IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 MACA.No. 1687 of 2009() ---------------------------------- OPMV.2014/2005 of PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): CLAIMANT ---------------------- NAVASAS S/O. KUNHABDULLA, AGED 29 YEARS POOLAYUTTATHIL HOUSE, CHENOLI.P.O., PERAMBRA VIA VALOOR, KOZHIKODE DIST. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): -------------------------- 1. MUHAMMED FOWZEER, S/O. KUTTYHASSAN, PLEASANT HOUSE, 32/1781, THALIPARAMBA, P.O.CHELAVOOR, KOZHIKODE. 2. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE SEEMA BUILDING, G.H.ROAD, KOZHIKODE. R2 BY ADV. MR.TITUS MANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN,J. ======================== M.A.C.A.Nos.1687 OF 2009 ======================== Dated this the 12nd day of March 2010. JUDGMENT This is an appeal preferred against the award of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV). No.2014/2005. The claimant a rider of motor cycle sustained injuries when it hit against an auto rickshaw resulting in injuries to him. The driver of the auto rickshaw was not impleaded as a party and even without seeing the scene mahazar or any particulars, the Tribunal found the contributory negligence at 50% but reduced to 20%. If the Tribunal was not happy in not impleading the driver, the petition should have been dismissed for non jointer of necessary parties or it should have directed the claimant to implead the driver and in default should have proceeded accordingly. But without any materials on the question of negligence, it was improper to fix the negligence at the 50% and then without any reason reducing to 25% at final stage of passing of award. 2. So far as the quantum is concerned since the matter has to go back let there be a fresh consideration regarding M.A.C.A.Nos.1687 OF 2009 2 quantum. Therefore, award under challenge is set aside and matter is remitted back to the tribunal for the following:- 1. The appellant herein is directed to implead the driver of the auto rickshaw as a party and in default the petition be dismissed for not impleading the auto rickshaw driver. 2. Let the appellant produce relevant documents and adduce evidence to prove case of negligence put forward by him. 3. Necessary opportunities be given to the other side as well to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 19.4.2010. Let the claimant take notice to the other parties for the proper disposal of the matter. M.N.KRISHNAN,JUDGE. mns