Sankara Pillai v. Baiju and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 29[TH] DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943** **MACA NO. 528 OF 2011** **AGAINST THE AWARD IN OP(MV) NO. 1289/2005 OF MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER :** **SANKARA PILLAI, S/O.BHASKARAN NAIR, SANKARA BHAVANAM, THALAYAZHAM KARA, THALAYAZHAM VILLAGE.** **BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS 1 TO 4 :** **1 BAIJU, PERIYAPURATH HOUSE, PALLIPPURATHSSERY KARA, VAIKOM VILLAGE, 686 141.** - **2 SAJIMON, 7/74, VADAKKUMKARAYIL HOUSE, MANEED, PIRAVOM, 686 664.** - **3 THE UNITED INDIA INSURANCE CO. LTD., COCHIN-682 001.** - **4 SAJITH T.K. THE SHELTER, XVIII/314, T.B.ROAD, PERUMBAVOOR, 683 542.** - **5 *ADDITIONAL RESPONDENT 5** **SALIM T.K., S/O.KUNJUMUHAMMED, THE SHELTER, XVIII/314, T.B.ROAD, PERUMBAVOOR** M.A.C.A.No.528 of 2011 ..2.. **IS IMPLEADED AS ADDITIONAL RESPONDENT 5 AS PER ORDER DATED 8/3/2021 IN IA 1144/2011 IN MACA 528/2011** ## **R3 BY SRI.S.K.AJAY KUMAR, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.528 of 2011 ..3.. **“C.R.”** **M.A.C.A.No.528 of 2011 -------------------------------------------------------** ## **J U D G M E N T** Award dated 11.02.2010 in O.P.(MV)No.1289 of 2005 on the file of the Motor Accidents Claims Tribunal, Kottayam is under challenge in this appeal as opted by the original petitioner before the Tribunal. Respondents 1 to 3 before the Tribunal, driver, RC owner and insurer of the vehicle are respondents 1 to 3 herein. The fourth respondent arrayed in the original petition is Saith T.K. **The vital question emerges for a consideration in this appeal is as to whether a Court or a Tribunal can dismiss a suit or a petition after finding non-joinder of necessary party/parties without giving opportunity to the plaintiff or the petitioner to implead necessary party/parties?** M.A.C.A.No.528 of 2011 ..4.. 2. At the time of filing this appeal, impleading application was filed to implead additional fifth respondent Salim T.K. as the insured, though his name was mistakenly shown in the party array as 'Saith T.K.' instead of 'Salim T.K.' 3. Coming to the facts of this case, the appellant herein sustained injuries in consequence of an accident occurred on 21.04.2005 at about 8.30 a.m., while he was riding his bicycle. According to him, he was knocked down by a maruthi van bearing registration No.KL 7 AJ 4491 driven by the first respondent in a rash and negligent manner. 4. Thus, he moved application under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.1,50,000/-. 5. Heard the learned counsel on both sides. 6. Respondents 1 and 2 were set ex parte by the Tribunal. 7. The third respondent filed written statement admitting policy of the vehicle in the name of Salim T.K. and M.A.C.A.No.528 of 2011 ..5.. denied issuance of policy in the name of the fourth respondent. The liability was disputed and the specific contention raised to the effect that the driver had no driving license at the relevant time of accident and therefore, policy condition was violated. 8. The learned Tribunal marked Exts.A1 to A11 on the side of the petitioner and adjudicated the matter. Finally, the petition was dismissed holding that the fourth respondent in the party array is not the RC owner and in order to decide the question of negligence and liability, presence of the registered owner is essential. 9. While assailing the above verdict of the Tribunal, it is submitted by the learned counsel for the appellant that the Tribunal committed two mistakes; (i) The Tribunal dismissed the petition without giving opportunity to the appellant to implead the proper parties after finding nonjoinder. He submitted further that the finding of the Tribunal itself is erroneous because, the original second respondent is the RC owner of the vehicle at the time of accident though the M.A.C.A.No.528 of 2011 ..6.. policy holder is not the RC owner. According to the learned counsel for the appellant, secondly, the insured/the policy holder also was impleaded as fourth respondent before the Tribunal but, his name was mistakenly shown as 'Saith T.K'. instead of 'Salim T.K'. Now additional fifth respondent got impleaded by arraying his name as 'Salim T.K'. 10. As of now, all the parties got impleaded in the proceedings and such impleadment would enure the benefit in all stages. 11. The vital question to be decided is whether dismissal of a suit or a petition of this nature, finding non joinder is legally permissible without giving opportunity to the plaintiff or the petitioner to implead necessary party/parties. In this context, it has to be noted that **whenever a Court or a Tribunal finds non-joinder of necessary parties, it is absolutely necessary to provide an opportunity to the plaintiff or the petitioner, as the case may be, to implead necessary parties in the proceedings and** M.A.C.A.No.528 of 2011 ..7.. **proceed with the matter. If such an opportunity is given, plaintiff/plaintiffs or a petitioner/petitioners, as the may be, could very well implead all necessary parties and proceed with the matter. If the plaintiff/plaintiffs or the petitioner/petitioners, as the case may be, fails/fail to implead necessary parties found by the court below or the Tribunal without challenging the finding of non-joinder, it is permissible for the Court or the Tribunal to dismiss the application.** This is a case where after finding non-joinder, may be on a wrong assumption of facts, the Tribunal dismissed the petition without providing opportunity to the petitioner to implead necessary parties and the said dismissal is absolutely erroneous and illegal. 12. This Court considered the course of action available to a Court, when non-joinder is found, in the decision reported in [2017 KHC 863], **Narayanan Nair v. Rukmini Amma and others.** It was held therein that it is the settled M.A.C.A.No.528 of 2011 ..8.. law that no suit can be dismissed for non-joinder of necessary parties or proper parties and an opportunity must be given to the plaintiff to implead the party and to contest the case. Further a suit cannot be dismissed after finding non-joinder without giving an opportunity to the appellant to implead necessary parties. 13. In any view of the matter, the order of dismissal under challenge is not legally sustainable and therefore, the same is liable to be set aside and I do the same. 14. Since the petition itself was dismissed without deciding the quantum or the question of negligence, it is necessary to remand the matter before the Tribunal for disposal of the matter on merits in a case where now R1 to R5 are in the party array and no more parties remain to be impleaded. In the result, this appeal is allowed. The impugned award is set aside. The matter remanded back to the Tribunal for fresh disposal. It is to be noted that this matter is of 2005, M.A.C.A.No.528 of 2011 ..9.. therefore, the Tribunal is directed to expedite the trial and dispose of the matter on merits within two months from the date of receipt or production of a copy of this judgment by the parties concerned. It is ordered accordingly. The parties are directed to appear before the Tribunal on 30.11.2021. Registry is directed to forward LCR before this Court along with copy of this judgment within ten days. Sd/ **A.BADHARUDEEN, JUDGE** rkj