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Madras High Court
SRINIVASAN,SADASIVAM
K.Gopalakrishnan Minor, by next friend Guardian father B.R.Krishnan - Appellant
Versus
Sankara Narayanan - Respondent
Decided On : 10/04/1967
MOTOR VEHICLES ACT - S. 78, 110, 110-B, 110-E, 110-F - TENTH SCHEDULE, REGS. 6, 7 - INSURANCE ACT - S. 95, 96, 97 - NEGLIGENCE - COMPOSITE NEGLIGENCE - DAMAGES - APPORTIONMENT - LIABILITY OF INSURER - LIABILITY OF DRIVER AND OWNER OF VEHICLE - JURISDICTION OF CLAIMS TRIBUNAL - SCOPE OF ENQUIRY - RIGHT OF INSURER TO CROSS-EXAMINE WITNESSES.
Fact of the Case:
Collision between a lorry and a scooter resulting in serious injury to the pillion rider. Claims Tribunal awarded compensation against the driver of the scooter. The pillion rider preferred an appeal on the ground that he should have been awarded compensation against all the parties. The driver of the scooter also preferred an appeal against the award made against him.
Finding of the Court:
1. Both the vehicles entered the intersection without regard to the other vehicles on the road and that they were close together, that each swerved to avoid collision but that in spite of it the sides of the vehicles collided. 2. The driver of the lorry 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 had traversed nearly half the junction of the roads at the time of impact is not a sufficient ground for the driver of the lorry to disobey regulation 7. 3. The driver of the scooter was also negligent to some extent in having disregarded regulation 6 of the driving regulations contained in the Tenth Schedule to 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 when approaching the junction. 4. 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. 5. 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. 6. The Claims Tribunal has exclusive jurisdiction to entertain any question regarding any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. 7. The driver of a vehicle 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. 8. 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. 9. The scope of participation in the proceedings by the insurer cannot be restricted to the defences specified in Section 96(2) of the Act. 10. 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.
Issues: 1. Whether the collision of the vehicles was due to negligence? 2. Whether the driver of the lorry, or the driver of the scooter, or both were negligent in causing the accident? 3. Whether 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? 4. Whether the driver of the lorry was negligent as pointed out at the end of the last but one paragraph? 5. Whether the driver of the scooter was also negligent to some extent in having disregarded regulation 6 of the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act? 6. Whether 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? 7. Whether the owner of the scooter is bound to take out a policy in respect of third party risks to cover the claim of a pillion rider carried gratuitously? 8. Whether the Claims Tribunal has exclusive jurisdiction to entertain any question regarding any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area? 9. Whether the driver of a vehicle is 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? 10. Whether 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? 11. Whether the scope of participation in the proceedings by the insurer can be restricted to the defences specified in Section 96(2) of the Act? 12. Whether 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?
Ratio Decidendi: 1. The driver of the lorry was negligent in not keeping to the left side of the load, is 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. 2. The driver of the scooter was also negligent to some extent in having disregarded regulation 6 of the driving regulations contained in the Tenth Schedule to the Motor Vehicles Act. 3. 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. 4. 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. 5. The Claims Tribunal has exclusive jurisdiction to entertain any question regarding any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. 6. The driver of a vehicle 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. 7. 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. 8. The scope of participation in the proceedings by the insurer cannot be restricted to the defences specified in Section 96(2) of the Act. 9. 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.
Final Decision: 1. The judgement of the Claims Tribunal is modified by making the driver of the lorry Sankaranarayanan, the owner 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. Subramaniam for the damages of Rupees. 57 865,37. 2. C. M. A. No. 398 of 1964 is dismissed with the costs of the claimant (one set) and C. M. A. 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.
SADASIVAM, J. : On the morning of 16-12-1963 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 M/s. 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 5½"with fracture of both bones as the right rear wheel of the lorry ran over his left lee, 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 lee 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 M/s. T. U. C. S Limited the owner of the lorry the Cooperative Fire General Insurance Society Ltd., with whom the lorry was insured. R.W. 2 M.K. Subramanian, the driver and owner of the scooter one A.K. Anand, the original owner of the scooter, and the Oriental Fire and General Insurance Company, the insurer of the scooter as respondents 1 to 6 respectively. The Tribunal awarded compensation of Rupees 57865-37 P and cost of Rs. 100 to the claimant Gopalakrishnan only as against R.W. 2, M.K. Subramanian the driver of the scooter. The pillion rider Gopala krishnan has preferred C M. A. No. 358 of 1964 on the ground that he should have beer, 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. No. 60 of 1964 on the file of the Motor Accidents Claims Tribunal.
2. The sketch Ex. P-1 prepared by P.W. 7 Vadivelu, Sub-Inspector of Police, Traffic Investigation, who went to the spot at 10-00 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 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 contact 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 to 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 feet 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 required 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 feet when travelling at 20 miles per hour and within 25 feet if 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
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