Sunil Ambwani and Aditya Nath Mittal, JJ.@mdashWe have heard Shri R.R. Khan, learned counsel appearing for the claimant-appellant. The injured claimant Shri Vijay Pal was travelling alongwith his goods (vegetables) and was going to Sahibabad in D.C.M. No. U.P. 23D-9613. He was sitting in cabin alongwith driver. It is alleged that the vehicle was being driven rashly and negligently for which he warned the driver of the vehicle many times. When the vehicle reached near Tomar Hotel National Highway, a tanker hit the vehicle on the driver''s side on which the vehicle (D.C.M.) turned turtle causing severe injuries to the claimant. The claimant was dragged out of the vehicle by one Shri Brij Mohan and one other person. The claimant was admitted in the hospital at Sahibabad, where he remained unconscious for some time and suffered serious injuries in legs on which he has become partially disabled. The appellant sought compensation against the owner of the vehicle (D.C.M.) and Bajaj Allianz General Insurance Co. Ltd., which had insured the vehicle. Since the driver and owner of the tanker could not be traced out, they were not impleaded nor the insurance company, which may have insured the tanker was impleaded.
2. The Tribunal has dismissed the claim petition u/s 166 on the findings that since the appellant injured could not make out as to which of the vehicle was negligent in causing the accident, though he had stated that D.C.M. was being driven at high speed. He did not state in examination-in-chief as to who was at fault. The Tribunal did not believe the statement of Shri Brij Mohan-P.W. 2, who is alleged to have seen the accident on the ground that he just pulled out the injured and did not evacuate them to the hospital. His presence on the spot is doubtful. No site plan, charge-sheet, police investigation report or any other documentary report was filed. The only document filed was a F.I.R., which shows that it was fault of driver of the unknown tanker in causing accident.
3. The Tribunal has dismissed the claim petition u/s 166 on the ground that the rash and negligent driving of the driver of D.C.M. was not proved. The wrongful act was committed by unknown tanker, driver and owner of which was not impleaded. The claim petition was dismissed.
4. Learned counsel appearing for the appellant has relied upon State of Tamil Nadu v. P.K. Anandan, AIR 1982 Mad 136, in which reliance was placed on Southern Roadways Ltd., Madurai v. P.O., Poulose, C.M.A. 173 of 1979 in which it was pointed out as follows:
If a number of persons jointly participate in the commission of a tort, each is responsible jointly with each and all of the others and also severally for the whole amount of the damage caused by the tort irrespective of the extent of his participation. Therefore a person injured may sue any one of them separately for the full amount of the loss or he may sue all of them jointly in the same action and even in this later case the judgment so obtained against all of them may be executed in full against any one of them.
5. In the present case, we find that the claimant-appellant had admitted that he was not certain as to which of the vehicle was negligent in causing the accident. The truck had hit the D.C.M. on the driver''s side on which D.C.M. overturned and in which he suffered injuries. The police investigation report or the charge-sheet was not filed to establish the negligence of the driver of the vehicle (D.C.M.) or the truck.
6. In case of joint responsibility the amount may be recovered from any one of the negligent party. In any case the negligence of the vehicle or vehicles, which caused the accident had to be established to claim damages.
7. In the present case, there is no evidence on record and rather there was admission of the appellant himself to show that the driver of the D.C.M. was not liable to cause accident, to claim any compensation.
8. We further find that the claim was filed only u/s 166 of the Motor Vehicles Act, 1988 and no relief was claimed u/s 140 for award of no fault liability. The order of the Tribunal, therefore, does not suffer from any error of law. The appeal is dismissed.
