By means of present writ petition the petitioner has challenge the order dated 7.5.2002 passed by the Additional District Judge (VII), Raebarely/Motor Accidents Claims Tribunal, Raebarelly in Claim Petition No.55 of 1999, Km. Khushbu Vs. B. P. Mishra and others.
Heard Sri A. K. Bajpai, learned counsel for the petitioner and Sri Rakesh Srivastava, learned Standing Counsel for the respondent no.1.
The factual matrix of the present case are to the effect that initially a claim petition has been filed by the respondent no.2 to 4, which was registered as Claim Petition No.55 of 1999, Km. Khushbu Vs. B. P. Mishra and others before the Additional District Judge (VII), Raebarely/Motor Accidents Claims Tribunal, Raebarelly (hereinafter referred as 'tribunal') .
Further, in brief the facts as stated in the claim petition are that on 23.9.1998 at about 7.30 P.M. an ambassador car having registration no.U.P. 32-T 4191 (vehicle) owned by the Estate Department of the State of Uttar Pradesh due to rash and negligent driving of the driver of the said vehicle an accident had taken place near Bus Station Unchhahar, District Raebarely on Allahabd Lucknow Highway as a result of which Km.Khushbu, who was at the relevant point of time 7 years old sustained grievous injury thereafter she was hospitalized for treatment and for the said purpose a huge amount had been expended by her parents as a result of which compensation amounting to Rs.4,42,000/ was claimed in the claim petition and following persons were impleaded as respondent Sri B.P.Mishra, Special Secretary, 2 Planning Department, Govt. of U.P., Lucknow and State of U.P. through Collector, Raebarely.
Sri B. P. Mishra, Special Secretary, Planning Department, of State of U.P., who was impleaded as respondent no.1 in the claim petition had filed an application on 3.2.2000 inter-alia, stating therein that as he is neither owner of the vehicle nor the insurer so he is not necessary party in the dispute involved in the present case as such in view of Rule 207 of U.P. Motor Vehicle Rules, 1988 (hereinafter referred as Rule) his name be deleted from the array of the respondents in the claim petition.
The said application was rejected by order dated 7.5.2002 by the respondent no.1 on the ground that at the time of accident the vehicle was under the control of Sri B. P. Mishra, Special Secretary, and was driven under his direction as such he is a necessary party for effectually and complete adjudication of the controversy involved in the case.
Aggrieved by the order dated 7.5.2002 Sri B. P. Mishra (petitioner) has filed the present writ petition before this Court. On 24.7.2002 this Court had passed the following orders:-
"Admit.
Issue notice to opposite parties 2 to 4.
Notice on behalf of the opposite party no.1 has been accepted by the learned Chief Standing Counsel.
List this petition in the first week of September, 2002."
Sri B. P. Mishra, thereafter, challenge the order dated 24.7.2002 before Hon'ble the Supreme Court by way of special appeal (Civil No.18143 of 2002) and on 23.9.2002 Hon'ble the Apex Court had passed the following orders:-
"Issue notice.
Stay of the impugned judgment, in the meantime."
On 10.2.2003 the above said case (Civil Appeal No.1175 of 2003, B. P. Mishra Vs. Khushbu and others) was allowed with the following directions:-
"Leave granted.
The main issue whether the appellant is a necessary party in the claim petition pending before the Accidents Claim tribunal, is pending decision before the High Court in Writ Petition No.2217 (MS) of 2002. Regarding the appellant the only allegation of the claimants was that he was travelling in a government car provided to him by Government, driven by the driver who was also an employee of the government. Having regard to the facts and circumstances of the case, an interim order by the High Court directing the appellant to pay any amount, as interim compensation to the claimant was wholly unwarranted. Under these circumstances, we set aside the impugned order and allow this appeal. However, there will be no order as to costs."
