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United India Fire and General Insurance Co. Ltd. Vs. Maddali Susheela and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberAAO Nos. 414, 415, 416, 417, 418, 421, 470, 481 and 483 of 1976
Judge
Reported in[1983]53CompCas269(AP)
ActsMotor Vehicles Act, 1939 - Sections 96, 110A and 110AA;. ;Andhra Pradesh Motor Vehicles Rules, 1964 - Rule 514; Workmen's Compensation Act
AppellantUnited India Fire and General Insurance Co. Ltd.
RespondentMaddali Susheela and ors.
Appellant AdvocateK. Ramgopal, ;K.R.K. Gopal and ;R. Kondaiah, Advs. in AAO. Nos. 414, 415, 416, 417, 418 and 421 of 1976 and ;G.V.B. Mohan Rao, Adv. in AAO. No. 470, 481 and 483/76
Respondent AdvocateK. Ramgopal, ;K.R.K. Gopal and ;R. Kondaiah, Advs. for respondent No. 8 in AAO. No. 470 of 1976 and for the respondents in cross-objections in AAO. No. 418 of 1976, ;C. Poornaiah and ;V. Parabrahma Sa
DispositionAppeals dismissed
Excerpt:
motor vehicles - compensation - sections 96, 110a and 110aa of motor vehicles act, 1939, rule 514 of andhra pradesh motor vehicles rules, 1964 and workmen compensation act, 1923 - suit for compensation filed by legal heirs of deceased - whether proof of fault necessary for recovery of compensation under section 110a - requirement to prove fault destroy right of compensation for want of evidence which is not social justice - act provides for compensation not for proof of fault - concept of compensation emphasizes interest of victim and not wrong of wrongdoer - neither act nor rules or intention of parliament expressly provides that proof of fault is necessary to obtain compensation - held, prove of fault not necessary to recover compensation under section 110a. - - but for this.....lakshmaiah, j.1. these appeals under section 110d of the motor vehicles act, 1939, referred to hereinafter as 'the act', are directed against certain awards made by the learned addl. district jugde-cum-addl. motor accidents claims tribunal, krishna at machilipatnam in applications filed by the legal representatives of the deceased under section 110a of the act awarding certain amounts towards compensation in respect of an accident involving the death of certain persons.2. on 30th june, 1973, an accident took place during the early hours between milestones 221/4 and 221/6 near ambarpet on the highway, hyderabad to vijayawada while m. radha kirshnamurthy, regional transport officer, guntur, m. purnachandra rao, motor vehicles inspector, tenali, r. ranga rao, driver of ambassador car, aag,.....
Judgment:

Lakshmaiah, J.

1. These appeals under Section 110D of the Motor Vehicles Act, 1939, referred to hereinafter as 'the Act', are directed against certain awards made by the learned Addl. District Jugde-cum-Addl. Motor Accidents Claims Tribunal, Krishna at Machilipatnam in applications filed by the legal representatives of the deceased under Section 110A of the Act awarding certain amounts towards compensation in respect of an accident involving the death of certain persons.

2. On 30th June, 1973, an accident took place during the early hours between milestones 221/4 and 221/6 near Ambarpet on the highway, Hyderabad to Vijayawada while M. Radha Kirshnamurthy, Regional Transport Officer, Guntur, M. Purnachandra Rao, Motor Vehicles Inspector, Tenali, R. Ranga Rao, driver of Ambassador car, AAG, 1652, S. Subba Rao, Motor Vehicles Inspector, Guntur and Ammer, the driver working under S. Subba Rao were travelling in the Ambassador car, AAG. 1652 when a lorry TNU. 3360, driven by one by name R. Seetharaman, dashed against the Ambassador car which was completely smashed and all the five occupants of the Ambassador car died instantaneously and their bodies were mutilated beyond recognition. The accident, according to the legal representatives of the deceased, took place on account of the negligence and rash driving of the lorry driver, R. Seetharaman.

3. O.P. No. 90/73 was filed by the legal representative, six in number, of M. Radha Krishnamurthy, who was aged about 47 years when the accident took place and who was working as Regional Transport Officer, Guntur, drawing a salary of Rs. 630 per month. It was stated in the petition filed under Section 110A of the Act that as per the family tradition and history, Radha Kirshnamurthy would have lived up to the age of 80 years and that the deceased was having a bright future and he would have risen to the position of Deputy Transport Commissioner. The first petitioner is his wife, aged 40 years, and petitioners 2 to 6 are his children. The wife was deprived of consortium and dependence for the rest of her life undergoing great mental shock and agony. The first petitioner, therefore, claims Rs. 40,000 for the loss of consortium, support and maintenance and Rs. 20,000 for mental shock, pain and agony. The children, who are petitioners 2 to 6, are deprived of support from their father and petitioners 3 to 5 are daughters yet to be married. They were also deprived of educational facilities. But for this accident, the deceased would have educated all of them and placed them in a good position in life. Therefore, for the marriage expenses, for the education and for maintenance, petitioners 2 to 6 claim an amount of Rs. 25,000 each.

4. Notices were served on the respondents claiming the amount. The United India Fire and General Insurance Company (Unit : Madras Motor General Insurance), having its registered office at Madras, the second respondent gave a reply notice and the other respondents did not give any reply notice. The petitioners restricted their claim only to an amount of Rs. 1,00,000.

5. M/s. Thevar Transport, Melur, the owner of the lorry (first respondent) filed a counter denying the material allegations contained in the application and stated that the driver of the lorry was experienced, cool and steady driver and he was driving the lorry calmly and cooly in a normal way at a normal, ordinary and permissible speed and there was no need or necessity or motive for the driver of the lorry to drive the lorry rashly and negligently. The driver of the Ambassador car was driving rashly and negligently at a high speed without observing any rules of the road and that the negligence of the driver of the Ambassador car was 'responsible for the accident. It is further stated in the counter that the amount of compensation was excessive, imaginary and out of all proportion. The lorry transport is an essential service for any country and the lorry of the respondent is fully insured and all liabilities, if any, have to be borne by the second respondent and that the driver of the lorry died after this accident in another motor accident. It is also stated that the petition is bad for misjoinder of parties.

6. The insurance company, the second respondent, filed a counter stating that the accident was due to the rash and negligent driving of the Ambassador car, AAG. 1652, by its driver and that the accident could have been averted if the driver of the Ambassador car drove the vehicle at a regulated speed and that the negligent driving of the Ambassador car contributed to the accident to a great extent. The claim of compensation was exaggerated and in any event, their maximum liability was restricted under the policy as well as the Motor Vehicles Act, to Rs. 50,000 for each accident and that the liability in any case cannot be fastened on to them for more than Rs. 50,000 for all the claims put together. It is further stated that the second respondent was not liable also because of the fact that the vehicle, TNU. 3360, a goods vehicle had at the time of accident carried passengers, in violation of the permit and policy conditions and, therefore, the owner need not be indemnified to pay any compensation to third parties.

7. The President, Tenali Motor Taxi Drivers Co-operative Society, Tenali, third respondent, adopted the counter filed by M/s. United India Fire and General Insurance Co. Ltd., unit : United India, 4th respondent. It is stated, in the counter filed by the fourth respondent, that the petitioners-are estopped from claiming any amount more than Rs. 10,000 from them as per their notice dated August 24, 1973. Hence the claim in excess of Rs. 10,000 must be dismissed. As the lorry was coming at a high speed with passengers, he could not go to the left side of the road because of curves and thereby went to the wrong side and hit the car AAG 1652. Having caused the accident, the driver of the lorry absconded from the scene of accident and it would go to show that the driver of the lorry alone was responsible for the accident. As per the photos taken shortly after the incident without disturbing the positions of the vehicles, the lorry TNU 3360 climbed over the car AAG. 1652 up to the wind screen glass and then fell down to its left side. The bonnet of AAG. 1652 jammed with the chassis frame. The 4th respondent, therefore, submitted that it is not at all liable to pay compensation to the petitioners. The life insurance amount, family pension and other amounts received by the petitioners after the death of Radha Krishnamurthy had to be deducted from the amounts, if any, that may be awarded. The liability of the fourth respondent was limited only to Rs. 10,000 in respect of each passenger and the total amount cannot be more than Rs. 50,000 for any number of claims in connection with a single accident.

8. On similar lines, the legal representatives of the other deceased filed O.Ps. and claimed compensation in various amounts. The respondents also have had their counters allowed to run on the same lines on which their counters were allowed to run in O.P. No. 90/73.

9. Nine witnesses were examined for and on behalf of the petitioners and no witness was examined on behalf of the respondents in the O.Ps. Exs. A-1 to A-37 were marked for the petitioners before the court below and Exs. B-1 to B-15 for the respondents, in the O.Ps.

10. The parties before the court below filed a joint memo to try all the petitions jointly and the evidence was recorded in O.P. No. 90/73 to be read as evidence in the other petitions.

11. On the basis of the aforesaid pleadings, appropriate issues were framed and the court below adjudicated upon the petitions and awarded various amounts to the legal representatives of the deceased. Aggrieved by that, the insurance company and others preferred these appeals.

12. Sri Ramgopal, the learned counsel appearing for the insurance company in CMAs. 414 to 418 and 421 of 1976, did not choose to disturb the findings of fact recorded by the court below. But the learned counsel advanced two following contentions, viz., (1) since the driver of the Ambassador car was not at fault, its insurer is not liable ; and (2) the lorry was driven in contravention of the conditions of the policy and for a purpose not warranted by the permit and, therefore, its insurer is absolved from the liability.

13. Sri K. Sri Krishna, the learned counsel appearing for some of the parties contended that there was negligence on the part of the drivers of both the vehicles and as such both the respective insurers were liable. The alleged violation of the conditions of the policy and the purpose of the permit are not proved and at any rate they do not have any impact upon the liability of the insurer with respect to third parties. It is further contended by the learned counsel that even otherwise, proof of fault or negligence is not necessary for claiming compensation by the legal representatives of the deceased under Section 110A of the Act.

