The revision petitioners are the newly impleaded parties as legal representatives of the deceased insured of the vehicle, E.M.Kandasamy, who was arrayed as the first respondent in M.C.O.P.No.3952 of 1996 on the file of the Motor Accidents Claims Tribunal(IV Judge, Court of Small Causes), Chennai.

2. The revision is filed challenging the correctness of the order of the Tribunal dated 10.12.2004 in M.P.No.2304 of 2004 in the said claim petition after remand by this Court. The said petition was filed by the first respondent herein, the Insurance Company to implead the revision petitioners herein as the legal representatives of the deceased first respondent in the Claim Petition, viz., E.M.Kandasamy, the insured, which petition was allowed and aggrieved against such order, the revision petitioners have filed this revision.

3. The second respondent herein has filed the claim petition in M.C.O.P.No.3952 of 1996 on 24.7.1995 claiming compensation in respect of the injuries sustained by him in the road accident that took place on 14.5.1995 at 6.00 p.m. in the railway over bridge, 100 Feet Road, North Madras Thermal Station, Ennore, Madras. At the time of accident the claimant/2nd respondent was working as Coffee Planter (Karupanchai Coffee Estate, Agamalai) and Part-time Computer Assistant at Data India for Computers at Alagaraja Buildings, Periakulam Road, Theni. At the time of accident, the claimant travelled as a passenger in auto-rickshaw and during that time, the lorry bearing registration No.MDM 4669 owned by the deceased first respondent in M.C.O.P. came in the opposite direction and hit against the auto-rickshaw causing the accident, in which the claimant sustained injuries and permanent disability and so he filed the claim petition claiming compensation of Rs.1,18,50,000/-, but restricted the same to Rs.36,50,000/-.

4. It appears, the notice sent through Court to the deceased first respondent E.M.Kandasamy in the claim petition was returned unserved on 17.3.1998 with endorsement as "Respondent no residence. Hence not served". The notice sent through R.P.A.D. was also returned unserved on 2.9.1997 with postal endorsement as "Left, return to sender" and another notice sent through R.P.A.D was also returned unserved on 24.12.1997 with postal endorsement as "Insufficient address. Not known. Return to sender". After publication was effected in Tamil Daily "Madurai Mani" for the hearing date 24.4.1998 and since on that date he did not appear, he was set ex parte.

5. The claim petition was resisted in the counter and additional counter filed by the Insurance Company, who is arrayed as second respondent in the claim petition, denying that the accident occurred due to rash and negligent driving of the driver of the lorry bearing registration No.MDM 4669 owned by the deceased first respondent E.M.Kandasamy. It is further denied that there was valid insurance policy for the vehicle on the date of accident. However, it is not denied that at the time of accident the said lorry was not insured with the insurance company.

6. The Tribunal considering the evidence let in on both sides, determined the compensation payable to the claimant at Rs.44,00,000/- with interest at 9% and as per award it was directed that the claimant can withdraw the sum of Rs.14,00,000/- towards urgent medical expenses. The award was challenged by the Insurance Company in C.M.A.No.1896 of 2004 and the claimant also filed Cross Objection No.41 of 2004. A Division Bench of this Court as per judgment dated 16.9.2004, which is also reported in 2004 CTC 161, partly allowed the Appeal and the Cross Objection that the lorry bearing registration No.MDM 4669 had involved in the accident and the accident took place only due to the rash and negligent driving of the driver of the said lorry. It is also held that the claimant is entitled to a sum of Rs.1,00,000/- towards pain and suffering, instead of Rs.25,000/- as awarded by the Tribunal and also enhanced the amount of Rs.25,000/- awarded by the Tribunal towards personal assistance to Rs.1,00,000/- and also awarded a sum of Rs.1,60,000/- towards loss of income as a trainee in the Computer Company and confirmed the findings of the Tribunal in awarding a sum of Rs.1,00,000/- towards permanent disability and set aside the amounts fixed towards loss of income and medical expenses, past and future, including the cost of wheelchair by the Tribunal and remitted the matter to the Tribunal to decide the quantum towards loss of income on the basis of observations made in the judgment and also the medical expenses referred to in the judgment on the basis of evidence, giving liberty to parties to adduce additional evidence and making clear that the remand is only to decide these aspects and also stating that the claimant is entitled to the interest for the compensation as fixed by the Tribunal. Accordingly allowed the Appeal and Cross-Objection and the matter was remitted only for the purpose as mentioned in the judgment. The Tribunal, therefore, directed to dispose the claim petition within one month from the date of receipt of a copy of the judgment without seeking further extension of time.

