Bombay High Court
The New India Assurance Company ... vs Sitaram Devidayal Jaiswal And ... on 21 November, 2011
Bench: A.S. Oka
1 FA.1731.10
ndm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
FIRST APPEAL NO. 1731 OF 2010
The New India Assurance Company Limited. ... Appellant
Versus
Sitaram Devidayal Jaiswal and others. ... Respondents
-----
Mr. D.S.Joshi for the Appellant.
Mr. T.J.Mendon for Respondent No.1.
ig -----
CORAM : A.S.OKA, J.
DATE ON WHICH SUBMISSIONS ARE HEARD : 20 October, 2011.
th
DATE ON WHICH JUDGMENT IS PRONOUNCED : 21 November, 2011.
st
JUDGMENT:
1 One of the issues involved in the present first appeal is
whether the driver of the offending vehicle against whom negligence
has been alleged is a necessary or proper party in a claim petition
under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred
to as "the said Act").
2 FA.1731.10
2 By this appeal, the Appellant - Insurer has taken an
exception to the judgment and award dated 29 June, 2010 passed by
th
the learned Member of the Motor Accident Claims Tribunal. The claim
petition was filed by the Respondent Nos.1 and 2 under Section 166 of
the said Act. The Respondent Nos.1 and 2 are the parents of the
deceased who was a victim of the accident. The accident occurred on
21 November, 2005 at about 02:00 am at N.S.Road, Mumbai under a
st
Flyover Bridge. It is alleged that when the deceased was crossing the
road, a car owned by the Respondent No.3 came in a very high speed
which was being driven in rash and negligent manner and gave a dash
to the deceased. Though the deceased was admitted to a hospital, he
succumbed to the injuries sustained in the accident. The car was
insured with the Appellant on the relevant date.
3 The claim petition was contested by the Appellant by filing
a written statement. One of the contentions raised was that the driver
of the car was a necessary and proper party and that as he was not
impleaded as a party, the claim petition was not maintainable. The
3 FA.1731.10
Tribunal held that the negligence on the part of the driver of the car
was established. The Tribunal proceeded to grant compensation of
Rs.2,90,000/- with interest at the rate of 7.5% per annum.
4 The first submission of the learned counsel appearing for
the Appellant is that the driver of the car insured with the Appellant
was a necessary and proper party to the claim petition as the
allegation of negligence was against the said driver. His submission is
that though the Respondent No.3 - owner is alleged to be vicariously
liable, unless the negligence on the part of the driver is proved, the
Respondent No.3 cannot be held vicariously liable. He submitted that
unless the driver was made a party, no finding could be recorded of
negligence against him. He has relied upon various decisions to which
a reference is made in the subsequent part of this judgment. He
submitted that a claim petition under Section 166 of the said Act is an
action under the law of torts and therefore, compensation is payable
only if the negligence on the part of the driver of the offending vehicle
is proved. He submitted that for proving the negligence, the driver
4 FA.1731.10
against whom negligence is alleged is a necessary and proper party.
He submitted that in the present case, negligence has not been
proved. Moreover, he submitted that as the deceased was a bachelor,
50% of his income ought to have been deducted on account of his
personal expenditure and therefore, the Tribunal has committed an
error by deducting only 1/3 amount on account of personal
rd
expenditure.
5 The learned counsel appearing for Respondent No.1
submitted that apart from the fact that there was no issue framed on
the basis of the contention regarding non-joinder of necessary party,
the law laid down by various decisions of the Apex Court as well as
this Court is that a driver is not at all a necessary party to a claim
petition under Section 166 of the said Act. He has relied upon several
decisions. He submitted that a claimant in a claim petition is under no
obligation to make any person as a party to the claim petition and it is
for the Tribunal to issue notice to the appropriate parties on the basis
of the claim petition. He submitted that negligence on the part of the
5 FA.1731.10
driver was proved and the compensation granted is reasonable.