14. Sri Poornaiah, the learned counsel contended that the doctrine of res ipsa loquitur has to be applied having regard to the ghastly incident which had taken place in such a short period.

15. Sri G.V.R. Mohan Rao, the learned counsel appearing for the lorry owner, contended that it is the driver of the Ambassador car that was negligent in driving the car rashly and negligently and it is not the driver of the lorry that was negligent ; at any rate, the amounts awarded are excessive. The other learned counsel appearing in the case adopted the arguments put forth by the respondents' counsel.

16. Sri Ramgopal, the learned counsel did not choose to question the findings of fact arrived at by the court below but confined only to the two contentions put forth by him as alluded already and that relieves us from the task of examining the evidence in the case de novo, so far as the consideration of his contentions is concerned.

17. The point, therefore, that arises for consideration is whether in view of the finding of the court below that the lorry driver alone was at fault and negligent and the driver of the Ambassador car was not, the insurer of the Ambassador car is liable.

18. The accident took place on 30th June, 1973, during the early hours. P.W. 1 was the only witness who was travelling in the lorry that could speak anything about the happening of the accident. He was a maistry for the mutta coolies. He along with sixty other coolies started at Mullapadu including women and children and they reached the main road at Mullapadu touching Hyderabad-Vijayawada road. They wanted to go to Vijayawada side for transplantation work. They wanted to go by lorry and the lorry involved in this accident was coming from Hyderabad side. They stopped that lorry. P.W. 1 asked the driver to take them to Vijayawada. After some discussions as regards the rates, a decision was taken by which it was agreed that the coolies should pay Rs. 80 for the sixty coolies. As soon as he got into the lorry, the driver began to drive the lorry at high speed. The driver seemed to have told him that he would stop only at Vijayawada, The cleaner sat on the top of the cabin. All of them passed Nandigama and they found the Ambassador coming from Vijayawada side. The witness was standing in the body of the lorry. The people in the small car at a distance of 200 yards waved their hands indicating that the lorry should come slowly. But the driver of the lorry increased the speed and was driving the lorry in the direction opposite to the direction in which the Ambassador car was coming. The driver of the lorry dashed the lorry against the small car. He was seeing it. The lorry also tilted to a side to a large extent as a result of which all of the coolies fell down on the road. Except two, all of them received bleeding injuries. He was dazed and gained full senses after a while. All the five people in the small car died and they received injuries. One among the coolies also died. All the five people who died inside the car were crushed. They received injuries all over the body.

19. It was elicited in the cross-examination of this witness that it was not true to say that the car was driven in such a manner as to cause obstruction to the lorry with a view to stop the lorry. The witness says that he saw the collision and he immediately fell down. One of the coolies who sat in the cabin died.

20. It is evident from the evidence of this witness that a ghastly accident had taken place wherein all the inmates in the car, five in number, died instantaneously and one of the coolies in the cabin also died. Immediately after the incident, the witness also fell down unconscious for some time. There is, in this case, a head-on collision between the lorry and the car where the car was reduced to a scrap and the lorry was damaged. Any one of the drivers could have averted this unfortunate catastrophe, but the catastrophe had happened. In a case where a head on collision took place between two vehicles in broad day light on a highway and when any one of them could have, with little care and presence of mind, averted the happening of the accident and if that is found to have not taken place, the negligence cannot be fastened to only one of them. In the absence of there being any evidence, barring that of P.W. 1, and in the nature of things having regard to the place and time at which the accident took place it is not possible to get any eye-witness to speak to the factum of occurrence of the accident and having regard to the further fact that the lorry driver also who could have been available for being examined to speak to the occurrence of the accident died, though, of course, subsequent to the event, we have no hesitation to come to the conclusion that this is a case where the drivers of both the vehicles must be presumed to be negligent.

21. In V. Rajeswara Rao v. Kama Ademma a case arising under Chap. VIII of the Motor Vehicles Act where Section 110B occurs, a Division Bench of this court held at p. 190 thus (p. 146 of 50 Comp Cas):

'In Koth Hing Keng v. Low Pee L.T. Co. [1967] ACJ 304 it was held that where there was a collision between the car and the lorry coming from opposite directions and both parties blamed each other, in the absence of any special circumstances, the court should generally raise a presumption that both the drivers were equally negligent. The Tribunal was, therefore, right in the circumstances above stated in holding that this was a fit case to hold that both the drivers were equally rash and negligent in driving the vehicles.'

22. We consider that the presumption of negligence on the part of each driver of the vehicle, propounded in the above said decision is applicable to the facts of the present case and when the drivers of both the vehicles are thus found to be negligent, we do not find any merit in the contention put forth by the learned counsel appearing on behalf of the appellants.

23. The next contention is to the effect that in view of the fact that the lorry driver was carrying on regular passengers contravening the terms of the policy and conditions of the permit, the insurer of the lorry is not liable and in support of that assertion, assistance was sought under Section 96(2)(b)(i)(c). Section 96 provides for the duty of the insurers to satisfy judgments against persons insured in respect of third party risks. If, after a certificate of insurance has been issued in favour of the person by whom a policy has been effected, a judgment in respect of any such liability as is required to be covered by a policy of insurance under Section 95(1)(b) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of Section 96, pay to the person entitled for the benefits of the decree as if he were a judgment-debtor in respect of the liability.

24. No such sum shall be payable by an insurer in respect of any judgment unless before or after the commencement of the proceeding of which the judgment is given the insurer had notice through the court of the bringing of the proceeding and the insurer is entitled to defend the action on any one of the grounds including the ground that there has been a breach of a specified condition being one of the following conditions, viz., 'for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a transport vehicle'.

25. The insurance is a contract between the insured, on the one hand, and the insurer, on the other. Any breach of the conditions of the insurance policy affect the rights of the parties to the policy. It does not have any impact upon the rights of the third party the liability towards whom was insured with the insurer. Therefore, even assuming that there is an alleged contravention of the terms of the policy or the conditions of the permit, it does not affect the right of the third party to claim the amount granted to him under the judgment as contemplated under Section 96 of the Act. We are supported in this view of ours by any observation of Raghubar Dayal J. in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani : [1964]7SCR867 . His Lordship observed thus :

'Thus the contract between the insured and the company may not provide for all the liabilities which the company has to undertake vis-a-vis the third parties, in view of the provisions of the Act. We are of opinion that once the company had undertaken liability to third parties incurred by the persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy.'

26. Besides that, as Sri Krishna, the learned counsel rightly pointed out, the substance of the allegation as regards the violation of the terms of the permit or the conditions of the policy was merely allowed to remain in the realm of allegation with no evidence being adduced in support of the same nor the permit is made available to us. For the aforesaid reasons we are satisfied that the insurer of the lorry cannot be absolved of the liability. We find, therefore, no merit in this contention either.

27. As regards the doctrine of res ipsa loquitur invoked by Sri Poornaiah, we may refer to a passage in Salmond on the Law of Torts, 15th Edn., p. 306, which reads thus :

'The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused.'

28. The following passage from Halsbury's Laws of England, 3rd Edn., Vol. 28, at page 77, is very instructive :

'An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous.'

29. In Pushpabai v. Ranjit Ginning & Pressing Co., : [1977]3SCR372 , referring to the doctrine of res ipsa loquitur, the Supreme Court said at p. 1739 thus :

'The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident' speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence.'

30. It is further observed thus (p. 1739) :

'Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part.'

31. The general principle is that he who alleges a fact must prove it. Normally, it is the duty of the plaintiff who alleges, negligence to prove the same. Some times a thing may take place in such circumstances as to render it practically impossible for any one to speak to its happening just like in the case of a sudden accident on a highway where there are no witnesses or where persons who could speak to the occurrence are not available for whatever reason it be. The doctrine of res ipsa loquitur does not dispense with the need to prove a fact alleged by a person. It only effects the mode of proof. With a view to mitigating the rigour of proof of negligence under certain circumstances, the common law invoked the aforesaid doctrine. In the present case, the only witness, that could be said to have witnessed the occurrence is P.W. 1 and it is elicited in his cross-examination that he fell unconscious when the occurrence took place and having regard to the peculiar circumstances attending upon the occurrence to the accident, we are definitely of the opinion that the doctrine of res ipsa loquitur applies and the persons who are opposing the claim of the claimants did not discharge the onus cast on them an account of the applicability of the doctrine of res ipsa loquitur. We find, therefore, that the claimants are entitled for the compensation they claimed.

32. Sri Ramamohana Rao, the learned counsel for the lorry owner, contended that it was the driver of the Ambassador car that was negligent and not the driver of the lorry and, therefore, the owner of the lorry was not liable ; at any rate, the liability in that direction should be fastened on to their insurer. We have been taken through the evidence of P.W. 1 and P.W. 9 also who was an Assistant Motor Vehicles Inspector and who had the occasion to witness the scene of occurrence immediately after the occurrence. The court below, after considering their testimony and Ex. A-1, a certified copy of the statement of P.W. 1, recorded by the police and Ex. A-36, which was the original report of the accident issued by P.W. 9 came to a well considered conclusion that the lorry came at a high speed recklessly and negligently and we are not persuaded to disturb that finding.

33. The last contention put forth by the learned counsel relates to the quantum of compensation. The principles that are to be applied while determining the compensation are all well settled as not to need any reference to the case-law on that subject. The Claims Tribunal, under Section 110B of the Act, is required to make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom the compensation shall have to be paid and while making an award, the Claims Tribunal shall have to 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.

34. The principles applicable for determination of the compensation have not been specified in the Act. The Claims Tribunal was required to make an award determining the amount of compensation which appears to it to be just. Therefore, a considerable amount of discretion is conferred upon the Claims Tribunal while determining the compensation before making an award. Though no principles in that direction were specified in the Act, the Tribunal is required to exercise the discretion conferred upon it, according to sound judicial principles evolved by judge-made law and those principles are not in dispute.

35. Lord Russell of Killowen and Lord Wright in Davies v. Powell Duffryn Association Collieries Ltd. [1942] AC 601 laid down the following principles for the assessment of damages :

'The general principle, which has always prevailed in regards to the assessment of damages under the Fatal Accidents Act is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those acts the balances of loss and gain to a dependant by the death must be ascertained the position of each dependant being considered separately. The damages are to be based on the reasonable exception of pecuniary benefit or benefit reducable to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered .........The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and on the other any advantage which from whatever source comes to him by reason of the death.'

36. Those principles are approved by our Supreme Court in Gobald Motor Service v.. Veluswami, : [1962]1SCR929 .

37. A decision of our High Court in Vishakapatnam Ex-service Men Co-operative Motor Transport Society v. S. Ramayamma, : AIR1976AP326a , was cited wherein it was observed thus (headnote):

'It cannot be laid down as an absolute rule that in every case some deduction should be made out of the total compensation amount on the ground of uncertainties of future and also on the ground that the entire compensation amount is paid in a lump sum.'

38. The learned judge held that gratuity was not an amount that was deductible from the compensation amount. After perusing the entire judgment and hearing the arguments with respect to this aspect of the matter we find that the correct principles for determining compensation were followed by the court below in making the award as not to need any disturbance by us.

39. As regards the plea that proof of fault or negligence is not necessary for recovery of compensation, the point that arises for consideration is whether the legal representatives of the deceased claiming compensation under Section 110A of the Motor Vehicles Act, 1939, as amended from time to time, in respect of an accident involving the death of several persons and arising out of the use of motor vehicle on a highway are obliged to prove anything other than what is required under the Act or the Rules made thereunder including fault on the part of the driver of the vehicle.

40. That necessitates a probe in some depth into the constitutional background, the nature, scope, scheme and object of the Act and the Rules made thereunder.

Motor Vehicles Act, 1939. Federal Legislature and the Act.

Constitutional background:The law contained in the Act was made by the Federal Legislature in exercise of the powers conferred on it by ss. 99 and 100 of the Govt. of India Act, 1935, with respect to, among other things, the following matters, enumerated, 'the concurrent legislative list' in Sch VII to that Act.

1. Government of India Act, 19352. Constitution of India.

'20 Mechanically propelled vehicles ;

14. Actionable wrongs.........

(1) Criminal law.........

(2) Criminal Procedure.........

(4) Civil Procedure.........

(5) Evidence and oaths.........

41. The Constitution of India, by Article 395, repealed the Govt. of India Act, 1935, together with all enactments amending or supplementing it. The 26th day of January, 1950, is referred in Article 394 'as the commencement of this Constitution'. As per Article 372, all the law in force in the territory of India before the commencement of the Constitution including the law contained in the Motor Vehicles Act, 1939, was continued as in force subject to its being altered or repealed or amended by a competent Legislature. Parliament is such a competent Legislature.

PARLIAMENT AND THE ACT

Parliament has power under arts. 245 and 246 of the Constitution to make laws with respect to the following matters enumerated in 'the concurrent list' in Schedule VII.

35. Mechanically propelled vechicles ;

8. Actionable wrongs.

23. Social security and social insurance.

(1) Criminal law.........

(2) Criminal Procedure.........

(13) Civil Procedure.........

(12) Evidence and oaths.........

42. It is the duty of Parliament to apply the directive principles of State policy in making laws and those principles were declared by the Constitution to be fundamental in the governance of the country.

43. The State, shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life (Article 38).

44. In exercise of the powers so conferred and in discharge of that duty Parliament amended the Motor Vehicles Act, 1939, comprehensively in 1956 through the Motor Vehicles (Amendment) Act, 1956 (100 of 1956). Sections 110 to 110F were substituted in the place of Section 110 and that un-amended Section 110 read thus :

'A State Government may, by notification in the official Gazette, appoint a person or a body of persons to investigate and report on accidents involving the death of or bodily injury to any person arising out of the use of motor vehicles, and the extent to which their claims to compensation have been satisfied and to advise and assist such persons or their representatives in presenting their claims for compensation :

Provided that nothing in this section shall confer any such person or body of persons the right to adjudicate in any way on the liability of the insurer or on the amount of damages to be awarded except at the express desire of the insurer concerned.'

45. The Statement of Objects and Reasons for the substitution of Sections 110 to 110F reads thus :

'Sections 110 to 110F.--Under the existing Section 110, powers to appoint persons to investigate and report on motor accidents have been given to State Governments but the officers so appointed are not empowered to adjudicate on the liability of the insurer or on the amount of damages to be awarded, except at the express desire of the insurance company concerned. This provision has not helped persons of limited means in preferring claims on account of injury or death, because a court decree has to be obtained before the obligation of an insurance company to meet claims can be enforced. It is, therefore, proposed to empower State Governments to appoint Motor Accident Claims Tribunals to determine and award damages. The amendments in these sections make the necessary provision.'

46. The act was further amended by Parliament through the Motor Vehicles (Amend.) Act, 1969 (56 of 1969). The Statement of Objects and Reasons shows that 'the main purpose of the Bill is to provide for stricter control over drivers ; liberalisation of the existing provisions relating to compensation payable to victims of road accidents......speady and effective enforcement of the motor vehicles law'.

47. The Amendment Act, 1969, inserted, among other things, a new Sections 110AA, providing for option regarding claims for compensation in certain cases. That section reads as follows :

'110AA. Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death of or bodily injury to any person gives rise to a claim for compensation under this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may claim such compensation under either of those Acts but not under both.'

48. The objects and reasons for that are stated thus :

'At present it is open to a workman to file a claim before a Commissioner for compensation under the Workmen's Compensation Act, 1923, even though he had preferred a claim earlier under the Motor Vehicles Act to a Motor Accidents Claims Tribunal and that claim had been adjudicated upon by that Tribunal. It was never intended, nor it is desirable, to allow a workman to claim relief under both the Acts. Hence this proposed amendment.'

49. Within the allotted sphere, both the Federal Legislature under the Govt. of India Act, 1935, as well as Parliament under the Constitution of India enjoy plenary powers of legislation while enacting and amending the Motor Vehicles Act, 1939, and those powers include all incidental, ancillary, subsidiary and consequential powers.

The Act is Consolidating Act.The Act is intended to be a complete and exhaustive code with respect to those matters with respect to which it came to deal. It was ' An act to consolidate and amend the law relating to motor vehicles ' as its preamble indicates.

50. The following passage from the Crates on Statute Law, 7th Edn., at p. 59, deals with 'Codifying and Consolidating Act' :

'Codifying Acts are Acts passed to codify the existing law, both statutory and common law, i.e., not merely to declare the law upon some particular point, but to declare in the form of a code the whole of the law upon some particular subject......

Consolidating Acts.--Analogous to these are consolidating Acts, the object of which is to consolidate in one Act the provisions contained in a number of statutes...They may be regarded as Acts codifying the statutes law upon a subject as opposed to other forms of law....'

51. In Ravulu Subba Rao v. CIT : [1956]30ITR163(SC) , Justice Venkatarama Ayyar, speaking for the Supreme Court observed, referring to the Indian I.T. Act, 1922 (p. 169 of 30 ITR):

'The Act is, as stated in the preamble, one to consolidate and amend the law relating to income-tax.'

52. After referring to the rule of construction to be applied to such a statute as stated by Lord Herschell in Bank of England v. Vagliano Brothers [1891] AC 107 the learned judge stated at p. 170 of the report thus:

'We must, therefore, construe the provisions of the Indian Income-tax Act as forming a code complete in itself and exhaustive of the matters dealt with therein, and ascertain what their true scope is:

The Act of 1918 professes to be a consolidating and amending statute ; on any point specifically dealt with in the Act the law is to be ascertained by interpreting the language used in the statute in its natural meaning, uninfluenced by considerations derived from the previous state of the law : Administrator-General v. Premlal ILR [1895] Cal 788 Narendra Nath v. Kamalbasani ILR [1896] Cal 563 and Ramdas v. Amarchand & Co. ILR [1916] 40 Bom 630. Reference to the previous state of the law would be permissible for the purpose of aiding in the construction of a new statute if any provision therein is of doubtful import : Bank of England v. Vagliano Brothers [1891] AC 107 Robinson v. Canadian Pacific Railway Company [1892] AC 481 and Mersey Docks v. Cameron [1865] 11 HLJ 443.

The purpose of a consolidating statute is to present the whole body of statutory law on a subject in complete form, repealing the former statutes.'

53. Lord Evershed M. R. said :

'One has to remember that Parliament must be taken to have been aware of the decisions of the courts in the meantime.' (Maxwell on the Interpretation of Statutes, 12th Edn., at p. 24).

54. Law Commission of India Report.

55. The law Commission of India, in their 'fifty first report on compensation for injuries caused by automobiles in hit-and-run cases', September, 1972, observed (at p. 1) :

'1. A short but important question relating to compensation for accidents caused by automobiles in what are popularly known as 'hit-and-run' cases, is the subject-matter of this report. The subject has been taken up by the Law Commission, having regard to the fact that it is a legal question of general application and importance, and also because an amendment of the law appeared to be necessary in the interests of social justice.

2. For some time past, there has been considerable dissatisfaction regarding the position as to compensation for personal injuries caused by automobiles. This dissatisfaction can be attributed partly to defects in the law, and partly to the inherent nature of the situation. Remedies suggested for removing this dissatisfaction have been of various kinds,--extension of common law liability, insurance for liability, and social security,--or variants or combination of one or more of these three.

3. As the brief survey given below will show, economic distress resulting from the present gaps has, in some countries, been attempted to be remedied by the State directly or indirectly undertaking to secure payment of compensation. That is how the subject-matter of the present report falls within social security.

4. Under the Constitution, 'the State shall within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.' It may not be inappropriate to extend the principle underlying this article to the subject-matter of the present inquiry.'

(At page 13) ;

' 37. ......Social justice requires that the State should take over the liability.'

56. Social Justice Directive Principles of State Policy

57. Unlike in England, we have a written Constitution. Unlike in the United States 'of America, we have the 'Directive Principles of State Policy' chapter included in the Constitution. Unlike in common law system, here, there, every where we have Part IV declaring heads of public policy in the form of Directive Principles of State Policy (obviating thus any necessity on the part of the judges to invent fresh heads of public policy (which can be characterised as constitutional policy with a constitutional mandate to the law-making bodies that it shall be their duty to apply the said principles of State policy in making law, direct legislation by the legislature and subordinate legislation in the form of judge-made laws by the judges with a declaration that the Directive Principles are fundamental in the governance of the country (see Article 37).

58. The very Constitution was adopted and enacted by the people of India with a view to securing to all its citizens, justice, social, economic and political. These ideals embodied and enshrined in the preamble are transformed and translated into in the form of Directive Principles of State Policy. As per Article 38 the State shall have to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

59. The State, as per Article 41, is required to make effective provisions for securing the right, among other things, to public assistance in cases of disablement and in other cases of undeserved want.

60. The statutes should be interpreted and applied subject to the aforesaid Directive Principles of the State Policy. 'They do not override the Statutes, but are treated as it were, as implied terms of the Statute.' (Keir and Liwson on Cases in Constitutional Law, 5th Edn., at p. 11).

61. The Supreme Court of India observed in fundamental rights case dated 24th April, 1973 : 'What is implicit in the constitution is that there is a duty on the courts to interpret the Constitution and the laws to further the Directive Principles which, under Article 37, are fundamental in the governance of the country.'

62. The Statement of Objects and Reasons for the 1939 Act, as published in the Gazette of India, 1938, Part V, page 114 says, 'after recognising that the Indian Motor Vehicles Act, 1914, was not adequate to deal with the conditions brought about by the rapid growth of motor transport, in the interests alike of the safety and convenience of the public and of the development of a co-ordinated system of transport, much closer control is required than the present Act permits, and it is necessary to take powers to regulate transport.'

63. It is in the aforesaid background the scheme of the Act is proposed to be scrutinised.

64. The question to be considered.--

The first question to be considered is whether proof of fault is necessary for recovering compensation under Section 110A of the Act.

Claims for compensation are provided for under Chap. VIII of the Act, particularly, through Sections 110 to 110F, inserted by Parliament by way of an amendment in the year 1956.

65. In New Asiatic Insurance Co. v. Pessumal : [1964]7SCR867 , the Supreme Court denned the object of Chap. VIII and indicated the manner of construing the same at p. 1739 of the report thus (see p. 699 of 34 Comp Cas) :

'Chapter VIII of the Act, it appears from the heading, makes provision for insurance of the vehicle against third party risks, that is to say, its provisions ensure that third parties who suffer on account of the user of the motor vehicle would be able to get damages for injuries suffered and that their ability to get the damages will not be dependent on the financial condition of the driver of the vehicle whose user led to the causing of the injuries. The provisions have to be construed in such a manner as to ensure this object of the enactment.'

66. Section 110 of the Act, by Sub-section (1) provides that a State Govt. may, by notification in the Official Gazette, constitute the Motor Accidents Claims Tribunal 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.

67. An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made under Section 110A : (a) by the person who has sustained the injury ; or (b) where the death has resulted from the accident by all or any of the legal representatives of the deceased. Such an application shall have to be made to the Claims Tribunal in such form, containing such particulars as may be prescribed. Prescribed means prescribed by the Rules made under the Act. The State Govt. has had power conferred upon it under Section 111A to make rules for the purpose of carrying into effect the provisions of Sections 110 to 110E and such rules may provide for any of the matters mentioned therein.

68. In exercise of the powers so conferred, the State Govt. made The Andhra Pradesh Motor Vehicles Rules, 1964, Chap. XI of which was devoted to the subject-mater of 'Claims Tribunal--Establishment of '.

69. Every application for payment of compensation under Section 110A shall have to be made in Form CID as per Rule 514. The cause title of that form, in so far as it is material, reads thus :

' FORM CID

Form of application for Compensation.

(Rule 514 of the Andhra Pradesh Motor Vehicle Rules, 1964).

The Motor Accidents Claims Tribunal.

I......... son/daughter/wife/widow of.........residing at.........hereby apply, as a legal representative/agent for the grant of compensation on account of death of Sri/Kumari/Srimathi.........son/daughter/wife/widow of Shri/Srimathi........who died/was injured, in a motor vehilce accident.'

70. Form CID requires necessary particulars in respect of the deceased/injured, the vehicle, etc., as specified against columns 1 to 26 therein. It provides for furnishing of information by the applicant regarding the name, address, age, occupation, monthly income of the person injured or dead ; name and address of the owner of the vehicle, insurer of the vehicle, of the employer of the deceased, of the medical officer/practitioner, if any, who attended on the injured or dead ; name and address of the applicant, his or her relationship with the deceased and title to the property of the deceased ; place, date and time of the accident (8) ; Name and address of police station in whose jurisdiction the accident took place or was registered (9) ; Whether the person in respect of whom compensation was claimed was travelling by the vehicle involved in the accident and if so the name or place of starting of journey and destination (10) ; Nature and period of treatment and expenditure, if any, incurred thereon (13) ; Disability for work, if any, caused (14) ; Registration number and the type of the vehicle involved in accident (15) ; Amount of compensation claimed (25) ; and any other informations that may be necessary or helpful in the disposal of the claim. The application should contain the solemn declaration by the applicant to the effect that the particulars given therein are true and correct to the best of his knowledge.

71. As per Rule 517, the Claims Tribunal shall send to the owner of the motor vehicle involved in the accident and its insurer, a copy of the application together with a notice of the date on which it will hear the application and may call upon the parties to produce on that date any evidence which they may wish to tender.

72. Rule 518 provides for the appearance, filing of written statement dealing with the claim raised in the application and examination of parties.

73. Section 110B provides for the making of an award after holding an enquiry by the Claims Tribunal determining the amount of compensation, which appears to it to be just, and specifying the person or persons to whom compensation shall have to be paid. In making that award, the Claims Tribunal shall have to specify the amount which shall be paid by the insurer.

Section 110C deals with the procedure and powers of the Claims Tribunal.'

74. Section 110D provides for appeals by persons aggrieved by the award of the Claims Tribunal to be filed before the High Court.

75. Section 110E provides for the recovery of money from insurer as arrear of land revenue.

76. Section 110F provides for a bar on the jurisdiction of civil courts with respect to any question relating to any claim for compensation which can be adjudicated upon by the Claims Tribunal.

77. Rule 514 describes the application as one for payment of compensation. That is how the rule-making authority understood the scope of the application involving nothing more than determination of the quantum of compensation and for the payment of the same.

78. Executive Construction.--The construction placed by the executive, the rule-making authority on provisions of the Act while giving effect to the same by making a rule like Rule 514, which provides for the filing of an application with the needed particulars mentioned therein for payment of compensation shows that the proof of fault was not required for claiming compensation.

79. No more probe is called for to find out something which is not there.

80. There is, therefore, absolutely nothing in the Act or the Rules made thereunder providing for the proof of fault or negligence in claims for compensation arising under Section 110A of the Act.

81. Section 110AA.--There is enough of internal evidence forthcoming through Section 110AA, inserted by Parliament in the year 1969, indicating the intention of the framers of the Act to the effect that proof of fault is not necessary for claiming compensation. Where death or bodily injury to any person gives rise to a claim for compensation both under the Act as well as under the Workmen's Compensation Act, the person entitled to compensation may, as per Section 110AA claim such compensation under either of those Acts but not under both. Proof of fault is not necessary under the Workmen's Compensation Act. So should be the case under the Act as the same matter is required to be dealt with under both the Acts. That must have been the intention of Parliament. We cannot expect Parliament to be inconsistent with itself.

82. Breach of Statutory Duties.--'In the interests alike of safety and convenience of the public' and with a view to avoiding happening of accidents Parliament has imposed certain duties, especially on drivers, providing under Chap. VIII for payment of compensation arising out of accidents and for awarding of punishments under Chap. IX for the contravention of the Act or of any rules made thereunder.

83. The subject-matter of the Act is spread over ten chapters. Chapter I deals with preliminary. Chapter II with licensing of drivers of motor vehicles. Chapter III with registration of motor vehicles. Chapter IV with control of transport vehicles. Chapter V with construction, equipment and maintenance of motor vehicles. Chapter VI with control of traffic. Chapter VIII with insurance of motor vehicles against third party risks. Chapter IX with offences, penalties and procedure. And Chapter X with miscellaneous.

84. The State Govt. made more than 539 Rules known as the Andhra Pradesh Motor Vehicles Rules, 1964, with Forms, Schedules, for the purpose of carrying into effect the provisions of the Act. Besides these, the Central Govt. also made rules under the Act.

85. Chapter II of the Act dealing with the licensing of drivers of motor vehicles provides through Sections 3, 4, 5, 7(1) and (6) including three Schedules, Sections 11 and 12 for the grant of licenses and the circumstances under which they can be renewed and revoked. This chapter provides for the granting of licenses only to competent persons. Chapter VI deals with control of traffic and Section 71 therein defines the limits of speed as per which no driver shall drive or cause or allow a motor vehicle to be driven in any public place at a speed exceeding the maximum speed fixed for the vehicle by or under this Act or by or under any law for the time being in force : provided that such maximum speed shall in no case exceed the maximum fixed for the vehicle in the Eighth Schedule. Section 78 deals with duties to obey traffic signs ; Section 79 with signals and signalling devices and Section 87 enumerates the circumstances under which a driver is required to stop the vehicle.

86. Chapter IX deals with offences, penalties and procedure. Under Section 112, whoever contravenes any provision of the Act or of any rule made thereunder shall, if no other penalty is provided for the offence, is rendered punishable with fine. Section 113 provides for the disobedience of orders, obstruction and refusal of information. Section 113A deals with allowing unauthorised persons to drive the vehicles ; Section 114 deals with offences relating the driving licenses ; Section 115 deals with driving at excessive speed as per which whoever drives a motor vehicle in contravention of Section 71 shall be punishable with fine which may extend to two hundred rupees. Under Section 116, whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public shall be punishable on a first conviction for an offence with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, and for a subsequent offence, if committed within three years of the commission of a previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees or with both. Section 117 deals with driving while under the influence of drink or drugs and Section 118D with driving when mentally or physically unfit to drive. Section 118A provides for punishment for offences relating to accident, with imprisonment and fine. Section 119 deals with punishment for abatement of certain offences ; Section 121 prohibits using of vehicle in. unsafe condition and punishment stipulated therein extends to three months of imprisonment and with fine also. Section 124 deals with driving vehicle exceeding permissible weight and Section 125 deals with punishment for driving uninsured vehicle the punishment there being imprisonment as well as fine.

87. We have scanned the provisions of the Act in some detail for the purpose of showing that the framers of the Act provided both for compensation for civil wrongs as in Chap. VIII and for punishment for offences involving infringement of the provisions of the Act. Every conceivable activity associated with motor transport has thus been dealt with for the purposes of safeguarding the safety and security and general interest of the public through providing for the stringent measures in the matter of granting licenses to the drivers and the care they have to take concretising the same without leaving anything for any external sources to be resorted to for supplementing the same.

88. The duty of care on the part of the drivers is so concretised with such meticulous care in its statutorised form as to avert or avoid the happening of any accidents ensuring thus that if only those duties are observed, there is no likelyhood of any accident happening and that if an accident happens, it is only on account of the breach of those statutory duties. Therefore, a person claiming compensation under Section 110 arising out of an accident need not prove anything more than that an accident took place as the same is predicated on the assumption that there is a breach of statutory duty. Such a person is not required to prove fault.

89. The very cause of action for claiming compensation, which Section 110A itself provides, is the happening of the accident. My learned brother, Kondaiah J. speaking for a Division Bench of this court, in Hindusthan Ideal Insurance Co. Ltd. v. Ainaparthi Vijayalakshmi, : AIR1976AP39 , observed that the right to claim compensation from the insurance company as well as the owner or driver of the lorry, accrued to the claimants on the date of the accident as a result of which the person died. Cause of action arose at the time of the accident and on the date of the death of the deceased.

90. Breach of the Statutory Duty and Tort of Negligence. --It is well to remember at this stage the difference and the distinction obtaining and maintained between the claim for compensation based on breach of statutory duty on the one hand and the claim for damages based on the Tort of negligence. Omission to keep these two different claims separate and apart leads to, as it has already led to, otherwise avoidable confusion.

91. Statute of Westminster II-1285.--It is not out of place to begin with to refer to an ancient statute of West Minster II of the year 1285 which provided by Chap. 50 for a private remedy by action on the case to those aggrieved by the neglect of statutory duties : (see Theo Dore Plucknetts Concised History of the Common Law, 3rd Edn.).

92. In a thought provoking article on 'The Judicial Nature of the Action upon the Statute' published in [1970] 76 Law Quarterly Review, Fricke Graham L. said at p. 243 :

'In English law, the action upon the statute has traditionally been treated, not as a species of the negligence action, but as a quite distinct form of action.'

93. After referring to Ashby v. White [1703] 2 Ld. Raym 938 Monk v. Warbey [1935] 1 KB 75 and Cutler v. Wandsworth Stadium Ltd. [1949] AC 398 the learned author observed at p. 244: ' The action upon the statute has nothing to do with negligence.'

94. Fullagar J. an authority on tort law, referring to 'Statutory negligence ' as a most unfortunate expression observed in Darling Island Stevedoring & Lighterage Co. Ltd. v. Long [1957] 97 CLR 36

'I do not think that any serious question could ever have arisen in the case if that most unfortunate expression, 'statutory negligence' had got gained a certain currency. If that expression is used merely as a convenient label, it may do no harm, but it is inaccurate and misleading in the extreme. It is a misuse of a term with a long-established meaning to call a breach of a statutory duty a 'tort', and it is, I think, a harmful invention to call it 'statutory negligence'. Duties of the kind now under consideration are imposed without regard or reference to the common law standard of reasonable care, and a breach of such a duty may or may not, according to circumstance, amount to negligence.'

95. The judgment of Lord Wright in London Passenger Transport Board v. Upson [1949] AC 155; [1949] 1 All ER 60 decided by the House of Lords prior to the commencement of the Constitution, has already become a locus classicus on this aspect of the matter. The interpretation of the Pedestrian Crossing Places (Traffic) Regulations, 1941, regln. 3 and the duty of the driver of the motor bus arising thereunder fell for consideration in that case. The learned Lord Wright observed : (p. 67 of [1949] 1 All ER) :

'I think the authorities such as Caswell's case [1940] AC 152 Lewise v. Denye [1940] AC 921 and Sparks' case [1943] KB 223 show clearly that a claim for damages for breach of a statutory duty intended to protect a person in the position of the particular plaintiff is a specific common law right which is not to be confused in essence with a claim for negligence. The statutory right has its origin in the statute, but the particular remedy of an action for damages is given by the common law in order to make effective for the benefit of the injured plaintiff his right to the performance by the defendant of the defendant's statutory duty. It is an effective sanction. It is not a claim in negligence in the strict or ordinary sense. As I said in Caswell's case [1940] AC 152

'I do not think that an action for breach of a statutory duty such as that in question is completely or accurately described as an action in negligence. It is a common law action based on the purpose of the statute to protect the workman, and belongs to the category often described as that of cases of strict or absolute, liability. At the same time it resembles actions in negligence in that the claim is based on a breach of a duty to take care for the safety of the workman.' But, whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim.'

96. Proceeding further, the learned Lord Wright observed at p. 169 (see p. 68 of [1949] 1 All ER) :

'I have desired before I deal specifically with the regulations to make it clear how, in my judgment, they should be approached, and also to make it clear that a claim for their breach may stand or fall independently of a claim for negligence.'

97. Difference in the nature of duty in both.

'In the negligence the existence of the duty depends upon reasonable foresight, and the duty if it exists, is always the same, namely, to exercise reasonable care in the circumstances. The existence of a statutory duty, on the other hand, depends upon the criteria laid down in the statute itself, and the strictness of the duty may vary not only from one statute to another, but from section to section within the same statute.' (From Winfield and Jolowicz on Tort, 10th Edn. at p. 140).

98. Further difference between breach of statutory duty and negligence.

99. Kelly v. W. R. M Contracting Ltd. [1968] 1 WLR 921 Denyer v. Charles Skipper and East Ltd. [1970] 1 WLR 1087 are some of the recent cases in which a person was acquitted of negligence but held liable for breach of statutory duty. Kilgollan v. William Cooke & Co. [1956] 1 WLR 527 Kimpton v. Steel Co. of Wales [1960] 1 WLR 527 Bux v. Slough Metals Ltd. [1973] 1 WLR 1358 are cases in which a person has fulfilled his statutory obligation but is nevertheless held guilty of negligence. Liability for the breach of a statutory duty is not, as a rule, dependant on proof of negligence : (see Galashiels Gas Co. v. O'Donnell [1949] AC 275 per Lord Morton, 286 per Lord Mac Dermott).

100. It is a question of interpretation of Statute.

101. Where an Act requires something to be done without qualification, contravention of the statute automatically establishes liability (See John Summers & Sons Ltd. v. Frost [1955] AC 740).

'Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner' : (Doe d. Rochester v. Bridges [1831] 1 B & Ad. 847, 859).

102. This statement was accepted in Stevens v. Jeacocke [1848] 1 QB 731.

'In the present case, if the statute has prescribed a particular mode by which a person sustaining actual damage by reason of a breach of the duty imposed by the statute was to recover compensation, undoubtedly that mode only could be adopted.' (Couch v. Steel [1854] 3 E & B 402).

103. Concept of Compensation, Doctrine of Fault : Plaintiff's point of view modern tendencies.

104. Under this head we propose to refer to the representative views of text book writers with their reference to case-law.

105. 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. (Street on Torts, 6th Edn.)

106. The aim of law of Torts is to adjust 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.

107. Certain types of conduct simultaneously constitute both a crime and tort. The function of criminal law is to protect the interests of the public at large (or of the State), whereas the aim of law of torts is to protect the interests of individuals rather than to punish certain categories of wrongdoer.

108. The essential aim of the law of torts is to compensate those who have suffered harm through the invasion of certain of their interests occasioned by the conduct of others. The modern law of Torts is expounded by emphasising the interests of plaintiff rather than the wrong of the defendant. Those interests of the plaintiff receive protection through the action for breach of statutory duty.

109. The effect of leading cases of the 19th Century (which remain important authorities), however, was to make the cause of action rest on proof that the Legislature intended that violation of the right or interest conferred by the statute was to be treated as tortious. In Ashby v. White [1703] 2 Ld. Raym 938, interference with the plaintiff's statutory right to vote was held to give a cause of action in tort.

110. The action in tort is generally styled an action 'for breach of statutory duty'. This description (in conformity though it may be with the traditional stress on wrongs in the English law of torts), is misleading. A plaintiff who merely proves that the defendant broke a statutory duty is far from having established the tort. The emphasis should be, as a few eminent judges have pointed out, on the nature of the interest of the plaintiff.

111. The problem of tortious liability is not solved by asking whether there was a breach of a statutory duty : one must discover whether the statute created in the plaintiff an interest which was to be protected against interference of the defendant by an action in tort.

