(1.) Heard learned counsel for the petitioner and Shri S.K. Mehrotra,learned counsel for respondent no.4 National Insurance Company. No one has appeared on behalf of respondent nos. 2 and 3 the owners of the offending tractor. The claimants petitioners have filed M.A.C. case No.617 of 2008 Smt. Saroj and others vs. Shri Rambir Singh and others before Motor Accident Claim Tribunal/Additional District Judge, Court No.6, Agra claiming compensation in respect of death of Tejveer Singh. The case set up in the claim petition is that Tejveer Singh was going in a Jeep and the tractor beloning to opposite parties nos. 1 and 2 (respondent nos. 2 and 3 in this writ petition) came from the opposite direction with a very fast speed and hit the jeep in which Jaiveer Singh was sitting due to which he died. National Insurance Company was also impleaded as opposite party no.3 in the claim petition (which is respondent no.4 in this writ petition) which took the stand that accident occurred due to negligence of the jeep driver. Issues were framed in the case. The Insurance Company filed application for framing of additional issue. Accordingly on 11.8.2009 the tribunal below framed issue no.7 to the effect as to whether the accident was the result of negligence of driver of the jeep. It is also mentioned in the said order that learned counsel for all the parties stated that they did not intend to adduce any evidence in respect of newly framed issue no.7. Thereafter 17.8.2009 was fixed for arguments, as evidence had already concluded. On 17.8.2009 arguments were heard and 31.8.2009 was fixed for delivery of judgment. On 31.8.2009 the tribunal instead of delivering the judgment passed an order that in view of additional issue framed on 11.8.2009 it was necessary to provide opportunity of hearing to the driver of the jeep and that issue no.4 also related to the said aspect which was to the effect as to whether the claim petition was bad for non-joinder of owner driver and Beema Company of the jeep (in which deceased was sitting). The said order dated 31.8.2009 has been challenged through this writ petition.
(2.) Issue no.4 was regarding the effect of non joinder of driver owner and Insurance company of the jeep. Accordingly, there was no no need to pass order of impleadment of driver of the jeep. No party had applied for his impleadment. It is correct that even in the absence of any application, the court can suomotu implead any party under Order 1 Rule 10 C.P.C. and the principles thereof however, suomotu power is to be exercised sparingly. Learned counsel for the Insurance company has cited an authority of Madhya Pradesh High Court reported in Har Charan Singh vs. Turza Bai, 1994 LawSuit(MP) 20 para 12. In the said case wrong person was shown to be owner of the truck. Accordingly, the court directed that the rightful owner should be impleaded. The other authority cited is reported in T.O. Anthony vs. Karvarnan and others, 2008 2 AWC 1151 . In the said case the concept of composite negligence has been discussed. In the said authority Supreme Court has drawn distinction between composite negligence and contributory negligence and has held that when the negligence is not of injured or the deceased then it is composite negligence and not contributory negligence and in case of composite negligence claimant has got a right to file the case against any of the wrong doers as in such situation the liability is joint and several of both the wrong doers. Para-6 of the said authority is quoted below:-
(3.) In my opinion when after framing of the additional issue no.7, learned counsel for all the parties stated that they did not want to lead any evidence it was not at all necessary to direct impleadment of the driver of the jeep for deciding his negligence if any. Moreover in order to decide the negligence of the driver of a vehicle it was not necessary to examine him. The party which asserts negligence of a driver of a vehicle involved in an accident is required to prove it by showing that it was moving on the wrong side or it was running at a high speed etc.