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Motor Vehicles Act, 1988 : s. 166 – Claim petitions by passengers of bus and its driver – Injured in a collision between a bus and a truck – Tribunal holding that bus driver, and not the truck driver, was driving the vehicle in a rash and negligent manner – Claim petitions of passengers allowed and that of driver rejected – High Court rejecting claim petition of bus driver observing that he having not questioned finding of tribunal in passengers’ petitions regarding his negligence and the findings having become final, he was bound thereby – Held: Claimant-bus driver was fully aware of his legal liability – He was also prosecuted in criminal court in that regard – He deposed in claim petitions filed by injured passengers – He was aware that his plea of not being negligent was negatived – He, therefore, was party to the proceedings initiated by passengers and could have preferred an appeal thereagainst – Tribunal and High Court rightly rejected his claim – `Party’ – `Necessary party’ – ` Aggrived person’ – Connotation of – Practice and Procedure – Words & Phrases. In a motor accident stated to have occurred on a collision between a bus belonging to the State Road Transport Corporation and a truck, several passengers traveling in the bus and its driver (the appellant) were injured. The passengers as also the appellant filed a claim petition before the Motor Accident Claims Tribunal. The appellant was also prosecuted in a criminal case for rash and negligent driving. However, that case ended in acquittal. Before the Tribunal the Corporation denied and disputed the case of the passengers that the appellant was driving the bus in a rash and negligent manner. The appellant also examined himself in the claim petitions filed by the passengers and supported the case of the Corporation. The Tribunal heard both the sets of cases together and allowed the claim petitions of the passengers holding that the appellant was driving the bus rashly and negligently. The Corporation did not challenge the awards given in favour of the passengers and the same attained finality. Rejecting the claim petition of the appellant the Tribunal held that it was the appellant, and not the truck driver, who was driving the vehicle rashly and negligently. In the appeal filed by the appellant the High Court affirming the order of the Tribunal held that as the appellant did not question correctness of the award of the Tribunal in the passengers’ cases, although a party aggrieved, he was bound thereby as regards the finding of negligence. In the instant appeal filed by the bus driver, it was contended for the appellant, inter alia, that the awards passed by the Tribunal in the cases of the passengers were not binding on the appellant; and that the High Court erred in holding that although the appellant was not a party in the proceedings, he was an aggrieved person. =Dismissing the appeal, the Court HELD: 1.1 Section 168 of the Motor Vehicles Act,1988 mandates the Tribunal to specify the amount which shall be paid by the owner or the driver of the vehicle involved in the accident or by both or any of them. As it is imperative on the part of the Tribunal to specify the amount payable, inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceedings. In appropriate cases, liability of the driver may be primary. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tort feaser. [para 18 and 33 ] [98-B, C] Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt AIR 1966 SC 1697; and Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another (2003) 8 SCC 731 – relied on. Patel Roadways and Another Vs. Manish Chhotalal Thakkar and Others ILR 2000 Kar. 3286; Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another AIR 1977 SC 1248; and New India Assurance Co. Vs Munni Devi 1993 ACJ 1066 (M.P.) and Madhya Pradesh State Road Transport Corporation Vs. Vaijanti 1995 ACJ 560 (M.P.) – referred to. 1.2 In the instant case, the appellant was fully aware of his legal liability. He was involved in the criminal case. He deposed in the claim applications filed by the injured persons who were travelling in the bus. He was fully aware that unless he proves his innocence in regard to the charge of rash and negligent driving, he would be held liable therefor, particularly, when he himself had filed the claim petition. It