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Madhusudan Rai Vs. Smt. Basanti Kumari Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 134 of 1971
Judge
Reported inAIR1974Ori153; 39(1973)CLT571
ActsMotor Vehicles Act, 1939 - Sections 110B and 110D; Code of Civil Procedure (CPC) - Sections 117 - Order 41, Rule 22
AppellantMadhusudan Rai
RespondentSmt. Basanti Kumari Devi and ors.
Appellant AdvocateR.N. Das adn ;P.K. Das, Advs.
Respondent AdvocateR. Mohanty, ;S.N. Kar and ;P. Ray, Advs.
DispositionAppeal dismissed
Cases ReferredDelhi Transport Undertaking of Delhi Municipal Corporation v. Lalita
Excerpt:
.....may be best described in his own words :the truck was standing mostly on the metalled part of the road on the left side .taxi orc 913 was capsized to its left side. no attempt was made by the appellant's counsel to seek an explanation from the witness regarding this discrepancy and remained satisfied with obtaining an inconsistent reply. in those circumstances, i accept his statement in chief as more reliable, having been made at the earliest opportunity in the proceeding. leaving hardly any safe space for the other traffic. provided that the high court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. the rule is well settled that when a statute directs..........the taxi was facing to south-east. there were broken glasses scattered on the way in between the truck and taxi. the truck was standing on the eastern non-metalled portion of the road at a distance of about 1 to 2 ft. from the metalled road. the taxi was lying on the western portion of the metalled por-tion of the road. the total width of the road is 36 ft. of which the middle 12 ft. is only metalled.' the statement in the cross-examination that the truck was standing on the eastern non-metalled portion of the road at a distance of about 1 to 2 ft. from the metalled road is directly contradictory to his statement in chief as to the position of the truck on the road. the statement in chief was made on 23-6-1971 and the statement in the cross was made on 25-6-1971 after a gap of two davs.....
Judgment:

S.K. Ray, J.

1. This appeal is by the opposite party No. 2 in a proceeding for determination of compensation by the Claims Tribunal under Section 110-B of the Motor Vehicles Act (hereinafter referred to be as the Act) initiated upon an application filed by respondent No. 1 petitioner under Section 110-A (1) of the Act and is directed against part of the award of the Claims Tribunal saddling the appellant with the liability to Pay Rs. 5,500/- as his share in the total amount of compensation determined at Rs. 10,000/- with proportionate costs.

2. On 22-12-1968 at about 5 p.m. a Taxi bearing No. ORC 913 was involved in a collision with the Truck bearing No. ORM 584 on the National High Way at a distance of 23 kilometres from Balasore. The taxi was proceeding from Bhadrak side towards Balasore and it is stated that the truck was pro-ceeding in the opposite direction. As a result of this collision, the taxi overturned, and its top was almost detached from the body. Three of its passengers died at the spot and several others were injured. Amongst the dead, one was Pradeep Kumar Kar. son of claimant-respondent No. 1. The taxi was being driven by its owner, who also met with instantaneous death in this accident.

3. Respondent No. 1 filed an application for compensation arising out of the aforesaid accident under Section 110-A (1) of the Act claiming Rs. 1,50,000/- as compensation. His application was register-fid as Misc. Case No. 9 of 1969 before the Motor Vehicles Claims Tribunal. O. Ps. 1 to 9 are the heirs of the deceased owner-cum-driver of taxi ORC No. 913. O. P. No. 10 is the owner of the truck ORM 584 involved in the accident. O. P. No. 11 as the Insurer of the taxi and O. P. No. 12 is the Insurer of the truck.

O. Ps. 1 to 6 in one group and O. Ps. 7 to 9 in another group filed their respective written statements. They deniedtheir liabilitv on various grounds. One was that they have not inherited any property from the deceased owner-cum-driver of ORC 913 and as such, liability for compensation cannot be fastened on them; the other was that the taxi was in perfect mechanical condition and there was no negligence or rashness on the part of its driver, rather, the accident was due to the rash and negligent action on the part of the driver of the truck.

O. P. No. 10. the appellant took up the defence that the truck was standing ton the left side of the road for being loaded with paddy bags when the taxi came with break neck speed and dashed against the right side rear wheel of the truck standing and then somersaulted and fell at a distance of 70 to 80 ft. awav from the truck. As a result of this collision, the rear wheel of the truck was dislocated from the bodv and thrown on the right side drain. He also averred that the amount of compensation claimed was excessive and he as the owner of the truck is in no way liable to pay the same or any part of it. As to the truck's position on the road, it is said that only one foot of metalled portion in the front and about two feet qf metalled Portion in the rear was occupied by the truck.

