1. The above First Appeal is filed by the Insurer M/s. Marine and General Insurance Co., Ltd., Appellant No. 1, the insured owner of the motor lorry, bearing No. MRT 8615 Minu D. Mehta -- Partner, Cawasji Behramji and Co., Appellant No. 2 and the said partnership firm, Appellant No. 3, under Section 110-D of the Motor Vehicles Act, 1939, against the award passed against them in the sum of Rs. l,43,400/- on an application for compensation made to the Tribunal by Respondent Dr. Balkrishna Ramchandra Nayan.
2. By the award a sum of Rupees 500/- was also awarded to Smt. Malati M. Deshmukh, nurse and a further sum of Rs. 1,000/- was awarded as costs to Dr. Nayan. It is not in dispute that the appeal filed by the Insurance Co. against the award passed in favour of Smt. Malati M. Deshmukh for Rs. 500/- and costs at Rs. 100/- has been dismissed summarily on August 14, 1975.
3. The award In favour of Dr. Nayan is challenged on two grounds by the appellants; Firstly, on the ground that the negligence on the part of the driver of the lorry was not established in the case by Dr. Nayan; and secondly on the ground that the quantum of damages was wrongly calculated as Rs. 1,400/- for nursing expenses, Rs. 300/- for medicines and other expenses, Rs. 73,779/-, as the loss sustained for 4 years since the year of the accident and Rs. 63,000/- as 50% of Rs. 1,26,000/-, which would be the expected loss, which the claimant had to suffer for the remainder of his life, calculated at 7 years.
4. It was further contended on behalf of the Insurance Co., -- appellant No, 1 -- that in any event having regard to the provisions of Section 95 (2) (a), the liability of the insurance company under the policy cannot exceed the limit of Rs. 20,000/-.
5. The relevant facts may be briefly stated as under: Dr. Nayan was driving motor car MRC 4450 (Fiat Car) from Worli towards Haji Ali by the correct side of the road. Smt. Malati Deshmukh, a nurse, was sitting by his side. At about 1.00 P.M., on April 14, 1969, as the vehicle was thus proceeding, the motor lorry, belonging to the Appellants Nos. 2 and 3, came from the opposite direction, in an uncontrollable speed, crossed over the central road dividers, went to the wrong side of the road and dashed against the car driven by the Respondent, at a place situated on Dr. Annie Beasant Road, Opposite Lotus Cinema.
6. As a result of this accident, the Respondent Dr. Nayan and nurse Malati Deshmukh both sustained injuries. They were removed to the Park Nursing Home, Bombay.
7. Dr. Nayan submitted that the driver of the said vehicle was rash and/or negligent while driving the same, inasmuch as:--
(i) the lorry came on the wrong side of the road crossing the road dividers,
(ii) the driver drove the said vehicle at a high, excessive and improper speed,
(iii) the driver drove the said vehicle without any control over the same,
(iv) the driver drove the said vehicle without keeping proper lookout.
(v) the driver failed and neglected to apply the brakes and/or failed to apply the brakes effectively and/or in sufficient time so as to prevent the accident,
(vi) the driver failed and neglected to manoeuvre the vehicle so as to avoid the accident,
(vii) the driver was having the last opportunity to avoid the accident, which he has not availed of.
8. Dr. Nayan further submitted in his application in the prescribed form under Section 110-A of the Motor Vehicles Act, 1939, that he was undergoing great and unbearable pain and suffering in consequence of the injuries sustained by him since the date of the accident. He was unable to perform the natural and routine functions of life independently since the date of the accident. His expectation of life was shortened. His earning' capacity is likely to be substantially and adversely affected.
9. He is a surgeon having a nursing home and consulting rooms. Since the date of the accident he is not able to attend to the nursing home and consulting rooms. He has, therefore, lost income from his profession. He has to pay for the establishment charges of the nursing home. He has engaged the services of one Dr. (Miss) Vatsala S. Kalowar to look after the patients in the nursing home. He, therefore, claimed compensation of Rs. 3,00,000/- or such other sum as the Tribunal may deem fit end proper as and by way of general and special damages with interest thereon from the date of the application till payment.
10. The claim of Dr. Nayan was resisted by filing a written statement on behalf of Appellants Nos. 2 and 3. They contended that they had taken all precautions to keep the truck in road-worthy condition; but at the material time the 'axle brake ring' of the motor lorry came out and hence the driver lost control of the lorry. According to the said appellants such defect in the car could develop in a running vehicle all of a sudden and the driver would, as a result, lose control on the steering wheel. They also contended that the lorry was going at a moderate speed prior to the accident. They denied that the accident occurred on account of rash and negligent driving on the part of the driver of the motor lorry.
11. They also denied that the expectation of life was shortened or the injury caused any loss in the income of Dr. Nayan and submitted that the application was false and frivolous and untenable in law and should be dismissed with costs.
12. In view of these contentions, no other contentions were raised on behalf of the Insurance Co.-Appellant No. 1, and the Tribunal framed, four issues, and took evidence on those issues, of Or. Nayan, Smt. Malati Deshmukh, Smt. Nalima Nagesh Arekar, who attended to Dr. Nayan, Dr. Arvind Vinayak Bavadekar, who attended to Dr. Nayan and who also proved the medical certificate of Dr. K.V. Chaubal. M.S. (Bom.) F. R. C. S. (Eng.) M. Ch. Orth. (L'pool), who were all examine! on behalf of the claimant.
13. The report of Dr. K.V. Chaubal, was put in by consent of the parties. It reads as follows:--
'Dr. Balkrishna Ramchandra Nayan gave history of an accident in April 1969. He was treated by Dr. A.V. Bavadekar. His present complaints are as follows:--
1. Pain at the right wrist.
2. Pain, restriction of movements and locking of the right elbow joint.
3. Weak grip on the right side.
4. Inability to do operative work.
Examination of the cervical spine revealed terminal restriction of movements. His right shoulder has restriction of external and internal rotation. Other movements of the right shoulder are normal.
The right elbow is swollen. There is thickening of the synovial membrane which is easily felt. There is tenderness over the colcannon process and the head of the radius. The range of movements is between 60 degrees and 130 degrees. There is crepitus felt with all the movements. Probation and suspiration are only restricted in the last few degrees. The right wrist has a full range of movements. There is minimum tenderness over the styloid process of the ulna. The grip of the right hand is weaker than the left. There is no sensory loss in the right arm or the right hand.
X-rays of the right elbow show good healing of the fractures and changes of orteoarthritis. The head of the radius is broad and thickened. There are no significant changes in the right shoulder and wrist joints.
The restriction of range of movements at the elbow is a direct result of the injuries sustained. This would be a permanent disability to the patient. I would assess this disability at thirty per cent.
The disability is not in any way due to improper treatment. In fact I would say this, is an excellent surgical result.
It is unlikely that there would be any further deterioration in the joint function nor would there be any further improvement.
This restriction of movement of the elbow would no doubt affect Dr. Nayan's operative work. I feel, he would be able to perform routine operations not lasting over an hour or so. However, prolonged operations and those demanding finer skill would be difficult to perform. I am sure he would not be required to give up totally his operative work.'
14. As against this evidence, the appellants examined the motor vehicle Inspector Chavan; Appellant No. 2 Minu Mehta; one K, S. Riani, the driver of the offending lorry on the date of the incident; Dinkar Shankar Jawkar, who was sitting at the relevant time in the lorry and who was an officer of the New Customs House; one Gangadharam Bhotia, partner of Veena Automobiles Service Station; and one Jimmy Dara Engineer, Surveyor, Inspecting motor vehicles.
15. The learned Member of the Motor Accidents Claims Tribunal for Greater Bombay, very carefully and exhaustively considered the evidence led by the parties in the light of the various contentions raised before him. He came to the conclusion that the plea of mechanical breakdown put forward by Appellant No. 2 was false because the evidence led by the Appellants was not sufficient to show that there was any mechanical breakdown, firstly because, although in the written statement it was contended that 'axle brake ring' came out, as already stated, the same was a cock and bull story, inasmuch as, the witness on behalf of the Appellants, Jimmy Engineer, had never heard of a part like 'Axle brake ring.'
16. A theory was put forward at the hearing that 'drag link end', also known as 'tie rod' had come out. The words 'axle brake ring' appears to have figured in the written statement because of an entry in the police diary, which appears to have been made on the basis of a statement given by the driver. Even Appellant No. 2 Minu Mehta had to admit that he did not know any part of the lorry known as 'axle brake ring'. The Tribunal was, therefore, constrained to remark that it was really painful that a businessman like Minu Mehta who is a partner of Cawasji Behramji and Company had fallen to such an extent and given false evidence on oath.
17. The learned Member further disbelieved the theory of the coming out of the 'drag link end', as the expert examined by the Appellants, viz., Engineer, who had inspected the lorry on April 22, 1969, at Veena Automobiles Service Station, stated in his cross-examination:
'..... I found that tie rod broken. According to me, 'tie rod' and 'drag link' end' would mean same. The drag link or the tie rod are first attached with a nut. And these parts are made of steel alloy. So that normally they should not break. There is also a quarter pin which acts as a lock. I do not remember having inspected the quarter pin or not. I do not remember if nut was there. If there is anything wrong with the drag link end the driver would be able to feel the difference and could stop the vehicle by the side of the road immediately.
18. To the Court's question he further stated:
'A small hair like crack may develop and result in the snapping of the tierod or drag link in resulting the loss ofcontrol for which there is no prior signalto the driver. It will depend on the momentum of the vehicle, the load it carries and the weight of the vehicle and forthe driver it would take four to five feetto bring the vehicle to a dead stop. Itwill cover 5 ft. or so after the driver putshis leg on the brakes, and it depends onthe presence of the mind of the driverand it is for the driver to take split second decision.'
It is thus clear that even the plea about the breaking of the 'tie rod' was not proved satisfactorily by the Appellants.
