IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 2407 of 2010 -------------------------------------- OPMV.1056/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS / PETITIONER: --------------------------------------------- K.S.BABU, AGED 36 YEARS, S/O.SREEDHARAN, KAREETHARA HOUSE, PANAMBUKAD, VALLARPADAM P.O., ERNAKULAM. BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS: ------------------------- 1. JIJI MATHEW, JIJI TRADERS, XL/4414, MARKET ROAD, ERNAKULAM, NORTH P.O., KOCHI-682 018. 2. K.R.SURENDRAN, S/O.RAMANKUTTY, VALUNGAL VEETTIL, PALATHURUTHY ROAD, KARANAKODAM, COCHIN-32, THAMMANAM P.O. 3. THE ORIENTAL INSURANCE COMPANY LTD., IST FLOOR, KALLOOKARAN SHOPPING COMPLEX, ANGAMALY P.O., PIN-683 572. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 SRI.VIJU ABRAHAM FOR R1-2 SRI.DINNY THOMAS FOR R1-2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011 ALONG WITH MACA NO.43 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2407 OF 2010 & 43 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March 2011 JUDGMENT Basheer, J. These two appeals are being disposed of through this common judgment, since they are directed against the same award passed by the Tribunal on a claim petition filed under Section 166 of the Motor Vehicles Act. M.A.C.A.No.43 OF 2011 2. MACA 43/2011 has been preferred by the owner and driver of the goods autorikshaw involved in the accident while MACA 2407/10 is at the instance of the claimant. The Tribunal, after considering the documentary evidence adduced by the claimant, awarded a sum of Rs.89,500/- towards compensation with 7.5% interest and directed the owner and driver to pay the same. In other words, the insurance company was exonerated by the Tribunal on the ground that the claimant had travelled in the goods auto as a gratuitous passenger sharing the seat of the driver, which was not permissible under the policy conditions. 3. The grievance of the appellants in MACA 43/2011 is that the Tribunal has overlooked the fact that the claimant had been travelling in the vehicle occupying the seat provided adjacent to the driver's seat. This is evident not only from the entries in the registration certificate of the vehicle but also from the policy certificate issued by the insurance company itself. There appears to be some force in the above contentions. M.A.C.A.Nos.2407 OF 2010 & 43 OF 2011 :: 2 :: 4. However, it is pointed out by the learned counsel for the insurance company that the pleadings available on record will undoubtedly show that the claimant had no case that he had been accompanying any goods in the vehicle either as in his capacity as owner of the goods or as an authorised representative of the owner of the goods. On the contrary, the specific case of the claimant was that he was invited by the driver for a free ride in the vehicle. Anyhow, we do not propose to go into that area of controversy at this stage in view of the order that we propose to pass. 5. As rightly pointed out by Sri.Viju Abraham, learned counsel for the appellants in MACA 43/2011, the Tribunal has proceeded as though no additional seat was provided in the vehicle apart from that of the driver. As has been noticed already, the entries in the registration certificate as well as in the policy would clearly reveal that an additional seat had been provided in the vehicle obviously for the person accompanying the goods either as owner or his representative. 6. Keeping in view the above facts and circumstances, we are satisfied that the above aspect of the matter has to be reconsidered by the Tribunal. However, it is the admitted position that the owner and driver did not contest the case before the Tribunal. Learned counsel submits that their failure to do so was due to valid reasons. We are not impressed with that submission. 7. Therefore in the facts and circumstances of the case, the finding entered by the Tribunal on the question of liability is set aside. The appellants shall be afforded reasonable opportunity to contest the case on condition that M.A.C.A.Nos.2407 OF 2010 & 43 OF 2011 :: 3 :: they pay a sum of Rs.10,000/- as cost to the insurance company. The said sum of Rs.10,000/- shall be deposited by these appellants before the Tribunal within one month from today, failing which this appeal shall stand dismissed. It is made clear that it will be open to these appellants to adduce further evidence, both oral and documentary, in support of their contentions. Similarly, the insurance company shall also be at liberty to adduce further evidence. We make it clear that the quantum fixed by the Tribunal need not be reconsidered by the Tribunal. 8. The appellants and respondent No.3/insurance company shall appear before the Tribunal on April 30, 2011. The Tribunal shall dispose of the matter, as expeditiously as possible, on or before July 29, 2011. MACA 2407/2010 9. The grievance of the appellant who is the claimant before the Tribunal is that adequate compensation has not been awarded to him under the head of loss of amenities, disfigurement, loss of teeth, etc. A perusal of Ext.A5 discharge summary will show that the claimant had to undergo treatment for head injury with-LE-FORT III fracture, nasal bone fracture etc. It is further revealed from this document that the claimant had lost upper central incisor. Some deformity was caused to his nose also. 10. Keeping in view the above facts and circumstances, the claimant is awarded a sum of Rs.20,000/- in lump under the head of disfigurement, loss of teeth, loss of amenities etc. over and above the compensation awarded by the Tribunal. M.A.C.A.Nos.2407 OF 2010 & 43 OF 2011 :: 4 :: 11. The next contention raised by the claimant is that the Tribunal ought not to have exonerated the insurance company from the liability to pay the compensation. In view of the order passed by us, in the earlier part of this judgment while dealing with the appeal preferred by the owner and driver, it is not necessary to deal with this contention yet again. The question relating to the liability shall be decided in terms of the direction issued by us in the other appeal. Appeals are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes