Madhya Pradesh High Court
Sanjay Kumar And Anr. vs Munnalal And Anr. on 23 October, 1991
Equivalent citations: 1993ACJ869
JUDGMENT T.N. Singh, J.
1. Appellants are twosome and their appeal is not time-barred but still continues under M.M. No. 87 of 1982 because counsel who filed the appeal did not file also power. The appeal was not registered but in the mean time, the defect is cured as the power is on record since 18.9.1991. Office is directed to register it as a regular appeal.
2. The two appellants lodged claim in M.A.C.T., Gwalior, claiming compensation for death on 23.4.1982 of Onkar Lal, who was driving the truck No. CPG 348. The deceased was father of the first appellant, minor aged 9 years and second appellant's husband.
3. Admittedly, the vehicle was insured with respondent No. 2, National Insurance Co. Ltd. and it was owned by respondent No. 1, Munnalal. Their claim on the basis of liability for 'fault' has been dismissed and they have to remain satisfied under the impugned order with interim compensation awarded for 'no fault' liability.
4. Mr. Malhotra, the learned counsel appearing for respondent No. 2, persuasive as he always is, has opposed this appeal with full force and vehemence. Several contentions he urged strenuously; these deserve due consideration.
5. Firstly, it is contended that the Tribunal had no jurisdiction to entertain the claim petition and to that effect reliance is placed on Section 19 of the Workmen's Compensation Act. Secondly, it is also submitted that otherwise too the petition was not maintainable at the forum of the Tribunal because there was no case pleaded for rash and negligent driving. Thirdly, the pleading in that regard, in any case, was deficient and fourthly, no evidence has come and none could come on the question of rash and negligent driving because the driver himself died during the incident.
6. Case-law also counsel cited to support his contentions. One is, Jaswant Rai v. National Transport & General Co. Ltd. 1972 ACJ 21 (P&H) and the other, Ashok Kumar Gupta v. Kishanlal 1991 ACJ 702 (MP).
7. In so far as the deficient pleading is concerned, only a word or two would dispel that doubt. At para 4 of the claim petition what I read is that the accident took place because the tie-rod of the front wheel missed a ball owing to which the steering became free.
8. In my view that seminal, pleading was sufficient to sustain the claim for trial at the forum at which that was agitated. Merely because the driver is no more in this world that would not mean that negligence cannot be pleaded or proved. Indeed, the law to be made clear today in the context of the situation of the instant Us is that negligence of the driver or of the owner is pleadable and provable from the moment the driver takes his seat in the vehicle and the vehicle is put on road. It is always the duty of the driver and also of the owner to see that the vehicle taken out for being driven and used on the public road is in a fit condition to be driven and used.
9. Negligence and rash driving are two different things. The question of negligence is not to be decided with reference to the conduct of the driver on the road only. His conduct in dealing with the vehicle even prior to its being put on the road is also to be considered. Particularly in a case when the vehicle used is a public transport vehicle (as in the instant case), the question of fitness of the vehicle is a jural question when raised for decision in a motor accident claim case. For keeping the vehicle fit to be driven and used is joint responsibility and duty of the driver and the owner. Indeed, the owner is required to take out 'fitness certificate' from the statutory authority in due discharge of that duty and the burden is on the owner to establish that when the accident took place, the vehicle was mechanically fit. He may establish that prima facie by producing the statutory fitness certificate for the relevant period.
10. For this short but pointed reason, albeit based on jurisprudence of motor accident claims, I hold that there is no fatal deficiency in the pleading and the claim petition was triable by M.A.C.T.
11. However, even at this stage, I must mention still that the pleading and evidence both are inadequate; nor are the same clinching or satisfactory. What was the condition of the vehicle when the accident took place or when the vehicle was taken out of the garage are facts which had to be proved satisfactorily. These were neither pleaded nor proved. The single witness who deposed in this case for the claimants is father of the deceased Onkar Lal and in his evidence he merely stated that he was informed by all and sundry that the accident occurred due to the mechanical defect above-referred.
