THIRATH PRASAD RAM MILAN Vs. MOHANLAL BUDDHA

JUDGEMENT

(1.) APPELLANTS are the sons of Ram Milan, who died in an accident on 30-3-1980. His widow and children filed a claim petition before the Motor Accident Claims Tribunal, Satna against the driver, owner and insurer of the vehicle. The owner of the vehicle Ramchandra died on 20-3-1983. The first claimant also died. On 10-4-1985, the remaining claimants filed two applications one to implead the legal representatives of the owner and the other, to refer to themselves as the legal representatives of the rest claimant. By that time, the proceedings had become abated. On that ground, the application to implead the L. Rs. of deceased owner was dismissed. However, the other application was allowed. The Tribunal dismissed the claim petition in its entirety on the ground of abatement. This award is now under challenge.

(2.) THE only contention urged by the learned counsel for the appellants is that the claim against the driver, owner and the insurer is joint and several and, therefore, the Tribunal should have dismissed the claim petition only against the owner and should have proceeded the claim against the driver and the insurer. The liability of the insurer is only as an indemnifier under the terms of the insurance policy. The rigour of the law of indemnity has been to some extent reduced by Section 96 of the Motor Vehicles Act, 1939 corresponding to Section 149 of the Motor Vehicles Act, 1988. Under these provisions, the insurer has a duty to satisfy judgments and awards covered by insurance against any person insured by a policy in respect of any liability required to be covered by a policy under the statute and the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor. Up to the limit of liability of the insurer, the liability co-exists with that of the owner or the insured. If there cannot be a judgment and award against the insured, there will be no liability for the insurer to make any payment. Therefore, the Tribunal should not have proceeded against the insurer, where the claim has abated against the insured. But, the driver of the vehicle is primarily responsible in the matter, if allegations of rashness and negligence are made out. The liability of the owner is only constructive as an employer of the driver. Therefore, the Tribunal should have proceeded with the claim petition against the driver. Dismissal of the claim petition in its entirety is certainly illegal. The fact that claim has abated against the owner and consequently against the insurer is no reason to hold that the claim against the driver has also abated.

(3.) IN the result, the judgment and award of the Tribunal are modified. The dismissal of the claim against the owner and the insurer is confirmed and the dismissal of the claim against the driver is set aside. The claim petition is remanded back to the Tribunal for proceeding against the driver, in accordance with law. The appeal is allowed in part, but without costs.