6 I have given careful consideration to the submissions. The
first issue is whether the driver was a necessary and proper party. In
the case of Sikhandar Khan Rashid Khan Vs. Ansar Baig Sabdar
Baig and others [2011 (2) T.A.C. 365], a learned Single Judge of this
Court has held that the driver was not a necessary party to a claim
petition. Paragraph No.8 of the said decision reads thus:
"8. Section 166 of the Act enables the victim of a
motor accident to make an application for
compensation. Section 158(6) of the Act imposes a
duty on the officer-in-charge of a police station to
forward a copy of any information regarding any
accident involving death or bodily injury to any person
recorded by him to the Claims Tribunal having
jurisdiction in the area. Sub-section (4) thereof says
that the Claims Tribunal shall treat any report of
accident forwarded to it under sub-section (6) of
Section 158 of the Act as an application for
compensation under the Act. If the report of a police
officer is to be treated as an application for
compensation, obviously such application cannot be
dismissed even if it (the police report) does not name
the driver who may in some cases be absconding and
whose name and address may not be known. If there
would be no requirement of naming the driver in the
report of the police officer under Section 158(6) of the
Act, different rules and standards cannot be applied
for a claim application made by the victim against the
6 FA.1731.10
owner of the motor vehicle. Thus, in my view, the law
relating to the requirement of joining the driver of a
motor vehicle as a party to the claim application which
arises under the common law of torts and the principle
of the owner's liability being only vicarious the owner
cannot be liable unless the driver is a party to the
petition stands modified so far as the claim application
under the Motor Vehicles Act is concerned. The claim
application against the owner of the motor vehicle
cannot be dismissed merely on the ground that the
driver of the motor vehicle involved in the accident was
not joined as a party to the application."
(Underline supplied)
In the case of United India Insurance Co. Ltd. Vs. Ratna
Popat Patil & anr [2011 (2) Bom.C.R. 711], another Single Judge of
this Court has taken a contrary view. In paragraph No.13 of the said
decision, the learned Judge has held thus:
"13 Apparently, there is substance in the submissions
advanced by the learned Counsel Shri Gatne appearing
for the appellant Insurance Company and in view of the
judgment of the Apex Court in Machindranath's
case, the
driver of the offending vehicle would be a proper party or
he should at least be examined as a witness on the
allegations of rash and negligent driving on his part and
without his involvement, no adverse finding in respect of
negligence can be made against him and if such findings
are recorded in his absence, same would vitiate the
proceeding. However, in the instant case, the driver
namely Rajesh Shivaji Wagh, of the offending vehicle
has not been impleaded as party to the claim petition by
the petitioner and the adverse findings in respect of his
7 FA.1731.10
negligence have been recorded behind his back and in
his absence by the Tribunal by the impugned judgment
and award, and therefore, same would be vitiated, and
therefore, on the said ground itself, present appeal
deserves to be allowed partly quashing and setting aside
the impugned judgment and award and the matter
deserves to be remanded back to the Tribunal on the
ground that there is noncompliance of the mandatory
provisions of Rule 260(1) and (2) of the Maharashtra
Motor Vehicles Rules, 1989, with a further direction to
follow the mandate of the said Rule, keeping all other
points open for agitation to the respective parties."
(Underline supplied)
In the case of New India Assurance Co. Ltd. Vs. Babruwan
and others [2009 ACJ 2871], another Single Judge of this Court has
taken a view that non-impleadment of a driver not fatal. In paragraph
No.8 of the said decision, the learned Judge has held thus:
"8 It was canvassed that the driver of the jeep was not
arrayed as a party. However, non-impleadment of the
driver of the jeep by itself is not fatal. Insurance company
by leave of court could examine him. Claimants had
indeed proved negligence of the jeep driver but as stated
earlier, insurance company appellant has failed to
establish breach of policy conditions."
Similar view has been taken by the Division Bench of this Court
in the case of Oriental Insurance Co. Ltd. Vs. Pritam Rajiv Shetty
8 FA.1731.10
and another [2007 ACJ 444]. In paragraph No.8, the Division Bench
has held thus:
"8. ..... Merely because the driver of some other
vehicle or its insurer is not added as party to the
proceedings, the application would not fail for non-joinder
of the necessary parties, if it comes to the light that in fact
such other vehicle was also responsible for the accident.
