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K. Gopalakrishnan, Minor by Next Friend Guardian Father B.R. Krishnan Vs. Sankara Narayanan and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1969)1MLJ49
AppellantK. Gopalakrishnan, Minor by Next Friend Guardian Father B.R. Krishnan
RespondentSankara Narayanan and ors.
Cases ReferredIn H. West & Sons Ltd. v. Shephard L.R.
Excerpt:
- r. sadasivam, j.1. on the morning of 16th december, 1963 at about 9-15 a.m. there was an accident at the junction of st. mary's road and c. p. ramaswami iyer road, madras in which the lorry msy 3463 owned by t.u.c.s. ltd. and driven by one sankaranarayanan (r.w. 1) and the scooter, msy 4456 owned and driven by m. k. subramanian (r.w. 2) were involved. one k. gopalakrishnan (p.w. 10) son of krishnan (p.w. 11) who was travelling on the pillion of the scooter at the time of the accident, sustained a lacerated injury on his left leg 10' x 51/2' with fracture of both bones as the right rear wheel of the lorry ran over his left leg, after he fell down as a result of both the vehicles colliding on their sides and this finally resulted in the amputation of his left leg above the knee. the.....
Judgment:

R. Sadasivam, J.

1. On the morning of 16th December, 1963 at about 9-15 a.m. there was an accident at the Junction of St. Mary's Road and C. P. Ramaswami Iyer Road, Madras in which the lorry MSY 3463 owned by T.U.C.S. Ltd. and driven by one Sankaranarayanan (R.W. 1) and the scooter, MSY 4456 owned and driven by M. K. Subramanian (R.W. 2) were involved. One K. Gopalakrishnan (P.W. 10) son of Krishnan (P.W. 11) who was travelling on the pillion of the scooter at the time of the accident, sustained a lacerated injury on his left leg 10' x 51/2' with fracture of both bones as the right rear wheel of the lorry ran over his left leg, after he fell down as a result of both the vehicles colliding on their sides and this finally resulted in the amputation of his left leg above the knee. The pillion-rider Gopalakrishnan claimed Rs. 3,60,210 as compensation in O.P. No. 60 of 1964 on the file of the Motor Accidents Claims Tribunal, Madras, (hereinafter referred to as the Tribunal) impleading R.W. 1 Sankaranarayanan, the driver of the lorry of T.U.C.S. Ltd. the owner of the lorry, the Co-operative Fire and General-Insurance Society Ltd., with whom the lorry was insured, R.W. 2 M. K. Subramanian, the driver and the owner of the scooter, one A. K. Anand, the original owner of the scooter and the Oriental Fire and General Insurance Co., the insurer of the scooter, as respondents 1 to 6 respectively. The Tribunal awarded compensation of Rs. 57, 865.37 and costs of Rs. 100 to the claiment Gopalakrishnan only as against R.W. 2, M. K. Subramanian, the driver of the scooter. The pillion-rider Gopalakrishnan has preferred C.M.A. 358 of 1964 on the ground that he should have been awarded compensation as claimed by him against all the parties. R.W. 2 M.K. Subramanian, the driver of the scooter has preferred C.M.A. No. 398 of 1964 against the award made against him. It is convenient to refer to the array of parties as described in O.P. 60 of 1964 on the file of the Motor Accidents Claims. Tribunal.

2. The sketch, Exhibit P-1 prepared by P.W. 7 Vadivelu, Sub-Inspector of Police,, Traffic Investigation who went to the spot at 10 a.m. on the date of the accident is useful to understand the evidence in this case. According to the driver of the lorry,, the sketch is incorrect. P.W. 7 deposed that the driver of the scooter as well as the driver of the lorry showed him the same place, as marked in the sketch, as the point of impact of the two vehicles. But the driver of the lorry stated that he did not show to the Police the place where his lorry came into contract with the scooter. It is difficult to accept his statement as against that of the Sub-Inspector of Police. It is not possible to accept the evidence of the lorry driver that when he returned to the scene of occurrence, after going to the Police Station, the lorry had been pushed forward.

3. The lorry was laden with 40 bags of sugar and 13 bags of wheat and it was proceeding from east to west along St. Mary's Road at the time of the occurrence. The driver of the lorry deposed that he drove the vehicle at a speed of 15 to 30 kilometers which would work out approximately 9 to 18 miles per hour. P.W. 8 Arulraj, one of the witnesses to the occurrence, deposed that the lorry, came at a great speed. But the evidence of the Sub-Inspector shows that the lorry had travelled 24 ft. after the place of impact, as pointed out to him by the driver of the lorry as well as the 'driver of the scooter and the blood-mark noticed by him. Rule 307 of the Madras Motor Vehicles Rules requires the efficiency of the brakes of the Motor Vehicles to be such that when laden, it should stop on application of brakes within a distance of 45 ft. when travelling at 20 miles per hour and within 25 ft. when travelling at 15 miles, per hour. Thus, if the lorry had the required efficiency, which could normally be presumed as the lorry driver would otherwise have been prosecuted for driving the vehicle with inefficient brakes, the speed of the lorry at the time of the accident could have been only about 15 miles per hour. If the lorry had very efficient brakes it could have proceeded at same higher speed. The scooter driven by R.W. 2 was proceeding from north to south along C. P. Ramaswami Iyer Road at the time of the accident. The pillion-rider P.W. 10 Gopalakrishnan deposed that the fourth respondent drove the scooter at 10 to 15 m.p.h. P.W. 9 Venkataramani one of the witnesses to the occurrence, stated that the scooter-driver slowed down the vehicle on approaching the junction of the roads. R.W. 2 M. K. Subramanian, the driver of the scooter, went to the extent of stating that he went in the first gear for about 2 furlongs from his house to the place of accident as there were lots of pot holes and the road was under repair and there were 3 or 4 inter sections to be crossed. But in the criminal Court he has stated that in C. P. Ramaswami Iyer Road he picked up speed and was going at 25 m. p. h. and on approaching the junction of the roads, where the accident took place he, reduced the speed to 10 to 15 m.p.h. and came to the first gear. The Tribunal did not accept the evidence of the scooter driver that he proceeded in the first gear. But even the driver of the lorry did not state that the scooter was driven rashly. It is quite possible that the driver of the scooter drove the vehicle at 25 m. p. h. before coming to the junction of the roads. But there is evidence to show that he slowed down the vehicle at the junction and he could not, therefore, have driven the vehicle at a speed of more than 15 miles, or 15 to 20 m.p.h. It could not be said that either the lorry or the scooter was driven rashly.

