Gujarat High Court
Commissioner vs Sureshbhai Shamjibhai Sojitra & 2 on 1 May, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/3158/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3158 of 2011
with
FIRST APPEAL NO. 3159 OF 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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COMMISSIONER....Appellant(s)
Versus
SURESHBHAI SHAMJIBHAI SOJITRA & 2....Defendant(s)
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Appearance:
MR JAYANT P BHATT, ADVOCATE for the Appellant(s) No. 1
MS HINA DESAI, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 01/05/2017
ORAL JUDGMENT
The appellants has assailed the common Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT judgment and award passed by M.A.C.Tribunal (Main) at Rajkot in M.A.C Petition No. 1595/98 and M.A.C. Petition No.1596/98 in this appeal under section 173 of the Motor Vehicles Act, 1988 for short the M.V Act").
2. Shorn of unnecessary details facts giving rise to this appeal are that the respondent no.1 herein claimant of MACP No. 1595/1998 was traveling as a pillion rider on 21.2.1998 at about 11:30 pm on scooter bearing registration No.GJ-3P-4138 and Nileshbhai Ramjibhai claimant of MACP No.1596 of 1998 was driving the said scooter. The motorcycle was of ownership of respondent no.2 and insured with respondent no. 3-Insurance company.
3. The offending scooter fell into a ditch as according to the claimants the appellant Municipal Corporation had not put up any warnings, signals or indications around the ditches. Both the claimant suffered, serious bodily injuries in the accident. The claimant of MACP No.1595/98 filed a claim petition initially against respondent no.2 owner of the offending scooter and Insurance company respondent no.3 herein. Later on the appellant came to be impleaded as one of the respondent pursuant to order passed below exh. 19 whereas Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT the claimant of MACP No.1596/98 who was plying the motorcycle filed claim petition against respondent no.2- owner of the motorcycle and respondent no. 3-Insurance company pursuant to the order passed below Exh. 19. The appellant- corporation contested and resisted both the claim petitions essentially on the ground that vehicle belonging to the appellant-corporation was not involved in the accident and therefore, the Tribunal has no jurisdiction to adjudicate the claim against the appellant-corporation. The Tribunal did not accept this contention and directed the appellant corporation in both the claim petitions to pay the compensation along with other respondents. The Corporation has questioned the liability of compensation in these two appeals.
4. I have heard Mr. Jayant P. Bhatt, learned advocate for the appellant and Ms. Hina Desai, learned advocate for respondents-Insurance company. Though served there is no appearance on behalf of other respondents.
5. Mr. Bhatt, learned advocate for the appellant vehemently urged that Claim petition against the appellant-Corporation was not at all maintainable in the Claims Tribunal as no vehicle was involved in the Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT accident. It is his further submission that in absence of any vehilce belonging to the appellant- corporation, being involved in the accident the provisions of M.V Act are not applicable. He further made submissions that the Tribunal ought to have appreciated the fact that remedy of filing the Civil Suit under the law of torts was the proper remedy for claiming compensation from the appellant. He, therefore, urges appeals may be allowed and the impugned common judgment and award passed by the Tribunal may be quashed and set aside qua the appellant-Corporation.
6. Ms. Hina Desai, learned advocate for the Insurance- Corporation submits that the Insurance Company has accepted the impugned judgment and award. It is her submission that MACP No. 1596/1998 was not maintainable before the Claims Tribunal as vehicle belonging to Corporation was not involved in the accident is not accepted by the Tribunal on the basis of the decision of the Division Bench of this COurt in the case of Kumudben Sureshchandra Vs. Jamnagar Municipal Corporation and Ors. 1997(1) GLH 491. In the said decision it is observed as infra :
" 16. Under Chapter XIV of the Bombay Page 4 of 12 HC-NIC Page 4 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT Provincial Municipal Corporations Act, 1949 (BPMC Act, for short),all streets within a city are public streets. Public street is defined in the BPMC Act and reading section 203 of the Act, it is very clear that the Municipal Corporation has to construct, maintain and improve the streets. The Municipal Corporation, therefore, was under an obligation to maintain the streets in such a way so as not to cause any obstruction to the traffic, and to maintain safety. In the instant case, by erecting a speed breaker, which is not provided under any law, and that too unscientifically, the Corporation has done not only an unauthorised act, but negligent too, which has resulted in the death of the deceased.
