IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 MACA.No. 1442 of 2007(F) ------------------------------ OPMV.3083/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): APPELLANT/PETITIONER IN O.P. (MV) ----------------------------------------------- PUTHIYAPURAYIL BABY, W/O.BALAKRISHNAN, AGED 51 YEARS,RESIDING AT PUTHIYAPURAYIL HOUSE, KANNATTIKULAM, P.O.KOLATHARA,KOZHIKODE. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENT(S): RESPONDENTS IN O.P. (MV) ---------------------------------------------------- 1. NAJEEB.P., AGE NOT KNOWN, S/O.ABDUL RAZAK,RESIDING AT ZUHARA MANZIL, CANAL ROAD, P.O. ERANHIPALAM,KOZHIKODE. 2. THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE,KINGWAY BUILDING, MAVOOR ROAD, KOZHIKODE. ADV. SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1442 OF 2007 = = = = = = = = = = = = = = = Dated this the 15th day of January, 2009 J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)3083/01. The claimant, a 45 year old lady sustained an undisplaced fracture on the zygoma and she has been awarded a compensation of Rs.12,000/- and the Tribunal directed the insurance company to deposit the amount and get it recovered from the first respondent, owner of the vehicle. The Tribunal found that the junction of the driver was necessary but he has not been made a party. It further found that the driver has been charge sheeted for driving the vehicle without licence and therefore it permitted the insurance company to recover the compensation amount from the owner. But I feel these aspects had not been considered in the strict legal sense in which it has to be considered in the light of the authoritative pronouncement of the Apex Court in Swaran Singh's case National M.A.C.A. 1442 OF 2007 -:2:- Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) and subsequent other decisions. Similarly, it is not proper to enter into a finding on the question of negligence without the driver on record and making a person who is vicariously liable without hearing the persons who is primarily liable. Therefore the matter requires reconsideration. Since the matter requires reconsideration the contention regarding inadequacy of quantum of compensation also can be looked into. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to the appellant herein to implead the driver of the bus as a necessary party. Thereafter the Tribunal shall permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and dispose of the matter in accordance with law. The claimant is also directed to take out notice to the owner once again after he enters appearance before the Tribunal. Parties are directed to appear before the Tribunal on 25.2.2009. M.N. KRISHNAN, JUDGE. ul/-