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CASE NO.: Appeal (civil)  3041 of 2008

PETITIONER: Machindranath Kernath Kasar

RESPONDENT: D.S. Mylarappa & Ors.

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  REPORTABLE

CIVIL APPEAL NO. 3041   OF 2008 [Arising out of  SLP (Civil) No. 17711 of 2006]

S.B. SINHA, J :

1.      Leave granted.

2.      Appellant was a driver of a bus belonging to the Karnataka State Road  Transport Corporation.   He was driving the said vehicle on 18.4.1995.   A  collision took place between the said bus and a truck bearing Registration  No. CAM 6939.  A large number of passengers travelling in the said bus  were injured.   Appellant herein was also one of them.   The passengers of  the said bus as also the appellant filed applications for payment of  compensation before the Motor Vehicles Accident Claims Tribunal,  Belgaum in terms of Section 166 of the Motor Vehicles Act, 1988 (for short  "the Act").            Appellant was also prosecuted for rash and negligent driving before a  criminal court.   No such case was initiated against the driver of the truck.    The Corporation denied and disputed the contention of the passengers that  the appellant was driving the bus in a rash and negligent manner.           Appellant examined himself in the other claim petitions in support of  the case of the Corporation.   He, however, was not impleaded as a party  therein.   It is stated that ordinarily drivers are not impleaded as parties in the  claim cases in the State of Karnataka, purported to be having regard to the  provisions contained in Rule 235 of the Karnataka Motor Vehicle Rules,  1989. 3.      Both sets of claim cases were taken up for hearing together by the  Tribunal.  The awards were also passed on the same day.   4.      In the claim applications filed by the passengers, despite the  deposition of the appellant to the contrary, a finding of fact was arrived at,  that he was driving the bus rashly and negligently. 5.      The claim petitions of the passengers were allowed.   The Corporation  did not challenge the correctness of the said awards.   They attained finality.    The Tribunal in the case of the appellant also went into the question once  over again to hold that the accident was caused owing to the rash and  negligent driving of the appellant.   It was opined that only because he had  been acquitted of the charges by the criminal court in Section 279 or 338 of  the Indian Penal Code, the same was not conclusive, stating : "\005.It is the version of the petitioner that there was  negligence on the part of the truck driver.   But the  nature of damage caused to either vehicles does  not corroborate the same.   On perusal of Ex. P3 it  is mentioned that the front show of the KSRTC  bus was completely damaged, head light radiator

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and front right driver door damaged, bonnet  damaged in the course of accident.   On the other  hand Ex. P3 reveals that front right show damaged,  front bumper bent, front right head light broken,  front right wind shield glass broken, radiator cover  damaged.   Therefore the nature of damage caused  to the truck reveals unequivocally that only right  side portion of the truck was damaged.   If really  the truck driver had come on right side from  Belgaum to Kanbargi road and dashed against the  KSRTC bus, the middle portion of the truck would  have been damaged.   On the other hand, the  middle portion of KSRTC bus is damaged as per  the recitals in Ex. P3.   Therefore the nature of  damages caused to the bus reveals the fact that it  was the bus driver who came towards right side of  the Kanbargi Belgaum road while over taking a  parked truck.   The fact that the bus driver was  trying to overtake parked truck is not in dispute."  

6.      The Tribunal expressly negatived the contention of the appellant that  it was the truck driver who was driving the truck rashly and negligently,  stating: "There was no reason for the petitioner being a driver  of the KSRTC bus to take the same to the extreme  right side of the Belgaum Kanbargi road as to cause  accident.   It is also admitted by the petitioner as well  as in the petition itself that the KSRTC driver was  trying to overtake a parked lorry.   At that time the  petitioner being a driver of the KSRTC should have  seen whether there was any vehicle which were  coming on opposite direction at the time of overtaking  a parked lorry.   It appears that there was negligence  on the part of the KSRTC driver himself, and as such  it has to be held that the accident took place due to the  negligence of the petitioner himself.   For all these  reasons, there is no oral and documentary evidence on  record to prove the fact that the accident took place  due to the negligence of the driver of the truck No.  CAM.6939.   On the other hand the oral evidence of  RW.1 coupled with panchanama and photos produced  at Ex. R2 and R3 clearly proves the fact that the  accident was due to rash and negligence of the  petitioner himself\005"

       Inter alia on the aforementioned finding the claim petition was  dismissed.    

