Holding

The driver was a party to the proceedings, and the Tribunal’s finding of his negligence and the High Court’s affirmation thereof were correct; the appeal is dismissed.

Summary

A bus owned by the Karnataka State Road Transport Corporation collided with a truck, injuring several passengers and the bus driver. Both the passengers and the driver filed claim petitions under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal. The Tribunal held the bus driver negligent, awarded compensation to the passengers, and rejected the driver’s claim. The Karnataka High Court affirmed the Tribunal, stating that although the driver was not formally impleaded, he was an aggrieved party bound by the Tribunal’s finding of negligence. The driver appealed to the Supreme Court, arguing that the findings in the passengers’ cases should not bind his own claim and that he was not a necessary party. The Supreme Court held that the driver was a party (though not a necessary party) and that natural‑justice required his participation; consequently, the Tribunal’s finding of negligence and the High Court’s decision were upheld. The appeal was dismissed.

Issues considered

The driver of a motor vehicle is a necessary party to claim petitions under the Motor Vehicles Act.
Whether the findings of negligence in the passengers' claim petitions bind the driver’s own claim petition.
Whether the driver must be impleaded as a respondent under Section 168 and Rule 235 of the Karnataka Motor Vehicle Rules.
Whether natural justice mandates the driver’s participation in proceedings where negligence is alleged.

Legislation cited

Indian Penal Code, 1860s. 279, s. 338
Motor Vehicles Act, 1988s. 146, s. 147, s. 149, s. 163, s. 166, s. 168, s. 173

Subjects

Motor Vehicles Actclaim petitionnegligencenecessary partynatural justicevicarious liabilityMotor Accident Claims Tribunaldriver liabilitypassenger compensation

Judgment

[2008] 7 S.C.R. 83

MACHINDRANATH KERNATH KASAR A
v.
D.S. MYLARAPPA & ORS.
(Civil Appeal No. 3041 of 2008)
APRIL 29, 2008
(S.B. SINHA AND V.S. SIRPURKAR, JJ.) B
' ..,-'

Motor Vehicles Act, 1988 :
I
s. 166 - Claim petitions by passengers of bus and its
driver - Injured in a collision between a bus and a truck -
1
c
Tribunal holding that bus driver, and not the truck driver, was
driving the vehicle in a rash and negligent manner - Claim
petitions of passengers allowed and that of driver rejected -
High Court rejecting claim petition of bus driver observing that
he having not questioned finding of tribunal in passengers'
0
petitions regarding his negligence and the findings having
J become final, he was bound thereby - Held: Claimant-bus
driver was fully aware of his legal liability ~ He was also
prosecuted in criminal court in that regard - He deposed in
claim petitions filed by injured passengers - He was aware
that his plea of not being negligent was negatived - He, E
therefore, was party to the proceedings initiated by passengers
and could have preferred an appeal thereagainst - Tribunal
and High Court rightly rejected his claim - 'Party' - 'Necessary
party' - 'Aggrived person' - Connotation of - Practice and
Procedure - Words & Phrases. F
In a motor accident stated to have occurred on a
collision between a bus belonging to the State Road
Transport Corporation and a truck, several passengers
traveling in the bus and its driver (the appellant) were
injured. The passengers as also the appellant filed a claim G
petition before the Motor Accident Claims Tribunal. The
appellant was also prosecuted in a criminal case for rash
and negligent driving. However, that case ended in
acquittal. Before the Tribunal the Corporation denied and
83 H
84 SUPREME COURT REPORTS [2008] 7 S.C.R.

A disputed the case of the passengers that the appellant
was driving the bus in a rash and negligent manner. The
appellant also examined himself in the claim petitions filed
by the passengers aind supported the case of the
Corporation. The Tribunal heard both the sets of cases
8 together and allowed the! claim petitions of the passengers
' '
holding that the appellant was driving the bus rashly and
negligently. The Corporation did not challenge the awards
given in favour of the passengers .and the same attained
finality. Rejecting the claim petition of the appellant the
c Tribunal held that it was the appellant, and not the truck
driver, who was driving the vehicle rashly and negligently.
In the appeal filed by the ;~ppellant the High Court affirming
the order of the Tribunal held that as the appellant did not
question correctness of the award of the Tribunal in the
passengers' cases, althiough a party aggrieved, he was
0
bound thereby as regards the finding of negligence.
In the instant appeal filed by the bus driver, it was
contended for the appeillant, inter alia, that the awards
passed by the Tribunal in the cases of the passengers
E were not binding on the appellant; and that the High Court
erred in holding that although the appellant was not a party
in the proceedings, he was an aggrieved person.
Dismissing the appeal, the Court
F HEI O: 1.1Section168 of the MotorVehiclesAct,1988
mandaft=l? the Tribunal to specify the amount which shall
be paid by the owner or the driver of the vehicle involved
in the accident or by both or any of them. As it is imperative
on the part of the Tribunal to specify the amount payable,
G inter alia by the driver of the vehicle, a fortiori he should
·be impleaded as a party in the proceedings. In appropriate
cases, liability of the driv1er may be primary. He may not,
however, be a necessaPJ party in the sense that in his
absence, the entire proceE!ding shall not be vitiated as the
owner of the vehicle was a party in his capacity as a joint
H
MACHINDRANATH KERNATH KASAR v. D.S. 85
MYLARAPPA & ORS.