might have been a matter of sharing of liability between him and the driver of the truck. He was aware that his plea of not being negligent has been negatived. He, for all intent and purport, therefore, was a party to the earlier proceedings. If he intended to get rid of the findings recorded by the Tribunal, he could have preferred an appeal thereagainst. He did not choose to do so. It was in that sense, the High Court cannot be said to have committed any error in holding tha the appellant was also an aggrieved person. [para 22 and 25] [100-D, E, F; 104-B] 2.1 In the instant case, two sets of claims cases were heard together, one filed by the passengers of the KSRTC bus and the other filed by the driver of the said bus. Unless the finding of negligence in the claim cases of the passengers was negatived, in the claim cases filed by the driver himself, the said finding of negligence on the part of the driver could not have been varied. [para 23] [101-E, F] 2.2 In the first set of claims cases, the driver of the bus was held to be negligent and, therefore, a ruling that the driver is a necessary party would mean that the bus driver must necessarily be involved in these proceedings. However, the driver of the bus had sufficient opportunity to make a representation against the allegation of negligence as he was examined as RW1 in the claim cases filed by the passengers, even though he was not formally impleaded as a respondent. Hence, the High Court has correctly held that he was a `party’ to the proceedings. [para 23] [101-G, H] 2.3 In the claims filed by the driver of the bus, namely the appellant, specific allegations were made against the driver of the truck. Hence, the driver of the truck was not a necessary party. Here, one must bifurcate the terms `party’ and `necessary party’. `Party’ has been correctly defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal impleadment. However, a necessary party as defined is one who must be joined in an action because, inter alia, complete relief cannot be given to those already parties their joinder. [para 23] [102-B-E] Black’s Law Dictionary, 5th Edition – referred to. 3.1 The principles of natural justice demand that a person must be given an opportunity to defend his action. Appellant not only made averments as regards absence of negligence on his part; he made specific allegations against the driver of the truck. The driver of the truck alone would have been competent to depose. In a given case, like the present one, the owner of the truck may not defend the action at all keeping in view the fact that the vehicle was an insured one. [para 19-20] [98-D, E, F] Halsbury’s Laws of England, 3rd Edn., Vol. 32 – referredto. 3.2 First and foremost, natural justice would mandate involvement of a driver, as an adverse finding on negligence cannot and should not be made against him without giving him the opportunity to at least make a representation as a witness. More importantly, however, one must look at the kind of evidence which must be led in such cases. To make a finding on negligence without involving the driver, as, at least, a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate. On this basis, a driver should be made a `party’ to the proceedings. It was done in the instant case. Without contrary evidence led by the appellant or the Corporation, the finding of negligence on the part of the appellant cannot be interfered with. Without a deposition on the part of the truck driver and without his involvement at least as a witness, an adverse finding on negligence cannot be made against him. In any event, the truck driver was examined as RW1. Therefore, in the circumstances, the driver of the bus was examined in the first set of claims cases in the same manner as the driver of the truck was examined in the second set of cases (which has been filed by the Appellant). [para 23 and 24] [102-E, F; 103-D-H; 104-A] 4. Both the Tribunal and the High Court have rightly arrived at a finding of fact that it was the appellant alone who was rash and negligent in driving of the vehicle. No case had been made out to differ with the said finding of fact. [para 25] [104-B, C] Kiran Suri for the Appellant. R.S. Hegde, Chandra Prakash, Rahul Tyagi, J.K. Nayyar, P.P. Singh, D. Varadarajan and Shiv Prakash Pandey for the Respondents.=2008 AIR 2545, 2008(7 )SCR83 , , 2008(7 )SCALE496 ,

