MINU B. MEHTA AND ANOTHER versus BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER

MINU B. MEHTA AND ANOTHER

BALKRISHNA RAMCHANDRA NAYAN AND ANOTHER

January 28, 1977

[A. N. RAY, C. J., M. H. BEG AND P. S. KAILASAM, JJ.]

Motor Vehicles Act, 1939-S. 95(v)(b)(i) and (ii)-Scope of -Claim for compensation in motor vehicle accidents-Proof of negligence of drilf15r-lf necessary.

Torts-Claim for compensation in motor vehicle accidents-Proof of negli-gence of drriver-lf necessary.

While the respondent was travelling in his car, the appellant's truck, driven by driver, hit the car and caused injuries to the respondent and damaged the car. The Claims Tribunal awarded compensation to the respondent, and the High Court upheld the Tribunal's award. In the course of the judgment the High Court, however, observed that every person has right to security and safety of his person irrespective of the fault or negligence or carelmsness and that every person hlli> right to claim compensation. irrespective of proof of negligence on the part of the driver. It further observed that the perimeters of liability in els. (i) and (ii) of s. 95(i)(b) must be held to he the same because in both, the liability of the owner of the driver exists and is made com-pulsorily insurable and that it could not be said that the legislature intended absolute liability in cases covered by cl. (ii) and not in cases covered by cl. (i).

HELD : Proof of negligence is necessary before the owner or the insurer could be held liable for payment of compensation in motor vehicle accident claims. The High Court's views are opposed to basic principles of the owner's liability for negligence of his servant and are based on compkte misreading of the provisions of Chapter VIII of the Motor Vehicles Act. [900 Fl 1. Before person can be made liable to pay compensation flilr any injuries and damage caused by ms action. it is necessary tha> the· perso'Il injured should be able to establish that he has some cause of action against the party responsible. In order to succeed in an action for negligence the plantiff must prove ( 1) that the defendanb had, in the circumstances, duty to take care and that duty was owed by him to the plaintiff and (2) that there was breach of that dut<y and that as result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the servant is proved to have acted negligently in the course of his employment. f895 C-Dl ~ 2(a) The puri:ose of making i'Ilsurance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability. The1 safeguard is provided· by imposing certain statutory duties, namely, the duty not to drive or permit car to be driven unless the car is covered by third party insurance. f895 Fl

(b) Under s. 95(1) (b )(i) of the Act, the policy of insurance must be i:nlicy which insures against any liability which may be incurred in resp~c' of death or bodily injury to any person or damage to any property of third party caused by or arising out of the use of the vehicle in public place. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is. therefore, obvious that if the owner has not incurred any liab;lity in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contem-plated arises under the law of negligence and under the principle of _vicarious liability. The provisions of the section do not make the owner or the rnsurance compa.ny Iia·bk for any bodily iniurv caused to third party arising out of the use of the vehicle unless the liability can be fastened on him. [896 D-F]

Bombay High Court dismissing their appeal against the judgment of the Additional Motor Accidents Claims Tribunal for Greater Bom-bay and confirming the award passed by the tribunal in favour of the r.es~~ndents and directing the Tribunal to decide the question of the liability of the Insurance Company on its application that its liability is limited to Rs. 20,000 under section llOE of the Motor Vehicles Act, } 939 referred to as the Act after giving opportunity to the parties.

