The driver of a vehicle involved in an accident is a necessary party in a claim petition filed under Section 110-B of the Motor Vehicles Act, 1939, and the Claims Tribunal has the discretion to apportion liability among the owner, driver, and insurer.

T.N. Singh, J.

1. Today, in this matter, Mr. Balwant Singh has appeared who could not be heard on the last date in civil revision No. 133 of 1991, disposed of on 8.8.1992 by severing connection of that from this revision.

2. He has submitted that it is his duty to bring to my notice the fact that there is a decision to the contrary in Bhagwati Prasad v. Oriental Fire & General Ins. Co. Ltd. 1989 (1) MPWN 6. It has been submitted that view was taken in that case that driver was not necessary party while, in the order aforesaid dated 8.8.1992 as also in the case of Shahzad Khan, 1986 (1) MPWN 28, it has been held that driver is a necessary party.

3. However, I do not think if it is at all necessary to refer to the larger Bench the question to resolve the controversy because there is no controversy at all as will be seen presently. The question of joinder of parties had come up before me in revision in both cases in Shahzad Khan, 1986 (1) MPWN 28 and in the last case decided on 8.8.1992 in civil revision No. 133 of 1991. On the other hand, Bhagwati Prasad's case, 1989 (1) MPWN 6, was one which was the decision rendered in appeal when the award itself was challenged and validity of that was challenged, among others, on the ground that driver's non-impleadment vitiated the award. It was in that context that in the case of Bhagwati Prasad, 1989 (1) MPWN 6, the court observed that the award would not be vitiated and the appeal was dismissed.

4. It is true that there were some observations in that decision and those I extract:

It is well settled that liability of the owner, driver and insurer under Section 110-B of the Motor Vehicles Act, 1939, is joint and several. The liability being several as well, the driver is not a necessary party and even in his absence, the owner and the insurer can be held liable upon proof of the driver's negligence, besides other facts, depending upon the circumstances of the case.

(Emphasis added)

It bears reiteration only of the position that challenge to the award passed on merit was rebuffed and for that ground of driver's non-impleadment was rejected holding that the driver's negligence had been established and for that reference was made to other facts and circumstances of the case to hold that the owner or insurer could be and were to be held liable and they were accordingly held liable by the decision rendered in the appeal. In so far as the reference to the language of Section 110-B is concerned, there appears to be some slip in the judgment, but I am not clear about that because the full report of the judgment is not before me and the decision is reported in short note. It cannot be disputed that on its language, Section 110-B of the Motor Vehicle's Act, 1939, left it to the discretion of the Claims Tribunal as to how to make the award, by contemplating, "in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be." Not in all cases the liability is joint; and a joint award need not always be passed. It is the Tribunal's discretion to apportion lawfully the liability or saddle in its entirety on 'all or anyone of them'-"the insurer or the owner or the driver."

5. I am, therefore, of the view that it is not necessary to reconsider the decision I rendered on 8.8.1992 in civil revision No. 133 of 1991, but, on the other hand, I consider it a fit occasion to reiterate the view rather that the statutory provision is clear and the law of Torts is more clear, as stated by me in the order dated 8.8.1992. I had also stated that requirement of joinder of the driver in a claim petition has been made obligatory under the Rules and the State Government having power to frame Rules and having laid down provisions in that regard, courts have no jurisdiction to legislate in a manner as will make ineffective the force of any rule framed by the State Government which become