4. The main question for consideration in this case is whether the driver of the lorry, or the driver of the scooter, or both, were negligent in causing the accident. It is not the case of any of the parties that the collision of the vehicles in this case was an accident, or a misfortune, for which no one could be blamed on the ground that the drivers of the vehicles were engaged in doing a lawful act, in a lawful manner by lawful means and with proper care and caution. It is not disputed that the collision of the vehicles was due to negligence. But the driver of each of the two vehicles throws the entire blame on the other. The case of the claimant is that the drivers of both the vehicles were negligent, though his contention is that the negligence on the part of the driver of the lorry really caused the collision and that he is primarily responsible for the grievous injury sustained by him which resulted in the amputation of the left leg above the knee. The Tribunal found the driver of the scooter alone to be negligent in this case on the basis of several findings of fact given by it, but some of the findings of fact can hardly be supported.

5. Section 78 of the Motor Vehicles Act requires that every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by a mandatory traffic sign and in conformity with the driving regulations set forth in the Tenth Schedule. Regulations 6 and 7, among the driving regulations, contained in the Tenth Schedule, are relevant for the purpose of this case and they are as follows:

6. The driver of a motor vehicle shall slow dawn when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon.

7. The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road and designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.

[After summarising the evidence in the case, their Lordships said : ]

There can be no doubt that both the vehicles entered the intersection without regard to the other vehicles on the road, that they were close together, that each swerved to avoid collision, but that in spite of it the sides of the vehicle collided. In London Passenger Transport Board v. Upson L.R. (1949) A.C. 155 : (1949) 1 All E.R. 60, Lord Porter in dealing with the duty of a driver of a vehicle approaching a crossing has observed at page 65 that

The true position is that the motorist must be able to see whether the crossing : is clear or not up to the time when, going at the speed he is going, provided it is a reasonable speed, he would still be able to stop before reaching the crossing.

Clearly the driver of the lorry in this case has failed in such duty. It was not after the impact that he applied the brake for his lorry travelled 24 feet before it came to a stop. Hence he could not have stopped before reaching the crossing after he reached the point where he would have been in a position to see the scooter coming on the right.

8. The evidence of the witnesses is no doubt not clear as to which part of the scooter and the lorry collided. But this is inevitable having regard to the fact that the accident took place within a couple of seconds after the vehicles approached the intersection of the roads. But the driver of the lorry has clearly violated both the driving regulations 6 and 7 of the Tenth Schedule to the Motor Vehicles Act. He ought to have given right of way to the driver of the scooter, who had also approached the intersection of the roads, on his right and the mere fact that the lorry was one or two feet nearer the mid-point of the intersection of the roads than the scooter is not a sufficient ground for the driver of the lorry to disobey regulation 7.

9. The learned Advocate for the owner of the lorry contended that as the lorry had travelled nearly up to half the junction of the roads it is the driver of the scooter alone that could be blamed for collision. The fact that the lorry had traversed nearly half the junction of the roads at the time of impact is not sufficient in the circumstances of the case to show that the driver of the lorry was not negligent. We have already pointed out that neither of the drivers of the vehicles had a look out for other vehicles on the road as required under the regulation 6 of the Tenth Schedule to the Motor Vehicles Act. Further, it is clear from the evidence of the driver of the scooter that the collision took place on the northern half of St. Mary's. Road and this is corroborated by our finding as to the place of impact of the lorry and the scooter. Thus the driver of the lorry did not keep to the left side of the road as required by the first driving regulation of the Tenth Schedule to the Motor Vehicles Act. If he had kept to the left side of the road, the accident in this case would most certainly have been averted as he Would have had a clear vision of the scooter coming on the right and would also have dad ample time to give right of' way to it even after seeing it. The explanation of the driver of the lorry that his view of Ramaswami Iyer Road was obstructed till he entered the intersection on, account of the existence of trees and compound wall of houses to a height of six feet with hedges three feet over it is really no excuse for not obeying regulation 7 of the Tenth Schedule to the Motor Vehicles Act. If the view of the lorry driver as regards the vehicles approaching on his right from C. P. Ramaswami Iyer Road, was really obstructed, as stated by him, it was all the more incumbent on him to have reduced the speed and driven cautiously. There can be no doubt in this case that the driver of the lorry was negligent in not keeping to the left side of the road, in not having had a look out for vehicles coming on the right side, in not slowing down when approaching the intersection of the roads, in not sounding the horn when approaching the intersection and in not giving the right of way to the scooter which came on his right.

10. The learned Advocate for the claimant laid considerable stress on the violations of the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act by the driver of the lorry. The following passage at page 32 of ' The Law of Running down cases ' by Edward Terrell, clearly points out how far the infringement of rule of the road could be relied upon to prove negligence.