7. The Division Bench of this Court dismissed the Miscellaneous Petitions by separate orders on the same day filed by the Insurance Company, viz., C.M.P.No.15012 of 2004 seeking to suspend the order dated 2.9.2004 passed in C.M.P.No.12122 of 2004 in C.M.A.No.1896 of 2004; C.M.P.No.15013 of 2004 seeking permission to raise additional grounds in C.M.A.No.1896 of 2004 and also C.M.P.No.15194 of 2004 seeking permission to produce the paper advertisement in "Daily Thanthi", Salem Edition dated 23.7.2004 and for production of the death certificate of the owner E.M.Kandasamy issued by the Sub Registrar, Ammapettai as additional evidence, stating that in the counter and additional counter filed before the Tribunal no such plea was raised and even under Ex.R-5 filed in M.C.O.P., the report filed by the Investigator appointed by the Insurance Company, nothing has been stated about the fact that the insured E.M.Kandasamy, who is arrayed as second respondent in C.M.A.No.1896 of 2004 and who is the owner of the lorry, died even in 1991, and after disposal of M.C.O.P. on 30.4.2004 and after hearing the arguments, when the C.M.A.1896 of 2004 was posted for judgment, the Insurance Company came with the said applications in which arguments were made only on the basis that the owner was alive and vehicle was covered with valid licence. It is observed in the said order that the insurance company issued a policy to the vehicle in question, viz., MDM 4669 and on the date of accident, the policy was in currency and no explanation was given in the affidavits filed, how the Insurance Company issued such a policy without even verifying as to whether the insurer was alive or not and it cannot be said that the policy was obtained by the non-disclosure of a material fact as per Section 149(6) of the Motor Vehicles Act, 1988 and that sufficient facts are not available to hold that the policy is void under Section 149(2) of the. It was further observed that having issued an Insurance Policy to the vehicle in question after satisfying the requirements and proceeded with the M.C.O.P. and C.M.A. on the basis that valid policy was issued in favour of the insured at the time of delivery of judgment in C.M.A.No.1896 of 2004, the Insurance Company cannot be allowed to come forward with the said applications. Further it is also observed that it is for the Insurance Company to raise the said issue before the Tribunal for the purpose of getting liberty to recover the award amount from the owner or from his property. Inasmuch as the claimant cannot be deprived of getting compensation from the Insurance Company as the Insurance Company has issued policy with respect to the vehicle in question and if the Insurance Company is entitled to recover the amount from the owner or from his property, such a direction has to be obtained from the Tribunal as the matter has been remitted back to the Tribunal.

8. After the remand of the matter, the Insurance Company filed M.P.No.2304 of 2004 to implead the legal representatives, viz., the revision petitioners herein as respondents 3 to 5 in the claim petition and stating that the Division Bench of this Court permitted the Insurance Company to raise the issue before the Tribunal since the matter has been remitted back to the Tribunal and if the Insurance Company is entitled to recover the amount from the owner or from his property, such a direction is to be obtained from the Tribunal itself.

9. The said petition was resisted by the claimant. As regards the proposed respondents 3 to 5, viz., the revision petitioners herein, the Tribunal accepting the case of the Insurance Company and as per the directions given by the Division Bench of this Court allowed the petition filed to implead the revision petitioners herein as respondents 3 to 5 in the claim petition being the legal representatives of the deceased first respondent, the owner of the lorry which caused the accident, in which the claimant sustained injuries. The order is challenged in this revision by the newly added respondents 3 to 5 as the legal representatives of the deceased E.M.Kandasamy.

