PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9727
THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR
M.A.C.M.A. No. 570 of 2006
15.03.2013
Dadi Komuravva and others
Garshe Buchaiah and others
Counsel for the Appellants: Sri Kota subba Rao
Counsel for the Respondents: Sri Nisaruddin Ahmed Jeddy
Sri V. Sambasiva Rao
Sri I. Naveen Kumar
<Gist :
>Head Note:
?Cases Referred:
1. 2004(5) ALT 322
2. 2008(3) ALD 80(DB)
3. 2005 ACJ 588
4. 2009 ACJ 187
5. 2011(4) ALD 332
6. 2005 ACJ 543
7. 2001 ACJ 428
8. 2000 ACJ 1076
9. (2009) 6 SCC 121
Judgment:
The claimants before the Motor Accidents Claims Tribunal
(I Additional District Judge), at Karimnagar, challenging the dismissal order,
dated 21.02.2003, passed in OP No. 361 of 1998, filed this appeal.
The parties hereinafter will be referred to as they are arrayed before the
Tribunal for the sake of convenience.
The first claimant is the wife of late Dadi Odelu and the second claimant
is their daughter and the third claimant is the adoptive father of late Dadi
Odelu. On 23.02.1995 at about 11.30 AM the deceased and others were proceeding
in an Auto bearing No. ABT 9291 being driven by one Md. Sadiq, the third
respondent in the claim petition. When the said auto reached Mangalampalli bus
stage, the Van bearing No.AP-9T-5724 being driven by the first respondent in a
rash and negligent manner came from opposite direction and hit the auto. As a
result of which, the deceased sustained multiple injuries and he was shifted to
Singareni Hospital, wherein it was declared that he was brought dead. The
driver of the auto and other passengers also sustained injuries. Alleging that
the accident occurred due to negligence of the first respondent i.e., van driver
the claimants claimed compensation against respondents 1 and 2.
The first respondent is the driver and the second respondent is the owner
of the said Van. The third respondent is the driver of the auto. The fourth
respondent is the Insurance Company with which the Van of the second respondent
is insured. The third respondent remained
ex parte. The first and second respondents filed a common counter. The fourth
respondent filed a separate counter. It is the case of the respondents 1, 2 and
4 that the accident occurred due to the negligence of the auto driver i.e., the
third respondent. It is also their case that one of the passenger lodged a
complaint to the police against the auto driver basing on which the police
registered a case in Crime No.41 of 1995 against the third respondent- auto
driver. The other averments of the claimants with regard to the manner in
which accident was occurred and income of the deceased etc., have been denied.
The Tribunal framed the following issues.
1. Whether the accident was caused by the first respondent/driver by his rash or
negligent driving of the vehicle?
2. Whether the petitioners are entitled to recover compensation and if so, to
what amount and from whom?
3. To what relief?
On behalf of the claimants, the first claimant was examined as PW.1 and PWs.2 to
4 were also examined and Exs.A1 to A11 were marked. On behalf of the
respondents RWs.1 and 2 were examined and Exs.B1 to B3 were marked.
On appreciation of entire oral and documentary evidence, the Tribunal came to
the conclusion that the accident occurred due to rash and negligent driving of
the auto driver. The Tribunal also came to the conclusion that the claimants
are entitled to a compensation of Rs.4,22,112/-. The Tribunal also held that
the claimants cannot claim compensation from the respondents 1, 2 and 4 and
there is no claim against the third respondent and accordingly dismissed the
claim petition. Aggrieved by the said award, this appeal has been filed.
The main contention of Sri Kota Subba Rao, learned counsel for the claimants, is
that the Tribunal failed to appreciate the evidence of PW.2 and wrongly relied
on Ex.A1. It is also argued that the auto being small vehicle when compared to
the Van, the Tribunal ought to have held that the driver of the Van is
responsible for the incident. It is also argued that mere use of the vehicle on
public road is enough to claim compensation and when two vehicles are involved
it cannot be definitely said that the driver of one vehicle is totally innocent.
In support of his contentions he has relied on several decisions.
Learned counsel for the respondents submitted that soon after the accident, the
passenger traveling in the auto lodged a complaint to the police, wherein it was
categorically mentioned that the accident occurred due to negligence of the auto
driver and in the above circumstances the findings of the Tribunal cannot be
disturbed.
The points that arise for consideration are;
1. Whether the accident occurred due to the negligence of Van driver or auto
driver or whether there is composite negligence?
2. Whether the Tribunal can base its findings on the FIR when the de facto
complainant is an illiterate and what should be the basis for deciding the
negligence aspect?
3. Is it necessary to prove the rough and negligent driving in all the cases?
It is not in dispute that both the vehicles i.e., the auto and van are involved
in the accident. It appears that one Ramagiri Lingaiah lodged a complaint to
the police, basing upon which the police registered a case in Crime No.41 of
1995. As seen from the recitals of Ex.A1-FIR, on 23.02.1995 the said Ramagiri
Lingaiah and others were proceeding in the auto. The deceased was also sitting
in the auto. It is a fact that in Ex.A1 it is mentioned that the driver of the
auto Md. Sadiq had driven the auto in zigzag manner and in a rash and negligent
manner and dashed against the Van. The police after completing investigation
filed charge sheet against the said Sadiq. The recitals of the charge sheet go
to show that the police conducted panchanama at the place of accident and had
drawn a rough sketch of the place of accident. The Motor Vehicle Inspector also
seems to have examined the auto and opined that the accident is not due to any
mechanical defects of the vehicle. The wife of the deceased was examined as
PW.1. She is not an eye witness to the incident. PW.2 is the crucial witness.
According to him, on the date of accident, he along with the deceased and others
were proceeding in the auto. They boarded the auto at Mangalampalli bus stage.
According to him, their auto was hit by a Van which came from opposite direction
and the accident occurred due to the rash and negligent driving of the Van
driver and that the auto driver was not negligent. According to him, the police
obtained his statement, but he did not state before the police that the driver
of the auto drove the same in a rash and negligent manner and the auto went
towards wrong side and hit the Van. PW.2 had put his thumb impression on his
deposition. It is not clear from the certified copy of complaint that PW.2 had
put his thumb impression on the original complaint.
The van driver is examined as RW.1. Admittedly, he was driving the van on the
date of accident. According to him, he was working under the second respondent
and that while he was slowly driving the van along the left side of the road,
the auto driven by the third respondent came in opposite direction in a jig jag
manner and hit against his van on its rear portion and turned turtle. He
admitted that the passengers traveling in the auto sustained injuries.
According to him he had not driven the van in rash and negligent manner.
According to him, somebody took the injured to the hospital and he did not give
any report to the police. He remained at the place of accident till the police
came there and enquired him about the accident. He denied the suggestion that
at the instance of his owner the police registered a case against the driver of
the auto. He has also denied the suggestion that he had absconded from the
scene of accident soon after the accident. The evidence of RW.1, the driver of
the Van, does not inspire confidence. Admittedly, he has not shifted the
injured to the hospital, which is his obligation. He had not reported the
matter to the police. According to him, the auto hit his van on its rear
portion. But, it is nobody's case. The contents of the FIR go to show that the
auto dashed against the Van and both the vehicles were coming in opposite
direction. There remains the evidence of PW.2. A written complaint seems to
have been given to the police. PW.2 being a person who affixed his thumb
impression must have depended on some other person to reduce the complaint into
writing. The scribe of the original complaint is not examined and his name is
not mentioned anywhere in the FIR. Therefore, it is not clear as to who is the
original author of the FIR and on whose information it is mentioned that the
auto driver drove the same in a rash and negligent manner and dashed against the
Van. The time of accident is noted as 11.30 AM in the FIR. In Form-54 i.e., in
Ex.A4 the time of accident is noted as 09.30 hours. In the Motor Vehicle
Inspector's report Ex.A6 the time of accident is noted as 09.30 hours and time
of inspection as 10-00 hours. Thus, it is clear that the police had information
by 09.30 AM and the Motor Vehicle Inspector visited the place of accident by
10.00 AM. It is also clear that the name of the first informant is not
mentioned any where. Thus, it is clear that the first information has been
suppressed and PW.2 is not the first informant. As seen from the evidence, it
appears that the accident occurred much prior to 09.30 AM. Including the driver
of the auto, PW.2, the deceased and others, who were travelling in the auto,
were injured and they were immediately shifted to the hospital. According to
the driver of the van, he did not shift any of the injured to the hospital and
he did not give any police report. According to the driver of the van, the
police came to the scene of offence at about 03:00 PM. When the police station
is only at a distance of about 4 kilometers from the place of the accident, it
is not clear as to why the police took 61/2 hours to reach the scene of offence.