In short, the claim application is not liable to be dismissed
on the principle of non-joinder of the necessary parties.
As a matter of fact it is the duty of Tribunal to call upon the
parties to furnish the registration number of vehicle(s), the
name of the owner(s) and its insurer(s) and issue notice
to all of them and thereafter make full and complete
adjudication of the application. In the instant case such
exercise had not been undertaking by the Tribunal and
even the appellant also failed to make such request to the
Tribunal. In our opinion, the claim application cannot be
rejected on the ground of the principle of non-joinder of
necessary party. Moreover, we may also notice that claim
application is not a plaint governed by the Code of Civil
Procedure or it is not a civil suit but it is the special
proceedings under the special Act and, therefore, the law
of which strict compliance is required while filing the civil
suit cannot be applied while dealing with the proceedings
under the special Act."
(Underline supplied)
Another learned Single Judge of this Court in the case of New
India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar
Pawar and others [2010 (2) Mh.L.J. 177] considered various
9 FA.1731.10
decisions of this Court and the Apex Court and has also considered
Rule 260 of the Maharashtra Motor Vehicles Rules, 1989. He decided
the issue of the driver being a necessary party by summarizing the law
as under:
"16. In view of the above, my findings on all aforesaid
aspects are summarised are as under:
(i) Meena Varila's case decided by the Apex Court
does not lay down a law that driver of offending
vehicle is necessary party in all cases and in his
absence, the Judgment and Award shall vitiate.
(ii) In an unreported Judgment of this Court in First
Appeal No.3839/2008, National Insurance
Company Ltd., vs. Vachista decided on 14-9-2009,
it has not been laid down that driver of the
offending vehicle was not necessary party, in case
of claim petition under Motor Vehicles Act.
(iii) In Machindranath's
case the contention that, the
driver of the offending vehicle was necessary party
in a claim petition and in his absence the entire
judgment and award would vitiate, has been
rejected.
(iv) In view of the Judgment of the Apex Court in
Machindranath's case, the driver of the offending
vehicle would be a proper party or he should at
least be examined, as witness on the allegations of
rash and negligent driving on his part and without
his involvement, no adverse finding on negligence
can be made against him and if any such finding is
recorded, same would vitiate the proceedings.
(v) No decree or award can be made personally
against the driver of the offending vehicle unless
he is involved in a claim petition either as party or
at least as witness.
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(vi) If there are specific rules involving the driver in a
claim petition in particular manner, then the matter
would be governed by the said rules and its
compliance will have to be shown.
(vii) The requirement of Rule 260(1) and (2) of the
Maharashtra Motor Vehicles Rules, 1989 is
mandatory and the Tribunal shall send to the owner
or driver of the vehicle or both, involved in the
accident and its insurer, a copy of the application
and annexures thereto, together with notice of the
date on which the parties shall enter their
appearance.
(viii) The service of notice shall be effected on owner,
driver and insurer of the offending vehicle in
question, as the case may be, by way of personal
service, through the bailiff or by Registered Post
A/D or both, as the Tribunal may deem fit and
proper.
(ix) If the driver or owner or insurer of the offending
vehicle does not respond to the notice so issued
and duly served, the Tribunal may proceed ex parte
and pass an award against any of them or all of
them and the proceedings shall not vitiate for not
calling a driver and examining him as witness."
(Underline supplied)
7 The learned Judge in the aforesaid decision in the case of
New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar
Pawar and others (supra) has relied upon the decision of the Apex
Court in the case of Machindranath Kernath Kasar Vs. D.S.
Mylarappa and others [(2008) 13 SCC 198]. In the said decision, the
11 FA.1731.10
Apex Court has considered all its earlier judgments including the
judgment in the case of Minu B. Mehta and another Vs. Balkrishna
Ramchadra Nayan and another [AIR (1977) SC 1248].
8 In the case of Sikhandar Khan Rashid Khan (supra), when
this Court had decided the issue, it appears that the decision of the
Apex Court in the case of Machindranath Kernath Kasar (supra) was
not brought to the notice of this Court. When a Division Bench of this
Court decided the issue in the case of Oriental Insurance Co. Ltd. Vs.
