George Varghese vs Abdul Majeed
2021 Latest Caselaw 11330 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                             MACA.No.335 OF 2010(C)

  AGAINST THE AWARD IN OPMV 1723/2004 DATED 28-02-2009 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL, KOLLAM

APPELLANT/S:

                GEORGE VARGHESE
                THENGAYYATHU HOUSE
                ELAPPAKULAM P.O., PALLICKAL, ALAPPUZHA

                BY ADV. SRI.B.KRISHNA MANI
RESPONDENT/S:

      1         ABDUL MAJEED
                THAZHUTHALA.

      2         RAJENDRAN PILLAI MOHAN NIVAS
                KARICODE, MANGAD. (DECEASED)

      3         THE DIVISIONAL MANAGER ORIENTAL
                INSURANCE COMPANY LTD., KOLLAM.

      4         ADDL. SHEELA (ADDL R4 TO 6 SOUGHT TO BE IMPLEADED)
                W/O.LATE RAJENDRAN PILLAI, MOHAN NIVAS, KARICODE,
                MANGAD- 691 005.

      5         ADDL. JAGMOHAN
                S/O.LATE RAJENDRAN PILLAI, MOHAN NIVAS,
                KARICODE, MANGAD- 691 005.

      6         ADDL. VISHNU MOHAN
                S/O.LATE RAJENDRAN PILLAI, MOHAN NIVAS,
                KARICODE, MANGAD- 691 005.

                (THE LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS
                ADDITIONAL RESPONDENTS 4 TO 6 VIDE ORDER DATED
                22.05.2014 IN I.A. NO.1071/2014 IN MACA NO. 335/2010)

                R1   BY   ADV.   SRI.PRATHEESH.P
                R1   BY   ADV.   SRI.RENJIT GEORGE
                R1   BY   ADV.   SMT.A.SREEKALA
                R1   BY   ADV.   SRI.K.SHAJ

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
30-03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 MACA.No.335 OF 2010(C)

                                      2




                   P.V.KUNHIKRISHNAN, J.
                 ===================
                    MACA No. 335 OF 2010
                 ===================
              Dated this the 8th day of April 2021


                          JUDGMENT

Petitioner is the 1st respondent in O.P. (MV)

No.1723/2004 on the file of Motor Accidents Claims

Tribunal, Kollam. It is a claim petition filed by the 1 st

respondent herein under Section 166 of the Motor

Vehicles Act claiming compensation from the respondents.

(Hereinafter the parties are mentioned in accordance to

their rank before the Tribunal).

2. The short facts are like this:-

On 23.08.2003 at about 7.30 p.m., while the

petitioner was riding a motor cycle bearing Registration

No. KL-2/K 164 through the Perayam Palathara road from

west to east direction keeping the left side of the road, MACA.No.335 OF 2010(C)

and when he reached near Aliance Company, a maruthi

car bearing Registration No. KRU 1701 driven by the 2 nd

respondent came in a rash and negligent manner from

east to west direction in high speed without observing any

traffic rules caused to hit against the motor cycle as well

as the body of the petitioner and as such he was thrown

away from the vehicle and has sustained very serious

injuries all over the body.

3. To substantiate the case, Exts.A1 to A9 were

marked on the side of the petitioner. One witness was

examined on the side of the petitioner as PW1. Ext. B1 is

marked on the side of the respondents and the 1 st

respondent himself was examined as a witness before the

tribunal on the side of the respondents. After going

through the evidence and documents, the Tribunal fixed

a total compensation of Rs.36,100/- with interest at the

rate of 7.5% p.a from the date of application till

realisation. The 1st respondent being the owner of the

offending vehicle was directed to deposit the amount MACA.No.335 OF 2010(C)

because the tribunal found that there is no insurance

policy as on the date of accident to the offending vehicle.

Aggrieved by the award passed by the tribunal the 1st

respondent filed the present appeal.

4. Heard the learned counsel for the appellant/1st

respondent and the learned counsel for the respondents.

5. The learned counsel for the appellant

submitted that, in the light of the evidence of RW1 and

Ext. B1 sale agreement, it is proved that the vehicle is

transferred to the 2nd respondent. The learned counsel

also relied the definition of 'owner' in Section 2(30) of

the Motor Vehicles Act, 1988. The learned counsel

submitted that, the owner includes an agreement holder

also.

6. The learned counsel for the respondents

submitted that, even if there is a sale agreement, the

entries in the RC particulars is important and till the

name in the RC particulars are changed it is presumed

that the RC owner is the real owner.

MACA.No.335 OF 2010(C)

7. The tribunal considered this point in detail in

the impugned award. The tribunal after going through

Ext. B1 sale agreement, rejected the contention of the 1 st

respondent mainly for the reason that there is no

evidence adduced by the 1st respondent to prove the

same in a manner known to law. The learned counsel for

the petitioner submitted that, if an opportunity is given

to the petitioner to adduce further evidence, he will able

to prove the validity of Ext. B1 sale agreement. The

learned counsel submitted that, he will be able to

examine the other witnesses also to prove the same. The

learned counsel submitted that, an opportunity may be

given to the 1st respondent to adduce further evidence.

Considering the entire facts and circumstances of the

case, I think, the 1st respondent can be given further

opportunity to adduce further evidence. But I make it

clear that, the compensation already awarded by the

tribunal is final. I am not interfering with the same. The

tribunal is only to decide the liability of the respondent MACA.No.335 OF 2010(C)

Nos. 1 and 2 based on the further evidence which is to

be adduced by them. Therefore, the matter is remanded

only for the limited purpose of deciding the liability of the

1st and 2nd respondents to pay the compensation.

Therefore, this appeal is allowed:-

1. The Motor Accidents Claims Tribunal, Kollam is directed to restore OP(MV) No.1723/2004 and allow the parties to adduce further oral and documentary evidence. I make it clear that, no denova trial is necessary.

3. The tribunal will decide the matter afresh as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. I make it clear that, the compensation amount already awarded is final.

4. The parties will appear before the tribunal on 10.05.2021.

(Sd/-)

P.V.KUNHIKRISHNAN JUDGE LU