New India Assurance Co. Ltd. Vs. Munnidevi and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/507319
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided OnAug-11-1992
Case Number Civil Revision No. 134 of 1991
Judge T.N. Singh, J.
Reported in1993ACJ1066
AppellantNew India Assurance Co. Ltd.
RespondentMunnidevi and ors.
Appellant Advocate B.N. Malhotra, Adv.
Respondent Advocate Balwant Singh, Adv.
Cases ReferredBhagwati Prasad v. Oriental Fire
Excerpt:
- - it is well settled that liability of the owner, driver and insurer under section 110-b of the motor vehicles act, 1939, is joint and several. the liability being several as well, the driver is not a necessary party and even in his absence, the owner and the insurer can be held liable upon proof of the driver's negligence, besides other facts, depending upon the circumstances of the case.t.n. singh, j.1. today, in this matter, mr. balwant singh has appeared who could not be heard on the last date in civil revision no. 133 of 1991, disposed of on 8.8.1992 by severing connection of that from this revision.2. he has submitted that it is his duty to bring to my notice the fact that there is a decision to the contrary in bhagwati prasad v. oriental fire & general ins. co. ltd. 1989 (1) mpwn 6. it has been submitted that view was taken in that case that driver was not necessary party while, in the order aforesaid dated 8.8.1992 as also in the case of shahzad khan, 1986 (1) mpwn 28, it has been held that driver is a necessary party.3. however, i do not think if it is at all necessary to refer to the larger bench the question to resolve the controversy because there is no controversy at all as will be seen presently. the question of joinder of parties had come up before me in revision in both cases in shahzad khan, 1986 (1) mpwn 28 and in the last case decided on 8.8.1992 in civil revision no. 133 of 1991. on the other hand, bhagwati prasad's case, 1989 (1) mpwn 6, was one which was the decision rendered in appeal when the award itself was challenged and validity of that was challenged, among others, on the ground that driver's non-impleadment vitiated the award. it was in that context that in the case of bhagwati prasad, 1989 (1) mpwn 6, the court observed that the award would not be vitiated and the appeal was dismissed.4. it is true that there were some observations in that decision and those i extract: it is well settled that liability of the owner, driver and insurer under section 110-b of the motor vehicles act, 1939, is joint and several. the liability being several as well, the driver is not a necessary party and even in his absence, the owner and the insurer can be held liable upon proof of the driver's negligence, besides other facts, depending upon the circumstances of the case.(emphasis added)it bears reiteration only of the position that challenge to the award passed on merit was rebuffed and for that ground of driver's non-impleadment was rejected holding that the driver's negligence had been established and for that reference was made to other facts and circumstances of the case to hold that the owner or insurer could be and were to be held liable and they were accordingly held liable by the decision rendered in the appeal. in so far as the reference to the language of section 110-b is concerned, there appears to be some slip in the judgment, but i am not clear about that because the full report of the judgment is not before me and the decision is reported in short note. it cannot be disputed that on its language, section 110-b of the motor vehicle's act, 1939, left it to the discretion of the claims tribunal as to how to make the award, by contemplating, 'in making the award the claims tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.' not in all cases the liability is joint; and a joint award need not always be passed. it is the tribunal's discretion to apportion lawfully the liability or saddle in its entirety on 'all or anyone of them'-'the insurer or the owner or the driver.'5. i am, therefore, of the view that it is not necessary to reconsider the decision i rendered on 8.8.1992 in civil revision no. 133 of 1991, but, on the other hand, i consider it a fit occasion to reiterate the view rather that the statutory provision is clear and the law of torts is more clear, as stated by me in the order dated 8.8.1992. i had also stated that requirement of joinder of the driver in a claim petition has been made obligatory under the rules and the state government having power to frame rules and having laid down provisions in that regard, courts have no jurisdiction to legislate in a manner as will make ineffective the force of any rule framed by the state government which becomes part of the act. rule 277 of the state rules framed under the act prescribes the forms of claim petition and form no. aa contemplates explicitly the owner, the insurer and driver, all three to be impleaded and their names and addresses to be indicated for them to be served and heard when the claim is decided.6. this is, however, an occasion further to state an additional ground for the view i had taken earlier on 8.8.1992 or in shahzad khan's case, 1986 (1) mpwn 28. it is trite law and a rudimentary principle of procedural jurisprudence that any person who is to be saddled with any liability statutorily contemplated is to be heard before the liability is saddled on him. as manifested above, section 110-b vests in the claims tribunals the jurisdiction to make the driver alone, in the facts and circumstances, liable under the award and if that is to be done, how that could be done if he was not impleaded, noticed or heard? as to the law of torts, it is also elementary that the negligence is primarily of the driver who is on the steering wheel and the owner's liability is vicarious while the insurer's is an imputed liability contemplated statutorily. it is not, therefore, understood how the driver, who is the hamlet, is not to be brought on the stage.7. the only question of non-impleadment of driver being raised in this revision, though the prayer is made on behalf of the insurer, the prayer is to be allowed and the impugned order by the tribunal, passed to the contrary, is to be set aside. that is accordingly set aside. indeed, claimants' counsel, mr. balwant singh, has informed that in anticipation of the decision, he has already advised his clients to do the needful in that regard.8. before parting with the records, two contentions, which counsel on both sides have raised, are to be noted and dealt with. mr. balwant singh, claimants' counsel, has submitted that the old act has gone and new rules are not framed and, therefore, there are no rules and there is no statutory or prescribed form for making application for compensation. to that, there is a short answer, and indeed, the legal position in that regard is made clear. section 6, general clauses act, takes adequate care of such a situation. when act goes, the rules framed under the old act will not go and will hold the field until such time the new act, taking place of the old, containing a duty for framing rules is not given effect and rules thereunder are not framed.9. mr. malhotra, insurer's counsel, is very correct in submitting that the insurer has a statutory defence and that is also one of the reasons which mandated impleadment of driver in a claim made for compensation under the act. it is true that if the driver has not taken out a licence and on the date and time of the accident, he is a person who is not authorised to drive the vehicle, then the insurer can validly claim of being absolved of the liability in regard to the accident. it is for this reason also, i hold that it is necessary to implead the driver to give him and, for that matter, the insurer and the owner, opportunity to plead and prove their respective cases.
Judgment:

