Amitava Lala, J. - (1.) -The appeal is arising out of an order dated 3rd February, 2001 passed by the Motor Accident Claims Tribunal, Etawah awarding a sum of Rs. 2,52,000 alongwith interest from the date of presentation of claim petition till its realisation to be paid to the claimants on account of death of the deceased. The insurance company was made liable to pay compensation, therefore, they have preferred this appeal inspite of no application having been made under Section 170 of the Motor Vehicles Act, 1988 (hereinafter called "the Act") to permit it to contest the cause before the Tribunal.
(2.) IN the appeal learned counsel appearing for the insurance company contended that no explanation has been given by the claimant opposite parties as to why one Sri Shyam Kishore was shown as driver in the F.I.R. when subsequently one Sri Rashid Khan was introduced as driver by the owner at the relevant time. But we find from the impugned order that there is an explanation about lodging of the F.I.R. against Sri Shyam Kishore, the cleaner of the vehicle. It has been mentioned that the owner has given the tempo to Sri Rashid Khan to drive and he was driving at the time of accident. After the accident, Sri Rashid Khan, the driver ran away and Sri Shyam Kishore, the cleaner was caught and F.I.R. was lodged against him when the police had filed the charge-sheet against him. The owner of the tempo had admitted the accident and filed the copy of the valid driving licence of the driver Sri Rashid Khan. It has been stated in the judgment that even if it is accepted that Sri Shyam Kishore was driving the tempo then it was the duty of the insurance company to prove that inspite of having no licence, he was driving the vehicle. But the same has not been done by the insurance company. Sri Rakesh Bahadur, learned counsel appearing for the appellant has argued that the driver was not impleaded as party to consider the cause of negligence. Therefore, appeal is maintainable irrespective of filing the application under Section 170 of the Act. It has also been argued before us that the principle of Code of Civil Procedure is applicable to the Tribunal in deciding a case as far as practicable. Therefore, non-joinder or mis-joinder of the necessary parties i.e., the driver as under Order I, Rule 9 of the Code of Civil Procedure (hereinafter called as C.P.C.) is fatal for the purpose of determination of the cause. Hence, the claim petition should fall on such ground. Order I, Rule 9 of the C.P.C. is quoted hereunder : "9. Mis-joinder and non-joinder.-No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it : [Provided that nothing in this rule shall apply to non-joinder of a necessary party.]"
(3.) IT is understood that Mr. Rakesh Bahadur wanted to give emphasis on the proviso under the aforesaid rule. He specifically submitted that the owner, in absence of the insurance company, conveniently avoided the driver. He relied upon a judgment in Oriental Insurance Co. Ltd. v. Meena Variyal and others, (2007) 5 SCC 428 : 2007 (3) AWC 2116 (SC), to establish that 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. The Supreme Court was annoyed on the issue by saying why should not a Tribunal insist on the driver of the vehicle being impleaded as party when a claim is being filed? According to us, save and except this part the other parts of the judgment are not relevant for the purpose. Moreover, in this case, the insurance company has not filed any application. No one prevented the insurance company to file an application under Section 170 of the Act seeking permission from the Tribunal to contest the claim. There is a gulf difference between the two positions i.e., an application having been made, is dismissed or no order is passed in such application and no application is made at all. An insurance company having not been impleaded as party respondent cannot take the plea who will be made party before the Tribunal. It had only woke up from the slumber when it had been fastened with liability. In a case of motor accident a driver is primarily liable, when the owner is vicariously liable and the insurance company is the indemnifier of the owner. But practically an owner becomes primarily liable. A driver, who is normally coming from lower strata, cannot be expected to pay the huge amount of compensation. Therefore, the real necessity of the Court for impleadment is to examine him. According to us, it is expected he should be impleaded and examined and in case he is not a party even then he will be examined. In this case neither the vehicle nor its involvement is in dispute irrespective of its driving by 'X' driver or 'Y' driver. The insurance company did not come forward to avoid the liability, therefore, the claimants' eligibility cannot be stalled. It is duty of the insurance company to raise its point, if any, before the Tribunal whether it is liable or the owner is liable. Claimant being a third party should not be made to suffer in a beneficial piece of legislation. In a case of beneficial piece of legislation firstly it has to be seen from the point of view of benefit and then from the point of view of no benefit. It is expected that a driver is to be impleaded as party as held in Meena Variyal (supra) does not necessarily mean it is mandate but a dire necessity. A process of making decision under this Act is a summary procedure. In a summary procedure a Tribunal normally follows the fast track principle in taking evidence. Therefore, the requirement of the Tribunal is to get a satisfaction beyond doubt about establishment of accident and by whom compensation will be payable. It is true to say that the driver should have been impleaded as party in the claim petition but has not debarred any party from examining such driver as witness in absence of such impleadment. As soon as a party not being impleaded, is examined, requirement of law will be fulfilled. He can be fastened with the liability even not being impleaded as party. In other words making him as party at that stage will be idle formality. Now the question is whether insurance company had discharged its responsibility or not. Our answer is 'no'. The owner has contested the cause. He said both Sri Shyam Kishore and Sri Rashid Khan are associated with the vehicle. He deposed that Sri Rashid Khan had flown away from the spot and Sri Shyam Kishore was caught. There is no denial or rebuttal of the insurance company before the Tribunal that the cleaner was driving the vehicle as alleged before the appellate court for the first time. Therefore, it is not a case where the insurance company will be granted liberty by the Court to recover the amount due and payable to the claimants. On the other hand claimants were made to suffer a lot for the interim order obtained by the insurance company inspite of their own fault.;