tort teaser. [para 18 and 33 ] [98-B, C] A
Sitaram Motilal Kalal Vs. Santanuprasad Jaishanker
Bhatt AIR 1966 SC 1697; and Municipal Corporation of
Greater Bombay Vs. Laxman Iyer and Another (2003) 8 SCC

...,.
.
731 - relied on.
Patel Roadways and Another Vs. Manish Chhotalal
B

Thakkar and Others ILR 2000 Kar. 3286; Minu B. Mehta and
Another Vs. Balkrishna Ramchandra Nayan and Another AIR
1977 SC 1248; and New India Assurance Co. Vs Munni Devi
1993 ACJ 1066 (M.P.) and Madhya Pradesh State Road
Transport Corporation Vs. Vaijanti 1995 ACJ 560 (M.P.) - c
referred to.
1.2 In the instant case, the appellant was fully aware
of his legal liability. He was involved in the criminal case.
He deposed in the claim applications filed by the injured
D
persons who were travelling in the bus. He was fully
aware that unless he proves his innocence in regard to
the charge of rash and negligent driving, he would be held
liable therefor, particularly, when he himself had filed the
claim petition. It might have been a matter of sharing of
liability between him and the driver of the truck. He was E
aware that his plea of not being negligent has been
negatived. He, for all intent and purport, therefore, was a
party to the earlier proceedings. If he intended to get rid
of the findings recorded by the Tribunal, he could have
preferred an appeal thereagainst. He did not choose to F
do so. It was in that sense, the High Court cannot be said
to have committed any error in holding tha the appellant
was also an aggrieved person. [para 22 and 25] [100-D, E,
F; 104-B]
2.1 In the instant case, two sets of claims cases were G
heard together, one filed by the passengers of the KSRTC
bus and the other filed by the driver of the said bus. Unless
the finding of negligence in the claim cases of the
passengers was negatived, in the claim cases filed by
the driver himself, the said finding of negligence on the H
86 SUPREME COURT REPORTS [2008] 7 S.C.R.

A part of the driver could not have been varied. [para 23]
'
[101-E, F]
2.2 In the first set of claims cases, the driver of the
bus was held to be negligent and, therefore, a ruling that
the driver is a necessary party would mean that the bus
B driver must necessarily be involved in these proceedings. '

"'
.
· However, the driver of the bus had sufficient opportunity .
to make a representation against the allegation of
negligence as he was examined as RW1 in the claim cases
filed by the passengers, even though he was not formally
c impleaded as a respondent. Hence, the High Court has
correctly held that he was a 'party' to the proceedings.
[para 23] [101-G, H]
2.3 In the claims file!d by the driver of the bus, namely
the appellant, specific allegations were made against the
D
driver of the truck. Hence, the driver of the truck was not
a necessary party. Here, one must bifurcate the terms
'party' and 'necessary party'. 'Party' has been correctly
defined by the High Court in the impugned judgment in
terms of involvement in the proceedings regardless of
E formal impleadment. However, a necessary party as
defined is one who must be joined in an action because,
inter a/ia, complete relief cannot be given to those already
parties their joinder. [para 23] [102-8-E]

F Black's Law Oictiona1y, 5th Edition - referred to.
y·
3.1 The principles of natural justice demand that a
person must be given an opportunity to defend his action.
Appellant not only made averments as regards absence
of negligence on his part; he made specific allegations
G against the driver of the truck. The driver of the truck alone
would have been competent to depose. In a given case,
like the present one, the o,wner of the truck may not defend
the action at all keeping in view the fact that the vehicle
was an insured one. [para 19-20] [98-D, E, F]
H
MACHINDRANATH KERNATH KASAR v. D.S. 87
MYLARAPPA & ORS.

