Without considering Domestic Incident Report issuing notice to the Respondents is bad in law-DHC

DELHI HIGH COURT

SINGLE BENCH

( Before : S.N. Dhingra, J )

DHUPENDER SINGH MEHRA AND ANOTHER — Appellant

Vs.

STATE (NCT OF DELHI) AND ANOTHER — Respondent

Criminal M.C. No. 1766 of 2010

Decided on : 08-10-2010

Protection of Women From Domestic Violence Act, 2005 – Section 12, Section 2, Section 23(2), Section 27, Section 28(2)

Counsel for Appearing Parties

Brajesh Kumar, for the Appellant; Anurag, Advocate For the Respondent No. 2, for the Respondent

JUDGMENT

Shiv Narayan Dhingra, J.—By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application u/s 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions.

2. The respondent in her application u/s 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection Officer for filing DIR and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

3. Section 12 of the Domestic Violence Act reads as under:

12. Application to Magistrate

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the Magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent u/s 2(q) of Domestic Violence Act. Section 2(q) reads as under:

2(q) “respondent” means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

5. An application u/s 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence Act. Domestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should riot exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, sexual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application u/s 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial Magistrate Court can have jurisdiction to entertain an application u/s 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of laying down its own procedure for disposal of an application u/s 12 or under sub-section 23(2) but the procedure an MM can adopt cannot be volatile of the Act itself or volatile of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the “respondent” as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.

Date: 08-10-2010


(2011) 1 Crimes 520

Definition of Domestic relationship

Domestic relationship is defined under the Act in Section 2(f) as under:

 ‘Domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application u/s 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship.

Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.

Whether a writ proceeding is civil or criminal depends on the nature of relief claimed and grounds for such relief

Whether a writ proceeding is civil or criminal, depends on the nature of relief claimed and grounds for such relief. “Civil Proceedings” or “Criminal Proceedings” are not defined anywhere. The Constitution of India does not define the expression, “Civil Proceeding” nor does the General Clauses Act. The two proceedings are entirely different and distinct, though at times it may overlap to some extent. But the distinction between the civil proceedings and criminal proceedings is well defined.

In Halsbury’s Laws of England, Fourth Edition, Vol. 11, Criminal and Civil proceedings have been distinguished thus :-

“Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff: criminal proceedings have for their object the punishment of a person who has committed a crime. Criminal proceedings are not to be used as a means of enforcing a civil right. Whether conduct amounts to a crime may be determined by ascertaining whether the conduct in question is followed by criminal or civil proceedings. If the proceedings will result in the punishment of a party, the conduct in question will be a crime notwithstanding that it may be a matter of small consequence. Where an act is commanded or prohibited by statute, disobedience is prima facie criminal unless criminal proceedings manifestly appear to be excluded by the statute. An act may be prohibited or commanded by a statute in such a manner that the person contravening the provision is liable to a pecuniary penalty which is recoverable as a civil debt; in such an instance contravention is not a crime.”

 In State of U.P. v. Mukhtar Singh, AIR 1957 All 505, the Division Bench of the Allahabad High Court considered the nature of the proceedings under Article 226 of the HC-NIC Page 4 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Constitution of India. One of the Judges, Beg, J. explaining the nature of proceedings, held that whether a proceeding is civil or not, depends on the nature of the subject-matter of the proceeding and its object and not on the mode adopted or the form provided for enforcement of right. According to His Lordship, a proceeding which deals with the right of civil nature and otherwise of civil nature does not cease to be so just because the party chooses resort to Article 226 of the Constitution for enforcement of such right. The fact that a right has been created by the Constitution or the forum for its enforcement prescribed by it should not make any difference, if the subject-matter of the right sought to be agitated in the proceedings is itself of a civil nature, and the object of the proceedings is merely the enforcement of such a right, and not punishment of a wrong. On the other hand, Desai, J. constituting the Division Bench was of the view that a proceeding under Article 226 for a writ is not a civil proceeding. According to His Lordship, much confusion has resulted from the assumption, for which there is no warrant at all, that jurisdiction is either civil or criminal. There are several kinds of jurisdictions and there is no foundation for the view that civil and criminal jurisdiction exhaust the list of jurisdictions that can be conferred upon a High Court. According to Desai, J., Article 225 retains the civil, criminal, testamentary, intestate and matrimonial jurisdiction conferred upon the High Courts under the Letters Patent and Article 226 confers additional jurisdiction and since it is the additional jurisdiction, it must be different from the jurisdictions viz. civil or criminal. (see M/s Nagpur Cable Operators Association vs. Commissioner of Police, Nagpur, AIR 1996 Bombay 180)

