IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 387 of 2009(A) ---------------------- OPMV.1502/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S)/CLAIMANT: ------------------------------ RASHEED.P.K., S/O.MAYANKUTTY, PACHILAKKATTU HOUSE, KADIYANGAD PO., PERAMBRA VIA.,KOZHIKODE. BY ADV. SMT.K.V.RESHMI RESPONDENT(S)/ RESPONDENT : --------------------------------------- 1. N.V.BABU SURENDRAN, DWARAKA, MUNDOTTUPARAMBA, PO.KOTTOOLI, KOZHIKODE. 2. ORIENTAL INSURANCE CO.LTD., P.B.NO.27, SREENIDHI BUILDINGS NARAYANA NAGAR, BADAGARA. ADV. SRI.P.JAYASANKAR FOR R2 SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009 ALONG WITH MACA 1378/09 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 387 and 1378 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of September, 2009. J U D G M E N T The claimant a pillion rider to a motorbike bearing Reg.No.KL11/666/07 sustained injuries in a road accident when it collided with a scooter bearing Reg.No.KL-11/9077. The claimant had filed an application against the owner and insurance company of the scooter. The owner has raised the plea that the case is bad for non joinder. The insurance company further contended that the driver of the scooter did not have a valid driving licence and therefore it is entitled to be exonerated from the liability. The Tribunal awarded a compensation of Rs.30,000/- and directed the insurance company to pay the amount and get it reimbursed from the owner. The appellant has come up before this court for enhancement of compensation. There is an appeal preferred by the owner of the scooter also which is MACA 1378/09 challenging the quantum of negligence, the liability as well as the non impleadment of the parties. 2. Heard the learned counsel for all in both the M.A.C.A. NOs. 387 and 1378 OF 2009 -:2:- cases. At the out set I may like to state that the Tribunal had entered a finding of negligence on two riders without even hearing them or impleading them. Whether the rider of the motor cycle was negligent or scooter was negligent or both of them were negligent is a matter that requires determination by evidence after impleading them as parties before the Tribunal. The courts are not expected to pass orders without hearing the affected party and even without making them a party. Now the Apex Court has very clearly stated that in a case arising u/s 166 of he M.V.Act it is necessary to have the drivers as parties before the Tribunal. When there is a dispute who was negligent it is always desirable that the riders of both the vehicles, owners and the insurance companies are made as parties and the matter be decided after hearing all concerned by permitting them to produce materials before court. Since the matter is going back I think the Tribunal can have a fresh consideration on the question of quantum as well. The question of liability of the insurance company also can be considered along with the M.A.C.A. NOs. 387 and 1378 OF 2009 -:3:- same. Therefore the awards under challenge are set aside and the matter is remitted back to the Tribunal with the following directions. (1) The Tribunal shall permit the claimant to implead the driver of the scooter as well as the owner, driver and the insurance company of the motorcycle as necessary parties. (2) All are permitted to file additional written statements if they deem it necessary. (3) The Court shall consider the question of negligence and arrive at a finding regarding the same. (4) The Court shall also consider who are liable, what is their proportionate liability and who is liable to pay the amount. For the said purpose parties are 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. (5) Parties are directed to appear before the Court below on 17.11.2009. M.A.C.A. NOs. 387 and 1378 OF 2009 -:4:- (6) The question of adequacy of compensation also be determined afresh. M.N. KRISHNAN, JUDGE. ul/-