The joint liability of the driver and owner as joint tortfeasors in a motor accident, and the entitlement of the injured party to sue either the driver or the owner for compensation.

K. Narayana Kurup, J.

The claimant before the Motor Accidents Claims Tribunal, Kottayam (hereinafter referred to as 'the Tribunal') in O.P. (M.V.) No. 50 of 1990 is the appellant. The claim arose out of the following facts:

2. According to the appellant/ claimant, on 28-8-1989 at about 3.20 p.m. he boarded the bus bearing Registration No. KRK 5576 at the Chalakunnu bus stop. Before the appellant could make a complete entry into the bus, the bus was put in motion by the driver all of a sudden without any warning which resulted in the appellant being thrown out of the bus through the door which was not closed. Thereby the appellant sustained grievous injury. According to the appellant, both the conductor and the driver were negligent in operating the bus which resulted in the accident. The appellant has a specific case that the accident occurred due to the rash and negligent driving of the bus by the driver as well as the careless conduct of the conductor of the bus. The owner and insurer of the bus were arrayed as respondents 1 and 2 respectively before the Tribunal.

3. The first respondent owner of the bus filed a written statement contending inter-alia that the petition is not maintainable; the occurrence of the accident alleged is not correct; the accident occurred due to sole negligence of the petitioner since the petitioner tried to enter into the moving bus and that the nature of the in juries alleged to be sustained by the appellant is not correct and the petition is not maintainable due to non joinder of parties, i.e. the driver of the vehicle.

4. The second respondent insurer filed a written statement contending inter-alia, that the vehicle was not covered by a valid insurance policy at the relevant time and that the owner failed to intimate the accident to the insurer as per the terms and conditions of the policy and that the first respondent was not the owner of the vehicle. The insurer had a further case that the driver of the vehicle was not holding a valid driving licence to drive the class of vehicle in question at the time of accident.

5. On the above contentions, the tribunal framed the following issues for trial:

1. Whether the O.P. is maintainable?

2. Whether the O.P. is bad for non joinder of necessary parties?

3. What is the cause of accident?

4. Whether the petitioner is entitled to get any compensation, if so, what is the quantum and who are liable?

5. Reliefs and costs.

On issue Nos.1 and 2 the tribunal found that the O.P. is not maintainable for "want of the person against whom negligence is levelled for causing the accident". On issue No. 3 the tribunal entered a finding to the effect that "in the absence of the driver and owner(?) it is not safe to find enter a finding regarding the negligence of the driver and at any rate, it is not possible to hold that the accident occurred due to the negligence of the conductor of the bus involved in the accident and the issue was found accordingly.

6. Having entered a finding on the above issues, the tribunal proceeded to consider issue no. 4 namely the quantum of compensation, if any, which the appellant is entitled to having regard to the facts and circumstances of the case and held that the appellant is entitled to a total compensation of Rs. 21.200/-under various heads mentioned in the order. However, the tribunal held that in view of his findings on issue Nos.1 and 2, the petition is liable to be dismissed and the petition was accordingly dismissed.

7. In the instant appeal filed by the claimant, the main contention urged before us was whether the finding of the tribunal that the petition is not maintainable for non joinder of the driver of the bus is correct or not. Having heard learned counsel for the appellant and learned counsel appearing for the respondents; we are of the view that the question is no longer res-integra. In this connection, it has to be noted that both driver and owner are joint torlfeasors. In a motor accident the primary liability is th