IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 MACA.No. 2586 of 2009(C) -------------------------------- OPMV.1098/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): 2ND RESPONDENT: ----------------------------------------- NATIONAL INSURANCE COMPANY LTD. P.B.NO.60, BRANCH NO.1, SOUNDARYA BUILDING, M.G.ROAD, THIRUVANANTHAPURAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND R1,3 & 4: ---------------------------------------------------- 1. ARUN M.L., S/O.K.MOHANAN, T.C.36/623 MARUMURI HOUSE, VETTAMUKKU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. BINIL ROY S.N., ANIL NILAYAM, KUCHAPURAM, KATTAKKADA, THIRUVANANTHAPURAM. 3. THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, PALAYAM, THIRUVANANTHAPURAM. 4. S.JAYALEKSHMI, TCC 2060 I, KARTHIKA, VALIAVILA, VATTIYOORKAVU, THIRUVANANTHAPURAM. ADV. SRI.J.HARIKUMAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2586 OF 2009 = = = = = = = = = = = = = = = Dated this the 13th day of September, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in O.P.(MV) 1098/02. Two minors happily travelled in a scooter met with an accident and both sustained injuries. Offending vehicle is a tipper lorry. The Tribunal found the insurance company of the tipper lorry liable to pay compensation and awarded the same. Aggrieved by the said decision the insurance company has come up in appeal. 2. The points that arise for determination are one is regarding the negligence and the other is regarding the non impleadment of the driver and lastly the quantum and the policy conditions. It is true that there was a view that driver was not a necessary party. The Hon'ble Supreme Court has later decided when a claim petition is filed u/s 166 of the M.V.Act and there is a dispute regarding negligence the driver should be made a party. M.A.C.A. 2586 OF 2009 -:2:- 3. Now it is contended by the learned counsel for the owner of the tipper that he had authorized one Rajan to drive and the accident had taken place. The claimant had just filled up the column that driver is not a necessary party. Even in the pleading in paragraph 28 there is no averment to the effect to show the driver of the tipper lorry. It is contended by the learned counsel that he was only an owner and it was his driver who was driving the lorry. The Tribunal in a very casual way has decided the question of negligence even without the driver on the party array. The Tribunal did not find anything when two persons who are incompetent in law to drive the vehicle had travelled in a two wheeler and had caused the accident. Therefore the finding on negligence that the driver of the tipper lorry and also to the fact whether the rider of the scooter was also negligent are all matters which the Tribunal should have decided. Without such a finding it is not proper to cast the liability entirely on the insurance company of the tipper lorry. It is submitted by the learned counsel for the owner of the tipper lorry that the M.A.C.A. 2586 OF 2009 -:3:- police has registered a crime against one Rajan. Let him be impleaded as a party. Therefore I set aside the award and remit the case back to the Tribunal with a direction to the claimants to implead the driver of the tipper lorry and thereafter permit all concerned to adduce evidence and then decide everything afresh in accordance with law. I make it very clear that the whole matter is left opened. Parties are directed to appear before the Tribunal on 29.10.2010. M.N. KRISHNAN, JUDGE. ul/-