IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 MACA.No. 1076 of 2009() ----------------------- OPMV.741/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): ------------------------- THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD.,SREE HARI BUILDING, NEAR BUS STAND JN.,NEYYATTINKARA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV. MR.LAL GEORGE RESPONDENT(S): CLAIMANTS AND THE 1ST RESPONDENTS IN THE OP (MV) NO.741/03: -------------------------------------------------------------- 1. MANIKUTTAN, THIDUTHIDUPPANVILA VEEDU, PARANIYAM, POOVAR P.O. NEYYATINKARA. 2. GIRISH KUMAR, KUMARAMANGALAM, NEAR SPINNING MILL, BALARAMAPURAM P.O. NEYYATINKARA. R1 BY ADVS. MR.R.T.PRADEEP, MR.V.VIJULAL. R2 BY ADV. MR.J.HARIKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1387/2009 IN MACA NO.1076/2009 DISMISSED 18/11/2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1076 OF 2009 = = = = = = = = = = = = = = = Dated this the 18th day of November, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV)741/03. The claimant, a pillion rider of a scooter, sustained injuries in a road accident and had moved the Tribunal originally u/s 166 of the M.V.Act and later amended it one u/s 163-A and the Tribunal on a consideration of the materials awarded him a compensation of Rs.60,200/- with 7.5% interest and directed the insurance company to pay the amount. Aggrieved by that decision the insurance company has come up in appeal. 2. This Court is now confronted with a difficult situation for the reason that the junction of one Lawrence is really necessary to decide the case. One Girish Kumar is arrayed as the first respondent and the claim petitioner. He has filed a written statement especially contending in paragraph 4 therein that he had sold the vehicle namely the M.A.C.A. 1076 OF 2009 -:2:- scooter on 15.5.2002 to one Lawrence and therefore he does not have any interest or possession over the vehicle on the date of the accident which took place on 23.10.2002. This cannot said to be a suspicious conduct because a reference to the charge sheet also indicates that in July, 2002 the registration is changed in the name of Lawrence. The Tribunal should have directed the claimant to implead Lawrence as a necessary party for a proper adjudication of the case. So without him on the party array it may not be proper to decide the question of law between the owner and the insurance company. But in fairness I would submit the learned counsel for the insurance company had drawn my attention to the decision of the Hon'ble Supreme Court in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) wherein in paragraph 102(ii) the Apex Court has held that the defence u/s 149 is available to the Company even in a case u/s 163A. But to counter this point the learned counsel for the claimant had relied upon the decision of the Gujarat High Court reported in National Insurance Co. Ltd. v. Rukhshanaben Salimbhai Vora and another 2007 (7) ACJ 1235 wherein M.A.C.A. 1076 OF 2009 -:3:- the said Court held that when there is a non obstante clause u/s 163A the insurance company is not entitled to get such a defence. The matter has to be decided according to the enunciated principles after hearing Lawrence also. 3. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal and the claimant is directed to implead Mr. Lawrence as a party and thereafter permit him to file written statement and in case of any additional written statements to be filed by the other parties permit them to do so. Raise proper issues and also raise a specific issue regarding the ownership as well as liability of the insurance company and then decide the matter after permitting all sides to produce documentary as well as oral evidence in support of their contentions. Parties are directed to appear before the Tribunal on 17/12/09. If any amount is deposited by the insurance company let it be in the Court deposit till a decision is taken finally in this matter. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-