Ha/sbury's Laws of England, 3rd Edn., Vol. 32 - A
referred to.
3.2 First and foremost, natural justice would mandate
involvement of a driver, as an adverse finding on
negligence cannot and should not be made against him
~ without giving him the opportunity to at least make a B
representation as a witness. More importantly, however,
one must look at the kind of evidence which must be led
in such cases. To make a finding on negligence without
involving the driver, as, at least, a witness would vitiate
the proceedings not only on the basis of the fact that the c
driver has not been given an opportunity to make a
representation, but also because the evi.dence to make a
finding regarding negligence would necessarily be
inadequate. On this basis, a driver should be made a
'party' to the proceedings. It was done in the instant case. D
Without contrary evidence led by the appellant or the
Corporation, the finding of negligence on the part of the
appellant cannot be interfered with. Without a deposition
on the part of the truck driver and without his involvement
at least as a witness, an adverse finding on ·negligence E
cannot be made against him. In any event, the truck driver
was examined as RW1. Therefore, in the circumstances,
the driver of the bus was examined in the first set of
claims cases in the same manner as the driver of the truck
was examined in the second set of cases (which has F
---r
been filed by the Appellant). [para 23 and 24] [102-E, F;
103-D-H; 104-A]
4. Both the Tribunal and the High Court have rightly
arrived at a finding of fact that it was the appellant alone
who was rash and negligent in driving of the vehicle. No G
case had been made out to differ with the said finding of
,,;...
fact. [para 25] [104-8, C]
CIVILAPPELLATE 'JURISDICTION: Civil Appeal No. 3041
of 2008.
H
88 SUPREME COURT REPORTS [2008] 7 S.C.R.

A From the final Judgment and Order dated 30.6.2006 of
the High Court of Karnataka at Bangalore in M.F.A. No. 1224/
2000 (MV).
Kiran Suri for the Appellant.
B R.S. Hegde, Chandra Prakash, Rahul Tyagi, J.K. Nayyar,
P.P. Singh, D. Varadarajan and Shiv Prakash Pandey for the
Respondents.

The Judgment of the Court was delivered by
c S.B. SINHA, J. 1. Leave granted.
2. Appellant was a driver of a bus belonging to the
Karnataka State Road Transport Corporation. He was driving
the said vehicle on 18.4.1995. A collision took place between
the said bus,and a truck bearing Registration No. CAM 6939. A
D large number of passengers travelling in the said bus were
injured. Appellant herein was also one of them. The passengers
of the said bus as also the appellant filed applications for
payment of compensation before the Motor Vehicles Accident
Claims Tribqnal, Belgaum in terms of Section 166 of the Motor
E Vehicles Act, 1988 (for short "the Act").
Appellant was also prosecuted for rash and negligent
driving before a criminal court. No such case was initiated
against the driver of the truck. The Corporation denied and
disputed the contention of the passengers that the appellant
F was driving the bus in a rash and negligent manner.
Appellant examined himself in the other claim petitions in
support of the case of the Corporation. He, however, was not
impleaded as a party therein. It is stated that ordinarily drivers
G are not impleaded as parties in the claim cases in the State of
Karnataka, purported to be having regard to the provisions
contained in Rule 235 of the Karnataka Motor Vehicle Rules,
1989.
3. Both sets of claim cases were taken up for hearing
H together by the Tribunal. The awards were also passed on the
_._ MACHINDRANATH KERNATH KASAR v. D.S. 89
MYLARAPPA & ORS. [S.B. SINHA, J.]

same day. A

4. In the claim applications filed by the passengers, despite
the deposition of the appellant to the contrary, a finding of fact
was arrived at, that he was driving the bus rashly and negligently.
~
5. The claim petitions of the passengers were allowed. B
The Corporation did not challenge the correctness of the said
awards. They attained finality. The Tribunal in the case of the
appellant also went into the question once over again to hold
that the accident was caused owing to the rash and negligent
driving of the appellant It was opined that only because he had c
been acquitted of the charges by the criminal court in Section
279 or 338 of the Indian Penal Code, the same was not
conclusive, stating :
" .... It is the version of the petitioner that there was
J. negligence on the part of the truck driver. But the nature of D
damage caused to either vehicles does not corroborate
the same. On perusal of Ex. P3 it is mentioned that the
front show of the KSRTC bus was completely damaged,
head light radiator and front right driver door damaged,
bonnet damaged in the course of accident. On the other E
hand Ex. P3 reveals thatfront right show damaged, front
bumper bent, front right head light broken, front right wind
shield glass broken, radiator cover damaged. Therefore
the nature of damage caused to the truck reveals
unequivocally that only right side portion of the truck was F
damaged. If really the truck driver had come on right side
from Belgaum to Kanbargi road and dashed against the
KSRTC bus, the middle portion of the truck would have
been damaged. On the other hand, the middle portion of
KSRTC bus is damaged as per the recitals in Ex. P3.
G
Therefore the nature of damages caused to the bus reveals
the.fact that it was the bus driver who came towards right
side of the Kanbargi Belgaum road while over taking a
parked truck. The fact that the bus driver was trying to
overtake parked truck is not in dispute."
H
90 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 6. The Tribunal expressly negatived the contention of the
appellant that it was the, truck driver who was driving the truck
rashly and negligently, stating:
"There was no reason for the petitioner being a driver of
the KSRTC bus to take the same to the extreme right side
B of the Belgaum Kanbargi road as to cause accident. It is
also admitted by the petitioner as well as in the petition
itself that the KSRTC driver was t.rying to overtake a parked
lorry. At that time th1:i petitioner being a driver of the KSRTC
should have seen whether there was any vehicle which
c were coming on opposite direction at the time of overtaking
a parked lorry. It appears that there was negligence on the
part of the KSRTC driver himself, and as such it has to be
held that the accident took place due to the negligence of
the petitioner himself. For all these reasons, there is no
D oral and documentary evidence on record to prove the
fact that the accident took place due to the negligence of
the driver of the truck No. CAM.6939. On the other hand
the oral evidence of RW.1 coupled with panchanama and
photos produced at Ex. R2 and R3 clearly proves the fact
E that the accident was due to rash and negligence of the
petitioner himself... "
Inter alia on the aforementioned finding the claim petition
was dismissed.
F 7. He preferred an appeal thereagainst in terms of Section
173 of the Act. A Division Bench of the Karnataka High Court
dismissed the said appeal opining that as the appellant did not
question the correctness of the earlier awards passed by the
Tribunal although he was a party aggrieved, he is bound thereby,
G as regards to the question of negligence. The High Court, thus,
affirmed the views of the Tribunal.
8. Mr. Kiran Suri, learned counsel appearing on behalf of
the appellant submitted;
(i) The High Court erred in holding that although the
H
MACHINDRANATH KERNATH KASAR v. D.S. 91