In that view of the matter, the contents of the FIR need not be given much
importance. When it cannot be definitely said that PW.2 is the author of the
FIR, it cannot be definitely said that he has re-assailed from his original
version, because what is the original version is not available. If at all PW.2
had been the scribe of the original complaint, then it could have been
definitely said that he has re-assailed from the original version. PW.2 further
deposed that the police obtained his signature on a written report. Probably
the word signature in the FIR appears to be incorrect. It must be thumb
impression because PW.2 is an illiterate and he had put his thumb impression in
his deposition. PW.2 denied the suggestion that he had stated before the police
that the driver of the auto was rash and negligent in driving the auto and that
the auto went on wrong side and hit the Van. He denied the suggestion that only
to help the claimants and since the auto was not insured he is deposing against
the driver of the Van. It has to be seen that no suggestion is given to this
witness that the auto hit on the rear side portion of the van. Though on behalf
of the Insurance Company RW.2 was examined, admittedly he is not an eye witness.
Therefore, his evidence is not useful. According to PW.2 the driver of the auto
also sustained injuries. The contents of the FIR also go to show that the auto
driver also sustained injuries. It appears that all the injured were shifted to
Area Hospital, Godavarikhani. Admittedly, the van driver did not give report to
the police. In the above circumstances it cannot be said that the contents of
the FIR reveal the true facts.
The claimants have also filed Ex.A11 certified copy of judgment in C.C. No. 165
of 1995 on the file of the Special Judicial Magistrate of First Class (Mobile),
Manthani. It shows that after trial the learned Magistrate has acquitted the
driver of the auto. It appears that the Investigating Officer was not examined
in the criminal case.
The claimants' allegation is that the accident occurred due to the rash
and negligent driving of the driver of the van, but respondents 1 and 2 managed
the police and got registered a case against the third respondent. However,
respondents 1 and 2 have denied the said averment.
Learned counsel for the appellant had relied on the judgment in the case
between APSRTC Vs. N.Krishna Reddi and others1. In that case, it was alleged
that the accident took place due to the rash and negligent driving of the driver
of the bus belonging to the appellants. The accident occurred as a result of
collusion between the van which the deceased was driving and the bus belonging
to the appellant. The bus driver was examined as R.W.1. Since R.W.1 was
charge-sheeted and P.W.1 stated that the accident occurred due to the rash and
negligent driving of the driver of the bus, the Tribunal held that the accident
occurred due to rash and negligent driving of the driver of the bus. Thus, it
is observed as follows:-
"Merely because the police charge sheeted RW1 it cannot be presumed that
the allegations therein are true. The allegations in the charge sheet have to be
proved by adducing oral evidence. It is significant to note that Ex.A2,
certified copy of the charge sheet, does not show that the investigating officer
took pains to visit the scene of accident and verify as to how actually the
accident took place. He did not even take pains to conduct a panchanama of the
scene of accident and draw a sketch of the scene of accident though the driver
of the van died in the accident."
Thus, it appears that in fatal accident cases, panchanama and sketch of
scene of offence are very important because they reveal the position of the
vehicles and the skid marks after the accident and that would help the Court to
come to a correct conclusion and the contents of FIR or the charge-sheet cannot
be treated as conclusive proof. In this case, admittedly, criminal case filed
against the auto driver ended in acquittal. In that view of the matter, no
importance can be given to the contents of FIR.
Learned counsel for the appellant had also relied on the judgment in the
case between Repaka Rajya Laxmi and others Vs. Poldasari Komuraiah and others2,
wherein the eyewitness was not cited as witness by the police in the charge-
sheet, this Court observed that mere non mentioning of the name of the witness
in the charge sheet as eye-witness cannot be a ground to reject his testimony.
In the case between Syed Ibrahim Vs. Union of India and another3, this
Court observed that the findings of the judgment of the trial Court are not
binding on the Tribunal or civil Court and the evidence adduced before the
Tribunal has to be taken into consideration. It was also observed that the
purpose of filing of FIR and charge-sheet is only to establish the factum of the
accident and receiving of injuries as a result thereof by the injured. Merely
because the police issued FIR or laid charge sheet against a driver, the
contents of the FIR and charge sheet cannot be the basis for deciding the
negligence aspect. The Tribunal should appreciate the evidence adduced before
it in proper perspective.
Learned counsel for the appellant had also relied on the judgment in the
case between Sombathina Ramu Vs. T.Srinivasulu and another4. In that case, the
theory of contributory negligence was discussed. Since the deceased has not
played any role in the accident, the question of contributory negligence does
not arise in this case and when two vehicles are involved in the accident, it
has to be decided whether there is a contributory negligence of the drivers of
the two vehicles or whether any one of the is solely responsible for the
accident or when both of the drivers are involved in the accident, the
apportionment of negligence has to be done between those two drivers.
Learned counsel for the appellant had also relied on the judgment in the
case between United India Insurance Co. Ltd. Hyderabad Vs. P.Prabhavathi and
others5. In that case, the vehicle damaged in a bomb blast arising out of
factious disputes was involved in the accident. This Court had relied on the
judgment of a Division Bench in the case between Bhupati Prameela and others Vs.
Superintendent of Police, Vizianagaram {(2010 (4) ALD 531 (DB)}, wherein, the
Division Bench elaborately discussed the issue of claimants entitlement to
compensation irrespective of the proof of rash and negligent driving by the
driver of the vehicle. The Division Bench held that negligence is breach of
duty imposed by law and when an act is done without due care and caution or done
with recklessness and indifference to consequences, such act has to be treated
as rash and negligent act. The Division Bench further, on exhaustive
examination of the case law, concluded that the vehicle need not be in motion at
the time of the accident and even where the owner of the vehicle fails to take
care to check the mechanical defects of the vehicle or where there is no
evidence that owner has taken all necessary precautions for maintenance of the
vehicle, such acts also should be treated as negligent acts in using the
vehicle. It is also observed that where the owner or the driver or conductor
had not taken necessary precautionary measures for the safety of passengers
although terrorist attacks suspected and the vehicle met with an accident in
terrorist attacks, that circumstance is sufficient to hold that there is rash
and negligent driving of the vehicle. In such circumstances, use of the vehicle
in public place is sufficient and compensation should be awarded treating it as
an application filed under Section 163-A of the M.V. Act.
Therefore, it appears that a broader outlook is necessary while dealing
with the claim arising out of use of motor vehicles.
Reliance has also been placed on the judgment in the case between Kore
Laxmi and others Vs. United India Insurance Co. Ltd., and others6. In that
case, the dependents of the deceased driver, whose lorry collided with another
lorry, claimed compensation under Section 166 of the Motor Vehicles Act. The
Tribunal found that the accident occurred due to negligence of the deceased
driver, but however, restricted their claim to the amount they claimed by
applying the table given in Second Schedule in Motor Vehicles Act under Section
163-A of the Act. While dealing with Section 163-A of the Motor Vehicles Act,
the Division Bench of this Court observed as follows-
"It would be suffice to claim compensation to prove that the vehicle was
involved in the accident. In fact, sub-section (2) of section 163-A makes it
clear that the claimant is not required to plead or establish that the death or
permanent disablement in respect of which the claim has been made due to any
wrongful act or negligent or default of the owner of the vehicle or vehicles
concerned or of any other person and under sub-section (3) the compensation
payable in the case of fatal accidents as well as death were given."
In that case, the claimants filed an application under Section 166 of the
Motor Vehicles Act and it was argued that the Tribunal erred in applying the
table given in Second Schedule in Motor Vehicles Act under Section 163-A of the
Act. The Division Bench of this Court rejected the said objection holding that
such objection cannot be sustained since the Supreme Court, as early as in 1950
held that even if a party approaches the Court invoking a wrong provision, the
Court is always bound to do justice by applying the correct law.
