The main legal point established in the judgment is the application of the principle of composite negligence and the provisions of Order 41 Rule 33, CPC to apportion liability between the parties involved in the accident.

1. - This is an appeal preferred by Murari Lal, owner of Vehicle No. RJR/2278, against the Award passed by the learned Judge, Motor Accidents Claims Tribunal, Jaipur dated 31st May, 1977.

2. The claim arises out of an accident which took place on 31st March, 1969 at about 3 p.m. of a distance of 3 miles and 5 furlongs from Jaipur. A bus of the Rajasthan State Road Transport Corporation (In short RSRTC) was going from Jaipur to Bharatpur and Deoki Nandan was the driver. The bus No.: RJR/2278 was coming towards Jaipur and the accident took place near Ghash-ki-Chuni. It is alleged that Murari Lal was, the real owner and Copal Das was the registered owner.

3. Before dealing with the merits of the case, I would like to mention that the Motor accidents claims Tribunal Hereinafter referred to as the Tribunal) passed an Award on 22nd July, 1972. It was held by the Tribunal that the Driver Deokinandan was not negligent and as such, the RSRTC is not responsible for the payment of com pensation. The Award was passed against Gopal Das non-petitioner to the extent of Rs. 31,104/- and cost Rs. 400/-. It was also held that non petitioner No. 4 Insurance company is responsible for payment of Rs. 2,000/- only. The petitioners were allowed interest of the rate of 6% from the date of decree till the date of realisation. An application was moved by M/s. Gopal Das Kedar Nath subsequent to the Award that, in fact, M/s. Gopal Das Kedar Nath were the registered owner of the vehicle and the work of running of the vehicle was carried on and looked into by Murari Lal and, he kept the petitioner in dark and did not contest the claim in the manner desired by the petitioner (M/s. Gopal Das Kedar Nath). A prayer was made to set aside the Award. The learned Tribunal held as under:

"After hearing the parties, I find that it is in the interest of justice that the decree passed ex-parte against the petitioners (M/s. Gopal Das Kedar Nath) should be set aside and the petitioners be allowed an opportunity to cross-examine the witnesses already examined by the parties and to lead evidence, if so desires.

4. Further direction was given that the decree will be set aside and the cost will be allowed for re-calling the witnesses already examined at the cost of the petitioner, Gopal Das Kedar Nath.

5. The Tribunal vide it's award dated 31st, May, 1977 awarded a sum of Rs. 31,104/-to the present appellant Smt. Gomati and Others and interest at the rate of 6% was awarded and the cost of litigation amounting to Rs. 500/- was also awarded. No award was passed against the RSRTC on the ground that in the year 1972 award was passed against the RSRTC and the restoration was qua Murari Lal only. It seems that the present respondents Smt. Gomati and Others who were legal representatives of deceased, were satisfied with the award and they have not filed any appeal or cross-objection before this Court. No Award was passed against the RSRTC and, hence, the question of filing an appeal did not arise at all. Murari Lal was the aggrieved party as the award was passed against him only. As such, this appeal was directed by Murari Lal against the Award dated 31st May, 1977. It will not be out of place to mention that Smt. Har Pyari lost her husband in the same accident and the Award was passed against the RSRTC as well as Murari Lal. The RSRTC preferred an appeal before this Court challenging the finding of composite negligence. However, during the pendency of the appeal, a compromise was arrived at and RSRTC without accepting the finding of composite negligence gave an amount of Rs. 11,000/- to Smt. Har Pyari on compassionate grounds.

6. Mr. R.N. Munshi, at the very outset, submitted that the names of the respondent, RSRTC, should be deleted as RSRTC is not a necessary party. It was submitted that in the memo of appeal no relief has been claimed against RSRTC and, as such, the name of RSRTC should be deleted no relief can be granted against RSRTC. It was also countered by Mr. Munshi,