The driver is a proper party, not a necessary party, and the claim petition cannot be dismissed on the ground of non-arraying of driver as a party to the claim petition.

1. This Civil 1st Miscellaneous Appeal is directed against the judgment and order dated 02.01.2010 passed by the Motor Accidents Claims Tribunal, Doda, whereby the claim petition filed by the claimants, appellants herein, came to be dismissed for want of impleadment of driver of the offending vehicle being necessary (for short, impugned order), on the grounds taken in the memo of appeal.

2. Brief Facts

Appellants-claimants being the victims of vehicular accident filed a claim petition before the Motor Accidents Claims Tribunal, Doda for grant of compensation on the ground that on 26.11.1996 one Ghulam Rasool, son of Mohd. Mussa, resident of Manoo Gandoh, Tehsil Gandoh, was hit by an Army Truck at Bhatri (Gandoh), which was being driven rashly and negligently, and, as a result of the said accident, he died on the spot. He was a Carpenter by profession. He was also owner of four buffaloes and used to sell milk, ghee etc. As claimed in the claim petition, the monthly income of said Ghulam Rasool was Rs.9000/- per month. Appellants-claimants have specifically stated in paragraphs 9, 12 & 13 of the claim petition that the offending vehicle was of 17 RR Bn. and was being driven by army personnel rashly and negligently. Appellants-claimants being illiterate could not trace the registration number, so they without mentioning the particulars of driver in the cause title, filed a claim petition before the Motor Accidents Claims Tribunal, Doda. However, learned Tribunal vide the impugned order dismissed the same for want of impleadment of driver of the offending vehicle being necessary party.

3. Now the moot question for consideration is: whether the driver is a necessary party and the claim petition can be dismissed for want of impleadment of a driver?

4. Admittedly, appellants-claimants did not array driver of the offending vehicle as a party to the claim petition, because they were not aware of the particulars of the driver, but Union of India being the owner of the offending vehicle was made a party to the claim petition.

5. It is profitable to reproduce Sub-clause 1 of Section 165 of the Motor Vehicles Act, 1988 (for short, Act).

“165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.”

6. While going through the provisions of Section 165 read with Section 166 of the Act, one comes to an inescapable conclusion that the claimants have to prove that the accident was out of the use of motor vehicle and the driver is not a necessary party but a proper party.

7. Same question came up for consideration before the High Court of Karnataka in Patel Roadways and anr. vs Manish Chhotalal Thakkar and ors., 2001 ACJ 180 and it has been held that in the absence of a driver as a party, the claim petition cannot be dismissed. It would be relevant to reproduce paragraph 23 hereunder:

“23. But, we do not find any support in Biyabi's case, 2001 ACJ 45 (Karnatka), for appellant's contention that in the absence of driver as a party, a claim petition is liable to be dismissed as not maintainable or that no pending proceeding can go on, unless and until the driver is impleaded as a party. There is no such proposition in the said decision. It should be noticed that nowhere in Biyabi's this Court has held that a claim petition is not maintainable if the driver is not impleaded as party. All that the decision lays down is that no finding adverse to the driver can be recorded unless the driver is a party. It is however not possible to read more into the said decision or hold that in the absence of the driver, claim petition s

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