The High Court of Bombay dismissed an insurer's appeal for non-prosection due to failure to produce proof of substituted service by publication within the directed timeline.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 901 OF 1996
The New India Assurance Co. Limited. .. Appellant Vs Chandrabaga Sitaram Kamble. .. Respondent
Shri S.M. Vidyarthi for the Appellant. Shri T.J. Mandon for Respondent Nos. 1 and 3.
CORAM : A.S.OKA, J. DATE : 16TH APRIL, 2010
ORAL JUDGMENT :
1.This Appeal has been preferred by the
Appellant-Insurer for challenging the judgment and
award made by the Motor Accident Claims Tribunal in a
Claim Petition filed by the 1st to 3rd Respondents under
Section 166 of the Motor Vehicles Act, 1988. The
allegation of the Claimants is that the deceased
Sitaram died in a motor accident on account of rash
and negligent driving on the part of the driver of the
truck which was insured with the Appellant. The
contention raised by the Appellant was that the
deceased was travelling as a gratuitous passenger in a
goods vehicle and therefore, the liability arising out
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of death of the deceased was not required to be
covered under the policy of insurance issued by the
Appellant. The said defence of the Appellant was
rejected and the award was passed against the owner
and driver of the truck as well as against the
Appellant.
2.The ground of challenge in this Appeal is
that the Appellant is not liable to pay compensation
and the liability is only of the owner and the driver
of the Truck. The Respondent No.4 is the driver of
the vehicle against whom the appeal stands abated.
The Respondent No.5 is a owner of the Truck. As per
the order dated 24th February, 2009 passed by the
Registrar (Judicial-I), the appeal was dismissed for
non-prosecution as against the Respondent No.5 as no
steps were taken for effecting service of the notice
to the said Respondent. The appeal was restored by
this Court as against the Respondent No.5 as per the
order dated 1st February, 2010. By a separate order, a
permission was granted to the Appellant to serve
notice of Respondent No.5 by substituted service by
publication. On 2nd March, 2010, when the appeal was
called out, it was found that a copy of the
publication notice was not submitted on record by the
Appellant. Therefore, this Court dismissed the
appeal as against the Respondent No.5. Thereafter, on
22nd March, 2010, 23rd March, 2010, 26th March, 2010 and
13th April, 2010, time was granted to the Appellant to
produce copies of the newspapers containing the notice
and to apply for restoration. The learned counsel
appearing for the Appellant states that till today he
has not received any instructions from the Appellant
as to whether notice has been published in terms of
the order of this Court passed on 1st February, 2010.
The learned counsel appearing for the Appellant seeks
further time. Sufficient indulgence has been already
shown to the Appellant. No further time can be
granted in this Appeal of the year 1996 which arises
out of the claim Petition of the year 1992 relating to
the accident taken place on 26th May, 1991.
2.If the contention of the Appellant in this
Appeal is accepted, the 5th Respondent will be directly
affected by the judgment and decree passed by this
Court. As the appeal stands dismissed as against the
Respondent No.5, the same does not survive and the
same is accordingly dismissed with no orders as to
costs. The amount deposited by the Appellant in this
Court together with interest, if any, accrued thereon
shall be transmitted to the concerned Tribunal. The
Tribunal will hear the parties and pass orders
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regarding withdrawal and/or disbursement of the
amount. The Record and Proceeding be sent back
forthwith.
(A.S.OKA, J)
The New India Assurance Co. Limited
Chandrabaga Sitaram Kamble
A.S. OKA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court