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Mrs. M.J. Stone and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A.O. Nos. 25, 27 and 28 of 1972
Judge
ActsMotor Vehicles Act, 1939 - Section 110B and 110C; ;Code of Civil Procedure (CPC) - Order 32, Rule 7; ;Motor Accident Claims Tribunal Rules, 1960 - Rule 20
AppellantMrs. M.J. Stone and ors.
RespondentUnion of India (Uoi) and ors.
Appellant Advocate K.D. Sud,; B.B. Vaid and; S. Malhotra, Advs.
Respondent Advocate B. Sita Ram, Adv. General and; V.P. Gandhi, Adv.
DispositionAppeals allowed
Cases ReferredCompany v. Lt Col. K. M. Saveed
Excerpt:
.....persons - deceased persons died due to rash and negligence driving by respondent - appellant claimed compensation - specific amount settled between appellant and respondent without taking care of interest of minors - appellant claimed before tribunal that specific amount be awarded against these respondents - what is liability of minors for compromise made by appellants - under order 32 rule 7 an agreement or compromise by next friend without leave of court expressly recorded in proceeding is void as against minors and voidable against other parties - order of tribunal vitiated as interest of minor was not taken care off - matter remanded back to tribunal to decide on amount of compensation. - d.b. lal, j.1. these three first appeals are directed against the decision of the motor accident claims tribunal under section 110-b of the motor vehicles act, 1939. on december 20. 1968 atabout three miles from wangtu bridge and at 3 d. m. a petrol tanker (hra 1807) belonging to respondents 1 and 2 was coming from sungra and was going to wanatu on the hindustan tibet road. the tanker belonged to respondent-national carrier and calender singh respondent was driving it. one bishambhar dass fp. w. 9) was the conductor. this tanker was admittedly going on the wrong side of the road and when it reached a curve it was met with a military one tonner truck hc 15455 which was coming from wangtu side. the tanker being on the wrong side was hit by the military truck, with the result that a very.....
Judgment:

D.B. Lal, J.

1. These three first appeals are directed against the decision of the Motor Accident Claims Tribunal under Section 110-B of the Motor Vehicles Act, 1939. On December 20. 1968 atabout three miles from Wangtu Bridge and at 3 D. m. a petrol tanker (HRA 1807) belonging to respondents 1 and 2 was coming from Sungra and was going to Wanatu on the Hindustan Tibet Road. The tanker belonged to respondent-National Carrier and Calender Singh respondent was driving it. One Bishambhar Dass fp. W. 9) was the Conductor. This Tanker was admittedly going on the wrong side of the road and when it reached a curve it was met with a military one tonner truck HC 15455 which was coming from Wangtu side. The tanker being on the wrong side was hit by the military truck, with the result that a very unfortunate accident took place. The truck swered towards its right and fell into the river Sutlej It was being driven by Sepoy Kailash Yadav and four other employees of the military were occupying the other seats. All the five persons died as a result of that accident Accordingly the heirs of the deceased instituted Claims before the Motor Accident Claims Tribunal and four such applications were filed.

2. The respondents were National Carriers, Galender Singh. Oriental Insurance and also the Union of India. The case of the claimants was that either it was the negligence of the tanker or of the truck and they are liable to be paid compensation by the first three respondents or by the Union of India. The defence was the usual denial. The Union of India contended that the negligence was of Calender Singh while on behalf of the respondents 1 to 3 it was contended that the negligence was of Sepov Kailash Yadav.

3. On the date of hearing fixed in these applications, certain statements containing compromise arrived at between respondents 1 to 3 and the claimants were recorded. Smt. M. J. Stone gave statement on behalf of herself and her three minor children, while two Advocates S/Shri R. K. Mittal and K. D. Sud gave statements respectively for Krishna and her one minor child and Krishna Kumari and her four minor children. A statement was also given by Shri K. D. Sud, Advocate on behalf of Satwant Kaur. but since she had not filed an appeal we are no longer concerned with that statement. In all these three statements made by Smt. M. J. Stone and the two learned Advocates, it was averred that specific amounts were settled between them and the respondents 1 to 3 said the said amount be awarded against these respondents. However, it was significantly made clear that the claim against Union of India was intact and could be agitated for which a decision of the Tribunal was solicited.

