1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1180 OF 1996 Sikhandar Khan Rashid Khan .. Appellant V/s 1. Ansar Baig Sabdar Baig 2. United India Insurance Co. 3. Mukesh Thowordas Jaisinghani 4. New India Assurance Co. Ltd. .. Respondents Mr. P.B. Shah for the appellant. Mr. D.R. Mahadik i/b Mr. S.K. Singh for respondent no.4. CORAM : D.G. KARNIK, J. DATE : 8TH JULY 2010 ORAL JUDGMENT : 1. This appeal is directed against the judgment and order dated 18 October 1993 passed by the Member, Motor Accident Claims Tribunal, Nasik (for short “the Tribunal”) awarding compensation of Rs.1,35,000/- to the respondent no.1. 2. Appellant is the owner of a truck bearing registration no. MWA 5169. On 26 April 1988, the respondent no.1 was travelling in the truck belonging to the appellant on Bombay Agra Road. As 2 the appellant’s truck was crossing culvert over the Pud Ohol Nala, it collided with another truck, bearing registration no. MWU 7175, coming from the opposite direction. In the collusion, the respondent no.1 suffered injuries to his both legs. The respondent no.1 was brought to the Civil Hospital, Nasik and was thereafter shifted to a hospital at Mumbai where his right leg was amputed above the knee and the left leg was amputed below the knee. After recovering from the operation, he filed a claim application before the Motor Accidents Claims Tribunal (for short “the Tribunal”) against the appellant as well as the owner of the other truck by joining the insurance companies of both the trucks as parties to the claim application. 3. After considering the evidence adduced by the parties, the Tribunal came to the conclusion that the drivers of both the trucks were negligent and accordingly passed an award of Rs.1,35,000/- in favour of the respondent no.1. Respondent nos.2 being the owner of the other truck and his insurance company as well as the appellant were held to be liable jointly and severally. The insurance company of the appellant’s truck was, however, absolved of the liability as the respondent no.1 was held to be travelling in 3 the truck belonging to the appellant in breach of the conditions of policy of insurance. Aggrieved by the decision, the appellant is in appeal. 4. Learned counsel for the appellant firstly submitted that contributory negligence on the part of the appellant’s driver was not proved. The truck belonging to the appellant was being driven at a moderate speed. The truck belonging to the respondent no.2, which was coming in the opposite direction, was driven at a high and excessive speed and the accident was caused solely on account of negligence of the driver of the oncoming truck. The driver of the appellant’s truck had even given a signal to the oncoming truck and that showed that the driver of the appellant’s truck was careful. I am unable to agree. The accident took place at or near the culvert and the appellant’s truck even hit the wall of the culvert. Road at the culvert is usually narrower and has walls built on either side of the culvert which further narrows the road. In any event, while crossing the culvert over a nala, the driver of the motor vehicle is expected to be more careful and overtaking at or near the culvert is risky. The driver of a motor vehicle is expected to slow down and cross the culvert carefully especially when there 4 is an oncoming vehicle. In the present case, the very fact that the appellant’s truck hit the wall of the culvert shows contributory negligence on the part of the appellant’s driver. The Tribunal, after careful examination of the evidence has come to the conclusion, and in my view rightly, that the drivers of both the trucks were negligent in driving. There is no substance in the argument that the driver of the appellant’s truck was not negligent. 5. Learned counsel for the appellant then submitted that the insurance company of the appellant has wrongly been absolved. The burden of proving breach of any condition of the insurance policy was on the insurance company and it had not discharged the burden. There is no dispute that the appellant’s truck was a goods vehicle. According to the appellant, the respondent no.1 was working as a cleaner and was not a gratuitous passenger. The respondent no.1 being a cleaner was entitled to travel with the truck and the appellant could not be in breach of any condition of the insurance policy by allowing the respondent no.1 to travel in the truck as a cleaner – an employee. Burden of proving that the respondent no.1 was an employee and was entitled to travel as such in the goods truck was of the appellant. The appellant having 5 failed to discharge the burden, I find no error in the view taken by the Tribunal in holding that the respondent no.2, who was the insurance company of the appellant, was not liable. 6. Learned counsel for the appellant lastly contended that the claim petition as not maintainable and was liable to be dismissed for non-joinder of the necessary parties as the driver of the appellant’s truck was not joined as a party to the claim petition. He submitted that the driver being a person who negligently drove the the vehicle was primarily liable in tort and the liability of the appellant was only a vicarious liability. Unless and until the liability was proved against the driver who was guilty of negligence, the appellant being the owner cannot be held to be vicariously liable. 7. In my view, the submission cannot be accepted for the reasons indicated below. Common law of torts is to an extent modified by the Motor Vehicles Act, 1988. Section 140 of the Motor Vehicles Act (for short “the Act”) imposes “no fault liability” on the owner. Sub-section (1) of section 140 of the Act reads thus:- 6 140. Liability to pay compensation in certain cases on the principle of no fault.- (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.” (underlining supplied) A bare look on sub-section (1) of section 140 of the Act shows that the liability to pay compensation on account of death or permanent disablement of any person resulting from an accident arising out of the use of a motor vehicle is of the owner of the motor vehicle. The liability under section 140 of the Act, commonly known as “no fault liability” arises merely on account of death or permanent disability suffered by any person resulting from an accident arising out of use of a motor vehicle. No fault liability is of the owner and that is a primary liability and is not a vicarious liability arising out of the negligence on the part of any person including the driver. 7 8. Section 166 of the Act enables the victim of a motor accident to make an application for compensation. Section 158(6) of the Act imposes a duty on the officer in-charge of a police station to forward a copy of any information regarding any accident involving death or bodily injury to any person recorded by him to the Claims Tribunal having jurisdiction in the area. Sub-section (4) thereof says that the Claims Tribunal shall treat any report of accident forwarded to it under sub-section (6) of section 158 of the Act as an application for compensation under the Act. If the report of a police officer is to be treated as an application for compensation, obviously such application cannot be dismissed even if it (the police report) does not name the driver who may in some cases be absconding and whose name and address may not be known. If there would be no requirement of naming the driver in the report of the police officer under section 158(6) of the Act, different rules and standards cannot be applied for a claim application made by the victim against the owner of the motor vehicle. Thus, in my view, the law relating to the requirement of joining the driver of a motor vehicle as a party to the claim application which arises under the common law of torts and the 8 principle of the owner’s liability being only vicarious the owner cannot be liable unless the driver is a party to the petition stands modified so far as the claim application under the Motor Vehicles Act is concerned. The claim application against the owner of the motor vehicle cannot be dismissed merely on the ground that the driver of the motor vehicle involved in the accident was not joined as a party to the application. 9. No other point was urged. 10. There is no merit in the appeal which is hereby dismissed. (D.G. KARNIK, J.)