Vivek Agarwal,J. - (1.) Heard Sri Rakesh Bahadur, learned counsel for appellant-insurance company, Sri Yashwant Pratap Singh, learned counsel for claimant-respondent no. 1 and Sri Awadhesh Kumar Malviya, learned counsel for respondent no. 6.
(2.) This appeal has been filed by the insurance company being aggrieved of award dated 05.03.2016 passed by learned Motor Accident Claims Tribunal/District Judge, Deoria in MACP No. 374 of 2011, on the ground that driver of the offending vehicle was not impleaded as a party and further that aspect of contributory negligence has not been considered by the learned claims tribunal, inasmuch as in the light of the inspection report, available on record, there was dent on the right hand side rear bumper of the vehicle bearing registration no. UP 61 T 0065 and therefore, motorcycle, on which deceased was travelling, had hit the truck from behind and on such premise, it is submitted that finding of contributory negligence should have been recorded by the learned claims tribunal.
(3.) Placing reliance on the provisions contained in Rule 204(7) of the U.P. Motor Vehicle Rules, 1998, it is submitted that Rules provide for impleadment of the driver of the vehicle involved in the accident to be necessarily a party in the application for compensation filed under Section 166 of the Act. Reliance is placed on the judgment of Hon'ble Supreme Court in case of Machindranath Kernath Kasar vs. D.S. Mylarappa and Others , 2008 13 SCC 198, referring to Para-42, it is submitted that "Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them in the same, namely that the same evidence would support an action against them, individually Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them." Hence, employer and employee, the former being vicariously liable while the latter being primarily liable are joint tortfeasors and are therefore jointly and severally liable. However, by virtue of the fact that the cause of action is the same and that the same evidence would support an action against either, it follows that this evidence must necessarily include an examination of the driver who is primarily liable. To make a finding on negligence without involving the driver as at least a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate." ;