Bachan Singh and Others vs Prabh Dayal and Others

Gurnam Singh, J.—Gurmel Singh son of Bachan Singh, resident of village Bapdi died in an accident on 4-12-1970 near village Andhgarh on Karnal-Indri-Ladwa road. Bachan Singh, father, Budho, mother, Parkasho and Krishni, sisters and Rattan Singh brother of Gurmel Singh deceased, as legal representatives of Gurmel Singh, submitted an application for compensation amounting to rupees one lakh u/s 110A of the Motor Vehicles Act, alleging that the death of Gurmel Singh had been caused by rash and negligent driving of truck No. HRK 6664 by Prabh Dayal driver. The Petitioners alleged that Gurmel Singh deceased was working as a labourer with P.W.D. (B&R) authorities on the Kar-nal-lndri road, that he had gone to Indri on 4-12-1970 on a cycle to receive his wages, that he was carrying Gurbux Singh, another labourer, on the cycle who also had to collect his wages and that Bachan Singh, one of the claimant''s, had also accompanied him on a cycle. It is further alleged that when they reached Indri, they were informed that they could collect their wages from the officer who was with the labourers near village Andhgarh, that all of them left for Andhgarh, that when they reached near village Andhgarh they saw truck No. HRK 6664 coming from Ladwa side at a fast speed and being driven in a zig-zag manner, that apprehending danger they took their cycles to extreme left on the kacha portion of the road and that Prabh Dayal, driver of the truck, caused accident and thereby killed Gurmel Singh there and then.

The Petitioner made Prabh Dayal, driver and Dai Ram son of Matoo Ram Aggarwal, Prop. Iron Foundary Works, G. T. Road, Samalkha, District Karnal, owner of the truck and the insurance company as Respondents. The name of the insurance company was not known to the Petitioners at the time of filing the application but later on it was found that the insurance company was the Oriental Fire & General Insurance Co. Ltd., New Delhi.

Prabh Dayal Respondent, the driver of the truck admitted the accident and further pleaded that the claim was time barred, that the truck was being driven with due care and caution but the sudden and unforeseen development of the movements of the deceased had practically made it impossible to avoid the impact notwithstanding the best efforts made by him. Dai Ram Respondent pleaded that he was not the owner of the truck in question.

The Oriental Fire & General Insurance Company Ltd., New Delhi, (hereinafter referred to as the insurance company) in its reply pleaded that the application was bad for non-joinder and mis-joinder of necessary parties and that the insured had not been made a party and, therefore, it is not liable to pay any compensation to the applicants. It further pleaded that Dai Ram was not the owner of the truck in question. The insurance company however, admitted that the truck was being driven by Prabh Dayal Respondent at the time of accident.

In replication the applicants reiterated their claim and stated that Dai Ram Respondent No. 2 was the owner of the truck.

The Motor Accidents Claims Tribunal (hereinafter referred to as the Tribunal) framed the following issues:

To what amount of compensation, if any, the Petitioners are entitled and from whom? O.A.

Is the claim petition Within time? O.A.

Is the claim petition bad for non-joinder and misjoinder of parties ? O.R.

Whether the claimants have locus standi to file the petition ? O.A.

(Objected to).

Whether the death of Gurmel Singh deceased was caused due to rash and negligent driving of Respondent No. 1 O.A.

Issue Nos. 1,2, 4 and 5 were decided in favour of the claimants and on issue No. 3 it was held that the claim was bad for non-joinder and mis-joinder of parties. In the light of the decision on issue No. 3 the Tribunal dismissed the petition leaving the parties to bear their own costs. It is against this order that the claimants have filed this appeal.

The learned Counsel for the claimants contended that it was an admitted case of the parties that Gurmel Singh died on account of an accident with truck No. HRK 6664 and that the truck was being driven by Prabh Dayal Respondent No. 1 but the Tribunal gave no finding with regard to his liability. He further urged that the Tribunal, without discussing any evidence on this file, relied upon the written statements filed by the Respondents in holding that firm M/s. Bal Krishan Ram Dhari of Samalkha Mandi was the owner of the truck although the claimants insisted even in their replication that Dai Ram Respondent No. 2 was the owner of the truck. He further argued that it was the duty of the Tribunal to find out as to who was the owner of the truck and that the claimants were not duty bound to name the Respondents. For his last argument he relied upon Bessarlal Laxmi Cliand Chirawala v. Motor Accidents Claims Tribunal, Greater Bombay and Ors. 1970 A.C.J. 334 .

