IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 MACA.No. 915 of 2011() ---------------------------------- OPMV.682/2005 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): IST RESPONDENT ---------------------------- STATE EXPRESS TRANSPORT CORPORATION, CHENNAI-2, REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): APPLICANTS ---------------------------------------------- 1. ROSYDAS ABY, W/O.LATE CC ABY, CHAKKALAYIL HOUSE, NO.50-1, ERG ROAD, TATAPURAM.P.O., ERNAKULAM DISTRICT. 682 300. 2. ALLEN ABY, MINOR, S/O.CC.ABY, DO.. DO.. 682 300. 3. ALBIN ABY, MINOR, S/O.LATE ABY, DO.. DO.. 682 300. 4. C.CHERIAN, S/O.ZACHARIA, DO.. DO.. 682 300. 5. ELIZAMMA, W/O.CHERIAN, DO.. DO.. 682 300. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.915 of 2011-C ***************************** Dated this the 1st day of August, 2011 JUDGMENT BASANT, J. Appellant is the owner of a bus/stage carriage. The bus was involved in a road traffic accident. It allegedly hit against the rider of a motorcycle. The rider suffered injuries and succumbed to those injuries. The claimants are the legal heirs/dependents of the deceased. The Tribunal awarded an amount of Rs.10,79,127/- along with interest and cost. The appellant, a road transport corporation/the owner claims to be aggrieved by the impugned award. 2. What is the ground of challenge? To a specific query by us, it is contended that there is no challenge specifically against the finding on negligence or on the quantum of compensation awarded. What then is the challenge? The learned counsel for the appellant contends that the driver was not on the array of parties when the matter was disposed of by the Tribunal. M.A.C.A No.915 of 2011-C 2 3. The contention appears to us to be technical and not substantial. Originally claimants had arrayed the appellant/owner as well as the driver of the vehicle on the party array. The appellant has no case that the 2nd respondent showed originally on the party array was not the driver of the vehicle at the relevant time. The 2nd respondent has no contention that he was not employed by the appellant. It is true that the 2nd respondent/driver was deleted later by the claimants after appearance of the appellant as service on the driver was found to be not possible. 4. The learned counsel for the appellant relies on the decision in Machindranath Kernath Kasar V. D.S.Mylarappa [AIR 2008 SC 2545] to contend that in the absence of the driver on the party array when the impugned award was passed, the appellant cannot be mulcted with liability. We find absolutely no merit in the contention. This is a case where the appellant is the owner of the vehicle at the relevant time. The vehicle was being driven by the driver engaged by the appellant. The appellant has raised no contention which is contradictory to the possible contentions of the driver of the vehicle. The requirements of law that the driver must be M.A.C.A No.915 of 2011-C 3 included in the array of party is not a ritual or fetish. In a case like the instant one where the driver was admittedly employed by the owner and there is no cross contention possible between the driver and the owner, we are of opinion that the subsequent deletion of the driver of the vehicle from the array of parties on the ground that he was not available for service is of no consequence and cannot justify the challenge raised by the appellant against the impugned award. In fact, even the decision in Machindranath Kernath Kasar V. D.S.Mylarappa (supra) indicates that formal arrayal of the driver is not to be ritualistically insisted. In that case the driver, though not arrayed as a party, was examined as a witness and it was held by the Tribunal that such presence of the driver was sufficient to justify the award impugned in that case. In the instant case, what is of crucial significance is that the appellant does not dispute the employment of the 2nd respondent/driver and the appellant has not taken any contentions which are contradictory to the possible contentions of the 2nd respondent. Arraying of the employee driver as a party in the claim petition originally and subsequent deletion of such party to avoid wastage of time as personal service could not be effected, cannot be held to be M.A.C.A No.915 of 2011-C 4 sufficient to vitiate the award. 5. We are, in these circumstances, satisfied that this appeal only deserves to be dismissed in limine. No other contentions are raised. 6. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/