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High Court of Madhya Pradesh
Shivdayal & S.P. Bhargava, JJ.
Manjula Devi Bhuta and another
Vs.
Manjushri Raha & others
Misc. F.A. No. 219 (heard with M.F. As. Nos. 203, 218, 220, 222 & 223) of 1965
Decided on : 30-8-1967
The accident occurred on 10-4-1962. The limitation for filing a claim-application prescribed under section 110-A of the Motor Vehicles Act is sixty days, The Court of the Additional District Judge was closed for long vacation from 9th May, 1962, upto 18th June, 1962. The application for claim was made on 19th June, 1962. It was contended that the application was barred by limitation, and that, the Tribunal was not right in condoning the delay under section 110-D (3) of the Act.
Held: There is no doubt that the Claims Tribunal acts as a persona designata and not as Civil Court. But where the functions of the Tribunal Under section 110 are assigned to the Presiding Officer of an ordinary Civil Court, in the absence of any specific provision to the contrary the rules of practice of that Court will apply and he will not function as a Tribunal on the days when his Civil Court is closed, The application was within time as it was presented on the reopening day after the long holidays. [Para 8]
The Claim, Tribunal was right in giving tae applicant the benefit of section 110-D (3) of the Act in these circumstances. 1968 JLJ 153 relied on. [Para 9]
(2) Tort - Negligence-what is-Buses coming from opposite directions- duty of the drivers to avoid accident-obstacle on left side of one bus – its possible swerving towards right should be considered by the other driver-failure to do so is negligence-degree of care varies with degree of ensuing danger-drivers of both the buses when held negligent.
Negligence is the omission to do something which a reason able 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. (1856) 11 Ex. 781 relied on.
The standard to determine whether a person has been guilty of negligence is the conduct of a prudent man in the particular circumstances ; the amount of care, skill, diligence or the like, varying according to the particular case. The amount of care, or the like, required [may thus vary to the greatest extent, while the standard 'itself-the care, skill or diligence, of a careful, skillful or diligent man in the particular circumstances, remains the same. The degree of the care which a man is required to use in a particular situation in order to avoid the imputation of negligence varies with the obviousness of risk. If the danger of doing injury to the person or property of another by persuasion of a certain line of conduct is great, the individual who professes to pursue that particular course is bound to use great care in order to avoid the foreseable harm. The more serious the consequences it care is not taken the greater the degree of care which must be exercised. [Para 13]
When the driver of a vehicle notices that there is obstacle on the left of another vehicle coming from the opposite direction, he necessarily anticipates that the latter will swerve a little towards the right to escape from the hurdle. This is ordinary sense which every driver acquires. The driver of the bus coming from the other direction was, bound to anticipate this. If he does not do so and does not stop his bus or lowers his speed so as to allow the other bus to pass freely, he acts recklessly and is negligent.
Where drivers of the two buses persist in driving on the metalled road each declining to make room for the other to pass by, both must be held liable. (1888) 13 A.C.I, ILR 1939 Mad. 306 and (l949) A.C. 155 relied on. [Para 16]
That a particular bus is running late is no ground to justify the taking of the risk of being negligent (1939) 2 All ER 142 and 1966 A.C.J. 42 relied on. [Para 17]
As neither of the drivers tried to avoid the collusion, both were responsible for the accident. [Para 19]
(3) Tort-Negligence-damages-computation of amount-principles for.
In estimating the amount of compensation in case of death caused by negligence, regard has to be had to several factors, such as (i) income of the deceased; (2) estimate of his own personal expenses; (3) the number of years for which he would have continued to earn; and (4) deductions to be made for any pecuniary benefit derived by the dependent in consequence of the death of me deceased. (1942) A.C. 601 and ILK 1939 Mad 30b relied on. [Para 21]
The measure of damages is the pecuniary loss which has been suffered by each dependant, and nothing can be given by way of solatium or as sentimental damages. (1942) A.C. 601 relied on. [Para 29]
(4) Civil P.C. 1908 - O.41 R.22 - Motor Vehicles Act.1939-S.110-D - Motor Accidents Claims Tribunal Rules 1958 (M.P.) - R.14 -cross-objections. In appeal against award of the Claims Tribunal-are maintainable-rule 14 not exaustive.
(5) Motor Vehicles Act, 1939 – S.110-D - appeal against award of Claims Tribunal-cross-objections maintainable - Civil P.C. 1908 - O.41 R.22.
(6) Motor Accidents Claims Tribunal Rules 1958 (M.P.) R. 14-rule is not exaustive.
(7) Practice-Rules of procedure-jurisdiction conferred by special statute - ordinary rules of practice and procedure of the Court when applicable.