19. The learned Member of the Tribunal, therefore, came to the conclusion, after careful consideration of the evidence of the driver, the Customs Officer and other evidence in the case, that there was no mechanical defect at all with the lorry; and the defect was in driving dangerously and negligently. He also held that the principle of res ipsa loquitur applied to the facts of the case because the lorry hit Dr. Nayan's car going on the right side; and this itself shows that the driver was negligent and rash, concluding his discussion as follows, in paragraph 36 of his judgment;
'Lastly assuming for the sake of arguments that there was breakdown and Drag Link End came out or whatever part Opposite Party feels came out and there was mechanical breakdown although evidence is entirely contrary to such assumption but taking it for the sake of arguments only then also the Customs Officer does not know driving nor he found that any part of the vehicle had come out and it was the driver who felt that 'Buffing' and wobbling started from Haji Ali and yet he covered more than 2 1/2 furlongs when according to their surveyor vehicle could have been and should have been stopped within 4 to 5 ft. This itself proves negligence. .....'
20. In view of this conclusion, the learned Member proceeded to consider the evidence regarding nursing expenses given by Dr. Bavdekar, Miss Meena and Miss Arekar and concluded that the nursing expenses came to Rs. 1,400/- and medical expenses came to Rs. 300/-. This item of Rs. 1,700/- is not challenged before us.
21. The learned Member further took into consideration the income-tax returns submitted by Dr. Nayan from April 1, 1965 to March 31, 1969, from year to year; and came to the conclusion that prior to the accident the annual average income was Rs. 20,400/- and on that basis awarded damages for four years from the date of the accident. The learned Member worked it at Rs. 81,760/-. Since the accident, the total income for 3 years was Rs. 11,511/- and there was further loss of Rs. 3,530/- in the year of the accident He thus deducted Rs. 11,511/- Rs. 3,530/-Rs. 7,981/- from Rs. 81,760/- and arrived at the figure of the loss of income sustained during four years at Rs. 73,779/-.
22. It may at once be stated here that the figures in the returns of income-tax were not challenged before us and could not be challenged by Mr. Gumaste, the learned Counsel appearing for the appellants. All that he could urge wag that the average should not have been taken as Rs. 20,440/- but as Rs. 18,000/- which was stated to be the average by Dr. Nayan in his evidence. What was contended was that the learned Member was wrong in calculating the average at Rs, 20,440/-, inasmuch as, it was admitted that something could be earned by Dr. Nayan even after the accident; and, in calculating the average loss at Rs. 73,779/-for four years the member was wrong.
23. Having regard to the fact that Dr, Nayan appears to have been a busy surgeon with a maternity home and consulting rooms it cannot be said particularly, when he could not stand operation for more than an hour, as reported by Dr. Chaubal that the basis of the actual calculations was unreasonable or bad. We do not find any error in the learned Member calculating the loss on the basis of the average of the income-tax returns for 4 years prior to the accident and deducting therefrom the average income for 4 years subsequent to the accident.
24. The learned Member further added to this a sum of Rs. 63,000/- being 50% of Rs. 1,26,000/-, expected loss for 7 years and the remainder of the life of Dr. Nayan who was, when the award was given, 63. The learned Member has correctly said that as lump sum amount was to be given to Dr. Nayan, the loss of 7 years must be reduced to 50%. As this is also calculated on the basis of the average loss calculated on the formula adopted by the learned Member, stated above, we find no error in principle therein.
25. All that Gumaste could submit in respect of this calculation was, firstly that even a very efficient surgeon cannot be expected to continue to be efficient after 63 for 7 years and secondly it was wrong on the part of the learned Member to award Rs. 63,000/- in addition to the other sum making a total of Rs, 1,38,479/-which at the current Bank interest rate would work out to nearly Rs. 18,000/-average loss per year as calculated by the learned Member.
26. The argument is no doubt arithmetically attractive but life is not all arithmetic. The learned Member who had the advantage of seeing the doctor, had come to the conclusion that he was fit enough to live for another 7 years to function like a professional man as a Doctor. There is no reason why this estimate should be considered to be wrong or against commonsense of common experience.
27. Although everyone, having regard to the medical facilities available to-day, wish to live longer than even 70, as the law has cast upon the Tribunal and the Courts the duty to determine compensation on the basis of estimate of life, which both wisdom and experience often show to be incorrect or futile in such matters, the Tribunal tried its best and fixed it at 7 years. We cannot capriciously or arbitrarily interfere with the estimate made by the Tribunal.
28. A professional man cannot be given a compensation at the rate of 'unearned' income, such as, interest on fixed deposits in banks. His loss must be determined having regard to his skill, ability, popularity and harm caused to his efficient functioning. In cases before the Tribunal under Section 110-B, the Tribunal is required by law to determine an amount of compensation which appears to be 'just'. The word 'just' in the case of a professional man cannot mean just interest on Fixed Deposit which may be alright for a temple or a dargah or even a public and charitable institution or an old infirm or invalid man or woman incapable of functioning in life and earning by working with brain or hand.
29. The Tribunal, in our opinion, has made the best efforts and tried to determine compensation in as 'just' a manner as is possible in ell the facts and circumstances of the case. We are, therefore, of the view that the Tribunal was quite right in awarding the quantum of compensation of Rs. 1,700/- for nursing and medical expenses plus Rs. 73,779/-for the loss sustained for 4 years plus Rs. 63,000/-, expected loss of 7 years income, making a total of Rs. 1,38,479/-.
30. Turning now to the first ground urged in support of the appeal that the plea of negligence set up by Dr. Nayan was not proved by him and that the accident was caused by mechanical defect of the lorry, on the facts, we find ourselves in complete agreement with the learned Tribunal as it was for the lorry driver and owner to establish in this case how the lorry crossed the road dividers, went on the wrong side and virtually mounted on the fiat car coming from the opposite direction. The principle, res ipsa loquitur, was rightly applied by the learned Tribunal. The evidence clearly shows that the plea of the appellants Nos. 2 and 3 in the written statement was reckless, if not a false one; and the Tribunal rightly disbelieved the plea and held that it was the driver who was negligent. We fully concur in the reasons and the findings of the learned Member of the Tribunal.
31. It would not have been necessary for us to say anything more but for the fact that it was represented to us by Counsel on respective side that the users of motor cars and lorries and the claimants of compensation before the Motor Vehicles Tribunal ought to know what they should plead and establish before they are entitled to avoid payment of compensation under the provisions of Section 110-B of the Motor Vehicles Act, 1939, which runs as follows:--
'110-B. On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.'
32. As the point is very important and was argued at length by Counsel, each of us has begun to feel that public interest requires that some sort of certainty in law should develop in this recently much used branch of law in the interest of safety and security of citizens in modem urban industrial society where lorries, buses and oars are killing more persons than, perhaps, all the wars that were fought by man-kind at various stages in the world's history and also in the interest of justice which must mean guidelines to the Public Sector insurance Companies and other Insurance Companies. This problem has already attracted the attention of industrial organisations and democratic countries following common law. Each of us, therefore, feel like expressing our views on the basis of the law for compensation and insurance and the right to compensation under Section 110-B of the Motor Vehicles Act.
33. A sound advice has already been delivered by Mr. Justice V.R. Krishna Iyer, as he then was, in Kerala High Court, in his judgment, in Kesavan Nair v. State Insurance Officer 1971 Acc 219
'It is not altogether irrelevant to observe that motor vehicle accidents in the State are increasing at an alarming rate but there is hardly any serious check by the concerned authorities to ensure careful driving. The innocent victim is faced with legal difficulties, in recovering damages. On account of the legal position laid down in Mangilal v. Parasram : AIR1971MP5 the insurer is liable to pay only if the insured is liable to pay. It often times happen that a prosecution precedes a civil case and since the prosecution is in the control and direction of the police if it ends in an acquittal on account of the indifference in the conduct of the prosecution the insured pleads non-liability and the insurer also sometimes escapes. Out of sense of humanity and haying due regard to the handicap of the innocent victim in establishing the negligence of the operator of the vehicle a blanket liability must be cast on the insurer, instead of its being restricted to cases where the vehicle operator has been shown to be negligent. This is more a matter for the legislature and not for the court. But this is a lacuna in the law which I think it would be just to rectify.' (Underlining supplied). In that case compensation was claimed in respect of a tragic bus accident in the High Ranges of Kerala which resulted in the loss of 7 lives and injuries to many others.
34. The lower Courts had come to the conclusion that the driver was negligent; and the negligence was the cause of death of Kuruvilla Joseph and Joseph Varkey in respect of which the lower Court had granted a compensation of Rs. 2,700/- and Rs. 2,000/- respectively, directing the said insurance department to pay Rs. 2,000/- to each life lost. While confirming the decrees of the lower Courts Mr. Justice Krishna lyer made the above observations and suggestions, which, unfortunately, do not, appear to have attracted the attention of the law makers till to-day.
35. In New India Assurance Co. Ltd v Sumitra Devi 1971 A CJ 58, the Patna High Court, considered the provisions of Section 110-A of the Motor Vehicles Act which provides for the application for compensation and Section 95 of the Act. The claimant in that case was a young girl aged about 6 years. While she was coming from her school in the evening on March 12 1963, she was knocked down by a motor truck in front of the State Bank in the town of Ramgarh. As a result of the grievous injuries she had suffered on her right leg, it had to be amputated from near her thigh above the knee region.
36. The owner of the truck did not contest the claim. The Insurance Co. had resisted on various grounds. The Tribunal held that the claimant was involved in the accident, on the day, place, time and by the truck, as alleged by her and hence the claimant was permanently deformed and therefore, she was entitled to receive a compensation of Rs. 20,000/-. The Division Bench of the Patna High Court confirmed this finding.
37. The Patna High Court overruling, inter alia, the contention that the claimant had failed to prove negligence, observed as follows:--
'Section 95 of the Act provides requirements of insurance policy and the limitation of liability of an insurer. The insurance policy is on the record and has been marked exhibit A. We have not been shown either from Section 95 of the Act or any other provisions, or from the insurance policy (Exhibit A) whether the contention now raised has any justification. The liability is absolute but is only limited to the extent provided by the insurance policy in a particular case. ......'
