Remanded

National Insurance Company Ltd. v. E.M.Haridas & Others

Kerala HC28 Oct 2013MACA/2229/2008

Case brief

AI extract

What is this about?

The High Court allowed the appeal and remanded the case to the Motor Accident Claims Tribunal. The court held that an O.P. under Section 166 is not maintainable without impleading the negligent driver. The matter was remanded for fresh consideration after impleading the driver.

What did the court decide?

Impugned award set aside; matter remanded to Tribunal for fresh consideration after impleading the driver and affording opportunity to adduce evidence.

National Insurance Company Ltd. Vs E.M.Haridas & Others — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935

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MACA.No. 2229 of 2008 (B)

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[AGAINST THE AWARD DATED 28-01-2008 IN O.P(M.V).NO.474/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA]

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APPELLANT/2ND RESPONDENT:

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NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, REGIONAL OFFICE, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI-35.

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BY ADV. SMT.RAJI .T.BHASKAR.

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RESPONDENTS/PETITIONERS 1 & 2 AND 1ST RESPONDENT RESPECTIVELY:

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1. E.M.HARIDAS, AGED ABOUT 60 YEARS, EDATHARAYIL VEEDU, PERINGANADU, ADOOR.

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2. K.SANTHAMMA, AGED ABOUT 54 YEARS, -DO-

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3. RADHAMANIAMMA, GEETHABHAVANAM, MANAMPUZHA.

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R1 & R2 BY ADVS. SRI.M.T.SURESHKUMAR, SRI.V.V.RAJA, R3 BY ADVS. SRI.BECHU KURIAN THOMAS, SRI.ROSHEN.D.ALEXANDER.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Prv.

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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M.A.C.A. No.2229 of 2008

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Dated this the 28^th day of October, 2013

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J U D G M E N T

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S. Siri Jagan, J

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The Insurance company in O.P(M.V). No 474/2000 before the Motor Accidents Claims Tribunal, Pathanamthitta, is the appellant herein. The O.P. was filed by respondents 1 and 2 herein. They filed the O.P., claiming compensation for the death of their son, Manu, who died in an accident, caused by the negligent driving of the vehicle insured with the appellant. The tribunal, on the basis of the police records, found negligence on the part of the driver of the vehicle insured with the appellant and awarded a total compensation of ₹2,58,000/- with interest. The appellant has filed this appeal challenging that award. The appellant raises three contentions. The first contention is that, the accident occurred solely because of the negligence of the driver of the vehicle insured with the appellant. Secondly

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M.A.C.A. No.2229 of 2008

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it is contended that, respondents 1 and 2 did not choose to implead the driver of the vehicle against whom negligence was alleged, without which, a claim petition could not have been entertained. Thirdly, it is contended that, the driver did not have a valid driving licence to drive the vehicle and therefore, the insurance company is entitled to be exonerated from liability.

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We have heard the learned counsel for the

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respondents 1 and 2 also.

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The O.P. was filed with the owner of the vehicle as the first respondent and the appellant, the insurer of the vehicle as the 2^nd respondent. The driver was not impleaded as a party. The primary liability for paying compensation on account of the negligence in driving a vehicle lies with the driver who is negligent in driving the vehicle. Only if the driver is negligent, the question of vicarious liability of the owner and the liability of the insurance company to indemnify the owner

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M.A.C.A. No.2229 of 2008

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arise. Therefore, without the junction of the driver, a claim under Section 166 of the Motor Vehicles Act is not maintainable (see the decision of the Supreme Court in Oriental Insurance Company Ltd., v. Meena Variyal and others 2007(5) SCC 428) . Therefore, the appeal is to be allowed on that ground alone.

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In the above circumstances, the learned counsel for the respondents 1 and 2 seek a remand of the matter to the tribunal for fresh consideration, giving the respondents 1 and 2 another opportunity to implead the driver of the vehicle also. We are inclined to give respondents 1 and 2 one more opportunity to do so. In the above circumstances, we set aside the impugned award of the Motor Accident Claims Tribunal, Pathanamthitta, and remand the O.P.(M.V.).No.474/2000 of the tribunal for fresh consideration, after affording an opportunity to the respondents 1 and 2 herein to implead the driver of the vehicle as additional respondent in the

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M.A.C.A. No.2229 of 2008

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O.P. and opportunity to all parties to lead additional evidence if they choose to do so. All other contentions raised by the parties are left open to be decided by the tribunal, while considering the matter afresh. The appeal is disposed of with the above liberty. The parties shall appear before the tribunal for fresh proceedings on 26.11.2013.

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S. Siri Jagan, Judge

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Sd/-

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K. Ramakrishnan, Judge

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// True Copy //

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P.A. to Judge

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National Insurance Company Ltd. v. E.M.Haridas & Others

Case brief

What is this about?

What did the court decide?

National Insurance Company Ltd. v. E.M.Haridas & Others

Case brief

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What did the court decide?

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