The applicant in .t\pplication No. 727 of 1969 before the Motor Accidents Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the respondent in this appeal. On 14th April, 1969 at about 1.00 p.m. the respondent was driving his car No. MRC-4450 towards Fort side on Dr. Annie Besant Road. With him was sitting on the left side in the front seat Mala ti -M. Deshmukh, his nurse. The road has stone dividers in the middle of the road. When the car approached Lotus cinema the truck owned by the appellants and insured with the Insurance Company who we<e opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at high speed and da~hed against the right side of the car. Due to the impact the car was damaged and the 1st respondent and Malati M. Deshmukh were in-jured. Respondent 1 had to undergo treatment. He was operated on the day of the accident itself and was patient in his own Nursing Home for month till 15th May, 1969. According to him his right arm was operat~ and kept in plaster and that he had become perma-nently disabled in discharging his duties as surgeon and that he had incurred loss during the closure of the Nursing Home and loss of income due to permanent injury along with other claims. He claimed sum of Rs. 3 lakhs by way of general and special damages with interest thereon from the date of his application. The owners of the vehicle filed written statement refuting the claim of the applicant. According to them while the motor lorry was proceedin~ from Haji Ali towards \Vorli, they had taken all precautions to keep the lorry in road W0fthy condition and that at the. material time the axle brake ring of the motor lorry came out and the driver therefore lost control of the vehicle and because of this defect which can develop in ruR-ning car the driver lost control of the steering wheel. According to them the lorry prior to the accident was being driven at moderate spied with due care and caution. They contended that the accident did not occur on account of rash and negligent driving on the part of the driver. They also denied the claim of various items of compen-G sation made by the applicant.

The Motor Accidents Claims Tribunal framed four issues. The first 2 issues were whether the applicant had proved that the driver of· the lorry was driving the vehicle in rash and negligent manner and whether the opposite party had proved that at the time of the accident the axle brake ring of the motor lorry came out and the driver Jost control of the motor lorry. The other 2 issues related to the ques-tion as to whether the applicant received the in juries as result of this accident and whether he was entitled to the compensation claimed by him.

The applica~t ex.amined hll?-selj and Mal.ati M. Des?mukh :Wh? was travelling with bun at the tune_ of the accident regardmg the mc1-.dent. He also examined P. Ws 2 and 3, P. W. 2 nurse to prove his income from his profession and P.W. 3 doctor who treated him. On behalf of the appellant 6 witnesses .were examined in support of their case that the accident was due to 'mechanical failure and not due to any rashness or negligence on the part of the driver.

The Tribunal after elaborately discu~sing the oral' aml'documentary evidence adduced before it found that the accident was due to ;the rash and negligent driving of the driver of the lorry and the _cjffence set up that the accident was due to mechanical failure of th<'. fof ry was unacceptable.

The Claims Tribunal accepting the evidence of the applicant and Customs Officer, Mr. Jawa.kar, who was examined as D.W.4 on the side of the appellants, came ,,t-0 the conclusion. that when the doctor was in the traffic lane nearer· to the road divider the lorry crossed the road divider and hit the car. · The defence witness himself stated that the lorry came after crossing the central barricade. The lorry went @ff the track and went on the wrong side and collided with the on-coming car of the applicant who was in his car. Referring to his notes the witness stated that the right side of the lorry went and hit the right side of the car of the applicant. The portion of the lorry upto the driver's seat collided with the right side of the car. Both the wheels of the front side of the lorry had crossed the central reser-vation tract and so also the right rear wheel was on the wrong side and only the left rear wheel was just near the edge of the central reservation tract towards Lotus cinema. On the face of the evi--dence of the doctor and their own witness D.W.4 who was travelling in the lorry there could be no denying the fact that the lorry crossed the middle of the road. Relying on the evidence of the two witnesses as well as the doctrine of res ispa loquitur the Claims Tribunal rightly found that the applicant had established rash and negligent driving on the part of the driver and the lorry. The Accidents Claims Tribunal has also discussed elaborately the defence set up on behalf of the owners of the lorry and rejected it. The plea that was taken in the pleadings was that at the time of the accident "Axle Brake Ring" of the lorry came out. The expert examined on behalf of the owner, Jimmy Dara Engineer, D.W. 6, stated that he had never heard of any such part as axle brake ring and he has never seen such part. The owners subsequently explained that what they meant by "Axle Brake Ring" was drag link on the rod· enll. The Claims Tribunal also referred to the evidence of the expert examined on behalf of the owners a11d remarked that the nut on the pin could not be blown on' all of sudden and that the driver, unless he was negligent, could feel the change if t11ere was anything wrong with the drag link end and can stop the vehicle immediately. Rejecting the evidence of the driver and relying on the evidence of the expert on tlle side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 red and need not cover the distance which it did, the Claim Tribunal also found tllat the' defect which tlle defence witness, Motor Vehicle Illspector J>artapsingh Chavan, D.W.I. saw when he examined the

lorry on 22nd April, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on 22nd April, 1969. Criticising the conduct of the owners as unworthy of their status the Claims Tribunal totally rejected the defence.

