Bombay High Court
Shri Chandrakant Parsekar vs Smt. Rosy Simoes And Ors. on 14 September, 1994
Equivalent citations: II(1994)ACC691, 1995ACJ767, 1995(4)BOMCR285
JUDGMENT M.S. Vaidya, J.
1. This is an appeal by original respondent No. 2 in Claim Petition No. 35 of 86 decided by the Motor Accident Claims Tribunal at Panjim, Goa against an award dated 27th December, 1990 under which, the present appellant along with present respondent No. 2 were directed to pay a compensation of Rs. 60,000/- in the context of death of Maria Simoes, the daughter of the present respondent No. 1 i.e., the original claimant.
2. The facts present a very sad story about the death of the daughter of respondent No. 1. It was not in dispute that the said daughter, who was about 20-years of age at the relevant point of time, was proposed to be married to Pascoal Fernandes, the present respondent No. 2. On 20/12/1985 both of them were riding a motor-cycle bearing registration No. GDG 9088 which belonged to the present appellant and which was borrowed by the present respondent No. 2 and Peter Simoes, a son of the present respondent No. 1. When the motor-cycle was being driven on a public road at Arpora (Goa), it had an impact on a road side trunk of a tree that had fallen on the ground. The motor-cycle skidded after the impact, thereby causing the death of the daughter of present respondent No. 1. It appears that there were probably two pillion-riders, namely, Maria Simoes and her brother Peter Simoes, on the said motor-cycle.
3. After recording the evidence, the Tribunal held that the Insurance Company was not liable to pay anything as the liability for the death of the pillion-rider was not covered by the policy. The view so taken by the Tribunal was right in the light of the ruling in New India Assurance Co. Ltd. v. Minguel Lourence Correia and others, 1986 A.C.J. 646. Holding that the driver of the vehicle, namely, Pascoal Fernandes/respondent No. 2, was negligent in driving the vehicle, the Tribunal fixed the liability for the compensation on him as well as on the owner of the vehicle, i.e., the present appellant.
4. The respondent No. 2-Pascoal Fernandes, did not prefer any appeal against the decision. The owner of the vehicle i.e. the present appellant felt aggrieved by the decision given by the Tribunal particularly, in view of the fact that as per his version which was apparently accepted by the Tribunal, the vehicle in question was gratuitously borrowed by respondent No. 2-Pascoal Fernandes and the son of the present appellant, and the deceased-Maria was travelling thereon as a pillion-rider gratuitously. It was submitted that in given circumstances, no vicarious liability could be fixed upon the owner, according to the principles governing the law of Torts in that behalf.
5. After considering the matter, we are of the opinion that the contention urged on behalf of the appellant, as above, must be sustained. The vehicle in question is a motor-cycle owned by the present appellant, which was not meant for giving on hire or anything like that. In view of the special relationship, it was borrowed by the present respondent No. 2 and Peter from him. There was no question of the borrowers of the vehicle paying any charge to the owner of the vehicle. Such was never the case made out. A person, who had gratuitously borrowed the vehicle like this could not make the owner of the vehicle responsible for the unfortunate incident which had occured, as per the unchallenged verdict of the Tribunal, on account of negligent driving of the driver of the vehicle i.e. respondent No. 2.
6. The law on the point is discussed in the `Law of Torts' by Ratanlal and Dhirajlal (22nd edition 1992 at page 406), on the basis of the ruling of the House of Lords in Smith v. Littlewoods Organisation Ltd, (1987)1 All E.R. 710 (HL). The principle is where the injury or damage was caused by an independent human agency, the risk had to be highly probable or very likely before it could be said that it was reasonably foresecable. The position of law is summed up by the learned Commentators as follows :-
"As a result of the above discussion the legal position may be summed up in the following propositions:
(A) There are three requirements necessary to establish a duty of care. They are (1) foresecability of harm; (2) proximity in relationship, which implies that the parties are so related that it is just and reasonable that the duty should exist ; and (3) policy considerations do not negative the existence of duty. If the first two conditions are satisfied, policy considerations would rarely, in a limited class of cases, negative the existence of duty e.g. when public policy requires that there should be no liability. A policy to limit the duty must be justified by cogent and readily intelligible considerations.
(B) Duty of care would arise in exceptional circumstances (i) for acts of third parties ; (2) in case of omissions ; and (3) to prevent economic loss.
(C) Proposition (A) cannot be used as a means of reopening issues settled by authoritative decisions and it deals essentially with the approach to a novel type of factual situation not covered by authorities.
(D) Subject to what is stated in proposition (C), proposition (A), can give rise to developing new categories of duty of care ; but this should be done incrementally and by analogy with decided cases. "
7. In the present case, when the vehicle was borrowed from the present appellant, he could not have foreseen the harm to the life of deceased-Maria. The relationship between him and the borrowers of the vehicle was that of gratuitous lender of the vehicle to a friend and he could not have perceived, even at the time of lending, that deceased-Maria was likely to be carried on the said vehicle. There was no duty on the present appellant to take care of the prevention of harm to deceased-Maria nor had he, according to the evidence on record, omitted to take any care which he ought to have taken. Under such circumstances, he cannot be held liable for damages or compensation for the death of deceased-Maria.
8. In the circumstances of the case, therefore, the appeal must succeed and the present appellant must be absolved of the liability for payment of any compensation. Accordingly, we set aside the award passed against him.
9. During the pendency of the Claim Petition before the Tribunal, it appears that an amount of Rs. 15,000/- was paid by the respondent No. 3-Insurance Company to the respondent No. 1/original claimant. The Tribunal had directed that the Insurance Company should be entitled to reimbursement of the said amount paid to the claimant from present appellant and present respondent No. 2, jointly and severally. In the given circumstance, we are of the opinion that would aggravate the ultimate effect of the tragedy to which we have referred above at length. In the circumstances of the case, after hearing the learned Counsel for the Insurance Company and in view of the tragic circumstances in which Maria Simoes had died, we think that the Insurance Company should give up the claim against the present appellant and respondent No. 2 and treat the said amount as an ex-gratia payment in favour of respondent No. 1. We direct the respondent No. 3 accordingly.
With the above modifications, the appeal shall stand partly allowed in favour of the present appellant.