The driver of the offending car was not a necessary party in the claim petition for compensation under section 166 of the Motor Vehicles Act, 1988. The responsibility of issuing notice to the proper parties is entrusted to the Tribunal, and a claimant is under no obligation to implead any party as the opponent to the claim petition. The non-impleadment of the driver or absence of notice to the driver did not vitiate the proceeding before the Tribunal.

JUDGMENT

N.J. Jamadar, J. - This appeal and cross objection are directed against the judgment and award dated 2nd December, 2014 passed by the learned Member, MaCT, Mumbai in MaCP No. 1036 of 2013 whereby the application preferred by respondent Nos. 1 and 2/ original claimants for compensation under section 166 of the Motor Vehicles act, 1988 (MV act, 1988) in respect of death of their son Milind ashok Bambulkar (the deceased) in the vehicular accident, came to be partly allowed by awarding a compensation of Rs. 8,87,000/- along with interest at the rate of 7.5% p.a. from the date of application till realization.

2. Shorn of superfluities, the background facts leading to appeal and cross objection can be stated as under:

(a) Milind, the deceased, then 25 years of age was working as an Office assistant with Royal art Electrodes Limited, Vasai. He drew salary of Rs. 10,000/- p.m. On 18th May, 2013 at about 11.40 pm the deceased was riding a motor cycle bearing No. MH-02-CS 710 on his way to Pramila Nagar, Flyover bridge, Dahisar (w), Mumbai. Mr. Sunil Patre was the pillion rider. When they reached Pramila Nagar Flyover bridge, a car, of Tata Indica make, bearing registration No. MH-04-DE-9946 came from behind in a high speed. The driver of the said car lost control and gave a violent dash to the motor cycle from behind. The deceased was dragged for a distance.

(b) after primary treatment at Bhagwati hospital, the deceased was shifted to Nair hospital, and therefrom to Bombay hospital, Mumbai. The deceased succumbed to his injuries on 26th May, 2013. The accident occurred on account the negligence on the part of driver of the offending car, which was owned by opponent No. 1/respondent No. 3 and insured with opponent No. 2/appellant herein. Hence, respondent Nos. 1 and 2/ original applicants preferred a claim for compensation of Rs. 20 lakhs.

(c) The opponent No. 1 did not appear despite notice and hence the application proceeded ex-parte against opponent No. 1.

(d) The opponent No. 2/insurer resisted the application by filing written statement. The averments in the application adverse to the interest of the insurer were denied. It was, inter alia, contended that the driver of the offending car was a necessary party and, in his absence, the application for compensation could not be entertained and decided. It was further contended that the driver of the offending car was not at fault and the accident occurred due to the sole negligence of the deceased. Even otherwise, the insurer was not liable to indemnify the insured as there was breach of condition of insurance.

(e) In the light of the rival pleadings, learned Member framed issues at Exhibit 15. The learned Member recorded evidence of applicant No. 1 ashok Babulkar (aW-1), the father of the deceased, and Satish Mohite (aW.2), who was then attached as a Senior Clerk with Bombay Hospital, Sunil Patre (aW.3), the pillion rider on motor cycle driven by the deceased, and Mr. Karim Shaikh (aW.4) who was working as an accountant in Royal art Electrode Limited, where the deceased was employed as an Office assistant.

(f) after appraisal of the evidence and documents tendered for his perusal, the learned Member was persuaded to record the finding that the deceased met death on account of injuries sustained in the accident, which took place due to negligence on the part of the driver of the offending car, there was no breach of conditions of insurance and the application was not bad in law for non-joinder of the driver of the offending car. The learned Member was not, however, persuaded to believe the testimony of the applicant and Karim Shaikh (aW.4) that the deceased was employed as an Office assistant with Royal art Electrodes Limited and drew salary of Rs. 9,449/- for the month of april, 2013, for the reason that the appointment letter and other particulars of employment were not placed on the record of the Tribunal. Thus, assessing the income of the deceased on notional basis at Rs. 3,000/-