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2019 DIGILAW 1388 (RAJ)

New India Assurance Co. Ltd. v. Mahendra Baid

2019-05-08

PRAKASH GUPTA

body2019
JUDGMENT : Prakash Gupta, J. 1. All the aforesaid appeals have been filed against the judgment and award passed by Additional District and Sessions Judge No. 17, Jaipur Metropolitan, Jaipur in claim petition Nos. 80/2008, 81/2008, 82/2008 and 83/2008 whereby all the claim petitions were decided together and common judgment and award were passed. 2. Since these appeals are directed against the same judgment and award, therefore, they are being decided together by this common judgment. 3. Brief facts given rise to these appeals are that the four claim petitions were filed by the claimants under Section 166 of Motor Vehicle Act, 1988 (for short "the Act of 1988") before the Tribunal on account of the motor vehicle accident which occurred on 18.10.2006 in which claimants Mahendra Baid, and Smt. Sunita. 4. Nahta had sustained injuries and Neera Baid w/o Mahendra Baid and Shri Sanjay Nahata husband of Smt. Sunita Nahata had died. It is alleged in the claim petition's that the claimants along with Neera Baid, Sanjay Nahta were travelling in an Innova bearing No. RJ 14 UA 0061 from Pushkar to Nakoda which was being driven by the claimant Mahendra Baid. As soon as they reached at Jodhpur-Jhalamand Bye-Pass Road in Sarhad Kharada, Randheer, a trailer-truck bearing No. RJ07 GA 1232 being driven by its driver in a rash and negligent manner hit the Innova Car, as a result of which claimants Mahendra Baid and Neera Baid had sustained injuries and Sanjay Nahata and Neera Baid succumbed to the injuries. The claim petitions, filed by the claimants were partly allowed by the Tribunal. 5. Aggrieved of the same, the New India Assurance Ltd., Co. have preferred four appeals Nos. 3153/2015, 3130/2015, 3131/2015 and 3134/2015 whereas the claimants Sunita Nahata and Mehendra Baid have preferred appeals bearing No. 3735/2015, 3736/2015, 3757/2015 and 3767/2015. 6. I have heard learned counsel for the parties and perused the material available on record. 7. It is noticeable that apart from arguing the case at length on its merits, much emphasis was laid on the fact that the learned Tribunal did not consider the fact that in two claim petitions the owner and the insurer of the Innova car were not impleaded as respondents whereas in other two claim petitions both of them were made respondents. Admittedly, an application for impleading them as the respondents to the said two claim petitions were submitted on behalf of insurer of the Truck to implead the owner and the insurer of the Innova car as respondents but the learned Tribunal vide order dated 21.02.2012 dismissed the said application mainly on two grounds. The first ground was that no negligence could be attributed to the driver of the Innova Car. The other ground was that all the four claim petitions had already been consolidated and in two of them, the owner and insurer of the Innova Car were party respondents. In my considered view, these findings of the learned Tribunal are without any merit. It is settled law that at the time of deciding the application for impleadment, the merits of the controversy cannot be taken note of. At that stage, as the provisions of Order 1 Rule 10 CPC say, the only thing to be seen is whether the proposed party is a necessary or proper party or not and for that purpose not only the pleadings of the parties but also the documents placed on record would also be material. In this case apart from the written statement of the insurer of the Truck, the site plan prepared by the police during investigation prima facie showed the negligence of the driver of the Innova Car. But the learned Tribunal appears to have been influenced by the fact that no compensation was claimed against the owner, driver and insurer of the Innova Car and it is at that point that the Tribunal failed to correctly appreciate the legal position. It is again repeated that the merits were not at all relevant at that stage. The Tribunal also committed illegality in observing that after consolidation of all the four cases, the owner and insurer of the Innova Car were not necessary parties. The consolidation of the cases is ordered for the convenience of the parties and to save time and expenses but it does not convey that the defect of non joinder of necessary parties in two claim petitions will be removed by consolidation. The judgment in all the four cases may be a composite one but the defect of non joinder of necessary parties would still survives even after consolidation. The judgment in all the four cases may be a composite one but the defect of non joinder of necessary parties would still survives even after consolidation. Therefore, the order dated 25.04.2015 of the Tribunal dismissing the application under Order 1 Rule 10 CPC is illegal and calls for interference. The learned Tribunal has also failed to consider the effect of the statement of P.W. 2 who is also an eye-witness as well as injured. She has specifically stated that the accident took place on the middle of the road. Her statement assumes importance specially in view of the fact that head on collision took place and therefore, without considering her evidence, the learned Tribunal was at fault in the giving finding that the case of contributory negligence was not made out. On this ground also the owner, driver and injurer of the Innova Car were necessary parties to all the claim petitions. It is not clear as to why they were made party only in two petitions and left out from the rest of the two, though, all the claimants were represented by the same counsel in the Court below. In view of this the judgment and award passed by the Tribunal in the absence of the above stated necessary parties are not legal. Consequently, the order of the Tribunal dated 25.04.2015 is quashed and set aside and the application under Order 1 Rule 10 CPC is allowed. Resultantly the matter is liable to be remanded for fresh disposal as per law. As the claimants have also filed appeals for enhancement of the compensation amount. The appeals for enhancement also deserves to be disposed of in the following manner. 8. Accordingly, the judgment and award in question is set aside. The claim petitions are remanded to the Tribunal for fresh decision in accordance with law after impleading the owner, driver and insurer of the Innova car as respondents in claim petitions Nos. 80/2008 and 81/2008 and giving them opportunity of filing of written statement. 9. All the appeals are disposed of accordingly. 10. Both the parties are directed to be present in the Tribunal/trial Court on 20.05.2019. Since the matter is very old, the Tribunal/trial Court is directed to decide the same within three months from the date of receipt of this order. Copy of the judgment be placed in connecting appeals.