K. Narayana Kurup, J.
1. The claimant before the Motor Accidents Claims Tribunal, Kottayam (hereinafter referred to as 'the Tribunal'), in O.P. (M.V.) No. 50 of 1990 is the appellant. The claim arose out of the following facts.
2. According to the appellant-claimant, on 28.8.1989 at about 3.20 p.m. he boarded the bus bearing registration No. KRK 5576 at the Chalakunnu bus stop. Before the appellant could make a complete entry into the bus, the bus was put in motion by the driver all of a sudden without any warning which resulted in the appellant being thrown out of the bus through the door which was not closed. Thereby the appellant sustained grievous injury. According to the appellant, both the conductor and the driver were negligent in operating the bus which resulted in the accident. The appellant has a specific case that the accident occurred due to the rash and negligent driving of the bus by the driver as well as the careless conduct of the conductor of the bus. The owner and insurer of the bus were arrayed as respondent Nos. 1 and 2 respectively before the Tribunal.
3. The first respondent owner of the bus filed a written statement contending, interalia, that the petition is not maintainable; the occurrence of the accident alleged is not correct; the accident occurred due to sole negligence of the petitioner since the petitioner tried to enter into the moving bus and that the nature of the injuries alleged to be sustained by the appellant is not correct and the petition is not maintainable due to non-joinder of parties, i.e., the driver of the vehicle.
4. The second respondent insurer filed a written statement contending, inter alia, that the vehicle was not covered by a valid insurance policy at the relevant time and that the owner failed to intimate the accident to the insurer as per the terms and conditions of the policy and that the first respondent was not the owner of the vehicle. The insurer had a further case that the driver of the vehicle was not holding a valid driving licence to drive the class of vehicle in question at the time of accident.
5. On the above contentions, the Tribunal framed the following issues for trial:
(1) Whether the O.P. is maintainable?
(2) Whether the O.P. is bad for nonjoinder of necessary parties?
(3) What is the cause of accident?
(4) Whether the petitioner is entitled to get any compensation; if so, what is the quantum and who are liable?
(5) Reliefs and costs.
On issue Nos. 1 and 2 the Tribunal found that the O.P. is not maintainable for 'want of the person against whom negligence is levelled for causing the accident.' On issue No. 3 the Tribunal entered a finding to the effect that 'in the absence of the driver and owner (Sic.) it is not safe to enter a finding regarding the negligence of the driver and at any rate, it is not possible to hold that the accident occurred due to the negligence of the conductor of the bus involved in the accident and the issue was found accordingly.'
6. Having entered a finding on the above issues, the Tribunal proceeded to consider issue No. 4, namely, the quantum of compensation, if any, which the appellant is entitled to having regard to the facts and circumstances of the case and held that the appellant is entitled to a total compensation of R.s. 21,200/- under various heads mentioned in the order. However, the Tribunal held that in view of its findings on issue Nos. 1 and 2, the petition is liable to be dismissed and the petition was accordingly dismissed.
7. In the instant appeal filed by the claimant, the main contention urged before me was whether the finding of the Tribunal that the petition is not maintainable for nonjoinder of the driver of the bus is correct or not. Having heard learned counsel for the appellant and learned counsel appealing for the respondents, I am of the view that the question is no longer res Integra. In this connection, it has to be noted that both driver and owner are joint tortfeasors. In a motor accident the primary liability is that of the driver and once the driver is found negligent, the owner will be vicariously liable for the negligent act of the driver. In other words, the liability of the driver and owner, being joint tortfeasors, is joint and several and any person who sustained any injury in a road traffic accident is entitled to sue either the driver of the vehicle or its owner. It may be true that the person against whom the award is passed and who is made liable to pay the amount as damages is entitled to recover the same from the other joint tortfeasor, but that will not disentitle the claimant injured from suing any one of the joint tortfeasors. It has been so held by two Division Bench decisions of this court reported in United India Fire and Genl Ins. Co. Ltd. v. Varghese 1989 ACJ 472 (Kerala) and United India Insurance Co. Ltd. v. Ratnamma 1988 ACJ 435 (Kerala). In the latter case it was observed as follows:
The owner and driver are joint tort-feasors and, therefore, absence of one of them will not be a bar for a suit for compensation. This does not mean that the negligence of the driver need not be proved. Even in the absence of the driver evidence regarding the negligence of the driver can be adduced. Take, for example, a case where the driver also died in the accident without leaving any legal representative. That will not preclude the injured from claiming compensation against the owner or the insurer. The owner and driver are joint tortfeasors, whose liability is joint and several. Each may be sued alone or jointly and each will be liable for the whole damage.