T.N. Singh, J.

1. Today, in this matter, Mr. Balwant Singh has appeared who could not be heard on the last date in civil revision No. 133 of 1991, disposed of on 8.8.1992 by severing connection of that from this revision.

2. He has submitted that it is his duty to bring to my notice the fact that there is a decision to the contrary in Bhagwati Prasad v. Oriental Fire & General Ins. Co. Ltd. 1989 (1) MPWN 6. It has been submitted that view was taken in that case that driver was not necessary party while, in the order aforesaid dated 8.8.1992 as also in the case of Shahzad Khan, 1986 (1) MPWN 28, it has been held that driver is a necessary party.

3. However, I do not think if it is at all necessary to refer to the larger Bench the question to resolve the controversy because there is no controversy at all as will be seen presently. The question of joinder of parties had come up before me in revision in both cases in Shahzad Khan, 1986 (1) MPWN 28 and in the last case decided on 8.8.1992 in civil revision No. 133 of 1991. On the other hand, Bhagwati Prasad's case, 1989 (1) MPWN 6, was one which was the decision rendered in appeal when the award itself was challenged and validity of that was challenged, among others, on the ground that driver's non-impleadment vitiated the award. It was in that context that in the case of Bhagwati Prasad, 1989 (1) MPWN 6, the court observed that the award would not be vitiated and the appeal was dismissed.

4. It is true that there were some observations in that decision and those I extract:

It is well settled that liability of the owner, driver and insurer under Section 110-B of the Motor Vehicles Act, 1939, is joint and several. The liability being several as well, the driver is not a necessary party and even in his absence, the owner and the insurer can be held liable upon proof of the driver's negligence, besides other facts, depending upon the circumstances of the case.

