FAO No. 1264 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 1264 of 2008 (O&M) Date of decision : 1.4.2010 ... Mamrej @ Mamraj ................Appellant vs. Vinod Kumar Jain and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Sandeep Jasuja, Advocate for the appellant Sh.D.P. Gupta, Advocate for respondent No.2-Insurance company. ... K.C. Puri, J. (Oral) This is an appeal directed by injured- claimant against the award dated 28.11.2007 passed by MACT, Gurgaon, vide which the claim petition preferred by the claimant was dismissed on the ground that driver has been given up. The case of the claimant is that on 6.1.2006, the petitioner was going to village Singar from his village Khairawa on a motor cycle which was being driven by him in a moderate speed and on the correct left hand side of the road and at about 1.00 P.M. when the petitioner reached near village Thek, the petitioner was overtaking FAO No. 1264 of 2008 -2- bus no. RJ 05/P-0145 with due care and indication and in the meantime, respondent No.2- the driver of the bus, struck his bus in a very rash and negligent manner with the motor cycle of the petitioner from the side and as s result of which the petitioner fell down alongwith his motor cycle and sustained injuries. It is pleaded that respondent No.2 was driving the vehicle rashly and negligently. On notice, respondent No.1 filed the written statement and has pleaded that the accident in question has taken place due to rash and negligent driving of claimant himself. Respondent No.3 filed written statement taking preliminary objections that the petitioner has no cause of action to file the petition and the petition is bad for mis- joinder and non-joinder of necessary parties and the petitioner has not made the insurer of the motor cycle bearing registration No. HR 28 A 8987 as respondent, who is a necessary party. It is further alleged that driver of the vehicle in question RJ-05/P/0145 was not working under the authority and control of respondent No.1 at the time of alleged accident and as such the insurance company is not liable. The other objections, as envisaged under Section 134 © of the Motor Vehicle Act were taken. No replication was filed. The learned Tribunal framed the following issues:- 1. Whether the accident in question took place on account of rash and negligent driving of bus bearing No. RJ-05/P/0145 by respondent No.2 as alleged? OPP 2. If issue No.1 is proved, whether petitioner Manrej sustained injuries in the accident in question and he is entitled to get compensation if so, to what amount and from whom? OPP FAO No. 1264 of 2008 -3- 3. Whether respondent No.2 was not holding valid and effective driving licence and the insured violated the terms and conditions of the insurance policy, as alleged. If so, to what effect? OPR3 4. Relief. While deciding issue No.1, relying upon authority reported as Oriental Insurance Company vs. Meena 2007 (2) TAC 417, it was observed that driver in a MACT case is a necessary party and since he has been given up, so the petition has become bad for non- joinder of necessary parties. The petition was dismissed on the sole ground that driver has been given up. Feeling dissatisfied with the above said award, the present appeal has been filed. Learned counsel for the appellant relying upon Rule 206 framed by State of Haryana, has submitted that according to the said provision, notice is required to be given to the owner and Insurance company and there is no legal requirement for issuing notice to the driver. It is submitted that driver was not served inspite of many dates and on that account he was given the impression that he was not a necessary party. So, prayer has been made for remand of the case and deciding the case on merits after issuing notice to the driver. The prayer has been opposed and learned counsel for the Insurance company has submitted that matter has already been adjudicated and as such the appeal be dismissed. I have given my thoughtful consideration to the rival FAO No. 1264 of 2008 -4- submissions made by counsel for both the sides and have also gone through the record of the case. From the perusal of the record, it is revealed that claim petition has been dismissed on the simple ground that driver has been given up. The driver has been arrayed as respondent. The explanation given by counsel for the appellant is that since he was not duly served and on account of Rule 206, referred to above, he has been given up. The Motor Vehicle Act is a welfare legislation and has been enacted with underlying idea to provide relief to the road accident victim. So, the appellant could not be dislodged on the ground of technicalities. The Tribunal should have asked the claimant to get the service on driver effected. So, in these circumstances, the impugned order stands set aside and the case is remanded back for fresh trial. The trial Court shall issue notice to the driver and in case, he is avoiding service, then he may be summoned through substituted service in accordance with law. Parties are directed to appear before the Tribunal on 3.5.2010. ( K.C. Puri ) 1.4.2010 Judge chugh