In claim petitions under Section 166 of the Motor Vehicles Act, the driver is a necessary party because proof of negligence is essential for compensation. Since the owner's liability is vicarious, non-impleadment of the driver, upon timely objection, renders the petition defective and not maintainable.

ORDER :

HIRDESH, J.

This miscellaneous appeal has been filed by the appellants under Section 173 of the Motor Vehicles Act, 1988 , being aggrieved by the Award dated 24/10/2005 passed by the Seventh Additional Member, Motor Accident Claims Tribunal, District- Gwalior (M.P.) (hereinafter referred to as “the Claims Tribunal”) in Claim Case No.05/2005, whereby Claims Tribunal awarded compensation of Rs. 37,000/- to the claimant alongwith interest from the date of filing of claim petition.

2. Brief facts of the case are that in the night at 11.00 pm, claimant was going in marriage procession putting light Gamla on her had. As soon as procession reached in Naya Bazar, white police vehicle bearing registration No. MPO3/3066 came driving rash and negligently and dashed on left leg of claimant and she received injuries. FIR was registered against driver of offending vehicle.

3. Thereafter, claimant filed petition for seeking compensation against appellants. Appellants filed written statement and Claims Tribunal framed issues and after appreciating the evidence awarded compensation in favour of respondent/claimant.

4. Being aggrieved by the impugned award, the appellants have preferred this appeal on the ground that the learned Claims Tribunal committed error awarding compensation in favour of respondent/claimant. It is submitted that respondent/claimant filed claim petition before the Claims Tribunal without impleading driver of offending vehicle. Therefore, claim petition was not maintainable. Hence, it is prayed that impugned award be set-aside.

5. No one appeared on behalf of respondent/claimant.

6. Heard learned counsel for the appellants. and perused the record of the Claims Tribunal.

7. The moot question for consideration is as to whether the Driver of the offending vehicle is a necessary party or not ? In a claim petition, the claimant has to prove that because of negligence on the part of driver of offending vehicle, accident took place. In case if it is found that the claimant himself was negligent, then he will not be entitled for compensation amount. Therefore, in order to award compensation amount to the injured or the legal representatives of the deceased, the claimant must prove that the accident took place on account of rash and negligent act of the Driver. Under these circumstances, in the considered opinion of this Court, the Driver of the offending vehicle is a necessary party. The Supreme Court in the case of Oriental Insurance Company Ltd. Vs Meena Variyal and Ors. reported in (2207) 5 SCC 428 has held as under:-

"24. It was argued by learned counsel for the appellant that since on the finding that the deceased was himself driving the vehicle at the time of the accident, the accident arose due to the negligence of the deceased himself and hence the insurer is not liable for the compensation. Even if the case of the claimant that the car was driven by Mahmood Hasan was true, then also, the claimant had to establish the negligence of the driver before the insured (sic insurer) could be asked to indemnify the insured. The decision in Minu B. Mehta v. Balkrishna Ramchandra Nayan of a three-Judge Bench of this Court was relied on in support.

25. In that decision, this Court considered the question whether in a claim for compensation under the Motor Vehicles Act, 1939 , proof of negligence was essential to support a claim for compensation. On the facts in that case, their Lordships found that the appeal was liable to be dismissed subject to certain directions issued therein. But their Lordships, in the light of the fact that the High Court had discussed the law on the question and it was of some importance, felt that it was necessary to state the position in law. Noticing that the liability of the owner of the car to compensate the victim in a car accident due to negligent driving of his servant is based on the law of tort, the Court discussed the scheme of the Act of 1939 and the law on the question. Regarding the view of t