1997 Supreme(SC) 1371

1997(9) Supreme 69
Supreme Court of India
S.B. Majumdar & M. Jagannadha Rao, JJ.
Union of India —Appellant
versus
United India Insurance Co. Ltd. & Ors. etc. etc. —Respondents
Civil Appeal No. 3033 of 1990
With
C.A. Nos. 3034-3048, 3050-3066 of 1990 and C.A. Nos. 7418-19 of 1997
(Arising out of SLP (C) Nos. 17291/97 & 2918/89)
Decided on 22-10-1997
Counsel for the Parties :
For the Appearing Parties : N.N. Goswami, K.N. Shukla, H.L. Agrawal, M.L. Jain, Sr. Advocates, Praveen Swarup, Satpal Singh, S. Wasim A. Qadri, P. Parmeswaran, Rajiv Sharma, K.K. Dhawan, K.S. Rana, Hemant Sharma, Y.P. Mahajan, A.D.N. Rao, A.K. Sharma, Rajiv Nanda, Fizani Husain, Ravindra Kumar, Rajiv Mehta, Yatendra Sharma, Ms. Manupriya Mittal, Ms. Indira Sawhney, Ms. Indu Goswami Ms. Kamakshi, S. Mehl­wal, Ms. Smitha Inna, Ms. Sushme Suri, K.N. Bhargava, Ms. Beena Pra­kash, G. Prakash, K.M.K. Nair, S. Srinivasan, Dr. K.S. Chauhan, M.K. Diwakaran Nambordiri, Advocates.

Very Important Points
1.  A public authority upon whom ­powers are conferred by statute to exercise discretion for benefit of the public can be said to be under a duty of care so that omission to exercise that power could be treated as negligence at common law giving a right to compensation.
2.  Omission on the part of the Central Government to take a decision whether or not to exercise powers under Section 13 of the Railways Act, 1890 can amount to a breach of a statutory duty giving rise to a cause of action for damages based on negligence.
3. At level crossings, because the Railways are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care on the ‘neighbourhood’ principle even if provisions in Section 13 (c) and (d) of the Railways Act are not attracted for want of requisition.
4. Claim for compensation is maintainable before the Motor Accident Claims Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort feasors, and if arising out of use of the motor vehicle.

Headnote:(i) Common Law—Duties of a motor vehicle driver at a railway level crossing—Absence of a board statutorily requiring the vehicle to ‘stop’ and conductor to ‘get down’—No duty to get out of vehicle—A duty to stop, see and hear, at unmanned level crossing—Driver must be deemed to be negligent if he did not stop vehicle and then see and hear. (Motor Vehicles Rules—Rule 100 introduced w.e.f. 1.7.1965).

       Held; the absence of a board statu­torily requiring the vehicle to “stop” and the conductor to “get down”, there was only an ordinary common law duty as applicable to prudent persons. This was a duty to “stop” “see and hear” and find out if any train was coming. There was no duty - in the absence of a board directing the driver or con­ductor - to get out of the vehicle, but there was certainly a duty to stop, see and hear, at the unmanned level crossing. If that was not done, there would clearly be negligence on the part of the driver. In facts, it has been so held by this Court, in a case under Section 304A, IPC that the driver must be deemed to be rash and negligent if he did not stop the vehicle and then see and hear. Inasmuch as in this case, the driver did not stop the vehicle at the unmanned crossing, it must in our view be held that he was guilty of negligence even though there was no curve or obstruction at the point. The Tribunal and the High Court were, in our opinion, justified in finding negligence on the cart of the driver. Of course, the High Court felt that the driver who must be deemed to be conscious that his own life was at stake could not be accused of criminal negligence in wanting to kill the passengers even if he was angry with their com­plaint of delay. The High Court thought that the case might be one where the driver took a risk which ought not to have been taken and the engine of the bus, for some unknown reasons, might have failed, while it was on the track. In any event, the finding of negligence of the bus driver does not call for interference. (Para 8)

       Now admit­tedly the writing on the sign board at the level crossing was moth eaten and no writing was visible. Hence in our view no special obliga­tions created by the rule, which were in addition to the common law requirements, can be said to apply. There was no notice as contemplat­ed by the rule which laid down an extra obligation on the conductor to get down from the vehicle as stated in clause (f) of Rule 100. (Para 7)

       (ii) Tort—Doctrine of identification or ‘imputation’—Defendant can plead contributory negligence of plaintiff or of an employee of the plaintiff where employee is acting in course of employment—That principle not applicable to a passenger in a vehicle—Negligence of driver of vehicle cannot be imputed to the passenger—Accident at unmanner railway crossing—A bus hit by an Express train—Driver of bus held negligent—Railways cannot plead contributory negligence on part of passengers of the vehicle.