The mere infringement of a rule of the road is not necessarily proof of negligence on the part of the defendant. But under modem conditions of fast moving traffic any substantial infringement of the rules of driving would, it is submitted be sufficient to justify the case being left to the jury. Under Section 45 (1) of the Road Traffic Act, 1930, the Minister of Transport has prepared a Highway Code for the guidance of all persons using Highways. The Code is set out in Schedule II. Under Sub-section (4) a failure on the part of any person to observe any provisions contained therein may be relied upon by a party to the proceedings tending to establish or to negative any liability in question. The defences of contributory negligence or inevitable accident would still be open to the defendant, but once it was proved that he had broken one of the normal rules of the road, and that this may have been the cause of the accident, then the burden of proof would have been discharged by the plaintiff.

11. In Beven on. Negligency, Volume I at page 685 the learned author has pointed out that the person riding or driving is not bound to keep his side; yet if he does not, he must keep a better look out to avoid collision than would be necessary, if he were on the proper part of the road. He has observed that the mere facts of man driving on the wrong side of the road is per se no evidence of neglikent driving in an action brought for running over a person who was crossing the road on foot. The following passage at page 386 of the same book clearly shows that circumstances may warrant a deviation from the law of the road.

In the crowded street of a metropolis...situations and circumstances might frequently arise where a deviation from what is called the law of the road would not only be justifiable, but absolutely necessary.

In general the rule holds, and applies not merely to horses drawing carriages, but to saddle horses. Though there is one case, not unambiguously reported, which seems to bear another construction, it is clear that the fact that a person driving on the wrong side of the road indicates carelessness, and hence prima facie points to negligence. Any other view would be destructive of the rule for its conformity does not raise a presumption of right conduct observances or disobediences of the rule becomes absolutely indifferent in the case of an action; as negligence having to be shown apart from the rule, the rule would be neutralised if conformity to the rule is presumably going right non-conformity would seem presumably to be not going right. This prima facie presumption is rebuttable.

In Joseph Eva Ltd. v. Reeves (1938) LR 2 K.B. 393 : 107 L.J. K B. 569 : (1938) 2 All E.R. 115, Sir Wilfred Greene, M.R. has observed that failure to observe a provision of the Highway Code does not in itself necessarily constitute negligence and that the effect to be given to such failure must necessarily depend upon the circumstances of the case. He has pointed out that ' where traffics at cross roads is not regulated by a traffic light or the police, the regulation ' Never overtake at crossroads ' is an obvious cannon of good driving, since overtaking at unregulated cross roads necessarily involves a risk to other traffic lawfully on the highway. The same principle would apply to several of the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act. It is true there is no provision in the Motor Vehicles Act corresponding to Section 45 (4) of the Road Traffic Act, 1930, of England which provides as follows:

A failure on the part of any person to observe any provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings.

But the infringement of the driving regulations may be relied upon by the claimant to show that the driver of the lorry omitted to do something which a reasonable driver guided by the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act would do and that he was therefore negligent. The decision in Bailey v. Geddes L.R. (1938) K.B. 156 : 107 L.J.K.B. 38 : (1937) 3 All E.R. 671, deals with the absolute statutory duty upon a motorist approaching a pedestrian crossing not to enter thereon unless he can see that there is no pedestrian upon crossing. At page 675 it is pointed out that

It is impossible that what is done inside the crossing can be the fault or the negligence of the plaintiff himself, because, if the regulation had been obeyed, there would have been no car upon the crossing at all which could on any view, have injured the plaintiff.

12. It is further pointed out that once the vehicle is wrongly on that crossing, it does not lie in the mouth of the driver of that vehicle to say to the pedestrian ' You have caused this accident by your negligence,' because, if he had obeyed the regulation, the driver never would have been on the crossing. It is observed in the same decision that each of these cases must depend upon a consideration of the particular language of the particular regulation.

13. There can be no doubt in this case that the driver of the lorry was negligent as pointed out at the end of the last but one paragraph. The Tribunal has found that the driver of the scooter was alone negligent and it was mainly on the ground that he disobeyed the traffic sign board ' Stop Listen and Go ' and on the ground that it was the lorry that entered the intersection of the roads first, even when the scooter was at some distance. We have already found that there was no sign-board, and that the vehicles came to the junction of the roads almost simultaneously. It may be the driver of the scooter was perhaps also negligent to some extent in having disregarded regulation 6 of the driving regulations contained in the Tenth Schedule of the Motor Vehicles Act. There is at least some evidence of the scooter having slowed down as it necessarily should have to enable it to turn to the right but there is none at all that the lorry driver mitigated his pace. The learned Advocate for the driver of the scooter contended that there was no duty on the part of the driver of the scooter to see the vehicles coming to his left as such vehicles have to give him right of way. The fact that the driver of the lorry drove the vehicles on the wrong side of the road and did not give him right of way, will not justify, the negligence of the driver of the scooter in not looking out for vehicles coming on the right and in going and dashing against it.

