The United India Insurance Co. ... vs Vanita W/O. Maroti Danav And ...
2017 Latest Caselaw 6974 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



First Appeal No. 665 of 2017 

Appellant              :          The United India Insurance Co. Ltd.,

                                  having its Branch Office at Chandrapur, 

                                  through Assistant Manager

                                        versus

Respondents            :          1)   Vanita w/o Maroti Danav, aged about

44 years, Occ: Housewife, resident of Pawana,

Tahsil Bhadravati, Dist. Chandrapur

2) Savita w/o Sunil Urkude, aged about 42

years, Occ: Housewife, resident of Jujad,

Post Sakhara, Tahsil Wani, Dist. Yavatmal

3) Gokul s/o Barkuji Niranjane, aged Major,

280, Radhakrishna Apartments, MHC Road,

Bajaj Nagar, Nagpur

Shri H. V. Thakur, Advocate for appellant

Shri H. N. Potbhare, Advocate for respondents no. 1 and 2

Coram : S. B. Shukre, J

Dated : 11th September 2017

Oral Judgment

1. Heard learned counsel for the appellant and learned counsel

for respondents no. 1 and 2. None appears for respondent no. 3 though

duly served with the notice for final disposal.

2. Admit. Heard finally in terms of order dated 2nd May 2017.

3. Upon hearing learned counsel for the appellant and learned

counsel for respondents no. 1 and 2 and on going through the impugned

judgment and order as also the relevant case law, the only point that

arises for my determination is, whether driver of the offending vehicle viz.

Tata Indica Car bearing registration No. MH-31-CR-5247 being not

impleaded as party-respondent to the claim petition, findings recorded by

the Tribunal against the appellant and owner of the offending vehicle are

vitiated ?

4. In the present case, there was collision between auto-

rickshaw bearing registration No. MH-34-D-5105 and the said Tata Indica

Car on 22.3.2009. In this collision, deceased Shindhu who was

travelling by auto-rickshaw sustained grievous injuries and died of those

injuries. In the claim petition filed under Section 166 of the Motor

Vehicles Act by respondents no. 1 and 2, it was held that the accident

occurred due to the negligent driving by the driver of the offending

vehicle Tata Indica Car. However, driver of this vehicle was not jointed as

a party. The driver was not examined as a witness by any of the parties.

In the claim petition, an issue was framed as to whether or not the claim

petition was bad for non-joinder of necessary party and it was answered

as in the negative holding that in the claim petition, driver of the

offending vehicle was not a necessary party, meaning thereby, a finding

of negligent driving can be recorded even in his absence.

5. According to Shri Thakur, learned counsel for the appellant,

such a finding cannot be recorded in the absence of the driver and that he

should be involved in the claim petition, one way or the other, as a proper

party, if not as a necessary party. He relies upon judgment of the Hon'ble

Apex Court in the case of Machindranath Kernath Kasar v. D. S.

Mylarappa & ors reported in (2008) 13 SCC 198 which has been

followed by the learned single Judge of this Court in the case of New

India Assurance Company Ltd. v. Suman Bhaskar Pawar & ors

reported in 2010 (2) Mh. L. J. 177.

6. Learned counsel for respondents no. 1 and 2 submits that

driver of the offending vehicle is not a necessary party though his

presence before the Tribunal may be required as a party. But, as the

appellant did not take any efforts to examine the driver as its witness, the

facts of the case would not be covered by the ratio laid down in the case

of Machindranath Kernath Kasar (supra).

7. In the case of Machindranath Kernath Kasar (supra), the

Hon'ble Apex Court has held that making of 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. The Hon'ble Apex Court has also held that on the basis of

such reasoning, the driver should be made a "party" to the proceedings,

one way or the other, not necessarily by his being joined as a party-

respondent, but his being involved in the petition through his examination

as a witness. Paragraphs 42 and 43 of the said judgment, being relevant,

are reproduced thus :

"42. Joint tortfeasors, as per 10 th Edn. 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 is 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 f 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.

43. 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 the 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."

This law has been followed by the learned single Judge of this Court in

Suman Bhaskar Pawar (supra).

8. In the present case, driver of the offending vehicle was not

made a party to the claim petition as a necessary party and the prayer of

the appellant for his joining as a party-respondent was rejected by the

Tribunal. Thereafter, it appears that this appellant did not take any

efforts to summon the driver of the offending vehicle as a witness. But, if

the appellant did not make any such efforts, nothing prevented either

respondent no. 1 or respondent no. 2 to summon the said driver as a

witness or at least praying before the Tribunal to examine the driver of

the offending vehicle as a court witness. This was not done by any of the

parties. It is also seen that the Tribunal also did not make any efforts on

its own to summon the driver as a witness. The result of this was that the

driver of the offending vehicle was not a "party" to the proceedings by his

not being involved, one way or the other, in the claim petition.

9. In the case of Machindranath Kernath Kasar (supra), the

Hon'ble Supreme Court has emphasized upon such involvement of the

driver in the claim petition proceedings, because it not only serves as an

opportunity to the driver to make a representation, but also enables the

Court to record a finding of rashness and negligence about driving of the

offending vehicle. What is required is involvement of the driver, and

such involvement would be complete either by joining the driver as a

party-respondent or summoning him as a witness or a court witness,

though upon receipt of summons, he may have chosen to remain absent.

If he presents himself to the Court as a witness, well and good, but when

he remains absent without showing good cause for absence after receipt

of summons, the requirement of his involvement in the proceedings

would be fulfilled and then the Tribunal would be within law to draw

necessary inference and record appropriate finding. If the driver is not

involved in this fashion, the evidence would have to be termed as

inadequate and, therefore, the finding regarding rashness and negligence

would not be possible. This is what has happened here.

10. In the circumstances, I find that the Tribunal could not have

recorded the finding regarding driver of the offending vehicle being rash

and negligent in driving at the relevant time in the absence of the driver

being party to the claim petition, one way or the other. The entire

impugned judgment and order are rendered vitiated and the point is

answered as in the affirmative. The matter is now required to be remitted

back to the Tribunal for decision afresh in accordance with law.

11. The appeal is allowed. The impugned judgment and order is

quashed and set aside. The matter is remitted back to the Tribunal for a

decision afresh in the matter. The driver of the offending vehicle shall be

joined as a party-respondent. A notice/summons shall be issued to him

and opportunity shall be given to him for raising defence in the matter.

Final disposal of the claim petition is expedited and the Tribunal is

expected to dispose of the claim petition as early as possible, preferably

within six months from the date of service of notice upon the driver.

Parties to appear before the Tribunal on 18 th September 2017. Let Record

and Proceedings go down immediately. Parties to bear their own costs.

The amount deposited here by the Insurance Company shall be

transferred to the Tribunal and on its transfer there, it shall be invested in

any nationalised bank as per rules till final disposal of the claim petition.

CAF No. 2035 of 2017 filed for withdrawal of the amount is disposed of

as infructuous.

S. B. SHUKRE, J

Joshi