IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 1970 of 2005() ----------------------- OPMV.824/1996 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT/2ND RESPONDENT: -------------------------------------------------- UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, WHITE LINES BUILDING, KALLAI ROAD, KOZHIKODE. BY ADV. SRI.T.J.LAKSHMANAN IYER RESPONDENT(S): PETITIONER/1ST RESPONDENT: ----------------------------------------------------------------------------- 1. NARAYANI, W/O. THEYYO, AGED 55, RESIDING AT KAZHAPATTAMMAL HOUSE, ULLIYERI P.O., KOZHIKODE. (PETITIONR ON OP (MV) NO.824/96). 2. C. SREEKUMAR, S/O. R. RAMAN MENON, AGED 44, RESIDING AT POOLAKKAL THAZHAM HOUSE, WEST HILL, KACHERI AMSOM DESOM, KOZHIKODE. (1ST RESPONDENT IN O.P.(MV)NO.824/96). ADV. SRI.NIRMAL. S FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KSS M.N. KRISHNAN, J ----------------------- M.A.C.A.No.1970 OF 2005 --------------------------------- Dated this the 10th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Additional Motor Accident Claims Tribunal, Kozhikode in O.P.(MV) No.824/96. The claimant, a lady aged 55 years, sustained injuries in a road accident and the Tribunal awarded a sum of Rs. 11,500/-. The Tribunal while entering the question regarding the negligence had observed that though there was a charge under Sections 279 and 338 IPC and under Section 134 (b) r/w Section 187 of the Motor Vehicles Act as the Insurance Company did not produce any documents regarding the conviction, the Tribunal found negligence against the rider. Unfortunately this is a case where the rider has not been made a party at all. The Apex Court had held that being an application under Section 166 of the Motor Vehicles Act where negligence is a fact to be looked into the driver also has to be made to a party. Further the Tribunal did not advert its mind at all to the specific contention in the written statement regarding the non possession of the driving licence by the rider. So the matter requires detailed consideration on that point. But at any rate the M.A.C.A.No.1970 OF 2005 -2- absence of driving licence will only amount to breach of policy condition and then the question to be considered is right of recovery. Therefore I feel, the matter can be remanded back to the Tribunal with a direction to implead the rider and entered to a finding on the question of the driving licence. For that purpose junction of the claimant is not really necessary. Therefore the Insurance Company may have to implead the rider as well. The Insurance Company is permitted to implead if it is able to get the address of the rider and then also produce documentary as well as oral evidence in support of their respective contentions. Parties are directed to appear before the Tribunal on 19.12.2008. M.N. KRISHNAN, JUDGE vkm