IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 17^TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 MACA NO. 206 OF 2022 AGAINST THE ORDER/JUDGMENT IN OPMV 1863/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM APPELLANTS/RESPONDENTS 1 AND 2:

1 TOJO, AGED 39 YEARS S/O. THOMAS, KIDANGAYIL HOUSE, KISUMAM, KOLLAMULA, THULAPALLY (VIA), ERUMELI.

2 THOMAS, S/O. MATHEW, KIDANGAYIL HOUSE, KISUMAM, KOLLAMULA, THULAPALLY (VIA), ERUMELI.

BY ADVS. A.K.ALEX P.KURUVILLA JACOB RESPONDENT/S: 1 JAMEELA W/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT C/O. SULFICAR, PULICKAL PARAMBIL HOUSE, PUTHANANGADI, KOTTAYAM -686001.

2 SHAHUL NOUFAL RAWTHER, S/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM-686509.

3 KHADEEJA REJIMON, D/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT THOPPIL THAZHE HOUSE, ERUMELI SOUTH P.O., KOTTAYAM-686510.

4 FATHIMA, D/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT PULICKAL PARAMBIL HOUSE, PUTHANANGADI, KOTTAYAM-686001.

5 THE ORIENTAL INSURANCE COMPANY LIMITED, BAKEL JUNCTION, KOTTAYAM RANNI BRANCH, KOTTAYAM-

686001, REPRESENTED BY ITS MANAGER.

BY ADV P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The appellants were the respondents 1 and 2 in O.P (MV)

No.1863/2017 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents 1 to 4 in the appeal were the petitioners and the 5^th respondent was the 3^rd respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal.

2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short, 'Act'), claiming compensation on account of the death of Motheen Rawther @ Afsi (deceased), the son of the 1^st petitioner and brother of the petitioners 2 to 4. It was their case that, on 23.03.2016, while the deceased was riding his scooter bearing registration No.KL-34C 5924 through the Karinkallummoozhy- Erumely road, a van bearing registration No.KL-62A-684, driven by the 1^st respondent in a negligent manner, hit the scooter of the deceased. The van was owned by the 2^nd respondent and insured with the 3^rd respondent. The deceased was running a restaurant. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.25,00,000/- from the respondents.

3. The respondents 1 and 2 did not file any written statement.

4. The 3^rd respondent had filed a written statement, contending that the petitioners were not the dependents of the deceased. The 3^rd respondent also disputed the age, income and occupation of the deceased. It was also stated that the accident was caused due to the negligence of the deceased.

5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3^rd respondent an amount of Rs.18,93,400/- with interest and cost. However, since the 2^nd respondent did not produce the fitness certificate of the van, the Tribunal following the principles laid down by a larger Bench of this Court in Pareed Pillai vs. Oriental Insurance Company Ltd. [2018 (5) KHC 1] permitted the 3^rd respondent to pay the compensation amount and recover it from the respondents 1 and 2.

6. Aggrieved by the direction in the impugned award, permitting the 3^rd respondent to recover the compensation amount from the respondents 1 and 2, the respondents 1 and 2 are in appeal.

7. Heard; Sri. A.K. Alex, the learned counsel appearing for the appellants/respondents 1 and 2 and Sri. P.K. Manojkumar, the learned counsel appearing for the 5^th respondent-insurer. As the appeal is filed only with regard to right of recovery granted to the 5^th respondent, service of notice on the respondents 1 to 4 was dispensed with.

8. The point that arises for cons