The Division Bench of the Bombay High Court in J.P. Sharma v. The Phalton Sugar Works Ltd., AIR 1964 Bom 116, while dealing with the proceedings under Article 226 of the Constitution held as under :-

“The next argument of Mr. Joshi is that all proceedings under Article 226 are either civil or criminal. When a person asks for a writ of Habeas Corpus, that is a criminal proceeding. But when a person asks for any other writ than the Habeas Corpus, the proceedings are necessarily civil proceedings. The proceedings started under Article 226 are not proceedings under any Act, but are proceeding to quash the orders made under certain Acts, or for orders restraining the officers to take action under certain Acts. They are, therefore, civil proceedings and not proceedings under the Act. It is not possible to accept HC-NIC Page 5 of 46 Created On Tue Dec 01 01:12:36 IST 2015 the argument. Mr. Joshi admits that the proceedings for the issue of a writ of Habeas Corpus is a criminal proceeding. He admits that it is criminal proceeding because it is a relief asked against the arrest or retention of a person in contravention of the provisions of the criminal law. If that be so, we see no reason why we should hold that even though the relief asked is a relief against an order made under taxation laws or enforcement of the taxation laws against a person, the proceedings should not be revenue in nature. On the other hand, it would be logical to hold that the nature of the relief which is asked for in each case under Art.226 should be determinative of the nature of that proceeding. If the relief asked is against the exercise of powers under criminal law, the proceedings would be criminal proceedings. If the relief asked is for enforcement or in exercise of a civil right to prevent infringement of a civil right, the proceedings will be civil in nature. Similarly, if the relief is sought in relation to the enforcement of the taxation law, the proceedings would be revenue in nature. It is difficult to accept the contention of Mr. Joshi that proceedings under Art.226 are either civil or criminal in nature. On the other hand, we agree, with respect, with the view taken by the Patna High Court that the writ application may be a civil proceeding according to the nature of the application and the questions raised and decided in the proceedings. In the instant case, as already stated, the assessee sought to get quashed the notices issued under Section 34 of the Income-tax Act, and also prayed for an order restraining the Income-tax Officer from taking any action in enforcement of the notices. In other words, in the proceedings under the Income-tax Act, as already stated, are revenue in nature. The writ proceedings with which we were dealing, therefore, were revenue in nature.”

The question whether a writ proceeding under Article 226 of the Constitution of India is a civil proceeding or criminal proceeding is considered at great length in the judgment of the Apex Court in I.S.A. Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818. The Apex Court observed thus :-

“. . . . . The expression “civil proceedings” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A HC-NIC Page 6 of 46 Created On Tue Dec 01 01:12:36 IST 2015 criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts as civil and criminal. . . . . ”
The Supreme Court further observed in the said report as under :-

“. . . . .The character of the proceedings, in our judgment, depends not upon the nature of the Tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration – express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.”
9. The Supreme Court, in the case of Somabhai Mathurbhai Patel vs. New Shorrock Mills, 1983 GLH 273, has taken the following view;

While we are not inclined to grant special leave at this stage, we, however, record our disapproval of the way in which the learned Single Judge has dealt with the judgment of Hon. M. C. Trivedi, J which dealt with the identical point and which judgment was binding on the learned Judge. It is not open to a learned Single Judge to reject the ratio of the decision of another learned Single Judge of the same High Court by merely saying that attention of M. C. Trivedi J. was not invited to the decision of Supreme Court which may have an impact on the point under examination. Judicial comity demands and this Court has often reiterated that in that event the matter should be referred to a larger HC-NIC Page 7 of 46 Created On Tue Dec 01 01:12:36 IST 2015 Bench. But in this case, learned Judge has observed that he is unable to agree with the view taken by M. C. Trivedi, J. because in his view the question was directly covered by an earlier decision of this Court, That aspect of the matter itself needs examination. Therefore, if the matter at any stage goes back to the High Court and the same question is raised in the interest of justice it should be heard by a Division Bench. Mr. Kaji, learned Advocate for the petitioner made another grievance that the relief was granted in the absence of a pleading in the plaint on the question of tenancy as covered by Section 13(1)(f) of the Bombay Rent Act as applicable in Gujarat. Mr. Arun Mehta, learned Advocate for respondent appearing on caveat conceded that as the matter be remanded to the District Judge, Nadiad, plaintiff will seek permission for appropriate amendment of the plaint. If such an application is made, learned Judge may deal with it according to law and it should not be understood that this Court has directed such an amendment being made.