14. We have pointed out that he could have stopped the scooter by applying the brakes as according to him he was going only at a slow speed and he could have stopped within three felt. It may be that if the driver of the scooter has sued the driver of the lorry for damages for negligence the driver of the lorry cannot effectively plead contributory negligence as the effective cause for the collision was the negligence of the lorry driver. But so far as the claimant is concerned, he sustained a serious injury to his left leg on account of the collision of the two vehicles brought about by the combined effects of the negligence of both the driver of the lorry and the driver of the scooter, though the degree of negligence on the part of each varies considerably. Pollock's Law of Torts has dealt with it as a case of composite negligence. At page 361 of Pollock's Law of Torts by Landon, Fifteenth Edition, Pollock's treatment of the subject has been given without any revision. The following passage at page 361 is relevant to the present case:

Another kind of question arises where a person is injured without any fault of his own, but by the combined effects of the negligence of two persons of whom the one is not responsible for the other. It has been supposed that A could avail himself, as against Z who has been injured without any want of due care on his own part, of the so called contributory negligence, of a third person B. It is true you were injured by negligence but it would not have happend if B had not been negligent also, therefore you cannot sue me, or at all events not apart from B. Recent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically disallowed. It must, however, be open to A to answer to Z : ' You were not injured by my negligence at all, but only and wholly by B's'. It seems to be a question of fact rather than of law (as, within the usual limits of a jury's discretion, the question of ' proximate cause ' is in all ordinary cases) what respective degrees of connection, in kind and degree, between the damage suffered by Z and the independent negligent conduct of A and B will make it proper to say that Z was injured by the negligence of A alone, or of B alone, or of both A and B. But if this last conclusion be arrived at, it is now quite clear that Z can sue both A and B.

15. In dealing with the plea of contributory negligence as between persons guilty of composite negligence, the learned author has stated as follows at page 362 of the same book:

The strict analysis of the proximate or immediate cause of the event, the injury who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiff suffered by his own negligence. Where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled of course, within the limits set by the general rules as to remoteness of damage to sue all or any of the negligent persons. It is no concern of his whether there is any duty of contribution or indemnity as between those persons, though in any case he can not recover in the whole more than his whole damage.

In Krishnaswami Naidu v. Narayanan : AIR1939Mad261 , a Bench of this Court dealt with a case where a passenger of a bus was killed by a collision of that bus with another bus and the legal representatives of the deceased passenger instituted a suit under Fatal Accidents Act against the owners of both the buses. It was pointed out in that case that the case would fall in the category of what is described by Mr. Frederick Pollock as injury arising from ' composite negligence '. The last mentioned passage at page 362 of Pollock's Law of Torts by Landon Fifteenth edition) has been extracted in the judgement and it is observed that the principle was applied by the majority of the Court of Appeal in Ireland in M. Kenna v. Steppens (1923) 2 L.R. 112, and reference is also made to Beven on Negligence, page 79.

16. The observation of the Tribunal in paragraph 22 of its judgment proceeds on the assumption that R.W. 2, M. K. Subramanian, is the negligent driver. R.W. 2 M. K. Subramanian got a licence to drive scooter in August, 1961 as he had then a scooter, but he sold it in the same year. He admitted in his evidence that he had no scooter in 1962 and 1963 till he purchased the scooter from Anand five days prior to the accident on 16th December, 1963. He denied the suggestion that subsequent to his purchase he took out the scooter for driving for the first time on the date of the accident. But in the criminal Court he has stated that he took the scooter from, his friend Anand for the first time on that day alone. But in the criminal Court he has stated that since 1963 he was driving the scooters of his friends. It could not be inferred from these facts alone that he is inexperienced and likely to be a negligent driver of scooter. We have already referred to other circumstances to show that the driver of the scooter was also negligent in driving the scooter so as to collide with the lorry. Thus it is obvious that the collision of the vehicles which caused the grievous injury to the claimant was the result of the composite negligence-of the drivers of both the vehicles.

17. Sri C. R. Krishna Rao appearing for the appellant in C.M.A. No. 398 of 1964 contended that the driver of the scooter has been impleaded qua-driver and not as owner of the scooter and that under the provisions of Chapter VIII of the Motor Vehicles Act dealing with insurance of motor vehicles against third party risks the duty of the owner of the scooter to insure the vehicle against third party risks does not cover the case of a pillion rider carried gratuitously, that the driver of the scooter is not a necessary party to the claim and that the claim for damages or compensation against the driver of the scooter could not be determined by the Claims Tribunal., The Tribunal has found that the Oriental Fire and General Insurance Company is not liable to the claimant by reason of its having issued an insurance policy to the owner of the scooter covering third party risks for the reasons stated in paragraph 24 of its judgment. The policy granted by the Insurance company in respect of the scooter has not been produced in this case. There is thus no evidence to show that the insurance of the scooter covers any liability to persons carried on the pillion seat. Under Section 95 (1) of the Motor Vehicles Act a policy of insurance must be a policy which.

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle in a public place.

But there is a proviso that a policy shall not be required to cover liability in respect of the death or bodily injury sustained by an employee arising out of and in the course of his employment. The second clause of the proviso shows that it extends to persons other than passengers carried for hire or reward, or in pursuance of a contract of employment. Thus the owner of the scooter is not bound to take out a policy in respect of third party risks to cover the claim of a pillion-rider carried gratuitously. The Tribunal has rightly found, in the absence of the policy issued by the Oriental Fire and General Insurance Company covering the claim of persons like the present claimant that the said company is not liable.

18. The claimant impleaded M. K. Subramanian only as the driver of the scooter as made clear by the learned Advocate for the claimant before the Tribunal. The reason is that he had impleaded A.K. Anand, the original owner of the scooter, as the owner. But in his evidence R.W. 2 M.K. Subramanian admitted that he purchased the scooter five days prior to the occurrence and that after the purchase he is the owner of the scooter. Therefore, A.K. Anand, the original owner of the scooter was held not liable for the claim. Hence the mere fact that M. K. Subramanian has been impleaded as the driver of the scooter cannot affect his liability as the owner, if he is really the owner of the vehicle though he has not been impleaded in that capacity. But it is really unnecessary to pursue the question whether in spite of R.W. 2 M.K. Subramanian, having been impleaded as the driver he could be held liable as the owner of the scooter in the view we are taking as regards his liability in these proceedings even as the driver.