7.      He preferred an appeal thereagainst in terms of Section 173 of the  Act.   A Division Bench of the Karnataka High Court dismissed the said  appeal opining that as the appellant did not question the correctness of the  earlier awards passed by the Tribunal although he was a party aggrieved, he  is bound thereby, as regards to the question of negligence.   The High Court,  thus, affirmed the views of the Tribunal.   8.      Mr. Kiran Suri, learned counsel appearing on behalf of the appellant  submitted;

(i)     The High Court erred in holding that although the appellant was  not a party in the proceeding, he was an aggrieved person.   (ii)    The Awards passed by the Tribunal in the cases of the passengers  were not binding on the appellant. (iii)   The Tribunal and consequently the High Court committed a  serious error insofar as they failed to take into consideration the  panchnama drawn by the police personnel from a perusal

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whereof it would be evident that it was the driver of the truck  who was rash and negligent.   9.      Mr. D. Varadarajan, the learned counsel appearing on behalf of the  respondent Insurance Company, on the other hand, would submit: (a)     Even in this claim petition, the driver of the truck has not been  impleaded as a party.    (b)     Both the Tribunal as also the High Court arrived at a finding of  fact that the appellant alone was negligent, and as such the same  should not be interfered by this Court with particularly when no  evidence was adduced on behalf of the appellant or Corporation to  prove contra.  

10.     Chapter II of the Act provides for licensing of drivers of motor  vehicles.   The Central Government as also the State Government have been  conferred powers to make rules under various provisions of the said Act.   

Chapter 11 of the Act provides for insurance of motor vehicles against  third party risks.    Section 146 providing for necessity of insurance against third party  risks is in the following terms. "146. Necessity for insurance against third party  risk \026 (1)   No person shall use, except as a passenger,  or cause or allow any other person to use, a motor  vehicle in a public place, unless there is in force in  relation to the use of the vehicle by that person or that  other person, as the case may be, a policy of insurance  complying with the requirements of this Chapter:

Provided that in the case of a vehicle carrying, or  meant to carry, dangerous or hazardous goods, there  shall also be a policy of insurance under the Public  Liability Insurance Act, 1991"  

Section 147 provides for the requirements of policies and limits of  liability.    

Section 149 imposes duties on insurers to satisfy judgments and  awards against persons insured in respect of third party risks.    

The insurer having regard to sub-Section (2) of Section 149 of the Act  would be entitled to avoid its liability in one of the contingencies specified  therein. Section 149(2)(a) reads thus; "149(1) *****   ***** 149(2) ***** ****** (a) that there has been a breach of a specified condition of the  policy, being one of the following conditions, namely:- (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on  the date of the contract of insurance a vehicle  not covered by a permit to ply for hire or  reward, or    (b) for organised racing and speed testing, or    (c) for a purpose not allowed by the permit  under which the vehicle is used, where the  vehicle is a transport vehicle, or    (d) without side-car being attached where the  vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or  persons or by any person who is not duly licensed, or by  any person who has been disqualified for holding or  obtaining a driving licence during the period of

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disqualification; or (iii) a condition excluding liability for injury caused or  contributed to by conditions of war, civil war, riot or civil  commotion; or (b) that the policy is void on the ground that it was obtained  by the nondisclosure of a material fact or by a representation  of fact which was false in some material particular."

       Section 163A provides for special provision as to payment of  compensation on structured formula basis in the event an accident arising  out of the use of motor vehicle has taken place.

