IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 MACA.No. 2345 of 2009() ---------------------------------- OPMV.480/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): 2ND RESPONDENT ------------------------ THE ORIENTAL INSURANCE COMPANYLIMITED, THIRUVANANTHAPURAM NOW REP.BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI. 18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE MR.P.JACOB MATHEW RESPONDENT(S): PETITIONER AND RESPONDENT 1 & 3 ------------------------- 1. ABUBAKER, S/O. APPAKANNU, THETTIYIL PUTHENVEEDU, IDICHAKKA PLAMOODU, PARASSALA P.O, THIRUVANANTHAPURAM. 2. NAZARUDEEN, S/O. ABDUL HAMEED, KUNNIL VEEDU, ALANCODE P.O. THIRUVANANTHAPURAM DIST. 3. MOHAMMED KUNJU, S/O. ABDUL RAHAMAN NIYAS, MANZIL, PALLIPPURAM. R1 BY ADV.MR.G.SUDHEER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.A.C.A. No.2345 OF 2009 ............................................. Dated this the 19th day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Claims Tribunal, Neyyattinkara in OP(MV)No.480/1995. The claimant has been awarded a compensation of Rs.18,500/= and a direction has been given to the insurance company to deposit the amount and to realise it from the third respondent in the claim petition. Here is a case where almost everything is disputed. 2. The Supreme Court has made it very clear that in cases involving Section 166 of the Motor Vehicles Act where there is a dispute regarding driver, the driver should be impleaded as a party. It is not correct on any court of law to hold that a particular person is negligent or that he did not have a valid driving licence even without impleading him as party in the proceedings. Similarly in order to determine the ownership also, mere production of paper publication and his non presence cannot be utilised to confer ownership on a person. If he is the registered owner of the vehicle, : 2 : M.A.C.A. No.2345 OF 2009 certainly there will be materials before the authority to evidence the same. Thus things should be produced. So far as the policy is concerned unfortunately in the Motor Vehicle Inspector's report though existence of the policy is mentioned but particulars of the policy are not given. So, an attempt should be made to get the particulars of the policy and then only one can decide about the existence of the policy. Existence of a policy should not be found in favour by adverse inference. The burden is also on the insurance company to prove existence of the policy. But particulars should be made available. In order to prove the same, identity of the driver should be established. Therefore on these grounds the matter requires reconsideration. 3. Therefore the award under challenge is set aside and the matter is remitted back to the tribunal for consideration of the points mentioned below: i. The claimant shall implead the alleged driver whose name is mentioned in the award. ii. The tribunal shall enter into a finding who is the owner of the vehicle. : 3 : M.A.C.A. No.2345 OF 2009 iii. The tribunal shall enter into a finding who was riding in the vehicle at the time of the accident and whether he did have any valid driving licence. iv. Whether the vehicle involved in the accident was having any valid policy, if so with which insurance company. v. I make it clear that I am not going to disturb the quantum. 4. Parties are directed to appear before the tribunal on 15.3.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A. No.2345 OF 2009