2012(5) ALL MR 184
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
M.N. GILANI, J.
Sahebrao Tikaramji Gakhare & Ors.Vs. M/S. Lakhotia Transport Co. Pvt. Ltd. & Anr.
First Appeal No.115 of 2012
14th February, 2012
Petitioner Counsel: Mr. ASGHAR HUSSAIN
Respondent Counsel: Smt. T.D. KHADE
Civil P.C. (1908), O.1 R.10 - Motor Vehicles Act (1988), S.166 - Necessary parties - Motor accident claim petition dismissed as driver not joined as party - Dismissal improper - Addition of party could be ordered instead - Matter liable to be remitted back for fresh adjudication.
1994 (2) T.A.C. 370, 2002 (2) T.A.C. 503, 2007 ALL SCR 1697 Ref. to.
State of Maharashtra Vs. Smt. Gulabi Sadhu and other, 1994 (2) T.A.C. 370 [Para 3]
Vaddepali Rajesham Vs. A.P.S.R.T.C., 2002 (2) T.A.C. 503 [Para 3]
Oriental Insurance Co. Ltd. Vs. Meena Variyal and others, 2007 ALL SCR 1697 =2007 (2) T.A.C. 417 (S.C.) [Para 3]
Chandra Bhan Prasad and others Vs. Mohanal, AIR 1987 Calcutta 322 [Para 4]
Ksh. Achouba Singh and others Vs. L. Achouba Singh and others, AIR 1984 Gauhati 39 [Para 3]
Machindranath Kernath Kasar Vs. D.S. Mylarappa and others, 2008 ACJ 1964 [Para 6]
2. One Kailash Gakhare, aged about 22 Yrs., died in a motor vehicular accident occurred on 16/7/2005. He was driving motor cycle bearing No.MH-31/ BF-8026. The truck bearing No.WB-23/ A-1455 came from opposite direction and dashed against his motor cycle causing his death. His parents and elder brother filed claim petition. The original nonapplicant no.1 - respondent no.1 herein did not contest whereas the original nonapplicant no.2 - respondent no.2 herein contested the petition. The respondent no.2 raised issue of non-joinder of necessary party i.e. driver of the truck bearing No.WB-23/ A-1455. Learned Tribunal framed issue of necessary party and answered the same in favour of the respondent no.2.
3. Learned Tribunal relied upon the decision of this Court in State of Maharashtra V/s. Smt. Gulabi Sadhu and other reported in 1994 (2) T.A.C. 370, decision of the Andhra Pradesh High Court in Vaddepali Rajesham V/s. A.P.S.R.T.C. reported in 2002 (2) T.A.C. 503 and further relied upon the decision in Oriental Insurance Co. Ltd. V/s. Meena Variyal and others reported in 2007 (2) T.A.C. 417 (S.C.) : [2007 ALL SCR 1697]. In case of Oriental Insurance Co. Ltd. V/s. Meena Variyal and others, [2007 ALL SCR 1697] supra the Apex Court held that : "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."
4. Learned Tribunal may be right in arriving at the finding that the driver of ill-fated vehicle is a necessary party, however, was not justified in dismissing the claim mainly on the ground that he has not been impleaded in the proceeding. It seems that learned Member of the Tribunal was oblivious of the provisions of Order I Rule 10 (2) of the Civil Procedure Code, which reads as under :-
"Court may strike out or add parties - The Court may 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, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit suit, be added."
In Chandra Bhan Prasad and others V/s. Mohanal reported in AIR 1987 Calcutta 322 learned Single Judge of the Calcutta High court while considering the scope of Order I Rule 10 observed that if the trial Court finds that the subsequent tenant is a necessary party it has power to add him as a party and in any event the suit cannot be said to be incompetent for non-joinder of subsequent tenant. The next decision on this issue is in case of Ksh. Achouba Singh and others V/s. L. Achouba Singh and others reported in AIR 1984 Gauhati 39. The Division Bench of the Gauhati High Court held that : "It is true that in view of the amendment made by Civil P.C. (Amendment Act) of 1956, a suit may be dismissed for non-joinder of necessary party. However, this extreme penalty of dismissal of a suit for non-joinder of the necessary parties could be done only upon granting reasonable opportunity to the plaintiff to add necessary parties to the suit. Without affording any reasonable opportunity, even a Civil Court cannot dismiss a suit for non-joinder of necessary parties. It will be evident from the provisions of Order 1 rule 10 (2) of the Civil P.C. that whenever a Court finds, during the course of proceedings of a civil action, that a party has been improperly joined, it may strike out the name of the improperly joined party. Similarly, if the Court finds that any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, it can order the party to be added as party to the suit. The provisions of Order 1, Rule 10 (2) is indicative of the fact that when the Court finds that the party who ought to be added, it can add the party and direct the plaintiff to take necessary steps."
5. This being the settled legal position, learned Member has committed serious error in dismissing the claim petition particularly when the claimants were unfortunate parents who lost their son aged about 22 years in motor vehicular accident. Utmost sensitivity to the cause of such nature is needed.
6. Even apart, in case of Machindranath Kernath Kasar V/s. D.S. Mylarappa and others reported in 2008 ACJ 1964 the Apex Court held that : "It is, however, of some interest to note the provisions of section 168 of the Motor Vehicles Act. In terms of this aforementioned provision, the Tribunal is mandatorily required to specify the amount which shall be paid by the owner or driver of the vehicle involved in the accident or by or any of them. As it is imperative on the part of the Tribunal to specify the amount payable, inter alia, by the driver of the vehicle, a fortiori, he should be impleaded as a party in the proceeding. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tortfeasor." (Emphasis mine)
(i) In the result, appeal succeeds.
(ii) The award dated 6/11/2009 passed by learned Member, Motor Accident Claims Tribunal, Wardha is quashed and set aside.
(iii) The matter is remitted back to the Tribunal for adjudication afresh according to law.
(iv) In the event claimants apply for joining the driver as a necessary party learned Member may decide the same according to law.
(v) The parties are directed to appear before the Tribunal on 5th of march 2012.
(vi) In the circumstances of the case there shall be no order as to costs.