10. The learned counsel for the revision petitioners argued that the revision petitioners, who are ordered to be added as respondents 3 to 5 in M.C.O.P., are not necessary and proper parties and that since the Division Bench of this Court in disposing the C.M.A.No.1896 of 2004 and Cross Objection No.41 of 2004 upheld the validity of the Insurance Policy, no liability can be fastened on the owner of the vehicle and if the owner is not liable, the legal representatives of the owner cannot be impleaded. For the very same reason that the validity of insurance policy had been upheld, the Insurance Company is not entitled to recover any amount from the owner of the vehicle or from his property. It is also submitted by the learned counsel that the contentions raised by the Insurance Company in M.P.No.2304 of 2004 for impleading the revision petitioners that the Insurance Policy was obtained in the name of a dead person and as such, the policy itself is null and void and the Insurance Company is entitled to recover the money from the owner of the vehicle, have been rejected and as such, the said finding by the Division Bench of this Court has become final and hence it is not open to the Insurance Company to come forward with the impleading Petition. The learned counsel further contended that inasmuch as the Insurance Company has given up the owner of the vehicle in C.M.A.No.1896 of 2004, the Insurance Company is estopped from impleading the revision petitioners as legal representatives of the deceased, viz., the owner of the vehicle or to fasten the liability on the estate of the owner. The learned counsel further submitted that the matter is remitted back to the Claims Tribunal only for quantification of the amount. The learned counsel for the revision petitioners relied on the following decisions:-

(1) Konnappa Mudaliar - vs. - Kusalaru alias Munuswami Pillai and others reported in A.I.R. 1970 Madras 328, in which this Court has held:-

"It is not open to the lower Court, when an appellate Court remands the case to it, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with law. It cannot apply what it might consider the correct position of the law."

(2) Haji Zakaria and others - vs. - Naoshir Cama and others reported in A.I.R. 1976 Andhra Pradesh 171, in which a Division Bench of Andhra Pradesh High Court has held thus:-

"Take note of Section 102 which says that the death of a person, in whose favour a certificate of Insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer."

"Going by the provisions of the, we are unable to contribute to the view that with the death of the person in whose favour the Certificate of Insurance has been given, the liability of the insurer ceases to exist though the period of insurance is running on the date of the accident."

(3) The State Trading Corporation of India Limited - vs. - K.V.Vaidyalingam and others reported in 1978-I M.L.J. 345, in which, this Court has held that the suit against the dead person is a nullity and if so, Order 22, Rule 4 C.P.C. cannot be invoked for the purpose of impleading the legal representatives of the deceased as parties to the suit.

(4) Nani Bai and others - vs. - Ishaque Khan and others reported in 1995 ACJ 292 [LQ/MPHC/1993/409] , in which a Division Bench of the Madhya Pradesh High Court, following the judgment of the Andhra Pradesh High Court in Haji Zakaria - vs. - Naoshir Cama(1976 ACJ 320 [LQ/TelHC/1975/51] ), held thus:-

"In our considered opinion, therefore, despite the fact that Kartar Singh was dead at the time of accident and the premium was paid by his legal heirs, the insurance company is liable to pay compensation to the heirs of the deceased and to the injured in the accident. If they are aggrieved by the concealment of fact or misrepresentation or fraud, if any, they can make a grievance before the appropriate forum separately, but they cannot escape their liability of payment of compensation by raising this bogey of agreement being void."

11. The learned counsel for the first respondent/Insurance Company by referring the common order of Division Bench of this Court in C.M.P.Nos.15012, 15013 and 15194 of 2004 in C.M.A.No.1896 of 2004 and Cross Objection No.41 of 2004, in which it is observed that if the Insurance Company is entitled to recover the amount from the owner or from his property, which direction is to be obtained from the Tribunal itself and since the matter was remitted back to the Tribunal, that issue can be raised before the Tribunal. The above order is passed in C.M.P.No.15194 of 2004 seeking permission to produce the paper advertisement in Daily Thanthi, Salem Edition dated 23.7.2004 and seeking to produce the death certificate of the insured, E.M.Kandasamy issued by the Sub Registrar, Ammapettai as additional evidence and who has been made as first respondent in the claim petition. Pursuant to such order, the Insurance Company filed M.P.No.2304 of 2004 to implead the legal representatives of the deceased E.M.Kandasamy, the owner of the vehicle involved in the accident, in which the claimant suffered injury and disability. Further, the learned counsel by referring Sections 155 and 156 of the Motor Vehicles Act, argued that since the insurance policy was issued to the owner of the vehicle, viz., E.M.Kandasamy, who died in 1991 itself, even before the policy was taken in his name in respect of the vehicle involved in the accident, the Insurance Company is entitled to recover the amount payable by way of compensation to the claimant, from the revision petitioners, who are the legal representatives of the insured, the deceased E.M.Kandasamy, who was arrayed as the first respondent in the claim petition. The learned counsel further submitted that inasmuch as the owner of the vehicle Kandasamy died as early as in 1991 and in whose name the Insurance Policy had been taken, it is for the claimant who ought to have amended the claim petition impleading the legal representatives. The learned counsel further contended that inasmuch as the Insurance Policy was taken in the name of a dead person, subsequent to the death as early as in 1991, the Insurance Policy is void and therefore, the Insurance Company is not liable to pay compensation. In support of such contention, the learned counsel for the Insurance Company relied on the following decisions:-