Regarding the compensation the Claims Tribunal fixed the amount at Rs. 1,43,400i-together with interest at 6 per cent. This sum was apart from sum of Rs. 500 which was found payable to Malati M. D"5hmukh who had sustained injuries. The Claims Tribunal directed the owners as well as the insurers jointly to pay the amount, to the respondent Dr. Balkrishna Ramachandra Nayan. It alSo directed the op?Osite parties and insurers to pay Rs. 1000 as costs and Rs. 100 as costs of Malati M. Deshmukh. The Claims Tribunal fixed sum of Rs. 73,779 as the loss sus-tained by the doctor for period of 4 years from the date of the acci-dent. It also for subsequent period of 7 years fixed the future loss at Rs. 9,000 year and total amount of Rs. 63,000. In addi-tion it awarded sum of Rs. 5,000 for discomfort and inconvenience suffered by the doctor. Thus the total compensation that was granted amounted to Rs. 1,43,400. As already stated the interest was awarded from the filing of the application till payment.

The insurance company as well as the owners of 'the lorry pre-ferred appeal against the award of the Tribunal iii'i;.ppeal No. 449 .of 1975 before the High Court of Bombay. Though the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs. 20,000. The High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming frG;'.11 the opposite direction. Agreeing with the Tribunal it found that the driver was negligent. The High Court concurred with the reasons and findings of the Tribunal. It also held in the cjrcumstances of the case that the principle res ipsa loquitur applied. The High Court also rejected the defence taken by the owners that the injury was due to mechanical defect and not due to the negligence. After referring to the evidence and the reasoning of the Tribunal on the defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners. The High Court regarding the defence raised found itself in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negligent.

Regarding the quantum of damages the High Court expresseu its opinion tliat the Tribunal had made best efforts and tri~d to determin~ the compensation in iust manner on the facts and circumstances of the case. It confirmed the amount as awarded by the Tribunal and dismissed the appeal':" The High Court dismissed the appeal of the owners and the insurance company and confirmed the award passed by the Tribunal. But it gave..Jiberty to the insurance company to apply to the Claims Tribunal on depositing Rs. 20,000 with interest from the date of the application to the date of the deposit for deter-mination of the question that the liabiliy of the insurance company is limited only to Rs. 20,000. The High Court directed the Tribunal to decide the question of the liability of the insurance company on its application under section 11 OE by giving opportunity to the parti!:S .to put forward their cases.Insurance company was directed to pay the costs of all the par-ties. It also provided that the claimant was at liberty to withdraw Rs. 20,000 with interest when deposited by the insurance company. The order also made it clear that the right of the applicant to recover the balance of the awarded amount from the other party or from the insurance company will not in any way be affected.

The appeal to this court is preferred by the owners. The insu-rance company is impleaded as the second respondent in the appeal before us. ·Mr. Nariman, the learned counsel appearing for the owners sub-mitted that the High Court did not hear arguments on the question whether the accident took place due to rash and negligent driving of the lorry a,nd therefore the question will have to be gone into by this Court or remanded for fresh disposal. We find that the High Court has given clear finding in paragraph 30 of its judgment that the Tri-bunal rightly disbelieved the plea and held that it was the driver who was negligent and that they fully concur with the reasons and findings of the learned Member of the Tribunal. In the face of the clear finding we are unable to accept the plea of the learned counsel that this question was not gone into by the High Court. We find ourselves in complete .agreement with the finding of the Tribunal and the High Court.that it was due to rash and negligent driving of the lorry that the car in which th<> applicant and Malati M. Deshmukh were travel-ling was hit causing injuries to both of them. We accept the testi-mony of the doctor and D.W. 4 Jawakar that the lorry crossed the Toad dividers, ran into the wrong side and hit the car which was driven by the applicant. We have no hesitation in accepting the concurrent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver. We have also no hesitation in rejecting the testimoney of the defence that there was some mechanical defect which resulted in the tie rod end breaking. We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert des-troys the plea ·of any mechanical defect set up by them. Jn this · connection we may also point out that in order to succeed in 9-206SCI/77 .

