IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 560 of 2004()
1. THE SECRETARY, KANJIRAPPALLY AUTO
... Petitioner
Vs
1. RAJEEV M.I. S/O.M.V.ISSAC, MARIN KUNNEL
... Respondent
2. RAJU @ GEEVARGHESE,
3. UNITED INDIA INSURANCE CO.LTD.,
For Petitioner :SRI.S.PRASANTH
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/05/2008
O R D E R
M.N.KRISHNAN, J
========================
M.A.C.A.No.560 of 2004
=========================
Dated this the 30th day of May, 2008
JUDGMENT
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Pala, in OP(MV) No.841/1995
whereby the tribunal awarded a compensation of 19,750/- and
directed the Insurance Company to pay the amount of
compensation to the petitioner and thereafter permitted the 3rd
respondent to recover the amount from the first respondent,
owner of the offending vehicle. The appeal is preferred by the
first respondent against the finding of reimbursement. The
learned counsel for the appellant would submit that the first
respondent society has only advanced the amount under an hire
purchase agreement and it is not the owner of the property for
the purpose of claim. He would further contend that under
Section 2(30) of the Motor Vehicle Act, in the cases of hire
purchase agreement the person in possession is to be the owner
of the vehicle. Along with the memorandum of appeal he had
produced Annexure A1, A2 etc. which would reveal that one
Tomy Mathew had entered in to an agreement with the first
M.A.C.A.No.560/2004
2
respondent society and therefore he is the owner of the vehicle
and so he is bound to pay the compensation. So really the
dispute is in between the first respondent and the Insurance
Company and if impleaded Mr.Tomy Mathew. Tomy Mathew has
never been made a party before the tribunal. But the documents
produced in this case would reveal that there is a point to be
considered by the tribunal especially in the light of the decision
of the Apex Court reported in Godavari Finance Co. v.
Degala Satyanarayanamma (2008 (2) KLT 429 (SC))
wherein the court held that ” the person who is in possession of
the vehicle, and not the financier being the owner would be
liable to pay damages for the motor accident.” Unfortunately the
appellant herein did not raise such contention before the court
below and the court did not have an opportunity to consider the
same. But it is a point which has to be considered for meeting
the ends of justice. Therefore, I am inclined to grant an
opportunity and I permit the first respondent, appellant herein to
move an application for impleadment of the said Tomy Mathew
or any person claiming under him as a party to the proceeding
and thereafter the question can be decided afresh including the
question of licence. Therefore, the MACA is allowed and the
tribunal is directed to consider the matter afresh on the
M.A.C.A.No.560/2004
3
following points:
1) The court shall consider whether the first respondent
is liable to pay compensation as it does not come within
the definition of the owner under Section 2(30) of the
Motor Vehicle Act.
2) Whether the proposed person would be liable and
whether insurance company can get exonerated of
liability on account of the absence of licence.
3) The court below shall permit the appellant herein
namely the first respondent to file additional written
statement in support of his contention including raising
the plea of non-joinder of necessary parties and also can
file an application to implead the person whom according
to it is the owner of the vehicle.
4) The court shall, after hearing all concerned, decide
the question afresh and dispose of the matter in
accordance with law.
Parties are directed to appear before the Tribunal on
15.07.2008.
M.N.KRISHNAN,JUDGE
dvs