Sri Kota Subba Rao, learned counsel for the claimants, heavily relies on the
rule laid down in the case between Rylands Vs. Fletcher {1861-73 All ER 1 :
(1868) LR 3 HL 330}, which decision was referred by the Apex Court in the case
between Kaushnuma Begum and others Vs. New India Assurance Co. Ltd. and others7.
In that case, the claim was dismissed solely on the ground that there was
neither rashness nor negligence in driving the vehicle. The claimants were
unsuccessful before the Division Bench of the High Court of Allahabad. The
matter was carried to the Apex Court. The jeep involved in the accident was
capsized due to bursting of front tyre of the jeep and in that process hit the
deceased whose dependants claimed compensation for his death. Having found that
the front wheel of the jeep suddenly got burst resulting in the disbalance, it
was held that the rashness and negligence of the driver is not established. The
question that came up for consideration before the Apex Court is "Should there
necessarily be negligence of the person who drove the vehicle if a claim for
compensation is to be sustained?" While referring to Sections 165(1) and 175 of
the Motor Vehicles Act, 1988 (for short 'the Act') the Apex Court, in paras 10,
11, 14, 15, 18 and 19, observed as follows.
"It must be noted that the jurisdiction of the Tribunal is not restricted to
decide claims arising out of negligence in the use of motor vehicles. Negligence
is only one of the species of the causes of action for making a claim for
compensation in respect of accidents arising out of the use of motor vehicles.
There are other premises for such cause of action.
Even if there is no negligence on the part of the driver or owner of the motor
vehicle, but accident happens while the vehicle was in use, should not the owner
be made liable for damages to the person who suffered on account of such
accident? This question depends upon how far the Rule in Rylands vs. Fletcher
(supra) can apply in motor accident cases. The said Rule is summarised by
Blackburn, J, thus:
"The true rule of law is that the person who, for his own purposes, brings on
his land, and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and, if he does not do so, he is prima facie
answerable for all the damage which is the natural consequence of its escape. He
can excuse himself by showing that the escape was owing to the plaintiff's
default, or, perhaps, that the escape was the consequence of vis major, or the
act of God; but, as nothing of this sort exists here, it is unnecessary to
inquire what excuse would be sufficient."
The Rule in Rylands vs. Fletcher has been referred to by this Court in a number
of decisions. While dealing with the liability of industries engaged in
hazardous or dangerous activities P.N. Bhagwati, CJ, speaking for the
Constitution Bench in M.C. Mehta & anr. vs. Union of India and ors.
[1987]1SCR819 : [1987]1SCR819, expressed the view that there is no necessity to
bank on the Rule in Rylands vs. Fletcher. What the learned Judge observed is
this:
"We have to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialised economy. We
cannot allow our judicial thinking to be constricted by reference to the law as
it prevails in England or for the matter of that in any other foreign country.
We no longer need the crutches of a foreign legal order."
It is pertinent to point out that the Constitution Bench did not disapprove the
Rule. On the contrary, learned judges further said that "we are certainly
prepared to receive light from whatever source it comes." It means that the
Constitution Bench did not foreclose the application of the Rule as a legal
proposition.
Like any other common law principle, which is acceptable to our jurisprudence,
the Rule in Rylands vs. Fletcher can be followed at least until any other new
principle which excels the former can be evolved, or until legislation provides
differently. Hence, we are disposed to adopt the Rule in claims for compensation
made in respect of motor accidents.
"No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable
from the rule of strict liability. In the former the compensation amount is
fixed and is payable even if any one of the exceptions to the Rule can be
applied. It is a statutory liability created without which the claimant should
not get any amount under that count. Compensation on account of accident arising
from the use of motor vehicles can be claimed under the common law even without
the aid of a statute. The provisions of the MV Act permits that compensation
paid under 'no fault liability' can be deducted from the final amount awarded by
the Tribunal. Therefore, these two are resting on two different premises. We
are, therefore, of the opinion that even apart from Section 140 of the MV Act, a
victim in an accident which occurred while using a motor vehicle, is entitled to
get compensation from a Tribunal unless any one of the exceptions would apply.
The Tribunal and the High Court have, therefore, gone into error in divesting
the claimants of the compensation payable to them.
Para 17 of the said judgment is as follows.
In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai
and anr. [1987]3SCR404 : [1987]3SCR404 the question considered was regarding the
application of the Rule in cases arising out of motor accidents. The observation
made by E.S. Venkataramiah, J. (as he then was) can profitably be extracted
here:
"Today, thanks to the modern civilization, thousands of motor vehicles are put
on the road and the largest number of injuries and deaths are taking place on
the roads on account of the motor vehicles accidents. In view of the fast and
constantly increasing volume of traffic, the motor vehicles upon the roads may
be regarded to some extent as coming within the principle of liability defined
in Rylands v. Fletcher. From the point of view of the pedestrian the roads of
this country have been rendered by the use of the motor vehicles highly
dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have
caused the accidents are not known are increasing in number. Where a pedestrian
without negligence on his part is injured or killed by a motorist whether
negligently or not, he or his legal representatives as the case may be should be
entitled to recover damages if the principle of social justice should have any
meaning at all. In order to meet to some extent the responsibility of the
society to the deaths and injuries caused in road accidents there has been a
continuous agitation throughout the world to make the liability for damages
arising out of motor vehicles accidents as a liability without fault."
It appears that the provisions of the Motor Vehicles Act are required to be
amended so as to render complete justice to all the victims of motor accidents.
There should be a social security, legislation covering all the victims of the
motor accidents and the dependants of the persons who died in the motor
accidents. Irrespective of the terms and conditions of the policy, the victims
should be paid compensation. In fact the injured or the dependants of the
deceased are no way concerned with the terms and conditions of the policy. They
are not parties to the insurance policy and therefore not bound by the terms and
conditions of the policy. In most of the cases they are only either pedestrians
or traveling in the vehicles. They are not expected to know that the vehicle
which caused the accident was being driven by a person who had no driving
licence or that he was under the influence of alcohol. The dispute should be
between the insured and insurer. In most of the cases, the victims are not
responsible as to the manner of occurring the accident. Whether one vehicle is
involved or more than one vehicle is involved, whether there is composite
negligence of drivers of both the vehicles or whether the accident occurred due
to improper maintenance of the vehicle, in any case the victims are not
responsible. They are also not responsible for the road conditions and if any
person while driving the vehicle violates the relevant rules, the victims should
not be denied compensation for the mistakes committed by the owners of the
vehicles. If violations are continuing, it is the responsibility of the
concerned Government and it's concerned officials. It is for the officials who
had to check those vehicles and prevent the violations of relevant rules. If
the victims are denied compensation on any one of these technical grounds it
amounts to rendering great injustice to such persons. Therefore, it is for the
legislature to consider these aspects and do the needful. Steps have to be
taken to see that compensation is paid to the victims at the first instance.
The Insurance Companies should take steps to attach the movable and immovable
properties of the owners of the vehicle. The police must inform the insurance
companies as soon as an accident occurs and immediate steps should be taken to
attach the vehicle and other properties of the owner of the vehicle if it
appears that there are violations of the terms and conditions of the policy.
Having regard to the ground realities it appears that the rule in Reliance v.
Frecher should be made applicable to the relevant cases to avoid injustice.
The Tribunals are constituted under Section 165 of the Act 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. The word used
in this section is the "use of motor vehicles.
Section 166 of the Act deals with an application for compensation arising out of
an accident of the nature specified in sub-section (1) of Section 165.
Section 167 of the Act is as follows.
Section 167 - Option regarding claims for compensation in certain cases:-
Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of
1923) where the death of, or bodily injury to, any person gives rise to a claim
for compensation under this Act and also under the Workmen's Compensation Act,
1923, the person entitled to compensation may without prejudice to the
provisions of Chapter X claim such compensation under either of those Acts but
not under both.
In fact the question whether the driver of the vehicle had driven the vehicle in
a rash and negligent manner or not do not find place in any one of the sections
referred above. Anyhow Sub-section (3) of Section 140 of the Act envisages that
in any claim for compensation under sub-section (1), the claimant shall not be
required to plead and establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles concerned or of any
other person.
Sub-section (5) of Section 140 is as follows.
(5) Notwithstanding anything contained in sub-section (2) regarding death or
bodily injury to any person, for which the owner of the vehicle is liable to
give compensation for relief, he is also liable to pay compensation under any
other law for the time being in force:
Provided that the amount of such compensation to be given under any other law
shall be reduced from the amount of compensation payable under this section or
under section 163-A.