The Insurer of the taxi (O. P. No. 11) an a separate defence urged that the taxi was being driven by the owner; who did not hold a valid licence to drive on the date of the accident and that the taxi was carrying more than permissible number of passengers at the time of accident and violated some specified conditions of the Insurance Policy and. as such, he is not liable to pay the compensation. He also urged that his liabilitv. at any rate, cannot exceed Rs. 4,000/- the maximum limit statutorily fixed under Section 96 :(2) of the Act as it stood at the time of the accident.

O. P. 12, the Insurer of the truck filed a separate written statement. His case is that he issued a policy of the Motor Insurance for one year with effect from 10-12-1968 in favour of M/s. Rai-baba of Sabitri Rice Mill in respect of Ford truck manufactured in the year 1940 bearing registration No. ORM 584, while the truck which was involved in the accident is of Studebaker make the year of manufacture of which is 1956. though it bore the registration number ORM 584 and he, not being the insurer of this vehicle, is not liable for compensation. He put the petitioner to the strict proof of the fact that he is the insurer of the truck involved in the accident.

4. The Claims Tribunal found that the application under Section 110-A (1) (h) of the Act is maintainable and is not barred by limitation, since the application for compensation was presented on 19-2-1969 within 60 days from the date of accident which took place on 22-12-1968 at about 5 p. m. He also found that the taxi and the truck were both in motion at the time of accident and both the vehicles were driven negligently and rashly. He. therefore, held that owners of both of them were liable to pay com-pensation. He, however saddled the larger portion of the compensation amount on O. P. No. 10 by fixing his liability in the sum of Rs. 5,500/- out of the total amount of compensation determined at 10,000/-. He made the driver of taxi liable for Rs. 4,500/- and since the driver was dead, he apportioned that amount between the insurer and O. Ps. 1 to 9, the legal heirs of the deceased driver of the taxi, respectively at Rs. 4,000/- and Rs. 500/-.

5. The owner of the truck (O. P. No. 10) has appealed from that part of the award which determined his liability at Rs. 5,500/-. The claimant-respondent No. 1 has filed a cross-objection under Order 41, Rule 22, Civil P. C. within the period specified therein, claiming an enhancement of the compensation amount by Rs. 40,000/-. Thus, out of his original claim of Rs. 150,000/-, he has restricted his claim to Rs. 50,000/- and given his claim for the balance. At the time of argument, the appellant not only raised the question of maintainability of this cross-objection, but also disputed the claim for the enhanced compensation on merits.

6. The questions, therefore, which arise for consideration in this appeal and cross objection are as follows :--

(a) Liability of the appellant which depends upon whether the truck was in any manner responsible for the accident;

(b) If the appellant, owner of the truck, is found liable, then the amount of compensation he is to pay; and

(c) Whether the cross objection is maintainable in law and if so, whether the respondent No. 1 is entitled to the whole or any part of the enhanced compensation as claimed in the cross-objection.

7. The case of the appellant has been from the very start that the truck was in a stationary condition parked on the extreme left of the road and the driver of the taxi was solely responsible for the accident. It is to be seen how far that story is believable. The claimant examined 4 witnesses. P. W. 1 is the S. I. of Police, who investigated the accident. He proceeded to the spot on receiving information about the accident from one Prahalad Bal, driver of another taxi ORC 9548 on basis of which a F. I. R. was recorded. At the spot he found the truck standing mostly on the metalled portion of the road on the left side of it. What he found at the spot, may be best described in his own words :

'The truck was standing mostly on the metalled part of the road on the left side ..... Taxi ORC 913 was capsized to its left side. The hood of the taxi was mostly separated from the body. The right front wheel of the taxi was burst. The left and right spring of truck (ORC 594) its 'U' bolts and centre bolts were separated. The hind four wheels of the truck were dislocated.'

While cross examined by the appellant, he has stated as follows :--

'There is a bridge of 1'5 ft. height at the place of occurrence. The truck (ORM 584) was standing at a distance of 23 ft. to the south of the bridge and the taxi was lying at a distance of 23 ft. to the north of the bridge. The truck was facing towards south and the taxi was facing to south-east.

There were broken glasses scattered on the way in between the truck and taxi. The truck was standing on the eastern non-metalled portion of the road at a distance of about 1 to 2 ft. from the metalled road. The taxi was lying on the western portion of the metalled por-tion of the road. The total width of the road is 36 ft. of which the middle 12 ft. is only metalled.'

