1. One of the issues involved in the present first appeal is whether the driver of the offending vehicle against whom negligence has been alleged is a necessary or proper party in a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”).

2. By this appeal, the Appellant – Insurer has taken an exception to the judgment and award dated 29th June, 2010 passed by the learned Member of the Motor Accident Claims Tribunal. The claim petition was filed by the Respondent Nos.1 and 2 under Section 166 of the said Act. The Respondent Nos.1 and 2 are the parents of the deceased who was a victim of the accident. The accident occurred on 21st November, 2005 at about 02:00 am at N.S.Road, Mumbai under a Flyover Bridge. It is alleged that when the deceased was crossing the road, a car owned by the Respondent No.3 came in a very high speed which was being driven in rash and negligent manner and gave a dash to the deceased. Though the deceased was admitted to a hospital, he succumbed to the injuries sustained in the accident. The car was insured with the Appellant on the relevant date.

3. The claim petition was contested by the Appellant by filing a written statement. One of the contentions raised was that the driver of the car was a necessary and proper party and that as he was not impleaded as a party, the claim petition was not maintainable. The Tribunal held that the negligence on the part of the driver of the car was established. The Tribunal proceeded to grant compensation of Rs.2,90,000/- with interest at the rate of 7.5% per annum.

4. The first submission of the learned counsel appearing for the Appellant is that the driver of the car insured with the Appellant was a necessary and proper party to the claim petition as the allegation of negligence was against the said driver. His submission is that though the Respondent No.3 – owner is alleged to be vicariously liable, unless the negligence on the part of the driver is proved, the Respondent No.3 cannot be held vicariously liable. He submitted that unless the driver was made a party, no finding could be recorded of negligence against him. He has relied upon various decisions to which a reference is made in the subsequent part of this judgment. He submitted that a claim petition under Section 166 of the said Act is an action under the law of torts and therefore, compensation is payable only if the negligence on the part of the driver of the offending vehicle is proved. He submitted that for proving the negligence, the driver against whom negligence is alleged is a necessary and proper party. He submitted that in the present case, negligence has not been proved. Moreover, he submitted that as the deceased was a bachelor, 50% of his income ought to have been deducted on account of his personal expenditure and therefore, the Tribunal has committed an error by deducting only 1/3rd amount on account of personal expenditure.

5. The learned counsel appearing for Respondent No.1 submitted that apart from the fact that there was no issue framed on the basis of the contention regarding non-joinder of necessary party, the law laid down by various decisions of the Apex Court as well as this Court is that a driver is not at all a necessary party to a claim petition under Section 166 of the said Act. He has relied upon several decisions. He submitted that a claimant in a claim petition is under no obligation to make any person as a party to the claim petition and it is for the Tribunal to issue notice to the appropriate parties on the basis of the claim petition. He submitted that negligence on the part of the driver was proved and the compensation granted is reasonable.

6. I have given careful consideration to the submissions. The first issue is whether the driver was a necessary and proper party. In the case of Sikhandar Khan Rashid Khan Vs. Ansar Baig Sabdar Baig and others [2011 (2) T.A.C. 365] : [2010 ALL MR (Supp.) 867], a learned Si