112. One of the most harmful consequences of this mistaken emphasis on breach of duty has been a serious confusion between this tort and negligence. Proof by the plaintiff that the defendant owes him a duty is the essence of the tort of negligence ; it is, therefore, natural to say that just as in negligence, a breach of duty amounting to carelessness must be proved so also in this tort. There must be negligent breach of statutory duty. The House of Lords, through the judgment of Lord Wright, has now exposed that error--One which would never have been made but for the false stress on breach of duty : (see London Passenger Transport Board v. Upson [1949] AC 155. Speaking about the difference between the claims based on negligence and breach of statutory duties, Lord Wright said :

'It (a claim based on breach of statutory duty), is not a claim in negligence in the strict or ordinary sense. Whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim.'

113. The authors propound social security approach. (Winfield and Jolowicz on Tort, 10th Edn.)

114. Social policy and social security approach.

115. The choice for the future lies between the basically individualistic approach of the common law (whether reformed or not) and the collective approach of social security or some similar method for providing all injured persons with a right to compensation from some central fund. Looked at solely from the point of view of the most efficient distribution of the money available for compensation, the arguments are all in favour of the social security approach. But in the end, the question is one of social policy and even of politics : of deciding what proportion of its wealth society can, and should spend on the assistance of the victims of misfortune. If the social security approach prevails, we shall sooner or later have to consider why we give preferential treatment to the victims of accidents over the victims of disease or congenital disability.

116. Tort law and the Welfare State. Any summation of the present role of the law of torts must necessarily be tinged with diffidence. Ours is a period of transition, of as yet uneven adjustment of legal doctrine to changing and by no means universally understood or even commonly shared goals. Yet, far and beyond all controversy, the law of torts has come to perform a not insignificant function of distributing losses in our society and has thereby assumed an active and vital role as a social regulator. This role was thrust upon it as the result of changes in the social and economic environment, especially the rise of liability insurance.

117. Our contemporary social order evinces a great deal of tenderness for the victims of tort by generally supporting their claim to full indemnity for their economic loss as well as substantial redress for pain and suffering; in contrast to general social welfare benefits, which are invariably restricted to scheduled amounts designed merely to meet basic needs of rehabilitation and minimal economic support during incapacity. (An Introduction to the Law of Torts by John G. Fleming).

118. Failure to remember that tort is properly a wrong at common law and does not include wrongs redressable in equity or some other branch of the legal system may lead to confusion.

119. Whereas the purpose of the tortious remedy is to compensate the victim, the purpose of criminal proceedings is to punish the wrongdoer.

120. The fault principle has shortcomings. The very idea suggests that compensation is a form of punishment for wrongdoing which not only has the tendency to make tort overlap with criminal law but also, and more regrettably, implies that a wrongdoer should only be answerable to the extent of his fault. This is unjust when a wholly innocent victim sustains catastrophic harm through some trivial fault and is left virtually without compensation. Another defect is that in a highly mechanised modern society failures to conform to the standards of conduct set by law are often due, not to moral blameworthiness, but to momentary lapse and human error. The results may be dissastrous, yet to treat such failures as 'fault' deprives the word of its meaning. Vicarious liability shows that the fault principle has to be abandoned whenever one person (a master), who is personally guiltless, is made answerable for the wrong-doing of another (his servant). The growth of insurance enables even the party at fault to shift the economic consequences of his wrong doing on to other shoulders (Clerk & Lindsell on Torts, 14th Edn.)

121. Roscoe Pound said long ago: 'There is a strong and growing tendency, where there is no blame on either side, to ask ; in view of the exigencies of social justice, who can best bear the loss, and hence to shift the loss by creating liability where there has been no fault.'

122. Compensating victims of Road Accidents--Nature of the Problem :

The expression 'accident' is not defined in the Act.

123. Black's Law Dictionary gives the following meanings to that expression : The word 'accident ' is derived from the Latin Verb accidere signifying 'fall upon, befall, happen, chance'. In an etymological sense anything that happens may be said to be an accident. In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning a fortuitous circumstance, event, or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens, mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progressesor develops......the word may be employed as denoting a calamity, casualty, catastrophe, disaster, and undesirable or unfortunate happening ; any unexpected personal injury resulting from any unlooked for mishap or occurrence any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or death. In its proper use the term excludes negligence...that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and the circumstances in which he was placed...accident does not have a settled legal signification.

124. In Bouvier's Law Dictionary the expression 'accident' is defined thus :

'An event which, under the circumstances, is unusual and unexpected. An event the real cause of which cannot be traced, or is atleast not apparent....

In Equity Practice : Such an unforeseen event, misfortune, loss, act, or omission as is not the result of any negligence or misconduct in the part.'

125. Sir Alfred Denning in his book The Road to Justice under the caption Freedom from Injury, at p. 109, observed thus :

''That man is free' said Daniel Webster 'who is protected from injury'...No one can prevent accidents happening. Risk of injury is a necessary incident of life...The law cannot itself ensure freedom from injury, but it can at least ensure that compensation is available for those who are injured...For centuries it has been regarded as axiomatic that no on should be liable to pay compensation unless he has been at fault. This doctrine is good enough for an agricultural community where people work with their hands : but it is not suitable for a mechanical age......Many injustices arise from a continuation of the old rule.'

126. Under the heading 'Want of Evidence' it was observed thus :

'The first injustice is that an injured person may fail to get compensation simply through want of evidence that the other was in fault.'

'On Compensation for Accidents on the Road', an address was delivered before the Bentham Club by its President the Rt. Hon. Lord Parkar of Wadding ton, Lord Chief Justice of England published in 1965 (Vol. 18) C.L.P. 1.

Proposals for reform.

The following passages are extracted therefrom :

'The law and its administration in this field is out of date, lacking in certainty, unfair in its incidence and capable of drastic improvements.' A national problem.

'This is a problem which affects the whole population. There must be few indeed who never use the roads, even if only on foot, and those who do are under the constant risk of injury, if not of death. I need not give figures : you are all well aware of the appalling toll on the roads. It might be likened to a civil war, unending and growing in severity, in which the casulties in peace may exceed those in war......No doubt the original justification of the 'fault' concept was to prevent injury by punishing the wrongdoer...But today, punishment of one wrongdoer by awarding damages against him is quite ineffective...Surely in these circumstances the time has come when we should recognise that the present methods, even if capable of improvement are no longer adequate and that some other method is called for. It is not a lawyer's problem : It is a social problem, and I venture to think an urgent social problem of ever-increasing extent. Is compensation of victims to continue to be administered under the present outmoded methods by which recovery depends on the proof of fault, or is it to be recoverable regardless of fault under a comprehensive insurance scheme ?...it is a growing social problem.'

127. J.A. Jolowicz in an article of 'Liability for Accidents' published in the Cambridge Law Journal, 1968, Vol. 26, at p. 50, had this to say :

'Common law is increasingly insisting that the object of an award of damages is compensation and not punishment.'

Damages as compensation not punishment.

128. Recent cases on damages expressed the view that there is no element of punishment in an award, and that damages are compensatory only. Such a view is plainly inconsistent with any theory of deterrence.

129. Lord Denning says in Browning v. War Office [1963] 1 QB 750.

'The award of damages is made to compensate him, not to punish the wrongdoer. That is now settled by British Transport Commission v. Gowley [1956] AC 185.'

130. Donovan L.J. though dissented yet said :

'of course, that the object is to compensate the plaintiff for what he has lost and not to punish the defendant.'

131. If the object is compensation, the learned author asked the question, what is the relevance of fault?

132. Referring to an article by Professor Glanville Williams on The Aims of the Law of Torts ' the learned author observed :

'This emphsises that the payment of compensation is a benefit to the victim of a wrong and declares that justice requires that the victim should receive compensation...the relevance of fault as the criterion of the right to compensation disappears. '

133. Hamish R. Gray in his article on 'Liability for highway accidents' published in 1964, Vol. 17 C. L. P., at p. 127, expressed the following views :

'The victim is apt to regard himself as much a victim of twentieth-century civilisation....A person's life is exposed to innumerable hazards and the incidence of these hazards is in no way related to his merits, moral, social or otherwise...But in this country there has developed a public feeling of 'Social justice' which dictates that within certain fields if a person suffers injury, someone else must pay compensation for that injury...This instinct is fortified by an awareness that industrial accidents tend to strike the principal earner of a family and his death or disability affects his wife and children...It is suggested, therefore, that 'Compensation' is a more apt word to describe the relief afforded to an injured person, rather than 'damages' with its punitive connotations and with the stress laid upon the defendant's wrong rather than the plaintiff's right...a scheme of compensation for injuries sustained on the highway is a social need.'

134. Under the caption 'Machinery for Establishing Fault' the learned author further observed thus :

'But, even assuming the requirement of fault as at present, the machinery for the ascertainment of that fault in courts of law is not by any means infallible. In the first place, if an accident has been witnessed it is notorious that half a dozen witnesses will give half a dozen stories, each differing from all the others in one or more respects. This is, of course, because so often the accident has happened so quickly that the witnesses' supposed observations are in reality a series of ex post facto reconstructions, and a judge has to reconcile these reconstructions so far as he can with the more solid evidence of tyre scorch marks and the like.'

135. A reference was made to the observations of the Solicitor-General for New Zealand who said :

'Cases of this kind show that recovery of damages can depend not on the true facts but on quite irrelevent matters such as the availability of evidence, the impressiveness of a witness, the prejudices of the jury and sheer good luck.

The conclusion that seems to me to be unavoidable is that, at all events in highway cases, so much depends on circumstances external to the driver that the stress laid upon fault, as the essential criterion in determining the right to compensation, is misplaced. Let the existing social assumption that a person injured on the highway deserves compensation be recognised, but little harm would be done by the abandonment of the requirement of fault.

The function of law--of any law--is to serve a social need, it may well be that this social need is better served by a law that does not depend upon liability, but simply upon justice.'

