IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1743 of 1996 with FIRST APPEAL NO. 2864 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- KUMUDBEN SURESHCHANDRA,DECD. THRO'HEIRS SURESHCHANDRA & 2 Versus JAMNAGAR MUNICIPAL CORP. -------------------------------------------------------------- Appearance: F.A. No. 1743/96: Mr. Suresh M. Shah for appellants MR JR NANAVATI for Respondent No. 1 F.A. No. 2864/96: Mr. Suresh M. Shah for appellants MR JR NANAVATI for Respondent No. 1 Mr. Arun H Mehta for respondent No. 2 Respondent No. 3 Served. IN BOTH THE MATTERS :- Mr. Kamal Mehta, learned AGP, at the request of Court. -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE H.R.SHELAT Date of decision: 09/12/96 ORAL JUDGEMENT (Per Patel, J.) The appellants have preferred these appeals against the judgment of MAC Tribunal in MAC Petitions No. 76/88 and 420/90, dismissing the claim petitions. 2. An interesting question about erection of a speed breaker, apart from negligence of moped driver, is raised by learned Advocates Mr. Shah and Mr. Nanavati, who are appearing for the appellant and respondent Jamnagar Municipal Corporation. We requested Mr. Kamal Mehta, learned Assistant Government Pleader to take instructions from the Regional Transport Officer and make his submissions. 3. Facts, concisely stated, leading to the present appeals, are as under :- 3.1 On the night of 7.10.1987, which was a full moon night, Sureshchandra Popatlal Mehta (Opponent in MAC Petition No. 76/88 and one of the claimants in MAC Petition No. 420/90) was riding on a two wheeler, known as moped, along with his wife Kumudben and two minor children. They went to a garden and thereafter to a fare and about midnight, they were returning on the said moped, which was driven by Sureshchandra Mehta. According to his evidence, the said vehicle is a two-seated vehicle. His wife was sitting on the pillion seat and their children were also carried on the moped. While they were negotiating a declivous slope, the vehicle had to pass through a speed breaker, and because of the speed breaker, the vehicle slipped and his wife fell down on the slope, sustained a head injury and became unconscious. She was immediately removed to Erwin Hospital and on examination, the Doctors declared her dead. 3.2 The appellants seem to have first preferred a Special Civil Suit, being No. 59/88, for compensation. It also appears that on account of objections taken by the Jamnagar Municipal Corporation, the suit was withdrawn and the plaint was returned to the appellants for filing before the proper forum, and accordingly, the said plaint came to be registered as MAC Petition No. 420/90. 3.3 The appellants contended that deceased Kumudben fell down on the road, which resulted in the fatal injury. The appellants contended that Jamnagar Municipal Corporation had erected a speed breaker at the said place and there was neither any painting or 'zebra mark' on the speed breaker nor any signboard, to indicate the bump. It was also contended that there was no street light at the spot, and hence the speed breaker could not be seen during night hours. It is further contended that ultimately, the said speed breaker was removed by the Municipal Corporation after the accident, on account of the objection taken by the Police Department. 4. The Insurance Company contended that the accident is nothing but resultant effect of negligence on the part of Jamnagar Municipal Corporation, which is responsible for maintaining public roads. It was further contended that as the speed breaker was erected by the Municipal Corporation, it was the duty of the Corporation to maintain the roads properly and to place caution / signboards indicating that there is a speed breaker ahead and to keep the speed breaker painted with necessary marks so that a driver can notice the same. Jamnagar Municipal Corporation contended that the driver of the moped was driving the vehicle negligently; He was carrying four persons on a small moped, and, therefore, the Corporation cannot be held responsible, and it cannot be said that the accident has occurred due to the speed breaker. It was further contended that the speed breaker was erected at the place in accordance with rules and regulations, and it was properly maintained and, therefore, the Corporation cannot be held to be responsible for the accident. The Municipal Corporation has also contended that the person driving the vehicle was prosecuted for an offence punishable under section 304.A of the Indian Penal Code in connection with the accident in question. Thus, the Municipal Corporation submitted that it cannot be held responsible for the accident, and therefore, no liability can be fastened on the Municipal Corporation for compensation. 5. So far as the appreciation of evidence by the Tribunal is concerned, the learned Tribunal has come to the conclusion that the evidence led by the claimants had shown that the driver of the moped was not at all negligent in driving the vehicle, but the speed breaker itself was the cause for this accident. In arriving at that conclusion, the Tribunal has discussed evidence at length. It was found that there was no street light near the slope. While coming down from the slope, the vehicle dashed against the speed breaker. We have perused the evidence, and reading the evidence, it appears that there were no marks or 'zebra painting' on the speed breaker. The speed breaker had been newly erected and there was no municipal street light at the spot where speed breaker was erected. Evidence indicates that at some distance there was a lamp post but witness has stated that the same was not burning at that time. He stated that near Nilkanth temple, there is a lamp post and that was lighted. Even the District Superintendent of Police conveyed to the Municipal Corporation to remove the speed breaker as the same could