Mohammad Rafiq, J. - (1.) These two appeals are directed against the common order passed by the Motor Accident Claims Tribunal, Sambhar Lake, District Jaipur thereby rejecting two claim petitions filed by the appellants herein in regard to death of driver of truck No.RND- 9257 Gulzar Singh and khalasi of the said vehicle namely Nirmal Singh @ Nimmo, both of whom died in road accident along with two others which took place on 23.10.1989. It is borne out from the record that Gulzar Singh was driving the vehicle No.RND-9257. While he was coming from Ajmer towards Jaipur, suddenly truck No. DIL-5262 which was coming from Jaipur towards Ajmer and was being driven by respondent no.1-Kuljit Singh, collided with the former which resulted into death of aforesaid Gulzar Singh and Nirmal Singh and two others travelling in that truck. In the first information report that was lodged at the instance of khalasi of truck no. DIL-5262, it was alleged that the driver of truck no. RND-9257 was driving the said truck in rash and negligent manner and that resulted into the accident. Subsequently, however, when informant Sita Ram appeared in the witness box before the Tribunal, he stated that accident took place due to negligence on the part of the driver of truck no.DIL-5262. The learned Tribunal, however, held that accident took place due to the negligence and mistake of deceased Gulzar Singh and that since the owner and insurance company of truck no.RND- 9257 have not been impleaded as party, the claim petition in both the cases was liable to be dismissed and accordingly rejected.
(2.) I have heard Shri Vinay Mathur, learned counsel for the claimant-appellants and Shri S.R. Joshi and Shri Ganesh Joshi, learned counsel appearing for the respondent insurance company.
(3.) Shri Vinay Mathur, learned counsel for the appellant has argued that the learned Tribunal has erred in law in not deciding the claim petition on merits inasmuch it has wrongly rejected the claim petition for nonimpleadment of the owner and the insurance company of vehicle RND-9257. It was argued that it is open to the legal representatives of the deceased to maintain claim for compensation against both or against any of them since their liability is joint and severe. The learned counsel relied on the judgments of this Court in Pushpabai Purshottam Udeshi & Ors. v. M/s. Ranjit Ginning and Pressing Co. & Anr.-1977 ACJ 343, Smt. Nani & Ors. v. Soma Lal & Ors.- 2006 (2) TAC 775 (Raj.), Mst. Rahmat & Ors. v. Ramchand & Anr.-2006 WLC (Raj.) U.C. 73, R.S.R.T.C. & Anr. v. Ghan Shyam & Anr.-2006 WLC (Raj.) U.C. 25, R.S.R.T.C. & Anr. v. Rajendra Singh & Anr.-2006 WLC (Raj.) U.C. 57, Omwati & Ors. v. Mohd. Din & Ors.-2001 (2) TAC (Delhi) 665, Sampat Kunwar Bai & Anr. v. Gurmeet Singh & Anr.-1988 ACJ 342, New India Assurance Co. Ltd. v. Avinash & Ors.-1988 ACJ 322, Rajeshwar Prasad v. Bharat Singh & Ors.-2004 (3) WLC (Raj.) 675. Learned counsel argued that the learned Tribunal erred in law in rejecting the claim petition solely on account that negligence of the truck no.DIL-5262 has not been proved and the accident occurred due to negligence of the deceased Gulzar Singh who was driving truck no.RND-9257. It was argued that mere use of insured motor vehicle would make the insurance company liable for compensation though element of negligence may be absent. Reliance in this connection was placed on the judgment of Supreme Court in Smt. Kaushnuma Begum & Ors. v. The New India Assurance Co. Ltd. & Ors.-2001 WLC (SC) Civil 116 : 2001 (1) T.A.C. 649.;