IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 1591 of 2007(B) ------------------------------------- (O.P(MV).NO.1700/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR) .................... APPELLANT/FOURTH RESPONDENT: ------------------------------------------------------ NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, WILLINGTON ISLAND, COCHIN. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT/PETITIONER & RESPONDENTS 1 TO 3: ----------------------------------------------------------------------------- 1. JACOB, S/O.VARKEY, AGED 54/2001, PULLAN HOUSE, PAYYAL KARA, NEDUNGAPRA POST. 2. P.PALANISWAMY, S/O.PERIASWAMY, KANABIPALAYAM, KOLLANKODE, ELACHIPALAYAM POST, TIRUCHENGODE TALUK, TAMIL NADU. 3. MURUKESAN, S/O.POORNAM, HOUSE NO.6/15 PALLIPPATTIL, KILAPALAYAM POST, TIRUCHENGODE TALUK, TAMIL NADU. 4. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, KOLLANKADU, ELACHIPALAYAM POST, TIRUCHANGODE TALUK, TAMIL NADU. R1 BY ADVS. SRI.S.K.BALACHANDRAN, SRI.M.RAJEEV, R4 BY ADV. SRI.P.V.JYOTHI PRASAD. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 1591/2007-B: ORDER ON I.A. NO. 1910/2007 IN M.A.C.A. NO. 1591/2007-B DISMISSED 22/06/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1591 OF 2007 = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)1700/01. The claimant, a traveller in a car, sustained series injuries when the car collied with a lorry resulting in injuries to him. The claimant moved an application for compensation making the driver, owner and insurance company of the lorry as well as insurance company of the car as parties to the proceedings and the matter was decided by the Tribunal. The Tribunal found that the driver of the car as well as the driver of the lorry were equally negligent and therefore apportioned their negligence at 50% each. I am told that unfortunately driver of the car died in the accident. It is interesting to note that finding against the insurance company of the car is entered into without the owner namely the insured being on the party array. The liability of the M.A.C.A. 1591 OF 2007 -:2:- insurance company is only to satisfy the award passed against the insured and therefore unless there is an award against the insured one cannot ask the insurance company to pay the amount. So I find that the junction of the owner of the car is absolutely necessary for a proper disposal of the matter. 2. Regarding the negligence, it has to be stated that the Tribunal found that the accident had taken place almost on the middle line of the highway and the driver of the car was drunk and therefore it decided to apportion the negligence at 50% each. No oral evidence was tendered. Therefore I feel the question of negligence also requires reconsideration. 3. Since the matter goes back it is only just and proper that the quantum is refixed after permitting the parties to adduce evidence. If there are contentions for the insurance company regarding its liability, i.e. especially with reference to the insured of the car, they are permitted to raise it. Therefore the award under challenge is set aside M.A.C.A. 1591 OF 2007 -:3:- and the matter is remitted back to the Tribunal with a direction to permit all concerned to adduce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. It is further directed that the owner of the car to be impleaded as a necessary party to the proceedings. Parties are directed to appear before the Tribunal on 22.7.2010. 4. Let the matter be disposed of as expeditiously as possible at any rate within a period of four months from the date of first appearance of the parties before the Tribunal. M.N. KRISHNAN, JUDGE. ul/-