not have been erected there. In the cross examination, a suggestion was made that on account of darkness he could not have seen the two different levels, i.e. one of the speed breaker and the other of the road, which the driver of the moped has admitted. He also admitted that there was no foot-rest and his wife had one child on her lap and the other child was sitting behind her. He also admitted that there was no handle on the rear seat. He also admitted that it was risky to drive a moped with four persons on the vehicle. He also admitted that he lost the balance on the speed breaker. The speed breaker is having 5 ft. width and 1.5 ft. height. He further admitted that had the vehicle been driven on a very slow speed, it could have passed through the speed breaker. He further admitted that near the spot of the accident there was no street light at the relevant time. 6. On behalf of the Jamnagar Municipal Corporation, one Budharji Nagjibhai Gadia is examined who stated that the Government gives grant to maintain speed breakers and speed breakers are painted thrice a year. In the cross examination, he admitted that he has no idea as to through whom the speed breaker was erected. He could not say as to who instructed to erect the speed breaker. He stated that P.W.D. Manual indicates the size of the speed breaker. He stated that he has no idea as to who has given instructions to erect the speed breaker of a particular size. He was also questioned about removal of the speed breaker upon instructions from the D.S.P. He stated that he does not remember that till this date, there is no signboard indicating the existence of a speed breaker; However he stated that he is aware that sign board is to be erected. He has denied that there was no painting on the speed breaker. To a question put to him that nobody had instructed the Municipal Corporation to erect the speed breaker, he has stated that it is not necessary to have any instructions. He further stated that for speed breakers, there are no resolutions and the decision might have been taken by the Engineer at the relevant time while constructing the road. 7. The Tribunal held that the Corporation is solely responsible because it has failed not only in maintaining the speed breaker but it has not placed it in accordance with the traffic regulations. The Tribunal did not agree with the submissions that it is a case of composite negligence. The claim petition filed by the minors, being claim petition No. 76/88, is based on the composite negligence of the driver as well as the Municipal Corporation. However, as the Tribunal found that the accident was the result of the sole negligence of an outside agency, viz: the Municipal Corporation, the Tribunal held that the Tribunal has no jurisdiction to adjudicate the claim. After considering the income of the deceased, the Tribunal held that the total compensation works out to Rs.2,76,000/- to which a sum of Rs.20,000/is to be added as compensation on account of loss of life expectancy. Thus, the total amount awardable was found to be Rs.2,96,000/-, but as the claimants have restricted their claim to Rs.2,50,000/-, they would be entitled to get that much amount from the Jamnagar Municipal Corporation and also opponents No. 1 and 2, the driver and the insurer of the vehicle involved in the accident, holding that original opponent No.1 and 3 are responsible for this accident so far as the minor claimants are concerned. 8. In paragraph 38 of the judgment, the Tribunal has proceeded to decide the issue of quantum of compensation on the assumption that they are able to prove that the accident in which the minors lost their mother, had arisen on account of composite negligence of the opponent No.1 as well as the Municipal Corporation. As observed by us earlier, the Tribunal held that the driver of the moped was not negligent, and, therefore, dismissed the claim petitions. In paragraph 41 of the judgment, the Tribunal, with regard to the liability of the Insurance Company, negatived the contention of the Insurance company that the risk of pillion rider is not covered under the Insurance Policy, and, that the Insurance Company is not liable for compensation. 9. In these appeals, Mr. Shah, learned advocate for the appellants, contended that the trial Court has seriously erred in relying on the decision of this Court in the case of G.S.R.T. Corporation, Ahmedabad vs. Union of India reported in AIR 1983 GUJ. 13. According to his submission, the said decision of this Court requires re-consideration by a Full Bench. Mr. Shah submitted that in the case of MINU B MEHTA vs. BALKRISHNA reported AIR 1977 SC 1248, the Court was called upon to decide the liability of owner or Insurance Company. The liability of the owner of the vehicle to compensate the victim in a vehicle 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 has acted during the course of his employment and that he has acted negligently. The liability in respect of death or bodily injury is to the extent of liability covered by the insurance. Therefore, if the driver had not incurred any liability in respect of death or bodily injury to any person, there is no liability of the owner and it is not intended to be covered by the insurance. The expression "liability which may be incurred by him" is meant as covering any liability arising out of the use of the vehicle. The apex Court held that a 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 a motor accident, the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. Proof of negligence is, therefore, necessary before the owner or the insurance Company could be held to be liable for the payment of compensation in a motor accident claim case. From the above observations of the Honourable Apex Court, Mr. Shah submitted that the question involved in that case was, whether the owner can be held liable or not, and the Court held that the owner can be held liable on account of vicarious liability on proof of negligence of the act of his servant, and in such a case, proof of negligence is necessary before the owner or the Insurance Company could be held liable. According to Mr. Shah, if the vehicle is insured and there is an accident on account of fault or negligence of any other agency, it is not necessary that the vehicle driver must be negligent for bringing the case within the purview and jurisdiction of the Tribunal, and according to him, the MAC Tribunal will have jurisdiction even if the driver is not negligent. 