It appears as from the scheme the compensation under Section 140 has to be paid
as expeditiously as possible as an interim measure. It has to be seen that the
legislature in their wisdom have introduced Section 163-A which is as follows.
163-A. Special provisions as to payment of compensation on structured formula
basis:- (1) Notwithstanding anything contained in this Act or in any other law
for the time being in force or instrument having the force of law, the owner of
the motor vehicle of the authorized insurer shall be liable to pay in the case
of death or permanent disablement due to accident arising out of the use of
motor vehicle, compensation, as indicated in the second schedule, to the legal
heirs or the victim, as the case may be.
Explanation:- For the purposes of this sub-section, "permanent disability" shall
have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8
of 1923)
(2) In any claim for compensation under sub-section (1), the claimant shall not
be required to plead or establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act or neglect
or default of the owner of the vehicle or vehicles concerned or of any other
person.
(3) The Central Government may, keeping in view the cost of living by
notification in the Official Gazette, from time to time amend the second
schedule.
Thus, it is clear that when a claim is made under Section 163-A, the claimant
shall not be required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was due to any wrongful
act, neglect or default of the owner or owner of the vehicle or vehicles
concerned or of any other person.
Sub-section (6) of Section 158 is as follows.
(6) As soon as any information regarding any accident involving death or bodily
injury to any person is recorded or report under this section is completed by a
police officer, the officer incharge of the police station shall forward a copy
of the same within thirty days from the date of recording of information or, as
the case may be, on completion of such report to the Claims Tribunal having
jurisdiction and a copy thereof to the concerned insurer, and where a copy is
made available to the owner, he shall also within thirty days of receipt of such
report, forward the same to such Claims Tribunal and Insurer.
Thus, the police have to forward a report to the Claims Tribunal having
jurisdiction.
It has to be seen that under sub-section(4) of Section 166 the Claims Tribunal
shall treat any report of accidents forwarded to it under sub-section(6) of
section 158 as an application for compensation under this Act. Thus, a report
of accident forwarded to the Tribunal under sub-section(6) of Section 158 is to
be treated as an application for compensation.
There is nothing to say that
such report should be treated as an application under Section 166 of the Act.
It can be treated as an application either under Section 166 or under Section
163-A of the Act. Irrespective of section of law or a particular rule under
which an application has been made the Tribunal has to award just and reasonable
compensation.
If it appears to the Tribunal that it would be just and
reasonable to award compensation under Section 163-A the Tribunal may treat an
application even under Section 166 of the Act as an application filed under
Section 163-A and award just and reasonable compensation. The object of the Act
is to award just and reasonable compensation to the claimants.
No claim shall
be rejected merely on the ground that the claim is made under incorrect section
of law. The ultimate object should be to render complete justice to the parties.
Coming to the negligence aspect there is another aspect.
The van driver seems
to be in advantageous position.
When there was a collision between a bus and
scooter resulting the death of scooterist the Madras High Court in case between
Dheeran Chinnamalai Transport Corporation Ltd., v. Donald Vassou8, observed that
the driver while driving the bus from an elevated position would have been in a
position to visualize the movement of the vehicle in front.
In the said case,
the Madras High Court, referring to another case of the same High Court in
Alagamnai @ Indirani v. Managing Director, Marudhu Pandian Transport Corporation
(1997 ACJ 1323) observed as follows.
".................the driver of the bus driving from an elevated position, would
be able to visualize the movement of the vehicle in front of him because of his
position and that had he been more diligent, he could have avoided the accident
and that merely because the rider of the scooter came in the wrong direction,
the apportionment of the negligence fixed by the Tribunal 50:50 between the bus
driver and the rider of the scooter cannot be accepted to be a correct one.
In
the said case, the Division Bench of this Court fixed the negligence on the part
of the driver and the victim as 60:40."
Having regard to the above discussion, the facts have to be appreciated. It
appears that three persons were sitting in the back seat of the auto.
There
were two persons on either side of the driver of the auto.
Thus, the driver of
auto was sitting between two persons on his driving seat.
Thus, it is clear
that auto was also over loaded with passengers.
Admittedly, the van driver
being in elevated position would be able to visualize the movement of the auto
which was coming from his opposite direction.
Had he been more diligent he
could have avoided the accident. It cannot be said that the accident occurred solely due to the negligence of the auto driver.
It is a fact that the auto
driver is also not examined in this case.
It is also a fact that the rough
sketch of the scene of offence is not filed in this case as well as in criminal
case.
The panchanama prepared at the scene of offence is also not filed in
this case. Of course it was filed in criminal case, but the said record is not
available.
Since the accident occurred on 23.02.1995 i.e., about 17 years back,
it may not be possible to secure those records at present.
According to PW.2,
the Van driver is negligent.
Having regard to the fact that the auto was over
loaded and the fact that the driver of the Van was in elevated position and
could have visualized the movements of the auto, it may be just and reasonable
to apportion the negligence between the van driver and auto driver as 60:40.
The next point that arises for consideration is what is the just and reasonable
compensation that can be awarded in the circumstances of the case?
The claimants have claimed compensation of Rs.10,00,000/-.
The claimants
averred that the deceased was earning Rs.3,500/- per month.
After amending
their claim petition they have examined PW.4, the Deputy Personnel Manager of
Singareni Collieries Limited.
Ex.A8 is the salary certificate of the deceased
issued by the Senior Divisional Engineer, Opencast Project No.1, Ramagundam-IV.
It shows that the deceased was drawing gross salary of Rs.5143-67 ps., and net
salary of Rs.4083/-.
It also shows that the deceased was entitled to daily
basic of Rs.47-84 ps., for 26 days and if he works more musters he would get
more amount.
The claimants also examined PW.3 who deposed that the deceased
would have got 60% more of his wages when he would have got promotion to
category III. According to PW.1 her husband was earning Rs.5,000/- per month.
The deceased was admittedly aged 37 years as on the date of accident.
Having regard to the principles laid down in case between
Sarla Verma v. Delhi Transport Corporation9,
there should be increase of 1/4th in the income of the
deceased.
If the income of the deceased is taken at Rs.5,000/- per month,
having regard to his expected enhancement of salary, the income of the deceased
should be calculated at Rs.6,250/- per month.
Since there are three dependents
1/3 has to be deducted towards his personal expenses.
If the same is deducted loss of dependency comes to Rs.4170/- per month and annual loss of dependency comes to Rs.50,040/-.
The appropriate multiplier would be '15'. If '15'
multiplier is applied the total loss of dependency comes to Rs.7,50,600/-.
The
claimants are also entitled to Rs.20,000/- i.e.,
Rs.10,000/- towards consortium,
Rs.5,000/- towards funeral expenses and
Rs.5,000/- towards transportation charges etc.
Thus, total compensation comes to Rs.7,70,600/-.
Respondents 1, 2
and 4 are jointly and severally liable to pay 60% of the awarded amount.
The
third respondent is liable to pay 40% of the compensation amount in view of the
apportionment of the negligence between the van driver and the third respondent-
driver of the auto.
The rate of interest shall be 7.5% p.a., from the date of
petition till realization.
Out of the amount awarded,
the first claimant shall take Rs.4,00,000/-,
the second claimant shall take Rs.3,00,000/- and
the third claimant shall take Rs.70,600/-.
The second claimant is aged about 6 years as
on the date of filing of the petition and it appears that as on date he attained
majority.
In view of the age of the third claimant he is permitted to withdraw
the amount awarded to him.
Similarly, the first and second claimants are
permitted to withdraw half of the amount awarded to them with accrued interest
thereon and the first claimant is permitted to withdraw the costs of the
petition.
The remaining amount awarded to the first and second claimants shall
be kept in fixed deposit for a period of three years.
However, if they are in
need of money, they may approach the Tribunal seeking permission to withdraw the
amount with accrued periodical interest on those fixed deposits and the Tribunal
having regard to their necessity, if satisfied, may permit them to withdraw the
amount.
Accordingly, the MACMA is allowed in part. No costs.
As a sequel, the miscellaneous petitions, if any, shall stand closed.