38. Distinguishing the facts before them from the facts in Seethamma v. Benedict D'Sa 1966 A CJ 178 : AIR 1967 Mys 11, the Division Bench of the Patna High Court, laid down:
'..... In the instant case, as I have stated, no case of negligence was made out in the application nor was any evidence adduced on behalf of the claimant, though the father claimant Mulchand Agarwala (A. W. 2) was asked in cross-examination about negligence and he said that 'the accident must have taken place because of the negligence and rashness of the driver. This is my impression'. It is thus clear that there is no evidence of negligence in the case nor was the claim founded on the basis of the negligence of the driver who drove the vehicle in question. aS such, the point decided in the Mysore case is of no assistance to the appellant in the present case.'
39. In other words, although the Division Bench of the Patna High Court has not stated so, they confirmed the decision of the Tribunal awarding compensation to the girl merely on the ground that the girl was involved in the accident and suffered damages, Mr. Hattangadi, the learned Counsel appearing for the respondent Dr. Nayan therefore, relying on the Kerala High Court decision, Patna High Court decision and the wording of Section 95 and Section 110-B and also the form prescribed under Section 110-A under the Bombay Motor Vehicle Rules, viz., Form Comp. A, submitted that none of these sections or the form requires negligence or any other fault on the part of the driver of the offending lorry to be pleaded. He submitted that the Tribunal has jurisdiction to determine the compensation 'which appears to it to be just' under Section 110-B.
40. Under Section 110-A an application for compensation arising out of an accident of the nature specified in subsection (1) of Section 110 may be made by the persons mentioned therein. Section 110 refers to the Claims Tribunal to be constituted by the State Government 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, etc. etc.
41. Mr. Hattangadi submitted that whatever may be the position before the Civil Court, so far as the Motor Vehicles Tribunal was concerned, the Act is self-contained and exhaustive relating to injuries to persons and property, arising out of the use of the motor vehicle. He submitted that it was, therefore, wrong to assume that the claims must be claims on the basis of negligence or culpable negligence or that it should be based on the principle of tort as defined by the common law of England and applied by Indian Courts.
42. To repel this argument Mr. Gumaste relied on several decisions: Shri Ram Pratap v. General Manager, Punjab Roadways, Ambala ; State of Punjab v. V.K. Kalia ; Amarjit Kaur v. Vanguard Insurance Co. Ltd. 1969 Ace 286 (Del); State of Punjab v. Phool Kumari ; Sabita Pati v. Rameshwar Singh 1973 A CJ 319 (Ori); Motor Owner's Insurance Co. Ltd. v. Smt. Sharda Thacker 1974 A CJ 239 and Mangilal v. Parasram : AIR1971MP5 . He also relied on New, India Insurance Co. Ltd. v. Shanti Misra : 2SCR266 , Calcutta State Transport Corporation v. Kamal Prakash De, : AIR1976Cal2 , Rehana Rahimbhai Kasambhai v. Transport Manager, Ahmedabad Municipal Transport Service : AIR1976Guj37 and Mrs. Rita Aurora v. Saligram .
43. It is unnecessary to discuss these cases in detail, in none of these cases, the question as to whether the law of torts requires any fault to be the basis of liability or the question as to whether it was necessary to read the law of torts as supplementing Section 110-B was really agitated. Negligence was pleaded and denied in these cases and the question was whether negligence was established in accordance with the law of torts as applied by the Indian Courts.
44. The Division Bench of the Orissa High Court in Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini Das : AIR1973Ori33 , appears to have considered the point, with respect, in a somewhat indirect way and has observed in paragraph 8:
'..... The objective factors which would constitute the basis of compensation appearing as just have not been indicated in the section. The expression 'which appears to it to be just' however vests a wide discretion in the Tribunal in the matter of determination of compensation. Despite the wide amplitude of such power, the determination cannot be arbitrary and must be based on certain data establishing reasonable nexus between the loss incurred and the compensation to be awarded.'
45. Similarly, in M.A. Rahim v. Sayari Bai : AIR1973Mad83 a somewhat detailed discussion is to be found at the end of which the Division Bench of the Madras High Court observed in paragraph 6 as follows:--
'We are therefore of the view that there is no warrant for literally importing the provisions of the Fatal Accidents Act into Section 110-B of the Motor Vehicles Act so as to read both the provisions as part and parcel of the provision. By this we should not be understood as saying that the Tribunal can adopt any method which is arbitrary or capricious or in disregard of well-established principles. The decisions rendered under the general law of torts and under the Fatal Accidents Act will undoubtedly be relevant and constitute broad guidelines, but they would not be binding upon, the Tribunal in the sense that the method of approach should be the same and identical as in the cases arising under the Fatal Accidents Act'
It is not necessary to discuss all these cases because, in my view, in none of those cases was the question agitated as to what exactly was meant by tort in the context of automobile accidents and injuries resulting therefrom, for which more often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century. The question has engaged the minds of jurists all over the common law world.
46. The evolution of this law is discussed lucidly by Prof. Edward Veitch and David Miers in their article, 'Assault on the Law of Tort' in 1975 MLR 139. They have concluded at page 146:--
'The brief re 'sume' above of the men and their theories reveals that there is no single coherent set of ideas either about the existing law of tort or about the statutory schemes to replace it. The resulting problem is obvious: if there is no complete understanding of what exactly the law of tort is all about and equally no real insight as to what the schemes ought to be achieving then any change may well be constructed on somewhat insecure foundations. Immediately it must be admitted that the existing administrative and welfare systems have multiple aims and these vary with the nature and origin of the injury to the particular individual. To aid confusion the systems tend to overlap on occasions. If we take social security first: the various arrangements set up by legislation can be said to attempt to give an adequate standard of living to those who have contracted diseases, lost their employment, fallen on hard times and who have grown old. But in addition the state financed benefits beyond the provision of money or services to secure an adequate standard of living since lump sums are payable for permanent disability and so approach the tort purpose of compensation.'
47. Legislative attempt to give compensation irrespective of fault when the injuries are caused or death is caused by automobile accident is discussed in a very exhaustive manner in an article titled as 'Accident Compensation in New Zealand; A Comprehensive Insurance System' in 1974 MLR 361 . Under that Act discretion is given to the Commission which was set up for determining compensation arising out of the automobile accident irrespective of fault as a basis of report made by Royal Commission whose chairman was Mr. Justice Woodhouse. This Act provides that no claim, either at common law or under a statute, may be brought for damages arising out of personal injury or death suffered by accident in New Zealand and the Accident Compensation Commission is entrusted with the power to determine the compensation after hearing the insurance company stated to be appellant as provided under the Act
48. This is referred to only to indicate how the very valuable suggestion of Mr. Justice Krishna Iyer for enacting a proper law in this connection required to be followed by the law makers of the country, rather than compel the litigants to find out the interpretation of law by different Courts and possibly after unnecessary, lengthy and costly litigation by different claimants by what is alarmingly tending to be an 'Alice through Wonderland' process of litigation.
49. In the meanwhile, I would like to interpret the sections of the Motor Vehicles Act, viz., Sections 110 to 110-F as creating a special machinery for adjudicating upon the claims for compensation for injuries to persons and property sustained as a result of the 'use' of the motor vehicle. Section 110 uses the words 'arising out of the use of motor vehicles' not out of improper, negligent or faulty use of motor vehicles. It is, therefore, not necessary for the Court to Interpret the word 'use' as necessarily implying improper use or negligent use or faulty use.
50. The moment a motor vehicle is used and injury is caused, a liability to pay compensation arises; and the Tribunal can adjudicate upon that liability and determine 'just' compensation. This can be on the general basis of ubi jus ibi re-medium in respect of which, we find the following comment in Broom's Legal Maxims, 10th Edition, page 119:--
'The' principle adopted by Courts of law accordingly is, that the novelty of the particular complaint alleged in an action on the case is no objection, provided that an injury cognisable by law be shown to have been inflicted on the plaintiff; in which case, although there be no precedent, the common law will judge according to the law of nature and the public good, .......'
51. In my opinion, public good requires that everyone injured, viz., by the use of a motor vehicle, must immediately get compensation for the injury. Every person has a right to safety and security of his person irrespective of fault or negligence or carelessness or efficient functioning of the motor vehicle. Every person has a right to claim compensation as that is the only way of remedying the injury caused to him in a modern urbanized, industrialised and automobile ridden life.
52. It is useful to recall in this connection the following observations of Holt, C.J. in Ashby v. White Et. Alios (1703) 92 ER 126:
'If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. ......'
53. Moreover a look at the latest standard books on the law of Torts also reveals that when and even if importing the notion of torts in determining the just compensation it is not necessary for the Tribunal to award damages only if the plaintiff proves negligence or any other tort recognised by well known books as species of tort.
54. In 'Salmond on Law of Torts', 16th Edition, at page 16, there is a discussion as to whether Salmond's theory that just as the criminal law consists of a body of rules establishing specific offences, so, the law of torts consists of a body of rules establishing specific injuries, has been discussed as follows:--
'But it is very doubtful whether Salmond's theory is true now, or ever has been true. There is not a single case in the reports in which an action has been refused on the sole ground that it was new. It has been clearly established ever since the memorable judgment of Sir John Holt C. J. in Ashby v. White that mere novelty is no bar to an action. 'I wish never to hear this objection again,' said Sir Charles Pratt, C. J. sixty years later, 'This action is for a tort: torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief.' Continuing the discussion, Professor Hauston, Regis Professor of Law at Oxford University, has commented:--'Winfield said that he preferred the theory that 'all injuries done to another person are torts, unless there is some, justification recognised by Law'. But this thesis did not find general acceptance and he later modified his opinion to the extent of admitting that 'from, a narrow practical point of view' Salmond's view 'suffices', though he still thought that 'from a broader outlook' his own theory was valid. To some extent the critics seem to have misunderstood Salmond. He never committed himself to the proposition certainly untenable now, and probably always so, that the law of torts is a closed and inextensible system. To say that the law can be collected into pigeon holes does not mean that those pigeon holes may not be capacious, nor does it mean that they are incapable of being added to' Salmond merely contended that these changes were not exclusively referable to any single principle. In this he was probably right. The factors relevant to a decision to impose, or not to impose, liability are many and varied.'