11.     Chapter XII provides for constitution of Claims Tribunal.   Section  166 envisages filing of an application for grant of compensation.   An  application may be filed for payment of compensation arising out of an  accident of the nature specified in sub-Section (1) of Section 165.

       Sub-section (2) of Section 166 reads as under: "Section 166.***** (1) ********** (2)  Every application under sub-section (1) shall be  made, at the option of the claimant, either to the Claims  Tribunal having jurisdiction over the area in which the  accident occurred, or to the Claims Tribunal within the  local limits of whose jurisdiction the claimant resides or  carries on business or within the local limits of whose  jurisdiction the defendant resides, and shall be in such  form and contain such particulars as may be prescribed:    Provided that where no claim for compensation under  section 140 is made in such application, the application  shall contain a separate statement to that effect  immediately before the signature of the applicant."

12.     The State of Karnataka in exercise of its rule making power has made  Karnataka Motor Vehicles Rules, 1989, Rule 235 whereof reads as under:  "235.   Notice to the parties involved \026 (1)  The  Claims Tribunal shall on an application made to it by  the applicant send to the owner or the driver of the  vehicle or both from whom the applicant claims relief  and the insurer, a copy of the application, together with  the notice of the date on which it will dispose of the  application, and may call upon the parties to produce on  that date any evidence which they may wish to tender.

(2)     Where the applicant makes a claim for  compensation under Section 140 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 10 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  the 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 Tribunal will proceed ex-parte on the  presumption that they have no contention to make  against the award of compensation.  

13.     Rule 232 provides that every application for compensation is to be  made by a person specified in Section 166(1) to the Claims Tribunal in Form  KMV 63.

14.     Ms. Suri submitted that the Act and the Rules as also the prescribed  forms do not require the driver to be made a party and in that view of the  matter, Rule 235 should be read disjunctively.   Our attention in this behalf

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has been drawn to a decision of the Division Bench of the Karnataka High  Court  in Patel Roadways and Another Vs. Manish Chhotalal Thakkar and  Others [ILR 2000 Kar. 3286].

15.     The learned Judges in Patel Roadways (supra) opined that when the  form of the claim petition does not require a claimant to even name the  driver, a claim petition would be maintainable even without impleading the  driver.           The Bench proceeded to consider the general law of tort and the  liability of joint tort feasers as contained in various text books.  The Bench  also noticed the decision of this Court in Minu B. Mehta and Another Vs.  Balkrishna Ramchandra Nayan and Another [AIR 1977 SC 1248], wherein it  was held: "The liability of the owner of the car to compensate  the victim in a car accident due to the negligent driving  of his servant is based on the Law of Torts.   Regarding  the negligence of the servant the owner is made liable  on the basis of vicarious liability.  Before the master  could be made liable it is necessary to prove that the  servant was acting during the course of his employment  and that he was negligent\005\005

This plea ignores the basic requirements of the  owner’s liability and the claimants right to receive  compensation.   The owners’ liability arises out of his  failure to discharge a duty cast on him by law.   The  right to receive compensation can only be against a  person who is bound to compensate due to the failure to  perform a legal obligation.   If a person is not liable  legally he is under no duty to compensate anyone else.    The Claims Tribunal is a Tribunal constituted by the  State Government for expeditious disposal of the motor  claims.   The general law applicable is only common  law and the Law of Torts.   If under the law a person  becomes legally liable then the person suffering the  injuries is entitled to be compensated and the Tribunal  is authorised to determine the amount of compensation  which appears to be just.  The plea that Claims Tribunal  is entitled to award compensation which appears to be  just when it is satisfied on proof of injury to a third  party arising out of the use of a vehicle on a public  place without proof of negligence if accepted would  lead to strange results."

