IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2586 of 2009()
1. NATIONAL INSURANCE COMPANY LTD.
... Petitioner
Vs
1. ARUN M.L., S/O.K.MOHANAN, T.C.36/623
... Respondent
2. BINIL ROY S.N., ANIL NILAYAM,
3. THE UNITED INDIA INSURANCE CO. LTD.,
4. S.JAYALEKSHMI, TCC 2060 I,
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.J.HARIKUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :13/09/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 2586 OF 2009
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Dated this the 13th day of September, 2010.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Thiruvananthapuram in O.P.(MV)
1098/02. Two minors happily travelled in a scooter met with
an accident and both sustained injuries. Offending vehicle is
a tipper lorry. The Tribunal found the insurance company of
the tipper lorry liable to pay compensation and awarded the
same. Aggrieved by the said decision the insurance company
has come up in appeal.
2. The points that arise for determination are one is
regarding the negligence and the other is regarding the non
impleadment of the driver and lastly the quantum and the
policy conditions. It is true that there was a view that driver
was not a necessary party. The Hon’ble Supreme Court has
later decided when a claim petition is filed u/s 166 of the
M.V.Act and there is a dispute regarding negligence the
driver should be made a party.
M.A.C.A. 2586 OF 2009
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3. Now it is contended by the learned counsel for the
owner of the tipper that he had authorized one Rajan to drive
and the accident had taken place. The claimant had just
filled up the column that driver is not a necessary party.
Even in the pleading in paragraph 28 there is no averment to
the effect to show the driver of the tipper lorry. It is
contended by the learned counsel that he was only an owner
and it was his driver who was driving the lorry. The Tribunal
in a very casual way has decided the question of negligence
even without the driver on the party array. The Tribunal did
not find anything when two persons who are incompetent in
law to drive the vehicle had travelled in a two wheeler and
had caused the accident. Therefore the finding on negligence
that the driver of the tipper lorry and also to the fact whether
the rider of the scooter was also negligent are all matters
which the Tribunal should have decided. Without such a
finding it is not proper to cast the liability entirely on the
insurance company of the tipper lorry. It is submitted by the
learned counsel for the owner of the tipper lorry that the
M.A.C.A. 2586 OF 2009
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police has registered a crime against one Rajan. Let him be
impleaded as a party. Therefore I set aside the award and
remit the case back to the Tribunal with a direction to the
claimants to implead the driver of the tipper lorry and
thereafter permit all concerned to adduce evidence and then
decide everything afresh in accordance with law. I make it
very clear that the whole matter is left opened. Parties are
directed to appear before the Tribunal on 29.10.2010.
M.N. KRISHNAN, JUDGE.
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