S.N. Andley, J.
(1) This appeal is against the order dated December 23, 1988, of the Motor Accident Claims Tribunal at Mandi. Petition No. 5 of 1965 filed by the appellants under section 110-A of the Motor Vehicles Act, 1939, hereinafter referred to as 'the Act', was dismissed by the said order. The said petition had been filed by the appellants for an award of compensation in the sum of Rs. 30,000.00consequent upon the death of Hem Raj. who was a passenger in Bus No. HIM-4112 which was playing on October 19, 1965 between Mandi and Rewalsar and which met with an accident on the third mile from Mandi. Hem Raj died on October 21, 1965, in a hospital to which he was removed after the accident. The appellant is the widow of said Hem Raj.
(2) The Tribunal did not assess the compensation which could be be awarded to the appellant because he came to the conclusion that nature was responsible for the accident which could not be said to be on account of any error on the part of the driver of the bus
(3) On behalf of the respondents two preliminary objections have been raised. The first is about the maintainability of the appeal and the second is about the amount of court-fee payable on the memorandum of appeal. In support of the first preliminary objection it is contended that no appeal is provide I undar the Act in a case where no amount has been awarded as compensation. It it contended that the Claims Tribunal constituted is empowered under section 110-B of the Act to make an award determining the amount of compensation which appears to it to be just and since no amount has been determined by the order under appeal it is not an award as contemplated by this section. Reference is also made to section 110-D of the Act which provides for appeals against the awards of a Claims Tribunal. This section is in these terms ;-
'110-D.Appeal.-(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.'
It is further contended that a right to file an appeal is created by a statute and section 110-D, quoted above read with section 110-B confers a right of appeal only against an award of a Claims Tribunal which determines the amount of compensation which appears to it to be just. If there is no such award which determines the compensation then, it is contended that no appeal can be filed.
(4) The Act does not define an award. thereforee, its ordinary dictionary meaning is to be taken. One of the meanings given to the word 'Award' in the Concise Oxford Dictonary is 'judicial decision'. In this general sense the decision of a Claims Tribunal which is a final decision would be an award within the meaning of section 110-D of the Act irrespective of whether the decision determines the amount of compensation. The decision must be a final decision of the Tribunal'. adjudicating upon the rights of the parties before it Adecision which decides that no amount of compensation is payable because the condition precedent necessary for the determination of compensation by reason of the fact that the driver of a particular motor vehicle involved in an accident was not negligent is still a final decision of the Tribunal and, thereforee, an award as contemplated by section 110-D of the Act. Such a case would not be covered by sub-section (2) of section 110-D of the Act. Sub-section (2) comes into play only in cases where the the amount in dispute in the appeal is less than Rs 2.000.00. Subsection (2) has reference only to the amount in dispute in the appeal, To illustrate, if in a case the Tribunal has awarded Rs. 10,000.00as compensation and the claim of the petitioner is only Rs. 11,5OO.00. then the amount in dispute in the appeal would be Rs. 1,500.00and the petitioner would not in such a case be entitled to file an appeal Conversely of the Tribunal has awarded Rs. 10,000-/as compensation and the respondent to the petition files an appeal claiming that Rs. 8,500.00should have been awarded, the amount in dispute in appeal in such a case would be only Rs. 1,500.00and the respondent would not be entitled to appeal. In another case where the award of the Tribunal amounts to it determinal of nil compensation the petitioner would be entitled to appellant if the claim for compensation is Rs. 2,000.00or more because in such a. case the amount in dispute in the appeal would be more than Rs. 2,000- thereforee, not withstanding the fact that the Tribunal has awarded nil compensation, the decision of the Tribunal would be an award within the meaning of section 110-D of the Act and would be subject to appeal if sub-section (2) of this section is not a bar thereto. Mr. Kuldip Chand Sood, learned counsel for the respondents, has referred to the cases reported in (Mangat Ram v. Kamlesh