55. In 'Winfield and Jolwiez on Tort', 9th Edition, in Chapter I, dealing with the Meaning of Law of Tort and the Foundation of Tortious liability, the discussion is as follows:--
'...... Salmond had asked, 'Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific justification or excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue outside the sphere of legal responsibility ?' and had chosen the second alternative. Winfield preferred the other view, but latterly he modified it as follows; From a narrow practical point of view, the second theory will suffice, but from a broader outlook, the first is valid. If we concentrate attention on the law of tort at the moment (which is what most practitioners do), entirely excluding the development of the Jaw, past and future, then it corresponds to the second theory. If we take the wider view that the law of tort has grown for centuries and is still growing, then the first theory seems to be at the back of it. It is the difference between treating a tree as inanimate for the practical purposes of the moment (e.g., for the purpose of avoiding collision with it, it is as lifeless as a block of marble) and realising that it is animate because we know that it has grown and is still growing. The caution and slowness which usually mark the creation of new rules by the judges tend to mask the fact that they have been created; for they have often come into existence only by a series of analogical extensions spread over a long period of time, to vary the metaphor, the process has resembled the sluggish movement of the glacier rather than the catastrophic charge of the avalanche. But when once a new tort has come into being, it might fairly seem to have done so, if the whole history of its development is taken into account, in virtue of the principle that unjustifiable harm is tortious.
Where the courts hold that the harm is justifiable, there is, of course, no tort. And they may hold that it is justifiable for any one or more of several reasons. The plaintiff may be asking them to do what they think Parliament is more fitted to do; or he may be alleging a particular tort, without giving proof of some essential requisite of it; or he may be taking an exaggerated view of what is necessary to his own comfort or prosperity; or he may be demanding the creation of a remedy which would throw out of gear other parts of the law. But subject to these restrictions and looking at the law of torts in the whole of its development, Winfield is still inclined to the first theory,
'Evidence', in the sense of judicial dicta, can be found to support either view, but, so far as is known neither forms the ratio decidendi of a single case. Furthermore, since the supporters of the second view do not deny that the law of tort is capable of development, or even that new heads of liability can come into existence, and since the supporters of the first view admit that no action will lie if the conduct which caused the harm was justifiable, the difference between them is perhaps less than is sometimes supposed.
Summing up his investigations into the controversy. Professor Glanvile Williams says this:-- 'The first school has shown that the rules of liability are very wide. The second school has shown that some rules of absence of liability are also very wide. Neither school has shown that there is any general rule, whether of liability or of non-liability, to cover novel cases that have not yet received the attention of the Courts. In a case of first impression that is, a case that falls under no established rule or that falls equally under two conflicting rules -- there is no ultimate principle directing the court to find for one party or the other. .... Why should we not settle, the argument by saying simply that there are some general rules creating liability ...... and some equally general rules exempting from liability. ..... Between the two is a stretch of disputed territory with the courts as an unbiased boundary commission. If, in an unprovided case, the decision parses for the plaintiff, it will be not because of a general theory of liability but because the court feels that there is a case in which existing principles of liability may properly be extended.''
56. The time has now come when instead of involving the insurance company, which now, so far as this country is concerned, is in the public sector, and the citizens injured in automobile accidents, in costly and lengthy litigation, what is needed is a sure position in law. There is generally prolonged litigation in such cases. In the absence of any words used by the legislature to underpin the liability as a liability with respect to negligence or any other specific tort or tort generally that liability must be held to be in respect of injuries done or caused as a result of the 'use' of motor vehicle unless there is some reason recognised by law for exempting the user from that liability.
57. It is true that there are crosscurrents of thoughts in the matter. Even in England judges have taken different views with regard to the necessity for proof of fault in actions for personal injuries caused by accidents. Salmond's Law of Torts has summed up this discussion with the following words:--
'It is reasonable to conclude that there is still room for the law of torts. Basic cover against disasters may be provided by national insurance, but there is a popular feeling that those who have intentionally or carelessly caused harm to others should pay for the damage which they have caused. Tort law is concerned not only with cash, but also with appeasement, justice and fairness. Experience with industrial accidents shows that social welfare and common law damages may well co-exist. Perhaps torts should not be abolished, but amended and supplemented: it can deal better than insurance with property damage and mental suffering, and can also provide for the restoration of earnings above the minimal level. For statutory benefits have the disadvantage that they are not in any way related to the loss suffered, as common law compensation is, however, inadequately. There is room for much more inquiry as to the relationship between the law of torts and the welfare state. The whole problem of alternative remedies needs to be re-examined.'
58. In the light of this fundamental and basic nature of the law of torts, I am of the view that whether we apply the law of torts or not. the liability to pay 'just' compensation arises when the injuries are caused by the use of the motor vehicle. The Tribunal has power to determine, what is 'just' compensation irrespective of whether the defendant was at fault or was negligent or careless or not. When a person is injured by use of a vehicle, that itself is an infringement of a right. That person must, therefore, have a remedy of recovering compensation from the person whose vehicle has caused injury. That, according to me, is the scheme of the provisions contained in Sections 110 to 110-F of the Motor Vehicles Act. Principles of law of negligence were relevant for determining the quantum of damages and the person liable to pay it like any other principle to be followed in the administration of justice.
59. It was contended by Mr. Gumaste that these were only procedural sections as held by the Supreme Court recently in New India Insurance Co. Ltd. v. Shanti Misra : 2SCR266 and in some other decisions of other High Courts; but, with respect, that case was concerned with and arose out of the facts of those cases where the point as to whether the law was substantive or procedural arose in the context of the plea of bar of limitation.
60. Except when such distinction is relevant, in interpreting the law, one should not approach the law as if the law was intended to be labelled or christened as procedural or substantive law. It is clear from Section 110-B that the law requires the Tribunal to decide not only what is 'just' compensation but also to whom it should be paid and by whom it should be paid. Some of those sections will have to be interpreted as substantive law if at all it is necessary to interpret them to be so. In my view, it is unnecessary to go into semantics of the words 'substantive and procedural law' in the present case. It is enough to say that Dr. Nayan was inflicted injuries by use of the motor lorry belonging to the Appellants Nos. 2 and 3 and they are, therefore, liable to pay compensation to Dr. Nayan as awarded by the Tribunal.
61. Mr. Gumaste contended that, having regard to Section 95, which lays down the requirements of policies and limits of liability in respect of policy of insurance against third party risks, the words used are 'any liability which may be incurred'; and, therefore, it must be a liability under the general law of torts or under the Civil Law. But it is not necessary or proper to read that section in such a way because liability could be any liability.' It may be civil or it may be criminal. It may be contractual or based on tort or a statute. Merely because the word 'liability' is used in that section, it cannot be said that the Tribunal's jurisdiction under Section 110-F is limited to considering and applying the law of torts in a claim for compensation.
62. Mr. Gumaste also referred to the word 'liability', used in Section 96 and contended that word 'liability' would also mean liability which will be recognised by a Civil Court. It may be so. But that section again does not limit the power of the Tribunal under Section 110-B which has to determine while making the award, as stated above, not only what is 'just' compensation but also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Section 96 in my opinion, applies only to the judgment obtained in a Civil Court which has no jurisdiction where the Claims Tribunal is constituted in view of the provisions of Section 110-F.
63. In any view of the matter, therefore, whether negligence is taken into consideration or not. the award passed by the Tribunal in the present case is just and legal. There is nothing therein which requires interference at our hands. Mr. Gumaste submitted that under Section 95 (2) the policy of the insurance in the present case limits the liability of the insurance company to Rs. 20,000/- as that was the limit prescribed under Sub-section (2), as it was in force at the time of the accident; and, therefore, insurance company-appellant, should be held liable only to the extent of Rs. 20,000/-.
64. As can be seen from the record and particularly the roznama, no point appears to have been raised on behalf of the insurance Co. to limit the liability under the policy to Rs. 20,000/-, by Mr. J.M. Patel, who filed the written statement on behalf of the opposite parties. The policy is not before us. Not only that but when Mr. Gumaste, who filed the appeal on behalf of all the opposite parties, the appellants, raised this point, Mr. Patel, who was present in the Court, interrupted and said that it was the practice or convention of the insurance companies not to raise such a point before the Tribunal if the insurance company represented the assured as in the present case. Mr. Patel, therefore, contended that the insurance company should not be allowed to raise this point for the first time before us on behalf of Appellants Nos. 2 and 3.
65. But he had not filed any vakalatnama on behalf of Appellants Nos. 2 and 3 before us. He had filed his vakalatnama before the Tribunal. In the absence any vakalatnama filed by Mr. Patel on behalf of Appellants Nos. 2 and 3, it is not open to us to take into consideration his submissions on their he-half. On behalf of Dr. Nayan, the claimant. Mr. Hattangadi submits that the insurance company should not be allowed to raise the point of limiting the liability of Rs. 20,000/- for the first time in this Court as they have not raised a contention in the written statement filed before the Tribunal that the policy did not cover the entire liability which the assured may incur under the award.
66. There is considerable force in the argument of Mr. Hattangadi. But having regard to the fact that Mr. Patel represented the assured as well as the insurance company in the lower Court, it may be that as the contention of liability available to the insurance company under Section 95 (2) was not raised before the Tribunal, in fairness, an opportunity should be given to the insurance company to raise such a point if it is open to it at law to do so subject to the payment of costs and also subject to depositing the amount which according to them is payable under the award, viz. Rs. 20,000/-, with interest from the date of the application as awarded by the Tribunal.
67. If and when the certificate of execution is to be issued by the Tribunal under Section 110-E of the Motor Vehicles Act the question may be raised by the Insurance Company. At present we are not bound to interfere with the award of the Tribunal. There was no' material or argument before the Tribunal about it. There was nothing before the Tribunal to show that the insurance company's liability was limited to Rs. 20,000/-
68. In the result, I would confirm the award and dismiss the appeal subject to the modification that it is open to the insurance company Appellant No. 1, to deposit Rs. 20,000/- with interest from the date of the application to the date of the deposit as per the award passed by the Tribunal and contend that the award is binding under Section 95 (2) of the Motor Vehicles Act but only to the extent of Rs. 20,000/- or the sum which may be mentioned in the insurance policy.