CASE NO.:

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Appeal (civil) 3041 of 2008

PETITIONER:
Machindranath Kernath Kasar

RESPONDENT:
D.S. Mylarappa & Ors.

DATE OF JUDGMENT: 29/04/2008

BENCH:
S.B. Sinha & V.S. Sirpurkar

JUDGMENT:
J U D G M E N T
REPORTABLE

CIVIL APPEAL NO. 3041 OF 2008
[Arising out of SLP (Civil) No. 17711 of 2006]
S.B. SINHA, J :
1. Leave granted.

2. Appellant was a driver of a bus belonging to the Karnataka State Road
Transport Corporation. He was driving the said vehicle on 18.4.1995. A
collision took place between the said bus and a truck bearing Registration
No. CAM 6939. A large number of passengers travelling in the said bus
were injured. Appellant herein was also one of them. The passengers of
the said bus as also the appellant filed applications for payment of
compensation before the Motor Vehicles Accident Claims Tribunal,
Belgaum in terms of Section 166 of the Motor Vehicles Act, 1988 (for short
“the Act”).
Appellant was also prosecuted for rash and negligent driving before a
criminal court. No such case was initiated against the driver of the truck.
The Corporation denied and disputed the contention of the passengers that
the appellant was driving the bus in a rash and negligent manner.
Appellant examined himself in the other claim petitions in support of
the case of the Corporation. He, however, was not impleaded as a party
therein. It is stated that ordinarily drivers are not impleaded as parties in the
claim cases in the State of Karnataka, purported to be having regard to the
provisions contained in Rule 235 of the Karnataka Motor Vehicle Rules,
1989.
3. Both sets of claim cases were taken up for hearing together by the
Tribunal. The awards were also passed on the same day.
4. In the claim applications filed by the passengers, despite the
deposition of the appellant to the contrary, a finding of fact was arrived at,
that he was driving the bus rashly and negligently.
5. The claim petitions of the passengers were allowed. The Corporation
did not challenge the correctness of the said awards. They attained finality.
The Tribunal in the case of the appellant also went into the question once
over again to hold that the accident was caused owing to the rash and
negligent driving of the appellant. It was opined that only because he had
been acquitted of the charges by the criminal court in Section 279 or 338 of
the Indian Penal Code, the same was not conclusive, stating :
“.It is the version of the petitioner that there was
negligence on the part of the truck driver. But the
nature of damage caused to either vehicles does
not corroborate the same. On perusal of Ex. P3 it
is mentioned that the front show of the KSRTC
bus was completely damaged, head light radiator
and front right driver door damaged, bonnet
damaged in the course of accident. On the other
hand Ex. P3 reveals that front right show damaged,
front bumper bent, front right head light broken,
front right wind shield glass broken, radiator cover
damaged. Therefore the nature of damage caused
to the truck reveals unequivocally that only right
side portion of the truck was damaged. If really
the truck driver had come on right side from
Belgaum to Kanbargi road and dashed against the
KSRTC bus, the middle portion of the truck would
have been damaged. On the other hand, the
middle portion of KSRTC bus is damaged as per
the recitals in Ex. P3. Therefore the nature of
damages caused to the bus reveals the fact that it
was the bus driver who came towards right side of
the Kanbargi Belgaum road while over taking a
parked truck. The fact that the bus driver was
trying to overtake parked truck is not in dispute.”
6. The Tribunal expressly negatived the contention of the appellant that
it was the truck driver who was driving the truck rashly and negligently,
stating:
“There was no reason for the petitioner being a driver
of the KSRTC bus to take the same to the extreme
right side of the Belgaum Kanbargi road as to cause
accident. It is also admitted by the petitioner as well
as in the petition itself that the KSRTC driver was
trying to overtake a parked lorry. At that time the
petitioner being a driver of the KSRTC should have
seen whether there was any vehicle which were
coming on opposite direction at the time of overtaking
a parked lorry. It appears that there was negligence
on the part of the KSRTC driver himself, and as such
it has to be held that the accident took place due to the
negligence of the petitioner himself. For all these
reasons, there is no oral and documentary evidence on
record to prove the fact that the accident took place
due to the negligence of the driver of the truck No.
CAM.6939. On the other hand the oral evidence of
RW.1 coupled with panchanama and photos produced
at Ex. R2 and R3 clearly proves the fact that the
accident was due to rash and negligence of the
petitioner himself”

Inter alia on the aforementioned finding the claim petition was
dismissed.