       The Kerala, Bombay, Madras, Allahabad, Patna, Punjab and Haryana  and Delhi High Courts, on the one hand, noticing a large number of  decisions held that drivers are not necessary parties, the Madhya Pradesh  High Court, on the other hand, in New India Assurance Co. Vs  Munni Devi  [1993 ACJ 1066 (M.P.)] and Madhya Pradesh State Road Transport  Corporation Vs. Vaijanti [(1995 ACJ 560 (M.P.)] held that the driver of the  offending vehicle would be a necessary party.   The Division Bench of the  Karnataka High Court further held that under the Madhya Pradesh Motor  Vehicle Rules, the driver was required to be impleaded as a party.   It was,  however, stated: "\005.We do not however agree with the said two decisions,  if they were to be read as laying down a general principle  that under Law of Torts, the master cannot be sued to  enforce his vicarious liability for the negligence of the  servant, without impleading the servant."

On the aforementioned finding, the following law was laid down.

"(a) Neither the Motor Vehicles Act nor Rules  thereunder require the driver to be impleaded as a party

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to the claim petition, (b) Under Law of Torts, the owner  and driver of the Motor Vehicle being joint tortfeasors,  who are jointly and severally liable for the negligence  of the driver, the claimant can sue either the owner or  the driver or both. But, whether driver is impleaded or  not, a owner (master) can be made vicariously liable for  the acts of his driver (servant), only by proving  negligence on the part of the driver (servant), (c)  Therefore a claim petition can be maintained against the  owner and insurer of the vehicle causing the accident,  without impleading the driver. However proving the  negligence of the driver is a condition precedent to  make the owner vicariously liable for the act of the  driver, (d) But where the driver is not impleaded as a  party, no decree or award can be made against him. A  driver can be held liable personally only when he is  impleaded as a party and notice of the proceedings is  issued to him."

16.     Motor Vehicles Act was enacted to consolidate and amend the law  relating to motor vehicles.   When a law is enacted to consolidate and amend  the law, the Legislature not only takes into consideration the law as it has  then been existing but also the law which was prevailing prior thereto.  A  suit for damages arises out of a tortuous action.   For the purpose of such an  action, although, there is no statutory definition of negligence, ordinarily, it  would mean omission of duty caused either by omission to do something  which a reasonable man guided upon those considerations, who ordinarily  by reason of conduct of human affairs would do or be obligated to, or by  doing something which a reasonable or prudent man would not do.   See   Municipal Corporation of Greater Bombay Vs. Laxman Iyer and Another   [(2003) 8 SCC 731, para 6]

17.     When a damage is caused upon act of negligence on the part of a  person, the said person is primarily held to be liable for payment of  damages.   The owner of the vehicle would be liable as he has permitted the  use thereof.    To that effect only under the Motor Vehicles Act, both driver  and owner would be jointly liable. This, however, would not mean that they are joint tort feasers in the strict  sense of the term.   There exists a distinction between the liability of the  owner of a vehicle which was used in commission of the accident and that of  the driver for whose negligence the accident was caused, but the same would  not mean that the owner and the driver are joint tort feasers in the sense as it  is ordinarily understood.

18.     The Karnataka Rules, therefore, were required to be construed having  regard to the appropriate interpretative principles applicable thereto.    Common law principles were therefor required to be kept in mind.   In this  case, we are not required to lay down a law that even in absence of any rule,  impleadment of the driver would be imperative.    It is however, of some interest to note the provisions of Section 168 of  the Motor Vehicles Act. In terms of this aforementioned provision, the  Tribunal is mandatorily required to specify the amount which shall be paid  by the owner or driver of the vehicle involved in the accident or by or any of  them.  As it is imperative on the part of the Tribunal to specify the amount  payable inter alia by the driver of the vehicle, a fortiori he should be  impleaded as a party in the proceeding.  He may not, however, be a  necessary party in the sense that in his absence, the entire proceeding shall  not be vitiated as the owner of the vehicle was a party in his capacity as a  joint tort feaser.  