19. Sri C.R. Krishna Rao referred to the last portion of Section 110-B of the Motor Vehicles Act that in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer, as supporting his contention that the award could only be against the insurer. He referred to the machinery provided in Section 110-E of the Act for the recovery of money due from the insurer in the same manner as an arrear of land revenue and pointed out that there is no provision for enforcing a claim against other persons. He relied on the above circumstances to show that the driver of a vehicle is not a necessary party and that no claim could be made against him before a Tribunal. It is true that the driver is not a necessary party even in a suit for damages against the owner of a vehicle for injury or death of a person caused by the negligence of the driver. But, having regard to the provisions of the Act, the contention of Sri C.R. Krishna Rao is untenable. Section 110 (1) of the Motor Vehicles Act provides for the constitution of 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. Section 110-F of the Act provides that:

Where any Claims Tribunal has been constituted for any area, no civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the civil Court.

Thus the above provisions contained in Sections 110 (1) and 110-F of the Act taken together clearly show that the Claims Tribunal wherever constituted has exclusive jurisdiction to entertain any question regarding any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. The negligent driver of the vehicle.... is primarily responsible for the damages in respect of the death of or bodily injury to persons arising out of the use of motor vehicles and (he liability of the owner of the vehicle is only a vicarious liability arising cut of the relationship of the master and servant. It is not disputed that under the provisions contained in Chapter VIII of the Motor Vehicles Act the owner of a vehicle could be made liable. In fact, he would be liable if he fails to take out a policy covering third party risks. Under Section 97 (4) (b) of the Act:

If the liability of the insurer to the insured person is less than the liability of the insured person to third party, nothing in this Chapter shall affect the right of the third party against the insured person in respect of the balance.

The form of application for compensation does not specifically provide for the claimant furnishing particulars of the driver of the vehicle. But this information could be furnished against the last entry ' any other information that may be necessary or helpful in the disposal of the claim '. It is true the form of application for compensation is not comprehensive. In a suit for damages for injury caused by negligent driving of a vehicle the particulars of the negligence giving rise to the cause of action should be given. But it is significant to note that there is no provision in the form of application for compensation calling upon a claimant to give such particulars. In Seethamma v. Benedict D'Sa A.I.R. 1967 Mys. 11, it is pointed out that the prescribed form is a poor substitute for plaint. It is not possible to construe the provisions of the Act with reference to the form or even the Rules framed under the Act, The provisions contained in Sections 110 (1) and 110 (f) of the Act are comprehensive and wide enough to cover all claims for compensation in respect of the death or bodily injury to any person caused by or arising out of the use of motor vehicles.

20. Section 110-B of the Act is as follows:

on receipt of an application for compensation made under Section 110-A the Claims Tribunal shall after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer.

The last portion of the above section requiring the Tribunal to specify the amount which shall be paid by the insurer refers only to one of the duties of the Tribunal. The earlier portion of the section requires the Claims Tribunal to give the parties an opportunity of being heard, hold an enquiry into the claim and make an award determining the amount of compensation which appears to be just. The parties clearly include the driver and owner of the vehicle or vehicles who incurs any liability in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle.

21. It is true that Section 100-E of the Act provides for recovery of money from the insurer on the Collector's certificate issued in pursuance of the award of the Claims Tribunal in the same manner as an arrear of land revenue and there is no provision in the Act for the recovery of money from the driver of the vehicle. Under the Industrial Disputes Act, 1947, as it originally stood, there was no provision to recover the arrears of pay and allowances due to a workmen, though an award may reinstate him to his previous service and declare him to be entitled to the arrears of pay and allowances. In Bilash Chandra v. Balmer Lawrie & Co. : (1953)IILLJ337Cal , it has been held that the remedy provided by Section 29 of the Industrial Disputes Act, 1947, by way of penalty does not deprive the individual rights of action in cases where the Award confers any personal right or benefit to particular employees for the purpose of bringing about industrial peace among the whole body of employees who are espousing the cause of the particular employee or employees and that a workman can realise the arrears of his pay and allowances to which he is declared entitled under the Award by bringing an action in a civil suit on the Award. Normally a party would be satisfied by proceeding against the insurer, but in cases like the present one, where the insurer of the vehicle could not be proceeded against, recourse should only be had, against the driver and owner of the vehicle. Even if it is assumed that Chapter VIII of the Motor Vehicles Act does not provide for the machinery to enforce the liability of the driver or owner of the vehicle as declared in the Award, it would not prevent the claimant from enforcing the claim against the said persons by filing a suit on the Award. Hence the absence of a machinery to enforce the Award against the driver cannot oust the jurisdiction of the Tribunal to entertain the claim against the driver of the vehicle. If the argument of Sri Krishna Rao is accepted, it would lead to the anomalous position of driving the claimant to have recourse to the Tribunal for his claim against the owner and the insurer and to the ordinary civil Court for the claim against the driver. Such an interpretation is not warranted having regard to the clear provisions contained in Sections 110 (1) and 110-F of the Act.