       Held : There is a well-known principle in the law of torts, called the ‘doctrine of identification or ‘imputation’. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course of employment. But, it has been also held in Mills v. Armstrong (1988) 13 A.C. 1 (HL) (also called The Bernina case) that that princi­ple is not applicable to a passenger in a vehicle in the sense that the negligence of the driver of the vehicle in which the passenger is travelling, cannot be imputed to the passenger. It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negli­gence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent,- the driver and owner of the bus and, if proved, the railways - can all be joint tort-feasors. (Para 10)

       (iii) Railways—Common law duties—Statutory duties u/s 13 of Railways Act, 1890—Whether common law duties are concurrently enforceable alongwith or independently of statutory duties?—Held, claimants can at their choice sue the railways to enforce either or both types of these duties—Claimants can sue Railways concurrently for breach of common law or statutory duties or for breach of either of the duties. (Paras 12 & 13)

       (iv) Railways—Level crossings—Common law duties—Duty of care—Standard of foresight—Neigh­bourhood principle—Applicability.

       Held : The duty to care at common law is therefore based upon the danger­ous or perilous nature of the operations of the railways. (Para 14)

        In our view, therefore, because the Railways are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care on the ‘neighbourhood’ principle - even if the provisions in Section 13(c) and (d) of the Railways Act, 1890 are not attracted for want of requisition by the Central Governments. (Para 14A)

       (v) Railways—Level crossings—Common law duties—Not converting unmanned level crossing into a manned one with gates, having regard to the volume of rail and road traffic at the point—Absence of proper notice board—Whether Railway must be deemed to be negligent?—(Yes)—Need to have a constant appraisal of increase in volume of rail and road traffic at level crossings has been treated as a requirement of common law.

       Held ; The High Court has noticed that 300 vehicles pass through this point and six express trains but across this public road every day (obviously there must be other non-express or passenger trains and goods trains every day). The population is dense in Kerala and more so near Kalady, the pilgrimage, centre connected with Sri Jagadguru Adi Sankaracharya. In Liovd’s case 1932(1) All E.R. 1248 (CA), the Court of Appeal thought that even when the road traffic reached a level of 75 to 100 vehicles, the railways ought to have; if it was a public road, put gates and a watchman, as required by stat­ute. The High Court, in our view, rightly observed that the bus driver was from Tamil Nadu, he was not familiar with this place in Kerala State where the accident occurred, there was no caution board or other indication to show that the road was cutting across a railway line, and there were no gates or hand-rails to alert the passer-by. It was held that if the Railway had taken adequate precautionary measures such as, erecting hand rails or gates, a severe accident like this would not have taken place. In the absence of gates and caution board, the level crossing was held to be in the nature of a trap. (Para 17)

       For the aforesaid reasons, no case is made but by the appellant for disturbing the finding of the High Court that applying common law principles, the Railway must also be deemed to be negligent in not converting the unmanned level crossing into a manned one with gates,- having regard to the volume of rail and road traffic at this point. (Para 18)

       (vi) Railways—Railway Act, 1890—Section 13—Fences, screens, gates and bars—Discretionary statutory power—Level crossings—Omission of Railways to exercise power u/s 13(c) and (d)—Whether amounts to a breach of a statutory duty giving rise to a cause of action for dam­ages based on negligence?—(Yes)—Non-exercise of public law or statutory powers u/s 13(c) and (d) did create a private law cause of action for damages—Case falls within exception where statutory ‘may’ gives rise to a ‘Common law’ ought—Two pre-conditions laid down in Stovin v. Wise satisfied—All unmanned level crossings need not have gates with watchman—It all depends on volume of traffic at the point.

       Held : A duty of care at common law can be derived from the authority’s duty in public law to “give proper consideration to the question” whether to exercise power or not (p. 411). This public law duty cannot by itself give rise to a duty of care. A public body almost always has a duty in public law to consider whether it should exercise its powers but that did not mean that it necessarily owed a duty of care which might require that the power should be actually exercised. A mandamus could require future consideration of the exercise of a power. But an action for negligence looked back at what the authority ought to have done. Question is as to when a public law duty to consider exercise of power vested by statute would create a private law duty to act, giving rise to a claim for compensation against public funds (p. 412). One simply cannot derive a common law “ought” from a statutory “may”. The distinction made by Lord Wilberforce in Anns between ­‘policy’ and ‘operations’ is an inadequate tool with which to discover whether it was appropriate to impose a duty of care or not. But leaving that distinction, it does not always follow that the law should superimpose a common law duty of care upon a discretionary statutory power (p. 413). Apart from exceptions relating to individual or societal reliance on exercise of statutory power, - it is not reasonable to expect a service to be provided at public expense and also a duty to pay compensation for loss occasioned by ­failure to provide the service. An absolute rule to provide compensation would increase the burden on public funds. (Para 21)