7. He preferred an appeal thereagainst in terms of Section 173 of the
Act. A Division Bench of the Karnataka High Court dismissed the said
appeal opining that as the appellant did not question the correctness of the
earlier awards passed by the Tribunal although he was a party aggrieved, he
is bound thereby, as regards to the question of negligence. The High Court,
thus, affirmed the views of the Tribunal.
8. Mr. Kiran Suri, learned counsel appearing on behalf of the appellant
submitted;

(i) The High Court erred in holding that although the appellant was
not a party in the proceeding, he was an aggrieved person.
(ii) The Awards passed by the Tribunal in the cases of the passengers
were not binding on the appellant.
(iii) The Tribunal and consequently the High Court committed a
serious error insofar as they failed to take into consideration the
panchnama drawn by the police personnel from a perusal
whereof it would be evident that it was the driver of the truck
who was rash and negligent.
9. Mr. D. Varadarajan, the learned counsel appearing on behalf of the
respondent Insurance Company, on the other hand, would submit:
(a) Even in this claim petition, the driver of the truck has not been
impleaded as a party.
(b) Both the Tribunal as also the High Court arrived at a finding of
fact that the appellant alone was negligent, and as such the same
should not be interfered by this Court with particularly when no
evidence was adduced on behalf of the appellant or Corporation to
prove contra.

10. Chapter II of the Act provides for licensing of drivers of motor
vehicles. The Central Government as also the State Government have been
conferred powers to make rules under various provisions of the said Act.

Chapter 11 of the Act provides for insurance of motor vehicles against
third party risks.
Section 146 providing for necessity of insurance against third party
risks is in the following terms.
“146. Necessity for insurance against third party
risk  (1) No person shall use, except as a passenger,
or cause or allow any other person to use, a motor
vehicle in a public place, unless there is in force in
relation to the use of the vehicle by that person or that
other person, as the case may be, a policy of insurance
complying with the requirements of this Chapter:

Provided that in the case of a vehicle carrying, or
meant to carry, dangerous or hazardous goods, there
shall also be a policy of insurance under the Public
Liability Insurance Act, 1991″

Section 147 provides for the requirements of policies and limits of
liability.

Section 149 imposes duties on insurers to satisfy judgments and
awards against persons insured in respect of third party risks.

The insurer having regard to sub-Section (2) of Section 149 of the Act
would be entitled to avoid its liability in one of the contingencies specified
therein.
Section 149(2)(a) reads thus;
“149(1) ***** *****
149(2) ***** ******
(a) that there has been a breach of a specified condition of the
policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on
the date of the contract of insurance a vehicle
not covered by a permit to ply for hire or
reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit
under which the vehicle is used, where the
vehicle is a transport vehicle, or

(d) without side-car being attached where the
vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or
persons or by any person who is not duly licensed, or by
any person who has been disqualified for holding or
obtaining a driving licence during the period of
disqualification; or
(iii) a condition excluding liability for injury caused or
contributed to by conditions of war, civil war, riot or civil
commotion; or
(b) that the policy is void on the ground that it was obtained
by the nondisclosure of a material fact or by a representation
of fact which was false in some material particular.”

Section 163A provides for special provision as to payment of
compensation on structured formula basis in the event an accident arising
out of the use of motor vehicle has taken place.

11. Chapter XII provides for constitution of Claims Tribunal. Section
166 envisages filing of an application for grant of compensation. An
application may be filed for payment of compensation arising out of an
accident of the nature specified in sub-Section (1) of Section 165.

Sub-section (2) of Section 166 reads as under:
“Section 166.***** (1) **********
(2) Every application under sub-section (1) shall be
made, at the option of the claimant, either to the Claims
Tribunal having jurisdiction over the area in which the
accident occurred, or to the Claims Tribunal within the
local limits of whose jurisdiction the claimant resides or
carries on business or within the local limits of whose
jurisdiction the defendant resides, and shall be in such
form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under
section 140 is made in such application, the application
shall contain a separate statement to that effect
immediately before the signature of the applicant.”

12. The State of Karnataka in exercise of its rule making power has made
Karnataka Motor Vehicles Rules, 1989, Rule 235 whereof reads as under:
“235. Notice to the parties involved  (1) The
Claims Tribunal shall on an application made to it by
the applicant send to the owner or the driver of the
vehicle or both from whom the applicant claims relief
and the insurer, a copy of the application, together with
the notice of the date on which it will dispose of the
application, and may call upon the parties to produce on
that date any evidence which they may wish to tender.