19.     Appellant not only made averments as regards absence of negligence  on his part; he made specific allegations against the driver of the truck.  The  driver of the truck alone would have been competent to depose.  In a given  case, like the present one, the owner of the truck may not defend the action  at all keeping in view the fact that the vehicle was an insured one.   There

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are some decisions of this Court, where even a plea has been raised that the  insured company would not be an aggrieved person in such an extent  although such a contention has been negatived by this Court.    20.     The principles of natural justice demand that a person must be given  an opportunity to defend his action.           There are cases and cases. In a given situation, the owner of a vehicle  may take the plea that the driver had used the vehicle without his authority  or permission and in that view of the matter, he is not liable for the tortuous  acts of the driver at all.    There are innumerable instances where the  insurance Company had been held to be absolved of its liability to  compensate  the owner of the vehicle inter alia on the premise that the driver  did not hold a valid license.   The legal principle was evolved on the premise  that the owner had a duty to see that the person authorized to drive the  vehicle is otherwise eligible to do so or entitled to do so in law.

21.     In Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker Bhatt [AIR  1966 SC 1697] this Court opined that the master is vicariously liable for the  acts of his servants acting in the course of his employment stating: "27.  The law is settled that a master is vicariously  liable for the acts of his servant acting in the course  of his employment.  Unless the act is done in the  course of employment, the servant’s act does not  make the employer liable.  In other words, for the  master’s liability to arise, the act must be a wrongful  act authorised by the master or a wrongful and  unauthorised mode of doing some act authorized by  the master.   The driver of a car taking the car on the  master’s business makes him vicariously liable if he  commits an accident.   But it is equally well settled  that if the servant, at the time of the accident, is not  acting within the course of his employment but is  doing something for himself the master is not  liable\005..."

In Minu B. Mehta (supra), this Court noticed: "28. In Halsbury’s Laws of England, 3rd  Edn., Vol. 32, at para 751 at p. 366 the nature of  insurance required is stated as follows: "The conditions to be fulfilled in order to  render the use of a motor vehicle lawful are (1)  that there must be a policy of insurance in force  in relation to the use of the vehicle on a road, and  (2) that it must be a policy complying with the  relevant statutory requirements." At para 752 at p. 366 the general nature of  liabilities required to be covered are stated as  under: "In order to comply with the statutory  requirements, a policy must provide insurance  cover in respect ot any liability which may be  incurred by such person, persons or classes of  persons as are specified in the policy, in respect  of the death of, or bodily injury to, any person  (subject to specific exceptions) caused by or  arising out of, the use of the vehicle on a road." The authorised insurers issuing a policy pursuant  to the statutory requirements are obliged to  indemnify the person specified in the policy in  respect of any liability which the policy purports  to cover in the case of that person or classes of  persons. . . . (Para 758 at p. 369). These passages  clearly indicate that the nature of the liability  required to be covered is the liability which may  be incurred by or arising out of the use of a  vehicle on a road by the person."

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Thus, in appropriate cases, the liability of the driver would be primary.

22.     Appellant was fully aware of his legal liability.   He was involved in  the criminal case.   He deposed in the claim applications filed by the injured  persons who were travelling in the bus.  He was fully aware that unless he  proves his innocence in regard to the charge of rash and negligent driving,  he would be held liable therefor, particularly when he himself had filed the  claim petition.  It might have been a matter of sharing of liability between  him and the driver of the truck.  He was aware that his plea that he was not  negligent has been negatived.  He, for all intent and purport, therefore, was a  party to the earlier proceedings.   If he intended to get rid of the findings  recorded by the Tribunal, he could have preferred an appeal thereagainst.   He did not choose to do so.

