Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE29H DAY OF JANUARY20149TH MAGHA, 1935 MACA.No. 2223 of 2010 ( ) ------------------------- AGAINST THE AWARD IN OP(MV).NO.1584/2005 of MACT, MUVATTUPUZHA DATED1202-2009. APPELLANT/PETITIONER:- -------------------- NARAYANAN, S/O.ITTA. AGED69YEARS, THAKKIDIYAMALYIL HOUSE THAMARAKKADU KARA, VELIYANNOOR VILLAGE. BY ADVS.SRI.PEEYUS A.KOTTAM SRI.JEFF JOSEPH RESPONDENTS/RESPONDENTS15:- --------------------------- 1. VARGHESE.K.V., S/O.VARGHESE, KUMBIKKAL HOUSE, PALAKUZHA KARA AND VILLAGE MUVATTUPUZHA TALUK. PIN-685 584.
2. RAJAN, S/O.THANKAPPAN, PARACKAL HOUSE, EDAVETTY.P.O. THODUPUZHA. PIN-685 588.
3. NATIONAL INSURANCE COMPANY LTD., PALIMOOTTIL SHOPPING ARCADE, MUVATTUPUZHA ROAD THODUPUZHA-685 584.
4. RAJU.K.N., S/O.NARAYANAN, KULAVADIKARA, AMANAKARA KARA, RAMAPURAM KOTTAYAM DISTRICT. PIN-686 576.
5. NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, PALAI. 686 575. R5,R3 BY ADV. SRI.MATHEWS JACOB (SR.) R5,R3 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.N.K.SHYJU R1 BY ADV. SRI.GEO PAUL R1 BY ADV. SRI.SANU MATHEW R1 BY ADV. SRI.C.R.PRAMOD R1 BY ADV. SRI.S.ASHOK KUMAR. R1 BY ADV. SRI.R.VINU RAJ R1 BY ADV. SMT.P.M.HRIDYA R1 BY ADV. SRI.S.ABHILASH VISHNU R5 BY ADV. MATHEWS JACOB (SR), P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON2901-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kvs/- S.S.SATHEESACHANDRAN, J.
= = = = = = = = = = = = M.A.C.A.No.2223 of 2010. = = = = = = = = = = = = Dated this the 29th January, 2014.
JUDGMENT
Appeal is by the claimant challenging the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha dismissing his claim for compensation. While riding as pillion rider in a motor cycle ridden by fourth respondent the occurrence giving rise to the claim took place. The motor cycle ridden by the fourth respondent collided with another motor cycle coming from the opposite direction, ridden by the second respondent and owned by the first respondent. Appellant/claimant imputing negligence on both riders claimed compensation for the injuries and loss suffered in the occurrence against owners, riders and insurers of both vehicles. The second respondent remained ex-parte. Common insurance company of both vehicles involved resisted the claim contending that there was no insurance coverage for the first respondent over the M.A.C.A.No.2223/2010. 2 vehicle ridden by the second respondent. A Policy had been issued in the name of another person over the vehicle but he has not been impleaded as party to this proceedings, was its case. Liability to pay compensation to the applicant was also denied by the insurance company. Claim petition against first respondent and fourth respondent was dismissed for non taking of steps to serve notice on them by claimant. That dismissal rendered against first respondent and fourth respondent was taken into account by the tribunal later to dismiss the claim. Challenge in the appeal is against the dismissal of the claim for the reason stated as above.
2. I heard the counsel on both sides. No doubt the owner, driver and insurer of the vehicle/vehicles involved in the occurrence are to be impleaded in a claim petition and notices are to be given to them. However, where more than one vehicle is involved in an occurrence and claimant is a third party, his entitlement to claim compensation from one among them has to be looked into to consider whether the M.A.C.A.No.2223/2010. 3 claim could be adjudicated and decided in the absence of other joint tort-feasors. For the reason there was default by claimant in taking steps against some among the parties and dismissal of the claim against them, and that alone, without looking into his entitlement of claim against other joint tort-feasors culpable dismissal of the claim as not maintainable is not proper. Learned counsel for insurance company submits that though both vehicles involved in the occurrence are covered by its policy, but, one of them in favour of a person not made a party, I find an opportunity has to be provided to the claimant to prosecute his claim setting aside the dismissal of his claim and remitting the case for fresh consideration. Claimant shall take steps to implead the insured of the vehicle KL/6A-1480 also as one among the respondents in the claim petition and also steps to issue him notice. The tribunal shall provide claimant an opportunity to take fresh steps against first and fourth respondents also. First respondent in the claim petition has appeared before this Court and directions issued hereunder M.A.C.A.No.2223/2010. 4 would suffice to make his appearance before the tribunal, and no further notice be given to that respondent.
3. Setting aside the dismissal of the claim the case is remitted with direction to the parties to appear through their counsel before the Tribunal on 24.2.2014. Appellant/claimant shall comply with the directions given above and steps taken, tribunal shall give notice to the respondents as indicated to. In case after trial award is passed granting compensation to the claimant then it is made clear that no interest on such compensation is allowable to him till the date fixed for his appearance as above. Subject to the above directions, appeal is partly allowed directing the parties to appear before tribunal on 24.2.2014. S.S.SATHEESACHANDRAN, (Judge) Kvs/-