69. If and when the insurance company deposits the amount as directed above and applies for determination of this question, the Tribunal may proceed to determine that question after hearing all the parties concerned and then issue the certificate for recovery of the balance of the awarded money under Section 110-E of the Motor Vehicles Act from the Insurance Co. So far as others are concerned, the Tribunal is at liberty to issue certificate of execution forthwith. As an extraordinary indulgence is given to the insurance Company on a plea which it has raised for the first time before us, the insurance company Appellant No. 1, should pay the costs of all parties to this case so far incurred and to be hereinafter incurred.
70. I respectfully agree with the findings and the conclusions of my learned brother. The question as to whether gist of cause of action, in a claim arising out of a motor accident is negligence, is of great importance. This question also arises in appeal No. 81 of 1975, which has been heard with this appeal. In view thereof as also because of a slightly different process of reasoning adopted by me, I think it necessary to deal with this important question relating to interpretation of the provisions of Section 110-B and cogent sections of the Motor Vehicles Act, 1939, (hereinafter referred to as 'the Act').
71. Shri Gumaste, the learned counsel for the 1st appellants -- (Insurance Company) -- (hereinafter referred to as 'the insurer'), submits that in all cases of compensation arising out of accidents contemplated by Chapter VIII of the said Act, the basis of liability is negligence as known to the law of Torts. His submission is that provisions of Chapter VIII, particularly those relating to the constitution of Motor Accidents Claim Tribunal, are procedural sections. The said provisions do not provide for the basis of liability or the principles governing the exercise of power vested in the Tribunal for awarding compensation. In order to ascertain the liability the Tribunal, of necessity, must look to what are called the substantive provisions of Law of Torts and the Fatal Accidents Act. It is a submission of the learned counsel that there is nothing in the provisions of Chapter VIII which touches the basic question of liability arising out of accidents and that the provisions of the said Chapter have not changed the law which existed prior to the bringing into force of the relevant provisions. The learned counsel asserts that the provisions of the Act cannot be held to override the law of Tort or of Fatal Accidents Act and the liability for compensation must be determined with reference to the said substantive provisions alone.
72. Shri Hattangadi, the learned counsel for the Respondent (hereinafter referred to as 'the injured') submits that upon a true construction of provisions of Chapter VIII and more particularly. Section 110-B, negligence is not the basis of the liability. The cause of action in cases of injury in accidents is the loss and damage sustained by reason of death or bodily injury caused by or arising out of the use of a vehicle in a public place.
73. In order to resolve these controversies it will be necessary to see the language in which the relevant provisions are couched as also the scheme, intendments and the purpose thereof. It will have to be seen whether the relevant provisions of the Act provide for a basis of liability in connection with accidents wherein motor vehicles are involved or that said provisions merely lay down the mode and the forum through which the rights and liabilities which are claimed to arise only under the substantive provisions of law as aforesaid, are enforced or adjudicated.
74. The Act is an Act 'to consolidate and amend the law relating to Motor Vehicles'. As a Consolidation Act, it therefore, merely reduces into a systematic form the whole of the law that existed prior to its enactment. A Consolidation Act by itself cannot be said to intend a change in the pre-existing law but the Act is not merely a Consolidated Act. It is also an Act which seeks to amend the law relating to motor vehicles. The controversies in this appeal therefore will have to be determined by interpreting the relevant provisions of the Act read within the setting of the Scheme, intendments and purposes thereof.
75. Chapter VI of the said Act deals with 'Control of traffic'. It makes elaborate provisions for regulating use of a motor vehicle in public places. Section 71 provides for limits of speed. Section 72 deals with limits of weight and limitation on use. Section 74 empowers State Government to prohibit or restrict driving of motor vehicles 'in the interest of public safety or convenience or because of the nature of road or any bridge'. Section 75 provides for placing or erection of traffic signs. Section 76 authorises State Government or other authority designated by the State Government in that behalf, to determine 'places at which motor vehicles may stand' or places at which public vehicles may stop. Section 77 provides for designation of certain roads as main roads for the purposes of regulations contained in the tenth Schedule. The said Tenth Schedule enumerates driving regulations to be observed by a driver of a motor vehicle. Section 78 casts obligations for safe driving of the motor vehicles. It provides that a driver of motor vehicles 'shall drive the vehicle in conformity with traffic signs and regulations set forth in Tenth Schedule. Section 79 provides for signals and signalling devises and for the directions that a driver of a motor vehicle is obliged to follow. Section 81 casts an obligation upon the person in-charge of a motor vehicle to ensure that the vehicle is not left in a dangerous position so as to cause 'danger, obstruction or undue inconvenience to the other users of the road'. The other sections need not be noticed. Mention however, may be made of Section 91 which empowers the State Government to make rules. Clause (i) thereof authorises the State Government to make rules providing for 'generally, the prevention of danger, injury or annoyance to the public or any person or of danger or injury to property or of obstruction to traffic'. The provisions of Chapter VI leave no shadow of doubt that the said provisions impose liabilities and obligations on drivers of motor vehicle and that the provisions enacted therein are conceived with a view to protecting the persons who might be using a public road from 'danger, injury or annoyance to their persons or properties'. Even in England before statutory provisions were made, there existed what was called a High Way Code. The English judgments show that a failure on the part of any person to observe any provisions of the High Way Code, gave rise to actionable wrongs or to civil liabilities. In civil proceedings such failures were permitted to be relied upon as 'tending to establish or negative any liability which may be in question' (Halsbury's Laws of England, 3rd Edn. Vol. 28, page 66). This non-observance was treated as a specie of negligence in relation to High ways. Stronger becomes the case when the statutory provisions are made and they set forth obligations upon the driver of a motor vehicle so as to prevent mischief 'of danger or injury or annoyance to the public or persons or of danger or injury to property' of others. Breaches of these statutory obligations, ex hypothesi must predicate liabilities enforceable at law. Chapter VIII relates to insurance of Motor Vehicles against third party risks. It comprises of Section 93 to Section 111-A. Some of the salient provisions thereof may however, be noticed.
76. Section 94 (1) ordains that no person shall use (except as a passenger) or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be a policy of insurance complying with the requirements of Chapter VIII. Section 94 (1) is modelled on Section 85 (1) of English Roads Traffic Act, 1930. There is considerable judicial opinion to show that Section 35 (1) of the English Roads Traffic Act, 1930, provides for a statutory duty enforceable at law.
77. In Monk v. Warbey 1935 1 KB 75, one Monk was injured in a car accident. The car belonged to one Warbey. Warbey's friend one Knowles had borrowed the car from Warbey and had asked one May to drive it for, him. May and Knowles were not covered by 3rd party liability insurance. Warbey's policy also did not cover the use of a car by Knowles and May. Monk sued Warbey basing his claim against Warbey upon the alleged breach by Warbey of his statutory duty under Section 35 (1) in having caused or permitted his motor car to be used in breach of the Sub-section. Charles, J., upheld the claim on the grounds that Section 35 imposed a duty and that injury to any person on road in breach of the said section could be relied upon as a cause of action. In appeal Judgment of Charles, J., was affirmed. The Court of Appeal held that the owner can be sued for breach of statutory duty and the injured need not first sue to uninsured person who caused the accident. (1935) 1 KB 75. The dicta in Monk's case was followed by Goddard, J., in Richards v. Port of Manchester Ins. Co., reported in (1934) 50 LI LR 88. Shaweross on Motor Insurance, 2nd Edn. writes at page 164 as follows:--
'It was held in Monk v. Warbey and in several later cases, that a breach of this statutory duty is a wrongful act giving rise to claim for damages by a third party who is injured through the use of a motor vehicle in breach of the duty.'
78. By the same token therefore, the provision of Section 94 (1) of the Act must be held to cast a statutory obligation, the breach whereof is enforceable by an appropriate action in an appropriate forum constituted in that behalf.
79. Section 95 (1) lays down 'requirements of policies and limits of liabilities'. Clause (b) of Sub-section (1) requires that a policy of insurance must 'ensure the person or classes of persons specified in the policy to the extent specified in Sub-section (2) -- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; and (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. The provisions of Section 95 (1), more particularly, Clauses (b) (i) and (ii) thereof delineate the extent of the liability which is considered minimum that should be ensured to a third party involved in an accident caused by or arising out of the use of the vehicle in a public place. The key-concept in the provisions of Sub-section 95 (1) (b) is a liability in respect of death or an injury 'caused by or arising out of the use of the vehicle in a public piace'. That the said concept is a cardinal one, is the inference that must be drawn because in the first place it is the common streak which runs through both the Sub-clauses (i) and (ii) of clause (b) of Section 95 (1) and Sub-clause (i) has to be read as 'Noscitur a sociis'. These two Sub-clauses of Section 95 (1) must get their colour from each other. These Sub-clauses are part of the same scheme relating to minimum insurable risk that must be covered and cannot therefore be interpreted differently. Secondly, the word, ''arising out of or caused by' are the words of widest amplitude specifying the critical event. They clearly indicate that the liability must be such as pertains to death or bodily injury or damage to the property caused by or arising out of the use of the vehicle in a public place. In other words, a causative factor postulated by the aforesaid provision, is the use of a vehicle in a public place. This is so because in the focus of the provisions of the Act, particularly Chapter VI and Chapter VIII is the use of a motor vehicle and its proper regulation in order to ensure safety to the people and their property.
80. There is yet reason to hold that the emphasis in Section 95 (1) (b) is on the liability pertaining to an accident resulting in death or bodily injury or damage to the property of the third party by reason of the use of the vehicle in a public place. Section 95 (1) is a provision relating to insurance. The law of insurance contemplates coverage of perils or events resulting in injuries. These perils and events are insurable factors. In the language of insurance, these perils or insurable .events or factors are called 'risks'. Halsbury (Laws of England. 3rd Edn., Vol. 22, page 229) classifies these perils, events or factors in the following words:
'There are three broad topics to be considered in relation to what in commercial parlance is called the risk, namely (1) the risk in the sense of the contractual definition of the peril insured against; (2) the risk in the sense of the subject-matter insured against the stipulated peril; (3) the risk in the sense of the circumstances in which the stipulated peril has To affect the assured, either in relation to a defined subject-matter or in relation to his incurring a particular liability or loss'.
