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TMI Blog2008 (4) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... gers 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s produced at Ex. R2 and R3 clearly proves the fact that the accident was due to rash and negligence of the petitioner himself 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 whereof it would be evident that it was the driver of the truck who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 This plea ignores the basic requirements of the owner's liability and the claimants right to receive compensation. The ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jured 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y defined by the High Court in the impugned judgment in terms of involvement in the proceedings regardless of formal 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) 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 Neglig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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