K.KANNAN, J. - (1.) BOTH the appeals are related to the same accident. FAO No. 2409 of 1994 is for death of a male aged 19 years, who was a pillion rider in a motor cycle and FAO No. 2410 of 1994 is a claim for injuries suffered in the accident, who was yet another pillion rider. The motor cycle was being driven by one Birkha Ram from Barana and, according to the claimants, the vehicle had come on the main road from the side road when the insured truck coming from Pipli and going towards Karnal dashed against the motor cycle from the rear side and caused accident. That resulted in fatal injury to one and grievous injuries to another.
(2.) THE Tribunal held that it was only motor -cyclist who was responsible for the accident but since the rider of the motor cycle had not been impleaded as party, the Tribunal dismissed the petition. I have seen the rough sketch that shows the location of the person who stood as eye witness, which is the corner of the road at the point from where the road Barana joins the main G.T. road. The point of impact of the motor cycle where the scooter stood stationed was relatively on the right side for a vehicle coming from Pipli and the body of the person who had fallen was noted at point 'C', which was at a middle or left of the middle of the road. While the contention of the claimants were that the driver of the truck alone was responsible, the driver examined himself and gave his own version that the rider of the motor cycle dashed against the truck without waiting for the truck to go along with the main road. He failed to exercise caution as a person who was coming from the side road into the main road. The Tribunal accepted this version of the driver of the truck and dismissed the petition.
(3.) IT must be noticed that the claim emanates not from the tort - feasor himself, if the motor cycle was to be taken as tort -feasor. As far as the claimants were concerned, it was a case of composite negligence where there was a collision of a motor cycle with the truck. The point of impact and the position where the motor cycle and the dead body were located on the road at the time when the sketch was drawn would make it appears that the rider of the motor cycle was actually coming on to the main road from the side road. The negligence of the driver of the motor cycle was evident but I cannot wash off any responsibility for the driver of the truck as well. Any person driving on the main road, as he approaches any inter -section or T -section, should exercise appropriate care and slow down to ensure that another person coming from the side road has already entered the main road and to draw appropriate caution in his driving so that he caused no collision. A greater circumspection on the part of the driver of the truck would have definitely prevented the accident. I shall be reluctant to draw an inference of the proportion of liability between the motor cyclist and the driver of the truck, not because the evidence is inadequate but because it is legally inexigent to make a finding of guilt of one person without the person being a party to the proceedings. The claimants were entitled to do what they did, of suing any of the tort -feasors consistent with their pleading that it was driver of the truck who was responsible. If the driver of the truck had a case that the motor cyclist himself was at fault, he should have taken steps to ensure that the owner and the driver of the motor cycle had also been made a party. This point is invariably missed at the time of the trial of the motor accident cases. It is assumed by party that as usual in a normal civil suit, the plaintiff would stand or fall by his own pleadings. Such rigid structuring of pleadings shall not be made in motor accident cases. The Tribunal itself has a duty to ensure that all the parties who could be made liable are brought or impleaded and adjudication is made in the presence of all of them. If the Tribunal found that the driver of the motor cycle was not made a party, it committed a mistake in not making a suo -motu impleadments, instead finding an excuse to dismiss the petition itself. It must be remembered that a motor accident is not an adversarial litigation where right of one party is pitched against another. The court will apply its own discretion to see that a case is not dismissed for any technical reason. What I say of the court shall better describe the contentions of the insurer and the owner/driver of the truck as well. They should have seen that it was impossible to write off a case of total lack of negligence for the driver. If there was some modicum of negligence on his part, he should have known that the liability could be legally fastened wholly on him, if only the other tort feasor was not a party. The insurer in this case rested comfortably on its plea that the driver of the motor cycle should be made as party. It failed to note that apportionment of the liability shall be possible to the benefit of the insurer only, if the driver of the motor cycle was made a party and to that extent the duty was on the truck owner and the insurer and not on the claimants who had a right of enforcement against any of them.;