(2) Where the applicant makes a claim for
compensation under Section 140 the Claims Tribunal
shall give notice to the owner and insurer if any, of the
vehicle involved in the accident directing them to
appear on the date not later than 10 days from the date
of issue of such notice. The date so fixed for such
appearance shall also be not later than fifteen days from
the receipt of the claim application filed by the
claimant. The Claims Tribunal shall state in such
notice that in case they fail to appear on such appointed
date, the Tribunal will proceed ex-parte on the
presumption that they have no contention to make
against the award of compensation.

13. Rule 232 provides that every application for compensation is to be
made by a person specified in Section 166(1) to the Claims Tribunal in Form
KMV 63.

14. Ms. Suri submitted that the Act and the Rules as also the prescribed
forms do not require the driver to be made a party and in that view of the
matter, Rule 235 should be read disjunctively. Our attention in this behalf
has been drawn to a decision of the Division Bench of the Karnataka High
Court in Patel Roadways and Another Vs. Manish Chhotalal Thakkar and
Others [ILR 2000 Kar. 3286].

15. The learned Judges in Patel Roadways (supra) opined that when the
form of the claim petition does not require a claimant to even name the
driver, a claim petition would be maintainable even without impleading the
driver.
The Bench proceeded to consider the general law of tort and the
liability of joint tort feasers as contained in various text books. The Bench
also noticed the decision of this Court in Minu B. Mehta and Another Vs.
Balkrishna Ramchandra Nayan and Another [AIR 1977 SC 1248], wherein it
was held:
“The liability of the owner of the car to compensate
the victim in a car accident due to the negligent driving
of his servant is based on the Law of Torts. Regarding
the negligence of the servant the owner is made liable
on the basis of vicarious liability. Before the master
could be made liable it is necessary to prove that the
servant was acting during the course of his employment
and that he was negligent

This plea ignores the basic requirements of the
owner’s liability and the claimants right to receive
compensation. The owners’ liability arises out of his
failure to discharge a duty cast on him by law. The
right to receive compensation can only be against a
person who is bound to compensate due to the failure to
perform a legal obligation. If a person is not liable
legally he is under no duty to compensate anyone else.
The Claims Tribunal is a Tribunal constituted by the
State Government for expeditious disposal of the motor
claims. The general law applicable is only common
law and the Law of Torts. If under the law a person
becomes legally liable then the person suffering the
injuries is entitled to be compensated and the Tribunal
is authorised to determine the amount of compensation
which appears to be just. The plea that Claims Tribunal
is entitled to award compensation which appears to be
just when it is satisfied on proof of injury to a third
party arising out of the use of a vehicle on a public
place without proof of negligence if accepted would
lead to strange results.”

The Kerala, Bombay, Madras, Allahabad, Patna, Punjab and Haryana
and Delhi High Courts, on the one hand, noticing a large number of
decisions held that drivers are not necessary parties, the Madhya Pradesh
High Court, on the other hand, in New India Assurance Co. Vs Munni Devi
[1993 ACJ 1066 (M.P.)] and Madhya Pradesh State Road Transport
Corporation Vs. Vaijanti [(1995 ACJ 560 (M.P.)] held that the driver of the
offending vehicle would be a necessary party. The Division Bench of the
Karnataka High Court further held that under the Madhya Pradesh Motor
Vehicle Rules, the driver was required to be impleaded as a party. It was,
however, stated:
“.We do not however agree with the said two decisions,
if they were to be read as laying down a general principle
that under Law of Torts, the master cannot be sued to
enforce his vicarious liability for the negligence of the
servant, without impleading the servant.”
On the aforementioned finding, the following law was laid down.