So far as the first point raised by the learned Counsel for the claimants is concerned it is conceded by the learned Counsel for the Respondents that an award can be made against the driver of the vehicle also. From the perusal of Section 110B of the Motor Vehicles Act it is apparent that a Tribunal is required to specify the amount which shall be paid by the insurer or the owner or the driver involved in the accident or by one or all as the case may be. In this case the Tribunal held that the claimants were entitled to compensation subject to the decision on other issues. From the perusal of issue No. 1 it is apparent that the Tribunal was required to give a finding as to what amount of compensation the claimants were entitled to and from whom. The Tribunal has not given any finding as to from whom the claimants were entitled to get the compensation. Since the compensation could also be awarded against the driver so the finding of the Tribunal that the claimants were entitled to compensation subject to the decision on other issues was not legally correct.

In Bessarlal Laxmi Chand Chirawala''s case, (supra) it has been observed in para No. 15 that "it is quite clear on a reading of the prescribed form that it does not direct the claimant for compensation to include in the application any party as Defendant and/or opposite party. We apprehen-ed that all the relevant facts are in this connection left to be ascertained by the Claims Tribunal which has been entrusted with the very serious duties of finding out all the parties who may be liable to pay compensation by recording evidence to be produced by the parties concerned. Formal defect of failure to mention appropriate names of the parties who would be liable to pay ultimately compensation to the claimant was never intended to defeat the claims filed under the Act. The Tribunal has failed to realise the true effect of the provisions in connection with the form of the applications for compensation and its responsibilities in ascertaining the correct facts regarding the parties who should be liable to pay compensation to the claimants under the applications made in the prescribed form. The Tribunal''s judgment is thus devoid of good reasoning and is liable to be set aside." In that case the claimants mentioned the name B.E.S.T. Undertaking in the form prescribed for the name and address of the owner of the vehicle. In the written statement it was alleged that the B.ES.T. Undertaking was not a legal entity and could not be sued and/or made party to the application and the claim against the B.E ST. Undertaking, therefore, be dismissed with costs. In Mohammed Habibullah and Anr. v. K. Seethammal 1966 A.CJ. 349 a similar point was considered and it was observed that:

We have also been invited to consider the argument that the non-joinder of the driver of the vehicle, as a party to the proceedings, will vitiate the proceedings. We can find nothing in the record, or in the provisions of the Act, to justify this view. In our view this is a simple case of a claim to compensation arising out of a fatal motor accident, preferred by the immediate next-of-kin and legal representatives of the victim, under the provisions of the Motor Vehicles Act, which was justly recognised by the Courts. Neither the owner of the vehicle, nor the insurance company, can be said to have suffered any prejudice, or to have sustained any ground of grievance. The Letters Patent Appeal is dismissed.

The provisions of the Motor Vehicles Act and the Rules made in connection with the submission of the applications for claims for compensation did not require any parties to be mentioned as opposite party in the title of the application. The claimants are only required to give the name and address of the insurer of the motor vehicle and name and address of the owner of the vehicle. In this case the claimants gave the name of the owner of the vehicle as Dai Ram son of Matoo Ram Aggarwal, Prop. Iron Foun-dary Works, G T. Road, Samalkha, Karnal. Although the Respondents in their written statements alleged that Dai Ram was not the owner of the truck involved but still in their replication it was insisted by the claimants that Dai Ram was the owner of the truck. The Tribunal on receipt of the application is required to hold an enquiry into the claim and to make an award determining the amount of compensation which appears to be just and specifying the person or persons to whom compensation shall be paid and to specify the amount which shall be paid by the insurer or owner or driver involved in the accident or by one or by all as the case may be. Thus it is the duty of the Tribunal to determine the amount of compensation and then to specify the person or persons to whom compensation shall be paid and lastly to specify the amount which shall be paid by the insurer or by the owner or by the driver or by all or by any of them. The parties in this case had not agreed about the owner of the truck. The Petitioner insisted that Dai Ram was the owner while the Respondents in their written statement stated that the firm M/s. Balkrishan Ram Dhari was the owner. The Tribunal without asking the parties to produce evidence regarding the ownership of the truck relied upon the written statements filed by the Respondents and gave a finding that firm M/s. Bal Krishan Ram Dhari was the owner of the truck and as such the petition was defective on account of non-joinder or mis-joinder of necessary parties. This finding of the Tribunal cannot be held to be legally correct. When the matter was a disputed one, it was the duty of the Tribunal to frame an issue and to ask the parties to lead evidence and to decide as to who was the owner of the truck. Respondent No. 3 is the insurer of the truck. In order to bind the insurer the Tribunal was required to give a finding as to who was the insured and then in view of the evidence of the, parties to hold as to whether the insured was liable or not.

For the aforesaid reasons the judgment of the Tribunal is set aside and the case is sent back to the Tribunal for deciding it afresh in the light of the observations made above after giving opportunities to the parties to lead their evidence. The counsel for the parties have been directed to cause the appearance of the parties before the Tribunal on 8-11-1976.