Madhya Pradesh High Court
Tata Aig General Insurance Company ... vs Rakesh @ Raikesh Adiwasi on 10 October, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:25594
1 CR-82-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 10th OF OCTOBER, 2025
CIVIL REVISION No. 82 of 2025
TATA AIG GENERAL INSURANCE COMPANY LIMITED
Versus
RAKESH @ RAIKESH ADIWASI AND OTHERS
Appearance:
Shri Bal Krishna Agrawal- Advocate for the applicant.
Ms. Meena Singhal and Shri Arvind Kumar Mangal-Advocate for
respondent No.1.
ORDER
This civil revision under Section 115 CPC has been filed against the
order dated 7.11.2024 passed by First Motor Accident Claims Tribunal,
Gwalior in MACC No. 402/2023 by which compensation to the tune of Rs.
17,775/- has been awarded to the respondent No. 1.
2. Apparently the bone of contention of the applicant is that the Driver
of the offending vehicle was not impleaded as respondent and a specific
objection was taken by the applicant in his written statement. However, the
Claims Tribunal has erroneously held that non-impleadment of Driver is not
fatal and relied upon the judgement passed by the Supreme Court in the case
of Oriental Insurance Company Ltd. v. Meena Variyal and Ors. reported in
(2007) 5 SCC 428.
3. Per contra, the revision is vehementaly opposed by counsel for
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respondents/claimants. It is submitted that coordinate Bench in the case of
ICICI Lombard General Insurance Company Ltd. v . Smt. Mahadevi and
Ors. reported in 2023 (1) TAC 671 (M.P.) held that Driver of the offending
vehicle is not a necessary party for the reason that in the Madhya Pradesh
Motors Vehicle Rules, there is no clause in the appropriate form for
impleading the Driver. It is further submitted that in the light of the judgment
passed by Division Bench of the Allahabad High Court in the case of
National Insurance Company Ltd v. Madhumati and Ors. reported in 2015
ACJ 1131, the revision filed by the applicant is not maintainable because the
claims Tribunal has merely applied the principle of pay and recover.
4. Heard the learned counsel for the parties.
5. The moot question for consideration is as to whether the Driver of
the offending vehicle is a necessary party or not ? In a claim petition, the
claimant has to prove that because of negligence on the part of driver of
offending vehicle, accident took place. In case if it is found that the claimant
himself was negligent, then he will not be entitled for compensation amount.
Therefore, in order to award compensation amount to the injured or the legal
representatives of the deceased, the claimant must prove that the accident
took place on account of rash and negligent act of the Driver. Under these
circumstances, in the considered opinion of this Court, the Driver of the
offending vehicle is a necessary party. The Supreme Court in the case of
Meena Variyal (supra) has held as under:-
"24. It was argued by learned counsel for the appellant that since on the
finding that the deceased was himself driving the vehicle at the time of the
accident, the accident arose due to the negligence of the deceased himself and
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hence the insurer is not liable for the compensation. Even if the case of the
claimant that the car was driven by Mahmood Hasan was true, then also, the
claimant had to establish the negligence of the driver before the insured (sic
insurer) could be asked to indemnify the insured. The decision in Minu B.
Mehta v. Balkrishna Ramchandra Nayan of a three-Judge Bench of this Court
was relied on in support.
25. In that decision, this Court considered the question whether in a claim for
compensation under the Motor Vehicles Act, 1939, proof of negligence was
essential to support a claim for compensation. On the facts in that case, their
Lordships found that the appeal was liable to be dismissed subject to certain
directions issued therein. But their Lordships, in the light of the fact that the
High Court had discussed the law on the question and it was of some
importance, felt that it was necessary to state the position in law. Noticing that
the liability of the owner of the car to compensate the victim in a car accident
due to negligent driving of his servant is based on the law of tort, the Court
discussed the scheme of the Act of 1939 and the law on the question.
Regarding the view of the High Court that it was not necessary to prove
negligence, the Court held: ( Minu B. Mehta case , SCC pp. 455-56, para 33)
"33. The reasoning of the two learned Judges is unacceptable as it is opposed
to basic principles of the owner's liability for negligence of his servant and is
based on a complete misreading of the provisions of Chapter VIII of the Act.