, defence that the accident was due to mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in roadworthy condition. No such attempt was made to establish that all necessary precautions were taken to keep t~e lorry in roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners . In order to sustain plea that the accident was due to the mechani-cal defect the owners must raise plea that the defect was latent ·and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to latent defect which is not discoverable by reasonable care. The law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons.('). In that case the lorry driver applied the brakes of the lorry on steep hill but they failed to operate. As result the Jorry struck and killed man who was emerging from parked vehicle. The defence was that brake failure was due fo latent defect not discoverable by reasonable care on driver's part. It was found· that the lorry was five years old and had done at Jcast 150,000 miles. The brake9 were hydraulically operated. It was also found after the accident that the brake failure was due to steel pipe bursting from .7mm. to .lmm. The corrosion had occurred where it could not be seen except by removing the pipe com-pletely from the vehicle and this had never been done. Expert evi-dence showed that it was not normal precaution to do this if, as was the case, the visible parts of the pipe were not corroded. The cor-rosion was unusual and unexplained. An expert witness said it must have been due to chemical action of some kind such as exposure to salt from the roads in winter or on journeys near the sea. The House of Lords held that the burden of proof which lay on the de-fendants to show that they had taken all reasonable care had been discharged. The defect remained undiscovered despite due care As the evidence had shown that something unusual had happened to cause this corrosion it was necessary for the defendants to show that they neither know nor ought to have known of any unusal occurrence to cause the breakdown. (See Bingham'? Motor Claims Cases Seventh Ed., p. 219).

The burden of proving that the accident was ijue to mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remain~d hidden. In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in run-nincr vehicle resulting in the driver's losing control of the steering wh;el. Though it was stated that all precautions were taken to keep the lorry in roadworthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is latent defect and could not have been discovered by the use of reasonable care. This lack of plea is in addition to the Jack of evidence and the fact that the defence set up has been rightly rejected by the Tribunal.

(1) (19701 A.C.282(1969] 3 All E.R. 756

Mr. Nariman then submitteQ_ that the quantum of compensation awarded was very high. He submitted that even according to the figures relied on by the High Court it was in error in coming IC? the conclusion that for. period of 4 years from the date of the accident the claimant has suffered damage of Rs. 73,779. The learned . counsel submitted that though during the first year there was loss of Rs. 3,530 in subsequent years he earned various amounts and in one year he earned Rs. 7,981 which would mean that during sub-sequent years his loss would not have been more than Rs. 10,000 and as admittedly the Nursing Home was kept as going concern the award of Rs. 10,000' per year for the four years would be very high. We have considered this contention carefully but taking all the drcum-stances into account we do not feel called upon to interfere with the quantum arrived at by the Tribunal and confirmed by the High Court. · The learned Counsel also submitted that the provision for Rs. 63,000 for the 7 years as the likely loss due to the doctor's disability is also very high. In this case also we po not feel called upon to interfere with the quantum arrived at by the Tribunal as wel! as the High Court. Lastly, the learned counsel submitted that in any event the interest awarded from the date of the application is not justified. We do not think we will be justified in interfering with the amount of interest awarded by the High Court from the date of the filing of the application. On the above findings we confirm the award passed by the Claims Tribunal in favour of the applicant/respondent No. 1 for Rs. 1,43,400 with interest at 6% per annum from the date of the filing of the appli-cation and also sum of Rs. 500 granted to Malati M. Deshmukh . and the costs awarded. The liability of the owners and the insurance company will be joint and several and the respondent would be at liberty to proceed against either or both of them to realise the amount awarded in his favour.