_____________________
B. CHANDRA KUMAR, J.
Date: 15.03.2013
THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR
M.A.C.M.A. No. 570 of 2006
15.03.2013
Dadi Komuravva and others
Garshe Buchaiah and others
Counsel for the Appellants: Sri Kota subba Rao
Counsel for the Respondents: Sri Nisaruddin Ahmed Jeddy
Sri V. Sambasiva Rao
Sri I. Naveen Kumar
<Gist :
>Head Note:
?Cases Referred:
1. 2004(5) ALT 322
2. 2008(3) ALD 80(DB)
3. 2005 ACJ 588
4. 2009 ACJ 187
5. 2011(4) ALD 332
6. 2005 ACJ 543
7. 2001 ACJ 428
8. 2000 ACJ 1076
9. (2009) 6 SCC 121
Judgment:
The claimants before the Motor Accidents Claims Tribunal
(I Additional District Judge), at Karimnagar, challenging the dismissal order,
dated 21.02.2003, passed in OP No. 361 of 1998, filed this appeal.
The parties hereinafter will be referred to as they are arrayed before the
Tribunal for the sake of convenience.
The first claimant is the wife of late Dadi Odelu and the second claimant
is their daughter and the third claimant is the adoptive father of late Dadi
Odelu. On 23.02.1995 at about 11.30 AM the deceased and others were proceeding
in an Auto bearing No. ABT 9291 being driven by one Md. Sadiq, the third
respondent in the claim petition. When the said auto reached Mangalampalli bus
stage, the Van bearing No.AP-9T-5724 being driven by the first respondent in a
rash and negligent manner came from opposite direction and hit the auto. As a
result of which, the deceased sustained multiple injuries and he was shifted to
Singareni Hospital, wherein it was declared that he was brought dead. The
driver of the auto and other passengers also sustained injuries. Alleging that
the accident occurred due to negligence of the first respondent i.e., van driver
the claimants claimed compensation against respondents 1 and 2.
The first respondent is the driver and the second respondent is the owner
of the said Van. The third respondent is the driver of the auto. The fourth
respondent is the Insurance Company with which the Van of the second respondent
is insured. The third respondent remained
ex parte. The first and second respondents filed a common counter. The fourth
respondent filed a separate counter. It is the case of the respondents 1, 2 and
4 that the accident occurred due to the negligence of the auto driver i.e., the
third respondent. It is also their case that one of the passenger lodged a
complaint to the police against the auto driver basing on which the police
registered a case in Crime No.41 of 1995 against the third respondent- auto
driver. The other averments of the claimants with regard to the manner in
which accident was occurred and income of the deceased etc., have been denied.
The Tribunal framed the following issues.
1. Whether the accident was caused by the first respondent/driver by his rash or
negligent driving of the vehicle?
2. Whether the petitioners are entitled to recover compensation and if so, to
what amount and from whom?
3. To what relief?
On behalf of the claimants, the first claimant was examined as PW.1 and PWs.2 to
4 were also examined and Exs.A1 to A11 were marked. On behalf of the
respondents RWs.1 and 2 were examined and Exs.B1 to B3 were marked.
On appreciation of entire oral and documentary evidence, the Tribunal came to
the conclusion that the accident occurred due to rash and negligent driving of
the auto driver. The Tribunal also came to the conclusion that the claimants
are entitled to a compensation of Rs.4,22,112/-. The Tribunal also held that
the claimants cannot claim compensation from the respondents 1, 2 and 4 and
there is no claim against the third respondent and accordingly dismissed the
claim petition. Aggrieved by the said award, this appeal has been filed.
The main contention of Sri Kota Subba Rao, learned counsel for the claimants, is
that the Tribunal failed to appreciate the evidence of PW.2 and wrongly relied
on Ex.A1. It is also argued that the auto being small vehicle when compared to
the Van, the Tribunal ought to have held that the driver of the Van is
responsible for the incident. It is also argued that mere use of the vehicle on
public road is enough to claim compensation and when two vehicles are involved
it cannot be definitely said that the driver of one vehicle is totally innocent.
In support of his contentions he has relied on several decisions.
Learned counsel for the respondents submitted that soon after the accident, the
passenger traveling in the auto lodged a complaint to the police, wherein it was
categorically mentioned that the accident occurred due to negligence of the auto
driver and in the above circumstances the findings of the Tribunal cannot be
disturbed.
The points that arise for consideration are;
1. Whether the accident occurred due to the negligence of Van driver or auto
driver or whether there is composite negligence?
2. Whether the Tribunal can base its findings on the FIR when the de facto
complainant is an illiterate and what should be the basis for deciding the
negligence aspect?
3. Is it necessary to prove the rough and negligent driving in all the cases?
It is not in dispute that both the vehicles i.e., the auto and van are involved
in the accident. It appears that one Ramagiri Lingaiah lodged a complaint to
the police, basing upon which the police registered a case in Crime No.41 of
1995. As seen from the recitals of Ex.A1-FIR, on 23.02.1995 the said Ramagiri
Lingaiah and others were proceeding in the auto. The deceased was also sitting
in the auto. It is a fact that in Ex.A1 it is mentioned that the driver of the
auto Md. Sadiq had driven the auto in zigzag manner and in a rash and negligent
manner and dashed against the Van. The police after completing investigation
filed charge sheet against the said Sadiq. The recitals of the charge sheet go
to show that the police conducted panchanama at the place of accident and had
drawn a rough sketch of the place of accident. The Motor Vehicle Inspector also
seems to have examined the auto and opined that the accident is not due to any
mechanical defects of the vehicle. The wife of the deceased was examined as
PW.1. She is not an eye witness to the incident. PW.2 is the crucial witness.
According to him, on the date of accident, he along with the deceased and others
were proceeding in the auto. They boarded the auto at Mangalampalli bus stage.
According to him, their auto was hit by a Van which came from opposite direction
and the accident occurred due to the rash and negligent driving of the Van
driver and that the auto driver was not negligent. According to him, the police
obtained his statement, but he did not state before the police that the driver
of the auto drove the same in a rash and negligent manner and the auto went
towards wrong side and hit the Van. PW.2 had put his thumb impression on his
deposition. It is not clear from the certified copy of complaint that PW.2 had
put his thumb impression on the original complaint.
The van driver is examined as RW.1. Admittedly, he was driving the van on the
date of accident. According to him, he was working under the second respondent
and that while he was slowly driving the van along the left side of the road,
the auto driven by the third respondent came in opposite direction in a jig jag
manner and hit against his van on its rear portion and turned turtle. He
admitted that the passengers traveling in the auto sustained injuries.
According to him he had not driven the van in rash and negligent manner.
According to him, somebody took the injured to the hospital and he did not give
any report to the police. He remained at the place of accident till the police
came there and enquired him about the accident. He denied the suggestion that
at the instance of his owner the police registered a case against the driver of
the auto. He has also denied the suggestion that he had absconded from the
scene of accident soon after the accident. The evidence of RW.1, the driver of
the Van, does not inspire confidence. Admittedly, he has not shifted the
injured to the hospital, which is his obligation. He had not reported the
matter to the police. According to him, the auto hit his van on its rear
portion. But, it is nobody's case. The contents of the FIR go to show that the
auto dashed against the Van and both the vehicles were coming in opposite
direction. There remains the evidence of PW.2. A written complaint seems to
have been given to the police. PW.2 being a person who affixed his thumb
impression must have depended on some other person to reduce the complaint into
writing. The scribe of the original complaint is not examined and his name is
not mentioned anywhere in the FIR. Therefore, it is not clear as to who is the
original author of the FIR and on whose information it is mentioned that the
auto driver drove the same in a rash and negligent manner and dashed against the
Van. The time of accident is noted as 11.30 AM in the FIR. In Form-54 i.e., in
Ex.A4 the time of accident is noted as 09.30 hours. In the Motor Vehicle
Inspector's report Ex.A6 the time of accident is noted as 09.30 hours and time
of inspection as 10-00 hours. Thus, it is clear that the police had information
by 09.30 AM and the Motor Vehicle Inspector visited the place of accident by
10.00 AM. It is also clear that the name of the first informant is not
mentioned any where. Thus, it is clear that the first information has been
suppressed and PW.2 is not the first informant. As seen from the evidence, it
appears that the accident occurred much prior to 09.30 AM. Including the driver
of the auto, PW.2, the deceased and others, who were travelling in the auto,
were injured and they were immediately shifted to the hospital. According to
the driver of the van, he did not shift any of the injured to the hospital and
he did not give any police report. According to the driver of the van, the
police came to the scene of offence at about 03:00 PM. When the police station
is only at a distance of about 4 kilometers from the place of the accident, it
is not clear as to why the police took 61/2 hours to reach the scene of offence.