* MYLARAPPA & ORS. [S.B. SINHA, J.]

appellant was not a party in the proceeding, he was A
an aggrieved person.

(ii) The Awards passed by the Tribunal in the cases of
the passengers were not binding on the appellant.
,.,.
(iii) The Tribunal and consequently the High Court B
committed a serious error insofar as they failed to
take into consideration the panchnama drawn by the
police personnel from a perusal whereof it would be
evident that it was the driver of the truck who was
rash and negligent. c
9. Mr. D. Varadarajan, the learned counsel appearing on
behalf of the respondent Insurance Company, on the other hand,
., would submit:
'
~
(a) Even in this claim petition, the driver of the truck has
D
not been impleaded as a party.
(b} Both theTribunal as also the High Court arrived at a
finding of fact that the appellant alone was negligent,
and as such the same should not be interfered by
this Court with particularly when no evidence was E
adduced on behalf of the appellant or Corporation to
prove contra.

10. Chapter 11 of the Act provides for licensing of drivers of
motor vehicles. The Central Government as also the State
· Government have been conferred powers to make rules under F
various provisions of the said Act.
Chapter 11 of the Act provides for insurance of motor
vehicles against third party risks.
Section 146 providing for necessity of insurance against G
third party risks is in the following terms.
"146. Necessity for insurance against third party risk
- (1) No person shall use, except as a passenger, or
cause or allow any other person to use, a motor vehicle in H
92 SUPREME COURT REPORTS [2008] 7 S.C.R.

A a public place, unless there is in force in relation to the use
of the vehicle by that person or that other person, as the
case may be, a policy of insurance complying with the
requirements of this Chapter:
Provided that in thE! case of a vehicle carrying, or meant
B to carry, dangerous or hazardous goods, there shall also
be a policy of insurance under the Public Liability Insurance
Act, 1991"

Section 147 provides for the requirements of policies and
c limits of liability.

Section 149 imposes duties on insurers to satisfy
judgments and' awards against persons insured in respect of
third party risks.
The insurer having regard to sub-Section (2) of Section
.
D ,)_
149 of the Act would be entitled to avoid its liability in one of the
contingencies specified therein.
Section 149(2)(a) n~ads thus;
"149(1) ***** *****
E
149(2) ***** ******

(a} that there has been a breach of a specified condition
of the policy, being one of the following conditions, namely:-

F (i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of
the contract of insurance a vehicle not covered by a permit
to ply for hire or reward, or

G (b} for organised racing and speed testing, cir
(c) for a purpose not allowed by the permit under which
the vehicle is used, where the vehicle is a transport vehicle,
or
(d} without side-.car being attached where the vehicle is a
H
"
-1
MACHINDRANATH KERNATH KASAR v. D.S. 93
At MYLARAPPA & ORS. [S.B. SINHA, J.]

motor cycle; or A
(ii) a condition excluding driving by a named person or
persons or by any person who is not duly licensed, or by
any person who has been disqualified for holding or
obtaining a driving licence during the period of
~ B
I
disqualification; or
.....

