1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1445/2009 WITH CIVIL APPLICATION NO. 11182/2010 New India Assurance Company Ltd. Branch Manager, Parbhani, Through its authorized signatory Mr. Vishwas s/o Bansi Gaikwad, Age : 55 years, Occu. Service, Sr. Div. Manager, New India Assurance Co. Ltd., R/o Aurangabad. ...Appellant. Versus 1 Vikita d/o Deepak Gupta, Age : 25 years, Occu. Education. 2 Balaji s/o Deepak Gupta, Age : 24 years, Occu. Education. 3 Namita d/o Deepak Gupta, Age : 22 years, Occu. Education. All R/o Golandaj Galli, Hingoli, Tq. & Dist. Hingoli. 4 Mr.B. Hanikrao Age : Major, Occu. Business, R/o 19-2-152/44, Kishan Bagh, Hyderabad (A.P.) ...Respondents. Shri Dhananjay Deshpande, Advocate for appellant. Shri Sachin Deshmukh, Advocate for respondents no.1 to 3. 2 CORAM : A.V. NIRGUDE, J Date : 09 th August, 2010. ORAL JUDGMENT: 1 By consent of both the learned advocates of the parties, I decided to take up hearing of this case for final disposal. 2 Heard. 3 The facts leading to this appeal are as under. On 30 th January, 2004 a motor accident took place at about 15.00 hours. The vehicular accident took place at Hyderabad. A truck dashed against the auto rickshaw from behind. One Pushpabai was the passenger in the auto rickshaw. Pushpabai died on the spot due to injuries she suffered in the accident. On 20/07/2005 the petition under Section 166 of the Motor Vehicles Act was filed by the respondents No.1 to 3. They are the children of Pushpabai. Surprisingly, they did not implead the owner and driver of the Truck which got involved in the accident. In addition to this, they stated very clearly in the petition that it was solely due to the negligence of the truck driver, the accident took place. They did not say as to why they did not implead the truck driver and owner to this litigation. The appellant Insurance Company which had insured the auto rickshaw, took up a stand that the driver of the auto rickshaw was not negligent and so the owner of the auto rickshaw is not liable to pay any compensation to the respondents. Despite of such stand the learned Member of the Tribunal 3 held the owner of the Auto rickshaw liable to pay the compensation only because it was alleged by the respondents that it was the duty of the Auto rickshaw driver to reach Pushpabai safely at her destination. This reason is clearly inadequate to hold the auto rickshaw owner and the appellant liable to pay the compensation. 4 Shri Deshmukh learned Advocate appearing for the respondents no.1 to 3 requested the Court to remand the case back to the lower Court, where his client would not only amend the claim petition, but would also implead the driver, owner and Insurance Company of the offending truck. It appears that the respondents No.1 to 3 were ill-adviced not to implead the owner, driver and Insurance Company of the offending Truck. It is also clear that since the respondents were not present when the incident took place, they could not have emphatically stated in the petition that it was only due to the negligence on the part of the truck driver, the accident had taken place. I think, they are in a position to clarify their stand on that count also. The appeal deserves to be allowed. I think, the case should be remanded back so that the respondents No.1 to 3 would take evasive action. ORDER The appeal is allowed. The judgment and award set aside. The claim petition 212/2005 is remanded back to the learned Member of the Tribunal, Hingoli. The learned Member of the Tribunal shall as far as possible 4 decide the claim petition within one year from the date of receipt of record and proceedings. Record and proceedings be sent back to the lower Court. The amount deposited by the appellant in the Courts, shall be refunded to them. In view of this, civil application disposed of. [A.V. NIRGUDE, J.] tsk/