23.     This case gives rise to an anomalous situation.   The Corporation has  been found to be liable to pay the amount of compensation claimed by the  passengers of the bus only because the appellant was found to be rash and  negligent in driving.  The law cannot be construed in such a manner so as to  lead to such a conclusion as the same court in this case which was being  heard simultaneously held that he was not negligent and the driver of the  truck was negligent so as to fasten the liability also on the owner of the  truck.  When an accident has taken place, the court was required to hold  either the driver of the bus or the truck responsible; no case of contributory  negligence having been made out.   The result would be that the Corporation  would be liable to pay compensation in both the cases although findings in  each of them were contradictory to or inconsistent with each other.   Similar  would be the position of the driver of the truck.   In one case, he for the same  act would stand exonerated and in another case, liability to pay  compensation would be fastened on him.   Precisely that was the purpose for  which the Tribunals heard both the matters together and also delivered  judgments one after the other.  It was necessary to apply the comity or amity  or the principles analogous thereto.         The issue to be examined herein is whether in the claims cases before  the Motor Vehicles Accident Claims Tribunal, the driver of a vehicle who  has been accused of negligence is a necessary party to the proceedings or  whether the owner alone can be impleaded.

       In this case, two sets of claims cases were heard together, one filed by  the passengers of the KSRTC bus and the other filed by the driver of the said  bus. In short, unless the finding of negligence in the claim cases of the  passengers was negatived, in the claim cases filed by the driver himself, the  said finding of negligence on the part of the driver could not have been  varied.

       The analysis of our findings aforementioned is:- (i)     In the first set of claims cases, the driver of the bus was held to  be negligent and, therefore, a ruling that the driver is a  necessary party would mean that the bus driver must  necessarily be involved in these proceedings. However, the  driver of the bus had sufficient opportunity to make a  representation against the allegation of negligence as he was  examined as RW1 in the claim cases filed by the passengers,  even though he was not formally impleaded as a Respondent.  Hence, the High Court has correctly held that he was a ’party’  to the proceedings.   (ii)    In the claims filed by the driver of the bus (namely the  Appellant herein), specific allegations were made against the  driver of the truck. Hence, the question is whether the driver of  the truck must necessarily be made a party to the proceedings.   He was not.         Here, one must bifurcate the terms ’party’ and ’necessary party’.  ’Party’ has been correctly defined by the High Court in the impugned  judgment in terms of involvement in the proceedings regardless of formal

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impleadment. However, a necessary party has been defined in the 5th edition  of Black’s Law Dictionary as follows:-

"In pleading and practice, those persons who must  be joined in an action because, inter alia, complete  relief cannot be given to those already parties  without their joinder. Fed. R. Civil P. 19 (a)\005"

       First and foremost, as has been stated in the body of the judgment,  natural justice would mandate involvement of a driver, as an adverse finding  on negligence cannot and should not be made against him without giving  him the opportunity to at least make a representation as a witness.         More importantly, however, one must look at the kind of evidence  which must be led in such cases. Appellants have, as noticed hereinbefore,  relied on Patel Roadways (supra) to try and prove that the driver need not be  a party. Firstly, this case only relates to formally impleading the driver as a  party. However, the fact that joint tortfeasors have been mentioned in the  judgment is relevant.          Joint tortfeasors, as per the 10th edition 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 in the same, namely  that the same evidence would support an action  against them, individually\005 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. 24.     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 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.         In any event, the truck driver was examined as RW1.         Therefore, in the circumstances, the driver of the bus was examined in  the first set of claims cases in the same manner as the driver of the truck was  examined in the second set of cases (which has been filed by the Appellant).  

25.     If we accept the contention of Ms. Suri that the Tribunal committed an  error, in effect and substance, we will be holding that the Tribunal  committed an illegality in awarding compensation to the passengers of the  bus.   It was in that sense, the High Court cannot be said to have committed  any error in holding that the appellant was also an aggrieved person.    Furthermore, both the Tribunal and the High Court have rightly arrived at a  finding of fact that it was the appellant alone who was rash and negligent in

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driving of the vehicle.   No case had been made out to differ with the said  finding of fact.    26.     For the reasons aforementioned, the impugned judgment does not  suffer from any legal infirmity.   It is therefore, dismissed.  However, in the  facts and circumstances of this case, there shall be no order as to costs.