Madhya Pradesh High Court
Maniklal Dubey vs Mohd. Ismail And Ors. on 27 June, 1997
Equivalent citations: 1999(1)MPLJ222
ORDER S.K. Dubey, J.
1. These appeals under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') have been filed by the Claimants aggrieved of the common order dated 10-1-1995, passed in Claim Case No. 53/94, by IInd Additional Motor Accidents Claims Tribunal, Mandla (Tribunal) whereby the applications under Section 166 of the Act for compensation have been dismissed.
2. The brief facts giving rise to the appeals are thus : On 24-3-1994 a passenger bus No. MPK 3588 driven by respondent No. 1, owned by respondent No. 2 and insured by respondent No. 3 was carrying passengers from Nainpur to Mandla. At about 10.00 a.m. when it reached unmanned Railway crossing of village Limaria, it collided with narrow gauge South-Eastern Railway train coming from Mandla, as a result eight persons died and many others were injured. The legal representatives of the deceased persons and the persons who sustained injuries filed applications under Section 166 of the Act against the owner driver and insurer of the passenger bus No. MPK 3588, to claim compensation on the averments that the bus was being driven in a high speed, it was not in control of the bus driver, which collided with Railway train. Averment of negligence of Railways and its authorities were also made, but, the Railways, its authorities and the driver of the Railways were not impleaded as parties to the applications. The respondents Nos. 1 and 2, that is, the driver and owner of the bus after notice remained exparte. The respondent No. 3 the insurer of the bus filed common written statement in all the claim cases, wherein preliminary objections were raised that the accident was due to collision between the passenger bus and Railway train, therefore, the Tribunal had no jurisdiction to entertain the applications and to award compensation, and proper and necessary parties, i.e., Union of India/Railways and its driver were not made parties to the applications for compensation, hence, for non-joinder of the necessary parties the applications for compensation are liable to be dismissed.
3. The Tribunal after hearing parties on the preliminary issues held that the claimants have pleaded a case of composite negligence against the offending passenger bus and Railways, hence, in the absence of Union of India/Railway administration and its driver, the rash and negligent act of the Railway administration cannot be determined. The Tribunal further held that it has jurisdiction to pass award only against the owner, driver and insurer of the motor vehicle but has no jurisdiction to fix the liability against the Union of India/Railway administration and its driver. Hence the Tribunal dismissed all the applications for compensation observing that such claim can only be entertained and decided by the civil court.
4. Shri Umesh Trivedi and Shri V.P. Verma, learned counsel for the appellants submitted that the learned Tribunal wrongly held that it had no jurisdiction to adjudicate and pass an award against an outside agency which, according to pleadings, is also responsible for the tortuous act. It was submitted that it being a case of composite negligence, the Tribunal has jurisdiction to adjudicate the claim, and to pass an award to fix the liability after determining the issue of respective negligence. Section 11-B of the Motor Vehicles Act, 1939, (for short Act of 1939') corresponding to Section 168 of the Act does not have the effect of whittling down the scope of Section 110 (Corresponding Section 165 of Act of 1988) so as to be confined to the claims directed only against the driver, owner and the insurer of the vehicle the use of which caused the accident and that the Tribunal can entertain an application for compensation also against the third parties in addition to these three persons in a case of composite negligence. Because Section 175 of the Act corresponding Section 110-F of the Act of 1939 bars the jurisdiction of a civil court. It was submitted that as it was an accident between the motor vehicle and Railway train the case being of a composite negligence the Tribunal established under Section 3 of the Railway Claims Tribunal Act, 1987 (for short 'RCT Act') can also not deal with the claim for compensation as it can only exercise the powers and authority in respect to Railway administration relating to claims enumerated in clauses (a), (b) of sub-section (1) and (1-A) of Section 13 of RCT Act. The claimants cannot be forced to go into litigation before the Civil Court as Section 110 to 110-F of Act of 1939 corresponding to Sections 165 to 175 of the Act deal with the subject and substitution of Motor Accidents Claims Tribunals in place of civil Court for the purpose of adjudicating on claims for compensation in respect of death