(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. FIRST APPEAL NO. 839 OF 2009 Sakharam s/o. Hari Desai, Age : 65 years, Occupation : Agriculturist, .. Appellant resident of Masva, (Original Taluka : Bhujargadh, respondent District : Kolhapur. no.2 ) versus 1. Kasabai w/o. Pralhad Rathod, Age : 40 years, Occupation : Agriculture, Resident of Kandari (Tanda), Taluka and District : Jalna. 2. Nirmala d/o. Pralhad Rathod, Age : 16 years, Occupation : Household, Minor. 3. Tulsa d/o. Pralhad Rathod, Age : 14 years, Occupation & R/o. as above. 4. Rukhman d/o. Pralhad Rathod, Age : 12 years, Occupation & R/o. as above. (2) 5. Dnyaneshwar s/o. Pralhad Rathod, Age : 10 years, Occupation & R/o. as above. (Respondent Nos.2 to 5 are minors under guardianship of their natural mother Kasabai w/o. Pralhad Rathod) 6. Dhondiram s/o. Parsu Kamble, Age : 60 years, Occupation : Driver, R/o. Masva, Taluka : Bhujargadh, District : Kolhapur. 7. Hindurao s/o. Rauba Thanekar, Age : Major, Occupation : Business, .. Respondents R/o. Jattharwadi, (Nos.1 to 5 - Taluka : Karvir, Original claimants District : Kolhapur. & Nos.6 and 7 - 8. The New India Insurance Co. Ltd., Original Branch No. 151, 103, Kolhapur, respondents ) "Naduban", Near Pach Bangala, Shahupuri, Kolhapur. ....................... Mr. N.K. Kakade, Advocate, for the appellant. Mr. S.P. Sonpawale, Advocate, for respondent nos.1 to 5 (Absent). Appeal dismissed as against respondent nos.6 and 7 vide court's order dated 17-7-2003. (3) Mr. V.N. Upadhye, Advocate, for respondent no.8. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 26TH MARCH 2010 COURT'S ORDER : 1. Heard Mr. N.K. Kakade, learned Counsel appearing for original respondent no.2 (appellant). 2. The award dated 31st July 1999 in Motor Accident Claim Petition No. 27/1992, by the learned Member of the Motor Accident Claims Tribunal, Jalna, is questioned on the ground, firstly, there was a valid insurance and the Insurance Company was not made party before the learned Judge in the said petition, Secondly, the appellant herein was not the owner at the material time and consequently, no liability could have been fastened by the learned Member. 3. It is a matter of record, the deceased was 35 years old, left behind 32 years old widow and 4 minors. In spite of all these aspects, the learned Judge granted the compensation for Rs. 1,00,000/- with interest at the rate of 12 % per annum. (4) 4. Without adverting to these aspects, the fact remains, the Insurance Company was necessary party to have been impleaded, which claimant failed. Now such exercise is taken by the appellant having faced brunt of the award, such exercise cannot be said to be unjust. In the result, the matter requires to be remitted to the learned Judge where the appellant herein shall make an appropriate application seeking impleadment of Insurance Company viz. the New India Insurance Company Ltd., Branch No. 151, 103, Kolhapur. However, considering the age of the claimants and the matter being dragged for virtually 10 years, the appellant will additionally deposit an amount of Rs. 25,000/- before the learned Member of the Motor Accident Claims Tribunal, Jalna. 5. In the result, the appeal is partly allowed. (i) The order under challenge is set aside. The matter is remitted back to the Tribunal for deciding the case afresh. The learned Member of the Motor Accident Claims Tribunal shall allow the parties litigating to make application to implead the Insurance Company, tender pleadings, if left, and to deal in legal frame. (ii) The amount deposited in this court on 30-4-2009 in Civil (5) Application No. 4133/2000, by the appellant, be remitted to the executing court. (iii) The appellant is directed to deposit an additional amount of Rs. 25,000/- before the learned Member of the Motor Accident Claims Tribunal, Jalna, up to 5th May 2010, failure, to face the consequences of the award already passed by the learned Member of the Motor Accident Claims Tribunal. (iv) The parties shall appear before the learned Member of the Motor Accident Claims Tribunal, Jalna, on 12th May 2010. (v) This court has not expressed any opinion on merits of the matter. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/fa839