The principle has been followed in a recent Division Bench decision of this court in Anuradha Varma v. State of Kerala 1994 ACJ 353 (Kerala), wherein it was held that the non-joinder of the driver is not fatal to a claim petition.
8. In the light of the above discussion, I have no hesitation in holding that the driver is not a necessary party to the proceedings and absence of the driver will not be a bar for a petiton claiming compensation.
9. Having considered the question whether the driver is a necessary party to the proceedings, the next aspect to be considered is the question of negligence, namely, whether the accident as alleged by the claimant was caused by the rash and negligent conduct on the part of the driver or the conductor, as the case may be. It so happens that in many cases the driver himself may die in the accident or he may die during the pendency of the proceedings or he may not appear at all even though he is arrayed as a party respondent before the Tribunal. In all such cases it does not mean that the negligence of the driver need not be proved. The negligence of the driver can be proved even in the absence of the driver on the party array. In the instant case only the owner and the insurer alone are impleaded by the claimant. Even so, it was open for the first respondent owner to take appropriate steps to examine before the Tribunal the driver and conductor of the bus who are none other than his own employees to prove his case as set out in the written statement. But I find that apart from making the averments in the written statement, no independent evidence has been adduced by the first respondent owner to prove these statements. It is the specific case of the claimant that before he could make a complete entry into the bus, the conductor gave the bell pursuant to which the driver drove the bus in a rash and negligent way thereby throwing the claimant out of the bus through the door. In support of this version, the claimant entered the witness-box as PW 1 and gave evidence. He has categorically sworn that the bus was set in motion by the driver before he could make a complete entry into the bus and as a result thereof he fell down from the bus sustaining injuries. He has given the nature of the injuries sustained by him as also the treatment undergone by him after the accident. Having perused the testimony of the claimant as PW 1, I am inclined to believe that his version is true. Had the vehicle been set in motion after he made a complete entry into the bus, then even assuming that he lost balance because of the rash and negligent driving of the bus at the curve ahead, he would have fallen down inside the bus itself rather than being thrown out. The fact that the claimant was thrown outside the bus probabilises his case that the conductor gave the bell and driver drove the bus before he could make a complete entry into the bus. Therefore, I have no hesitation in holding that both the driver and conductor who are the servants of the first respondent owner are primarily liable for the accident as both of them were negligent in their conduct-the conductor in giving the bell before the claimant could enter the bus completely and the driver in driving the bus without proper care and caution. Therefore, I set aside the finding of the Tribunal on the question of negligence and find that the driver and conductor were guilty of negligence which caused the accident resulting in injuries to the claimant.
10. On the question of compensation the Tribunal has rightly held that the claimant, aged 70, was getting Rs. 300/- per mensem as a watcher or a servant and based on that, the Tribunal awarded a sum of Rs. 1,500/-as loss of earnings. The Tribunal awarded a sum of Rs. 200/- for transportation to the hospital and a sum of Rs. 1,500/- towards treatment expenses. For pain and suffering, considering the age of claimant and the fracture sustained and the treatment undergone, the Tribunal has awarded a sum of Rs. 15,000/-. Towards permanent disability the Tribunal did not award any amount as there was no evidence adduced by the claimant. However, for loss of amenities of life a sum of Rs. 3,000/- was allowed as compensation. Thus a total compensation of Rs. 21,200/- was awarded by the Tribunal. I find the same to be fair and reasonable and that it does not call for interference.
In the result, I set aside the award of the Tribunal to the extent indicated above and pass an award for a sum of Rs. 21,200/- with 12 per cent interest from the date of application in favour of the appellant-claimant against the respondents in the appeal. The respondent insurance company is directed to deposit the amount in the Tribunal within one month.
The appeal is allowed as above. However, I make no order as to costs.