and others) a decision of the Allahabad High Court and (Zarin Rustomji Munshi v Shantubhai Manibhai Patel) a decision of the Gujarat High Court. In the former decision it has been held by a learned single judge that the order of a Tribunal allowing an application for condensation of delay is not an award. In the latter it has been held that an order of the Tribunal holding that it has no jurisdiction to entertain the application turn compensation is not an award. He has also cited the case reported in (S. Thangavalu Pillai v E.M. and Mani others, a decision of Madras High Court where a learned single Judge of that. High Court has held that the order of the Tribunal dismissing an application for condensation of delay is an award and is appealable under section 110-D of the Act These cases dealt with what may be described as interlocutory orders and are not attracted or applicable to the facts of the case before me. It is thereforee, not necessary for me to comment on these decisions. Mr. Sood has also fairly drawn my attention to a Division Bench decision of the Madras High Cojurt reported in ( B. Gavindarajulu Chatty v. M.L.A. Govindaraja Mudalia' and others) where it has been held that the word 'award' used in section 110-D of the Act should not receive the same restricted meaning as insection 110-D and that there is nothing in section 110-D itself to indicate 'that the intention of Legislature was to restrict the right of appeal only in a case in which the decision of the Claims Tribunal resulted in imposing a liability for compensation' For the reasons stated by me. I am in respectful agreement with conclusion at which the Division Bench of the Madras High Court arrived in the cited case. I, thereforee, do not find any substance in this preliminary objection.
(5) The next objection is as to the court-fee payable on a memorandum of appeal filed against an award of the Tribunal. Mr. Sood points out that no rules have been framed in exercise of the powers contained insection 111-A of the Act and, thereforee, the provisions of the Court Fees Act prevalent in Himachal Pradesh will apply. This contention is sound but then Mr Sood goes on to say that Schedule I of Article I of the Court Fees Act will apply to the present memorandum of appeal because the decision of the Tribunal Is a decree within the meaning of section 2 (2) of the Code of Civil Procedure and, in any event, has the force of a decree. I do not find any force in either of these contentions.
(6) A decision nor the award of a Claims TrIbunal under the Act is not a decree under the Code of Civil Procedure even though it may be a final decision and may have all the incidents of a decree under the Code of Civil Procedure. All final decisions are not decrees unless such decisions are under the Code of Civil Procedure.
(7) It is true that the amount of compensation awarded by a Claims Tribunal is recoverable just as the amount awarded by a decree is recoverable, but that by itself would not make the award of a Tribunal an order having the force of a decree to exclude it from the purview of Schedule Ii, Article Ii of the Court Fees Act, 1870 which is equival lent to Schedule Ii, Article 9 of the Himachal Pradesh Court Fees Act. 1968. In order that an order should have the force of a decree, the statute under which the order is made must expressly say so. Merely because an order is executable or enforceable in the same way as a decree would not make it an order having the force of a decree.) It has been so held by a Division Bench of this Court to which I was a party in C.M.P. No. 288 of 1970 in Fao (OS) No. 9 of 1970 (Jagjit Singh Sahni v. Hukma Chand) decided on April 28, 1970. thereforee, the award of the Claims Tribunal would be covered by Schedule Ii, Article 9 of the Himachal Pradesh Court Fees Act, 1968 and court-fee upon the memorandum of appeal against such an award would be payable under this article and not advalorem under Schedule I, Article lot the Court Fees Act. Court-fee has been correctly paid an the memorandum of appeal in this case under Schedule Ii, Article 9 of the Himachal Pradesh Court Fees Act, 1968.
(8) Coming to the merits of the appeal, the appellant and her children filed the petition before the Claims Tribunal upon a proforma containing 22 columns. The petition does not allege that the accident took place on account of the neglience of the respondents or of the driver of the said bus. The 22nd column of the proforma requires 'any other information that may be necessary or helpful in the disposal of the claim' and against this column the petitioners have stated that 'the deceased has four minors. He was doing Public Witness D. works worth lakhs.