136. Douglas Payne, in an article on 'Compensating the Accident Victim', published in 1960, Vol. 13, C.L.P. at p. 85, observed thus :

'The general rule of English law is that a person seeking compensation for accident injuries must allege and prove negligence on the part of the defendant or some person for whose negligence the defendant is responsible in law. The general rule, that is to say, is no liability without proof of fault....The rule was established by the courts in the second half of the nineteenth century.

' There are several reasons for believing that some form of strict liability should be imposed for road and industrial accidents in particular.

The first and practical reason for this is that these two classes of accidents do in fact account for such a large proportion of the accidents that occur, and thus do in a sense single themselves out for special treatment. Compensation for accidents is a social problem, and a large part of the problem would be solved if adequate compensation was provided for the victims of these two classes of accidents alone.

As the accident figures show only too well, motoring and industry are both highly dangerous, in the sense that the accidents they cause are the more or less inevitable consequence of using powerful machines in the way and at the speed that they are used. The element of risk involved in an activity has to be balanced against the benefit that society gets from it.'

137. Under the heading 'Compensation for Road Accidents', the learned author said :

'At the time when workmen's compensation was first introduced in 1897, motor-cars were virtually unknown and road accidents were only a tiny fraction of that they are now...motor traffic has taken a far higher toll of life and limb than accidents in industry....

A Bill which would have made motorists strictly liable to pedestrians without proof of fault, was in fact given a third reading by the House of Lords in 1934, though it was not proceeded within the House of Commons....

It is interesting to note that the Bill was supported by Viscount Sankey and Lord Buckmaster.

Some other method than ordinary litigation is needed to provide compensation for road accident victims...the best solution is to be found in an extension of the principle of workmen's compensation with modifications suitable to the field of road accidents.'

138. In a thought provoking article on 'The aims of the Law of Torts' by Glanville Williams, published in 1951, Vol. 4, C.L.P., at p. 137, the matter was dealt with as under :

'An intelligent approach to the study of law must take account of its purpose, and must be prepared to test the law critically in the light of its purpose. The question that I shall propound is the end or social function or raison d'etre of the law of tort, and particularly of the action in tort of damages.

It is commonly said that the civil action for damages aims at compensation, as opposed to the criminal prosecution which aims at punishment.'

139. The concept of ethical compensation emphasises the fact that the payment of compensation is a benefit to the victim of the wrong, and declares that justice requires that he should receive this compensation. In Bessee v. Olliot [1682] Raym. Sir T. 467, Raymond J. said :

'In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering '.

140. Bohlen, while recognising the punitive origin of tort and the survival of this aspect in certain rules, declares that 'the modern tort recognising and enforcing social duties is in all its feature purely compensatory.'

141. Contributory negligence [1908] 21 Harvard Law Review, at p. 256.

142. Lundsted in his Jurisprudence argues that strict liability is justified by the difficulty of proving fault.

143. Under the heading 'Tort and Administrative Law' the learned author observed that if all notions of deterrance and ethical retribution are dropped from the law of tort, and the purpose is regarded as merely one of compensating the victim. About the difficulties of trial, the learned author observed thus ;

'There are the difficulties of trial presented by running-down cases. We have, become acutely aware of the deficiencies of our system of investigating past states of fact, particularly when those facts were crowded into a few moments of time as in the case of a traffic accident. Quite apart from the chance that a witness may lie, there is the possibility of imperfect observation, of failure of memory, of unconscious bias, of fallacious 'reasoning back'; there is also the possibility of having no witness at all. These dangers, which beset all legal evidence, are accentuated when the inquiry is into a sudden unexpected event. For these and other reasons the victim of negligence may fail to get compensation to which he is in justice entitled ; and even a successful action involves expense to the parties and to the State...Another trend that may be seen is the legislative 'concretisation' of the common-law duty of care.'

144. The Honourable Mr. J.C. Mcruer, the Chief Justice of the High Court of Ontario, contributed a brilliant article on 'Liability without fault in the Law of Torts 'which is published in Changing Legal Objectives, edited by Macdonald. Law was intended, according to the author, to be both punitive and compensatory. In early English law, as in the early laws of the Middle East, the concepts of punishment and compensation were ill-defined. Criminal law and what was to become tort law were for centuries scarcely distinguishable.

145. About proof of fault, the learned Chief Justice observed thus :

'There still remained those cases where proof of fault according to recognised legal 'standards might either be impossible or so difficult as to destroy any right to relief. It is in these cases that the common law still acknowledges the principle of strict liability. The classes of the strict liability cases and fault cases have never remained constant.

A requirement of proof of fault would in most cases of this nature deprive injured plaintiffs of any right to relief. On them would be placed an onus of proof that rarely could be discharged. Instead of the actor it would be the injured who would assume the risk.

Just as mechanization brought about a revolution in industry during the nineteenth century, the combustion engine and the mechanization of the means of transportation on the highways have brought about a revolution in the use of the highways during the first half of the twentieth century.

The use of the motor vehicle as a popular means of transportation of goods and persons was quite unknown when the principles of law of negligence were being developed. The high speed motor vehicle in general use, operating on hard-surfaced highways as developed during the last fifty years, has introduced factors making former procedures and former principles extraordinarily difficult to apply. The common law doctrines as applied to horsedrawn vehicles or even to ox carts in use a hundred years ago may have theoretical application to the operation of fast-moving motor vehicles...but actual precise application is not possible. Recognizing the inadequacy of the common law, the legislature has made many changes in the law and it has defined many duties.'

146. The learned Chief Justice posed the following questions : Are the present processes of the courts the best method that can be devised to provide just compensation for injuries sustained through the operation of motor vehicles on the highways, whether the case is tried by a judge sitting alone or by a judge and jury? The Chief Justice was of the view that the Tribunal of fact has to determine the liability arising out of conditions that were never dreamed of when the concepts of negligence were forged in the common law courts. About evidence he said :

'A great part of the evidence in actions arising out of motor vehicle accidents is, in fact, reconstruction and too often reconstruction with an eye on the result.

The violence of motor vehicle accidents is such that in many cases the witnesses who might have some knowledge of how the accident happened are either killed or suffer from traumatic amnesia to such an extent that they are unable to relate any of the events leading up to or following the accident. In such cases the parties who are justly entitled to compensation may be entirely deprived of any relief because the evidence on their behalf has been extinguished by the force of the accident.

In these circumstances the orderly judicial process of applying the law of torts and the laws of evidence has proved quite inadequate to provide prompt and just service to the public in determining liability and just compensation.

Modern social conditions have imposed on every member of society the risk of using the highways as they are today. Compensation for injuries sustained by reason of motor vehicles irrespective of fault is a burden that can well be distributed among all those for whose benefit the highways have been developed.'

147. Friedmann in his Law in a Changing Society devoted Chap. 5 to 'Tort, Insurance and Social Responsibility'. The following passage from Oliver Wendell Holmes is quoted :

'The general purpose of the law of torts is to secure a main indemnity against certain forms of harm to person, reputation of estate, at the hands of his neighbours, not because they are wrong, but because they are harms... '

148. It is obvious, says the learned author, that this branch of the law must strongly reflect changing social conditions. The principles of liability governing the readjustment are greatly influenced by changing moraland social ideas.

'There is not a single modern legal system in which principles of strict and fault liability are not closely intermingled, partly as a result of statutory intervention, and partly as a result of judicial law-making.'

149. There is a growing emphasis on the responsibility of the community for the accidents that befall the individual and the growth of the new policy is due largely to the social transformation of modern western society, a society in which more and more vicissitudes threaten a multitude of individuals whose liberty to avoid them shrinks steadily. The steady growth of the principles of social responsibility for injuries is not due to any cynical abandonment of the principle of individual responsibility but to the extent to which millions of individuals find themselves exposed to accidents arising in factories, on the roads, in aeroplanes or the threat of unemployment.

150. In its social importance, the incidence of injuries to the life, health and property of the public is certainly not inferior to that of industrial accidents. Both in public and in private transport, the motor vehicle has become the predominant carrier, as industrialization progresses. Death or injury from a motor-car accident is certainly a much greater and regular hazard of daily life for the average citizen than an accident in the course of work is for the employee.

151. In T.M. Naidu v. R. Venkata Reddi, : AIR1978AP200 , the following passages occurring at p. 233 (et seq.), are extracted which throw light upon judge-made law.

' JUDGE-MADE LAW--Legislative theory of judicial function.

Distinction between law-making by legislation and law-making by courts. --'Legislators can lay down rules purely for the future and without reference to any actual dispute ; the courts, in so far as they create law, can do so only in application to the cases before them and only in so far as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes ; legislative law-making is the central function of the legislator.' (from Salmond's Jurisprudence at p. 115).

'Judicial law-making is at present' as Professor Jaffee phrases it 'a by-product of an ad hoc decision or process.' (from English and American Judges as Law Makers).

'In emphasising the law-making aspects of the judicial process I do not wish to under-estimate the dispute settlement aspect. The theory and I think the fact is that the latter is the court's job and the former is a consequence of it.' (By Jach A. Hiller).

'Judges', according to Cardozo, 'make law by evolution rather than by revolution.' (From The Nature of Judicial Process, 169).

152. Holmes once said 'I recognise without hesitation that Judges do and must legislate, but they do so only interstitially, they are confined from molar to molecular motions'. Paradoxically, according to Holmes, bringing the fact out into the open would legitimate a circumspect use of the power of judicial review--the fact must be recognized so that judicial legislation might be improved by reducing it'. (From Society and the Law at p. 170).

153. Learned Hand whose brilliant opinions have greatly enriched American Law said that 'the courts have a modest complimentary power to express the social will.' ([1960] 29 Harward Law Review pp. 617 to 621), (at p. 234):

'This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But this is not so. English judges do not claim or exercise any power to repeal a statute, whilst Acts of Parliament may override and constantly do override the law of the judges, judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament.' (An Introduction to the Study of the Law of the Constitution by A.V. Dicey).