Sri A. K. Bajpai, learned counsel for the petitioner while challenging the order dated 7.5.2002 had submitted that the same is arbitrary and illegal in nature as in view of the provisions as provided under Rule 204, 206 and 207 of the Rules, in the claim petition filed before the Tribunal the necessary parties are the owner of the vehicle involved in the accident and its insurer, as Sri B. P. Mishra is neither the owner nor the insurer of the vehicle so he is not a necessary party in the claim petition. Accordingly, the order dated 7.2.2009 passed by the respondent no.2 is contrary to law and liable to be set aside in order to strength his argument he vehemently relied on the provisions of Rule 207 of the Rules which is quoted hereinbelow:-
"Notice to parties involved.- If the application is not dismissed under Rule 206, the 4 Claims Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer, a copy of the application together with a notice of the date on which it will hear the application, and shall call upon the parties to produce on that date any evidence which they may like to produce."
Sri A. K. Bajpai, learned counsel for the petitioner further submits that since State of U.P., has been impleaded as one of the respondent in the claim petition as the owner of the vehicle. So there is no justification to implead the petitioner by name and designation because in the event if the claim petition is allowed compensation can be awarded against the owner or insurer by the tribunal under law so there is no justification or reason on the part of the respondent no.1 to pass impugned order.
I have heard learned counsel for the petitioner, learned Standing Counsel and perused the record.
From the scheme of the Motor Vehicle Act, 1988 (hereinafter referred as 'Act') and the Rules, it is clear that the object constituting the claim tribunals under section 165 of the Act is for adjudicating upon claims for compensation in respect of accidents involving the death, or bodily injury arising out of the use of motor vehicles. Further Section 166 of the Act lays down the procedure in respect to moving of application for compensation arising out of any accident of the nature specified in sub-Section 1 of Section 165 of the Act for compensation in the prescribed forum.
More-over Section 169 of the Act provides the procedure and power of the claim tribunal and Section 175 bar on jurisdiction of the civil courts. Section 169 (2) of the Act confers on the claim tribunals all the powers of a civil court for the purpose of taking evidence on oath and enforcing the attendance of witnesses and of compelling the discovery and production of documents etc. Rule 221 of the Rules also makes certain provisions of the Code of Civil 5 Procedure, as far as may be applicable to the proceedings before the claim tribunal.
The questions whether the C.P.C. particularly, Order 1 Rule 10, is applicable before the Tribunal or not, need not be gone into for it is settled law that any Tribunal can exercise its functions and in discharging its duties, take such steps as are essential to enable it to function effectively. There could, therefore, be no doubt that, whether the C.P.C. applies or not, the Tribunal will have powers to implead necessary and property parties.
Taking the C.P.C. as a guidance, under Order 1 Rule 10(i), the court may order any person to be substituted or order as plaintiff if it is necessary for the determination of the real matter in dispute so to do. Under Order 1 Rule 10 (ii), the court may at any stage of the proceedings order that the name of any person who ought to have been joinded whether as plaintiff or defendant or whose presence before court may be necessary in order to enable the court to effectualy and completely adjudicate upon and settle all the questions in the suit be added.
The Madras High Court in Union of India Vs. P.
Kailasam (1974 ACC CJ 488) has upheld the contention that under Order 1 Rule 10 (2) of the Code of Civil Procedure the Motor Accidents Claims Tribunal was competent to implead parties in order to enable it to effectively and completely adjudication upon and settle all the questions involved in the claim.
Further the principle is that, the generally when the plaintiff is not keen on getting a party added the defendant, the plaintiff being dominus litus, third party should not be added. But, if the plaintiff requires a person to be added for effectually and complete adjudicating upon the matter in dispute, the third party will be a proper party.
For the foregoing reasons, taking into consideration the peculiar facts and circumstances of the case for the purpose of dispute involved in the present case only I am of the opinion that 6 Sri B.P. Mishra is a proper party in the claim petition.
Accordingly, the present writ petition filed by the petitioner lacks merit and is dismissed.
No order as to cost.
Order Date :- 28.1.2010 Pramod