J (iii) a condition excluding liability for injury caused or
contributed to by conditions of war, civil war, riot or civil
commotion; or
(b) that the policy is void on the ground that it was obtained c
by the nondisclosure of a material fact or by a
representation of fact which was false in some material
particular." -
Section 163A provides for special provision as to payment
i D
of compensation on structured formula basis in the event an
accident arising out of the use of motor vehicle has taken place.
11. Chapter XII provides for constitution of Claims Tribunal.
Section 166 envisages filing of an application for grant of
compensation. An application may be filed for payment of E
compensation arising out of an accident of the nature specified
in sub-Section (1) of Section 165.
Sub-section (2) of Section 166 reads as under:
-.,- "Section 166.***** (1) ********** F
(2) Every application under sub-section (1) shall be made,
at the option of the claimant, either to the Claims Tribunal
...
..; having jurisdiction over the area in which the accident
occurred, or to the Claims Tribunal within the local limits
- of whose jurisdiction the claimant resides or carries on G
~ ~ business or within the local limits of whose jurisdiction the
defendant resides, and shall be in such form and contain_
such particulars as may be prescribed:
Provided that where no claim for compensation under
H
94 SUPREME COURT REPORTS [2008] 7 S.C.R.
i'-
A section 140 is made in such application, the application
shall contain a separate statement to that effect I"'
immediately before the signature of the applicant."
,_
:r~·

12. The State of Karnataka in exercise of its rule making
power has made Karnataka Motor Vehicles Rules, 1989, Rule
,.'
B 235 whereof reads as under:
~

!""
"235. Notice to the parties involved - (1) The Claims l:;;;_c;

Tribunal shall on an application made to it by the applicant
send to the owner or the driver of the vehicle or both from
c whom the applicant claims relief and the insurer, a copy of
the application, together with the notice of the date on
which it will dispose of the application, and may call upon
the parties to produce on that date any evidence which
they may wish to tender.
D (2) Where the applicant makes a claim for compensation J_
under Section 140 the Claims Tribunal shall give notice to
the owner and insurer if any, of the vehicle involved in the
accident directing them to appear on the date not later
than 10 days from the date of issue of such notice. The
E date so fixed for such appearance shall also be not later
than fifteen days from the receipt of the claim application
filed by the claimant. Thie Claims Tribunal shall state in
such notice that in casie they fail to appear on such
appointed date, the Tribunal will proceed ex-parte on the )..

F presumption that they have no contention to make against y·

the award of compensation.
13. Rule 232 provides that every application for

G
compensation is to be made by a person specified in Section
166(1) to the Claims Tribunal in Form KMV 63. •
14. Ms. Suri submitted that the Act and the Rules as also
the prescribed forms do not require the driver to be made a
..I,
--
party and in that view of the matter, Rule 235 should be read
disjunctively. Our attention in this behalf has been drawn to a
decision of the Division Bench of the Karnataka High Court in
H
MACHINDRANATH KERNATH KASAR v. D.S. 95
MYLARAPPA & ORS. [S.B. SINHA, J.]

Patel Roadways and Another Vs. Manish Chhotalal Thakkar A
and Others [ILR 2000 Kar. 3286].
15. The learned Judges in Patel Roadways (supra) opined
that when the form of the claim petition does not require a
\ claimant to even name the driver, a claim petition would be
~
maintainable even without impleading the driver. B

. The Bench proceeded to consider the general law of tort
and the liability of joint tort feasers as contained in various text
books. The Bench also noticed the decision of this Court in Minu.
B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and c
Another [AIR 1977 SC 1248), wherein it was held:
"The liability of the owner of the car to compensate the
victim in a car accident due to the negligent driving of his
servant is based on the Law of Torts. Regarding the
i. negligence of the servant the owner is made liable on the D
basis of vicarious liability. Before the master could be
made liable it is necessary to prove that the servant was
acting during the course of his employment and that he
was negligent. .....
This plea ignores the basic requirements of the owner's E
liability and the claimants right to receive compensation.
The owners' liability arises out of his failure to discharge
a duty cast on him by law. The right to receive
-~
compensation can only be against a person who is bound
to compensate due to the failure to perform a legal F
obligation. If a person is not liable legally he is under no
duty to compensate anyone else. The Claims Tribunal is
a Tribunal constituted by the State Government for
expeditious disposal of the motor claims. The general law
.. ~
applicable is only common law and the Law of Torts. If G
under the law a person becomes legally liable then the
person suffering the injuries is entitled to be compensated
and the Tribunal is authorised to determine the amount of
compensation which appears to be just. The plea that
Claims Tribunal is entitled to award compensation which H
96 SUPREME COURT REPORTS [2008] 7 S.C.R.

