1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.874 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Branch Manager, M/s.United India Insurance Co. Ltd., Micro Office, 164/C, Panchayat Union Road, Valliyur, Tirunelveli District. .. Appellant/2nd Respondent Vs. 1.Anthonyammal .. Respondent/Claimant 2.Kalaiselvi .. Respondent/1st Respondent Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 04.01.2011 passed in M.C.O.P.No.59 of 2009 by the Motor Accidents Claims Tribunal/Principal Sub Court, Tirunelveli. For Appellant .. Mr.B.Rajesh Saravanan For Respondents .. No appearance JUDGMENT The award dated 04.01.2011 passed in M.C.O.P.No.59 of 2009 by the Motor Accidents Claims Tribunal/Principal Sub Court, Tirunelveli is being challenged in the present Civil Miscellaneous Appeal. 2. The first respondent herein as petitioner has filed M.C.O.P.No.59 of 2009 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.5,00,000/- by way of compensation, wherein the present appellant has been shown as second respondent. 3. It is stated in the petition that on 27.06.2008 at about 03.45 p.m., the petitioner has travelled in an auto bearing Registration No.74-E- 0691. At that time, the two wheeler bearing Registration No.TN-74-H-5987 has been driven in rash and negligent manner and dashed against the auto, in which the petitioner has travelled. Due to accident, the petitioner has sustained multiple injuries including fractures. Under the said circumstances, the present petition has been filed for getting compensation. 4. In the counter filed on the side of the second respondent, it is stated that the owner of the auto has not been impleaded as one of the respondents and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record the Motor Accidents Claims Tribunal has awarded Rs.75,000/- by way of compensation. With regard to liability as well as quantum, the present Civil Miscellaneous Appeal has been preferred at the instance of the second respondent as appellant. https://hcservices.ecourts.gov.in/hcservices/ 2 6. Even though, the respondents have been served with the summonses, appearance has not been made. Under the said circumstances, the present Civil Miscellaneous Appeal is disposed of on merits on the basis of the contention urged on the side of the appellant/second respondent. 7. The learned counsel appearing for the appellant/second respondent has repeatedly contended that the specific case of the petitioner is that he travelled in the auto bearing Registration No.TN-74-E-0691 and at that time the two wheeler bearing Registration No.TN-74-H-5987 has been driven in rash and negligent manner and dashed against the auto, in which he travelled and due to that he sustained multiple injuries and the owner of the two wheeler as well as insurer have not been impleaded in the present petition, but the Motor Accidents Claims Tribunal without considering the contention putforth on the side of the petitioner has erroneously fixed liability upon the respondents 1 and 2 and therefore the liability fixed by the Motor Accidents Claims Tribunal is totally erroneous and consequently the entire award passed by the Motor Accidents Claims Tribunal is liable to be set aside. 8. For considering the submission made on the side of the appellant/second respondent, the Court has to look into the averments made in the petition. 9. It is stated in the petition that on the date of accident, the petitioner has travelled in the auto bearing Registration No.TN-74-E-0691 and at that time the two wheeler bearing Registration No.TN-74-H-5987 has been driven in rash and negligent manner and dashed against the auto, in which the petitioner has travelled and due to that he sustained multiple injuries. Therefore it goes without saying that the owner of the two wheeler as well as insurer must be impleaded in the present petition. Further it is not the case of the petitioner that due to rash and negligent driving of the driver of the auto, the accident in question has happened and under the said circumstances, the owner of the auto as well as insurer have been impleaded as respondents. 10. On the side of the second respondent Ex.R.1 has been marked. Ex.R.1 is the Insurance Policy relating to the vehicle bearing Registration No.TN-74-E-0691 and the same is nothing, but the auto in which the petitioner has travelled. Since the specific contention putforth on the side of the petitioner is that the entire accident has happened only due to rash and negligent driving of the driver of the two wheeler bearing Registration No.TN-74-H-5987 and since the owner of the two wheeler and its insurer have not been impleaded in the present petition, the entire award passed by the Motor Accidents Claims Tribunal is liable to be set aside and the matter is liable to be remitted to the file of the Motor Accidents Claims Tribunal. 11. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.59 of 2009 by the Motor Accident Claims Tribunal/Principal Sub Court, Tirunelveli is set aside and M.C.O.P.No.59 of 2009 is remitted to the file of the Motor Accident Claims Tribunal/Principal Sub Court, Tirunelveli. The petitioner is directed to implead the owner as well as insurer of the two wheeler bearing Registration No.TN-74-H-5987. The Motor Accidents Claims Tribunal/Principal Sub Court, Tirunelveli is directed to dispose of https://hcservices.ecourts.gov.in/hcservices/ 3 M.C.O.P.No.59 of 2009 on the basis of merit before the end of October, 2011 and report the same to the Registry without fail. The appellant/second respondent is at liberty to file additional documents. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(W) /True copy/ Sub Assistant Registrar(CS) To The Motor Accident Claims Tribunal/ Principal Subordinate Judge, Tirunelveli. +1 CC to Mr.B.Rajesh Saravanan, Advocate, Sr.No.27055 +1 CC to Mr.A.R.Jeyarhuthran, Advocate, SR.No.27210 Copy to : 1.The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. (for collecting the report) 2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. smn C.M.A(MD)No.874 of 2011 and M.P(MD)No.1 of 2011 10.08.2011 TR : 19.08.2011 : 3p/6c https://hcservices.ecourts.gov.in/hcservices/