Point of law: Motor Accident - Contributory Negligence – Driver of offending vehicle not impleaded – Held, plea of non-impleadment of driver having adverse impact on the case of the claimants will not be applicable to the present facts and circumstances of the case, therefore, insurance company having failed to substantiate both the grounds namely that of contributory negligence and retrospective application of the amended Rules

JUDGMENT :

Vivek Agarwal,J.

1. Heard Sri Rakesh Bahadur, learned counsel for appellant-insurance company, Sri Yashwant Pratap Singh, learned counsel for claimant-respondent no. 1 and Sri Awadhesh Kumar Malviya, learned counsel for respondent no. 6.

2. This appeal has been filed by the insurance company being aggrieved of award dated 05.03.2016 passed by learned Motor Accident Claims Tribunal/District Judge, Deoria in MACP No. 374 of 2011, on the ground that driver of the offending vehicle was not impleaded as a party and further that aspect of contributory negligence has not been considered by the learned claims tribunal, inasmuch as in the light of the inspection report, available on record, there was dent on the right hand side rear bumper of the vehicle bearing registration no. UP 61 T 0065 and therefore, motorcycle, on which deceased was travelling, had hit the truck from behind and on such premise, it is submitted that finding of contributory negligence should have been recorded by the learned claims tribunal.

3. Placing reliance on the provisions contained in Rule 204(7) of the U.P. Motor Vehicle Rules, 1998, it is submitted that Rules provide for impleadment of the driver of the vehicle involved in the accident to be necessarily a party in the application for compensation filed under Section 166 of the Act. Reliance is placed on the judgment of Hon'ble Supreme Court in case of Machindranath Kernath Kasar vs. D.S. Mylarappa and Others; (2008) 13 SCC 198, referring to Para-42, it is submitted that "Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them in the same, namely that the same evidence would support an action against them, individually Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and

(c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them."

Hence, employer and employee, the former being vicariously liable while the latter being primarily liable are joint tortfeasors and are therefore jointly and severally liable. However, by virtue of the fact that the cause of action is the same and that the same evidence would support an action against either, it follows that this evidence must necessarily include an examination of the driver who is primarily liable. To make a finding on negligence without involving the driver as at least a witness would vitiate the proceedings not only on the basis of the fact that the driver has not been given an opportunity to make a representation, but also because the evidence to make a finding regarding negligence would necessarily be inadequate."

4. Learned counsel for claimants, on the other hand, submits that as far as Rule 204 sub-rule (7) is concerned, that became effective from 26th September, 2011, whereas in the present case, accident had taken place on 04.07.2011, therefore, these Rules will not have any retrospective effect. Further, it is submitted that plea of contributory negligence is not made out, just due to the fact that an inspection report was produced, in which there is mention of damage to the rear bumper of the truck, inasmuch as author of the report was not examined. It is also submitted that non-impleadment of the driver will not be fatal to the case of the claimants, especially, when no such issue was framed before the learned claims tribunal and therefore, now at this stage, for the first time, raising a plea of this nature is not maintainable.

5. After hearing learned counsel for the parties and going through the record, plea of contributory negligence is not made out merely on the strength of inspection report on two grounds firstly, author of the inspection report was not examined before the court of law and second