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Judgment
Dr. B. Siva Sankara Rao, J.—Aggrieved by the award, dated 29.06.2005, passed by the Chairman, III Motor Accidents Claims Tribunal, Warangal, (for short, ''the Tribunal''), in O.P. No. 65 of 2004 maintained by the claimants, who are wife, two minor children and parents of the deceased - Kumaraswamy, under Section 166 of the Motor Vehicles Act, 1988 (for short, ''the Act'') for Rs. 21 lakhs, since the Tribunal awarded Rs. 15 lakhs with interest @ 7.5% per annum with joint liability, the 2nd and 3rd respondents among the three respondents including the owner of the Jeep bearing No. AP 15 U 3046 preferred the present appeal with the contentions in the grounds of appeal that very maintainability of the claim petition under Section 166 of the Act that the driver must invariably be impleaded as it is the claimants to prove, rash and negligent driving of the driver of the Jeep, the owner of the vehicle is vicariously liable, then for the insurer to indemnify; the Tribunal went wrong in holding that the vehicle is involved in the accident and hence to set aside the award of the Tribunal on any of the two counts or both.
Whereas, it is the contention of learned counsel for the claimants - respondents 1 to 5 also maintained the cross-objections impugning the quantum is utterly low, seeking to allow as prayed for before the Tribunal. It is also submission of learned counsel for the claimants - respondents 1 to 5 that in this Court while sitting in appeal so far as finding of the Tribunal in respect of rash and negligent driving of the driver, there is nothing to interfere and the claim is maintainable without impleading even the driver.
Perused the material on record. The parties will hereinafter be referred to as arrayed before the Tribunal for the sake of convenience.
Now the points that arise for consideration are,
"i. Whether the claim is not maintainable, whether the compensation is unsustainable, so also fixing the joint liability against the insurer and with what observations?
ii. To what result?"
Point No. i:
Coming to the maintainability of the claim petition, the contention of learned counsel for the appellants - insurers'' is two fold. One is, without impleading the driver of the vehicle, claim under Section 166 of the Act, is not maintainable. Apart from that, Rule 471 of the Andhra Pradesh Motor Vehicle Rules, 1989, (for short, ''the Rules'') mandates that the Tribunal in passing orders shall record concisely in a judgment the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the Insurer and also the person or persons to whom compensation shall be paid. The Tribunal shall, as per Sub-Rule 4 of Rule 471 of the Motor Vehicles Rules, forward a copy of its Award to the Regional Transport Authority having jurisdiction over the place of the accident for appropriate action against the driver and owner of the vehicle concerned, in case either criminal proceedings have not already been initiated, against them or they have been proved unsuccessful for lack of evidence. The finding on the driver to be given as is contemplated by Sub-Rule 4 of Rule 471 of the Rules and a copy of the Award has to be sent to Regional Transport Authority for taking action against the driver. As per the basic cannons of law and principles of natural justice, any finding recorded behind back of the driver and not marking a copy of the award as required, cannot be allowed to survive.
In support of one of the propositions, learned counsel placed reliance, on the expression of the Apex Court in 2008 TAC 789, wherein at paragraph 54, it is particularly held that the Tribunal cannot give finding in the absence of the driver of the vehicle in a claim petition filed under Section 166 of the Act, when the accident was the result of his rash and negligent driving of the vehicle as it tantamount to violation of principles of natural justice. Coming to the other proposition that the finding behind his back, without giving opportunity for a say, the Award was passed, the Apex Court in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, it was categorically held at paragraph 9 as follows:
"Before we proceed to consider the main aspect arising for decision in this Appeal, we would like to make certain general observations.
It may be true that the Motor Vehicles Act, insofar as it relates to claims for compensation arising out of accidents, is a beneficent piece of legislation. It may also be true that subject to the rules made in that behalf, the Tribunal may follow a summary procedure in dealing with a claim. That does not mean that a Tribunal approached with a claim for compensation under the Act should ignore all basic principles of law in determining the claim for compensation. Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made. Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. Why should not a Tribunal insist on the driver of the vehicle being impleaded when a claim is being filed? As we have noticed, the relevant provisions of the Act are not intended to jettison all principles of law relating to a claim for compensation which is still based on a tortious liability. The Tribunal ought to have, in the case on hand, directed the claimant to implead Mahmood Hasan who was allegedly driving the vehicle at the time of the accident. Here, there was also controversy whether it was Mahmood Hasan who was driving the vehicle or it was the deceased himself. Surely, such a question could have been decided only in the presence of Mahmood Hasan who would have been principally liable for any compensation that might be decreed in case he was driving the vehicle. Secondly, the deceased was employed in a limited company. It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer Company? Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis-a-vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer \\026 company to produce the relevant documents to show the income that was being derived by the deceased from his employment. Of course, in this case, the above two aspects become relevant only if we find the insurance company liable. If we find that only the owner of the vehicle, the employer of the deceased was liable, there will be no occasion to further consider these aspects since the owner has acquiesced in the award passed by the Tribunal against it."
In the above expression, containing the general observations are basically guidelines, for all Tribunals to follow as law of the land, in particular, under Article 141 of the Constitution of India, to see that the impleadment of the driver of the crime vehicle alleged as a respondent to the claim petition is mandatory. It is for the reason that the accident claimed resulted due to the negligence of the driver, from the claim petition averments that is required to be proved by the claimants under Section 166 of the Act. It is only therefrom the owner of the vehicle is liable vicariously to say the driver is the principal offender to fix liability vicariously on the owner and consequently for the insurer to indemnify the said owner - insured. No doubt, it is the contention of learned counsel for the respondents - claimants that such a practice is almost not in vogue, however, that is not an answer much less to ask the Court to refrain from following the law of the land.
When such is the mandate of the law, this Court has no option but for to remand the matter while directing the Tribunal to implead the driver of the vehicle within its power under Order I Rule 10(2) of the Civil Procedure Code, 1908 and issue notice to the driver at the expenses of the Court. It is needless to say the Tribunal can direct the claimants at the cost of dismissal for non compliance to file neat copy of petition, and after securing the presence of the driver, afford opportunity to the driver to file any of his counter and to lead his evidence, if necessary, on his requirement, by calling for cross-examination of all or any witnesses of the claimants P.Ws.1 and 2 herein to determine the claim afresh including on the quantum and any rash and negligent driving of the driver of the vehicle. It is made clear that the observation of the Tribunal in the award against the insurer as if, it is the duty of the insurer and not of claimants even in the claim filed under Section 166 of the Act, to call for the owner of the vehicle to examine in support its contention that the vehicle not involved when unsustainable and when the matter is remanded for afresh determination, the earlier finding won''t survive. It is needless to say any amount already deposited by the insurer, the same shall be kept in F.D.R. till the matter is being disposed of afresh.
Since the claim is of the year 2004, the Tribunal shall make every endeavour to dispose of preferably within three months from the date of receipt of the order and if it cannot be disposed of within three months from the date of receipt of the order, the Tribunal shall seek further extension of the time. Accordingly point No. i is answered.
Point No. ii
In the result, the appeal is remanded to the Tribunal to dispose the claim afresh for the reasons stated above. Consequently, the Cross-objections filed by the claimants is dismissed. No costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
Registry to circulate copy of the order to all the Tribunals for mandatory compliance of impleadment of the driver in a claim filed under Section 166 of the Act as per the two expressions of the Apex Court referred supra besides from Rule 471(4) of the A.P.M.V. Rules 1989 require finding against the driver if there any negligence and to mark copy of the finding to the Regional Transport Authority concerned for action, for which the impleadment of driver to contest is necessary.