The New India Assurance Co. Ltd. vs Smt. Rinku Devi And 5 Others
2021 Latest Caselaw 2490 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 1 .  ...............,..........................................A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2061 of 2016
 

 
Appellant :- The New India Assurance Co. Ltd.
 
Respondent :- Smt. Rinku Devi And 5 Others
 
Counsel for Appellant :- Rakesh Bahadur
 
Counsel for Respondent :- Yashwant Pratap Singh,Awadhesh Kumar Malviya,Vashishtha Tiwari
 

 
Hon'ble Vivek Agarwal,J.

1. Heard Sri Rakesh Bahadur, learned counsel for appellant-insurance company, Sri Yashwant Pratap Singh, learned counsel for claimant-respondent no. 1 and Sri Awadhesh Kumar Malviya, learned counsel for respondent no. 6.

2. This appeal has been filed by the insurance company being aggrieved of award dated 05.03.2016 passed by learned Motor Accident Claims Tribunal/District Judge, Deoria in MACP No. 374 of 2011, on the ground that driver of the offending vehicle was not impleaded as a party and further that aspect of contributory negligence has not been considered by the learned claims tribunal, inasmuch as in the light of the inspection report, available on record, there was dent on the right hand side rear bumper of the vehicle bearing registration no. UP 61 T 0065 and therefore, motorcycle, on which deceased was travelling, had hit the truck from behind and on such premise, it is submitted that finding of contributory negligence should have been recorded by the learned claims tribunal.

3. Placing reliance on the provisions contained in Rule 204(7) of the U.P. Motor Vehicle Rules, 1998, it is submitted that Rules provide for impleadment of the driver of the vehicle involved in the accident to be necessarily a party in the application for compensation filed under Section 166 of the Act. Reliance is placed on the judgment of Hon'ble Supreme Court in case of Machindranath Kernath Kasar vs. D.S. Mylarappa and Others; (2008) 13 SCC 198, referring to Para-42, it is submitted that "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."

4. Learned counsel for claimants, on the other hand, submits that as far as Rule 204 sub-rule (7) is concerned, that became effective from 26th September, 2011, whereas in the present case, accident had taken place on 04.07.2011, therefore, these Rules will not have any retrospective effect. Further, it is submitted that plea of contributory negligence is not made out, just due to the fact that an inspection report was produced, in which there is mention of damage to the rear bumper of the truck, inasmuch as author of the report was not examined. It is also submitted that non-impleadment of the driver will not be fatal to the case of the claimants, especially, when no such issue was framed before the learned claims tribunal and therefore, now at this stage, for the first time, raising a plea of this nature is not maintainable.

5. After hearing learned counsel for the parties and going through the record, plea of contributory negligence is not made out merely on the strength of inspection report on two grounds firstly, author of the inspection report was not examined before the court of law and secondly, it is not one of the documents admissible in evidence, as per the provisions contained in Rule 211-A of the Rules of 1998 because there is no mention of inspection of vehicle involved in an accident under either Rules 203-A, 203-C and 203-D, in regard to which, presumption can be drawn. In fact, provision of inspection of vehicle involved in an accident is provided under Rule 203, however, it is not subject to the presumption, which can be drawn under Rule 211-A. Insurance company had also not examined any independent witness to deny the evidence of PW3 in regard to truck hitting the deceased, sitting on the motorcycle coming from opposite direction.

6. As far as impleadment of driver is concerned, it has come on record that this plea was not taken by the insurance company before the learned claims tribunal. It has also come on record that owner of the offending vehicle did not appear before the tribunal despite service of notice and therefore, he was proceeded ex-parte, as is mentioned in Para-3 of the impugned award. No such issue was framed at the instance of the insurance company in absence of any such defense taken by the insurance company before the learned tribunal.

7. Claimants had produced documents like release order of the vehicle, copy of bail application filed by the driver, his driving license, insurance policy, permit, fitness, pollution control report, etc. before the learned tribunal. Insurance company had filed copy of investigation report, in which they have not disputed the factum of accident taking place in the manner in which it was narrated to had taken place as per PW2-eye-witness. It has also come on record that PW3 had proved negligence of the driver of the offending truck and this could not be rebutted by the insurance company either confronting him with investigation report or any other document to prove that accident had taken place due to the negligence of the driver of the motorcycle.

8. As far as judgment in case of Machindranath Kernath Kasar (supra) is concerned, Hon'ble Supreme Court was dealing with the provisions contained in Rule 235 of Karnataka Motor Vehicles Rules, 1989, requiring the tribunal to send notice to the driver or owner and in that context, it held that in an application for compensation, the driver should be impleaded as a party although, he may not be a necessary party, as his non-impleadment would not vitiate the entire proceedings. In the present case, provisions similar to Rule 235 of Karnataka Motor Vehicles Rules, 1989, came into effect when sub-rule (7) of Rule 204 of U.P. Motor Vehicles Rules, 1998 was brought into effect vide Notification No. 777/XXX-4-2011-4(3)-2010, dated 26th September, 2011.

9. In case of ICICI Lombard General Insurance Co. Ltd. vs. Smt. Reena Tyagi and Others (FAFO No. 2190 of 2010), vide order dated 27.03.2017, Division Bench of this Court has discussed the law laid down in case of Kusum Lata and Others vs. Satbir and Others; 2011 (2) TAC 4 (SC), wherein it is held that for the purposes of claiming compensation under Section 166 of the Motor Vehicles Act, it is not necessary to mention the registration of the offending vehicle or even the name of the driver. Similarly, reference is also given of the judgment of Supreme Court in case of Saroj and Others vs. Hethlal and Others; 2011 (1) TAC 271 (SC), wherein the Apex Court has held that where the owner of the vehicle admits the accident, in such cases, no further enquiry regarding the involvement of the vehicle is necessary. Thus, it is clear that when owner of the vehicle remained ex-parte, despite service of notice, then as per the law of pleading, there is deemed admission on the part of the owner of the vehicle admitting the factum of the accident, coupled with the fact that PW3 has not only proved the factum of accident, but also fact of negligence of the driver of the offending truck.

10. As far as issue of retrospective operation of the amendment in Rule 204(7) is concerned, law is clear in this regard and it provides that courts would undoubtedly rely very strongly against applying a new Act to a pending action, when language of the statute does not compel them to do so. (United Provinces vs. Mt. Atiqa Begum), AIR 1941 FC 16. In case of Garikapatti Veeraya vs. N. Subbiah Choudhury; AIR 1957 SC 540, P.553 (Para-25), it has been held that the golden rule of construction is that, in absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. In view of such settled principle of law, it is apparent that amendment in U.P. Motor Vehicle Rules making it mandatory to implead the driver of the vehicle involved in the accident shall not be retrospective in operation, but only beneficial provision can have retrospective application, as has been applied by Hon'ble Division Bench of this Court in case of ICICI Lombard General Insurance Co. Ltd. vs. Smt. Reena Tyagi and Others (supra).

11. Thus, this plea of non-impleadment of driver having adverse impact on the case of the claimants will not be applicable to the present facts and circumstances of the case, therefore, insurance company having failed to substantiate both the grounds namely that of contributory negligence and retrospective application of the amended Rules, appeal fails and is dismissed.

Order Date :- 18.2.2021

Vikram/-