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2005 DIGILAW 456 (GAU)

Padma Khaklari v. Sujit Kumar Roy

2005-06-10

B.K.ROY, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This appeal under Section 173(1) of Motor Vehicles Act, 1988 (for short the Act), is directed against the judgment and order dated 30.8.2001 passed by learned Member, Motor Accidents Claims Tribunal, Dibrugarh, in MAC Case No. 26 of 1996 dismissing the claim petition filed by the appellant. 2. The appellant had filed an application under Section 166 of the Act before the Motor Accidents Claims Tribunal, Dibrugarh, stating, inter alia, that on 27.10.1995 while he was standing by the side of the road, the driver of the offending vehicle bearing registration No. NL-04 0099 suddenly drove the vehicle without giving any signal or blowing horn the rear wheels of which ran over his feet causing grievous injuries to him as a result of which he has suffered permanent disability and his earning capacity has been reduced. He arrayed United India Insurance Co. Ltd. with which the offending vehicle was insured besides the owner as party. 3. The insurer filed a written statement, whereas the owner of the vehicle did not contest the proceeding. 4. The Claims Tribunal framed as many as seven issues. It finally dismissed the claim petition solely on the ground of non-impleadment of the driver of the vehicle and also for non-production of the police report. 5. The learned Counsel for the appellant submitted that the driver of the vehicle was not a necessary party and, as such, for his non-impleadment the claim petition cannot be thrown out. He referred to Rule 100 (1) of Assam Motor Vehicles Rules, 2003 (for short 'the Rules'). Schedule I of Rule 100(1) provides Form No. 20 (A.C.) for filing application under Section 166 of the Act. The said Form provides that the claimant is required to disclose the names of the owner and the insurer of the offending vehicle and other details as mentioned therein. The Form in Schedule I of Section 100(1) of the Rules itself does not provide for disclosing/impleading the driver of the offending vehicle and, therefore, the claim petition cannot be thrown out for such non-impleadment. The Tribunal has committed an apparent error in rejecting the claim petition. 6. We have perused the written statement filed by the insurer. The insurer had not raised this plea at all in their written statement. 7. The Tribunal has committed an apparent error in rejecting the claim petition. 6. We have perused the written statement filed by the insurer. The insurer had not raised this plea at all in their written statement. 7. On perusal of the records, we find that Nuren Bahadur Chetri was the driver of the offending vehicle and his name appears as opposite party No. 2 in the cause title of the impugned judgment. We find from para 3 of the impugned judgment that Claims Tribunal itself was not sure as to whether the driver of the offending vehicle has been impleaded and proper notice has been served on him or not? We further find that Petition No. 496 of 1998 was filed by the appellant before the Tribunal praying for impleading Nuren Bahadur Chetri, the driver of the vehicle, as party which, however, remained undisposed of as no effective order was passed on it. The learned Member, Motor Accidents Claims Tribunal, brushed aside the prayer by stating that no order has been passed by his predecessor. We are of the view that as the appellant has filed this application praying for impleading the driver, it was incumbent upon learned Member, Motor Accidents Claims Tribunal to pass an effective order, even if there was any lapse on the part of his predecessor. 8. In State of Maharashtra v. Gulabi Sudhu, the High Court of Bombay held that the provisions of the Motor Vehicles Act do not make it obligatory that the driver must be made a party. What is required is only that the name of the driver is to be disclosed, if it is known. If the name of the driver is not known then it may not be possible for the claimant to disclose it. A Division Bench of Gujarat High Court in the case of New India Assurance Co. Ltd. v. Ashokbhai Ranchhodbhai Patel (1992) 1 GLR 482 , also took a similar view holding, inter alia, the liability of driver and negligence of driver are separate things and the insurer can be made liable, where owner is held liable despite non-impleadment of driver. In Vaddepalli Rajesham v. Andhra Pradesh State Road Trans. Ltd. v. Ashokbhai Ranchhodbhai Patel (1992) 1 GLR 482 , also took a similar view holding, inter alia, the liability of driver and negligence of driver are separate things and the insurer can be made liable, where owner is held liable despite non-impleadment of driver. In Vaddepalli Rajesham v. Andhra Pradesh State Road Trans. Corporation, the High Court of Andhra Pradesh has held that the driver is not a necessary party after making the following observations: (9) In Babu Singh v. Champa Devi 1974 ACJ 168 (Allahabad), Allahabad High Court held as follows: The driver was only a servant of the owner and the owner's vicarious liability does not cease because the servant has not been made a party to the claim. The Motor Vehicles Act contemplates relief against the owner only. (13) In Badri Narain Prasad v. Anil Kumar Gupta AIR 1979 Patna 204, a Division Bench of Patna High Court held as follows: The liability of joint tortfeasors is joint and several, each may be sued alone or jointly with some or all the others in one action; each is liable for the whole damage, and judgment obtained against all of them jointly may be executed in full against any one of them. It is, thus, futile to argue that in the absence of the driver, the claim application of the appellant is not maintainable. The claim application against owner without joining driver is maintainable. (14) In Anuradha Varma v. State of Kerala 1994 ACJ 353 (Kerala), a Division Bench of Kerala High Court categorically held that as per provisions of Motor Vehicles Act it is not obligatory on the part of the claimant to make the driver also a party to the proceedings and it does not mean that the application without impleading the driver is not maintainable. 9. We find that the relevant provisions of the Act nowhere provide that the driver of the vehicle is a necessary party to adjudicate a claim petition filed under the Act and that the Assam Motor Vehicles Rules, 2003 also do not make it obligatory even to disclose the name of the driver of the vehicle in a claim petition. 9. We find that the relevant provisions of the Act nowhere provide that the driver of the vehicle is a necessary party to adjudicate a claim petition filed under the Act and that the Assam Motor Vehicles Rules, 2003 also do not make it obligatory even to disclose the name of the driver of the vehicle in a claim petition. We fully agreeing with the view expressed by the aforesaid High Courts, hold that the driver of the vehicle was not a necessary party to the claim petition of the appellant and that the claim petition was illegally thrown out and in a most cryptic manner and justice requires its remittance for reconsideration. 10. We, therefore, allow this appeal, set aside the impugned judgment and order and remit back the case for fresh disposal in accordance with law and in the light of our observations and findings. Appeal allowed.