(1) State Trading Corporation of India Limited - vs. - K.V.Vaidyalingam and others reported in 1978-I M.L.J. 345, in which this Court has held thus:-

"It is one thing to file an application to implead certain parties as to a suit in the place of a deceased party under Order 22, Rule 4, Civil Procedure Code, and it is entirely another thing to file an application to implead a new party, because the rights of parties will not be the same. When a legal representative is brought on record under Order 22, Rule 4 of the Code his status and rights will be the same as that of the person who died in whose place he has come on record, while the right and obligation of a person impleaded as a party under Order I, Rule 10, Civil Procedure Code, will not be so circumscribed but will be different and independent."

(2) Mohamed Ibrahim and others - vs. - Chellammal reported in 1991-I M.L.J. 334, in which this Court has held that if the appeal is filed after the death of the defendant without impleading the legal representatives, in such case, the remedy of the appellant is to get the cause title amended and if it is within time to file the appeal against the legal representatives.

(3) George P. Varghese and another - vs. - G.Daniel and others reported in AIR 1998 Kerala 120, in which a Division Bench of the Kerala High Court (consisting AR.LAKSHMANAN,J., as He then was) has held that the insurance policy obtained by the owner on the evening and the accident caused in the morning and by suppressing the fact of accident, such policy and contract of insurance is void and Insurance Company has no liability to pay compensation.

12. The learned counsel for the second respondent/claimant argued that the common order of the Division Bench of this Court in C.M.P.Nos.15012, 15013 and 15193 has become final, in which it is held thus:-

"It is not in dispute that the Insurance Company has issued a policy to the vehicle in question, viz., MDM 4669 and on the date of accident, the policy was in currency. No explanation is given in the affidavits filed, how the Insurance Company issued such a policy without even verifying as to whether the insurer was alive or not. It cannot be said, the policy was obtained by the non-disclosure of a material fact as per Section 149(6) of the Motor Vehicles Act, 1988. Sufficient facts are not available to hold that the policy is void under Section 149(2) of the. Having issued an Insurance Policy to the vehicle in question after satisfying the requirements and proceeded with the O.P. and the C.M.A. on the basis that the valid policy was issued in favour of the insurer, at the time of delivering judgment in C.M.A. the petitioner cannot be allowed to come forward with the present applications."

The learned counsel for the second respondent/claimant further submitted that the insured was given up in the Cross Objection, and inasmuch as Cross Objection has been allowed, it is not open to the Insurance Company to question the liability with regard to the payment of compensation.

13. In the common order in C.M.P.Nos.15012, 15013 and 15194 of 2004, Division Bench of this Court has already held that it is not open to the Insurance Company to dispute the liability for payment of compensation to the claimant, inasmuch as the insurance policy was issued to the vehicle in question after satisfying the requirements and proceeded with the O.P. and C.M.A. on the basis that the valid policy was issued in favour of the insured and sufficient facts are not available to hold that the policy is void under Section 149(2) of the Motor Vehicles Act to say that the policy was obtained by the non-disclosure of the material fact as per Section 149(6) of Motor Vehicles Act. Further, it is observed in the common order that if the Insurance Company is entitled to recover the amount from the owner or from his property, such direction is to be obtained from the Tribunal to whom the matter has been remitted back. Therefore, it is clear, in view of such observations made by the Division Bench of this Court in the common order dated 16.9.2004, for the purpose of recovering the amount payable by way of compensation to the claimant by the Insurance Company from the owner or from his property, necessarily the legal representatives of the owner of the vehicle, the deceased Kandasamy have to be impleaded. From and out of the property succeeded by the legal representatives of the insured, the Insurance Company is entitled to recover, in that the owner of the vehicle died as early as in 1991 and before the accident that took place on 14.5.1995 and since the insurance policy was taken in his name.

