IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 MACA.No. 1814 of 2009() ----------------------- OPMV.2542/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER: -------------- RANJU K,AGED 29,S/O.RAJAN, KADEKUNNARI HOUSE,CHEVREMBALAM POST, KOZHIKODE DISTRICT. BY ADV. SRI.V.S.CHANDRASEKHARAN RESPONDENTS/RESPONDENTS --------------- 1. P.JAYAPALAN,AGE AND FATHERS NAME NOT KNOWN,RESIDING AT SOUMYA NIVAS, KURUNGATTUTHAZHAM,CHEVAYOOR P.O,KOZHIKODE. 2. THE ORIENTAL INSURANCE CO.LTD, DIVISIONAL OFFICE,SEEMA BUILDING, GH ROAD,KOZHIKODE. ADV. SRI.V.N.RAMESAN NAMBISAN SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1814 OF 2009 ............................................. Dated this the 6th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kozhikode in OP(MV)No.2542/2004. The claimant, who was riding as a pillion rider in KLL-1237, sustained injuries in a road accident when the said vehicle collided with another motor vehicle bearing Reg.No.KL11-D 4576. Before the Tribunal even the driver was not made a party and not even a solitary paper to establish the accident was produced. The Tribunal heavily commended upon that and dismissed the application. It is a very sad state of affairs that even the necessary parties for adjudication are not impleaded. When a claim is filed under Section 166 of the Motor Vehicles Act, it is just fundamental that the driver is the person who is primarily responsible for the accident and the owner is only held vicariously liable for the acts of his servant. The insurance company is directed to pay the amount to indemnify the owner by virtue of the terms and conditions of the policy. Unlike Section 140 or Section 163 A : 2 : M.A.C.A.No.1814 OF 2009 of the Motor Vehicles Act, Section 166 is based on the general principles wherein the question of negligence is of paramount consideration. The Apex Court had reiterated in one of the recent decisions that the junction of the driver is necessary in a Section 166 proceedings. It is true that in some of the cases junction of the driver has been dispensed with, most probably taking into consideration the peculiar facts and circumstances wherein the accident and negligence were admitted. But it is incorrect to hold that the driver is not a necessary party at all. Further it has to be stated that not even a scarp of paper to establish the factum of the accident is produced before the Tribunal especially when it is opposed by the other side. Therefore, the method in which the case has been conducted is really unfortunate and I do not want to commend further upon at this stage. 2. The learned counsel for the appellant in fairness has shown me a charge sheet registered against the driver of the other vehicle for perusal. It shows that there are substantial documents to be considered in this case and therefore, the poor claimant need not be thrown out on : 3 : M.A.C.A.No.1814 OF 2009 technical grounds or on account of the fault of somebody else. 3. Therefore, I am inclined to grant an opportunity. The award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to the claimant to implead the rider of the motor bike and then permit all concerned to produce oral and documentary evidence in support of their respective contentions and then dispose of the matter in accordance with law. The parties are directed to appear before the Tribunal on 14.12.2009. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.1814 OF 2009