The statement in the cross-examination that the truck was standing on the eastern non-metalled portion of the road at a distance of about 1 to 2 ft. from the metalled road is directly contradictory to his statement in chief as to the position of the truck on the road. The statement in chief was made on 23-6-1971 and the statement in the cross was made on 25-6-1971 after a gap of two davs in reply to a question put on behalf of the appellant. No attempt was made by the appellant's counsel to seek an explanation from the witness regarding this discrepancy and remained satisfied with obtaining an inconsistent reply. This witness has admitted elsewhere in his evidence that he did not seize any paper relating to the truck. This is a piece of inconceivable conduct on his part in that he has departed from routine investigation in omitting to seize the registration number of the truck, licence of the dri-ver of the truck which are matters not to be overlooked. He has further admitted that he has not seen the injured passengers of the taxi at the spot. He does not say that he examined them for the purpose of collecting evidence as to the accident. Either he deliberately carried on a defective investigation or is not putting everything before the Claims Tribunal. This conduct helps nobody except the appellant. In those circumstances, I accept his statement in chief as more reliable, having been made at the earliest opportunity in the proceeding. When that statement is accepted, the position becomes that the truck was found standing mostly on the metalled part of the road whose width is only 12 ft. leaving hardly any safe space for the other traffic. Thus even if it is not sufficiently proved that the truck was in motion it certainly obstructed the road considerably and posed a definite threat to the safety of other vehicles. So the owner of the truck who admits to have driven the vehicle that day acted rashly and negligently in parking the truck right on the road and must be held to have contributed to the accident.

The appellant has examined himself alone in support of his case. Compared with his written statement he is guilty of prevarication in regard to whether the truck was being driven by a driver or by himself. He is also guilty of an unnatural conduct in that he did not report the accident to the police, and did not examine his cleaner and labourers by way of corroboration of his story. He has not produced his insurance policy in respect of his truck nor has he disclosed even in his written statement who the insurer is. The written statement of opposite party No. 12 shows that a 1940 Model Ford Truck bearing registration No. ORM 584 had been insured and the truck involved in the accident being a 1956 Model Studebaker could not bear the same registration No. ORM 584 as the Ford truck unless the appellant has used that registration number to cover up plying of an uninsured vehicle. His testimony is, therefore, not worth a cent. P. W. 3 is an eye witness to the occurrence. He was a passenger in the taxi. His categorical testimony is that the driver of the taxi was driving at a high speed, at about 70 to 80 miles per hour and in his opinion, the accident took place on account of this excessive speed. He has, of course, not stated to have seen the truck in motion but during cross-examination on behalf of the appellant he has stated that he noticed the truck standing at a distance of 40 to 80 cubits from the place where the taxi was lying on the ground and he noticed it only after the accident took place and not before. One significant feature in this cross-examination is that no sugges-tion was made on behalf of the appellant that the truck was parked on the side of the road immediately before the collision. Obyiously he did not dare to ask such a question. Taking an overall picture of the evidence, circumstances and conduct of the appellant which is not fair and free, rather tainted with deliberate falsehood, the position of the respective vehicles on the road and damage to both of them, specially the severe and excessive damage tq the rear part of the truck, the Claims Tribunal has come to the conclusion a probable one in my opinion, that the vehicles were in motion at more than normal speed when they clashed. For the aforesaid reasons, I am of opinion that the appellant must be held to have contributed largely to the accident either by driving the truck or causing the truck to be driven carelessly or negligently or by appropriating major part of the metalled portion of the road and parking it in such a manner as cannot but be conceived as negligent and rash. I am. therefore, of opinion that saddling of liability on the appellant is correct. With regard to quantum of compensation I do not think there is anything to say on behalf of the appellant. Had he disclosed his insurer OF had the truck been insured, then a part of his liability would have been fixed on the insurer to the maximum limit permissible under the Act. Thus questions (a) and (b) are answered accordingly.

8. Corning to the cross-objection I must first of all say that even though it Is maintainable, it is not possible in the state of evidence on record and in view of the manner and extent of assessment of amount of compensation in a similar case, made by a Division Bench of this Court in the case of Hindustan General Insurance Society Ltd. v. Kau-salya Bani Das. ILR (1972) Cut 31 to enhance the amount of compensation. In that the income of the deceased was accepted at Rs. 1,000/- and taking his normal expectancy of life to be 60 years and holding that the deceased would have continued in the profession for at least 26 years more the Division Bench enhanced the compensation from Rupees 15,000/- to Rs. 25,000/-. In the instant case the deceased was aged 25 years and was drawing only a salary of Rs. 285/-including D. A. of Rs. 100/-. He was bachelor and had no dependants and even expecting the deceased to be in service for a period of 25 to 30 years more, the assessment of compensation at Rs. 10,000/- cannot be taken to be low or inadequate. I would, therefore, dismiss the cross objection on merit.

