The main legal point established in the judgment is that the insurer cannot be held liable to compensate the claimant if the insured owner is not liable, and the decision in Ningamma's case is applicable.

Ravikumar, J.

This appeal is filed against the judgment and award dated 26.8.2016 in O.P.(MV)No.2337 of 2013 passed by the Motor Accidents Claims Tribunal, Ernakulam. The second respondent therein viz., the insurer of one of the vehicles involved in the accident filed this appeal on being aggrieved by the aforesaid judgment whereby and whereunder it was held liable to indemnify the first respondent, the owner of one of the said vehicles viz., Activa Scooter bearing Reg.No.KL-07/BH-7264 which was ridden by the deceased Shaji himself at the time of the accident. The accident in question had occurred on 30.4.2013 at about 11.15 p.m. Deceased shaji who was the husband of the first respondent was riding the said scooter from east to west, near Bank Junction at Edappilly. During its course, it collided with the motor cycle bearing Reg.No.KL-51C 1793 that came from the opposite direction. Shaji succumbed to the injuries sustained in the accident enroute to hospital. In the said circumstances, the owner of the Activa Scooter who is none other than the wife of the deceased was made the first respondent and the appellant herein who is the insurer of the said vehicle was made the second respondent, in the claim petition filed by the parents and children of the deceased Shaji under section 163A of the Motor Vehicles Act, 1988 seeking a compensation of Rs.3,50,000/-. In the contextual situation, it is only worthwhile to extract the averments in the claim petition, narrated in paragraph 2 of the impugned award which runs as follows:-

“On 30.04.2013 at 11.15 pm while the deceased was returning to his house after purchasing medicines to 1st respondent on her activa scooter bearing registration No.KL 07 BH 7264 from east to west near bank junction, Edappally the said scooter collided with another motorcycle bearing registration No.KL 51C 1793 coming in the opposite direction. As a result of the accident the victim sustained grievous injuries. Though he was taken to hospital on the way he succumbed to the injuries.”

2. Obviously, in the claim petition, the claimants did not take up any pleading as to who was responsible for the accident or in other words, they did not plead as to whose negligence resulted in the accident. The only averment taken up in the claim petition was that the accident had occurred due to the collision between the Activa Scooter ridden by deceased Shaji and the motor cycle bearing Reg.No.KL-51C 1793. We are not oblivious of the provision under section 163A of the M.V.Act as also the position of law enunciated pertaining to the said provision by this Court as also the Hon'ble Apex Court that under section 163A, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

3. The first respondent did not enter appearance. She was set ex parte and the second respondent therein/the appellant filed a written statement contending that the accident had occurred due to the collision of the scooter in which the victim was travelling with another motor cycle bearing Reg.No.KL-51C 1793. They have further taken up the following contentions:-The accident had occurred due to the negligent riding of the motor cycle bearing Reg.No.KL-51C 1793. The owner, rider and insurer of the said motor cycle, in such circumstances, were necessary parties to the claim petition and owing to their non-impleadment, it is bad by non joinder of necessary parties. The motor cycle bearing Reg.No.KL-51C 1793 was not having any valid insurance policy at the time of the accident and the rider of the said vehicle was also not having any valid driving licence. To buttress their contention, they relied on the charge sheet laid by the police in Crime No.4082/2013 registered at Edappilly Police Station and the FIR was produced by the claimants themselves as Ext.A1. T