17. Sub-section (5) of section 75 of the Act provides that no person shall wilfully remove, alter, deface or in any way tamper with any traffic signs placed or erected under this section. Sub-section (6) of the Section 75 of the Act provides that if any person accidentally causes damage to a traffic sign as renders it useless for the purpose for which it is placed or erected under this section, he shall report the circumstances of the occurrence to a police officer or at a police station as soon as possible, and in any case, within twenty four hours of the occurrence. The purpose of giving such information is that immediate curative action can be taken so as to ensure that no hinderance is caused to the drivers of vehicles in the absence of the traffic sign. In the instant case, the erection of the speed breaker itself was not permitted by any law; and to add to its gravity, no signboard is kept to indicate existence of such a speed breaker; no markings are painted on the speed breaker and no light is provided. These ought to have been provided so that the speed breaker is made visible. If painting on the speed breaker is Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT defaced, it is the duty of the Corporation to see that the same is painted. Thus, the Corporation, by remaining negligent in providing adequate facility, has made itself liable for the accident. If there would have been sufficient light and markings and signboard indicating the speed breaker, then it could have been said that eventhough the speed breaker is erected unauthorisedly, due care is taken by the Corporation to caution the drivers of vehicles about existence of the speed breaker. Had this been done, the Corporation could have argued that their liability is much less than that of the driver. From the evidence it is clear that four persons were travelling on the moped for quite some time prior to reaching the spot where the speed breaker is erected and nothing happened till then, and it is only because of the speed breaker that the accident occurred. If the driver would have been cautious enough while carrying four persons, and if he would have been in a slow speed, then the accident could have been avoided. It appears that because of the slope, the speed of the vehicle must have increased. That may be a factor to be taken into consideration and even it is admitted by Sureshchandra that he was driving the moped in speed. It was expected from him when he was riding with three others to be at a slow speed, especially while approaching declivous slope. Driver has overlooked this aspect and has approached further towards the slope which was declivous, responsible for increase in speed, and thus the driver too remained negligent. When we drew Mr. Shah's attention to the aforesaid provisions of the Act and to the facts, he could not submit that the driver of the moped was not at all negligent, more particularly when he was riding the moped in breach of the provisions of the Act, and, therefore, it can safely be said that Sureshchandra, the Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT driver of the moped was also negligent in causing the accident. It is very clear that one who rides in contravention of duties imposed by a common law or statute would render the rider as a negligent rider."
6. It is an undisputed fact that the accident had happened at about 11:30 pm. It also emerged from the evidence of the claimants that some crude repairing work was going on and there were many pits and ditches on the road and there was no provision for street light on the road. In view of this evidence it is manifestly clear that the appellant has not taken the required precaution to put the drivers of motor vehicles to a guard that there are pits and ditches on the road. Both of them can take proper care while driving vehicle. In view of the evidence available on the record and in view of the decision of the Division Bench of this Court in the case of Kumud (supra). I am of the opinion that the Tribunal has not committed any error or mistake in recording the conclusion that the claim petition against the appellant-corporation along with the driver, owner and the Insurance Company of the offending motorcycle was maintainable under the provisions of Motorcycle Act, 1988. This Appeal, therefore, lacks merit and the impugned judgment and award so far as it relates to MACP NO. 1595/1988 does not warrant interference.
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C/FA/3158/2011 JUDGMENT
7. In MACP No. 1596/1998, it is an undisputed fact that the claimant was plying offending motorcycle which was of the ownership of respondent Ramjibhai Manjibhai Vekaria.
6. The Supreme Court in the case of Ningamma and Anr Vs United India Insurance Company Ltd (2009)13 SCC710, (para 20 to 25) reads as under :
20. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA.
21. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT would step into the shoes of the owner of the motorbike..We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle.
22. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him.This proposition is absolutely clear on a reading of Section 163-A of the MVA.
Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.
23. .When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case.
24. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA.
The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.
25. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs."
7. In view of the exposition of law of the aforesaid decision of the Supreme Court it is manifestly clear that the claimant had borrowed the offending motorcycle from the owner for his personal purpose and thereby had stepped into the shoes of the owner rendering him ineligible to receive compensation from the him self under the M.V Act. The Tribunal has without applying its mind to the legal position of law and following the decision of the Division Bench of this Court in the case of Kumud (supra) has fastened the liability of payment of compensation on the appellant corporation which cannot be sustained.
8. The remedy if at all there is one to claim compensation for having suffered injuries owing to non-maintenance of the road lies in some other form but surely the claimants cannot claim compensation under the provisions of the M.V. Act. I am therefore, of the opinion that the Tribunal has fallen in error in directing the appellant to pay compensation to the claimant under the provisions of the M.V Act and Page 11 of 12 HC-NIC Page 11 of 12 Created On Wed Aug 16 04:22:10 IST 2017 C/FA/3158/2011 JUDGMENT therefore the judgment and award cannot be sustained qua claim of MACP NO. 1596/1998.
8. For the foregoing reasons Appeal No. 3158/2011 is hereby dismissed while appeal No. 31592011 is hereby allowed and the impugned judgment and award of the Tribunal is hereby quashed and set aside qua MACP No. 1596/1998.
9. Amount if any lying in the Tribunal in respect of the appeal no. 3158/11 is ordered to be returned to the appellant if not disbursed in favour of the claimants. Any amount disbursed in favour of the claimant is in pursuance to the order of this Court shall not be recovered by the appellant.
(A.G.URAIZEE,J) MARY Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Aug 16 04:22:10 IST 2017