The High Court's zeal for what it considered to be protection of public good
has misled it into adopting a course which is nothing short of legislation."
Their Lordships also noticed that proof of negligence remained the lynchpin to
recover compensation. Their Lordships concluded by saying: (Minu B. Mehta
case , SCC pp. 456-57, para 37)
"37. We conclude by stating that the view of the learned Judges of the High
Court has no support in law and hold that proof of negligence is necessary
before the owner or the insurance company could be held to be liable for the
payment of compensation in a motor accident claim case."
26. Learned counsel for the respondent contended that there was no obligation
on the claimant to prove negligence on the part of the driver. Learned counsel
relied on Gujarat SRTC v. Ramanbhai Prabhatbhai in support. In that decision,
this Court clarified that the observations in Minu B. Mehta case [(1977) 2 SCC
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441 : (1977) 2 SCR 886] are in the nature of obiter dicta. But, this Court only
proceeded to notice that departures had been made from the law of strict
liability and the Fatal Accidents Act by introduction of Chapter VII-A of the
1939 Act and the introduction of Section 92-A providing for compensation and
the expansion of the provision as to who could make a claim, noticing that the
application under Section 110-A of the Act had to be made on behalf of or for
the benefit of all the legal representatives of the deceased. This Court has not
stated that on a claim based on negligence there is no obligation to establish
negligence. This Court was dealing with no-fault liability and the departure
made from the Fatal Accidents Act and the theory of strict liability in the
scheme of the Act of 1939 as amended. This Court did not have the occasion to
construe a provision like Section 163-A of the Act of 1988 providing for
compensation without proof of negligence in contradistinction to Section 166
of the Act. We may notice that Minu B. Mehta case [(1977) 2 SCC 441 :
(1977) 2 SCR 886] was decided by three learned Judges and the Gujarat SRTC
case was decided only by two learned Judges. An obiter dictum of this Court
may be binding only on the High Courts in the absence of a direct
pronouncement on that question elsewhere by this Court. But as far as this
Court is concerned, though not binding, it does have clear persuasive authority.
On a careful understanding of the decision in Gujarat SRTC we cannot
understand it as having held that in all claims under the Act proof of negligence
as the basis of a claim is jettisoned by the scheme of the Act. In the context of
Sections 166 and 163-A of the Act of 1988, we are persuaded to think that the
so-called obiter observations in Minu B. Mehta case govern a claim under
Section 166 of the Act and they are inapplicable only when a claim is made
under Section 163-A of the Act. Obviously, it is for the claimant to choose
under which provision he should approach the Tribunal and if he chooses to
approach the Tribunal under Section 166 of the Act, we cannot see why the
principle stated in Minu B. Mehta case [(1977) 2 SCC 441 : (1977) 2 SCR 886]
should not apply to him. We are, therefore, not in a position to accept the
argument of learned counsel for the respondents that the observations in Minu
B. Mehta case deserve to be ignored."
6. So far as judgement passed by coordinate Bench in the case of
Mahadevi (Supra) is concerned, it is merely based on the proforma of form
of application seeking compensation as provided in Motor Vehicles Rules
1994. The coordinate Bench of this Court has not considered the judgment
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passed by the Supreme Court in the case of Meena Variyal (Supra) . The
coordinate Bench of this Court has not considered that without adjudicating
the question of negligence of the Driver, whether the claim petition filed by
the claimant can be allowed or not. The coordinate Bench of this Court has
not considered that owner of the vehicle is made vicariously liable for the
negligent act of the Driver. In absence of finding with regard to the
negligence of the Driver neither the owner can be made responsible nor the
Insurance Company who had insured the vehicle and thereby has
indemnified the owner can be made responsible. Thus, in the considered
opinion of this Court, the judgement passed by the coordinate Bench of this
Court in the case of Mahadevi (Supra) is per incuriam because it has not
considered any aspect and has held that impleadment of Driver is not
necessary merely because of omission in the form of application seeking
compensation. It is well established principle of law that the rules will not
override the provision of statute. In the present case, the applicant had
specifically taken a stand in ground 'A' of special plea that Driver has not
been impleaded as a party and in absence of Driver, the negligence cannot be
adjudicated. In spite of that the claim petitioner/respondent No. 1 decided to
proceed further with the claim petition. The Supreme Court in the case of
Church of Christ Charitable Trust & Educational Charitable Society v.