of or bodily injury to persons arising out of the use of motor vehicles. The object of the substitution of Claims Tribunal is to provide a speedy and cheaper remedy and to adjudicate upon the claims for compensation due to tortuous act of offending motor vehicles. Besides, Section 175 of the Act and Section 15 of the RCT Act bars the jurisdiction of Civil Court. Therefore, if the accident occurs due to composite negligence of the driver of motor vehicle and of Railway authorities, the claimants who suffer injury would be without any remedy which is not the object either of the Act or of RCT Act, as it is well settled that whenever there is a right there should also be an action for its enforcement and for which statute provides the remedy. As to non-impleadment of Railway administration it was submitted that the Tribunal ought to have given an opportunity to implead the Railway administration as party to the applications for compensation when the Act does not provide any limitation for filing of application for compensation as sub-section (3) of Section 166 of the Act has been omitted by Section 53 of the Motor Vehicles (Amendment) Act, 1994. In support of the contentions counsel cited Dhannalal v. D. P. Vijayvargiya, (1996) 4 SCC 652, Gujarat State Road Transport Corporation v. Union of India and Ors., AIR 1988 Guj. 13 = 1987 ACJ 734, Union of India v. Sushila Devi and Ors., AIR 1990 All. 82 - 1990 ACJ 1 KB, United India Insurance Co. Ltd. v. Premkumaran and Ors., 1988 ACJ 597 (Kerala), Union of India v. Dr. Sewak Ram and Ors., 1993 ACJ 366 (Raj.) and Amrita Devi v. S. K. Shrivastava and Ors., 1997 ACJ 61 (Allahabad).
5. Shri H. S. Ruprah appearing with Smt. Amrit Ruprah, learned counsel for the respondent No. 3 contended that in an application for compensation before the Tribunal only driver, owner and insurer of the offending motor vehicle are to be impleaded as parties to the proceedings. The Tribunal after holding an enquiry subject to the provisions of Section 162 of the Act, has to make an award under Section 168 of the Act determining the amount of compensation which appears to be just and specifying the person or persons to whom the compensation shall be paid and in making the award the Tribunal has to specify the amount which shall be paid by the owner, driver and insurer of the motor vehicle involved in the accident or by all or any of them. Therefore, categories of persons other than owner, driver and insurer of the vehicle or vehicles involved in the motor accident are excluded such as the owner and driver of Railways. No enquiry can also be held by the Tribunal about the composite negligence of joint tort-feasors that is of driver and/or the authorities of the Railways and the driver, owner and insurer of the motor vehicle causing the accident nor the Tribunal can fix any liability on joint tort-feasors. Therefore, the appropriate remedy in an accident like the present one is only to institute a civil suit where after joining all the parties the entire issue of composite negligence can be determined fixing the respective liabilities. The Tribunal is disabled to determine the composite negligence against the Railway administration and its driver as it had only jurisdiction to adjudicate upon claim for compensation in respect of accident involving death of, or bodily injury to, persons arising out of the use of motor vehicle or damages to any third parties so arising, or both, as is evident from sub-section (1) of Section 165 of the Act. Section 175 of the Act bars the jurisdiction of civil Court to entertain where the claims Tribunals have been constituted for any area for adjudicating upon any claim for compensation which may be adjudicated by the Tribunal. Learned counsel further submitted that the claimants can also not approach the Claims Tribunal established under Section 3 of the RCT Act and to claim compensation under Section 16 of the RCT Act as Section 13 of the RCT Act enumerates the claims only in relation to Railway administration. Section 15 of the RCT Act bars the jurisdiction of any Court, Tribunal or Authority under any other enactment in respect of the matters referred to in sub-section (1) and (1-A) of Section 13 of the RCT Act. Therefore, in a case like this it is only civil Court which can entertain the suit as case of an accident between Railway and a motor vehicle is not barred either under Section 175 of the Act or Section 15 of the RCT Act. Therefore, Tribunal rightly dismissed the applications for compensation filed under Section 166 of the Act. Counsel cited a decision of Andhra Pradesh High Court in Pilli Kamaraj and Ors. v. Sajja Chandramouli and Ors., 1993 ACJ 232.
6. Shri B. K. Rawat, learned counsel for the respondent No. 2 supported the order passed by the Tribunal and adopted the submissions made by the learned counsel for the respondent No. 3.