Mother-in-Law’s house does not become ‘shared household’ only because applicant- wife shared that house with her Husband earlier

Hon’ble Supreme Court in S.R.Batra and Another V. Smt.Taruna Batra (AIR 2007 Supreme Court 1118 and 1119), wherein, it is held that the Mother-in-Law’s house does not become ‘shared household’ only because the applicant- wife had shared that house with her Husband earlier. Moreover, it is also observed in the said decision that “for that it has to be a house owned or taken on rent by Husband or a house which belongs to joint family of which Husband is a member’. In addition to this, the Learned counsel for the Petitioners relied on para 28 of the aforesaid Supreme Court’s decision at page 1121, wherein, it is held as under:

“As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No.2, mother of Amit Batra. Hence it cannot be called a ‘shared household’.

Madras High  Court in Sameer Vyas V. State (2010)2 MLJ Crl. 254 at 255, wherein, it is held that “no claim for “shared household” can be made in respect of property of which neither the Petitioner husband nor the respondent wife at a right of tenancy.”

In Neetu Mittal V. Kanta Mittal and Others (AIR 2009 DELHI 72 and 73), wherein, it is interalia held that “Daughter-in-Law cannot claim right to live in house of parents of husband against their consent and wishes”.

A combined reading of Sections 17 and 19 would show that it is only when a protection order under Section 17 read with clauses (a), (b), c, (d) and (e) of Sub Section (1) of Section 19 is claimed, that the property in respect of which it is claimed, should fall within the definition of the expression “shared household” under Section 2(s). To put it in simple terms, if an aggrieved woman seeks either a protection order to enable her to continue to reside in the shared household, then the property which forms the subject matter of the claim, should be a “shared household”, within the meaning of the Act.

But the wife has right in the Joint family property where the husband has a share.

Preparation of memo of appeal is not duty of a litigant but is a technical job must be undertaken by skilled lawyers

RAJASTHAN HIGH COURT (JAIPUR BENCH)

SINGLE BENCH

( Before : Bapna, J. )

GIRWARLAL — Appellant

Vs.

JAGROOP — Respondent

Civil Second Appeal No. 263 of 1955

Decided on : 20-03-1958

Cases Referred

Shangara Singh Vs. Imam Din, AIR 1940 Lahore, 314

Counsel for Appearing Parties

R. P. Goyal, Advocate, for the Appellant; Umrao Lal, Advocate, for the Respondent Nos. 1 and 2

JUDGMENT

Bapna, J.—This is an application for entering the names of Arjun and Godha as respondents in place of Rai Bhan, respondent No. 5, mentioned in the memorandum of appeal, on the ground that a mistake had been made in entering Rai Bhan as respondent No. 5. He had died during the pendency of the case in the lower court, and his two sons Arjun and Godha had been brought on record in the lower court, but as it happened, the certified copy of the judgment and decree, which was prepared by the lower court, continued to mention Rai Bhan as respondent, and the names of Arjun and Godha were not entered in the judgment and decree in place of Rai Bhan. It is said that the mistake is bonafide and Arjun and Godha may now be entered in place of Rai Bhan.

2. Notices were given to the respondents. Mr. Umrao Lal contends on behalf of Arjun and Godha that they should not now he brought on record, as the appellant had failed to implead them as respondents within the period of limitation allowed for the appeal, and they had obtained a valuable right, according to the judgment of the lower court, which should not be put in jeopardy by their being made respondents after the period of limitation. He relies on Shangara Singh v. Imam Din, A.I.R. 1940 Lahore, 314. With great respect I am unable to agree with the decision in the said case of the Lahore High Court. When Arjun and Godha had been brought on record in the lower court, it was the duty of the court to prepare a correct record, and to issue the copy showing the correct names of the parties. It is no doubt the duty of the litigants to instruct their lawyers as to who should be made parties in the case. The preparation of the memorandum of appeal is, however, not the duty of a litigant, but is a technical job, which is to be undertaken by the persons who are skilled in law, and they are the lawyers. If on the face of the judgment and decree the names of the appellants and respondents are given, the lawyer would not apparently be making any mistake in entering those names in the memorandum of appeal. He cannot be expected to make an enquiry whether any person mentioned in the array of parties has died in the meanwhile or not. If any person has died after the judgment, then it may be the duty of the litigant to inform his lawyer. But if nothing has happened after the judgment and decree of the lower court, a party cannot be penalised for the mistake of the lower court. It may be a case of adding a new party in the appeal, but then the only result would be that the appeal would be treated as one filed against him on the date when he was sought to be made a party. If that date is beyond limitation, the party can request for being given the benefit of Section 5 of the Limitation Act. I do nor agree with the reasoning in the Lahore case(Supra), that Section 5 of the Limitation Act is only applicable when the appeal is first presented. So far as the new respondent is concerned, the appeal against him can only be said to be presented when the application is made to make him a party. If that is the date when the appeal can be said to be presented against him, Section 5 of the Limitation Act comes into play.