We have now to consider the direction given by the High Court regarding the determination of the liability as between the insurance company and the owners. The owners and the insurance company were represented by the same counsel before the Tribunal and before the High Court the learned counsel on behalf of the insurance com-pany pleaded that its liability is limited to Rs. 20,000 only. The High Court has given liberty to the insurance company to apply on depositing Rs. 20.000 with interest as directed for determination of the question that the liability of the insurance company is limited to Rs. 20,000. The High Court also dire~ted the Tribunal to decide the liability of the insurance company on the insurance company filing such an application after giving notice to all the parties. The insu-rance company has not appealed against the judgment and decree of the High Court and we see no reason for interfering with the order. On the insurance company complying with the directions of the High Court by depositing Rs. 20,000 with interest as specified the matter will be remitted to the Tribunal for determination of the question whether the liability of the insurance company is limited to Rs. 20,000 only. It is inade clear that so far as the award made in

favour of the ~pplicantlrespondent is concerned he will be at liberty to proceed agamst t_he owners as well as the insurance company jointly and severally. With these directions the appeal is dismissed with the cost of the first respondent.

This should normally conclude the judgment but we feel it de-sirable that we must deal with the question of law that has been dealt with at considerable length by the High Court as to whether it is incumbent on the claimant to prove negligence before he would become entitled to compensation. The High Court after concurring with the findings of the Tribunal and holding that the driver was negligent proceeded to state that it would not have been necessary for them to say anything more but for the fact that taking into account the importance of matter and in public interest it would be appropriate to express its view that it is not necessary to prove negli-gence on the part of driver before claiming compensation.

Both the learned Judges have written lengthy judgments fuJ~y discussing the matter and have come to the conclusion that the fact of an injury resulting from the accident involving the use of car on the public road is the basis of liability and that it is not neces-sary to prove any negligence on_the part of the driver. We find that Bench of the Andhra Pradesh High Court has held in Haji Zakaria and Others v. Naoshir Cama and others (1) that the liability of the in-sured and consequently of the insurer· to compensate third party dying or being injured on account of the use of the insured vehicle is irrespective of whether the death, injury etc. has been caused by rash and negligent driving. Though this question does not arise in this appeal as the two High Courts have expressed an opinion which in our view has no basis either in the Legislative history or on construction of the relevent provisions of the Motor Vehicles Act we feel it necessary to state the position of law.

The liability of the owner of the car to compensate the victim in car accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negli-gent. The number of the vehicles on the road increased phenu-menally leading to increase in road accidents. To· remedy the defect various steps were taken. In England the owners of the vehicle voluntarily insured against the risk of injury to other road users. With the increase of traffic and accidents it was found that in number of cases hardship wa~ caused where the person inflicting the injury was devoid of sufficient means to compensate the person afflicted. In order to meet this contingency the Road Trame Act, 1930, The Third Parties (Rights against Insurers) Act, 1930 and the Road Traffic Act 1934 were enacted in England. system of compulsory msurance ~as enacted by the Road Traffic Act, 1930. Its object was to reduce the number of cases where judgment for personal injuries

obtained against motorist was not met owing to the lack of means of the defendant in the running,dciwn action and his failure to insure against such liability. · It is sufficient to state that compulsory insurance was introduced to cover the liability which the owner of the vehicle may incur.

The Indian law introduced prov1s10ns relating to compulsory insurance in respect of third party insurance by introducing Chapter VIII of the Act. These provisions almost wholly adopted the pro-visions of the English law. The relevant sections found in the three English Acts, Road Traffic Act, 1940, the Third Parties (Right against Insurers) Act, 1930 and the Road Traffic Act, 1934 were incorporated in Chapter VIII. Before person can be made liable . to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or iniured should be able to establish that he has some cause of action against the party responsible. · Causes of action may arise out cif actions for wrongs under the common law or for breaches of duties laid down by statutes. In order to succeed in an action for negligence the plaintiff must prove ( 1) that the defendant had in the circum-stances duty to take care and that duty was owed by him to the plaintiff, and that (2) there was breach of that duty and that as result of the breach damage was suffered by the plaintiff. The master also becomes liable for the conduct of the servant when the :;ervant is proved to have acted negligently in the course of his employment. Apart from it in common law the master is not liable for as it is often said that owner of motor car does not become liable because of his owning motor car.