9. Since the question of maintainability is an important one and has been argued at length I would also deal with it. Section 110-D of the Act is the provision for appeal, which runs as follows :

'110-D. Appeals :-- (1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court;

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.'

Section 111 of the Act deals with the powers of the Central Government to make Rules for the purpose of carrying into effect the provision of Chap. VIII of the Act. Sub-section (21 thereof enumerates the various matters in regard to which the Central Government may frame Rules. Section 111-A of the Act deals with the power of the State Government to make rules. No Rules have been brought to my notice dealing with the procedure to be followed in the High Court when an appeal is filed before it. The High Court is a Court of record under the Constitution. Under Section 117, Civil P. C., the provisions of Code of Civil Procedure applies to the High Court. The right of appeal under Section 110-D of the Act is given to the High Court as an established Court of record under the Constitution. In absence of any provision in the Act or in the Rules as to the procedure regulating appeals filed under Section 110-D of the Act, the law regulating the practice and procedure of the High Court shall apply. This doctrine has been recognised in a number of cases of which I will refer to to a few.

10. In the case of National Telephone Co. Ltd. v. Post Master General, 1913 AC 546, Lord Parker observed thus :

'Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters as a Court. Its jurisdiction is enlarged, but all the incidents of jurisdiction, including the right of appeal from its decision, remains the same.'

Viscount Hgldane L. C. at page 552 observed thus :

'When a question is stated to be referred to an established Court without more, it. in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

11. Following the observations in the aforesaid case, their Lordships of the Supreme Court in the case of South Asia Industries (P.) Ltd. v. S. B. Sarup Singh, AIR 1965 SC 1442, made the following observations :--

'The following legal position emerges from the said discussion : a statute may give a right of appeal from an order of a Tribunal or a Court to the High Court without any limitation thereof. The ap-peal to the High Court will be regulated by the practice and procedure obtaining in the High Court.....'

In this decision they also relied upon an earlier decision of their own in the case of National Sewing Thread Co. Ltd. y. James Chandwick & Bros. Ltd., AIR 1953 SC 357 which runs as follows :

'Obyiously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the character under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then the appeal must be regulated by the practice and procedure pf that Court.'

12. In Collector. Varanasi v. Gauri Shanker, AIR 1968 SC 384 their Lordships of the Supreme Court were dealing with the import of Section 19 (1) (f) of the Defence of India Act. 1939, which provided :

'An appeal shall lie to the High Court against an award of an arbitrator excepting in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.'

Then their Lordships observed as follows :

'We are informed that neither the Act nor the rules framed thereunder, prescribed any special procedure for the disposal of appeals under Section 19 (1) (f). Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obyiously after the appeal had reached the High Court it had to be determined according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.'

13. A Full Bench of Delhi High Court dealing with the import of Section 110-D observes as follows :

'As already stated above, the claim for compensation caused by negligence is well-known to the law of torts, as a part of common law independent of any statute. The claim not being a creation of any particular statute, it would be reasonable to suppose that the provisions of the Motor Vehicles (Amendment) Act, 1956 were intended only to expedite the trial of such a claim by the establishment of Claims Tribunal. The statute did not otherwise intend to cut down or modify or change in any wav, the common law right, Section 110-F barred the jurisdiction of Civil Courts only to entertain the original claim as a trial Court. This bar operated only when in the particular area the Claims Tribunal had been established. In other areas, the Civil Courts continue to entertain such a claim. The appeal to the High Court under Section 110-D of the Act entirely free from any limitations in the same way as the High Court would consider the claim in an appeal from a Civil Court from an area In which a Claims Tribunal has not been established'

Then again they said :

'..... in hearing the appeal under Section 110-D of the Act, the High Court must be held to be acting as a High Court and not as a Tribunal, inasmuch as the claim for compensation for negligence is a common law right not as created by a statute and the claim is considered by the Tribunal in its entirety without limitation with the result that an appeal to the High Court is made in its ordinary Civil Jurisdiction.'

14. I need not multiply the decisions which have enumerated the same doctrine as has been laid down in the aforesaid cases, except merely referring to the latest case cited on behalf of the respondent No. 1. That is the case of Delhi Transport Undertaking of Delhi Municipal Corporation v. Lalita, AIR 1972 Delhi 281 where there is an elaborate discussion of this point.

For the aforesaid reasons I am of opinion that the appeal to this Court : will be regulated by the provisions of the Code of Civil Procedure and as such Order 41, Rule 22. Civil P. C. will be fully applicable. The cross objection is. there-fore, maintainable.

15. In result, I will dismiss both the appeal and cross objection, but in the circumstances, each party to bear its own costs of this Court.

16. Appeal and cross objection dismissed.


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