7. After hearing counsel, the question for our consideration relates to true scope of jurisdiction of the Motor Accidents Claims Tribunal constituted under Section 165(1) of the Act, corresponding to Section 110(1) of the Act of 1939, to adjudicate the claim for compensation in relation to an accident caused because of composite negligence of a passenger bus and the Railways.
8. On the pleadings of the parties it is evidently clear that it is not a case where the claim is made only on the basis of rash and negligent act of the driver of the passenger bus nor is a case of making a claim only on the basis of tortuous act of Railway administration, but the claim for compensation is based on composite negligence of the drivers of the passenger bus and Railway train, therefore, in such a situation, Tribunal constituted under Section 110(1) of the Act of 1939 corresponding to Section 165(1) of the Act to adjudicate the claim for compensation filed against persons besides the driver, owner and insurer of the offending motor vehicle involved in the accident would be maintainable. Exactly, the similar question was considered by a Division Bench of Gujarat High Court in Gujarat State Road Transport Corporation v. Union of India and Ors. (supra). The Gujarat High Court after considering the statutory settings contained in Chapter VIII of the Act of 1939 right from Sections 110(1) to 100-F and referring to decisions of Supreme Court in Minu B. Mehta v. Balkrishna Ramchandra Nayam, 1977 ACJ 118 (SC) at pages 740 and 741 observed thus :
"It is, therefore, obvious that the phraseology employed by the legislature in Section 110(1) laying down functions to be performed by the Claims Tribunal for adjudicating upon the claims for compensation in respect of accidents involving injuries to persons arising out of use of motor vehicles must necessarily be treated to mean that the Claims Tribunal will be entitled to adjudicate upon the claims for compensation in respect of accidents arising out of negligent use of the motor vehicles and not any innocuous use or in other words, it should be misuse of the motor vehicle or rash and negligent use of the motor vehicle which must have contributed to or must have caused the accident in question. Claims for compensation arising out of only such accidents can be entertained by the Claims Tribunal under Section 110(1). It is also to be kept in view, as seen earlier, that Section 110(1) carves out an exclusive field of jurisdiction from the otherwise existing jurisdiction of the civil court and confers it on the specified Tribunals. Thus, all that Section 110(1) does is to create a forum for adjudication of claims for compensation which may have otherwise fallen within the jurisdiction of ordinary civil court and that exclusive forum which is created by Section 110(1) has to adjudicate upon the claims for compensation which must be based on pre-existing right and liability, like tortious liability of the concerned tort-feasor who might have caused the accident in question. Moment that conclusion is reached, it becomes obvious that when the Claims Tribunal has to decide tortious liability of the tort-feasor, viz., driver of the motor vehicle who might have caused the accident giving rise to the claim for compensation, it is just possible that the said tort-feasor may not be the sole tort-feasor but there may be other joint tort-feasor involved in the very same accident who might have also contributed by way of composite negligence in the causing of the accident in question. The question arises, as to whether the claimant before the Claims Tribunal properly moved by him for adjudication of the claim for compensation, on account of the accident caused by the negligent use of the motor vehicle can urge that the accident in question was caused not only by rash and negligent use of the motor vehicle, but also by some outside agency which contributed its mite and was also partly responsible for the causing of the accident, or in other words, can a claimant legitimately urge that there was, in addition to the motor vehicle driver who was a tort-feasor, another joint tort-feasor being some other person who might not have used any motor vehicle but nonetheless who might have contributed to the causing of the accident? As it is well settled that the Claims Tribunal has to adjudicate upon claims on the basis of the tortious liability of the tort-feasor brought before it, of necessity, such disputed claims can encompass the adjudication of claims even against all joint tort-feasors contributing to the accident in question as they would also remain in the domain of tortious liability. It is also well settled that once it is decided that the accident in question has been caused by joint tort-feasors, two or more, each one of them would remain jointly and severally liable to meet the claim of the claimant. All these questions, therefore, can legitimately fall within the scope and ambit of the jurisdiction of the Claims Tribunal under Section 110(1) moment it is shown that the accident in question, if not wholly, at least in part, is caused by negligent use of the motor vehicle. We do not find anything in the language of Section 110(1) or any other provision of the succeeding sections to contraindicate the legislative intention underlying conferment of exclusive jurisdiction on the Claims Tribunal for adjudication of claims for compensation in such cases. It is also interesting to note that Section 110-A which provides for procedure for applying for compensation before the Tribunal nowhere indicates as to against whom such application can be filed. As the claims before the Tribunal have to be based on tortious liability as seen above, it necessarily follows that application can be filed against either sole tort-feasor, viz., the driver of the offending motor vehicle causing the accident or against one or more of joint tort-feasors who are involved in the accident. Some of the joint tort-feasors might be agencies not utilising any motor vehicle in contributing to such accident. Consequently, claim petition can legitimately be filed not only against the driver, owner and insurer of the offending motor vehicle which has been rashly and negligently used at the relevant time for causing the accident but can also be filed against joint tort-feasors who might have contributed to the accident along with the driver of the motor vehicle and who by themselves may not have utilised any motor vehicle while so contributing to the accident."