81. Under Section 95 (1) insurable contingency which is the minimum that has got to be provided for in accordance with the provisions both of clauses (i) and (ii) is 'the death or bodily injury, caused by or arising out of the use of the vehicle in a public place'. Clause (i) further adds damage to the properties also. The subject-matter of the insurance is the motor vehicle; circumstances covered are the use of motor vehicle in a public place and the peril insured is the loss arising out of death or bodily injury. These are the factors or events in respect whereof there has got to be a policy of insurance it the provisions of Section 95 (1) (b) are to be complied with.
82. The learned counsel for the insurer, however, submits that the liability as contemplated by Section 95 (1) (b) (i) is a liability which 'may be incurred by' the insured. He emphasises the expression 'incurred by him' and submits that the Court should hold that this incurring of a liability has to be determined not with reference to the provisions of the Act but with reference to the rules, of Law of Tort or other substantive laws. The contention is untenable. The expression liability 'which may be incurred by him' is used to identify the liability, not to qualify or restrict the liability. It merely answers 'Whose liability and not, what liability'. The perimeters of liability in clauses (i) and (ii) must be held to be the same because in both the events the liability of the owner or the driver exists and is made compulsorily insurable. The' only difference is that clause (i) deals with vehicles other than 'public service vehicles' where passengers are gratuitous invitees as contradistinguished from passengers in public service vehicles who are carried for 'hire and reward'. The latter cases require specific reference to exclude defences of 'volenti not fit injuria' or persons not entitled to compensation as _ being contractors to the contract of conveyance. It is inconceivable that the legislature would intend absolute liability only in cases covered by clause (ii) and not in cases covered by clause (i).
83. It may also be stated that the liability of the insurer is for indemnification of the insured. This liability is coextensive with the liability of the insured. Consequently insurable events must be same for both and their respective liabilities must be conterminous. Inferentially therefore the delineations of liability for minimum insurable cover must also denote the contours of liability of the insured. If that is so, the minimum contemplated by the said provision also indicates the basis of insured's liability.
84. Sections 97, 09. 101 and 102 show that the Act makes a departure from Law of Torts. The principles enshrined in the said provisions are different from those relating to the law governing the joint tort-easers. The liability arising out of a joint tort carries with it certain well defined legal consequences. The liability of joint tort-easers abates with that of the other joint-tort-easers. The joint-tort-easers can make a settlement between themselves to limit their inter se liability, that is to say, contribution to be made by each in regard to the joint torts. The discharge of one of joint tort-easers operates as the discharge of the liability of the other tort-easers. None of these feature obtain in cases covered by the said sections. Section 97 passes on the right of the insured in the event of his insolvency or if it is a corporation, its winding up, to the third parties Section 99 prohibits any settlement between an insurer and the insured unless the third party is a party to such a settlement. Section 101 in terms provides that insolvency of the insured will not affect the claim of the third party once a certificate of insurance is issued. Section 102 is more tale-telling. Contrary to the well-settled principles of tort to the effect that the tort does not survive the demise of the tort-easers, Section 102 provides that death of a person in whose favour a certificate of insurance is issued if it occurs after the happening of an event which has given rise to a claim under the provisions of said Chapter VIII 'shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer'. These departures from the principles of Law of Tort, clear on the plain and unambiguous language of these sections, establish that the Legislature intended to lay down a different law in the matters governed by the provisions of the Act.
85. Argument of the counsel for the insurer that an insurance is merely an indemnification to the insured breaks down when it is seen that departure has also been made from the principle that the liability of the insurer should be co-extensive with that of the insured. It is a normal rule of Jaw that in cases of principal-debtors and sureties, their liabilities are co-extensive. The surety is entitled to defend a claim inter alia upon the grounds available to the principal debtors but that is not s. under the provisions of the said Chapter VIII. Section 96 (2) gives a very limited right of defence to the insurer. The provisions of Section 96 (1) contemplate hearing on the merits only between the third party claimant and the insured. The injunction of Sub-section (1) of Section 96 is that the insurer is liable to the extent of the sum assured on a judgment in respect of the liability covered by the policy under clause (b) of Sub-section (1) of Section 95 upon the judgment being obtained against the insured. This is different from a situation where a claim against a principal debtor and a surety is made under the general law. In my opinion, the provisions referred to above, clearly establish the legislative intent to make departures not only from the law of torts, but also the Law of Contract-in so far as the insurer and the insured in the matter of claims for compensation arising under the said Chapter are concerned.
86. The provisions of the Act are different from those of Fatal Accidents Act which in term provide for 'actionable wrongs' and for compensation arising therefrom. Section 1-A of the Fatal Accidents Act provides for compensation to the family of a person for loss occasioned to it by death 'caused by wrongful act, neglect or default'. The preamble also indicates the same things. The Legislature having not used the same language in the Act clearly shows that the scheme thereof is different from that of Fatal Accidents. Act.
87. Before I go to the most material section viz., 110-E, it is necessary to notice expressions used in Sections 109, 110, 110-A and 110-AA. In these sections legislature has used the expressions 'claim compensation in respect of an accident arising out of the use of a motor vehicle' (Section 109); 'claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles'. Sub-section (1) of Section 110: 'for compensation arising out of an accident of the nature as specified in Sub-section (1) of Section 110', and 'a claim for compensation under this Act' (Section 110-AA). These expressions clearly demonstrate that the compensation that is payable is a compensation which arises out of an accident and which is payable under the provisions of the Act. There are no words of limitation. There is nothing in the provisions of the Act or Scheme thereof which can justify the importation of limiting factors to restrict plain meaning and amplitude of these expressions. In my opinion, reading down of all these sections will be an unjustified departure from canon of literal construction. There are no compelling reasons to induce me to do so. In my view, a mere surmise or conjecture that the law of Torts is all comprehensive and must therefore govern all cases of compensation, is no ground to strain the language of these provisions or read implied limitations in them. Moreover, such restrictions or limitation besides being repugnant to the natural meanings of the said expressions, also defeat the salutary purpose of Chapter VIII which is to benefit third parties and indemnify them against loss and injury arising out of Motor accidents.
88. Section 110-B has a marginal note which summarises 'the effect of the section.' The marginal note reads 'award of the claims Tribunal.' Thus the section deals with the jurisdiction of the Tribunal to make award granting compensation. Undoubtedly, this section creates a forum and therefore to the said extent it is a procedural provision. But it is well-settled proposition of Law that a procedural section may contain in itself substantive provisions. Legal semantics apart, there is no dichotomy between a substantive provision and a procedural provision: The intent of the law has to be gathered from the language of the law, the scheme of the law and the purpose of the law. The crucial words in Section 110-B are 'the Claims Tribunal ...... may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid'. This section in other words authorises the tribunal to award such compensation 'as appears to it to be just'. There are no words of limitation in this section whittling down the scope of the authority of the tribunal to award such compensation as appears to it to be just. In M/s. Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd., reported in : AIR1971SC1624 , the Supreme Court considered the ambit of power conferred by this section. The Supreme Court observed in paragraph 6, page 1626 as under :--
'Under Section 110-B of the Motor Vehicles Act, 1939, the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide.'
89. Implicit in the observations of the Supreme Court is the assumption that the width of the power under Section 110-B is not subject to any implied limitations. This would be so because all judicial powers carry with them an implication of a corresponding right in the persons entitled to invoke the jurisdiction of such an authority. Juristically speaking power is correlative of a corresponding right in the aggrieved person. Thus the tribunal being empowered to award such compensation 'as it may deem fit', connotes a corresponding right, as a jural correlative, in the person injured to have, other things being a satisfied, such compensation awarded to him. This compensation has to be such as appears just to the tribunal in the circumstances of the case. I am unable to read any limitations either of express or implied character, into the sweep of the power which is conferred upon the tribunal by the plain and unambiguous language of Section 110-B.
90. The provisions of Chapter VIII noticed above interlace and interwine. They produce a matrix which is clear. The scheme is that certain perils or risks have got to be compulsorily provided for by an insurance cover. These perils are those which arise out of the use of motor vehicles on a public road and which result in the injury of the description specified by the said provisions. This minimum compulsory insurable coverage is buttressed by the legal sanction under Section 95 (1) of the Act, which prohibits persons from using a motor vehicle without an insurance policy which provides for a minimum injury coverage contemplated by Section 95 (1) (b). The minimum insurance coverage carries with it an explicit obligation in the person involved to pay compensation, otherwise the whole meaning or the purpose or the intendment of minimum insurable coverage will be rendered nugatory. There is, thus, in my opinion, no warrant either in the language of the law or purpose of the law to whittle down the scope of the liability contemplated by the provisions of Chapter VIII of the said Act.
91. Several authorities were cited by Counsel for the insurer in support of his submissions. The learned counsel for the injured also called attention to several authorities which held to the contrary. The authorities cited at the Bar are the authorities for the propositions, whether the provisions of the Act are procedural in character or are substantive in character, and whether the provisions of the Act, particularly Chapter VIII thereof, are a Code contained in themselves. The said judgments reveal a cleavage of judicial opinion. The view taken by the High Courts of Punjab, Orissa and Madhya Pradesh is that the provisions relating to the constitution and the powers of tribunal contained in Chapter VIII are procedural in character and are not a complete Code in themselves. In the view of the said High Courts, the basis of liability under Section 110-B is to be found in the substantive provisions of Law of Torts or the Fatal Accidents Act. The two Division Benches of the Madras High Court in Mohammed Habibullah v. K Seethammal, reported in : AIR1967Mad123 and in Perumal v. G. Ellusamy Reddiar, reported in 1974 Acc CJ 182 (Mad), have also taken a similar view. As against it, the view of the Delhi High Court is that the said provisions are a self-contained Code. This view of the Delhi High Court is shared by a Division Bench of the Madras High Court in M.A. Rahim v. Sayari Bai, reported in : AIR1973Mad83 .