12. Mr. Malhotra has submitted that sudden misbehaviour of the vehicle should be treated as an act of God and on that ground itself there is no scope for interference and nor indeed for retrial of the claim petition. That the plea of inevitable accident, according to me, is not sustainable at this stage though there was that special plea raised in the written statement filed by the insurer. That plea is effectively blunted at this stage by the holding of a D.B. of this court in the case of Union of India v. Vijay Sundari 1991 ACJ 770 (MP). That plea is available when there is no interposition of any human agency. When scope exists for the human factor to interpose, the plea is not available.
13. In the instant case, as observed above, the question to be examined and decided would primarily be, if due care was taken to ensure mechanical fitness of the vehicle before it was put on road and when the accident took place. Evidently, if the human agency failed to discharge its statutory duty would be the main question to be examined. Whether it was a case of 'inevitable accident' would depend also on that fact. Despite care taken, if due to any latent defect such as a manufacturing defect, in any vital mechanism of the vehicle, the accident occurred, the position would be different. At this stage, therefore, nothing need be said about that plea as I have found a case for remand duly made out.
14. Two questions survive for decision; to these I now address myself. In so far as it concerns M.A.C.T.'s competence to try the claim for want of pleading of rash and negligent driving that question has already been answered. Evidently, therefore, nothing more need to be said about Mr. Malhotra's contention that only in a civil suit relief claimed could be tried; and not by the Tribunal under the Motor Vehicles Act.
15. However, the other question is, is the Tribunal's jurisdiction barred on the footing that only the Workmen's Compensation Court could try the claim? To consider that contention I have displayed before me in full view Section 110-AA of the Motor Vehicles Act (old). An option is given to the claimant to approach either the Tribunal for trial of his claim under this Act or under the Workmen's Compensation Act for trial of the claim in accordance with the procedure prescribed under that Act. Section 19(2) of the said Act simply debars 'civil court' for deciding any question agitated under the Act which the Commissioner is authorised to dispose of under that Act. There is no bar envisaged under Section 19 against any claim of any 'workman' being tried, in the alternative, by the Tribunal, under the Motor Vehicles Act. I have no doubt that provisions of Section 19, Workmen's Compensation Act and Section 110-AA of the Motor Vehicles Act are complementary and are to be harmonised. One does not nullify the other.
16. Mr. Malhotra's reliance on Jaswant Rai's case, 1972 ACJ 21 (P&H), has not at all impressed me because the view taken by the learned single Judge is not supported by cogent reasons. He has merely observed that;
the language of Section 19 of the Workmen's Compensation Act is clear and it bars the jurisdiction of all courts and Tribunals and makes the decision of the Commissioner final.
That, obviously, is not the correct position because, as per Section 19(2), only civil court's jurisdiction is barred.
17. Reliance on Ashok Kumar Gupta's case, 1991 ACJ 702 (MP), at this stage would not avail the appellants because fresh evidence and additional pleading may come. In that case the court has taken view that onus was on the claimants to establish their claim and their case was found not proved. Because the stage is now reset under retrial order herein passed, reliance thereon today is obviously misconceived.
18. However, I have found some merit in Mr. Malhotra's contention that if retrial is ordered, the negligent claimants-appellants who could not pursue their case with due diligence might press for relief to which they are not entitled. He meant to say that should the claim be found proved during retrial there may be a claim also for interest from the date of filing of the application. To establish the remissness of the claimants he has taken me through the records. It is true that the case had not been properly pursued and it had been dismissed once. Thereafter also the trial had been limping for their fault for a long time. I direct accordingly that the application under Section 110-A for compensation shall be treated as competently pressed today in appeal and, therefore, the entitlement in respect of interest could be available only from the date of this judgment. Obviously, original pleading being deficient and leave to amend the same being allowed today, it is necessary to adjust equities between parties.
19. In the result, the appeal succeeds and the claim petition is directed to be retried in terms of the above order. Amendment of pleadings and additional evidence shall be allowed to both sides. No costs in this court.