S. P. SRIVASTAVA, J.

( 1 ) FEELING aggrieved by the award whereunder as against the claim of Rs. 10,60,000/-, the Motor Accidents Claims Tribunal, Gwalior had determined the quantum of compensation of only an amount of Rs. 1,44,600/-, the claimants have now come up in appeal seeking redress praying for the reversal of the impugned award and enhancement of the amount of compensation.

( 2 ) THE Insurer impleaded as respondent No. 3 in the appeal has filed a cross-objection under Order XLI, Rule 22, C. P. C. , seeking the modification of the award and the reduction in the quantum of compensation.

( 3 ) DURING the pendency of the appeal, an application, I. A. No. 7105/97, was filed by the appellant praying that the service of the notice of the appeal so far as the respondent No. 1, the driver of the offending vehicle was concerned, be dispensed with as the case against him before the Motor Accidents Claims Tribunal had proceeded ex parte and the notice of the appeal sent to him could not be served. It was further prayed that since the owner of the offending motor vehicle impleaded as respondent No. 2 in the appeal had died, his name be deleted from the memorandum of the appeal as it was not required under the law to bring on record his heirs and legal representatives

( 4 ) A Division Bench of this Court had disposed of the aforesaid application vide the order dated 30-9-1997 to the following effect :"appellants have stated that respondent No. 2 has died. As such, they seek to delete the name of respondent No. 2 from the array of respondents. It is also prayed that respondent No. 1 was proceeded ex parte before the Tribunal and, therefore, his service be dispensed with. Considering the prayer made by the appellants, the service of respondent No. 1 is dispensed with and the name of respondent No. 2 shall be deleted from the array of respondents by the appellants at their risk. "

( 5 ) WE have heard the learned Counsel for the appellants as well as the learned Counsel representing the Insurer-respondent No. 3, and have also carefully perused the record.

( 6 ) THE learned Counsel for the respondent-Insurer has raised a preliminary objection in regard to the maintainability of this appeal asserting that the appellants having themselves chosen at their own risk to delete the name of the owner of the offending motor vehicle and having omitted to take steps to get the driver of the offending motor vehicle, served with the notice of the appeal, this appeal has been rendered incompetent as in the aforesaid circumstances it is not either possible or permissible to enhance the amount awarded as compensation by the Motor Accidents Claims Tribunal, Gwalior (hereinafter referred to as the Tribunal ).

( 7 ) IN the aforesaid connection, the contention of the learned Counsel for the Insurer is that taking into consideration the nature of the liability which stands cast upon the Insurer under the provisions contained in the Motor Vehicles Act, 1988, and its role having been confined to that of a indemnifier, in the absence of the owner or the driver, the liability which stands cast upon the Insurer under the impugned award cannot be enhanced as it is no longer possible to enhance the liability of the owner of the offending motor vehicle or its driver in their absence behind their back.

( 8 ) THE learned Counsel for the claimants/appellants has on the other hand urged that taking into consideration the implications arising under the provisions contained in Section 155 of the Motor Vehicles Act, 1988, it was not obligatory upon the claimants to bring on record the heirs and legal representatives of the deceased owner of the offending motor vehicle. It has further been urged that considering the provision contained in the Order XLI, Rule 14 (4) of the Code of Civil Procedure, 1908, the service of notice of the appeal on the driver of the offending motor vehicle was not necessary and that is why the claimants were not obliged to get the notice of the appe

Click Here to Read the rest of this document