A appears to be just when it is satisfied on proof of injury to
a third party arising out of the use of a vehicle on a public
place without proof of negligence if accepted would lead
to strange results."
The Kerala, Bombay, Madras, Allahabad, Patna, Punjab
B and Haryana and Delhi High Courts, on the one hand, noticing
a large number of decisions held that drivers are not necessary
parties, the Madhya Pradesh High Court, on the other hand, in
New India Assurance Co. Vs Munni Devi [1993 ACJ 1066 ·
(M.P.)] and Madhya Pradesh State Road Transport
C Corporation Vs. Vaijanti [(1995 ACJ 560 (M.P.)] held that the
driver of the offending vehicle would be a necessary party. The
Division Bench of the Kamataka High Court further held that
under the Madhya Pradesh Motor Vehicle Rules, the driver was
required to be impleaded as a party. It was, however, stated:
D
" .... We do not however agree with the said two decisions,
if they were to be read as laying down a general principle
that under Law of Torts, the master cannot be sued to
enforce his vicarious liability for the negligence of the
servant, without impleading the servant."
E
On the aforementioned finding, the following law was laid
down.
"(a) Neither the Motor Vehicles Act nor Rules thereunder
require the driver to be impleaded as a party to the claim
F petition, (b) Under Law of Torts, the owner and driver of
the Motor Vehicle being joint tortfeasors, who are jointly
and severally liable for the negligence of the driver, the
claimant can sue either the owner or the driver or both.
But, whether driver is impleaded or not, a owner (master)
G can be made vicariously liable for the acts of his driver
(servant), only by proving negligence on the part of the
driver (servant), (c) Therefore a claim petition can be
maintained against the owner and insurer of the vehicle
causing the accident, without impleading the driver.
H However proving the negligence of the driver is a condition
MACHINDRANATH KERNATH KASAR v. D.S. 97
MYLARAPPA & ORS. [S.B. SINHA, J.]
Alt·
precedent to make the owner vicariously liable for the act A
of the driver, (d) But where the driver is not impleaded as
a party, no decree or award can be made against him. A
driver can be held liable personally only when he is
impleaded as a party and notice of the proceedings is
•-i issued to him." B
16. Motor Vehicles Act was enacted to consolidate and
amend the law relating to motor vehicles. When a law is enacted
to consolidate and amend the law, the Legislature not only takes
into consideration the law as it has then been existing but also
the law which was prevailing prior thereto. A suit for damages c
arises out of a tortuous action. For the purpose of such an action,
although, there is no statutory definition of negligence, ordinarily,
it would mean omission of duty caused either by omission to do
something which a reasonable man guided upon those
considerations, who ordinarily by reason of conduct of human D
~ affairs would do or be obligated to, or by doing something which
a reasonable or prudent man would not do. See Municipal
Corporation of Greater Bombay Vs. ~Laxman Iyer and Another
[(2003) 8 sec 731, para 6]

17. When a damage is caused upon act of negligence on E
the part of a person, the said person is primarily held to be liable
for payment of damages. The owner of the vehicle would be
liable as he has permitted the use thereof. To that effect only
under the Motor Vehicles Act, both driver and owner would be
.,, jointly liable . F

This, however, would not mean that they are joint tort
teasers in the strict sense of the term. There exists a distinction
between the liability of the owner of a vehicle which was used in
commission of the accident and that of the driver for whose
G
negligence the accident was caused, but the same would not
,,.,. mean that the owner and the driver are joint tort teasers in the
sense as it is ordinarily understood.
18. The Karnataka Rules, therefore, were required to be
construed having regard to the appropriate interpretative H
98 SUPREME COURT REPORTS (2008] 7 S.C.R.

-...
A principles applicable thereto. Common law principles were
therefor' required to be kept in mind. In this case, we are not
required to lay down a law that even in absence of any rule,
L
. impleadment of the driver would be imperative.

It is however, of some interest to note the provisions of
B Section 168 of the Motor Vehicles Act. In terms of this
~
aforementioned provision, the Tribunal is mandatorily required
to specify the amount which shall be paid by the owner or driver
of the vehicle involved in the accident or by or any of them. As it
is imperative on the part of the Tribunal to specify the amount
c payable inter alia by the driver olf the vehicle, a fortiori he should
be impleaded as a party in the proceeding. He may not,
however, be a necessary party in the sense that in his absence,
the entire proceeding shall not be vitiated as the owner of the
vehicle was a party in his capacity as a joint tort teaser.
D
19. Appellant not only made aveiments as regards absence
of negligence on his part; he made specific allegations against
the driver of the truck. The driver ot the truck alone would have
been competent to depose. In a given case, like the present
one, the owner of the truck may not defend the action at all
E keeping in view the fact that the vehicle was an insured one.
There are some decisions of this Court, where even a plea has
been raised that the insured company would not be an aggrieved
person in such an extent althoU1gh such a contention has been
negatived by this Court.
F y·
20. The pdnciples of natural justice demand that a person
must be given an opportunity to defend his action.
There are cases and cases. In a given situation, the owner
of a vehicle may take the plea that the driver had used the vehicle
G without his authority or permission and in that view of the matter,
he is not liable for the tortuous acts of the driver at all. There are
~
---
innumerable instances where the 'insurance Company had been
held to be absolved of its liability to compensate the owner of
the vehicle inter alia on the premise that the driver did not hold a
H valid license. The legal principle was evolved on the premise
MACHINDRANATH KERNATH KASAR v. D.S. 99
MYLARAPPA & ORS. [S.B. SINHA, J.]

