. 6. When the appeal came up for hearing today, learned counsel for the appellant submitted that he may be given an opportunity to adduce evidence before the Tribunal to show that claimant was his worker and on his instruction he was going in the lorry and that therefore his risk is also covered by the policy issued in respect of the offending vehicle. 7. Counsel for the Insurance Company opposed the said request. In the circumstances of the case, we feel that an opportunity may be given to the appellant/first respondent to show that the claimant was not a gratuitous passenger in the offending vehicle and that he was an employee of the appellant. But there is another aspect in this case. The appellant remained absent before the Tribunal. Therefore, he has to pay cost to the Insurance Company for his laches. In the result, the appeal is allowed by way of remand. The impugned award of the Tribunal in so far it ordered recovery of the MACA.No.503/2011 4 compensation amount from respondents 1 and 2 in the O.P. is set aside. The O.P. is remanded to the lower court for fresh consideration regarding the liability of the respondents. The quantum of compensation awarded by the Tribunal is not disturbed. The appellant shall pay a cost of Rs. 10,000/- to the Insurance Company within two months from this date. If the appellant fails to pay the cost, the appeal will stand dismissed. The parties shall appear before the Tribunal on July 27, 2011. Both parties are entitled to adduce further evidence to prove their case. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.503/2011 5