JUDGMENT :

This is an appeal filed by the appellant/original petitioner against the judgment and award passed by the Member, Motor Accident Claim Tribunal-2, Nagpur in Motor Accident Claim Petition No. 54 of 2008, partly decreeing the claim petition.

(2) The brief facts are as under:

The appellant herein is a businessman. The motor accident took place on 18.03.2006 at Mouza Gumthala area on National Highway, Tah. Kamptee, District Nagpur. On the fateful day, the petitioner was driving the vehicle namely, Toyota Qualis bearing registration No. MH-31/CM-1337 and was returning to Nagpur. The appellant’s two friends, namely, Hemant Poptani and Mr. Suresh Gyanchandani were also traveling in the car on that fateful day.

(3) At about 4:30 am, while the appellant was returning to Nagpur on National Highway No. 6, which was a narrow road of around 30 Ft. without any divider, a truck which was coming from opposite direction tried to overtake another vehicle which was in front of it, resulting into encroachment on other lane of the road where appellant was driving his vehicle towards Nagpur. Due to rash and negligent driving of the Truck, the appellant was required to immediately apply breaks and tilt his vehicle towards left. Since the main road had kaccha road of around 5 ft. on both the sides this resulted into loss of control of the vehicle and resultantly the appellant’s vehicle dashed against a Babul Tree. Had the petitioner not tilted his vehicle towards left, the same would have resulted into a dash with the truck which would have caused more devastating consequences.

(4) According to the appellant, after the accident he was not in a position to state the details of the accident to the Police Authorities. The Police Authorities, therefore, on their own without verifying and investigating the accident, prepared the documents. They failed to take statement of the appellant as well as other co-passengers of the cars.

(5) The appellant was required to immediately taken to Dr. Chaudhary Hospital situated at area Sakkardara, Nagpur and was admitted for about 15 days. He underwent operation of his right hand and was also given traction therapy for hip joint for a period of three months. Because of the various injuries suffered by the petitioner his right side body was paralyzed. The sciatic nerve of the right leg of the appellant was completely damaged which has resulted into complete non-functioning of his right leg. He is unable to sit, stand and walk properly and do other daily activities. In all, he suffered medical expenses of Rs.48,45,000/-and other losses. The details of which are given in claim petition. Therefore, the claim petition.

(6) The respondent-insurance company resisted the claim by filling its written statement (Exh. 62). The Insurance company denied all the averments raised in the claim petition.

(7) By way of specific pleadings, the insurance company contended that gratuitous driver and/or owner’s representative and/or person/s who was driving the vehicle borrowed pursuant to the relationship between the owner, is not a third party and cannot be treated as third party against the insurer. The insurer of the said vehicle and his risk is not covered under the policy.

(8) Since the appellant has not joined the driver, owner and insurer of actual offending vehicle who is claimed to be solely responsible for the accident the claim petition is bad in law for misjoinder and non-joinder of necessary and proper parties.

(9) According to the insurance company, the documents on record filed and relied upon by the appellant would suggest that that it was the appellant who was responsible for the accident in question. Thus for all these reasons the claim petition is liable to be rejected.

(10) On the basis of the rival pleadings, the learned Member framed issues (Exh. 64) and after appreciating the evidence led by the rival parties gav