The purpose of enactment of Road Traffic Acts and making insur-ance compulsory is to protect the interests of the successful claimant from being defeated by the owner of the vehicle who has not enough means to meet his liability. The safeguard is provided by imposing certain statutory duties namely the duty not to drive or permit car to be driven unless the car is covered by the requisite form of third party insurance. Section 94 of the Act, provides that no person shall use except as passenger or cause or allow any. other person to use motor vehicle in public place unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, policy of insurance complying with the requirements of the Chapter. Section 95 of the Act is very important and that specifies the requirements of policies and limits of liability. Section 95 ( 1) (a) and (b) of the Act arn extracted. They run as follows :

"95. (1) In order to comply with the requirements of this Chap-ter, policy of insurance must be policy which-

(a) is issued by person who is an authorised insurer or by co-operative society allowed under section 108 to transact the business of an insurer, and

(b) insures the person or .classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) ~gainst any liability which may be incurred by him m respect of the death or of bodily injury to any person or damage to any property. of third party caused by or arising out of the use of the vehicle in public place;

(ii) against the death of or bodily injury to any passenger of public service vehicle caused by or arising out of the use of the vehicle in public place :

Under section 95 ( 1) (b) (i) of the Act it is required that policy of insurance must be policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any persOJ! or damage to any property of third party caused by or arising out of the use of the vehicle in public place. It may be noted that what is intended by the policy of insurance is insuring person against any liability which may be incurred by him. The insurance policy is only to cover the liability of person which he might have incurred in respect of death or bodily injury. The accident to which the owner or the person insuring is liable to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is therefore obvious that if the owner has not incurred any liability in respect of death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contemplated arises under the law of negligence and under the principle of vicarious liability. The provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to third party arising out of use of the vehicle unless the liability can be fastened on him. It is significant to note that under sub-clause (ii) of section 95(1) (b) of the Act the policy of insurance must insure person against the death or bodily injury to any passenger of public service vehicle caused by or arising out of the use of the vehicle in public place. Under section 95 ( 1) (b) clause (ii) of the Act the liability of j:he person arises when bodily injury to any passenger is caused by or use of the vehicle in public place. So far as the bodily injury caused to passenger is concerned it need not be. due to any act or liability incurred by the person. It may be noted that the provisions of sec-tion 95 are simHar 1930, the rele.vant portion o w to sectionf36h( 1c ~ )h C!f 1s the to t Ehngliffsh _e ect t at po icy o Rohad Traffi1~ Actf, . insurance must be policy which insures person in respect of any liability which may be incurred by him in respect of death or bodHy injury to any person caused by or arising out of the use of the vehicle on road. The expression "liability" which may be incurred by him" is meant as covering any liability arising out of the use of the y~hicle. It will thus be seen that the person must be under liability and that liability alone is cover~ by the insurance policy.

Section 96 of the Act also makes the position clear. It provides that when judgment in respect of such liability as is required to be covered by policy is obtained against any person insured by the policy, then the insurer shaµ -pay to the person e~titl_e~ t~e bene~t <;>f the decree as if he were Judgment-debtor. The liability ts thus !itrut-ed to the liability as is covered by the policy.

The main contention of Mr. Hattangodi, who supported the view of the High Court that negligence -need not be proved is that Chapter VIII of th_e. Act is consolidating and amending Act relating to motor· vehicles and their use on public place and as such it contains the entire ·Jaw, procedural as well as substantive, and that the co=on law or law of torts is no more applicable and if death or bodily injury arises out of the use of motor vehicles in public place liability arises. Strong reliance was placed by him on section llOA of the Act which provides for application for compensation arising . out of an accident to the Claims Tribunal. The learned counsel would submit that under section 11 OB the Claims Tribunal, after holding an in-quiry, may make an award determiuing the amount of compensation · ·which appears to i_t to be just _and specifying _the person or persons to whom the compensation shall be paid. According to counsel when an injury is caused by the use "of the vehicle in public place the Claims Tribunal is at liberty to award an amount of compensation which appears to it to be just.