154. Legislative theory of Judicial Function.--Oliver Wendell Holmes, in his celebrated book, The Common Law (Home Edn.) said at p. 1 :

'The life of the law has not been logic ; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

'Judges really make law, Holmes asserted ; because they are motivated by the same consideration as is the legislator. Referring to the need to a more conscious recognition of legislative function of the courts, he said 'in substance, the growth of the law is legislative'. And this is a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds.'

'The very considerations which the courts most rarely mention, and always with an apology, are the secret root, from which the law draws all the juices of life. We mean, of course, considerations, of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy ; most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate conviction, but none the less traceable to public policy in the last analysis (at pages 31, 32).'

155. Comparing the role of the Judge in filling up the gaps, to that of the Legislator, Cardozo in the Holmes tradition, had this to say :

'The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed, is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law.' (Cardozo The Nature of Judicial Process, p. 113).

156. Cahill in his book, Judicial Legislation, at p. 93, says :

'The emergence of sociological jurisprudence marks the formulation of a general legal theory for the modern State in America. The power of Government whether exercised through the legislature or through the judiciary is to be used consciously to effect the adaptation of the legal system.' '

157. Judicial Process :

Justice Simon Rifkind said :

'The judicial process is the central pivot around which a free society revolves. I sometimes marvel at the fact that in over 5,000 years of history we have invented no other institution for the disposition of human conflict without violence.'

(Quoted from Jurisprudence by Patterson at p. 563).

'The essential qualities of the Judicial process.........depend upon the framework of the judicial function. The scope of the judicial function is primarily the decision of controversies involving conflicting claims of individuals or of collective juristic persons, and its framework is the body of norms of procedural and substantive law that limit and guide the extrication of issues of law and fact, the scope and method of proof, the grounds of relief and the kind of relief. This is the core of the judicial function.'

'The judicial function includes a good deal more than the settlement of issues of law.'

158. This process occurs as a part of the work of disposing of litigation. Besides settling disputed questions of law, courts are called upon in litigation to do two other jobs : Settle disputes of fact and give judgments which are to be used to coerce recalcitrant defendants.

159. Judicial process comprises both law settling and facts settling function.

160. The law-settling function of courts is two fold in character :

'One function is to determine the legal consequence (judgment, etc.) on the proved facts ; to the extent that it is guided by legal norms it may be called the 'law applying' function. The other is the pronouncement of a norm (rule, principle, policy), which will be applied in the future to similar type situations ; this may be called the 'law-establishing function'.'

'The law-establishing function is in the Anglo-American scheme a byproduct of the settlement of disputes between litigants......'

'Every appellate decision is law making in that it adds at least a new legal meaning to well-settled legal propositions......Judges make law by evolution rather than by revelation. The Judge's power of innovation is insignificant in comparison with 'the bulk and pressure of the rules that hedge him on every side'. Holmes was careful to say that courts make law only 'interstitially......'.'

'A law of torts.........conceived on common law principles, however admirable in substance, cannot effectively protect the general public or the week, the poor, the aged and the sick. To satisfy the conscience of the nation the State has had to move into the empty spaces of the law, the deserts and hill country left uncultivated by distributive justice, and there to make provision for society as a whole, and for those not strong enough to provide for themselves. Thus the welfare state is challenging the relevance, or at least the adequacy of the common law's concepts and challifications (sic). Fault, tresspass,......are now seen to be an insecure base for the development of law suited to the needs of our society.' (English Law--The New Dimension by Sir Leslie Scarman, pp. 70-71.)

161. The view expressed on Law of Torts by M.C. Setalved in his 'Hamlyn Lectures' on the Common Law in India at p. 109 is very apposite to the present context.

'An important branch of law which has remained uncodified in India is the law relating to civil wrongs.

Some of the most important rights of a person which the law protects from injury are rights to the security of his person, his domestic relations and his property and reputation. The liability for a tort may arise from intentional wrongdoing, negligence or out of an absolute liability imposed without any default on the part of the person held liable. It may be a vicarious liability as that of a master for his servant's tort ; or a breach of duty under a statute, for example, the duty of an employer under the Factories Act. 'The law on the one hand allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them. At the other extreme, it may on grounds of policy throw the absolute risk of certain transactions on the person engaged in them, irrespective of blame-worthiness in any sense. Most liabilities in tort lie between these two extremes.' In the law of torts parties are brought into relation not by mutual agreement but under a general obligation emanating from the social duties which the well being of a community requires.

One of the outstanding facts of English legal history for the last three centuries is the development of the law of torts from small beginnings to its present dimensions as a separate branch of law. The action for damages as a remedy for violation of rights and duties has been fashioned by lawyers, judges and juries of England as an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. A body of rules has grown and is constantly growing in response to new concepts of right and duty and new needs and conditions of advancing civilisation...

A draft of a code of torts for India was prepared by Sir Frederick Pollock but it was never enacted into law. In the absence of a code the law of civil wrongs administered in India is almost wholly the common law of England. So much of the English law as seemed suitable to Indian conditions has been applied as rules of justice, equity and good consciense.'

To recapitulate--

I. Whether proof of fault is necessary for the recovery of compensation under Section 110A of the Motor Vehicles Act, 1939, by the legal representatives of the deceased, in respect of an accident involving the death of several persons arising out of the use of motor vehicles on a high way is the question involved in this case.

II. Neither the Act nor the rules made thereunder provide either expressly or by necessary implication for proof of fault.

III. The intention of the Parliament that no proof of fault is necessary is discernible through the insertion of Section 110AA in the year 1969, providing for the same situation to be governed both by this Act as well as the Workmen's Compensation Act, 1923, which does not provide for proof of fault.

IV. Both the Federal Legislature which enacted the Act and the Parliament which amended the same have power to make law with respect to 'actionable wrongs'. The Act, being a consolidated one, is intended to be a complete and exhaustive code with respect to these matters with respect to which it came to deal with including matters pertaining to 'actionable wrongs'. The statute denned the duties of the drivers with meticulous care in order to avert happening of accidents and provided for consequence of the breach of these statutory duties through making provision under Section 110A in Chap. VIII for compensating the legal representatives of the deceased whose death has resulted from the accident. That section itself provides for the accrual of right of action and cause of action.

V. The statute under Chap. IX provided for the penalties by way of fine and imprisonment for the contravention of the provisions of the Act or of any rule made thereunder. A breach of statutory duty may be rendered punishable as well as compensable. It is, therefore, complete and exhaustive as regards both punitive as well as compensatory functions as not to need any supplementing from any external source. It is in the ultimate analysis purely a matter of statutory interpretation. The case of the injured where he can give evidence is different from that of the legal representatives of the deceased where no such evidence, in the nature of things, will not (sic) be available at all.

VI. The law of civil wrongs administered in India is almost wholly the common few of England. The common law of England, in existence in India immediately prior to the commencement of the Constitution and continued thereafter under Article 372 ;of the Constitution, established the following points :

(a) In English law, the action of the statute has traditionally been treated not as a species of the negligent action. The action upon the statute has nothing to do with negligence.

(b) A claim for damages for breach of a statutory duty is not to be confused in essence with a claim for negligence. Whatever the resemblances, it is essential to keep in mind the fundamental differences of the two classes of claim. A claim for breach may stand or fall independently of a claim for negligence.

(c) The purpose of tortious remedy is to compensate the victim, but the purpose of criminal proceedings is to punish the wrong doer. The modern law of torts is expounded by emphasising the interest of plaintiff rather than the worry of the defendant. The problem shall have to be subjected not to individualistic approach but to social security advocated by socialogical jurisprudence.

VII. Motor accidents problem is a social problem. It has become a national problem. It affects the whole population. The accident strikes the principal bread earner of a family and his death affects his wife, childern and the dependants. It is a human problem.

VIII. The victim of a road accident is regarded as the victim of 20th century civilization. Justice requires that a victim of wrong should receive compensation. He should not fail to get compensation simply through want of evidence that the other was in fault.

IX. The doctrine of fault is good enough for an agricultural, slow moving society, when people work with their hands, but it is not suitable for the fast moving mechanised modern society.

X. Modern torts recognising and enforcing social duties is in all its features purely compensatory and there is no place for fault as a criteria for determining the liability.

XI. Judges make law. They do and must legislate, but they do so only interestitially. They make law by evolution rather than by revolution. Judicial Legislation is subordinate legislation. It is implicit on the constitution that there is a duty cast on the courts to interpret the Constitution and the laws to further the directive principles, which under Article 37 are declared as fundamental in the governance of the country. Justice requires that a victim of road accident should receive compensation without being required to prove fault. That requirement to prove fault destroys the very right of compensation for want of evidence. That is not social justice. Any interpretation of law furthering the claims of justice may involve judicial law making. But that is the demand and command of the Constitution, which we have to uphold.

XII. Provision for compensation is made in the Act. The Act does not provide for proof of fault. The Act is a self contained one dealing exhaustively with matters pertaining to compensation as well as punishment. The concept of compensation emphasises the interest of the victim but not the wrong of the wrong doer. Fault as a criteria, therefore, is omitted from the conception of compensation, though it continues to remain in the realm of punishment. That is the reason why neither the Act nor rules provide for proof of fault. That is the intention of the Parliament. It is a matter pertaining to administrative law involving thus a pure question of interpretation of statute.

XIII. The responsibility for ushering in a welfare state by securing and protecting an effective social order in which social justice should inform all the institutions of national life is placed upon the Parliament as per Article 38 with an obligation, while making laws to apply the directive principles of state policy in Part IV including those under Article 41, pertaining to disablement and undeserved want, with a constitutional declaration that those principles are fundamental in the governance of the country. The judiciary shall have to act in collaboration with Parliament in giving effect to directive principles of State Policy.

162. We are satisfied for the foregoing reasons that proof of fault is not necessary for recovery of compensation under Section 110A of the Motor Vehicles Act, 1939.

163. We find no merits in these appeals and cross-objections. All the appeals are dismissed with costs, and cross-objections are dismissed without costs.


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