T.G. Abraham vs MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION

THIS appeal is directed against the order dated 29.11.2002 in O.P. 510/01 passed by the Consumer Disputes Redressal Forum, Kollam. The facts in brief are as follows.

THE complainant, was travelling in a KSRTC Bus No. TN 689 Reg. No. KL-15/2724, from Adoor and he took a ticket to Valakam Mercy Hospital Junction. In spite of repeated requests the conductor refused to give bell to stop the bus at Mercy Hospital Junction. Complainant has further alleged that on another occasion i.e., on 13.12.2000 when he travelled from Kottarakkara in a limited stop fast passenger bus bearing No. T.S. 645, Reg. No. 15/3760 to Valakam conductor of the bus refused to stop the bus at hospital junction saying that there is no bus stop there. On both these occasions he filed complaints to the opposite party and on both the occasions he was informed by the opposite party that the matter will be enquired and appropriate action would be taken. No steps were taken till the date of filing the complaints. THE complainant asserted that this alleged negligence on the part of the conductor is solely due to the failure on the part of opposite party in not giving proper directions to the conductors, and there is deficiency on the part of opposite party. In the said backdrop, complainant approached the Forum below for a direction to the opposite party to comply with the order No. TR. 03/2146/99 dated 11.5.1999 and for compensation of Rs. 10,000/- for mental sufferings and damages. After hearing both sides, learned District Forum found that the negligence attributed is against the conductors who were not made parties to the proceedings and without making them also parties no notice could be given to the conductors. Since no action could be taken against them, District Forum ultimately held that the complaint is not maintainable for non-joinder of necessary parties.

Complainant was examined as P.W. 1 and he got marked documents Exts. P1 to P6 on his side. On the side of opposite parties, no evidence was adduced.

AGGRIEVED by the order passed by the District Forum complainant has come up in appeal and submitted that since opposite party/respondent being the employer of the conductors opposite party is vicariously liable for all acts committed by the employees in the course of employment. It is also submitted that since the complainant has specifically given the number of the buses, the opposite party was in a position to ascertain the names of the conductors and the opposite party has no difficulty to find out who were the conductors. It is urged that, the dismissal of the complaint on ground of non-joinder of necessary parties is unsustainable and liable to be set aside. The vital point to be adjudicated is whether the conductors against whom negligence is specifically alleged by the complainant are necessary parties or not. Hon''ble Apex Court answered the question who is a necessary party in Udit Narain Singh Malpharia v. Addl. Member, Board of Revenue, Bihar and Another, AIR 1963 SC 786, and Hon''ble Supreme Court held: "A necessary party is one without whom no order can be made effectively."

THE reasoning given by the Forum below for dismissing the complaint as bad for non-joinder of necessary party is extracted below: "THE failure attributed is on the conductors who were not made parties in the proceedings, without impleading them, giving opportunity to defend and explain what was actually happened when the complainant requested it cannot be adjudicated the dispute between the conductors and the complainant. So also it is not possible to enter into a finding whether the conductors committed deficiency in service at the time when the complainant demanded for stopping the bus at Mercy Hospital Junction, Valakom."

We find that specific allegation of negligence is made against the conductors of the buses and deficiency alleged against the opposite party in not giving direction to the conductors in spite of assurance to the complainant that necessary action will be taken against them. Opposite party raised the contention that the complaint is bad for non-joinder of necessary parties at the initial stage itself. There is no case for the appellant that the opposite party raised such a contention without bona fides and only to deny relief to the complainant. In our view such a contention has been raised by the opposite party for enabling the Forum below to adjudicate upon and settle all the questions involved in the complaint.

UNDOUBTEDLY the complainant is the ''dominus litis'' and being master of lis he cannot be compelled to fight against a person whom he does not wish to fight.

ORDER 1 Rule (10)(2) of the Civil Procedure Code confers power on the Court at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just the name of any person who ought to have been found whether as plaintiff and defendant or whose presence before the Court may be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit, be added. The proviso to ORDER 1 Rule (9) says that nothing in Rule 9 shall apply to non-joinder of necessary party. From the proviso to Rule 9 it is clear that a suit shall be defeated by non-joinder of necessary parties. It is true that Consumer Protection Act, 1986 and the Rules framed thereunder do not provide for impleading a party even if he/she is a necessary party and Rule 10 of order of C.P.C. is not made applicable to the proceedings before the Consumer Forums. But the principle enunciated in ORDER 1 Rule 10(2) can very well be applied to the proceedings before the Consumer Redressal Forums. It is not the case of the appellant/complainant that he was not given opportunity by the Forum below to get impleaded the conductors who refused to give bell to stop the buses at the hospital junction. Inspite of giving opportunity the complainant/appellant failed to implead them and, therefore, the course open to the Forum below was to throw away the complainant holding that it was bad for non-joinder of necessary parties. The finding of the District Forum that for effective adjudication and settlement of questions involved in the complaint, the conductors against whom main allegations of negligence is made have to be impleaded and made parties is well founded.

We find no ground to differ from view taken by the Forum below. In the result, the appeal fails and the same is dismissed. In the facts and circumstances, there will be no order as to costs. Appeal dismissed.