1. Four Motor Accident Claims Petitions bearing Nos. 4 of 1974, 5 of 1974, 6 of 1974 and 7 of 1974, were filed before the Motor Accidents Claims Tribunal, Banaskantha District at Palanpur which arose out of an accident which occurred on 16-9-1973 on account of a collision between a jeep bearing No. GJF 348 and an S. T. bus resulting into Personal injuries to Thakkar Dalpatram Sundarji the driver of the jeep and the two other passengers of the jeep. Mir Gafurbhai Suleman and Mir Renchhodji Dhudaii Dodia and in a fatal accident to one Manji Bhaga. The jeep was driven by Thakkar Dalpatram Sundarji. President of the Deodar Taluka Panchayat and three other unfortunate victims noted above, were the passengers occupying the seats in the jeep behind the driver. Thakkar Dalpatram Sundarji had gone to village Chalve from Deodar and from there he had gone to village Luvana wherefrom he was returning when the collision occurred at about 6-45 P. M. on the Deodar-Jetada Road. When the jeep came near Deodar-Jetada Road, the S. T. bus driven by respondent No. 2, Ranchhodbhai Shankerbhai Patel crossed from Deodar side and suddenly took a turn towards Luvana. It is alleged that both the vehicles were running at high speed and the S. T. bus driver ran it at a high speed even at the time of taking the turn. It is alleged that the driver of the S. T. bus did not even care to blow the horn. It was stated by Dalpatram that he could not see the oncoming S. T. bus on account of a hedge standing nearby the road on its southern side. It may at once be noted that this theory of Dalpatram is not believed by the Tribunal. The S. T. bus after taking the turn dashed against the jeep as a result of which dash, the jeep was dragged backward my to a distance of about 8 to 10 feet. It finally stopped almost near the hedge on the southern side of the road. Serious damage was caused to the jeep. but more unfortunate aspect of the accident is that it caused serious injuries to all the four occupants of it. Manji Bhaga, who was sitting on the rear seat was thrown out from it and was run over by the S. T. bus. He died on the spot.
2. to 5. x x x x x x
6. The only claimants with whom we are concerned in the present appeal are the claimants in Claim Petition No. 6 of 1974 who are the heirs and legal representatives of deceased Manji Bhaga. They claimed total compensation of Rs. 1,15,000/- whereas the Tribunal awarded them in all Rs. 11,500/with six per cent running interest on that amount from the date of the application till realisation and proportionate costs. Having been aggrieved by the same award the appellants have filed the present appeal. They have confined their claim in this appeal for a further amount of Rs. 48,500/-. The total amount which they are claiming before us is Rs. 60.000/-
7. X x x x
8. Mr. Arun K. Shah appearing for the S. T. Corporation submitted that the Tribunal has given an affirmative finding on issue No. 5. which relates to the question as to whether Dalpatji Sundaril is a necessary party. Mr. Shah submitted that although Dalpatji Sundarji is held to be a necessary partv, he has not been joined as a party to the Proceedings despite the fact that an application was given to it for that Purpose and therefore the application must fail. We do not find any merit in the argument of Mr. Shah. The submission of Mr Shah that the driver of the jeep, Dalpatji Sundarji, is a necessary party is itself not a correct propostion. It is true that the Tribunal has given an affirmative finding on the issue concerning that question, but, with respect, we are of the view that that is not a correct finding. Since Dalpatji Sundarji was concerned as a driver in the occurrence of the incident, the claimants indeed had the option to join him as one of the opponents, but that choice given to the claimants does not make Dalpatji Sundarji a necessary party. Necessary party means that no decree can oe Passed without his presence in the proceedings. In other words a party is a necessary party when hi s presence in the proceedings is necessary for the very constitution of the suit that is to say persons in whose absence no effective decree at all can be passed. Such is not the case with regard to the absence in the proceedings of Dalpatram Sundarji. The claimants can sue the joint tort-feasors either jointly or severally and can have a complete redress for the injuries suffered by them from either of them. This is now a settled legal position vide (1972)13Guj LR 920: (AIR 1973 Gui 216) (Life insurance Corporation of India v. Naranbhai Munjabhai Vadhia). Mr. Shah's submission therefore does not have any force and on our Dart we need not elaborate the legal position further in order to reject his submission.
9. x x x
10. The second error which the Tribunal committed is of deducting 50 per cent for the contributory negligence of the jeep driver which he assessed at 50 percent that is to say to an equal extent. It passes one's understanding as to how could a passenger's compensation be deducted on account of the contributory negligence of the driver of a vehicle. It is entire1V the choice of the claimants whether to implead both the joint tort-feasors or either of them. The claimants cannot be saddled with the liability for contributory negligence of' one of the joint tort-feasors, if they fail to implead him as one of the opponents in their claim petition. It would be for the impleaded joint tort-feasor to take proceedings to get the other joint tort-feasor impleaded in the claim Petition, or for that matter such an impleaded joint tort-feasor may select to sue the other one after the decree or award is given and the other joint tortfeasor is held liable therein. It would be however quite a different argument to advance that because the claimants did not join one of the tort-feasors, they themselves should be held liable for the deduction of the amount which the omitted joint tort-feasor would have been called upon to pay. Thus. there' would be no deduction in the amount of compensation awarded to the appellants as done by the Tribunal 11--12. x x x x
13. Appeal Partly allowed.