Pritam Rajiv Shetty and another (supra), the decision of the Apex
Court in the case of Machindranath Kernath Kasar (supra) was not
delivered. However, in the case of New India Assurance Company
Ltd., Aurangabad Vs. Suman Bhaskar Pawar and others (supra), the
decision of the Apex Court in the case of Machindranath Kernath
Kasar (supra) and Minu B. Mehta and another (supra) have been
extensively considered. This Court has held that the contention that
the driver of the offending vehicle was a necessary party in a claim
petition has been negatived by the Apex Court in the case of
12 FA.1731.10
Machindranath Kernath Kasar (supra). The Apex Court in the said
decision held that the driver of the offending would be a proper party.
This Court held that the requirement of Rule 260 of the said Rules of
1989 is mandatory and therefore, the Tribunal is under an obligation to
send notice to the owner or the driver of the vehicle and to its Insurer.
9 Perusal of the provisions of the said Act and the said Rules
of 1989 show that a claim petition is not at all a civil suit and neither
the said Act nor the said Rules of 1989 require a claimant to implead
any person as a party opponent to a claim petition. A duty is cast
upon the Tribunal by virtue of Rule 260 of the said Rules of 1989 to
issue the notices to the concerned parties. On this aspect, it will be
necessary to make a reference to the decision of the Division Bench of
this Court in the case of Bessarlal Laxmi chand Chirawala Vs. The
Motor Accidents Claims Tribunal, Greater Bombay and others
[1970 A.C.J. 334]. In paragraph No.10 of the said decision, the
Division Bench held thus:
13 FA.1731.10
"10. .... In that connection it requires to be noticed that
provisions in the Motor Vehicles Act
and the Rules made
in connection with application for claims for compensation
do not require any parties to be mentioned as opposite
parties in the title of the application. When the formality of
the amendment was asked for, it was the legal duty of the
Tribunal in this case to ascertain true facts as regards the
ownership of the B.E.S.T. Undertaking itself and
thereafter it was permissible for the Tribunal even without
an amendment having been granted to make an award of
compensation in favour of the petitioner against the
Municipal Corporation."
(Underline supplied)
Of course, the said decision was rendered in a claim petition
under the Motor Vehicles Act, 1939. But even under the said Act and
the said Rules of 1989, the legal position continues to be the same.
However, Rule 260 of the said Rules of 1989 is now very clear which
enjoins the Tribunal to issue notices to the concerned parties. Rule
260 of the said Rules of 1989 rads thus:
"Rule 260. Notice to the parties involved : - (1) If the
application is not dismissed under Rule 259, the Claims
Tribunal shall, send to the owner or the driver of the
vehicle or both involved in the accident and its insurer, a
copy of the application, and the annexures thereto
together with the notice of the date on which the parties
shall enter their appearance either in person, or through
their duly authorized agents, and may also file their
written statement, if any, with additional copies of the
14 FA.1731.10
same, for being furnished to the other parties connected
with the matter. It will dispose off the application, and
may call upon the parties to produce on that date any
evidence which they may wish to tender.
(2) The service of the notice shall be effected on the
owner, the driver and the insurer of the vehicle in
question, as the case may be, by way of personal
service, through the bailiff or by Registered Post A/D or
both.
(3) Whether the applicant makes a claim for
compensation under section 149, 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 fifteen 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
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 Claims
Tribunal shall proceed ex parte on the presumption that
they have no contention to make against the award of
compensation."
10 Thus, the law is that the claimant while filing a claim
application is under no obligation to ensure that all necessary and
proper parties are impleaded as opponents to the claim petition.
Considering the nature of the proceedings, the responsibility is of the
Tribunal to ensure that the notices are issued to all the necessary
parties. This power can be exercised by the Tribunal at any stage of
15 FA.1731.10
the proceedings.