In that view of the matter, the contents of the FIR need not be given much
importance. When it cannot be definitely said that PW.2 is the author of the
FIR, it cannot be definitely said that he has re-assailed from his original
version, because what is the original version is not available. If at all PW.2
had been the scribe of the original complaint, then it could have been
definitely said that he has re-assailed from the original version. PW.2 further
deposed that the police obtained his signature on a written report. Probably
the word signature in the FIR appears to be incorrect. It must be thumb
impression because PW.2 is an illiterate and he had put his thumb impression in
his deposition. PW.2 denied the suggestion that he had stated before the police
that the driver of the auto was rash and negligent in driving the auto and that
the auto went on wrong side and hit the Van. He denied the suggestion that only
to help the claimants and since the auto was not insured he is deposing against
the driver of the Van. It has to be seen that no suggestion is given to this
witness that the auto hit on the rear side portion of the van. Though on behalf
of the Insurance Company RW.2 was examined, admittedly he is not an eye witness.
Therefore, his evidence is not useful. According to PW.2 the driver of the auto
also sustained injuries. The contents of the FIR also go to show that the auto
driver also sustained injuries. It appears that all the injured were shifted to
Area Hospital, Godavarikhani. Admittedly, the van driver did not give report to
the police. In the above circumstances it cannot be said that the contents of
the FIR reveal the true facts.
The claimants have also filed Ex.A11 certified copy of judgment in C.C. No. 165
of 1995 on the file of the Special Judicial Magistrate of First Class (Mobile),
Manthani. It shows that after trial the learned Magistrate has acquitted the
driver of the auto. It appears that the Investigating Officer was not examined
in the criminal case.
The claimants' allegation is that the accident occurred due to the rash
and negligent driving of the driver of the van, but respondents 1 and 2 managed
the police and got registered a case against the third respondent. However,
respondents 1 and 2 have denied the said averment.
Learned counsel for the appellant had relied on the judgment in the case
between APSRTC Vs. N.Krishna Reddi and others1. In that case, it was alleged
that the accident took place due to the rash and negligent driving of the driver
of the bus belonging to the appellants. The accident occurred as a result of
collusion between the van which the deceased was driving and the bus belonging
to the appellant. The bus driver was examined as R.W.1. Since R.W.1 was
charge-sheeted and P.W.1 stated that the accident occurred due to the rash and
negligent driving of the driver of the bus, the Tribunal held that the accident
occurred due to rash and negligent driving of the driver of the bus. Thus, it
is observed as follows:-
"Merely because the police charge sheeted RW1 it cannot be presumed that
the allegations therein are true. The allegations in the charge sheet have to be
proved by adducing oral evidence. It is significant to note that Ex.A2,
certified copy of the charge sheet, does not show that the investigating officer
took pains to visit the scene of accident and verify as to how actually the
accident took place. He did not even take pains to conduct a panchanama of the
scene of accident and draw a sketch of the scene of accident though the driver
of the van died in the accident."
Thus, it appears that in fatal accident cases, panchanama and sketch of
scene of offence are very important because they reveal the position of the
vehicles and the skid marks after the accident and that would help the Court to
come to a correct conclusion and the contents of FIR or the charge-sheet cannot
be treated as conclusive proof. In this case, admittedly, criminal case filed
against the auto driver ended in acquittal. In that view of the matter, no
importance can be given to the contents of FIR.
Learned counsel for the appellant had also relied on the judgment in the
case between Repaka Rajya Laxmi and others Vs. Poldasari Komuraiah and others2,
wherein the eyewitness was not cited as witness by the police in the charge-
sheet, this Court observed that mere non mentioning of the name of the witness
in the charge sheet as eye-witness cannot be a ground to reject his testimony.
In the case between Syed Ibrahim Vs. Union of India and another3, this
Court observed that the findings of the judgment of the trial Court are not
binding on the Tribunal or civil Court and the evidence adduced before the
Tribunal has to be taken into consideration. It was also observed that the
purpose of filing of FIR and charge-sheet is only to establish the factum of the
accident and receiving of injuries as a result thereof by the injured. Merely
because the police issued FIR or laid charge sheet against a driver, the
contents of the FIR and charge sheet cannot be the basis for deciding the
negligence aspect. The Tribunal should appreciate the evidence adduced before
it in proper perspective.
Learned counsel for the appellant had also relied on the judgment in the
case between Sombathina Ramu Vs. T.Srinivasulu and another4. In that case, the
theory of contributory negligence was discussed. Since the deceased has not
played any role in the accident, the question of contributory negligence does
not arise in this case and when two vehicles are involved in the accident, it
has to be decided whether there is a contributory negligence of the drivers of
the two vehicles or whether any one of the is solely responsible for the
accident or when both of the drivers are involved in the accident, the
apportionment of negligence has to be done between those two drivers.
Learned counsel for the appellant had also relied on the judgment in the
case between United India Insurance Co. Ltd. Hyderabad Vs. P.Prabhavathi and
others5. In that case, the vehicle damaged in a bomb blast arising out of
factious disputes was involved in the accident. This Court had relied on the
judgment of a Division Bench in the case between Bhupati Prameela and others Vs.
Superintendent of Police, Vizianagaram {(2010 (4) ALD 531 (DB)}, wherein, the
Division Bench elaborately discussed the issue of claimants entitlement to
compensation irrespective of the proof of rash and negligent driving by the
driver of the vehicle. The Division Bench held that negligence is breach of
duty imposed by law and when an act is done without due care and caution or done
with recklessness and indifference to consequences, such act has to be treated
as rash and negligent act. The Division Bench further, on exhaustive
examination of the case law, concluded that the vehicle need not be in motion at
the time of the accident and even where the owner of the vehicle fails to take
care to check the mechanical defects of the vehicle or where there is no
evidence that owner has taken all necessary precautions for maintenance of the
vehicle, such acts also should be treated as negligent acts in using the
vehicle. It is also observed that where the owner or the driver or conductor
had not taken necessary precautionary measures for the safety of passengers
although terrorist attacks suspected and the vehicle met with an accident in
terrorist attacks, that circumstance is sufficient to hold that there is rash
and negligent driving of the vehicle. In such circumstances, use of the vehicle
in public place is sufficient and compensation should be awarded treating it as
an application filed under Section 163-A of the M.V. Act.
Therefore, it appears that a broader outlook is necessary while dealing
with the claim arising out of use of motor vehicles.
Reliance has also been placed on the judgment in the case between Kore
Laxmi and others Vs. United India Insurance Co. Ltd., and others6. In that
case, the dependents of the deceased driver, whose lorry collided with another
lorry, claimed compensation under Section 166 of the Motor Vehicles Act. The
Tribunal found that the accident occurred due to negligence of the deceased
driver, but however, restricted their claim to the amount they claimed by
applying the table given in Second Schedule in Motor Vehicles Act under Section
163-A of the Act. While dealing with Section 163-A of the Motor Vehicles Act,
the Division Bench of this Court observed as follows-
"It would be suffice to claim compensation to prove that the vehicle was
involved in the accident. In fact, sub-section (2) of section 163-A makes it
clear that the claimant is not required to plead or establish that the death or
permanent disablement in respect of which the claim has been made due to any
wrongful act or negligent or default of the owner of the vehicle or vehicles
concerned or of any other person and under sub-section (3) the compensation
payable in the case of fatal accidents as well as death were given."
In that case, the claimants filed an application under Section 166 of the
Motor Vehicles Act and it was argued that the Tribunal erred in applying the
table given in Second Schedule in Motor Vehicles Act under Section 163-A of the
Act. The Division Bench of this Court rejected the said objection holding that
such objection cannot be sustained since the Supreme Court, as early as in 1950
held that even if a party approaches the Court invoking a wrong provision, the
Court is always bound to do justice by applying the correct law.
