NATIONAL INSURANCE CO LTD Vs. VACHISTA

JUDGEMENT

(1.) This is an Appeal filed by the Insurance Company-orig. respondent no.2 in M.A.C.P. No.04/2006 challenging the Judgment and Award dated 12.12.2006 passed by the Motor Accident Claims Tribunal, Ambajogai by which the appellant insurance company along with owner of the vehicle who is respondent no.2 herein, are directed to pay jointly and severally, an amount of Rs.2,75,000/ - inclusive of no fault liability, to the respondent no. 1-claimant, together with interest at the rate of 7.5% p.a. from the date of Petition, till its realisation. The Tribunal has recorded the findings that the respondent no.1-claimant has sustained 40% permanent disability in motor accident involving Jeep bearing No.MH-24-C-1006 on 10.05.2005 at about 7 p.m. near Neelkamal Hotel Dhaba, Shirsala due to rash and negligent driving of the said Jeep by its driver one Uttam Dagadu Pawar, who gave dash to the motor cycle No.MH-23-K-2210 of the respondent No.l-claimant. The owner of the vehicle who is respondent No.2 herein has been held vicariously liable for the act of rash and negligent driving of the driver, whereas the appellant insurance company has been held liable to indemnify the owner for compensation.

(2.) Notice before admission in this Appeal, was issued on 12.11.2008, which was made returnable on 17.12.2008. By the same order, the parties were informed that the appeal is likely to be disposed of finally at the stage of admission. By an order dated 11.02.2009, the record and proceedings were called. On 07.05.2009, this Court was observed that the respondent nos.1 and 2, though served, are absent and the order dated 12.11.2008 indicates that the matter was to be finally heard. It was further noted that the appellant Insurance company has deposited the entire amount. The matter was therefore fixed for final hearing at the stage of admission on 14th September, 2009. Accordingly, the matter is taken up for hearing. Admit. None for Respondents. With the consent of the learned Counsel appearing for the appellant, the matter is heard for final disposal.

(3.) The appellant insurance company challenged the aforesaid judgment and award only on 2 grounds i.e. (i) the driver of the vehicle i.e Jeep bearing No.MH-24-C-1006 was necessary party in claim petition filed under section 166 of the Motor Vehicle Act and in his absence no findings regarding the rash and negligent driving can be arrived at, (ii) the disability certificate at Exhibit-22, produced by the claimant showing permanent ortho disability to the extent of 40%, has not been proved because the Doctor, who has issued the said certificate, has not been examined. In support of 1st contentions, the learned Counsel for the appellant relied upon the decisions of the Apex Court Oriental Insurance Company Vs. Meena Varial, 2007 AIR(SC) 1609 and Oriental Insurance Co. Ltd. Vs. Premlata N. Shukla and ors, 2007 AIR(SCW) 3591 In support of second point the learned Counsel for the appellant has relied upon the decision of the Apex Court Rajesh Kumar Vs. Yudhvir Singh and another,2008 SCR 1661