~ that the owner had a duty to see that the person authorized to A
drive the vehicle is otherwise eligible to do so or entitled to do
' '
so in law.
21. In Sitaram Motilal Kalal Vs. Santanuprasad
Jaishanker Bhatt [AIR 1966 SC 1697] this Court opined that
B
•., the master is vicariously liable for the acts of his servants acting
in the course of his employment stating:
"27. The law is settled that a master is vicariously liable for
the acts of his servant acting in the course of his
employment. Unless the act is done in the course of c
employment, the servant's act does not make the employer
liable. In other words, for the master's liability to arise, the
act must be a wrongful act a_uthorised by the master or a
wrongful and unauthorised mode of doing some act
authorized by the master. The driver of a car taking the car
D
on the master's business makes him vicariously liable if
J, he commits an accident. But it is equally well settled that
if the servant, at the time of the accident, is not acting
within the course of his employment but is doing something
for himself the master is not liable ...... "
E
In Minu B. Mehta (supra), this Court noticed:
"28. In Halsbury's Laws of England, 3rd Edn., Vol. 32, at
para 751 at p. 366 the nature of insurance required is
stated as follows:
F
''( "The conditions to be fulfilled in order to render the use of
,,; a motor vehicle lawful are (1) that there must be a policy
of insurance in force in relation to the use of the vehicle on
a road, and (2) that it must be a policy complying with the
relevant statutory requirements."
G
At para 752 at p. 366 the general nature of liabilities
;... required to be covered are stated as under:
"In order to comply with the statutory requirements, a policy
must provide insurance cover in respect ot any liability
H
100 SUPREME COURT REPORTS [2008] 7 S.C.R.

A which may be incurred by such person, persons or classes
of persons as are specified in the. policy, in respect of the
death of, or bodily injury to. any person (subject to specific
exceptions) caused by or arising out of, the use of the
vehicle on a road."
B
The authorised insurers issuing a policy pursuant to the ~
statutory requirements are obliged to indemnify the person
specified in the policy in respect of any liability which the
policy purports to cover in the case of that person or
classes of persons . . . . (Para 758 at p. 369). These
c passages clearly indicate that the nature of the liability
required to be covered is the liability which may be incurred
by or arising out of the use of·a vehicle on a road by the
person."

Thus, in appropriate cases, the liability of the driver would
D
be primary.
22. Appellant was fully aware of his legal liability. He was
involved in the criminal case. He deposed in the claim
applications filed by the injured persons who were travelling in
E the bus. He was fully aware that unless he proves his innocence
in regard to the charge of rash and negligent driving, he would
be held liable therefor, particularly when he himself had filed the
claim petition. It might have been a matter of sharing of liability
between him and the driver of the truck. He was aware that his
F plea that he was not negligent has been negatived. He, for all
intent and purport, thereforn, was a party to the earlier Y'
proceedings. If he intended to get rid of the findings recorded
by the Tribunal, he could have preferred an appeal thereagainst.
He did not choose to do so.
G 23. This case gives rise to an anomalous situation. The
Corporation has been found to be liable to pay the amount of
compensation claimed by the passengers of the bus only
because the appellant was found to be rash and negligent in
drivihg. The law cannot be construed in such a manner so as to
H leadito such a conclusion as the same court in this case which
MACHINDRANATH KERNATH KASAR v. D.S. 101
MYLARAPPA & ORS. [S.B. SINHA, J.]
.,_)-
was being heard simultaneously held that he was not negligent A
and the driver of the truck was negligent so as to fasten the
liability also on the owner of the truck. When an accident has
taken place, the court was required to hold either the driver of
the bus or the truck responsible; no case of contributor-Y
negligence having been made out. The result would be that the B
•
··-r' Corporation would be liable to pay compensation in both t~e
cases although findings in each of them were contradictory to
or inconsistent with each other. Similar would be the position of
the driver of the truck. In one case, he for the same act would
stand exonerated and in another case, liability to pay c
compensation would be fastened on him., Precisely that was.
the purpose for which the Tribunals heard both the matters
together and also delivered judgments one after the ~ther. It was
· necessary to apply the comity or amity or the principles
analogous thereto.
D
-~ The issue to be examined herein is whether in the claims
.cases before the Motor Vehicles Accident Claims Tribunal, the
d_river of a vehicle who has been accused of negligehce is a
necessary party to the proceedings or whether the owner alone
can be impleaded. E
In this case, two sets of claims cases were heard together,
one filed by the passengers of the KSRTC bus and the other
filed by the driver of the said bus. In short, unless the finding of
negligence in the claim cases of the passengers was negatived,
in the claim cases filed by the driver himself, the said finding of F
negligence on the part of the driver could not have been varied.
The analysis of our findings aforementioned is:-
(i) In the first set
. of claims
. cases, the driver.
.. of the bus
was held to be negligent and, therefore, a ruling that G
the driver is a necessary party would mean that the
.- bus driver must necessarily be involved in these
proceedings. However; the driver of. the bus had
sufficient opportunity to make a 'representation
against the allegation of negligence as· he· was H
102 SUPREME COURT REPORTS [2008] 7 S.C.R.