Sri Kota Subba Rao, learned counsel for the claimants, heavily relies on the
rule laid down in the case between Rylands Vs. Fletcher {1861-73 All ER 1 :
(1868) LR 3 HL 330}, which decision was referred by the Apex Court in the case
between Kaushnuma Begum and others Vs. New India Assurance Co. Ltd. and others7.
In that case, the claim was dismissed solely on the ground that there was
neither rashness nor negligence in driving the vehicle. The claimants were
unsuccessful before the Division Bench of the High Court of Allahabad. The
matter was carried to the Apex Court. The jeep involved in the accident was
capsized due to bursting of front tyre of the jeep and in that process hit the
deceased whose dependants claimed compensation for his death. Having found that
the front wheel of the jeep suddenly got burst resulting in the disbalance, it
was held that the rashness and negligence of the driver is not established. The
question that came up for consideration before the Apex Court is "Should there
necessarily be negligence of the person who drove the vehicle if a claim for
compensation is to be sustained?" While referring to Sections 165(1) and 175 of
the Motor Vehicles Act, 1988 (for short 'the Act') the Apex Court, in paras 10,
11, 14, 15, 18 and 19, observed as follows.
"It must be noted that the jurisdiction of the Tribunal is not restricted to
decide claims arising out of negligence in the use of motor vehicles. Negligence
is only one of the species of the causes of action for making a claim for
compensation in respect of accidents arising out of the use of motor vehicles.
There are other premises for such cause of action.
Even if there is no negligence on the part of the driver or owner of the motor
vehicle, but accident happens while the vehicle was in use, should not the owner
be made liable for damages to the person who suffered on account of such
accident? This question depends upon how far the Rule in Rylands vs. Fletcher
(supra) can apply in motor accident cases. The said Rule is summarised by
Blackburn, J, thus:
"The true rule of law is that the person who, for his own purposes, brings on
his land, and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and, if he does not do so, he is prima facie
answerable for all the damage which is the natural consequence of its escape. He
can excuse himself by showing that the escape was owing to the plaintiff's
default, or, perhaps, that the escape was the consequence of vis major, or the
act of God; but, as nothing of this sort exists here, it is unnecessary to
inquire what excuse would be sufficient."
The Rule in Rylands vs. Fletcher has been referred to by this Court in a number
of decisions. While dealing with the liability of industries engaged in
hazardous or dangerous activities P.N. Bhagwati, CJ, speaking for the
Constitution Bench in M.C. Mehta & anr. vs. Union of India and ors.
[1987]1SCR819 : [1987]1SCR819, expressed the view that there is no necessity to
bank on the Rule in Rylands vs. Fletcher. What the learned Judge observed is
this:
"We have to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialised economy. We
cannot allow our judicial thinking to be constricted by reference to the law as
it prevails in England or for the matter of that in any other foreign country.
We no longer need the crutches of a foreign legal order."
It is pertinent to point out that the Constitution Bench did not disapprove the
Rule. On the contrary, learned judges further said that "we are certainly
prepared to receive light from whatever source it comes." It means that the
Constitution Bench did not foreclose the application of the Rule as a legal
proposition.
Like any other common law principle, which is acceptable to our jurisprudence,
the Rule in Rylands vs. Fletcher can be followed at least until any other new
principle which excels the former can be evolved, or until legislation provides
differently. Hence, we are disposed to adopt the Rule in claims for compensation
made in respect of motor accidents.
"No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable
from the rule of strict liability. In the former the compensation amount is
fixed and is payable even if any one of the exceptions to the Rule can be
applied. It is a statutory liability created without which the claimant should
not get any amount under that count. Compensation on account of accident arising
from the use of motor vehicles can be claimed under the common law even without
the aid of a statute. The provisions of the MV Act permits that compensation
paid under 'no fault liability' can be deducted from the final amount awarded by
the Tribunal. Therefore, these two are resting on two different premises. We
are, therefore, of the opinion that even apart from Section 140 of the MV Act, a
victim in an accident which occurred while using a motor vehicle, is entitled to
get compensation from a Tribunal unless any one of the exceptions would apply.
The Tribunal and the High Court have, therefore, gone into error in divesting
the claimants of the compensation payable to them.
Para 17 of the said judgment is as follows.
In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai
and anr. [1987]3SCR404 : [1987]3SCR404 the question considered was regarding the
application of the Rule in cases arising out of motor accidents. The observation
made by E.S. Venkataramiah, J. (as he then was) can profitably be extracted
here:
"Today, thanks to the modern civilization, thousands of motor vehicles are put
on the road and the largest number of injuries and deaths are taking place on
the roads on account of the motor vehicles accidents. In view of the fast and
constantly increasing volume of traffic, the motor vehicles upon the roads may
be regarded to some extent as coming within the principle of liability defined
in Rylands v. Fletcher. From the point of view of the pedestrian the roads of
this country have been rendered by the use of the motor vehicles highly
dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have
caused the accidents are not known are increasing in number. Where a pedestrian
without negligence on his part is injured or killed by a motorist whether
negligently or not, he or his legal representatives as the case may be should be
entitled to recover damages if the principle of social justice should have any
meaning at all. In order to meet to some extent the responsibility of the
society to the deaths and injuries caused in road accidents there has been a
continuous agitation throughout the world to make the liability for damages
arising out of motor vehicles accidents as a liability without fault."
It appears that the provisions of the Motor Vehicles Act are required to be
amended so as to render complete justice to all the victims of motor accidents.
There should be a social security, legislation covering all the victims of the
motor accidents and the dependants of the persons who died in the motor
accidents. Irrespective of the terms and conditions of the policy, the victims
should be paid compensation. In fact the injured or the dependants of the
deceased are no way concerned with the terms and conditions of the policy. They
are not parties to the insurance policy and therefore not bound by the terms and
conditions of the policy. In most of the cases they are only either pedestrians
or traveling in the vehicles. They are not expected to know that the vehicle
which caused the accident was being driven by a person who had no driving
licence or that he was under the influence of alcohol. The dispute should be
between the insured and insurer. In most of the cases, the victims are not
responsible as to the manner of occurring the accident. Whether one vehicle is
involved or more than one vehicle is involved, whether there is composite
negligence of drivers of both the vehicles or whether the accident occurred due
to improper maintenance of the vehicle, in any case the victims are not
responsible. They are also not responsible for the road conditions and if any
person while driving the vehicle violates the relevant rules, the victims should
not be denied compensation for the mistakes committed by the owners of the
vehicles. If violations are continuing, it is the responsibility of the
concerned Government and it's concerned officials. It is for the officials who
had to check those vehicles and prevent the violations of relevant rules. If
the victims are denied compensation on any one of these technical grounds it
amounts to rendering great injustice to such persons. Therefore, it is for the
legislature to consider these aspects and do the needful. Steps have to be
taken to see that compensation is paid to the victims at the first instance.
The Insurance Companies should take steps to attach the movable and immovable
properties of the owners of the vehicle. The police must inform the insurance
companies as soon as an accident occurs and immediate steps should be taken to
attach the vehicle and other properties of the owner of the vehicle if it
appears that there are violations of the terms and conditions of the policy.
Having regard to the ground realities it appears that the rule in Reliance v.
Frecher should be made applicable to the relevant cases to avoid injustice.
The Tribunals are constituted under Section 165 of the Act 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. The word used
in this section is the "use of motor vehicles.
Section 166 of the Act deals with an application for compensation arising out of
an accident of the nature specified in sub-section (1) of Section 165.
Section 167 of the Act is as follows.
Section 167 - Option regarding claims for compensation in certain cases:-
Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of
1923) where the death of, or bodily injury to, any person gives rise to a claim
for compensation under this Act and also under the Workmen's Compensation Act,
1923, the person entitled to compensation may without prejudice to the
provisions of Chapter X claim such compensation under either of those Acts but
not under both.
In fact the question whether the driver of the vehicle had driven the vehicle in
a rash and negligent manner or not do not find place in any one of the sections
referred above. Anyhow Sub-section (3) of Section 140 of the Act envisages that
in any claim for compensation under sub-section (1), the claimant shall not be
required to plead and establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles concerned or of any
other person.
Sub-section (5) of Section 140 is as follows.
(5) Notwithstanding anything contained in sub-section (2) regarding death or
bodily injury to any person, for which the owner of the vehicle is liable to
give compensation for relief, he is also liable to pay compensation under any
other law for the time being in force:
Provided that the amount of such compensation to be given under any other law
shall be reduced from the amount of compensation payable under this section or
under section 163-A.
