NEW INDIA ASSURANCE CO LTD Vs. MAHILA MUNNIDEVI

JUDGEMENT

(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.) 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 Vehicles 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.