22. In Seethamma v. Benedict D'Sa A.I.R. 1967 Mys. 11 a, it has been held that a claim for compensation can be made under Chapter VIII of the Motor Vehicles Act not only against the owners of the motor vehicle and the insurer, but also against the driver whose negligence gives rise to the claim for compensation. It has been held in that decision that there is no provision in the Act forbidding recovery of compensation through the machinery provided by Chapter VIII from the driver of the vehicle who is principally responsible for the death or injury if there be negligence on his part and that the claim for compensation against him could be made only under the provisions of that Chapter to the Claims Tribunal and not to the civil Court whose jurisdiction is barred by Section 110-F of the Act. The ratio of the decision is that having regard to Section 110-F of the Act, the insurer could not proceed against the driver for the recovery of compensation in a civil Court and that an interpretation leading to the result that he cannot be proceeded against even before the Claims Tribunal cannot be sound. But if really no machinery is provided for in Chapter VIII of the Act, the remedy of the claimant is only to file a suit on the Award, which creates a debt against the driver of the vehicle and such a suit would not be barred by reason of Section 110-F of the Act. It is for the Legislature to make provision in Chapter VIII of the Act for enforcing claims against other parties such as the driver. Evidently no such provision has been made as a party could generally be satisfied by getting his claim enforced by proceeding summarily against the insurer on the strength of the Collector's certificate obtained in pursuance of the Award.

23. Sri C.R. Krishna Rao urged that the claimant was only a licensee as he was carried gratuitously by the driver of the scooter and that the duty of the owner of the scooter was that owed by an occupier of premises to a licensee, namely to warn the licensee of any concealed danger of which he knows. As pointed out in ' Winfield on Tort ', Seventh Edition, at page 285, the distinction between invitees and licensees has for all practical purposes been abolished following the recommendation of the Law Reform Committee and the passing of the Occupiers' Liability Act, 1957, in England. In Harris v. Perry & Co. (1903) LR 2 K.B. 219, it is pointed out that the measure of duty towards a bare licensee is different, where the licensor accepts the duty of carrying him, from what it is where he merely permits him to pass through his premises. At page 226 of the same decision, the distinction is clearly emphasised in the following terms:

There is an obvious difference between the measure of confidence reposed and responsibility accepted in the case of a person who merely receives permission to traverse the premises of another, and in the case where a person or his property is received into the custody of another for transportation. In the case of persons received for carriage, Parke B. says in Lygo v. Newbold : 'A person who undertakes to provide for the conveyance of another, although he does so gratuitously, is bound to exercise due and reasonable care'. In Austin v. Great Western Ry. Co. (1867) LR 2 Q.B. 442 Blackburn, J., says, I think that what was said in the case of Marshall v. York New Castle & Burwick Ry. Co. (1851) 11 C.B. 655, was quite correct. It was there laid down that the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely.

Hence the fact that the driver-cum-owner of the scooter carried the claimant gratuitously cannot absolve him of his liability for his negligence.

24. The next question to be considered is whether the damages payable by the driver, owner and insurer of each of the vehicles could be apportioned on the basis of respective negligence of the drivers of the two vehicles. In State of Punjab v. Phool Kumari it has been held that where by the fault of two or more persons damage is caused, the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. The said decision of a single Judge of the Punjab High Court proceeds on the authority of Lang v. London Transport Executive 6 as justifying the apportioning of liability among tort-feasors. But it should be noted that the common law of England that such damages should not be apportioned except in cases coming within the admiralty jurisdiction, was changed by a statute in England in 1935 when Married Women and Tort-Feasors Act, 1935 (25 and 26 Geo. V. C. 30) was passed. In ' Winfield on Tort' Seventh Edition, at page 766 it is stated that in a judgment against joint-tort-feasors the damages awarded must be for a single sum without any apportionment among the defendants and execution for the whole of this amount can, if the plaintiff sees fit, be levied against one only of the defendants and that until the Act of 1935 the general rule was that he could get neither an indemnity for the whole of what he had paid nor contribution of an aliquot part of it. The learned author has pointed out that this Was laid down in. Merryweather v. Nixan (1799) 8 T.R. 186, and was extended from joint-tort-feasors to independent tort feasors causing the same damage. In Nawal Kishore v. Rameshwar : AIR1955All594 , it has been. pointed out that the Courts in India act on the principle of equity, justice and good conscience in matters which are not covered by statute and rely upon the principles established under the English Law to find out what the rule of justice, equity and good conscience is. It has been held in that decision that clause 6 (1) (b) of the Married Women and Tort-feasors' Act of 1935 is not necessarily based on any principle of equity justice or good conscience and there is no justifiable reason why in the subsequent suit, if more than one suit is brought for damages against different persons, the plaintiff should be restricted to the amount decreed against one tortfeasor in his suit against the other joint tort-feasors against whom the cause of action is not only joint, but joint and several. It should be observed that the principle of justice, equity and good conscience do not go varying in India every time the common law is amended by a statute in England. In Krishnaswami v. Narayanan : AIR1939Mad261 , Varadachariar, J., held that there could be no apportionment of liability in cases like the present one. If we were at all compelled to apportion the liability between the owners of the lorry and the scooter on the basis of English decisions rendered after the Married Women and Tort-feasors Act of 1935, we would be inclined to hold the owner of the lorry to be mainly responsible for the collision end make him liable for 9/10th of the damages and make the owner of the scooter liable only for the remaining 1/10th. But in view of the above decision no such apportionment can be made.