It appears as from the scheme the compensation under Section 140 has to be paid
as expeditiously as possible as an interim measure. It has to be seen that the
legislature in their wisdom have introduced Section 163-A which is as follows.
163-A. Special provisions as to payment of compensation on structured formula
basis:- (1) Notwithstanding anything contained in this Act or in any other law
for the time being in force or instrument having the force of law, the owner of
the motor vehicle of the authorized insurer shall be liable to pay in the case
of death or permanent disablement due to accident arising out of the use of
motor vehicle, compensation, as indicated in the second schedule, to the legal
heirs or the victim, as the case may be.
Explanation:- For the purposes of this sub-section, "permanent disability" shall
have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8
of 1923)
(2) In any claim for compensation under sub-section (1), the claimant shall not
be required to plead or establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act or neglect
or default of the owner of the vehicle or vehicles concerned or of any other
person.
(3) The Central Government may, keeping in view the cost of living by
notification in the Official Gazette, from time to time amend the second
schedule.
Thus, it is clear that when a claim is made under Section 163-A, the claimant
shall not be required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was due to any wrongful
act, neglect or default of the owner or owner of the vehicle or vehicles
concerned or of any other person.
Sub-section (6) of Section 158 is as follows.
(6) As soon as any information regarding any accident involving death or bodily
injury to any person is recorded or report under this section is completed by a
police officer, the officer incharge of the police station shall forward a copy
of the same within thirty days from the date of recording of information or, as
the case may be, on completion of such report to the Claims Tribunal having
jurisdiction and a copy thereof to the concerned insurer, and where a copy is
made available to the owner, he shall also within thirty days of receipt of such
report, forward the same to such Claims Tribunal and Insurer.
Thus, the police have to forward a report to the Claims Tribunal having
jurisdiction.
It has to be seen that under sub-section(4) of Section 166 the Claims Tribunal
shall treat any report of accidents forwarded to it under sub-section(6) of
section 158 as an application for compensation under this Act. Thus, a report
of accident forwarded to the Tribunal under sub-section(6) of Section 158 is to
be treated as an application for compensation.
There is nothing to say that
such report should be treated as an application under Section 166 of the Act.
It can be treated as an application either under Section 166 or under Section
163-A of the Act. Irrespective of section of law or a particular rule under
which an application has been made the Tribunal has to award just and reasonable
compensation.
If it appears to the Tribunal that it would be just and
reasonable to award compensation under Section 163-A the Tribunal may treat an
application even under Section 166 of the Act as an application filed under
Section 163-A and award just and reasonable compensation. The object of the Act
is to award just and reasonable compensation to the claimants.
No claim shall
be rejected merely on the ground that the claim is made under incorrect section
of law. The ultimate object should be to render complete justice to the parties.
Coming to the negligence aspect there is another aspect.
The van driver seems
to be in advantageous position.
When there was a collision between a bus and
scooter resulting the death of scooterist the Madras High Court in case between
Dheeran Chinnamalai Transport Corporation Ltd., v. Donald Vassou8, observed that
the driver while driving the bus from an elevated position would have been in a
position to visualize the movement of the vehicle in front.
In the said case,
the Madras High Court, referring to another case of the same High Court in
Alagamnai @ Indirani v. Managing Director, Marudhu Pandian Transport Corporation
(1997 ACJ 1323) observed as follows.
".................the driver of the bus driving from an elevated position, would
be able to visualize the movement of the vehicle in front of him because of his
position and that had he been more diligent, he could have avoided the accident
and that merely because the rider of the scooter came in the wrong direction,
the apportionment of the negligence fixed by the Tribunal 50:50 between the bus
driver and the rider of the scooter cannot be accepted to be a correct one.
In
the said case, the Division Bench of this Court fixed the negligence on the part
of the driver and the victim as 60:40."
Having regard to the above discussion, the facts have to be appreciated. It
appears that three persons were sitting in the back seat of the auto.
There
were two persons on either side of the driver of the auto.
Thus, the driver of
auto was sitting between two persons on his driving seat.
Thus, it is clear
that auto was also over loaded with passengers.
Admittedly, the van driver
being in elevated position would be able to visualize the movement of the auto
which was coming from his opposite direction.
Had he been more diligent he
could have avoided the accident. It cannot be said that the accident occurred solely due to the negligence of the auto driver.
It is a fact that the auto
driver is also not examined in this case.
It is also a fact that the rough
sketch of the scene of offence is not filed in this case as well as in criminal
case.
The panchanama prepared at the scene of offence is also not filed in
this case. Of course it was filed in criminal case, but the said record is not
available.
Since the accident occurred on 23.02.1995 i.e., about 17 years back,
it may not be possible to secure those records at present.
According to PW.2,
the Van driver is negligent.
Having regard to the fact that the auto was over
loaded and the fact that the driver of the Van was in elevated position and
could have visualized the movements of the auto, it may be just and reasonable
to apportion the negligence between the van driver and auto driver as 60:40.
The next point that arises for consideration is what is the just and reasonable
compensation that can be awarded in the circumstances of the case?
The claimants have claimed compensation of Rs.10,00,000/-.
The claimants
averred that the deceased was earning Rs.3,500/- per month.
After amending
their claim petition they have examined PW.4, the Deputy Personnel Manager of
Singareni Collieries Limited.
Ex.A8 is the salary certificate of the deceased
issued by the Senior Divisional Engineer, Opencast Project No.1, Ramagundam-IV.
It shows that the deceased was drawing gross salary of Rs.5143-67 ps., and net
salary of Rs.4083/-.
It also shows that the deceased was entitled to daily
basic of Rs.47-84 ps., for 26 days and if he works more musters he would get
more amount.
The claimants also examined PW.3 who deposed that the deceased
would have got 60% more of his wages when he would have got promotion to
category III. According to PW.1 her husband was earning Rs.5,000/- per month.
The deceased was admittedly aged 37 years as on the date of accident.
Having regard to the principles laid down in case between
Sarla Verma v. Delhi Transport Corporation9,
there should be increase of 1/4th in the income of the
deceased.
If the income of the deceased is taken at Rs.5,000/- per month,
having regard to his expected enhancement of salary, the income of the deceased
should be calculated at Rs.6,250/- per month.
Since there are three dependents
1/3 has to be deducted towards his personal expenses.
If the same is deducted loss of dependency comes to Rs.4170/- per month and annual loss of dependency comes to Rs.50,040/-.
The appropriate multiplier would be '15'. If '15'
multiplier is applied the total loss of dependency comes to Rs.7,50,600/-.
The
claimants are also entitled to Rs.20,000/- i.e.,
Rs.10,000/- towards consortium,
Rs.5,000/- towards funeral expenses and
Rs.5,000/- towards transportation charges etc.
Thus, total compensation comes to Rs.7,70,600/-.
Respondents 1, 2
and 4 are jointly and severally liable to pay 60% of the awarded amount.
The
third respondent is liable to pay 40% of the compensation amount in view of the
apportionment of the negligence between the van driver and the third respondent-
driver of the auto.
The rate of interest shall be 7.5% p.a., from the date of
petition till realization.
Out of the amount awarded,
the first claimant shall take Rs.4,00,000/-,
the second claimant shall take Rs.3,00,000/- and
the third claimant shall take Rs.70,600/-.
The second claimant is aged about 6 years as
on the date of filing of the petition and it appears that as on date he attained
majority.
In view of the age of the third claimant he is permitted to withdraw
the amount awarded to him.
Similarly, the first and second claimants are
permitted to withdraw half of the amount awarded to them with accrued interest
thereon and the first claimant is permitted to withdraw the costs of the
petition.
The remaining amount awarded to the first and second claimants shall
be kept in fixed deposit for a period of three years.
However, if they are in
need of money, they may approach the Tribunal seeking permission to withdraw the
amount with accrued periodical interest on those fixed deposits and the Tribunal
having regard to their necessity, if satisfied, may permit them to withdraw the
amount.
Accordingly, the MACMA is allowed in part. No costs.
As a sequel, the miscellaneous petitions, if any, shall stand closed.
_____________________
B. CHANDRA KUMAR, J.
Date: 15.03.2013
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