1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1470 OF 2010 New India Insurance Company Ltd. ..... APPELLANT V E R S U S Shaikh Khaled S/o Shaikh Jilani & another .... RESPONDENTS ----------------------------------------------------------------------------------------------------------------- Mr. S.G.Chapalgaonkar, Advocate for the appellant. Mr. P. F. Patni, Advocate for respondent no. 1. ----------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 12/10/2010 ORAL ORDER : 1. This Court on 27/07/2010 had issued notice to the respondent and the parties were put to notice that the matter would be heard finally at the admission stage. 2. In light of the same and with the consent of the learned counsel for the respective parties, the matter is heard finally at the stage of admission. 3. Present respondent no. 1 had filed petition under the provisions of the Motor Vehicle Act [ For short, ‘ the Act ’ ] on the count that the claimant, who 2 was going on bicycle, was given a dash by the tractor which is owned by the present respondent no. 2 and he has suffered permanent disability. He has claimed compensation of Rs. 1,50,000/-. 4. The present appellant is the insurer of the said tractor involved in the accident. The present appellant filed Written Statement denying its liability, the negligence of the driver so also contended that the driver was not holding valid licence and there is breach of policy. 5. The Tribunal vide its Judgment and Award dated 16/12/2009, awarded compensation of Rs. 90,600/-. The Insurance Company has challenged the same in the present Appeal. 6. Heard Mr. S.G.Chapalgaonkar, the learned counsel for the appellant and Mr. P. F. Patni, the learned counsel for respondent no. 1/claimant. 7. Mr. S.G.Chapalgaonkar, the learned counsel for the appellant amongst other grounds submitted that the factum of negligence of the driver of tractor was also the matter in dispute. But, the said driver was not made party nor any notice was issued to the driver as required under Rules 260 and 261 of the Maharashtra Motor Vehicles Rules [ For short, ‘ the Rules ’ ]. According to him, non issuance of notice to the driver vitiates whole proceedings. He has also submitted that as the driver was not holding any valid driving licence, the Insurance Company could not have been made liable for the claim as it was the case of breach of policy. Mr. Chapalgaonkar relied on the Judgment of the Apex 3 Court in the case of Machhindranath Kernath Kasar V/s D.S.Mylarappa & Oths. Reported in (2008) 13 Supreme Court Cases – 198 and the Judgment of the learned Single Judge of this Court in the case of New India Assurance Co. V/s Suman Bhaskar Pawar and others reported in 2010 (2) Mh. L.J. - 177. 8. Per contra, Mr. P. F. Patni, the learned counsel for respondent no. 1/original claimant submitted that the provisions of Section 166 of the Act is part of the beneficial legislation and the welfare statute. From the perusal of Rule 260 of the Rules, it is manifest that the notice has to be issued either to the owner or the driver. When owner is a party, there is no necessity of issuing notice to the driver. According to him, the question of negligence was never the matter of dispute. Only the general denial has been made. It is the duty of the respondents to prove that the driver was not negligent, more particularly, when the accident is between the tractor and the cyclist. Mr. P. F. Patni, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of National Insurance Company Ltd. V/s Vachista S/o Dnyanoba Karad & another reported in 2010 (3) ALL M R - 396. 9. Heard learned counsels at length and with their assistance gone through the record. 10. The Insurance Company in the Written Statement had not admitted the plea raised by the claimant about the negligence of the driver of the tractor. As such, the issue of negligence was very much germain in the matter. The Apex 4 Court in the case of Machhindranath Kasar referred supra has succinctly held as under : “ To make a finding on negligence without involving the driver as at least a witness would vitiate the proceedings not only on the basis of the fat that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate ”. 11. The said Judgment was relied by the learned Single Judge of this Court in the case of New India Assurance Co. referred supra and this Court also observed as under : “ 16. (vii) The requirement of Rule 260 (1) and (2) of the Maharashtra Motor Vehicles Rules, 1989 is mandatory and the Tribunal shall send to the owner or driver of the vehicle or both, involved in the accident and its insurer, a copy of the application and annexures thereto, together with notice of the date on which the parties shall enter their appearance. (viii) The service of notice shall be effected on owner, driver and insurer of the offending vehicle in question, as the case may be, by way of personal service, through the bailiff or by Registered Post A/D both, as the Tribunal may deem fit and proper. (ix) If the driver or owner or insurer of the offending vehicle does not respond to the notice so issued and 5 duly served, the Tribunal may proceed ex parte and pass an Award against any of them or all of them and the proceedings shall not vitiate for not calling a driver and examining him as witness ”. 12. No doubt, the statute is the benevolent statute meant to redress the grievance of the claimant and to provide a succor to the claimants. But, at the same time, the mandatory provisions can not be lost sight of. When the question of negligence was fundamental to the dispute and the Apex Court has held that non issuance of notice to the driver in such cases would vitiate the proceedings itself, then even if the driver is not added as a party, the Tribunal is duty bound to issue notice to the driver. Just because the driver has not been arrayed as a party, that would not absolve the Tribunal of its duty to issue notice to the driver. Rules 260 and 261 of the Rules have been incorporated taking into account all these contingencies, though the driver is not the necessary party, still the notice would be required to be issued to them. At this stage, the learned counsels agree that the matter be remanded back to the Tribunal. 13. In view of the same, I am not deciding the other issues involved in the matter. The parties are at liberty to agitate the said issues before the Tribunal. 15. In the result, I pass the following order. (i) The Appeal is partly allowed. 6 (ii) The impugned Judgment and Award is set aside. The matter is remitted back to the Tribunal. (iii) The driver shall issue notice to the driver of the tractor and thereafter decide the proceedings. (iv) The parties shall appear before the Tribunal on 15/11/2010. The owner i.e. present respondent no. 1 though was served with the notice of final disposal of the Appeal, did not appear. As such, the Tribunal shall issue notice to the present respondent no. 1 also. (v) The amount which deposited by the appellant shall be transmitted to the Tribunal. The Tribunal shall keep the said amount in the Fixed Deposit and the amount shall be withdrawn subject to the final decision of the Tribunal. (vi) The Tribunal shall decide the matter within the period of six months from the date of appearance of all the parties before it. (vii) The present Appeal is disposed off with above observations. [ S.V. GANGAPURWALA ] JUDGE knp/FA 1470.10