The New India Assurance Company … vs Abdul Rasak on 4 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 180 of 2007()


1. THE NEW INDIA ASSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. ABDUL RASAK, AGED ABOUT 30 YEARS,
                       ...       Respondent

2. ABDUL SALAM, AGED ABOUT 31 YEARS,

                For Petitioner  :SRI.P.R.RAMACHANDRA MENON

                For Respondent  :SRI.C.A.CHACKO

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :04/08/2008

 O R D E R
                           M.N.KRISHNAN, J
                       =====================
                         MACA No.180 OF 2007
                       =====================

                 Dated this the 4th day of August 2008

                              JUDGMENT

This appeal is preferred against the award of the Motor Accidents

Claims Tribunal, Ottappalam in O.P.(MV)No.378 of 2003, whereby the

Tribunal awarded a total compensation of Rs.48,003/-. The Tribunal

directed the insurance company to pay the amount. It is against that

decision, the insurance company has come up in appeal. The contention of

the insurance company is to the effect that the claimant was a pillion rider

in a two wheeler and the vehicle was only issued an Act only policy which

does not cover a pillion rider and therefore by virtue of the decision in

United India Insurance Co.Ltd. v. Tilak Singh(2006(2) KLT 884(SC),it is

not liable to indemnify the owner. Learned counsel for the appellant very

strongly contends before me that the insurance company has filed two

applications,I.A.Nos.1347 & 1360 of 2006, one for reopening the case and

the other for receiving an additional written statement and to accept the

copy of the policy. It was submitted that the case was posted to 27.7.2006,

but, without any notice the Tribunal suo motu advanced the case to

MACA 180/2007 -:2:-

30.6.2006 and passed the award. When it came to the notice of the learned

counsel he moved another I.A.No.1593 of 2006 for considering

I.A.Nos.1347 & 1360 of 2006. But the Tribunal dismissed both of them

along with I.A.No.1593/2006. Whatever it may be, if an order is passed

without notice, it is not fair. Whether the case has to be reopened or

additional written statement is to be received are all matters which the

Tribunal could have considered after issuing notice. There was no point in

passing an award and as a corolary dismissing the applications. It was not

a proper procedure to be followed.

Therefore the award under challenge is set aside and the matter is

remitted back to the Tribunal for the sole purpose of consideration

regarding liability of the insurance company. Since the absence of liability

may exonerate the insurance company totally for the reason that a pillion

rider may not be a 3rd party it is desirable that the claimant can also proceed

with the matter to establish that factum. Since the owner has not appeared

before this Court in spite of notice and as the liability has to be fixed on him

in respect of the finding that the insurance company is not liable, the

insurance company shall take out notice to the owner as well. All the

parties are permitted to produce both documentary as well as oral evidence

in support of their respective contentions. Parties are directed to appear

MACA 180/2007 -:3:-

before the Tribunal on 5.9.2008.

MACA is disposed of as above.

M.N.KRISHNAN, JUDGE

Cdp/-