       Whether there was a common law duty and if so what was its ambit must be profoundly influenced by the statutory framework within which the acts complained of were cone. The same was true of omission to perform a statutory duty. If the policy of the Act was not to create a statutory liability to pay compensation, the same policy should cer­tainly exclude the existence of a common law duty to care. (Para 22)

       But it is not as if that a statutory ‘may’ can never give rise to a common law duty of care (p. 414). There are exceptions in which a statutory ‘may’ could create a common law ‘ought’. (Para 23)

       The exceptions according to Lord Hoffman require two conditions to be proved to postulate a duty to perform a common law obligation within the statutory framework of a discretionary power. The two minimum pre-conditions for basing a duty of care on the exercise of a statutory power were firstly, that it would have been irrational not to have exercised the power so that there was a public duty to act and secondly that there were exceptional grounds for holding that the policy of the statute must have been to require compensation to be paid to persons who would suffer damage because the power conferred was not exercised at all or not exercised when it was generally ex­pected to be exercised. (Para 24)

       In our opinion, the steps mentioned by the legislature in the various clauses of Section 13 of the Railways Act, 1890 are in the words of Mason, J. steps which, even according to the legislature, individual members of society can not afford to take and are not capable of taking, having regard to the expense or expertise involved or for the reason that these steps have to be taken in or in respect of the property of the railways. Applying the principle laid down by Lord Hoffman, in Stovin v. Wise, there is in our opinion a clear indica­tion in Section 13(c) and (d) of the Railways Act itself that the affected parties are intended to be compensated because of the non-exercise of the aforesaid statutory powers by the railways. Thus the second condition as to a statutory intent of providing compensation is also satisfied. (Para 31)

       Once the two preconditions laid in Stovin v. Wise are satisfied both as to non-exercise of statutory powers which was irrational and as to the statutory intent of payment of compensation for injury or death due to running inherently dangerous services in respect of which individuals cannot afford to protect themselves - the conclusion is irresistible that the non-exercise of public law or statutory powers under Section 13(c) and (d) did create a private law cause of action for damages for breach of a statutory duty. The case falls within the exception where a statutory ‘may’ gives rise to a ‘common law’ ought. (Para 32)

       We make it however clear that Stovin v. Wise is not to be readily invoked in every case of non-exercise of statutory powers unless the two pre-conditions laid down in the judgment of the majority in Sto­vin v. Wise are satisfied. We should not also be understood as saying that all unmanned level crossings should have gates with watchman. It all depends on the volume of traffic at the point and the applicabili­ty of the principles stated above in Points 3 & 4. (Para 33)

       (vii) Motor Vehicles Act, 1988—Sections 163 and 168(1) (Corresponding to Sections 110(1) and 110-B of Motor Vehicles Act, 1939)—Jurisdic­tion of Motor Accidents Claims Tribunal u/s 110(1) r/ws 110-B—Acci­dent claim—A motor vehicle hit by a railway train—Death of 40 pas­sengers of motor vehicle—Whether Tribunal can pass an award u/s 110-B against the Railways also, in addition to an award against owner of vehicle, driver and the insurer?—(Yes)—Words ‘from any person’ in Section 110-E of 1939 Act, are referable to persons other than driver/owner or insurer of the motor vehicle—Words ‘use of motor vehicle’ are to be construed in a wide manner—Where no negligence on part of motor vehicle proved—Claim would go out of Section 110(1)—Case of exclusive negligence of railways—Not maintainable.

       Held; the Tribunal is clearly an alternative forum in substitution for the Civil Court for adjudicating upon claims for compensation arising out of the “use of motor vehicles”. This is further made clear from Section 110-F of the Act which states that no Civil Court shall entertain any question “relating to any claims for compensation which may be adjudicated upon by the Claims Tribunals”. In our view, when we are concerned only with Section 110(1) and when Section 110B does not and cannot control Section 110(1), a claim is entertainable by the Tribunal, if it arises out the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as joint tort-feasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the Civil Court not only against the owner/driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words “use of the motor vehicle” are also be construed in a wide manner. (Para 36)

       Further, Section 110-E of the Act provides for recovery of the compen­sation “from any person” as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer speci­fied in the second part of Section 110-B. Obviously the words ‘from any person’ are referable to persons other than the driver/owner or insurer of the motor vehicle. (Para 36)

       For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort feasors, and if arising out of use of the motor vehicles. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the Railways if its negligence in relation to the same accident was also proved. (Para 37)

       Further held, claims where it is alleged that the driver/owner of the motor vehicle is solely re­sponsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal. (Para 38)

       (viii) Common Law—Common law in India is to keep pace with socio-economic norms of our country. (Para 20)

       (ix) Practice and Procedure —Pleadings—When issue framed by trial Court is wide—Parties understood the scope thereof and adduced evi­dence—No prejudice—Contention regarding absence of a detailed plead­ing—Not permissible. (Para 11)