25. Sri S. Mohan appearing for the Co-operative Fire and General Insurance Society, Limited, which had insured the lorry urged that the interlocutory order of the Tribunal, dated 20th July, 1964 that the Insurance Company shall have no right to put questions to the witnesses except with reference to the grounds specified in Clauses (a), (b), (c) of Sub-section (2) of Section 96 of the Motor Vehicles Act is wrong. The said Society filed C.R.P. No. 1659 of 1964 against the said order. But it was dismissed on the ground that the order sought to be revised was an interlocutory one and that if the proceedings were to terminate ultimately against the society, it could challenge the propriety of the order in the appeal against the Judgment. Under Section 110-B of the Act the Claims Tribunal shall after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to be just and specifying the person or persons to whom compensation shall be paid by the insurer and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer. Thus the insurer is an important party in the claim before the Tribunal as the amount payable by it should be clearly specified in the award. The Claims Tribunal has restricted the rights of the insurance company to cross-examine the claimant and his witnesses on its construction of Section 96 of the Act. It should be noted that Section 96 of the Act was introduced several years before the constitution of the Claims Tribunal by the present section no of the Act. At the time when Section 96 of the Act first came into force there was no Claims Tribunal. Section 96 of the Act was introduced in order to enforce the duty of insurers to satisfy judgments against persons insured in respect of third party risk by giving them notice after judgment obtained by third party against persons insured in respect of third party risk. It is only in such cases the defences open to the insurer are restricted to the grounds mentioned in Section 96 (2) of the Act. A reading of Section 96 would clearly show that it was not intended to govern the enquiry before a Claims Tribunal. Section 96 contemplates proceedings in a Court and not proceedings before a Tribunal. It contemplates notice being given to the insurer which may be before or after judgment is obtained against the person who had effected insurance for third party risk. The insurer is no doubt entitled to be made a party and defend the action on the grounds mentioned in that section. But in the proceedings before a Claims Tribunal the insurer is a party. The decisions in Vanguard Fire and General Insurance Co. v. Sarla Devei , and B. I. G. Insurance Co. v. Itbar Singh (1960) S.C.J. 44 : (1960)1 A.W.R, holding that an insurer is not entitled to take any defence which is not mentioned in Sub-section (2) of Section 96 of the Act are all decisions in which the insurers were given notice in proceedings by Way of suit as contemplated under the provisions of Section 96 of the Act. It has been rightly pointed out in those decisions that apart from the statute, an insurer has no right to be made a party to the action by the injured person, against the insured causing the injury and that the rights open to the insurer are therefore governed by those provided in the section. (The decisions do not relate to proceedings before a Claims Tribunal where the insurers are made parties and the scope of the defences which they want to put forward has not in any way been restricted). The contention of C. R. Krishna Rao is that if Section 96 could have no application to proceedings before a Claims Tribunal, it would have been deleted after section no was introduced in the Act. But the obvious answer is that it is only after a Claims Tribunal is constituted by the State Government by a notification in the Official Gazette, the civil Court's jurisdiction would be barred. There may be States where a Claims Tribunal may not have been constituted and in those States Section 96 of the Act could be invoked and the insurance company could be permitted to take only the defence allowed under Section 96 of the Act in respect of' the judgment obtained by a third party. In our opinion, the insurance companies who are mainly responsible to satisfy the claims of third parties and who are parties. to the proceedings before the Claims Tribunal are entitled to cross-examine cannot be restricted to the defences specified in Section 96 (2) of the Act.

26. The order of the Claims Tribunal, dated 20th July, 1964 is wrong. Strictly speaking, the Co-operative Fire and General Insurance Society Ltd would be entitled to recall and cross-examine the witnesses, though they had been cross-examined by the owner of the lorry. But Mr. Mohan appearing for the Society fairly stated before us that he does not want to cross-examine the witnesses of the claimant as the Advocate for the owner of the lorry had effectively cross-examined the witnesses on the several points. In view of this concession it is unnecessary to direct the Claims-Tribunal to allow the Advocate for the Society to cross-examine the witnesses for the claimant after recalling them and to submit the said evidence to this Court for final disposal of the case. We have made observations in the earlier paragraph only for the purpose of clarifying the scope of participation in the proceedings by the insurer.

27. One other contention urged by Sri S. Mohan is that the liability of the insurance company is restricted to a sum of Rs. 20,000 under Sub-section (2) of Section 95, of the Act. But in our opinion, this contention has been rightly rejected by the Tribunal. Sub-section (2) of Section 95 of the Act clearly govern only the proviso to Sub-section (1) of Section 95 of the Act. Thus it is clear from the terms of Sub-section (2) to Section 95 that they are subject to the proviso to Sub-section (1). Under the proviso (1) to Sub-section (1), a policy shall not be required to cover liability of any such employee as is referred to therein who is (a) engaged in driving the vehicle or (b) is a conductor of the vehicle or (c) persons carried in a vehicle. Clause (iii) of the proviso excludes contractual liability. Subject to the said three clauses of the above proviso Sub-section (2) of Section 95 provides the limits of liability of the insurer to Rs. 20,000 in all, in respect of the death of, or bodily injury to employees to Rs. 20,000 in respect of all passengers and Rs. 4,000 in respect of an individual passenger if the vehicle is registered to carry not more than six passengers excluding the driver. In the cases of vehicles of any other class the limit is the amount of the liability incurred. Thus Sub-section (2) of Section 95 of the Act cannot be invoked to restrict the liability of the Co-operative Fire and General! Insurance Society Limited to Rs. 20,000 in this case. Sub-section (2) of Section 95 of the Act can have no application to damages caused to third parties like the claimant in this case as he is not one of the class of persons referred to in the proviso to Section 95 (1) of the Act.

28. The only remaining question to be considered in these appeals is the quantum of damages. The claimant assessed his damages at Rs. 3,60, 210 under eight heads. But the Claims Tribunal awarded a total compensation of Rs. 57,865-37P. At the outset we have to point out that the appellate Court will be loath to interfere with the quantum of damages awarded by the Tribunal unless there is an error in principle in awarding damages, or the damages awarded under any head is so excessive or unreasonable as to call for interference. It is enough to deal with the specific objections put forward by the parties on the question of damages.