'THErespondents filed their written-statements but no objection was taken therein to the absence of any allegation regarding the negligence of the respondents or the driver of the said bus. On the other hand, the respondents have pleaded that the accident was inevitable and not due to the negligence or any fault of the owner or of its employee. They have further stated that 'the accident was not caused through the negligence or rashness or any fault on the part of the respondent or it? driver, but it was inevitable due to the wrong stacking of stones on the road side by the Public Witness D. (B & R), H.P.; coupled with the acts of the nature and Justice be done;'
On these pleadings the Claims Tribunal framed the following issues :-
1.Did the husband of the petitioner died in the accident of Bus No. Him-4112 on 19-10-1965 on Mandi-Rewalsar Road O. P. P. 2 If issue No. 1 is proved in the affirmative, to what compensation the petitioners are entitled Op P 3. Was the accident caused inevitable and not due to the negligence or fault of the owner or its employee if so, its effect 0,P.D. 4. Relief.
It does not appear from the file of the claims Tribunal and it is fairly conceded by Mr. K.C. Sood, learned counsel for the respondents, who has argued this case with ability, that no objection was raised by the respondents to the framing of the third issue or to the placing of the burden of this issue upon the respondents The parties led their evidence before the Tribunal upon these issues. It was only when the appeal was argued in this Court that an objection has been raised on behalf of the respondents that the onus of proving negligence was on the appellants and that onus has not been discharged. It is farther stated that no allegation of negligence was made by the appellants in their petition nor did the appellants lead any evidence to prove any negligence: It is contended that the appellants must fail in this appeal because the right to claim compensation arises only when negligence has been pleaded and proved. It is true that in a case where compensation is claimed it is for the claimants to plead negligence and to prove it. If such a plea has not been taken, the respondents would be entitled to take the objection in the trial Court that the claim does not disclose any cause of action and is liable to be thrown out. The respondents can even object at the time of fraiming of issues the framing of an issue onnegligence and to the placing of burden of proof As pointed out earlier, none of these onjections was taken by the respondents. In spite of the lack of the plea of negligence in the petition, the respondents pleaded no negligence and set out facts in support of this plea. No objection was raised by the respondents to the framing of the third issue nor to the placing of the burden. If such objections had been taken by the rest respondents before the Claims Tribunal. would have been open to the appellants to rectify tile defects by way of amendment or otherwise and it would then have been left to the Claims Tribunal whether to allow or disallow such amendment The matter does not rest theie. The respondents led evidence to show the facts which, according to them were responsible for the accident. In these circumstances. It is not open to the respondents to raise a plea, for the first time, in appeal that no allegation of negligence has been made by the appellants in their petition.
(9) Respondents have relied upon a decision of Dashpande. J reported in (Mandi Kulu Road Transpart Corporation v. Janak Raj Singh and others,') where the learned Judge has observed that the broad rules of pleadings apply to every Tribunal following the rules of natural justice and that, thereforee, an applicant before a Claims Tribunal cannot be permitted to make a new case in the course of evidence after having once taken up a definite stand in the pleadings, In this case the applicants had pleaded facts which constituted negligence. The evidence which was led by them was in support of entirely different facts and pleas which had not been taken. It was in these circumstances that the learned Judge made the aforesaid observations. That is not the case here. The parties having gone to trill in this case and the respondents themselves having disclosed facts which led to the accident, the observations in this case will not apply. To the same effect are the cases reported in 1968 Accidents Claims Journal 401, 1968 Accidents Claims Journal 398; 1969 Accidents Claims Journal .306 and 1939 Accidents Claims Journal 301. Another case on which reliance has been placed by the respondents is imported in 1969 Accidents Claims Journal 327 where it has been observed that the facts constituting negligence could be alleged in column 22 of the prescribed form. As stated above, if the respondents had taken the objection as to the absence of cause of action in the claim petition before the Claims tribunal, this authority would have applied but not having taken such an objection before the Claims Tribunal and having, as stated earlier, gone to trial, it is not no open to the respondents to take advantage of the defect in the pleadings.
