ORAL JUDGMENT

In this appeal, the petitioners are challenging the order of dismissal of their claim petition filed under Section

166 of the Motor Vehicles Act.

2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are, on 20.12.2011, at 5.30 p.m. one Suresh @ Suri, the deceased, who is the husband of petitioner No.1 and father of petitioner Nos.2 and 3 along with other Ayyappa pilgrims while traveling in a Tempo Traveler bearing Reg.No.KA-02/D-8339, on NH-7, Krishnagiri - Hosur Main Road, Canter lorry bearing No.TN- 28/AB-2434 which is coming ahead of the tempo traveler suddenly applied the brake. Due to which, the tempo traveler hit on the hind portion of the canter lorry and caused the accident. In the accident, the deceased sustained injuries, he was treated at Government Hospital, Tamilnadu, Vydehi Hospital and Manipal Hospital Bengaluru. As the treatment was not successful, on 03.01.2012 the deceased succumbed to the death. The petitioners being dependants of the deceased, have approached the Tribunal for grant of compensation of Rs.20,00,000/-. Claim was opposed by the insurer of the canter lorry. The Tribunal after taking the evidence and hearing both the parties, dismissed the claim petition. Aggrieved by the same, the petitioners are before this Court on various grounds.

4. Heard the arguments of Shri A.K.Bhat, learned counsel for the petitioners and Shri.Ashok N. Patil, learned counsel for the insurer of the canter lorry.

5. It is contended by the learned counsel for the petitioners that the co-passenger and brother-in-law of the deceased, by name Nagaraj has filed the complaint on 24.12.2011 against the driver of the canter lorry. On the basis of the same, FIR came to be registered. The tempo traveler and the canter lorry have been seized and were subjected to motor vehicle inspection. In the objection statement, the insurance company has admitted the occurrence of the accident. The only contention is the non- joinder of owner and insurer of the tempo traveler. Even in the course of evidence of the officer of the insurance company he has admitted the occurrence of the accident. By positive evidence the petitioners have proved the occurrence of the accident, it is for the insurance company of the canter lorry to implead the necessary parties, they cannot plead non-joinder and keep quiet. Hence, he sought for assessment of compensation.

6. Per contra, learned counsel for the insurance company has contended that there is a specific plea taken in the objection statement that the owner and insurer of the tempo traveler are necessary parties, the petitioners have not impleaded them in the claim petition. On behalf of the insurance company efforts were made by taking summons to the Investigating Officer at Tamilnadu to place the evidence before the Tribunal that there is no negligence on the part of the canter lorry and complete negligence is against the driver of the tempo traveler. It is not fruitful as the Tribunal closed the side of insurance company to secure the presence of Investigating Officer by taking coercive steps. Hence, he sought for permission to lead further evidence by impleading the owner and insurer of the tempo traveler and sought for remand of the matter to the Tribunal.

7. I have given my anxious consideration to the arguments addressed on behalf of both parties and perused the records.

8. Materials on record goes to show that there was an accident involving the tempo traveler and the canter lorry in question. The accident was on 20.12.2011 and the FIR was registered on 24.12.2011. The deceased succumbed to death on account of the injuries sustained in the accident.

The insurance company though admits the occurrence of the accident, it has not made any efforts to implead the owner and the insurer of the tempo traveler after taking plea of non-joinder. The claim is filed only against the owner and insurer of the canter