29. Sri K.K. Venugopal, the learned Advocate for the claimant, objects to the total disallowance of Rs. 10,000 claimed for inconvenience and loss of enjoyment and amenities. The Tribunal, was of the view that no separate compensation need be awarded under this item as it should be deemed to have been included in items 4 to 6, Sri K. K. Venugopal urged that some damages should have been awarded under this head for reduced prospects of marriage. At page 15 of Kemp on the ' Quantum of Damages'. Second Edition, it is stated that in the case of a female plaintiff serious injury or disfigurement may greatly reduce her prospects of marriage and that quite apart from other aspects of the matter which fall to be considered under the head of loss of amenities such a matter would represent a real material! loss; especially in the case of a woman who regards marriage as her real prospective career and who had not been educated or trained for any thing else. It is stated in the same page that an injury which handicaps her in the marriage market-represents a real pecuniary loss. Apart from the fact that the claimant did not put forward any claim before the Tribunal on the ground that his prospect of marriage was reduced by reason of the loss of his left leg, the one answer that could be given to this claim is that it is doubtful whether the claimant would have better prospects of marriage with an artificial left leg and a sum of Rs. 57,865-37 p. than with his original left leg without this sum awarded as damages. If the claimant had been incapacitated for marital life by reason of the accident, one can understand a claim for damages on that count.

30. The only other objection urged by Sri K. K. Venugopal is that under item 4 relating to prospective loss of earnings, the Tribunal has after computing thirty years' income as Rs. 1,08,000 deducted 40 per cent. for loss of efficiency and reduced the figure to Rs. 40,000 in view of the fact that the lump sum awarded as compensation, if invested, would earn interest. Sri K. K. Venugopal referred to the passage in Kemp on the ' Quantum of Damages' at page 32, Volume 1, dealing, with a case in Ferguson v. Durastic Ltd. (1951) 1 LR 324, where Groom Johnson, J., assessed the prospective loss. of wages at 2,500 for ten years and reduced one-fifth for the reasons indicated in his judgment. The contention of Sri K. K. Venugopal is that in this case also the deduction should have been only 20 per cent. not 40 per cent. But the deduction of 40 per cent. in this case is based on the evidence of P.W. 6 Dr. Varma as to the extent to which the claimant lost his efficiency and was therefore not normal on account of the loss of the left leg. The facts of the case in Ferguson v. Durastic Ltd. (1951) 1 LR 324, might have justified the deduction of only 20 per cent. Sri K. K. Venugopal further argued that the earnings of the claimant should not have been computed for thirty years alone as he could be expected to earn at least till his retirement in his fifty-fifth year. But the claimant is now a student and he is not earning anything now. His earning capacity would arise only after he completes his course at the end of five years, and if so computed from his 25th year, the calculation of the total earnings . for 30 years adopted by the Tribunal is fully justified. Thus, we are unable to uphold the above objection put forward by Sri K. K. Venugopal for the claimant.

31. The objection urged by the owners of the scooter and the lorry is that the medical expenses and out of pocket expenses for which a sum of Rs. 6,865-37, is awarded have not been strictly proved in this case. It is true Exhibit P-5 is not the original account kept by the claimant's father, P.W. 11 but only an extract from his regular accounts.. written by his daughter to his dictation. But the claimant has produced the vouchers . Exhibit P-3 series, which the Tribunal has considered in assessing the total expenses . to be allowed as Rs. 4,615.37p. The Tribunal has allowed Rs. 250 for Nursing Home charges and Rs. 2,000 for future expenses for renewing the artificial limb periodically. We see no sufficient ground to interfere with the assessment of damages under items. 1 and 2.

32. It is true that the sum of Rs. 1,500 paid to Dr. Varma as per Voucher No. 59 has . not been spoken to either by Dr. Varma or by the claimant's father P.W. 11. But it should be noted that the vouchers have all been marked by consent and treated as evidence. Further there is nothing in Chapter VIII of the Motor Vehicles Act to show that the Tribunal should act strictly in enforcing the Evidence Act. It is true the Tribunal is not in the position of an arbitrator but it is entitled to rely on the vouchers produced by the claimant and not objected to by the respondents, before the Tribunal.

33. In H. West & Sons Ltd. v. Shephard L.R. (1964) A.C. 326 : (1963) 2 W.L.R. 1359 : (1963) 2 All E.R. 625, the House of Lords upheld the award of general damages there having been no error in principle in assessment. It was held in that decision that the award of a sum of Rs. 1,17,500 was high on the particular facts of that case. But in the view of the majority judgment in that case, it was not so high as to call for interference. We see no sufficient ground or justification to interfere with the sum of Rs. 57,865-37 p. awarded as damages.

34. In the result, the judgment of the Claims Tribunal is modified by making the driver of the lorry Sankaranarayanan, the owners of the lorry M/s. T.U.C.S. Ltd. and the Co-operative Fire and General Insurance Society Limited, the insurer of the lorry, also liable along with the owner-driver of the scooter M. K. Subramanian, for the damages of Rs. 57,865-37p. Sri K.K. Venugopal urged that the claimant has paid Advocate fee of Rs. 1,500 and that the Advocate's fee of Rs. 100 allowed by the Tribunal is low. We are not inclined to interfere with the Advocate's fee of Rs. 100 fixed by the Tribunal in its discretion.

35. In the result C.M.A. No. 398 of 1964 is dismissed with the costs of the claimant (one set) and C.M.A. No. 358 of 1964 is allowed against the driver-owner and insurer of the lorry with costs (one set) but dismissed against A. K. Anand, the original owner of the scooter and the insurer of the scooter with costs. Court-fee Rs. 250.


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