(10) The next question is whether the Claims Tribunal was justified in coming to the conclusion that the appellants had failed to prove negligence on the part of the respondents and that the accident was the result of natural circumstances Some more facts may here be stated. The aforesaid bus started from Mandi at about 5 30 P.M. under heavy rainfall which resulted in very poor visibility. After proceeding for three miles, the driver of the bus which was being driven at about to miles per hour saw from a distance of about 15 feet that stones had been stacked on the hill side on the road for a distance of about 10 feet and such stacking had reduced the width of the road from 14' feet to 9 feet. The width of the bus was 7 ft. 6 ins. and by the stacking of stones the available road was not sufficiently wide for the safe operation of the bus. The road was filled in by earth and had been rendered slippery on account of continuous rains. The tyres of the bus were not sufficiently groved. The driver did not stop the bus on seeing this stack of stones to ascertain whether the available width of the road was enough to drive the bus through safely. The bus first hit the stones stacked and, to avoid further damage to thebus, the driver turned the bus as a result of which-the road being slippery the bus skidded; the rear part of the types went off the rod and the bus fell into the Khud.
(11) It is in these circumstances that it has to be determined whether the driver was negligent in driving the bus at the time of the accident. The following statement is found in Volume 23 of Halsbury's Laws of England, Second Edition, in paragraph 823:-
'NEGLIGENCEin a legal sence is a negative rather than a positive term, and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the term 'negligence' is, thereforee, not susceptible of a precise definition which will be of universal application. It may consist in doing something which ought either to be done in a different manner or not at all, or in omitting to do something which ought to be done. Where there is a duty to take care, reasonable care must be taken to a. job acts omissions which it can be reasonably foreseen would be likely to injure persons who are reasonably likely to be affected.'
(12) 'DUTY to take care' is defined by Winfield as a restriction, of the defendant's freedom of conduct, obliging him to behave as i reasonably careful man would behave in the like circumstances. The learned authority further states that negligence is the comission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs. would do, or doing something which a prudent and reasonable man would not do. The test of negligence, thereforee, is that if the person concerned does not take that care which the circumstances demand, he would be negligent if there is a duty to take care.
(13) It cannot be doubted that the driver of a bus carrying passengers is under a duty to take such reasonable care so as to avoid acts or onissions which are likely to injure persons who are reasonably likely to he affected. The driver of the bus in the instant case was or must have been aware that the road was slippery on account of heavy rain; there was poor visibility; the stocking of the stones on the hill side had reduced the available. width of the road for passage of the bus to 9 feet while the width of the bus itself was 7 feet 6 inches and that the tyres of his bus were not sufficiently groved. I am firmly of the view that in these circumstances the driver should not have proceeded on the road when his bus was full of passengers to whom he owed a duty to take care without ascertaining whether his bus with the passengers in it would pass through safely on that part of the road where the stones were sttacked. Any prudent driver would in these circumstances have stopped the bus and would have proceeded further only after satisfying himself that the bus could pass through that portion of the road safely. He could have even asked the passengers to dismount and he could have proceeded with an empty bus through that part of the road which had been narrowed by the stacking of the stones. It is difficult to support the finding of the Claims Tribunal that the accident in question was due to natural causes. In my view there is sufficient evidence on the record to show that the driver of the bus did not take that amount of care which he was bound to take and that the accident was caused not due to any natural course but due to the negligence of the driver.
(14) I, thereforee, set aside the award of the Claims Tribunal under appeal and allow this appeal In as much as the Claims Tribunal has not assessed the compensation the matter will have to be remanded back to the Claims Tribunal for decision on Nos. 1 and 2. The appellants will be entitled to the costs of this appeal. Counsel's fee is assessed at Rs. 150.00.