9. Then, Court after elaborate discussion and explaining the decisions of various High Courts on the question, divided the categories of cases which can give rise to claims in respect of an accident caused involving the motor vehicle, in para-25 thus :
"25. Let us now take stock of the situation. On the aforesaid discussion of the relevant provisions of the Act and various decisions of the High Courts, it appears clear to us that following four types of cases can give rise to claims for compensation :
I. Claims for compensation in cases where it is alleged that motor vehicle driver was solely responsible for causing accidental injuries giving rise to the claims for compensation.
II. Claims for compensation in cases of accidents where it is alleged that accident is caused not on account of rash or negligent driving of driver of the motor vehicle but is solely caused on account of rashness or negligence of any outside agency who might have rashly or negligently used any vehicle other than the motor vehicle causing the accidental injuries or who might have been solely responsible for the accident even otherwise.
III. Claims for compensation in cases where it is alleged that the accident giving rise to the claim is the result of composite negligence not only of the driver of the motor vehicle but also of outside agency or driver of another vehicle which may not be motor vehicle but who might be found negligent contributing to the causing of the accident, meaning thereby, claims for compensation against joint tort-feasors, one of which at least is the driver of a motor vehicle.
IV. Cases where it is alleged that accidental injuries have been caused on account of composite negligence of driver of the motor vehicle as well as any other person who might be jointly responsible for causing the accident. But when ultimately, on evidence, it is found by the Tribunal that driver of the motor vehicle was not at all responsible, not even to the slightest extent and that sole responsibility for causing of the accident rested on the shoulders of the driver of the vehicle which is not a motor vehicle or on the shoulders of any other agency."
10. Then, in paras 26 to 30 the Court held that so far as the first type of cases are concerned, it is the Tribunal alone which can entertain the claims under Section 110(1) of the Act of 1939 and can adjudicate upon it and if it was found that the motor vehicle driver was negligent, proper compensation can be awarded against the driver, owner and insurer as the case may be. So far as second type of cases are concerned, on the very allegation in the claim petition to the effect that the accident is caused solely on account of the negligence of any other person who may not have used any motor vehicle at the relevant time in causing the accident, the claim petition would not be maintainable before the Tribunal as in the claim petition no allegation was made that the accident was caused by negligent use of motor vehicle. So far as the third type of cases are concerned, because composite negligence is alleged against both the drivers, such claim would be maintainable before the Tribunal on the principle that outside parties are allowed to be joined as tort-feasors who contributed to the causing of accident and their inter se liability can be adjudicated upon by the Tribunal and the Tribunal can obviously pass proper orders fixing just compensation and making it payable by the joint tort-feasors jointly and severally and also can fix the inter se liability of the concerned joint tort-feasors for completing adjudication between the parties so as to avoid further litigation. In respect of last category the Court observed that where the accident is alleged to have been caused on account of composite negligence of the driver of the vehicle or any other vehicle or outside agency the compensation application would be maintainable before the Tribunal, but, after hearing the parties, if Tribunal comes to a conclusion that the accident has been caused not on account of the rash and negligent driving by the driver of the motor vehicle but solely on account of rashness and negligence of other person who might have driven the vehicle other than motor vehicle like railway engine, horse-cart, etc., the case would get out of provision of Section 110(1) and consequently claim against such outside agency meaning thereby that the claim against such tort-feasors who gets outside the network of Section 110(1) other than the driver of the motor vehicle, owner or insurer, will be not maintainable at that stage despite the finding of the Tribunal that such outside agency is responsible for the accident in question.
