IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 MACA.No. 2183 of 2007() ----------------------- OPMV.2084/1998 of PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/ PETITIONER IN OPMV: ------------------------------------ K.ANILKUMAR, S/O.RAMACHANDRA MENON, AGED 38 YEARS, RESIDING AT VAKERITHAZHAM VEEDU, CHEVAYOOR POST, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: RESPONDENTS IN OPMV: --------------------------------- 1. K.MOHANDAS, S/O.K.C.K.NAMBIAR, RESIDING AT HOUSE NO. 19/1155, THAKSHASILA, CHALAPPURAM POST, KOZHIKODE. (OWNER OF THE JEEP NO.KRC 2152) 2. C.JAYARAJAN, (RS STRUCK OF AS PER ORDER IN IA 1169/1999 DATED 20-9-00) (DRIVER OF THE JEEP NO.KRC 2152) 3. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICER, 2ND FLOOR, SEEMA TOWER, BANK ROAD, KOZHIKODE. (INSURER OF THE JEEP NO. KRC 2152). BY ADV. SRI.M.A.GEORGE FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 2183 OF 2007 --------------------- Dated this the 19th day of August, 2008 JUDGMENT This appeal is preferred against the award passed by the Principal Motor Accident Claims Tribunal, Kozhikode, in OP(MV) 2084/98. The appellant sustained injuries in a road accident. While he was riding his motor cycle a jeep came in a rash and negligent manner and dashed against the motor cycle. It is also seen that the driver of the jeep is deleted from the party array. The Tribunal found contributory negligence and deducted 50% and held that the claimant is entitled to an amount of Rs.17,004/-. It is against that decision, the claimant has come up in appeal. 2. Heard the counsel for the appellant as well as the Insurance Company. At the outset, I may like to point out that when there is a question regarding negligence, contributory negligence or even composite negligence, the junction of the driver is a must. The Apex court has reiterated that fact in the recent decisions. It is not proper to enter into a finding that a particular driver is negligent without making him a party in the proceeding. Therefore, the driver has to be MACA No. 2183/07 2 impleaded in the case. Secondly the Tribunal found that only the FIR had been produced. FIR is not the encyclopedia of all materials and it is only a document which sets the criminal law in motion. In order to decide the case of negligence there should be scene mahazar, charge sheet etc. and that further evidence has also to be adduced by the party to establish the negligence especially when the claim is under section 166 of the Motor Vehicles Act. Here, except the FIR, no other document is produced and therefore it is also a matter that requires reconsideration. 3. So far as quantum is concerned, the Tribunal did not accept the disability certificate of the Medical Board for the reason that it has been signed only by two Doctors. An opportunity has to be given to the claimant to explain or to examine the Doctors to prove the factum of disability. So that factor also requires reconsideration. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh disposal of the same after considering the following: (i) The claimant shall implead the driver of the jeep as a necessary party. (ii) The claimant as well as the Insurance Company shall be MACA No. 2183/07 3 given an opportunity to produce documentary as well as oral evidence in support of their respective contention regarding negligence. (iii) The Tribunal shall refix the quantum of compensation as well, after affording an opportunity to prove the disability by permitting the claimant to examine the Doctors. Parties are directed to appear before the Tribunal on 26.9.08. M.N.KRISHNAN, JUDGE vps MACA No. 2183/07 4