Vinu Raj vs C.V. Venkata Subramanian, Chandrasekhar Naik and The Oriental Insurance Co. Ltd.

R. Basant, J.—The claimants - a mother and a son, are the Appellants. They are primarily aggrieved by the quantum of compensation awarded. They have a further grievance that the insurance company has not been made liable by the Tribunal. The Petitioners/Appellants, though they belong to Kottayam, are now residing at Mangalore in connection with the employment of the son. They travelled down to Kottayam in a car of which the 1st Respondent is said to be the owner, the 2nd Respondent is the driver and the 3rd Respondent is the insurer. The 1st Respondent did not enter appearance. The 2nd Respondent was served. He did enter appearance. He did not raise any contentions. The 3rd Respondent insurance company contended that it was an `Act only'' policy issued by the 3rd Respondent in respect of the vehicle and that, at any rate, the said `Act only'' policy did not cover liabilities in respect of the claimants who were travelling in the said vehicle.

Parties went to trial on these contentions. The Tribunal took the view that the claimants - mother and son, are entitled for an amount of Rs. 82,250/- and Rs. 1,46,630/- respectively.

Before us, the 1st Respondent/owner has entered appearance. The learned Counsel for the 1st Respondent contends that the 1st Respondent was not the owner of the vehicle on the date of the accident. In these circumstances, the 1st Respondent is not liable to pay any compensation to the claimants. It is true that the 1st Respondent did not appear before the Tribunal and raise his contentions. The learned Counsel points out that since he was only a former owner of the vehicle, the 1st Respondent did not think it necessary to appear and contest. However, he had communicated to the Tribunal that he is not the owner of the vehicle and with effect from 13/4/02 one Lakshamesh is the owner in respect of the vehicle. In these circumstances, it is submitted that the 1st Respondent should not, at any rate, be made liable notwithstanding the fact that he had not entered appearance before the Tribunal to contest the proceedings and notwithstanding the fact that the 1st Respondent has not preferred any appeal. It is possible that the transferee, the real owner may have taken a comprehensive policy after transfer on 13/4/02 and the claimant himself would be benefitted if this Court were to send the matter back to the Tribunal, submits the learned Counsel for Respondent No. 1. The accident had taken place long after the date of transfer - i.e. 5/11/2002.

The learned Counsel for the Appellants/claimants submits that in the light of the document produced by the 1st Respondent which shows that the transfer of the vehicle to the name of the said Lakshamesh with effect from 13/4/02 has been entered in the records and registers maintained by the authorities under the Motor Vehicles Act, this Court may indulgently remand the case to the Tribunal for a fresh disposal permitting the 1st Respondent to raise his contention that he was not the owner of the vehicle at the relevant time.

Technically this contention of the 1st Respondent does not appeal to us. The 1st Respondent, who had not entered appearance before the Tribunal and had not raised the relevant contention, is now claiming exoneration in appeals preferred by the Appellants/claimants. Notwithstanding such contumacious lapses on the part of the 1st Respondent, we are satisfied that in the interests of justice the impugned order deserves to be set aside and the Tribunal deserves to be directed to dispose of the matter afresh. In coming to this conclusion, we feel that there has been a denial of justice notwithstanding the fact that the 1st Respondent was, to a great extent, responsible for such denial of justice to him. But it is pointed out that before the Tribunal also such document showing that he had ceased to be the owner with effect from 13/4/02 was sent by the 1st Respondent through registered post.

We are satisfied that the matter can be sent back to the Tribunal with direction to the Tribunal to dispose of the matter afresh after giving the 1st Respondent an opportunity to raise all the relevant contentions. For the luxury of such a further opportunity, we feel that the 1st Respondent must be mulcted with costs to compensate the claimants who have unnecessarily been obliged to contest the matter without the real and necessary parties on the party array.

In the result:

(a) These appeals are allowed in part.

(b) The impugned common award is set aside.

(c) The Motor Accidents Claims Tribunal, Pala, is directed to dispose of O.P.(MV) Nos. 318 & 319 of 2003 afresh in accordance with law after giving the 1st Respondent an opportunity to raise and substantiate all his contentions.

(d) Needless to say, the other contestants shall also be granted opportunity to adduce further evidence, if necessary.

(e) We direct the 1st Respondent to pay an amount of Rs. 5,000/- each as costs to the claimants/Appellants in these two O.P.(M Vs.).

(f) The Tribunal shall dispose of the matter afresh after impleading necessary parties, if any.

(g) The parties shall appear before the Tribunal on 16/8/2011 to continue the proceedings.

We record that costs have been paid by the 1st Respondent to the Appellants through counsel.