(Emphasis added)

It bears reiteration only of the position that challenge to the award passed on merit was rebuffed and for that ground of driver's non-impleadment was rejected holding that the driver's negligence had been established and for that reference was made to other facts and circumstances of the case to hold that the owner or insurer could be and were to be held liable and they were accordingly held liable by the decision rendered in the appeal. In so far as the reference to the language of Section 110-B is concerned, there appears to be some slip in the judgment, but I am not clear about that because the full report of the judgment is not before me and the decision is reported in short note. It cannot be disputed that on its language, Section 110-B of the Motor Vehicle's Act, 1939, left it to the discretion of the Claims Tribunal as to how to make the award, by contemplating, 'in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.' Not in all cases the liability is joint; and a joint award need not always be passed. It is the Tribunal's discretion to apportion lawfully the liability or saddle in its entirety on 'all or anyone of them'-'the insurer or the owner or the driver.'

5. I am, therefore, of the view that it is not necessary to reconsider the decision I rendered on 8.8.1992 in civil revision No. 133 of 1991, but, on the other hand, I consider it a fit occasion to reiterate the view rather that the statutory provision is clear and the law of Torts is more clear, as stated by me in the order dated 8.8.1992. I had also stated that requirement of joinder of the driver in a claim petition has been made obligatory under the Rules and the State Government having power to frame Rules and having laid down provisions in that regard, courts have no jurisdiction to legislate in a manner as will make ineffective the force of any rule framed by the State Government which becomes part of the Act. Rule 277 of the State Rules framed under the Act prescribes the forms of claim petition and form No. AA contemplates explicitly the owner, the insurer and driver, all three to be impleaded and their names and addresses to be indicated for them to be served and heard when the claim is decided.

6. This is, however, an occasion further to state an additional ground for the view I had taken earlier on 8.8.1992 or in Shahzad Khan's case, 1986 (1) MPWN 28. It is trite law and a rudimentary principle of procedural jurisprudence that any person who is to be saddled with any liability statutorily contemplated is to be heard before the liability is saddled on him. As manifested above, Section 110-B vests in the Claims Tribunals the jurisdiction to make the driver alone, in the facts and circumstances, liable under the award and if that is to be done, how that could be done if he was not impleaded, noticed or heard? As to the law of Torts, it is also elementary that the negligence is primarily of the driver who is on the steering wheel and the owner's liability is vicarious while the insurer's is an imputed liability contemplated statutorily. It is not, therefore, understood how the driver, who is the Hamlet, is not to be brought on the stage.

7. The only question of non-impleadment of driver being raised in this revision, though the prayer is made on behalf of the insurer, the prayer is to be allowed and the impugned order by the Tribunal, passed to the contrary, is to be set aside. That is accordingly set aside. Indeed, claimants' counsel, Mr. Balwant Singh, has informed that in anticipation of the decision, he has already advised his clients to do the needful in that regard.

8. Before parting with the records, two contentions, which counsel on both sides have raised, are to be noted and dealt with. Mr. Balwant Singh, claimants' counsel, has submitted that the old Act has gone and new Rules are not framed and, therefore, there are no Rules and there is no statutory or prescribed form for making application for compensation. To that, there is a short answer, and indeed, the legal position in that regard is made clear. Section 6, General Clauses Act, takes adequate care of such a situation. When Act goes, the Rules framed under the old Act will not go and will hold the field until such time the new Act, taking place of the old, containing a duty for framing Rules is not given effect and Rules thereunder are not framed.

9. Mr. Malhotra, insurer's counsel, is very correct in submitting that the insurer has a statutory defence and that is also one of the reasons which mandated impleadment of driver in a claim made for compensation under the Act. It is true that if the driver has not taken out a licence and on the date and time of the accident, he is a person who is not authorised to drive the vehicle, then the insurer can validly claim of being absolved of the liability in regard to the accident. It is for this reason also, I hold that it is necessary to implead the driver to give him and, for that matter, the insurer and the owner, opportunity to plead and prove their respective cases.