“(a) Neither the Motor Vehicles Act nor Rules
thereunder require the driver to be impleaded as a party
to the claim petition, (b) Under Law of Torts, the owner
and driver of the Motor Vehicle being joint tortfeasors,
who are jointly and severally liable for the negligence
of the driver, the claimant can sue either the owner or
the driver or both. But, whether driver is impleaded or
not, a owner (master) can be made vicariously liable for
the acts of his driver (servant), only by proving
negligence on the part of the driver (servant), (c)
Therefore a claim petition can be maintained against the
owner and insurer of the vehicle causing the accident,
without impleading the driver. However proving the
negligence of the driver is a condition precedent to
make the owner vicariously liable for the act of the
driver, (d) But where the driver is not impleaded as a
party, no decree or award can be made against him. A
driver can be held liable personally only when he is
impleaded as a party and notice of the proceedings is
issued to him.”

16. Motor Vehicles Act was enacted to consolidate and amend the law
relating to motor vehicles. When a law is enacted to consolidate and amend
the law, the Legislature not only takes into consideration the law as it has
then been existing but also the law which was prevailing prior thereto. A
suit for damages arises out of a tortuous action. For the purpose of such an
action, although, there is no statutory definition of negligence, ordinarily, it
would mean omission of duty caused either by omission to do something
which a reasonable man guided upon those considerations, who ordinarily
by reason of conduct of human affairs would do or be obligated to, or by
doing something which a reasonable or prudent man would not do. See
Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another
[(2003) 8 SCC 731, para 6]

17. When a damage is caused upon act of negligence on the part of a
person, the said person is primarily held to be liable for payment of
damages. The owner of the vehicle would be liable as he has permitted the
use thereof. To that effect only under the Motor Vehicles Act, both driver
and owner would be jointly liable.
This, however, would not mean that they are joint tort feasers in the strict
sense of the term. There exists a distinction between the liability of the
owner of a vehicle which was used in commission of the accident and that of
the driver for whose negligence the accident was caused, but the same would
not mean that the owner and the driver are joint tort feasers in the sense as it
is ordinarily understood.

18. The Karnataka Rules, therefore, were required to be construed having
regard to the appropriate interpretative principles applicable thereto.
Common law principles were therefor required to be kept in mind. In this
case, we are not required to lay down a law that even in absence of any rule,
impleadment of the driver would be imperative.
It is however, of some interest to note the provisions of Section 168 of
the Motor Vehicles Act. In terms of this aforementioned provision, the
Tribunal is mandatorily required to specify the amount which shall be paid
by the owner or driver of the vehicle involved in the accident or by or any of
them. As it is imperative on the part of the Tribunal to specify the amount
payable inter alia by the driver of the vehicle, a fortiori he should be
impleaded as a party in the proceeding. He may not, however, be a
necessary party in the sense that in his absence, the entire proceeding shall
not be vitiated as the owner of the vehicle was a party in his capacity as a
joint tort feaser.

19. Appellant not only made averments as regards absence of negligence
on his part; he made specific allegations against the driver of the truck. The
driver of the truck alone would have been competent to depose. In a given
case, like the present one, the owner of the truck may not defend the action
at all keeping in view the fact that the vehicle was an insured one. There
are some decisions of this Court, where even a plea has been raised that the
insured company would not be an aggrieved person in such an extent
although such a contention has been negatived by this Court.
20. The principles of natural justice demand that a person must be given
an opportunity to defend his action.
There are cases and cases. In a given situation, the owner of a vehicle
may take the plea that the driver had used the vehicle without his authority
or permission and in that view of the matter, he is not liable for the tortuous
acts of the driver at all. There are innumerable instances where the
insurance Company had been held to be absolved of its liability to
compensate the owner of the vehicle inter alia on the premise that the driver
did not hold a valid license. The legal principle was evolved on the premise
that the owner had a duty to see that the person authorized to drive the
vehicle is otherwise eligible to do so or entitled to do so in law.