This plea ignores the basic requirements of the owner's liability and the claimant's right to receive compensation. The owner's liabi-lity· arises out of his f'!ilure to discharge duty cast on him by law . .The right to receive compensation can only be against person who· is bound to compensate due to the failure to perform legal obliga-tion. If person is not liable legally he is under no duty to compen-sate any one else.. The Claims Tribunal is tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of. torts. If under the law person becomes legally liable then the person suffering the injuries is entitled to·be compensated and the Tribunal · is authorised to determine the amount of compensation which appears to be just. The plea that the Claims Tribunal is entitled to award compensation which appears to be just when it is· satisfied on proof of injury to third party arising out of the use of vehicle on public place withou_t _proof of negligence if accepted would lead to strange -, results. · -

Section 110(1) of the Act empowers the State Government to constitute one or more Motor Accidents Claims Tribunals for such area as· may be specified for the_ purpose of adjudicating upon claims . for compensation in respect of accidents involving the death or bodily ' fojury to persons. The power is optional and the State. Government may not constitute Claims Tribunal for certain areas. When claim includes claim for compensation the claimant has an option to make his claim before the Civil Court. Regarding claims for compensation therefore in certain cases Civil· Courts also have juris-diction. If the contention put forward is accepted so far as the Civil

-------..

Court is co~cerned it would have to determine the liability of the owner on the basis of common law or torts while the Claims Tribunal can award compensation without reference to common law or torts and without ~o~in~ _to th~ conclusion th.at the ?Wner is liable. The concept o! owners hab1l1ty without any negligence 1s opposed to the basic prin-ciples of law. The mere fact that party received an injury arising out ~f the use of vehicle in public place, cannot justify fastening liabi-llty on the ow11er. It may be that person bent upon committing suicide may jump before car in motion and thus get himself killed. We cannot perceive by what reasoning the owner of the car could be made liable. The proof of negligence remains the lynch pin to recover compensation. The various enactments have attempted to mitigate possible injury to the claimant by prov!iding for payment of the claims by insurance.

In Halsbury's Laws of England, 3rd Ed., Vol. 32, at paragraph 751 at p. 366 the nature of insurance required is stated as follows :-

"The conditions to be fulfilled in order to render the use of motor vehicle lawful are ( 1) that there must be policy of insurance in force in relation to the use of the vehicle on road, and (2) that it must be policy complying with the ' relevant statutory requirements."

At paragraph 752 at page 366 the general nature of liabilities re-quired to be co_vered are stated as under :

"In order to comply with the statutory requirements, policy must provide insurance cover in respect of any liabi-lity which may be incurred by such person, persons or classes of persons as are specified in the policy, in respect of the death of, or bodily injury to, any person (subject to specific exceptions) caused by, or arising out of, the use of the vehicle on road."

The authorised insurers issuing policy pursuant to the statutory requirements are obliged to indemnify the person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or classes of persons.**':'" (Paragraph 758 at p. 369). These passages clearly indicate that the nature of the liability required to be covered is the liability which may be incurred by or arising out of the use of vehicle on road by the person.

person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case, of motor accident the owner is enly liable for negligence and on proof of vicarious liability for the acts of his servant. The necessity to p1ovide effective, means fo~ compen~.a.~ing the victims in mot?r ac:ci-dents should not blind us m determmmg the state of law as 1t exists today.