11. The question then came up for consideration before the Full Bench of Allahabad High Court in case of Sushila Devi (supra). The Full Bench of Allahabad High Court after quoting the aforesaid relevant observations of the Gujarat High Court entirely agreed with the conclusion reached by the Gujarat High Court as to the circumstances in which the Tribunal shall have jurisdiction to entertain applications filed under Section 110 as well as the cases in which it shall have no jurisdiction to entertain the application at the very threshold or subsequently on a finding that the accident was not caused by the use of the motor vehicle but solely by some outside agency. The Full Bench further observed that for complete adjudication of all the claims for compensation in respect of an accident arising out of the use of motor vehicle was intended to be provided for under the Act and consequently unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are heard on the question of negligence, the matter cannot be properly and effectively disposed of. For, otherwise, if the claimant is compelled to institute his claim before the Tribunal only against the owner and driver of the vehicle and insurer and is left to sue the remaining persons responsible for the accident, the adjudication cannot be said to be complete and final. Under the circumstances, the only reasonable interpretation appealed to the Court was that the claims were maintainable against the Railway also. Then, in para 25 the Full Bench observed that on construction of Section 110-B on the scope and jurisdiction of Tribunal under Section 110(1) to entertain claim applications against third parties is not whittled down so as to confine the claim only against the driver, owner or insurer of the motor vehicle and the Tribunal will have jurisdiction to entertain claim application against the third parties in addition to owner, driver and insurer of a motor vehicle involved in accident.
12. A Division Bench of Kerala High Court, in case of United India Insurance Co. Ltd. (supra) while considering the case of an accident of a bus on an unmanned railway crossing with the railway train, after considering Sections 110(1) to 110-F and the decisions referred therein, observed in paras 15 and 19 thus :
"15. The Motor Vehicles Act is a comprehensive code and the Claims Tribunals have been constituted to entertain all claims in respect of accidents arising out of the use of motor vehicles in public places. When death or bodily injury is caused as a result of the negligence of the driver of owner of the motor vehicle, the claimants would be entitled to file application for compensation before the Tribunal under Section 110-A of the Act. Section 110-F of the Act clearly states that no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal. Therefore, it is clear that adjudication of all claims for compensation in respect of the accident arising out of the use of motor vehicles is to be done by the Motor Accidents Claims Tribunal. Even though under Section 110-B the driver, owner and the insurer are mentioned, it does not curtail the power of the Tribunal to award compensation against any third party whose negligence caused the accident, or who was also negligent along with others. Section 110-B cannot be construed as restricting the ambit of Section 110-A. Section 110-B of the Act only gives a guiding principle to the Tribunal that in the event of finding that the owner, driver or the insurer of the vehicle were liable to pay compensation, the Tribunal is given the power to specify the amount which shall be paid by the insurer or owner or driver of the vehicle as the case may be as in some cases the insurer of the vehicle may not be liable to pay the entire amount of compensation.
19. In the present case the contention of the claimants is that the accident occurred as a result of the composite negligence of the driver of the tourist bus and the railway administration. The accident arose out of the use of the motor vehicle in a public place and the Tribunal has jurisdiction to entertain a petition of this nature under Section 110 of the Act. Section 110-F of the Act clearly prohibits a civil court from entertaining any question relating to any claim for compensation, which may be adjudicated upon by the Claims Tribunal. Therefore, the Tribunal alone has jurisdiction to entertain the claim petition. Since the claimants alleged that there was negligence on the part of the railway, they are also necessary party to the claim petition. If the claim against the railway is to be filed in a civil Court, there will be two parallel proceedings in respect of the claims arising out of the same accident. That would only lead to multiplicity of proceedings and may result in conflicting findings and the claimants will be put to undue hardship. Section 110-A of the Motor Vehicles Act does not expressly prohibit any claim petition being filed against persons other than driver, owner and the insurer. Therefore, we are of the opinion that in a case where the allegation is that the accident occurred as a result of the composite negligence of either the driver or owner of the motor vehicle and the railway, the Motor Accidents Claims Tribunal alone has got jurisdiction to entertain a claim for compensation."
