IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 MACA.No. 1062 of 2006() ---------------------------------- OP(MV)712/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: --------------------------------------- SUNNY, S/O. JOSEPH, KANNADAN HOUSE, NADUKANI P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENTS 2 & 3 AND ADDITIONAL RESPONDENTS: --------------------------------------------------------------------------------- 1. K.K. LAKSHMI, W/O. CHELLAPPAN (EXPIRED) SREEBHAVAN, THUKUPALAM, KALLAR P.O. (VIA), MUNNAR, IDUKKI DISTRICT. 2. THE ORIENTAL INSURANCE CO. LTD., ELANJICKAL PLAZA, KOTHAMANGALAM. 3. MR. CHELLAPPAN, SREEBHAVAN, NEAR THRIPUNITHURA TEMPLE,KALAMPOOR, ENANALLOOR P.O., MUVATTUPUZHA. 4. DR. PADMAKUMAR, S/O. LATE LAKSHMI, SREEBHAVAN, NEAR THRIPUNITHURA TEMPLE, KALAMPOOR, ENANALOOR P.O., MUVATTUPUZHA. ADV. SRI.M.V.THAMBAN FOR R3 & R4 SRI.R.REJI FOR R3 & R4 SRI.B.BIPIN FOR R3 & R4 SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/1/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1062 OF 2006 --------------------------------- Dated this the 14th day of January, 2009 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(MV) No.712/02. The claimant sustained injuries in a road accident when he was knocked down by a motor cycle. The rider of the bike was the 1st respondent. Notice to the 2nd respondent in the claim petition was published in Mangalam daily and notice issued by post returned with an endorsement 'expired'. But in spite of the same, the claimant did not implead the legal heirs of the said 2nd respondent. The tribunal after consideration of the materials held that the accident took place on account of the 1st respondent and a an amount of Rs. 22,400/- was quantified as compensation. It also found that the Insurance Company is not liable to pay the compensation. But dismissed the application on the ground that the legal representatives of the owner of the vehicle has not been impleaded. It is against that decision the claimant has come up in appeal. 2. In the appeal the legal representatives of the deceased Lakshmi who was impleaded as the 2nd respondent in the petition M.A.C.A.No. 1062/2006 -2- has been impleaded as respondents 3 and 4. The tribunal was right when it held that the owner is a necessary party to the proceeding. When a tortious liability arises the master is vicariously liable for the act of the servant and case of indemnification arises only when there is an order directing the owner to pay the amount. So the junction of the owner is absolutely necessary in a claim case. It is true that unfortunately the legal representatives of deceased Lakshmi were not impleaded before the trial court which resulted in the dismissal of the case. I am informed that the impleading petitions were filed as I.A. 4849/05 etc. and it remains un disposed. Now as the legal representatives are on the party array in this appeal and as their junction is absolutely necessary, it is desirable that an opportunity must be given to the claimant to implead them as parties. When the legal representatives appear they are at liberty to file list and the said contentions are to be considered. Or in other words the determination of the compensation in this case is without the junction of the proper owner and therefore it also requires consideration at the hands of the court. It is submitted that the amount awarded is inadequate. This is also a matter that can be looked into and even the question of the liability of the M.A.C.A.No. 1062/2006 -3- Insurance Company be considered if materials are available. 3. In the result the appeal is allowed and the award passed by the tribunal is set aside on all aspects and the matter is remitted back to the trial court for fresh consideration after affording an opportunity to the claimant to implead the legal representatives of deceased Lakshmi and formal application be sufficient for the reason that they are already in the party array in the appellate court. They can even appear on the date given so that further protraction can be averted and the formality of impleadment be done by the claimant. Thereafter permit those persons to file a written statement and after framing appropriate issues the tribunal is to permit the parties concerned to produce evidence both in the form of oral and documentary and then dispose of the matter in accordance with law. Parties are directed to appear before the tribunal on 25.2.2009. M.N. KRISHNAN,JUDGE vkm