First Appeal No. 496 of 2009,First Appeal No. 2762 of 2009,First Appeal No. 1429 of 2010

5th October, 2010

Petitioner Counsel: Mr. S.J. SALUNKE
Respondent Counsel: Mr. S.G. CHAPALGAONKAR

Cases Cited:
Machhindranath Kernath Kasar Vs. D.S. Mylarappa and others, (2008) 13 SCC 198 [Para 6,11]
New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and others, 2010(2) Mh.L.J. 177 [Para 6]

JUDGMENT

JUDGMENT :- All these Appeals involve common question of law, as such are decided together.

2. The appellants in First Appeal Nos. 496 of 2009 and 2762 of 2009 are the original claimants, whereas the appellant in First Appeal No. 1429 of 2010 is the original opponent/owner of the offending vehicle.

3. First Appeal Nos. 496 of 2009 and 1429 of 2010 are arising out of the same Award passed by the Motor Accident Claims Tribunal, Beed [ For short, 'Tribunal' ].

4. In all these Appeals, the appellants are aggrieved on account of the fact that the Insurance Company has been exonerated and that the driver of the other vehicle was negligent.

5. In First Appeal No. 2762 of 2009, the driver of the offending vehicle was holding valid driving licence of the light motor vehicle and was also holding the licence of the transport vehicle, but on the date of accident, the licence of the transport vehicle had already lapsed and was not renewed whereas in the other 2 Appeals it was alleged that the driver was driving the vehicle without licence. In the claim petitions before the Tribunal, out of which the present Appeals have arisen, the driver was not made party nor any notice was issued to the driver as is required under Rules 260 and 261 of the Maharashtra Motor Vehicle Rules [ For short, 'the Rules' ].

6. Mr. A.B.Gatne, the learned counsel for the appellant in First Appeal No. 2716 of 2009 canvassed main arguments and putforth following propositions :

(i) Distinction will have to be drawn between the vehicle driven by the driver who is not holding valid and effective driving licence and the driver who was holding valid driving licence, but the said licence had lapsed.

(ii) The insurer has to satisfy the Tribunal or the Court that the violation or infringement of the breach of policy on the part of the insured was willful. The burden of proof is on the Insurance Company to prove the "willful" lapse on the part of the insured.

(iii) The case revolved around the proof of negligence of the driver of the vehicle. Admittedly, 2 vehicles were involved. The driver of the vehicle, of which the owners have been made liable, were neither party to the claim petition before the Tribunal nor any notice was issued to them and as such the proceedings stand vitiated. For the said purpose, Mr. Gatne, the learned counsel relied on the Judgment of the Apex Court in the case of Machhindranath Kernath Kasar V/s D.S. Mylarappa and others 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 Company Ltd., Aurangabad V/s Suman Bhaskar Pawar and others reported in 2010 (2) Mh.L.J. 177 and prayed for remand of the matter.

7. The learned counsel for the other appellants have adopted the arguments of Mr. Gatne.

8. Mr. V.R.Mundada, the learned counsel for the Insurance Company submitted that the moment it is found that breach of policy has been committed, the Insurance Company is exonerated from its liability. The licence had lapsed long back in case of the driver in First Appeal No. 2762 of 2009 and in other appeals, the driver was not holding the licence. As such, by no stretch, the Insurance Company can be made liable.

9. Mr. Mundada, the learned counsel further submitted that remand of the matter would not serve any purpose. More over, the claimants nor the owners of the vehicle nor had made the driver party nor they had applied to the Court to issue notice to the driver. The appellants can not be allowed to take advantage of their own wrong. According to the learned counsel, the issuance of the notice is not mandatory but is only directory.

10. With the assistance of the learned counsels, I have gone through various Judgments cited by the learned counsels and the pleadings.

11. It is a matter of record that the driver of the offending vehicle have not been made party in the claim petition nor any notice has been issued to them as is contemplated under Rule 260 (i) and (ii) of the Maharashtra Motor Vehicles Rules, 1989. The Apex Court in the case of Machhindranath Kernath Kasar referred supra in paragraph no. 42 has observed thus,

"42. 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 fact 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".

12. The learned Single Judge of this Court in the case of New India Assurance Co. Ltd. referred supra, relying on the Judgment of the Apex Court in the case of Machhindranath Kernath Kasar referred supra has also held as under :

"16. (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 or 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 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".

13. In light of the above, though the arguments were canvassed at length by the learned counsel Mr. Gatne, relying on the various Judgments of the Apex Court, I am not considering the said issues raised by the learned counsel in view of the fact that the notice to the driver of the vehicle has not been issued nor the driver was party in the claim petition, I think it appropriate to remand the matter to the Tribunal for deciding it afresh after issuance of notice to the driver. After remand, the Tribunal shall consider the matter afresh and deal with all the submissions of the parties on all issues. All issues are kept open.

14. In the result, I pass the following order.

(i) The impugned Judgment and Award are quashed and set aside. The matters are remitted back to the Tribunal for deciding it afresh in light of the observations made above.

(ii) The parties shall appear before the Tribunal on 15/11/2010.

(iii) The Tribunal shall issue notice to the driver of the offending vehicle and thereafter after giving opportunity to all the parties, shall decide the petitions by the end of May, 2011.

(iv) The amount deposited by the appellants be refunded to them.

(v) All issues are kept open and the matter shall be decided afresh by the Tribunal in light of the evidence and arguments before it. However, there shall be no order as to costs.

Order accordingly.