Justice Vaidya in thi.s iudgment under appeal after referring to various de~isions expressed his view as follows :-

"It is not necessary to discuss all these cases because, in any view, in none of those cases was the question agitated

as to what exactly was meant by tort in the context of auto-mobile accidents and injuries resulting therefrom, for which more often than not human minds, hands or legs are not always accountable, in the later half of the twentieth century. The question has engaged the minds of jurists all over the common law world .... "

The learned Judge proceeded further to observe that whether we apply the test of torts or not the liability to pay compensation arises when the injuries are caused by the use of the motor vehicle and the Tribunal can adjudicate upon the liability and determine just com-pensation. The learned Judge further observed : "In my opinion, public good requires that everyone injured, V'iz., by the use of motor vehicle, must immediately get compensation for the injury. Every person has right to safety and security o~ his person irrespective of fault or neg!igence or carelessness or efficient functioning of the motor vehicle. Every person has right to claim compensation so that is the only way of remedying the injury caused to him in modern urbanised, industrialised and automobile ridden life."

In separate. judgment Justice Mridul has expressed himself in the same tenor. The learned Judge after referring to section 95 (1) (b) (i) and ( 1) (b )(ii) of the Act observed that perimeters of liability in clauses (i) and (ii) must be held to be th.e same because to both the liability of the owner or the driver exists and is made compulsorily insurable. The learned Judge while noting the difference in the word-ing of the two clauses observed that it' is incon'ceivable that the legis-lature. would intend absolute liability in cases covered by clause (ii) and not in cases covered by clause (i).

The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owner's liability for negligence of his servant and is based on complete misreading of the provisions of Chapter VIII of the Act. The High Court's zeal for what it considered to be protection of public good has misled it into adopting course which is nothing short of legislation.

Equally unacceptable is the view of the Bench 'of the Andhra Pradesh High Court in Haji Zakaria and others v. Nashir Cama and others C), wherein the court concluded without any hesitation that the liability to compensate arises when death or bodily injury to any per-son or damage to any property Qf third party is caused by or arisingi out of the use of the vehicle in public place and to infer the qualifiea-tions or limitations that such death or bodily injury should have been 40aused before such liability arises only on account of rash nnd negligent driving would amount to introducing something which is not there and would be violating and transgressing the clear provisions of the statute and intention of-the legislature.

(l) A. I. R. 1975 A. P. 171.

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The Patna High Court in New India Assurance Co. Ltd. v. Sumant Devi and Others(') held that the liability of the insurance company is absolute but is only limited to the extent provided by the insurance policy. As against this view all the other High Courts have held that the liability to compensate arises only on finding of negligence. It may not be out of place to mention that those automobile accidents are sub~ ject to ~he law of negligence. Modern proposals consistent1y favour the Social Insurance model under which benefits are payable directly by the fund without any reference at all to the injurer while retaining an option for the victim to claim either limited benefits on non-fault basis or full damages for negligence. Consistent with this line of thinking is the judgment of the Kerala High Court in Kesavall Nair v. State Insurance Officer(2), where Justice Krishna Iyer expressed himself thus : "Out of sense of humanity and having due regard to the handicap of the innocent v-ictim in establishing the negligence of the operator of the vehicle blanket liability must be cast on the insurers." Modern legislation has also provided insurance cover for all air and rail passengers and recently by amendment of section 95 of the Act against death or bodily injury to passengers of public service vehicle caused by or arising out of the use of vehicle in public place.

In recent judgment of Madras High Court Division Bench is A.AO. Nos. 607 of 1973 and 296 of 1974 M/s. Ruby Insurance Co. Ltd. v. V. Govindaraj and others, delivered on 13th December, 1976, has suggested the necessity of having social insurance to provide cover for the claimants irrespective of proof of negligence to limited extent say Rs. 250 to Rs. 300 month. It has also suggested that instead of Jump sum payment which does not often reach the claimants regular monthly payment to the dependants by the nationalised insurance company or bank would be desirable. Unless these ideas are accepted by the legislature and embodied in appro-priate enactments Courts are bound to administer a.nd give effect .. to the Jaw as it exists today. We conclude by statmg that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is necessary. before the owner of the insurance company could be held to be liable for the payment of compensation in motor accident claim case.

But as we have found that the vehicle owner was liable for negli-gence of the driver and have upheld the amount of damages awarded, we dismiss this appeal. with cost to the first respondent.

Appeal dismissed.