[Cites 10, Cited by 0]
Madhya Pradesh High Court
State Of M.P. Thru Collector vs Smt.Premwati Jatav on 25 March, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:10373
1 MA-265-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 25th OF MARCH, 2026
MISC. APPEAL No. 265 of 2006
STATE OF M.P. THRU COLLECTOR AND OTHERS
Versus
SMT.PREMWATI JATAV
Appearance:
Shri Dileep Awasthi -Government Advocate for appellants-State.
None for respondents.
ORDER
This miscellaneous appeal has been filed by the appellants under
Section 173 of the Motor Vehicles Act, 1988, being aggrieved by the Award
dated 24/10/2005 passed by the Seventh Additional Member, Motor
Accident Claims Tribunal, District- Gwalior (M.P.) (hereinafter referred to
as "the Claims Tribunal") in Claim Case No.05/2005, whereby Claims
Tribunal awarded compensation of Rs. 37,000/- to the claimant alongwith
interest from the date of filing of claim petition.
2. Brief facts of the case are that in the night at 11.00 pm, claimant was
going in marriage procession putting light Gamla on her had. As soon as
procession reached in Naya Bazar, white police vehicle bearing registration No.
MPO3/3066 came driving rash and negligently and dashed on left leg of claimant
and she received injuries. FIR was registered against driver of offending vehicle.
3. Thereafter, claimant filed petition for seeking compensation against
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appellants. Appellants filed written statement and Claims Tribunal framed issues
and after appreciating the evidence awarded compensation in favour of
respondent/claimant.
4. Being aggrieved by the impugned award, the appellants have
preferred this appeal on the ground that the learned Claims Tribunal
committed error awarding compensation in favour of respondent/claimant. It
is submitted that respondent/claimant filed claim petition before the Claims
Tribunal without impleading driver of offending vehicle. Therefore, claim
petition was not maintainable. Hence, it is prayed that impugned award be
set-aside.
5. No one appeared on behalf of respondent/claimant.
6. Heard learned counsel for the appellants. and perused the record of the
Claims Tribunal.
7. 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 Oriental Insurance Company Ltd. Vs Meena Variyal
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and Ors. reported in (2207) 5 SCC 428 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 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
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4 MA-265-2006
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
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."
8. So far as judgement passed by coordinate Bench in the case of
ICICI Lombard General Insurance Company Ltd. Vs Smt. Mahadevi and
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5 MA-265-2006
Ors. reported in 2023 (1) TAC 671 (M.P.) 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 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
NEUTRAL CITATION NO. 2026:MPHC-GWL:10373
6 MA-265-2006
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
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.
9. Thus, it is clear that an objection was raised by the appellants 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
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circumstances of the said case.
10. Since the driver of the offending vehicle is a necessary party,
therefore, it is held that once respondent No. 1/claimant had decided to
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.
11. In view of the aforesaid discussion, this Court is of the considered
opinion that the driver of the offending vehicle is a necessary party in a
claim petition under Section 166 of the Motor Vehicles Act. Non-
impleadment of the driver renders the claim petition defective and not
maintainable.
12. Consequently, the impugned award passed by the Claims Tribunal
cannot be sustained in the eyes of law.
13. Accordingly, the appeal is allowed. The Award dated 24/10/2005
passed by the Claims Tribunal in Claim Case No.05/2005 is hereby set aside
and it is held that the respondent/claimant is not entitled to compensation
under Section 166 of the Motor Vehicles Act in the present proceedings due
to non-impleadment of a necessary party.
(HIRDESH)
JUDGE
Prachi
