FAO No. 1264 of 2008 -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

FAO No. 1264 of 2008 (O&M)

Date of decision : 1.4.2010

...

Mamrej @ Mamraj

................Appellant

vs.

Vinod Kumar Jain and another

.................Respondents

Coram: Hon'ble Mr. Justice K.C. Puri

Present: Sh. Sandeep Jasuja, Advocate

for the appellant

Sh.D.P. Gupta, Advocate

for respondent No.2-Insurance company.

...

K.C. Puri, J. (Oral)

This is an appeal directed by injured- claimant against the

award dated 28.11.2007 passed by MACT, Gurgaon, vide which the

claim petition preferred by the claimant was dismissed on the ground

that driver has been given up.

The case of the claimant is that on 6.1.2006, the petitioner

was going to village Singar from his village Khairawa on a motor

cycle which was being driven by him in a moderate speed and on the

correct left hand side of the road and at about 1.00 P.M. when the

petitioner reached near village Thek, the petitioner was overtaking

FAO No. 1264 of 2008 -2-

bus no. RJ 05/P-0145 with due care and indication and in the

meantime, respondent No.2- the driver of the bus, struck his bus in a

very rash and negligent manner with the motor cycle of the petitioner

from the side and as s result of which the petitioner fell down

alongwith his motor cycle and sustained injuries. It is pleaded that

respondent No.2 was driving the vehicle rashly and negligently.

On notice, respondent No.1 filed the written statement and

has pleaded that the accident in question has taken place due to rash

and negligent driving of claimant himself. Respondent No.3 filed

written statement taking preliminary objections that the petitioner has

no cause of action to file the petition and the petition is bad for mis-

joinder and non-joinder of necessary parties and the petitioner has

not made the insurer of the motor cycle bearing registration No. HR

28 A 8987 as respondent, who is a necessary party. It is further

alleged that driver of the vehicle in question RJ-05/P/0145 was not

working under the authority and control of respondent No.1 at the

time of alleged accident and as such the insurance company is not

liable. The other objections, as envisaged under Section 134 © of the

Motor Vehicle Act were taken. No replication was filed. The learned

Tribunal framed the following issues:-

1. Whether the accident in question took place on account of

rash and negligent driving of bus bearing No. RJ-05/P/0145

by respondent No.2 as alleged? OPP

2. If issue No.1 is proved, whether petitioner Manrej sustained

injuries in the accident in question and he is entitled to get

compensation if so, to what amount and from whom? OPP

FAO No. 1264 of 2008 -3-

3. Whether respondent No.2 was not holding valid and

effective driving licence and the insured violated the terms

and conditions of the insurance policy, as alleged. If so, to

what effect? OPR3

4. Relief.

While deciding issue No.1, relying upon authority reported

as Oriental Insurance Company vs. Meena 2007 (2) TAC 417, it

was observed that driver in a MACT case is a necessary party and

since he has been given up, so the petition has become bad for non-

joinder of necessary parties. The petition was dismissed on the sole

ground that driver has been given up.

Feeling dissatisfied with the above said award, the present

appeal has been filed.

Learned counsel for the appellant relying upon Rule 206

framed by State of Haryana, has submitted that according to the said

provision, notice is required to be given to the owner and Insurance

company and there is no legal requirement for issuing notice to the

driver. It is submitted that driver was not served inspite of many

dates and on that account he was given the impression that he was

not a necessary party. So, prayer has been made for remand of the

case