1 FA No.1143/95 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FIRST APPEAL NO.1143 of 1995 The New India Assurance Co.Ltd ... Appellant versus Ramchandra Tukaram Lavangare ... Respondent ... Mr.M.G.Barve for the appellant. CORAM : D.G. KARNIK, J. DATED : 16th August 2010 ORAL JUDGMENT:­ 1. This appeal is directed against the judgment and order dated 5 October 1995 passed by the Member, Motor Accident Claims Tribunal, Satara (for short “the Tribunal”) granting compensation in the sum of Rs.2,62,090/­ to the respondent no.1. 2. Respondent no.1 died during the pendency of an appeal. Heirs of respondent no.1 were not brought on record. By reason of a conditional order dated 3 May 2010 and non taking of the steps to bring the heirs of respondent no.1 on record, the appeal stands abated against respondent no.1. In my view, the effect of abatement of appeal against respondent no.1 would amount to abatement/dismissal of the entire appeal for the reasons indicated below. 2 FA No.1143/95 3. Respondent no.2 is the owner of the vehicle. A decree for possession was jointly passed against the petitioner and respondent no. 2 in favour of respondent no.1. Since the decree has become final against the respondent no.1 who has since died, the entire appeal must abate. 4. Mr.Barve, learned counsel for the appellant relying upon the decision of this Court in Lahu Lakma Bije Vs. Kirtikumar Dayalji Kothari, 2010 All. M.R 138, submitted that appellant was entitled to a contribution from respondent no.2 because the vehicle was used in breach of the condition of insurance policy. By the impugned judgment, the liability of the petitioner and respondent no.2 has been held to be joint and several. That order has become final qua the respondent no.1 on account of the dismissal/abatement of the appeal against respondent no.1. The order providing for joint and several liability cannot be modified without the respondent no.1 being a party. Otherwise there would be possibility of two inconsistent orders, the first order being the order in favour of respondent no.1 regarding the joint and several liability of the appellant and respondent no.2 and another order holding that appellant is not liable jointly and severally on account of breach of condition of insurance policy. This is impermissible. First Appeal is therefore dismissed as a whole. 5. Learned counsel for the appellant prays for stay of operation of this order. Request is rejected. (D.G. KARNIK,J.)