IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MACA.No. 155 of 2009() -------------------------------- OPMV.649/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): IST RESPONDENT ---------------------- M.SUNITHA, W/O.RAVEENDRAN R/AT.ORMA NIVAS, PO.MAKKERI, PIN.670622, KANNUR,(OWNER OF BUS NO.KRN39899) BY ADVS. SMT.K.K.CHANDRALEKHA MR.GOPAKUMAR G. (ALUVA) RESPONDENT(S): /R3. CLAIMANT , R2, R4 TO R6 ------------------------- 1. NEW INDIA ASSURANCE CO.LTD.SUDHOO BUILDING, II FLOOR, NEAR MUNICIPAL BUS STAND PO., KANNUR-1, PIN-67001. 2. K.SUJITH KUMAR, S/O.KRISHNANA 46 YEARS DAIVATHARKANDY HOUSE, PO.KADAMBOOR. 3. M.SUDHAKARAN, S/O.NARAYANAN, R/AT. POOLUNDA, ERIVERI AMSOM, PO.ERIVERI, PIN-670614, VALLACHAL, KANNUR. 4. SHALINI JAIN, UPASANA, KADARI TEMPLE CROSS ROAD, KADI, MANGALORE. 5. PADMANABHAN,S.K., KUCHIKKAD HOUSE PO., MANJESHWARAM, KASARGODE. 6. NATIONAL INSURANCE CO.LTD.KANNUR. R1 BY ADVS. MR.GEORGE CHERIAN (THIRUVALLA) R3 BY SMT.M.M.DEEPA R6 BY MR.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, ALONG WITH MACA. NO.2519 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.166/2009 IN MACA. NO.155/2009 DISMISSED 21/12/2009 M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 155, 2519, 2524, 2640 OF 2009 and WPC Nos.28772 & 28893 of 2009 = = = = = = = = = = = = = = = Dated this the 21st day of December, 2009. J U D G M E N T MACA Nos.155/09, 2519/09 and 2524 /09 are preferred against the awards of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)Nos.649/03, 560/03 and 903/03 and MACA Nos. 2640/09 and WPC Nos.28772/09 and 28893/09 are preferred against the awards of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)Nos.1099/03, 1098/03 and 1185/03. In the first three MACAs. referred to above which are filed before Thalassery Tribunal there are six respondents including owner, driver and insurance company of both the vehicles involved in the accident. In the three claim petitions filed before the Motor Accidents Claims Tribunal, Kozhikode strangely only the owner and insurance company of one of the buses insured by the National Insurance Company is alone impleaded as a party and the matter is proceeded with by the Claims Tribunal Kozhikode. M.A.C.A. Nos. 155/09 and con. cases -:2:- The question of negligence has been determined even without the driver on the party array. In the cases pending especially before the Motor Accidents Claims Tribunal, Thalassery the learned Tribunal merely basing on a copy of the charge sheet had arrive at a decision regarding the negligence of the driver of the bus insured by the insurance company. No oral evidence had been even tendered by any of the parties. When there is a collision between two vehicles it is natural and necessary to see that some materials are placed on record so as to find out the correctness of the negligence of the drivers. Therefore the way of disposal of the matter is not proper and it requires reconsideration. Similarly so far as the cases pending before the Claims Tribunal, Kozhikode is concerned it has to be stated that in a 166 M.V.Act cases the Tribunal is disposing of the matter even without the junction of the driver of the bus wherein the negligence is a matter to be probed and proved. Awarding compensation is for a tortious act and it is derived from the common law principles of tort M.A.C.A. Nos. 155/09 and con. cases -:3:- and negligence is a sinequa non for arriving at a final decision u/s 166 of the M.V.Act. So the disposal of the matter without the junction of the driver is unfortunate and that also requires interference. The claimants before the Tribunal are also directed to implead the driver of the bus insured by the New India Assurance Company as well as the owner, driver and the insurer of the other buses which is seen insured by the National Insurance Company. In order to have a proper determination of the matter I feel all these cases can be tried by the Claims Tribunal, Thalassery and since the accident is admitted, the only question to be decided is with regard to the apportionment of the negligence and without insisting for presence of the claimant, the matter can be disposed of. Therefore, the award under all these cases are set aside so far as the liability part is concerned and the matter is remitted back to the Motor Accidents Claim Tribunal, Thalassery for the purpose of deciding the question of negligence and the interse liability between the owners M.A.C.A. Nos. 155/09 and con. cases -:4:- of the buses and the insurance companies. For this purpose, the Claims Tribunal, Kozhikode is directed to transfer the cases which are remanded to the Claims Tribunal, Thalassery with due intimation to all concerned for a proper disposal of the case. The parties are directed to appear before the Claims Tribunal, Thalassery on 29.1.2010. Meanwhile the Registry is directed to send a copy of the order to the Claims Tribunal, Kozhikode as expeditiously as possible to effect transfer of the files of the cases. The appellant in this case is directed to implead the driver of his vehicle before the Claims Tribunal, Kozhikode as well as other owners, drivers and insurer of other buses involved in the accident. M.N. KRISHNAN, JUDGE. ul/-