Judgment:
M.F. Saldanha, J.
1. These two groups of Civil Revision Petitions need to be sub-divided insofar as the first group of 9 Civil Revision Petitions have been presented by the Insurance Company and they assail the validity of the order passed by the Tribunal holding the Insurance Company liable to pay the compensation in relation to the incident that took place on 28.10.1989. The Tribunal has come to the conclusion that the Truck DIG 8377 belonging to the original second respondent and which was being driven by the original R-1, was operated in a rash and negligent manner and that it was responsible for the damage that occurred to the property of the claimants. What is pointed out by the learned Advocate who represents the petitioners is that it is well-settled law that the primary responsibility in the case of a motor accident is not that of the Insurance Company. The liability in law undoubtedly devolves on the driver and the owner where the compensation is attributable to the accident caused while the insured vehicle was being operated. The learned Advocate for the petitioners submits that the Insurance Company is vicariously liable in law in so far as the spirit of Insurance Policy is that it will indemnify the insured, subject to certain limits in respect of all claims for compensation that may arise as a result of an accident. In otherwords, the learned Advocate submits that it is only if the insured are found liable that the Insurance Company can be compelled to discharge that liability and he demonstrates that if for any reason, the insured are not parties to the proceeding and there is no award of compensation against the insured, that the Insurance Company cannot be made liable in isolation. The submission proceeds on the footing that it is only the discharge of the liability which is foisted on the Insurance Company by virtue of the existence of the policy and that if for any reason, there is no award of compensation made against the insured parties, that an award made against the Insurance Company would be bad in law. The reason for this, as pointed out by the learned Advocate, is that there is no primary liability on the part of the Insurance Company to pay compensation in the case of an accident, but that the responsibility is limited to the extent of paying on behalf of the insured persons the compensation that they would otherwise have been ordered to pay.
2. On the facts of the present case, there is considerable substance in this submission because, the petitioners' learned Advocate has demonstrated to me that an application was presented to the Tribunal by the claimants' learned Advocate on 26.12.1990 asking for dismissal of the proceeding as against respondents 1 and 2 namely, the driver and owner of the truck. Pursuant to this application, the Trial Court passed an order dated 5.3.1991 dismissing the proceeding as against respondents-1 and 2. The case proceeded and the Tribunal ultimately held that compensation was payable and passed an award against the petitioner-Insurance Company who were the insurers of the truck in question. Petitioners' learned Advocate has seriously assailed this order because, he submits that in the aforesaid well-settled position in law, in the absence of an award against the owner, that the order of the Tribunal vis-a-vis the Insurance Company is bad in law.
3. This position is virtually unanswerable. The respondents' learned Advocate at that stage, pointed out to me that the applicants are all petty shop keepers virtually earning their business on the side walks, that their status is such that they virtually do not know anything about the niceties of these proceedings and that on enquiries with the learned Advocate who conducted the matter, he is informed that it was due to an error of law, that the application was made for dismissal of the proceedings against the owner and driver. He submitted that unless this Court were to show sufficient indulgence and even at this late stage, permit the claimants to have the order dated 5.3.1991 set aside, that none of them would receive even the meagre compensation that has been awarded. Having regard to the status of the poor respondents who come from virtually the weakest strata of society and also the persuasion of their learned Advocate who essentially submitted that the compensation awarded by the Tribunal could never reach the claimants because of the error committed by their learned Advocate, this Court permitted the respondents' learned Advocate to prefer Civil Revision Petitions challenging the order dated 5.3.1991 this Court has passed separate orders condoning the delay and those Civil Revision Petition Nps. 2841 to 2849 of 1996 have accordingly been listed along with the above Civil Revision Petitions filed by the Insurance Company. The petitioners learned Advocate supports these Civil Revision Petitions on the basis of an affidavit filed in the earlier proceedings accepting the mistake and the explanation given is that he was under the impression that the award would be against the K.S.R.T.C. vehicle. In the overall interests of justice, this Court has little option except to set aside the dismissal order dated 5.3.1991 and to restore the claim petitions to their original position whereby the driver and owner will have to be treated as still being parties to the proceedings.
4. In this regard, I need to point out that the learned Advocate who represents the Insurance Company, has very rightly pointed out to the Court that he has a rather painful and unpleasant duty of opposing the Civil Revision Petitions. He did , point out to me that there is no fault on the part of the Tribunal in having accepted the application for dismissing the proceedings against the owner and driver. I find it difficult to accept this contention because, to my mind, irrespective of what sort of applications may be made, and particularly having regard to the thoughtless manner in which these applications are often drafted and presented and the fact that often times these applications are not in the interests of the party or the client, the Presiding Judges must carefully assess as to whether or not such applications should be granted. No problems would have arisen had the owner and driver continued to be respondents to the original proceeding and I see little justification therefore, for the Presiding authority to have mechanically accepted the applications and dismissed the proceeding against respondents I and 2. Even assuming the learned Advocate made such aji application for whatever reason, to my mind, the Presiding Officer ought to have taken cognizance of the consequences and should not have granted the applications. This is all the more important because, having regard to the well-settled position in law which has been pointed out to me by the learned Advocate who represents the Insurance Company, the claim petitions could no longer have survived against the Insurance Company alone and in mis view of the matter, the order dated 5.3.1991 is set aside.
5. As a necessary consequence of the aforesaid order, the solitary contention or rather the point of law raised by the Insurance Company in the earlier group of Civil Revision Petitions would no longer survive. Both the sets of Civil Revision Petitions are allowed. The order passed by the Tribunal would stand technically amended to the extent that it would be an order directed against original respondents 1 and 2 with the liability to make good the payment under that award being that of the third respondent namely, the petitioners before me.
6. With these directions, both these sets of Civil Revision Petitions to stand disposed of. No order as to costs.
The once take note of the fact mat as far as Civil Revision Petition Nos. 2841 to 2849 of 1996 are concerned, that learned Advocate H.G. Ramesh has represented the third respondent-Insurance Company. He has filed his vakalath on behalf of the Insurance Company in these matters and his appearance shall officially be noted.