4. The crucial question that arises in the present case is the liability of the minors for the statement of Smt. M. J. Stone and for the statements of the learned Advocates. Under Order 32, Rule 7 of the Civil P. C. an agreement or compromise by next friend, without the leave of the Court expressly recorded in the proceeding is void as against the minors although void able as against the other parties. The question that fell for determination is as to whether Order 32. Rule 7 is applicable in a proceeding before a Motor Accident Claims Tribunal. Under Section 110-C of the Motor Vehicles Act, the Claims Tribunal has all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects. Besides that the Claims Tribunal has such other powers under the Civil P. C. as may be prescribed. Rule 20 of the Motor Accident Claims Tribunal Rules, 1960 enumerates such other Dowers and the learned counsel pointed out that Order 32, Rule 7 of the Civil P. C. is not mentioned therein. Be it as it may, the safeguard against minors as provided in Order 32. Rule 7 will be applicable to a proceeding before the Claims Tribunal on the principle of equity, justice and good conscience. Admittedly there is no prohibition in the Motor Vehicles Act or its rules for application of the principle involved in Order 32, Rule 7 and in my opinion the said principles being of natural justice must be invoked even in a proceeding before Claims Tribunal. In Bishundeo Narain v. Seogeni Rao, (AIR 1951 SC 280), it is held that the Judge is not only re-quired to pass an order giving permission to such compromise but he is also required to express that the compromise is for the benefit of the minors. In Chhangu Aheer v. Dukhi Aheer. (AIR 1967 All 273) the language of Rule 7 of Order 32 was not considered as susceptible of a presumption being raised in favour of the agreement or compromise entered into on behalf of a minor without an order of the Court. The provision was held mandatory and requires the guardian or next friend to obtain leave of the Court for entering into a compromise and such permission must appear expressly in the proceeding of the Court. As observed by the Supreme Court the Judge has to ascertain that the agreement or compromise is for the benefit of the minors. There can be no denial that in the present three appeals neither the Court gave permission to enter into the compromises nor did it apply its mind as to whether the compromise was for the benefit of the minors. Thus under Order 32, Rule 7 the compromises cannot be adhered to and are void as against the minors. They are also voidable as against Smt.M. J. Stone and other rnajor appellants. They have very much discarded these compromises in their grounds of appeal. In M/s. Lm and. Company v. Lt Col. K. M. Saveed, 1971 Sim LJ 29 = (AIR 1972 Him Pra 19) with reference to a case under Rent Control Act where all the provisions of the Civil P. C. were not applicable, it was held that the procedure before the Rent Controller is reauired to be orderly and consistent with the rules of natural justice and so long it does not contravene the positive provisions of the law. the elementary and fundamental principles laid down in the Civil P. C. should be observed although technical forms may be discarded. Therefore the principle involved in Order 32, Rule 7 should be invoked in a proceeding before Claims Tribunal and if the interest of minors is involved, the safeguard existing therein must be applied with full force. Keeping regard to my observations in Um and Company (supra), I think the three decisions of the learned Tribunal are vitiated simply on this ground that the interest of the minors was not taken care of.

5. The other dispute with which I am at present concerned is the liability of the Union of India or of the respondents 1 to 3 for this accident In this connection reference need be made to three statements of Mangat Ram (P. W. 7), Mobbia (P. W. 8) and Bishambhar Dass (P. W. 9). Mangat Ram reached the spot immediately after the accident. He stated that he did not find any sign of brakes having been applied to that tanker. Mub-bia inspected the vehicle and found the brakes in order. Although he stated that the brake system of mercedes vehicle does not work while standing and he did not start the engine. Nevertheless he was in a position to inspect and find out a to whether the brakes would have worked if the engine was capable of being started. When he opines that the brake system was correct and in order, there was no occasion to doubt his statement. Bishambhar Nath (P. W. 91 being the conductor of the tanker naturally supported Calender Singh and threw the blame upon the truck. It is abundantly clear that the tanker was found on a wrongside of the road. It was coming from a higher level and was going towards lower level. There was a sufficient steep and hence the probability is that the tanker was faster in speed as compared to the truck for which the drive was uphill. Its speed was likely to go down. The tanker was actually found on the wrong side of the road. There is no sign of brakes having been applied. The system of brake itself was correct and workable. All these factors decidedly indicate that the fault lay with Calender Singh. As such the respondents 1 to 3 were really liable to pay the compensation. The Union of India cannot be held liable to pay the compensation. To that extent the finding of the learned Claims Tribunal cannot be set aside and must be held to be good.

6. Now the question remains regarding the compensation payable to these appellants. This question has not been decided by the Claims Tribunal. The learned Tribunal availed of the compromise statements and awarded the sums mentioned therein. Since that finding is being set aside, the case has to go back again to the Claims Tribunal for ascertaining compensation payable to the appellants. However, the finding that such compensation is payable only by respondents 1 to 3 is accepted and cannot be agitated again after remand. The learned Claims Tribunal will only give a decision on the Quantum of compensation and that will be payable by the respondents 1 to 3.

7. The three appeals are allowed and the decision of the Claims Tribunal is set aside. The case is remanded to the Claims Tribunal for ascertaining the amount of compensation payable by the respondents 1 to 3 to the appellants.

8. This judgment is being given in F. A. O. No. 25 of 1972. (Mrs. M. J. Stone and three others v. National Carrier and three others) and shall be a Judgment in the other two connected F. A. Os. Nos. 27 of 1972 and 28 of 1972. A copy of this Judgment shall be kept on the record of the other two appeals.


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