3. In the present case, I consider that there were good grounds for not impleading Arjun and Godha. Their father Rai Bhan was made a respondent already, and it showed that the appellant had no desire to give up the claim against Arjun and Godha.

4. The application for bringing on record Arjun and Godha is allowed. They will be entered as respondents, and the name of Rai Bhan will be struck off.

Dated : 20-03-1958


(1959) RLW 308

Pre-emptory compensation award u/s 92A of Motor Vehicles Act

There is a proviso added to this section by amendment of 1982 and it says that where such application makes a claim for compensation u/s 92A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A.

Thus it is clear from this legislation that a separate application u/s 92A can be filed and a separate claim u/s 110A can also be filed by the claimants. As mentioned above, to give expeditious relief Section 92A has been enacted and according to this section on a principle of no fault, a compensation is to be granted to the claimant as first mentioned compensation. The point is that u/s 92A only the owner is liable to make this compensation or the Insurer is also liable. If the vehicle is insured and the Insurer is liable to the extent to which the vehicle is insured. So the Insurance Company can also be saddled with the liability u/s 92A of the Act keeping in view the provisions of Section 96 which says that it is the duty of the insurers to satisfy demands against persons insured.

This matter has also been examined in the case of Mahaveer Prasad v. Manmohan (1986) 2 JS 521. This is the decision of our High Court where the question was whether the Insurance Company can be made liable for payment of the interim compensation u/s 92A. In this case it has been observed as under : —

“Having regard to the provisions contained in Sections 92A, 95, 96 and 110B, the insurance company is liable for specifying the compensation claimed, arising from the accident by the insured vehicles in accordance with the terms of Section 95. In this view of the matter, to the extent of the policy, which covers the risk without enquiry as to whether the amount awarded is u/s 92A of the Act or is otherwise, the insurance company is liable to pay the amount awarded. The Tribunal was not right in holding that in terms of Section 92A of the Act, the owner is only liable.

The case of Oriental Fire and General Insurance Co. Ltd. Goa Vs. Aleixo Fernandes and others, is also with regard to this very aspect and where a claim is u/s 92A it has been held that the Insurer is liable to pay pre-emptory compensation award u/s 92A.

 Thus the intention of the legislation at the time of amending the Motor Vehicles Act in the year 1982 is clear that interim relief is to be given to the claimant u/s 92A and this can be awarded against the owner as well as the Insurance Company. In the present case the owner has raised an objection before the Tribunal that Insurance Company is necessary party and it should be impleaded as party. At that time the claimant should have requested the Court to implead the Insurance Company as party in the claim and after hearing it the Tribunal should have decided the matter. When it was brought to the notice of the Tribunal that in a claim u/s 92A the Insurer is also liable to make pre-emptory compensation it was incumbent on the Tribunal to implead the Insurance Company as party. The claimant have also not requested the Court to make the Insurer party in this claim. So without calling a party no order could be passed. The Tribunal had passed Award only against Mohanlal, the appellant who is the owner of the vehicle. The Insurance Company, respondent 1 has not been made party and no award has been passed against it. In the appeal notice has been issued to respondent 1, Insurance Company and their objection that unless the Company is party in the claim before the Tribunal, no appeal lies against it and the appeal is not maintainable. This objection raised by Shri Bhansali has force and I agree with him. When respondent 1, the Insurance Company, was not made party in the original claim u/s 92A of the Act, when no award has been passed against it, no appeal lies against the Company. But as Section 92A makes liable the Insurer also, so in the interest of justice I feel that the order of the Tribunal be set aside and the matter be remanded back to the Tribunal after making the National Insurance Company as party to the claim and after giving opportunity to the Insurance Company to decide the claim afresh. As there is objection raised by the owner before the Tribunal the claimant should move an application before the Tribunal to implead National Insurance Company as party to the claim and after giving notice to the Company the matter be decided afresh.