BISMILLA ABIDULLA ANSARI Vs. KISHORKUMAR N SHAH

JUDGEMENT

(1.) The submissions of the learned counsel appearing for the appellants were heard on the last date and the judgment was reserved. The appellants have taken exception to the judgment and award dated 01st October, 1991 passed by the learned Member of the Motor Accident Claims Tribunal, Thane. The appellants are the original claimants in Motor Accident Claim No.128 of 1985. They applied for compensation on account of death of one Mohamad Yakub Bismilla Ansari in an accident. The appellants are the parents of the deceased. It will not be necessary to refer to the details of the accident as finding recorded by the Tribunal on the point of negligence of the driver of the vehicle involved in the accident is not subject matter of challenge. The Tribunal held that the appellants were entitled to compensation. The compensation amount was quantified by the Tribunal at Rs.33,000/- (inclusive of No Fault Liability) together with interest at the rate of 10% per annum from the date of application till realisation. The operative part of the impugned judgment and order reads thus:

(2.) The first respondent in this appeal is the owner of the vehicle involved in the accident. The second respondent-insurance company is the insurer of the vehicle. The Farad Sheet shows that the name of the first respondent has been deleted by order dated 06th June, 2007 on the prayer made by the appellants. At the time of hearing of the appeal a query was made by the Court as to whether an order of enhancement in compensation can be passed by this Court in the present appeal when the appeal has been dismissed as against the owner of the vehicle.

(3.) The submission of Shri Behere, the learned advocate appearing for the appellant was that the owner is neither a necessary nor a proper party to the appeal in as much as the first respondent owner has accepted the impugned judgment and award and especially the finding recorded by the Tribunal that the accident occurred due to rash and negligent driving of the truck owned by the first respondent by the driver employed by the first respondent. His submission is that the liability of the second respondent-insurer is a statutory liability. He has supported his submission by relying upon a decision of the Division Bench of the Andhra Pradesh High Court in the case of Meka Chakra Rao Vs. Yelubandi Babu Rao and others (2002 ACJ Page 828). He has also placed reliance on the two decisions of the Apex Court in the case of Guru Govekar Vs. Miss Filomena F. Lobo (AIR 1988 Supreme Court Page 1332) as well as A. Robert Vs. United Indian Insurance Company Ltd (2000 ACJ Page 252). He has taken me through the aforesaid decisions. He has invited invited my attention to the relevant provisions of the Motor Vehicles Act, 1939 and Motor Vehicles Act, 1988. The submission of Shri Behere, the learned advocate for the appellant is that it is a statutory liability of the insurer of the vehicle to pay compensation which is found due and payable in law to the claimant in a Claim Petition. He invited my attention to relevant observations made by the Apex Court as well as Andhra Pradesh High Court in the aforesaid decisions. He submitted that if the appellants make out the case for grant of enhancement, this Court can always modify the award as the second respondent who is statutorily liable to pay compensation is very much before this Court and even in absence of the first respondent-owner, an award can be made against the second respondent.