Ponniamman Educational Trust reported in (2012) 8 SCC 706 has held as
under:-
26. On the other hand, when the plaintiff itself persists in not
impleading a necessary party in spite of objection, the consequences of
non-joinder may follow. However, the said objection should be taken
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in the trial court itself so that the plaintiff may have an opportunity to
rectify the defect. The said plea cannot be raised in this Court for the
first time. This position has been reiterated in State of U.P. v. Ram
Swarup Saroj. We hold that a plea as to the non-joinder of the party
cannot be raised for the first time before this Court if the same was not
raised before the trial court and has not resulted in failure of justice. In
the case of non-joinder, if the objection is raised for the first time
before this Court, the Court can always implead the party on the
application wherever necessary. However, in the case on hand, for the
disposal of application filed for rejection of the plaint under Order 7
Rule 11, the second defendant is not a necessary party, hence he need
not be impleaded. Accordingly, we reject the said objection of the
respondent herein.
7. Thus, it is clear that an objection was raised by the Insurance
Company at the earliest and in spite of that the claim petitioner had decided
to go ahead with the claim petition, then he is responsible to face the
consequences of non-impleadment of necessary party. In view of the
aforesaid discussion, it is held that the Driver of the offending vehicle is a
necessary party because the entire allegation of negligence is against the
Driver and without giving any opportunity of hearing to the Driver, the
finding of negligence cannot be fastened on him. The Claims Tribunal has
referred to the judgement passed by a coordinate Bench of this Court in the
case of ICICI Lombard General Insurance Company vs. Smt. Mahadevi and
Ors. passed in M.A. No. 803/2011 and held that the Driver of the offending
vehicle was not the necessary party. The reliance by the Claims Tribunal on
the aforesaid judgment is misconceived. In the case of Mahadevi (supra) the
driver and the owner of the vehicle were made party, but they remained ex-
party. Any pronunciation of law has to be considered in the light of facts and
circumstances of the said case.
8. Since the driver of the offending vehicle is a necessary party,
therefore, it is held that once respondent No. 1/claimant had decided to
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proceed further in spite of the specific objection regarding non-impleadment
of driver then claimant/ respondent has to face the consequences of non-
impleadment of the necessary party. Under these circumstances, this Court is
of the considered opinion that claim petition filed by respondent No. 1
suffers from non-impleadment of necessary party. Thus, claim petition filed
by respondent No. 1 is liable to be dismissed on that ground. The next
submission by the counsel for the respondent is that since the applicant has
been saddled with liability of pay and recover, therefore revision on his
behalf is not maintainable and has relied upon judgement of Allahabad High
Court in the case of Madhumati (Supra).
9. Considered the aforesaid submissions made by counsel for the
respondent.
10. Where the insurance company is saddled with liability to pay with
liberty to recover the same then that does not mean that the insurance
company cannot assail the award on the ground that either the pay and
recover principle should not have been applied or the compensation amount
has been exorbitantly awarded or the claim petition was not maintainable at
all.
11.Thus, it is held that when a revision or miscellaneous appeal is filed
by insurance company on multiple grounds including that principle of pay
and recover should not have been applied, then revision/miscellaneous
appeal would be maintainable, and it cannot be said that merely because
insurance company has also raised the ground of pay and recover, then such
revision or miscellaneous appeal would not be maintainable.
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12. No further argument is advanced by counsel for parties.
13. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion that since the claim petition suffers from non-
joinder of necessary party which goes to the root of litigation, therefore,
award dated 7.11.2024 passed by First Motor Accident Claims Tribunal,
Gwalior in MACC No. 402/2023 cannot be given the stamp of judicial
approval. Accordingly, the same is hereby set aside, and claim petition filed
by respondent No. 1 is hereby dismissed.
Civil revision succeeds and is hereby allowed.
14. Office is directed to keep a copy of this order in the file of M.A.
No. 728/2025.
(G. S. AHLUWALIA)
JUDGE
ar