21. In Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt [AIR
1966 SC 1697] this Court opined that the master is vicariously liable for the
acts of his servants acting in the course of his employment stating:
“27. The law is settled that a master is vicariously
liable for the acts of his servant acting in the course
of his employment. Unless the act is done in the
course of employment, the servant’s act does not
make the employer liable. In other words, for the
master’s liability to arise, the act must be a wrongful
act authorised by the master or a wrongful and
unauthorised mode of doing some act authorized by
the master. The driver of a car taking the car on the
master’s business makes him vicariously liable if he
commits an accident. But it is equally well settled
that if the servant, at the time of the accident, is not
acting within the course of his employment but is
doing something for himself the master is not
liable…”

In Minu B. Mehta (supra), this Court noticed:
“28. In Halsbury’s Laws of England, 3rd
Edn., Vol. 32, at para 751 at p. 366 the nature of
insurance required is stated as follows:
“The conditions to be fulfilled in order to
render the use of a motor vehicle lawful are (1)
that there must be a policy of insurance in force
in relation to the use of the vehicle on a road, and
(2) that it must be a policy complying with the
relevant statutory requirements.”
At para 752 at p. 366 the general nature of
liabilities required to be covered are stated as
under:
“In order to comply with the statutory
requirements, a policy must provide insurance
cover in respect ot any liability which may be
incurred by such person, persons or classes of
persons as are specified in the policy, in respect
of the death of, or bodily injury to, any person
(subject to specific exceptions) caused by or
arising out of, the use of the vehicle on a road.”
The authorised insurers issuing a policy pursuant
to the statutory requirements are obliged to
indemnify the person specified in the policy in
respect of any liability which the policy purports
to cover in the case of that person or classes of
persons. . . . (Para 758 at p. 369). These passages
clearly indicate that the nature of the liability
required to be covered is the liability which may
be incurred by or arising out of the use of a
vehicle on a road by the person.”
Thus, in appropriate cases, the liability of the driver would be primary.

22. Appellant was fully aware of his legal liability. He was involved in
the criminal case. He deposed in the claim applications filed by the injured
persons who were travelling in the bus. He was fully aware that unless he
proves his innocence in regard to the charge of rash and negligent driving,
he would be held liable therefor, particularly when he himself had filed the
claim petition. It might have been a matter of sharing of liability between
him and the driver of the truck. He was aware that his plea that he was not
negligent has been negatived. He, for all intent and purport, therefore, was a
party to the earlier proceedings. If he intended to get rid of the findings
recorded by the Tribunal, he could have preferred an appeal thereagainst.
He did not choose to do so.

23. This case gives rise to an anomalous situation. The Corporation has
been found to be liable to pay the amount of compensation claimed by the
passengers of the bus only because the appellant was found to be rash and
negligent in driving. The law cannot be construed in such a manner so as to
lead to such a conclusion as the same court in this case which was being
heard simultaneously held that he was not negligent and the driver of the
truck was negligent so as to fasten the liability also on the owner of the
truck. When an accident has taken place, the court was required to hold
either the driver of the bus or the truck responsible; no case of contributory
negligence having been made out. The result would be that the Corporation
would be liable to pay compensation in both the cases although findings in
each of them were contradictory to or inconsistent with each other. Similar
would be the position of the driver of the truck. In one case, he for the same
act would stand exonerated and in another case, liability to pay
compensation would be fastened on him. Precisely that was the purpose for
which the Tribunals heard both the matters together and also delivered
judgments one after the other. It was necessary to apply the comity or amity
or the principles analogous thereto.
The issue to be examined herein is whether in the claims cases before
the Motor Vehicles Accident Claims Tribunal, the driver of a vehicle who
has been accused of negligence is a necessary party to the proceedings or
whether the owner alone can be impleaded.

In this case, two sets of claims cases were heard together, one filed by
the passengers of the KSRTC bus and the other filed by the driver of the said
bus. In short, unless the finding of negligence in the claim cases of the
passengers was negatived, in the claim cases filed by the driver himself, the
said finding of negligence on the part of the driver could not have been
varied.

