Mansoor Ahmad Mir, J. - This Civil Ist Miscellaneous Appeal is directed against the judgment and order dated 02.01.2010 passed by the Motor Accidents Claims Tribunal, Doda, whereby the claim petition filed by the claimants, appellants herein, came to be dismissed for want of impleadment of driver of the offending vehicle being necessary (for short, impugned order), on the grounds taken in the memo of appeal.

2. Brief Facts

Appellants-claimants being the victims of vehicular accident filed a claim petition before the Motor Accidents Claims Tribunal, Doda for grant of compensation on the ground that on 26.11.1996 one Ghulam Rasool, son of Mohd. Mussa, resident of Manoo Gandoh, Tehsil Gandoh, was hit by an Army Truck at Bhatri (Gandoh), which was being driven rashly and negligently, and, as a result of the said accident, he died on the spot. He was a Carpenter by profession. He was also owner of four buffaloes and used to sell milk, ghee etc. As claimed in the claim petition, the monthly income of said Ghulam Rasool was Rs. 9000/- per month. Appellants-claimants have specifically stated in paragraphs 9, 12 & 13 of the claim petition that the offending vehicle was of 17 RR Bn. and was being driven by army personnel rashly and negligently. Appellants-claimants being illiterate could not trace the registration number, so they without mentioning the particulars of driver in the cause title, filed a claim petition before the Motor Accidents Claims Tribunal, Doda. However, learned Tribunal vide the impugned order dismissed the same for want of impleadment of driver of the offending vehicle being necessary party.

3. Now the moot question for consideration is: whether the driver is a necessary party and the claim petition can be dismissed for want of impleadment of a driver

4. Admittedly, appellants-claimants did not array driver of the offending vehicle as a party to the claim petition, because they were not aware of the particulars of the driver, but Union of India being the owner of the offending vehicle was made a party to the claim petition.

5. It is profitable to reproduce Sub-clause 1 of Section 165 of the Motor Vehicles Act, 1988 (for short, Act).

"165. Claims Tribunals.- (1) A State Government may, by notification in the official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."

6. While going through the provisions of Section 165 read with Section 166 of the Act, one comes to an inescapable conclusion that the claimants have to prove that the accident was out of the use of motor vehicle and the driver is not a necessary party but a proper party.

7. Same question came up for consideration before the High Court of Karnataka in Patel Roadways and anr. v. Manish Chhotalal Thakkar and ors., 2001 ACJ 180 and it has been held that in the absence of a driver as a party, the claim petition cannot be dismissed. It would be relevant to reproduce paragraph 23 hereunder:

"23. But, we do not find any support in Biyabis case, 2001 ACJ 45 (Karnatka), for appellants contention that in the absence of driver as a party, a claim petition is liable to be dismissed as not maintainable or that no pending proceeding can go on, unless and until the driver is impleaded as a party. There is no such proposition in the said decision. It should be noticed that nowhere in Biyabis this Court has held that a claim petition is not maintainable if the driver is not impleaded as party. All that the decision lays down is that no finding adverse to the driver can be recorded unless the driver is a party. It is however not possible to read more into the said decision or hold that in the absence of the driver, claim petition should be rejected. In fact in Biyabis, this Court did not dismiss the claim petition on the ground that driver was not a party. On the other hand, we find that on the facts and circumstances, as KSRTC vehicles did not have insurance cover and as KSRTC proposed to initiate action against erring drivers for negligence on the basis of finding of negligence recorded by the Tribunal, this Court made it clear that no adverse finding can be given nor action be taken against its drivers by KSRTC for negligence unless the driver was a party to the claim proceedings; and therefore the matter was remitted to the Tribunal to serve a notice on the driver and then dispose of the matter. The decision in Biyabis, is not therefore an authority for the proposition that no claim petition against the owner of a vehicle is maintainable without impleading the driver. Whether driver is to be impleaded or not is left to the discretion of the claimant. While there can be no doubt that impleading a driver will be appropriate, as he is a proper party, it cannot be said that he is a necessary party in a claim against the owner and insurer alone. Any finding of negligence of driver, recorded in a petition against the owner, or in a petition against the owner and insurer, without impleading driver, cannot be held to be an adverse finding against the driver nor can it lead to any civil consequences against the driver. Such finding will be only for the purpose of fastening liability on the owner and not to fasten any liability on the driver. However, if the driver is impleaded and notice is issued to him, then civil consequences like making him personally liable will follow on recording a finding of negligence. In the circumstances, the contention that claim petition is not maintainable in the absence of the driver of the car is liable to be rejected."

8. This Court in Union of India & ors. v. Mst. Asha & ors., 2008 (1) SLJ 88 : 2008 (1) JKJ HC-533, has held that the Tribunal should not succumb to the technicalities and niceties and it is under legal obligation to achieve the object of awarding compensation. It would be appropriate to reproduce paragraph 21 hereunder:

"21. The aim and object of awarding compensation is a social one and it is the duty of the tribunals to achieve it as early as possible without succumbing to the technicalities and niceties. Apex Court in a case titled as NKV Bros. (P) Ltd. v. M. Karumai Ammal and others, reported in 1980 SC 1354 laid down the same principle. It is profitable to reproduce relevant portion para-3 of the said judgment herein:

"3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes......"

9. This Court further held that the claim petition cannot be dismissed without arraying driver as a party, paragraph 22 whereof is reproduced herein.

"22. Keeping in view the mandate of Section 165 and 166 of the Motor Vehicles Act and the object of awarding compensation, I am of the considered view that driver is not a necessary party but a proper party. The claim petition can be filed and determined without arraying the driver as a party."

10. In the given circumstances, it is held that the driver is a proper party, not a necessary party, and the claim petition cannot be dismissed on the ground of non-arraying of driver as a party to the claim petition. Applying the test in the instant case, the impugned order is bad in law.

11. Having glance of the above discussion, the impugned order merits to be set aside. Accordingly, the appeal is allowed, impugned order is set aside and the case is remanded to the Motor Accidents Claims Tribunal, Doda with a direction to take the claim petition to its logical end within three months with effect from 12.11.2012 and report compliance before the Registry.

12. Parties through their counsel are directed to cause appearance before the Tribunal on 12th November, 2012.

13. Send down the record forthwith along with a copy of this order.