As soon as the High Court becomes seized of an appeal against an award given by the Claims Tribunal, even if the appellate jurisdiction is conferred by a special statute, the rules of practice and procedure of the High Court applicable to civil appeal will, in the absence of any specific rule to the contrary, govern the appeal, As such the cross-objections filed in such appeal are tenable 43 I. A. 192 and (1953) SCR 1028 relied on. [Para 27]
Rule 14 of the M. P. Motor Accident Claims Tribunal Rules, 1958, is not exaustive and does not exclude the operation of Order 4 I. R 22, C. P. C. [Para 28]
(8) Motor Vehicles Act, 1939 - S.110-B - person liable to pay compensation - death of a passenger in a collision of two buses-driver of the other bus in which he was not travelling responsible for the accident-proprietor and insurer of the bus in which the passenger was not travelling is not exornerated.
The accident occurred by collision of two buses coming from different directions and two passengers travelling in one of them died. It was c0ntended that the entire liability to pay compensation was of the proprietor and insurer of the bus in which the two deceased passengers were travelling.
Held: There is no substance in the contention as there is no law to support it. Whether the insurer of a passenger bus is liable for compensation awarded to the defendants of a passenger who was killed in the accident, even if there was no negligence on the part of the bus driver, is altogether a different question. But merely because of such liability, the proprietor and insurer of the other bus, which by the negligence of the driver, collided against the former, are not exonerated. [Para 31]
(9) Practice-pleadings-plea not raised-covered by issues by implication-plea in knowledge of the parties-relief should be given on its basis-matters to be considered.
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleading would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence that the Court has to consider in dealing with such an objection is did the party know that the matter in question was involved in the trial, and did they lead evidence about it ? AIR 1966 SC 735 relied on. [Para 32]
(10) Motor Vehicles Act, 1939 - S.110-D - appeal before the High Court against award of Claims Tribunal-provisions of O. 41, R. 33, C. P. C. apply.
(11) Civil P. C. 1908 - O.41 R.33 - appeal before the High Court under Motor Vehicles Act -provisions apply-party not filing an appeal-order when may be passed in its favour.
In the absence of any other rule to the contrary, Rules 30 to 34 of the Civil PC., necessarily apply to a judgment of the High Court in an appeal under Section 110-D of the Motor Vehicles Act.
Rule 33 is not confined to any particular class of cases and the appellate Court has extensive jurisdiction to interfere in favour of the non-appealing parties in order to do substantial justice. It enable the appellate Court to use it in any propel case so as to prevent justice: being defeated, even in favour of a party who has not appealed or filed cross-objections. But the rule must be exercised with discretion. 1949 FCR 367, AIR 1965 SC 1 74, AIR 1963 SC 1516 relied on; [Para 3]
(12) Motor Vehicles Act, 1939-Ss.96 and 95-liability of an insurer - limit of - scope of sections 96 and 95.
The limit of liability of an insurer in respect of third party risks is prescribed in section 96 (1) of the Act, so that: (a) where the sum assured is not specified, or the specified sum is less than the sum payable under section 95 (2) of the Act, the maximum liability will be that as laid down in section 95(2); and (b) if the sum specified in the policy as payable thereunder excerds the sum payable under section 95 (2), the maximum liability shall be the sum specified in the policy. Sub-section (4) of section 96 does not deal with the liability of the insurer but it confers a right upon the insurer to recover an amount from the insured. AIR 1964 SC 1746 referred to, [Para 41]
An insurer is not liable to pay more than Rs. 20,000/-. The insurer is not liable to pay Rs. 2,000/- in respect of an individual passenger in addition to this limit. AIR 1966 Punj. 288 relied on. [Para 43]
(13) Motor Vehicles Act, 1939-Ss.110-D and 96 (2)-right of appeal against award of Claims Tribunal-insurer when a party aggrieved-scope the appeal by an insurer.
It is true that the only defences open to an insurer are those enumerated in section 96 (2) and it ii also true that if any of those grounds is taken before the Tribunal and the insurer is aggrieved by its decision on it, it has a right of appeal. But where the tribunal, by virtue of section 110-B of the Act specifies an amount which shall be paid by the insurer, and the insurer has a grievance against it on the ground that it exceeds its liability under the law, he is certainly a person aggrieved within the meaning of section 110-D and has a right of appeal. The insurer certainly cannot, in the appeal, question the correctness of the finding of the Tribunal as to the manner in which the accident happened, or its estimate of compensation awarded, or the liability of the insurer. But it can certainly challenge the correctness of the award, if is in contravention of section 96 (1) of the Act. AIR 1959 SC 1131, AIR 1961 Punj. 190 and AIR 1962 Mysore 17 referred to. [Para 44]
(14) Tort-Negligence- 'contributory' and' composite' negligence – distinction -apportionment of damages - Court can make only in case of contributory negligence-no question of apportionment arise in case of composite negligence
(15) Motor Vehicles Act, 1939-S. 110 (B) - passenger killed in a collision of two buses -drivers of both buses negligent - persons claiming compensation - entitled to recover from both - amount of compensation cannot be apportioned proportionate to the negligence of the drivers.