11 It is a matter of common knowledge that while defending a
claim petition, diverse defences are raised in the written statements by
the owners and especially the Insurers. However, in many cases, we
find that all the defences pleaded are not pressed into service at the
time of final hearing. Whenever a contention is pressed into service by
any of the opponents to the claim petition or the persons to whom the
notice of the claim petition is issued under Rule 260 that the driver of a
vehicle is a necessary party, the Tribunal is under an obligation to
examine the said contention and if found correct, issue a notice to the
driver. It is obvious that if such contention is not pressed by the party
to whom the notice is served, the said party cannot be allowed to raise
the said contention for the first time in the appeal. A claimant cannot
be allowed to suffer as he is under no obligation to implead any party
as the opponent to the claim petition. In such a case, if the driver is
aggrieved by the adverse finding recorded against him by the award of
the Tribunal, he has a remedy of preferring an appeal against the
16 FA.1731.10
award after obtaining a leave of the Appellate Court. If neither the
owner nor the Insurer raises a contention before the Tribunal regarding
the non-joinder of the driver, it is not open for them to contend in the
appeal that the driver was a necessary party and that the award is
vitiated because of non-joinder of the driver. The observations made
by this Court in the case of New India Assurance Company Ltd.,
Aurangabad Vs. Suman Bhaskar Pawar and others (supra) in clause
(iv) of paragraph No.16 will apply only when specific defence of non-
joinder of the driver is pressed into service either by the owner or by
the Insurer. If they fail to raise the said contention, the same is not
available for them in the appeal. Needless to say that the same will
remain available to the driver who is not made party. As the law is that
the responsibility of issuing the notice to the proper parties is entrusted
to the Tribunal, if a contention regarding non-joinder is not raised, the
claimant cannot be allowed to suffer on the ground that the Tribunal
has failed to perform its duty. Even if a contention regarding non-
joinder of driver is raised at the time of final hearing of a claim petition,
17 FA.1731.10
if the said condition is correct, the Tribunal can issue notice to the
driver at any stage.
12 Now in the facts of the present case, it is true that in the
written statement the said contention was raised. However, no issue
was framed on the basis of the said contention. From the discussion
in the judgment, it appears that the said contention was not at all
pressed at the time of final hearing. There is no ground taken in the
Memorandum of Appeal that at the time of hearing, the said contention
was agitated, but the same has not been considered. The Appellant
could have always applied for recasting of the issues, but that was not
done. Therefore, it is apparent that though the contention regarding
non-joinder was taken in the written statement, the same was not
agitated at any time thereafter. It appears that after having taken the
said contention in the written statement, the said contention was not
pressed thereafter. Therefore, now in appeal, the Appellant cannot be
allowed to raise the said contention as the same will cause serious
prejudice to the claimant.
18 FA.1731.10
13 The Tribunals will have to ensure that if such contention
regarding non-joinder of the driver is raised and is found to be correct,
a notice is issued to the driver so that the claimant does not suffer.
The Tribunal should consider such contention in the written statement
at the time of framing of issues.
Now, coming to the facts of the case, in view of the
decision of the Apex Court in the case of Sarla Verma (Smt) and
others Vs. Delhi Transport Corporation and another [(2009) 6
Supreme Court Cases 121], in a case where the deceased is
unmarried, 50% of the amount of his income will have to be deducted
on account of personal expenditure. In the present case, the age of
the deceased was 18 years at the time of the accident. As the accident
was of November 2005, notional income of the deceased has been
rightly taken at Rs.2,500/- per month. Thus, the yearly income was
take at Rs.30,000/-. The ½ amount will have to be deducted on
account of personal expenditure of the deceased. Therefore, the
19 FA.1731.10
multiplicand will be Rs.15,000/-. On the basis of the average age of
the claimants / parents, multiplier of 14 has been rightly applied by the
Tribunal. Adding usual amount of Rs.10,000/- towards funeral
expenditure etc, the total compensation payable will be Rs.2,20,000/-.
To that extent, the appeal will have to be allowed.
15 Hence, I pass the following order:
i. The impugned judgment and award is modified
to the extent that the total compensation
payable shall be Res.2,20,000/- instead of
2,90,000/- ;
ii. Rest of the ward is confirmed ;
iii. The appeal is partly allowed on above terms
with no order as to costs ; and
iv. Civil Application No.751 of 2011 does not
survive and the same is disposed of.
[ A.S.OKA, J ]