A examined as RW1 in the claim cases filed by the
passengers, even though he was not formally
impleaded as a Respondent. Hence, the High Court
has correctly held that he was a 'party' to the
proceedings.
B (ii) In the claims filed by the driver of the bus (namely the
Appellant herein), specific allegations were made
against the driver of the truck. Hence, the question is
whether the driver of the truck must necessarily be
made a party to the proceedings. He was not.
c
Here, one must bifurcate the terms 'party' and 'necessary
party'. 'Party' has been correctly defined by the High Court in
the impugned judgment in terms of involvement in the
proceedings regardless of formal impleadment. However, a
necessary party has been defined in the 5th edition of Black's
0
Law Dictionary as follows:-
"In pleading and practice, those persons who must be
joined in an action because, inter alia, complete relief
cannot be given to those already parties without their
E joinder. Fed. R. Civil P. 19 (a) ... "
First and foremost, as has been stated in the body of the
judgment, natural justice would mandate involvement of a driver,
as an adverse finding on negligence cannot and should not be
made against him without giving him the opportunity to at least
F make a representation as a witness.
More importantly, however, one must look at the kind of
evidence which must be led in such cases. Appellants have, as
noticed hereinbefore, relied on Patel Roadways (supra) to try
G and prove that the driver need not be a party. Firstly, this case
only relates to formally impleading the driver as a party. However,
the fact that joint tortfeasors have been mentioned in the judgment
is relevant.
· Joint tortfeasors, as per the 1oth edition of Charlesworth &
H Pe(cy on Negligence, have been described as under:-
MACHINDRANATH KERNATH KASAR v. D.S. 103
MYLARAPPA & ORS. [S.B. SINHA, J.]
..-_)-
"Wrongdoers are deemed to be joint tortfeasors, within A
the meaning of the rule, where the cause oLaction against
each of them in the same, namely that the same evidence
would support an action against them, individually ...
Accordingly, they will be jointly liable for a tort which they
•,.
.
both commit or for which they are responsible because
the law imputes the commission of the same wrongful act
B

to two or more persons at the same time. This occurs in
cases of (a) agency; (b) vicarious liability; and (c) where
a tort is committed in ttie course of a joint act, whilst
pursuing a common purpose agreed between them." c
Hence, employer and employee, the former being
vicariously liable while the latter being primarily liable are joint
tortfeasors and are therefore jointly and severally liable.
However, by virtue of the fact that the cause of action is the same
and that the same evidence would support an action against D
either, it follows that this evidence must necessarily include an
examination of the driver who is primarily liable. To make a
finding on negligence without involving the driver as at least a
witness would vitiate the proceedings not only on the basis of
the fact that the driver has not been given an opportunity to make E
a .representation, but also because the evidence to make a
finding regarding negligence would necessarily be inadequate.
24. On this basis, a driver should be made a 'party' to the
proceedings. It was done in the instant case. In the present case,
.. 'I the contention of the counsel for the respondent Insurance F
Company, namely that without contrary evidence led by the
appellant or Corporation, the finding of negligence on the part
of the appellant cannot be interfered with, must be upheld.
Without a deposition on the part of the truck driver and without
his involvement at least as a witness, an adverse finding on G
negligence cannot be made against him.
_,..-·
In any event, the truck driver was examined as RW1 ..
Therefore, in the circumstances, the driver of the bus was
examined in the first set of claims cases in the same manner as H
104 SUPREME COURT REPORTS (2008] 7 S C.R.

A the driver of the truck was E~xamined in the second set of cases
(which has been filed by the Appellant).
25. lfwe accept the contention of Ms. Suri that the Tribunal
committed an error, in effect and substance, we will be holding
that the lribunal committed an illegality in awarding
8 compensation to the passengers of the bus. It was in that sense,
the High Court cannot be said to have committed any error in
holding that the appellant was also an aggrieved person.
Furthermore, both the Tribunal and the High Court have rightly
arri~ed at a finding of fact that it was the appellant alone who /

C was rash and negligent in driving of the vehicle. No case had .
been made out to differ with the said finding of fact.
26. For the reasons aforementioned, the impugned
judgment does not suffer from any legal infirmity. It is therefore,
dismissed. However, in the facts and circumstances of this case,
0
there shall be no order as to costs.
R.P. Appeal dismissed.