Contributory negligence applies solely to the conduct of the plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning.
It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damages. But, in a case whether there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. [Para 47]
Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as "injury by composite negligence". [Para 48]
Where negligent acts of two or more independent persons have between them caused damage to a thud, the sufferer is not driven to apply any analysis to find out who he can sue. It is no Concern of his whether there is any duty of contribution of indemnity between those persons, though in any case he cannot recover in the whole more than his whole damage. The principle of contributory negligence is not applicable in such a case. [Para 48]
Section 110-B of the Motor Vehicles Act enjoins the Claims Tribunal to make an award (1) determining the amount of compensation which appears to it to be just; (2) specifying the person or persons to whom compensation shall be paid and (3) specifying the amount which shall be paid by the insurer.
Where as a result of a collision between two motor vehicles, a person, other than their drivers, is injured, the tribunal will not fix contribution as between persons liable (apart from specifying the liability of the insurer). ILR 1939 Mad. 306 relied on. (1939) 3 All ER 609 referred to. AIR 1963 Punj. 190 dissented from. [Para 49]
Shivdayal, J.
1. In a collision between the M.P. Speedways Bus No. M.P.G. 4307 and the Bhuta Bus Service Passenger Bus No. M.P.G.4615, Satyendra Nath Raha and Uma Shanker Shastri, both of whom were travelling in the former were killed. The Speedways Bus was going from Bhind to Gwalior. The Bhuta Bus was running in the opposite direction. The accident occurred on 10th April 1962 at about 11 a.m. near village Bidkhadi on the Gwalior-Bhind road.
2. The defendants of Raha (Smt. Manjusri Raha and two others) lodged before the Claims Tribunal a claim under section 110-A of the Motor Vehicles Act (hereinafter called the Act) for Rs.3,00,000 against Smt. Manjula Devi Bhuta, the proprietor; Sushil Kumar, the driver; and Oriental Fire and General Assurance Co. Ltd., the insurer of the Bhuta Bus and also against B.L. Gupta, the owner; Ram Swaroop, the driver; and the New India Insurance Co., the insurer of the Speedways Bus. The dependents of Shastri (Padmavati and others) likewise filed a claim for Rs.1,20,000 against the aforesaid proprietors, drivers and insurers of the two buses. As both the claims arose from the same accident, they were tried together by Shri D.B. Pawdey, 1st Additional District Judge, Gwalior, as the Claims Tribunal constituted under section 110 of the Act.
3. In its award, the tribunal held (1) that the dependents of Raha were entitled to Rs.60,000 as compensation from all the six non-applicants became it found that both the drivers were negligent; and (2) that the dependents of Shastri were entitled to Rs.40,000 as compensation from the proprietor, driver and the insurer of the Bhuta Bus, but not against the proprietor, or driver, or insurer of the Speedways Bus.
4. Aggrieved by the award made by the Claims Tribunal on the application of the dependents of Raha, the proprietor and driver of the Bhuta Bus preferred this appeal (M. F.A. No. 219 of 1965), joining all other parties as respondents. The insurer of the Bhuta Bus (Oriental), likewise, filed Miscellaneous 1st Appeal No. 223 of 1965. So also the proprietor and the insurer of the Speedways Bus filed Miscellaneous 1st Appeal No. 203 of 1965 and 218 of 1965 respectively. Against the award made by the Tribunal on the application of the dependents of Shastri, the proprietor and driver of the Bhuta Bus and also the insurer (Oriental) filed appeals Nos. 220 of 1965 and 222 of 1965 respectively. It may be mentioned just now that the dependents of Shastri did not file either an appeal against the proprietor, driver or insurer of the Speedways Bus, nor did they file any cross• objections, for enhancements of the amount of compensation. It is convenient to dispose of all these appeal by a common judgment.
5. Shri Dube strenuously contended that the application under section 110-A of the Act, which was filed before the Tribunal by the dependents of Raha, was barred by time. The period of limitation prescribed under sub-section (3) of that section is 60 days from the date of the occurrence of the accident. The accident occurred on 10 April 1962. The application was made on 19th June 1902. On the 9th June and thereafter upto the 18th June, the Civil Courts remained closed. They reopened on the 19th June after the summer vacation. The argument for the appellants is that since in the discharge of his functions as the Tribunal under the Motor Vehicles Act the Additional District Judge is not a Court, it is of no consequence that the Court of the Additional District Judge remained closed during the period from the 9th to the 18th June. Civil Courts were dosed from 7th May to 16th June 1962 by virtue of a notification of the High Court under section 21 of the M.P. Civil Courts Act, 1958. The 17th June was a Sunday and the 18th June was a general holiday. The Claims Tribunal condoned the delay on the ground that the applicants' belief that they could present the petition on the reopening of the Court was a sufficient cause within the meaning of the proviso to section 110-A
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