92. It is unnecessary to refer to all the authorities or analyse observations made therein. It would however, be sufficient to consider a few which are comprehensive and are representative of the trends referred to above. In Ram Pertap v. General Manager, Punjab Roadways, Ambala, reported in , the single Judge of the Punjab High Court took the view that in a claim arising out of a motor accident before the Claims Tribunal, the tribunal has to determine the question of liability with reference to the Law of Torts. The learned Judge observed at page 542 as under:--
'It is true that Section 110-B of the Motor Vehicles Act does not in terms lay down that it is only when negligence on the part of the driver of the vehicle concerned is established that compensation can be awarded, but then it should be borne in mind that this bunch of Sections 010 to 110-F) merely deal with the subject of the substitution of Accidents Claims Tribunal in place of Civil Courts for the purpose of adjudicating on claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of the use of motor vehicles. They do not deal with the question as to who is to be held liable and in what circumstances, if any injury results from an accident. In order, therefore, to discover the criterion or test for fixing liability, we have, in the absence of any statutory provisions fixing liability irrespective of negligence, to turn to the law of Torts according to which indisputably negligence in causing the accident in question is generally speaking essential to hold the negligent person liable.'
93. It is not very clear from the judgment as to whether the Court in that case was called upon to decide the connotation of the expression 'may make an award determining the amount which appears to it to be just' or whether attention was drawn to the scheme of the Act as unfolded by the relevant provisions of Chapter VIII or of the provisions of Chap. VI. There is no discussion as to the intendments or purpose of the Act or the pattern disclosed by the said provisions. The judgment proceeds on the assumption made that the fasciculus of the Sections 110 to 110-F merely deal with 'subject of substitution' of one forum for the ether.
94. In Mangilal v. Parasram, reported in : AIR1971MP5 , the Full Bench of the Madhya pradesh noticed the aforesaid Judgment of the Punjab High Court and other Judgments in which it was followed. The Madhya Pradesh High Court took the view similar to the view taken by the Punjab High Court. The Full Bench of the Madhya Pradesh High Court did examine the provisions of Chapter VIII. It opined that Sections 94 to 96 provide for compulsory insurance of motor vehicles and lay down the liability of the insurer to pay the claimant directly. It also observed that Sections 110 to 110-F lay down the procedure for enforcement of substantive rights of the claimants as enlarged and circumscribed by Section 96. Notwithstanding the fact that the Full Bench noticed the 'substantive rights' and 'enlargements', it took the view that the liability had yet to be governed by the principles of negligence of the owner and the driver. This view was taken upon the footing that the said provisions are mere indemnity provisions. The Full Bench then proceeded to observe at page 9 as follows:--
'However, the ingredients of the liability of the insurer are nowhere, provided in this special statute. Necessarily, therefore, the aspect of the matter will be governed by the general substantive law, which remains untouched by this special law. We have already shown that it is on the contract of indemnity that the insurer is liable to pay compensation only it the insured is liable to pay damages to the claimant. If the insured is not liable, then the insurer is also not liable. In other words, the liability of the insurer depends upon the liability of the insured. Now, the liability direct or vicarious of the owner of a motor vehicle involved in an accident resulting in injury to, or death of, a third party, to pay damages arises from the law of torts. Under that law, negligence of the owner or driver is the sine qua non for such liability.'
95. I respectfully dissent from the view taken by the Full Bench of the Madhya Pradesh High Court. As already seen above, the Scheme of Chapter VIII militates against the incorporation of Law of Torts as inhibiting factors or sole principles governing exclusively the question of compensation payable under the provisions of the Act. Such an interpretation detracts from the plain and unambiguous language of Section 110-B or whittles down the sweep of Tribunal's power thereunder. It renders the expression 'compensation which appears to it to be just', otiose. There is no reason why the Legislature could not have used the expression 'such compensation as is payable in law' if Law of Torts or other substantive provisions were intended to apply to cases of compensation under the Act. Furthermore, as will be seen later negligence as the sole basis of liability is a principle which of late has not found favour with several courts in England. In my respectful opinion the observations of the Chief Justice in the order of reference to the Full Bench, are more apposite and accord appropriately with the scheme of the Act as also the legal trends in vogue in the realm of torts.
96. In Perumal v. G. Ellusamy Reddiar, reported in 1974 A CJ 182, a Division Bench of the Madras High Court also took the view that the provisions of Sections 110 to 110-F, were procedural, and that the substantive provisions of law relating to determination of liability are to be found under the law of torts or the Fata) Accidents Act. The Division Bench dealt with the controversy as to whether the said provisions are complete Code. It referred to the judgment of the Supreme Court in M/s. Sheikhupura Transport Co. Ltd. : AIR1971SC1624 (supra) where the said question was kept open. The said Division Bench held that the said provisions were procedural in character and were not a Code complete in themselves,. According to it, the said provisions did not create any new rights. The Division Bench observed in para. 37 at pages 197 and 198 as follows.--
'One of the contentions raised on behalf of the appellants is that as Section 110-B of the Act speaks of the Tribunal making 'an award determining the amount of compensation which appears to it to be just', the powers of the Tribunal are independent of the provisions of the Fatal Accidents Act (as well as that under the Legal Representatives' Suits Act) and that therefore the provisions of the Act must be construed as substantive provision and not merely procedural in character. This contention is fallacious. It is true that the Tribunal has to determine 'the amount of compensation which appears to it to be just'. But the question is, compensation for what. If it is a claim by an injured person, he can certainly claim compensation for the pain, suffering, etc., loss of earning, other pecuniary loss arising out of the injury and shortening of expectation of life, if any, provided the injury or injuries had been caused by a tortious act by the owner of the vehicle, by himself or vicariously. So, even though the Claims Tribunal is given power to determine the amount of compensation which appears to be just, it has necessarily to look to the law of torts in determining such 'just compensation'. Similarly, in case of death due to injuries just compensation awardable by the tribunal should naturally be only towards loss of benefit, if any, and loss of estate, if any provided again that the death was caused by a tortious act. Therefore, by the mere use of the words 'compensation which appears to it to be just' in Section 110-B, the relevant provisions of the Act (Sections 110 to 110-F of the Act) cannot be said to create new rights or liabilities-It can never be contended that these provisions in the Act are in any way meant to alter or amend the pre-existing law relating to substantive rights and liabilities of the parties.'
97. Dealing with an earlier Division Bench Judgment of the same High Court viz., M.A. Rahim : AIR1973Mad83 (Supra), the said Bench merely observed that 'the learned Judges who decided M.A. Rahim v. Sayari Bai would hot have made the observations if the decision of the earlier Bench in Mohammed Habibullah v. Seethammal, reported in : AIR1967Mad123 was brought to their notice'. There is no other discussion which goes to throw light on the scheme of the law as discussed above or the purposes and intendments which are disclosed in the relevant provisions of the Act.
98. With great respect I am unable to appreciate riders engrafted in para. 37 of the said judgment referred to above. In my opinion, it does not follow from the expression 'amount of compensation which appears to be just' that such compensation can be given only if 'injury or injuries are caused by a tortious act of the owner of the vehicle'. This amounts to reading something into Section 110-B, which is not there. It is an unjustified constraint on the width of the power envisaged by the said expression. What is a just compensation depends on the facts of a given case as appreciated by the tribunal. This appears to have been appreciated when it is observed 'just compensation awardable by the Tribunal should normally be towards loss of benefit, if any and loss of estate if any'. There is, however, no reasoning given as to why this loss has to be compensated subject to the proviso, 'provided again that the death was caused by tortious act.'
99. In my respectful opinion, the view taken by the Division Bench of the Madras High Court in M.A. Rahim v. Sayari Bai : AIR1973Mad83 (Supra) appears to lay down the law correctly on the subject. At page 477 the Division Bench considered Section 110-B and more particularly the expression 'the compensation which appears to it to be just'. Giving effect to said expression, the Division Bench in Rahim's case ruled that:
'It is enough to hold that the word 'just' in Section 110-B of the Motor Vehicles Act has been used in a very wide and comprehensive sense.'
100. With respect, these observations are fortified by the dicta of the Supreme Court in Sheikhupura Transport Co. Ltd. : AIR1971SC1624 (Supra) wherein the Supreme Court characterised jurisdiction under Section 110-B to be wide. That being the position, it is difficult to understand as to how the stubborn text of Section 110 can be bent to accord with an a priori, but fragile concept that all legal injuries can be compensated only upon the ground of negligence and not on the footing of absolute statutory liability or of being an insurable event covered by a policy of insurance in that behalf.
101. Counsel for the insurer calls attention to a judgment of the Supreme Court in New India insurance Co. Ltd., v. Smt. Shanti Misra, reported in : 2SCR266 , as an authority for the proposition that Section 110-B is merely a procedural section. Says the counsel -that no substantive provisions can be read therein and that being so, the provisions of law of Torts or of the Fatal Accidents Act must be held to be applicable to cases arising under Chapter VIII of the Act. I am afraid, this is a mis-reading of the judgment of the Supreme Court.
102. In Shanti Mishra's case : 2SCR266 (supra) an accident took place on 11th September, 1966. On the date of the accident no Claims Tribunal was constituted under Section 110 of the Act. The Claims Tribunal was constituted by a notification published in the gazette dated 18th March, 1967. The injured filed an application under Section 110-A on 8th July, 1967. The owner and the insurer objected to the jurisdiction of the tribunal to entertain the application. The objection having been overruled by the tribunal, the owner and the insurer filed a writ petition challenging the jurisdiction of the tribunal. The view taken by the High Court was that the tribunal had the jurisdiction to entertain the application. In the appeal therefrom to the Supreme Court the question which arose was as to whether the provisions of Sections 110-A and 110-F were retroactive in operation. No question as to the interpretation of Section 110-B arose before the Court. Dealing with the Section 110-A and Section 110-F the Supreme Court took the view that the said sections merely provided for a change of law of forum. It was in this context that the Supreme Court interpreted the said Sections 110-A and 110-F and held them to be procedural. The observations of the Supreme Court at page 240 para. 6 are as follows:--
'In our opinion in view of the clear and unambiguous language of Sections 110-A and 110-F it is not reasonable and proper to allow the law of change of forum give way to the bar of limitation provided in Sub-section (3) of Section 110-A. It must be vice versa. The change of the procedural law of forum must be given effect to. The underlying principle of the change of law brought about by the amendment in the year 1956 was to enable the claimants to have a cheap remedy of approaching the Claims Tribunal on payment of a nominal Court-fee whereas a large amount of ad valorem court-fee was required to be paid in Civil Court. It is legitimate to think that the legislature did not think It necessary to affect the pending suits but wanted the cheap remedy to be available as soon as the tribunal was constituted by the State Government in all cases irrespective of the date of the accident, provided the remedy of going to the Court was not barred on the date of the constitution of the tribunal. Then how is the difficulty of limitation in such cases to be solved is the question.'