The analysis of our findings aforementioned is:-
(i) In the first set of claims cases, the driver of the bus was held to
be negligent and, therefore, a ruling that the driver is a
necessary party would mean that the bus driver must
necessarily be involved in these proceedings. However, the
driver of the bus had sufficient opportunity to make a
representation against the allegation of negligence as he was
examined as RW1 in the claim cases filed by the passengers,
even though he was not formally impleaded as a Respondent.
Hence, the High Court has correctly held that he was a ‘party’
to the proceedings.
(ii) In the claims filed by the driver of the bus (namely the
Appellant herein), specific allegations were made against the
driver of the truck. Hence, the question is whether the driver of
the truck must necessarily be made a party to the proceedings.
He was not.
Here, one must bifurcate the terms ‘party’ and ‘necessary party’.
‘Party’ has been correctly defined by the High Court in the impugned
judgment in terms of involvement in the proceedings regardless of formal
impleadment. However, a necessary party has been defined in the 5th edition
of Black’s Law Dictionary as follows:-

“In pleading and practice, those persons who must
be joined in an action because, inter alia, complete
relief cannot be given to those already parties
without their joinder. Fed. R. Civil P. 19 (a)”

First and foremost, as has been stated in the body of the judgment,
natural justice would mandate involvement of a driver, as an adverse finding
on negligence cannot and should not be made against him without giving
him the opportunity to at least make a representation as a witness.
More importantly, however, one must look at the kind of evidence
which must be led in such cases. Appellants have, as noticed hereinbefore,
relied on Patel Roadways (supra) to try and prove that the driver need not be
a party. Firstly, this case only relates to formally impleading the driver as a
party. However, the fact that joint tortfeasors have been mentioned in the
judgment is relevant.
Joint tortfeasors, as per the 10th edition of Charlesworth & Percy on
Negligence, have been described as under:-
“Wrongdoers are deemed to be joint tortfeasors,
within the meaning of the rule, where the cause of
action against each of them in the same, namely
that the same evidence would support an action
against them, individually Accordingly, they
will be jointly liable for a tort which they both
commit or for which they are responsible because
the law imputes the commission of the same
wrongful act to two or more persons at the same
time. This occurs in cases of (a) agency; (b)
vicarious liability; and (c) where a tort is
committed in the course of a joint act, whilst
pursuing a common purpose agreed between
them.”

Hence, employer and employee, the former being vicariously liable
while the latter being primarily liable are joint tortfeasors and are therefore
jointly and severally liable. However, by virtue of the fact that the cause of
action is the same and that the same evidence would support an action
against either, it follows that this evidence must necessarily include an
examination of the driver who is primarily liable. To make a finding on
negligence without involving the driver as at least a witness would vitiate
the proceedings not only on the basis of the fact that the driver has not been
given an opportunity to make a representation, but also because the evidence
to make a finding regarding negligence would necessarily be inadequate.
24. On this basis, a driver should be made a ‘party’ to the proceedings. It
was done in the instant case. In the present case, the contention of the
counsel for the respondent Insurance Company, namely that without
contrary evidence led by the appellant or Corporation, the finding of
negligence on the part of the appellant cannot be interfered with, must be
upheld. Without a deposition on the part of the truck driver and without his
involvement at least as a witness, an adverse finding on negligence cannot
be made against him.
In any event, the truck driver was examined as RW1.
Therefore, in the circumstances, the driver of the bus was examined in
the first set of claims cases in the same manner as the driver of the truck was
examined in the second set of cases (which has been filed by the Appellant).

25. If we accept the contention of Ms. Suri that the Tribunal committed an
error, in effect and substance, we will be holding that the Tribunal
committed an illegality in awarding compensation to the passengers of the
bus. It was in that sense, the High Court cannot be said to have committed
any error in holding that the appellant was also an aggrieved person.
Furthermore, both the Tribunal and the High Court have rightly arrived at a
finding of fact that it was the appellant alone who was rash and negligent in
driving of the vehicle. No case had been made out to differ with the said
finding of fact.
26. For the reasons aforementioned, the impugned judgment does not
suffer from any legal infirmity. It is therefore, dismissed. However, in the
facts and circumstances of this case, there shall be no order as to costs.

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