IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 MACA.No. 1191 of 2008(C) ------------------------------------- [O.P(MV).NO.1728/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA] .................... APPELLANT/3RD RESPONDENT: ---------------------------------------------- THE NEW INDIA ASSURANCE CO. LTD., REP. BY THE DY.MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 RESPECTIVELY: ---------------------------------------------------------------------------------------------------- 1. DEVASYACHAN, S/O. JOSEPH, CHIRACKAL HOUSE, MULLACKAL, ALAPPUZHA. 2. M/S. ROYAL BUS SERVICE, 9TH RAJA MILL ROAD, POLLACHI-642 001. *(DELETED) *NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT. 19/08/2010 IN I.A. 2170/2010. 3. JAYAKUMAR, S/O. VENKITACHALAM, DOOR NO.7, PALAKKAD ROAD, POLLACHI. R1 BY ADVS. SRI.S.SANAL KUMAR, SMT.BHAVANA VELAYUDHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 1191/2008-C: ORDER ON I.A. NO. 1405/2008 IN M.A.C.A. NO.1191/2008-C DISMISSED 20/12/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.1191 OF 2008 ............................................. Dated this the 20th day of December, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Alappuzha in OP(MV)No.1725/2002. The claimant, a passenger in a car, sustained injures and he has been awarded a compensation of ` 11,500/= and the 3rd respondent insurance company is directed to deposit the amount. It is against that decision, the insurance company has come up in appeal. 2. Heard the learned counsel appearing for the appellant as well as the claimant. From the nature of the award, I feel it requires interference for the following reasons: At the outset it has to be stated that the driver has been deleted from the party array and a finding under Section 166 of the Motor Vehicles Act regarding negligence is found against him. It is improper and the Hon'ble Supreme Court has held that the driver has to be a party in such proceedings. Secondly, accident took place on account of a collision between the car and a tourist bus. 3. The learned counsel for the insurance company had produced a judgment of the magistrate court and he is also : 2 : M.A.C.A.NO.1191 OF 2008 relying upon the scene mahazer and contend for the position that the accident had taken place on the wrong side of the car. Unfortunately none of these materials are considered by the trial court and further, the claimant has also not chosen to implead the owner, driver and insurance company of the car which also may be necessary for a proper disposal of the case. 4. Therefore without expressing anything on merits, I set aside the award and remit the case back to the Tribunal with a direction to the claimant to implead the driver of the bus as well as to take out notice to the driver of the bus and also implead the driver, owner and insurance company of the car and thereafter be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law. Needless to say that the insurance company can also adduce evidence in support or their contentions. Parties are directed to appear before the Tribunal on 24.1.2011. Disposed of accordingly M.N. KRISHNAN, JUDGE. cl : 3 : M.A.C.A.NO.1191 OF 2008 : 4 : M.A.C.A.NO.1191 OF 2008 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 11th day of November, 2010. J U D G M E N T