103. With great respect, that is the exposition of law by Supreme Court relating only to Sections 110-A and 110-F of the Act. These observations are no authority for the propositions canvassed on behalf of the insurer. On the contrary, the dicta of the Supreme Court supports the converse. Respectfully paraphrasing it, it can be that in view of clear and unambiguous language of Section 110-B it must be said that the tribunal is empowered to award such compensation as it deems just. The language being clear and unambiguous, as the Supreme Court itself lays down, effect must be given thereto. The provisions of Section 110-B provide not merely for a cheap and expeditious remedy but also an effective remedy untrammelled by considerations of law of Tort or other laws,
104. In my opinion, the infirmity of the argument of the counsel for the insurer lies in his ignoring vital and effective distinction between, the two concepts of law of compensation or law of liability, viz., the basis of liability and the extent of liability. However, the learned counsel cannot be blamed. McGregor on Damages, 13th Edn. page 51 summarises accurately the whole position in the following words;
'In considering the general problem of the limits of compensatory damages there arises first a difficulty which is never very far away in problem of damages but which is at this point at its most acute. This is the difficulty of distinguishing the question of the existence of a liability to pay damages from the question of the extent of a liability to pay damages. Strictly the first does not concern damages at all, but in dealing with the second it is very difficult to disentangle the two questions. This is the case far more in tort than in contract, and par excellence in the tort of negligence'.
'The difficulties are increased by the fact that there is an overlapping of concepts, and the same problem may sometimes be dealt with as a question of existence of liability and sometimes as one of extent'.'
105. Even so these two concepts have to be treated separately because both in point of fact and as a matter of law they are separate and must always be kept separate.
106. In so far as the liability in regard to the claims arising from the accidents caused by the use of a motor vehicle is concerned, it arises, in my opinion, from the statutory provisions of the Act. This view, based upon a true construction of the relevant provisions of the Act, is also supported by the recent judicial trends in the field of law of Torts in England.
107. The English Law of Torts is not a codified law. It is what may be called a judicial law making. History of English Law of Torts shows the dynamic understanding of the Judges and their inclination to create new forms or categories to meet new situations. The controversy between Salmond on one hand and Winfield on the other, is academic. Whether one or the other is correct is an Issue that need not be gone into. Suffice it to notice that according to Dr. Street (On Torts, 5th Edn. at page 3):
'It is the function and purpose of the law of torts that are of greater import, and these are matters which can be explained in comparatively simple terms. The law of torts is concerned with those situations where the conduct of one party causes or threatens harm to the interests of other parties. It is accordingly the aim of the law of torts to adjust, once it is decided that some adjustment is to be made, those losses which must inevitably result from the ever-increasing activities of those who live in a common society. This adjustment is made by providing compensation for the harm suffered by those whose interests have been invaded owing to the conduct of others.'
108. Thus the fundamental objective is to provide compensation for the harm' suffered by those whose interests have been prejudiced and breached. This objective is in a large measure fulfilled by the laws of Scotland. In Scots Law this branch of law is known as reparation. It looks at the matter from the point of view of the victim. When the measure of damages is considered, the amount awarded is normally based solely on the extent of plaintiffs loss and the degree of defendants' fault is not taken into account (see Peter Stein and John Shand: Legal Values in Western Society; page 126). In England also the principles of volenti and of contributory negligence have been very much diluted as can be seen from 'rescue cases' (see Wind field and Jolowics on Tort 9th Edn, pages 635-637).
109. An articulate exposition of these approaches is found in the dicta of Lord Denning M.R.. in Dutton v. Bognor Regis United Building Co. Ltd., reported in (1972) 1 All ER 462. It was a case of negligence. But it was novel in the sense that for the first time a claim was sought to be made against a district council or its surveyor for approval of plans of a building, which collapsed and resulted in an injury to the claimant. At page 475 observed Lord Denning, M. R.:
'This case is entirely novel. Never before has a claim been made against a council or its surveyor for negligence in passing a house. The case itself can be brought within the words of Lord Atkin in Donoghue v. Stevenson 1932 AC 562; but it is a question whether we should apply them here. In Home Office v. Dorset Yatch Co., Ltd. 1970 2 All ER 294 Lord Reid said that the words of Lord Atkin expressed a principle which ought to apply in general unless there is some justification or valid explanation for its exclusion. So did Lord Pearson. But Lord Diplock spoke differently. He said that it was a guide but not a principle of universal application. It seems to me that it is a question of some policy which we, as Judges, have to decide. The time has come when in cases of new import, we should decide them according to the reason of the thing.' (underlining mine).
110. It was this 'reason of the thing' which was held by Lord Denning M, R.. to be the basis of the liability. This is very clear from the following observations found at page 475:
'In short, we look at the relationship of the parties; and then . say as a matter of policy, on whom the loss should fall. What are the considerations of policy here? I will take them in order. First Mrs. Dutton has suffered a grievous loss. The house fell down without any fault of hers. She is in no position herself to bear the loss. Who ought in justice to bear it? I should think those who were responsible. Who are they In the first place the builder was responsible. It was he who had laid the foundations so badly that the house fell down. In the second place, the Council's inspector was responsible. It was his job to examine the foundations to see if they would take the load of the house. He failed to do it properly. In the third place, the council should answer for his failure. They were entrusted by Parliament with the task of seeing that houses were properly built. They received public funds for the purpose. The very object was to protect purchasers and occupiers of houses. Yet, they failed to protect them. Their shoulders are broad enough to bear the loss.'
111. Another decision of Lord Denning, M. R., is more apposite to the facts of the present case. Nettleship v. Weston, reported in (1971) 3 All ER 581. This was a case which related to an accident where a learner driver and a passenger who was teaching driving were involved. At page 586, Lord Denning, M. R. observed that:
'The high standard thus imposed by the Judges is, I believe, largely the result of the policy of the Road Traffic Acts. Parliament requires every driver to be insured against third-party risks. The reason is so that a person injured by a motor car should not he left to bear the logs on his own, but should be compensated out of the insurance fund The fund is better able to bear it than he can. But the injured person is only able to recover if the driver is liable in law. So the Judges see to it that he is liable, unless he can prove care and skill of a high standard. See the Merchant Prince (1892) P 179 and Handerson v. Henry E. Jenkins' and Sons Ltd. 1969 3 All ER 756. Thus we are in this branch of the law moving away from the concept. 'No liability without fault'. We are beginning to apply the test; On whom should the risk fall ?' Morally the learner driver is not at fault; but legally she is liable to be because she is insured and the risk should fall on her'. (Emphasis by me).
112. Thus upon the authority of an eminent English Judge it is seen that Courts give effect not only to policy of law but also create new forms of law to meet justice in a given situation. In the Nettleship's case 1971 3 All ER 581 Lord Denning rested his judgment not merely on the policy of the Road Traffic Act but also on the principle that 'the Lady being insured and the insurance having covered the said risk,' the liability ought to be determined upon the said footing. Thus the policy of law and the fact of the insurance converged to provide the legal basis for compensation in respect of the accident arising out of the use of the motor vehicle on a public road.
113. In my opinion, if that is the, position of the English law, where the principles of Torts of negligence are admittedly applicable, stronger becomes the case where detailed provisions are made by an Act of a competent Legislature. The Act makes detail provisions enumerating duties of a driver of a motor vehicle. It makes elaborate provisions for an insurance coverage. It makes departure in several respects from the law of Torts and other laws. It provides for a cheap and expeditious remedy by tribunals constituted to hear motor accident claims. It must be held to be the policy of the Act that tribunals must award 'just compensation' for death or bodily injury or damages to property. This salutary jurisdiction and the content of its glorious power cannot be denuded by inhibiting factors obtaining in other fields of substantive law. There is no warrant for undermining the said provisions or policies enshrined therein.
114. In these circumstances I concur in the view taken by my learned brother that upon a true construction of the provisions of Chapter VIII the fact of an injury resulting from an accident involving the use of a car on a public road is the basis of the liability. It determines the liability. In connection with the. said liability, the tribunal has to award a 'just compensation' that is the compensation which appears to it 'just' in the facts and circumstances of the case. In such a case the cause of action is breach of statutory obligations imposed by the Act and the damage that has been caused to the injured. 'The quantification of damages' as observed by Lord Greer 'is not an essential part of the cause of action': Monk v. Warby (1935) 1 KB 75 (supra). This however, would not mean that the principles of law of Torts or the principles enshrined in the provisions of Fatal Accidents Act, are wholly irrelevant. These principles as indeed all other relevant legal principles impinging on the facts of a given case, will enter the judicial mind in the matter of determination of the extent of compensation in cases arising out of accidents. In other words, they along with other relevant principles would be factors which will have to be borne in mind by the tribunal while deciding the extent of liability in cases of accidents involving bodily injury, death or' damages to property. This is a conclusion that follows from the interpretation of the provisions of the Act seen in its historical and humanistic perspective. P. C.
115. In view of our above judgment, we pass the following orders.
(1) First Appeal No. 449 of 1975 is dismissed with costs.
(2) The award passed by the Tribunal is confirmed but the appellant-insurance Company is given liberty to apply on depositing Rs. 20,000/- with interest RS ordered in the award from the date of the application to the date of the deposit, for not issuing a certificate, against the insurance Company under Section 110-E for the balance of the amount awarded on the ground that the liability of the insurance Company is limited to Rs. 20,000/-under Section 95 (2) or the amount for which the Insurance Company has issued the policy, whichever is higher.
(3) The tribunal to decide the question of the liability of the insurance company on its application for the said purpose under Section 110-E after giving an opportunity to all the parties.
(4) The Insurance Company to pay the costs of all the parties hitherto incurred and hereafter to be incurred.
(5) Dr. Balkrishna Nayan or his Advocate is at liberty to withdraw Rupees 20,000/- with interest if any when deposited by the Insurance Company as stated above.
(6) What is stated above shall not in any manner prejudice the right of Dr. Balkrishna Nayan to recover the balance of the award amount from the other party or from the Insurance Company subject to what is stated above.
116. Ordered accordingly.