13. A learned Judge of Rajasthan High Court in Union of India v. Dr. Sewak Ram and Ors. (supra), in a similar .situation considered the provisions of Sections 165 and 175 and after referring to the decisions, following the view taken by Gujarat, Allahabad and Kerala High Courts repelled the contention that the vehicle running on fixed railway track could not be amenable to jurisdiction of Tribunal to adjudicate the claim against railway, observed in para 14 thus :-
"14. In the present case, the claimants alleged that the accident took place on account of negligence of the driver of the bus and also of the rail. Under such circumstances, suit for compensation against the driver, owner and insurer cannot be filed in a civil court. The M.V. Act has been enacted to give immediate relief to the claimants. In the present case, the petitioners/claimants have alleged negligence of the drivers of the railway and also of the bus and as such a suit for compensation against railway administration can be filed in a civil court. But no suit for compensation can be filed against the driver, owner of the bus and the insurer in view of Section 175 of the M. V Act. Further more, there are possibilities of conflicting findings. It is also possible that to arrive at a conclusion as to who are negligent, the presence of the driver of the train and the driver and owner of the bus is also required. Under these circumstances, in my view, the Tribunal has jurisdiction to try the claim petition even though a third party has also been involved."
14. A Division Bench of Allahabad High Court in a recent decision in case of Amrita Devi (supra), in para 3 observed thus :-
"3. First of all, it may be seen as to whether a claim petition would lie before the Tribunal where an accident occurs out of the use of the motor vehicle on account of some negligence of outside agency, as the Railways in the present case. In this connection, it may be observed that in cases where it is found by the Tribunal that the accident was caused only due to negligence of the outside agency and not by the driver of the motor vehicle, in that case alone the Tribunal shall cease to have any jurisdiction to grant any relief to the claimant. Where the claim is preferred only against an outside agency then too, the claim petition would not be maintainable. But in the present case, the Tribunal proceeded to decide the matter on the basis that the accident occurred due to fall of crossbar of the Railways at the railway crossing but without going into the question about the negligence of the motor cycle driver. It was necessary for the Tribunal to have tried all the issues together including the issue relating to negligence of the parties. After the trial, if it was found that there was negligence on the part of the outside agency alone, then the prayer for the award of compensation could be turned down. But where it is found to be a case of contributory negligence or composite negligence or even a slight negligence on the part of the motor cycle driver, the claim petition would be maintainable before the Claims Tribunal. We are supported by a Full Bench decision of our own court on the above proposition in Union of India v. Sushila Devi, 1990 ACJ 1 (Allahabad)."
15. The law having been elaborately discussed and enunciated on the question involved in the present case too by the Gujarat, Allahabad, Kerala, Rajasthan High Courts of which we are in respectful agreement. Therefore, in our opinion, the case of this type where the claim was based on composite negligence of driver, owner of the passenger bus and the outside agency the Railways, the applications for compensation could not have been dismissed at the threshold.
16. However, after enquiry, if the Tribunal comes to a conclusion that a case of contributory negligence or composite negligence on the part of the Railway administration is not made out, claim application will fail against the Railway administration. The claim application will also fail if composite or contributory negligence or negligence is found not proved against the owner and driver of the passenger bus and Railway administration is found responsible for the accident. In that case claims Tribunal will have no jurisdiction to fix the liability and to pass an award.
17. In view of the above we respectfully are not in a position to concur with the view taken by the Andhra Pradesh High Court in Pilli Kamaraj's case (supra).
18. Now it takes us to the second question of the effect of non-impleadment of Railway administration and its driver whether the applications for compensation should be thrown out. It is not disputed that the Railway administration and its driver are necessary parties for adjudicating the claim for compensation so as to attain its finality. The said necessary parties who are alleged to be join tort-feasors can be impleaded as party to applications for compensation as question of bar of limitation will not be applicable due to omission of sub-section (3) of Section 166. See the decision of Supreme Court in Dhannalal's case (supra). Therefore, it would be open for the claimants to make an appropriate application before the Tribunal which shall decide the same in accordance with law after notice to the concerned parties.
19. In the result, the appeals are allowed, order of the Tribunal is set aside and the cases are sent back to the Tribunal to decide the same afresh in accordance with law expeditiously as far as possible within an outer limit of six months. In the circumstances, the parties are left to bear their own costs.