SETHNA BERJIS JEHANGIR Vs. JOGENDRA SHIVNARAYAN KUSHAVAH

JUDGEMENT

(1.) Heard learned advocate Ms. Amrita Ajmera with Mr. Bomi H. Sethna for the petitioner.

(2.) Rule, returnable on 14.12.2018. Copy of Rojkam referred by the advocate for the petitioner is to be taken on record. From such Rojkam, the petitioner has relied upon Rojkam of 20.6.2017 wherein there is reference to Exhs.14 and 15 being applications by the applicant for issuance of notice upon original opponents No.1 and 2 for service through publication of such notice in Government Gazette. Learned advocate for the petitioner has submitted that unfortunately before passing any order below such applications, Tribunal has proceeded further in recording evidence and when it was noticed by the petitioner that instead of allowing or rejecting the applications at Exhs.14 and 15; probably because there was an order below Exh.3 as back as on 12.2.2013 to dismiss the petition against opponents No.1 and 2 for want of prosecution since petitioner could not serve opponents No.1 and 2; by such order dated 12.2.2013, unfortunately, the Tribunal has specifically observed that the petition shall be proceeded to in its judicial course qua opponent No.3, unfortunately, opponents No.1 and 2 are respectively driver and owner of the vehicle which was involved in the incident; whereas, opponent No.3 is the insured - Insurance Company and therefore, practically, by all means in absence of driver, and more particularly, owner, the claim petition cannot be proceeded further against the insured, only because, ultimately, the Insurance Company has to indemnify the owner, otherwise, basic responsibility and liability to pay compensation to the injured victim rests upon the driver and owner of the vehicle only. Learned advocate for the petitioner has also pointed out that when petitioner came to know about such situation, by applications at Exhs.14 and 15, on 11.9.2018, the petitioner has prayed to join opponents No.1 and 2 again, disclosing their better address. However, by impugned order, the Tribunal has rejected such applications, contending that the claim petition has already been dismissed against opponents No.1 and 2 and, now, when evidence is recorded, such applications cannot be allowed.

(3.) It is undisputed fact that on the date of accident, petitioner was minor and when he could not prefer claim petition through his guardian immediately after the accident, he has preferred it only when he became major. It is also undisputed fact that pursuant to provisions of Sub-section (6) of Section 158 of the Motor Vehicles Act, 1988 read with Rule 150 of the Central Motor Vehicle Rules, 1989, the investigating agency is duty-bound to forward the requisite information in Form No.54 as prescribed in the above rules to the Tribunal within 30 days from the date of recording of information or as the case may be on completion of such report and therefore, if the investigating agency has forwarded such information regarding injuries caused by driver of the motor vehicle, which is certainly a hazardous machinery, permitted to be applied within population, then, Tribunal would certainly have some information at the earliest to proceed further in accordance with law and when driver was probably arrested at the time of filing of chargesheet, it would be easy for the Tribunal and the claimant to serve notice upon him, in consequence upon his employer, the owner of the vehicle in question. Non-following of such statutory provision even after repeated directions by the Hon'ble Supreme Court and this court, results into such situation.