14. It appears, the notice sent through Court to the deceased first respondent E.M.Kandasamy in the claim petition was returned unserved on 17.3.1998 with endorsement as "Respondent no residence. Hence not served". The notice sent through R.P.A.D. was also returned unserved on 2.9.1997 with postal endorsement as "Left, return to sender" and another notice sent through R.P.A.D was also returned unserved on 24.12.1997 with postal endorsement as "Insufficient address. Not known. Return to sender". After publication was effected in Tamil Daily "Madurai Mani" for the hearing date 24.4.1998 and since on that date he did not appear, he was set ex parte.

15. Further, the legal representatives did not choose to implead them on the death of the owner of the vehicle E.M.Kandasamy. A Division Bench of this Court in C.M.P.Nos.15012, 15013 and 15193 of 2004 has already held that it is not open to the Insurance Company to dispute the liability in payment of compensation to the claimant, inasmuch as the insurance policy was issued to the vehicle in question after satisfying the requirements and proceeded with the O.P. and C.M.A. on the basis that the valid policy was issued in favour of the insured and sufficient facts are not available to hold that the policy is void under Section 149(2) of the Motor Vehicles Act and to say that the policy was obtained by the non-disclosure of the material fact as per Section 149(6) of Motor Vehicles Act. Further, it is observed in the order that if the Insurance Company is entitled to recover the amount from the owner or from his property, such direction is to be obtained from the Tribunal to whom the matter has been remitted back. In that view, it is not open to the Insurance Company to contend that the award passed by the Claims Tribunal is a nullity.

16. The judgment rendered by the Kerala High Court in AIR 1998 Kerala 120(cited supra) is on different footing, wherein the Insurance Policy was obtained in the evening by suppressing the accident which took place in the morning. But here, the Insurance Policy was issued in the name of E.M.Kandasamy by the Insurance Company without even verifying as to whether the insured was alive or not and therefore, it is futile to contend that the insurance policy is void under Section 149(2) of the Motor Vehicles Act or to say that the policy was obtained without disclosing the material facts as per Section 149(6) of the Motor Vehicles Act. Inasmuch as it has been observed by the Division Bench of this Court that if the Insurance Company is entitled to recover the amount from the owner or from his property, such a direction is to be obtained from the Tribunal itself, the legal representatives of the owner of the vehicle are necessary parties. Therefore, the argument advanced for the revision petitioners that the Insurance Company is not entitled to recover from the revision petitioners, viz., newly added respondents 3 to 5 in the claim petition as legal representatives of the owner of the vehicle is without any force.

17. It is settled that in such cases, the Insurance Company is liable to pay the compensation amount to the claimant and in turn recover the same from the owner or from his property and on the death of the owner from the property left out by him and in the hands of his legal representatives, in the same proceedings of the claim petition. The Tribunal by considering all these aspects in proper perspective manner rightly allowed the M.P.No.2304 of 2004 subject matter of this revision by impleading the legal representatives of the owner of the vehicle, who died in the year 1991 and before the date of accident and in whose name, the Insurance Policy was taken in respect of vehicle which caused the accident. Such order does not suffer from any infirmity. In that view, the order of the Tribunal is to be confirmed.

18. In the result, in the light of the discussions made above, the Civil Revision Petition fails and is dismissed, confirming the order dated 10.12.2004 in M.P.No.2304 of 2004 in M.C.O.P.No.3952 of 1996 passed by the Motor Accidents Claims Tribunal (IV Judge, Court of Small Causes), Chennai. No costs. Consequently, connected petition in C.M.P.No.9561 of 2005 is closed.