10. Mr. Shah further submitted that section 95 of the Motor Vehicles Act of 1939 (hereinafter referred to as the Act) deals with the requirements of policies and limits of liability. This section mandates that the policy of insurance must be a policy enumerated in the section. He drew our attention to section 95 (1) (b)(i), wherein the words used are "caused by or arising out of the use of the vehicle in a public place". Mr. Shah submitted that the words "caused by" indicate a direct impact of a vehicle, and the words "arising out of the use of the vehicle" indicate that there may not be a direct impact. To illustrate this, he submitted that if a vehicle in which certain persons are sitting is parked near a pole of overhead electric line, and if on account of improper maintenance of the pole it fells on the vehicle, resulting in fatal injuries to a person sitting in the vehicle, the death can be said to have caused "arising out of the use of the vehicle". 11. A Division Bench of this Court, in the case of G.S.R.T. Corporation, Ahmedabad vs. Union of India reported in AIR 1988 GUJ 13 (supra), in paragraph 12 of the judgment, considered the judgment in the case of Minu B Mehta (supra). According to Mr. Mehta, learned counsel appearing for the Insurance Company, the Division Bench has observed as under:- "Even though legislature in S. 110 (1) has employed the words 'accidents arising out of use of motor vehicles', it is now well settled by the decision of the highest court that such use must be 'negligent use' as the claim for compensation entertained by the Tribunal under S. 110 (1) is one on account of tortious liability of the driver of the motor vehicle". Mr. Mehta submitted that the apex Court has nowhere used the words "negligent use". He submitted that before the Apex Court, the question was, whether the master and the Insurance Company can be held liable or not and for that he submitted that if the driver is negligent, only then master can be held liable and the Insurance Company can be held liable vicariously, and not otherwise. He drew our attention to amendment in the old M.V. Act and a decision reported in AIR 1991 SC 1769 in the case of SHIVAJI DAYANU PATIL vs. VATSCHALA UTTAM MORE and submitted that the Apex Court has interpreted the words "arising out of the use of the vehicle" used in section 92.A. It covers accident which occurs both when the vehicle is in motion and when it is stationery. The word 'used' has a wider connotation to cover the period when the vehicle is not moving and is stationery and the use of a vehicle does not cease on account of a vehicle having been rendered immobile on account of breakdown or mechanical defect or accident. Mr. Mehta read out the judgment and submitted that the submission made by Mr. Nanavati cannot be accepted in view of the decision in the case of Shivaji Patil (supra) as it cannot be construed that the legislature would have thought it fit that a person should move from one forum to other forum for no fault liability claim and for compensation. Mr. Nanavati frankly submitted that the judgment of the Apex Court in the case of Minu  B Mehta (supra) does not deal with the jurisdiction. However, looking to paragraphs 26 and 28 of the judgment of the Division Bench of this Court in the case of GSRTC vs Union of India (supra), if an accident has been caused not on account of rash and negligent driving but on account of negligence of outside agencies, the Tribunal would lose jurisdiction for passing orders against such outside agency. We reproduce below paragraph 28 of the judgment in the case of GSRTC vs Union of India (Supra):- "So far as last type of cases are concerned on the allegations in the petition that the accident has been caused on account of composite negligence of the driver of the motor vehicle and driver of any other vehicles or outside agency application for claim would be maintainable by the Claims Tribunal but ultimately, if after hearing the parties, the tribunal comes to the conclusion that the accident has been caused not on account of the rash and negligent driving of 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 or camel cart etc. or solely on account of negligence of outside agencies, then on the said finding, the case would get out of provision of Sec. 110 (1) at that stage as the Tribunal will have to hold on facts as a consequence of its finding as aforesaid that the accident was not caused on account of any rash and negligent use of any motor vehicle. Once that consequential finding is reached, the Tribunal would lose jurisdiction for passing appropriate orders against such tort-feasor who gets outside the network of Sec.110 (1) and consequently, claim against such outsider, meaning thereby, other than driver of the motor vehicle, owner or insurance company, will have to be dismissed as not maintainable at the stage despite the finding of the Tribunal that such outsider is 100% responsible for the accident in question." 12. Mr. Shah submitted that the proposition being canvassed by learned Advocate Mr. Nanavati that Tribunal has no jurisdiction to pass award against the Municipal Corporation must be rejected in view of the provisions of the Motor Vehicles Act itself, its amendment and the decision of the Apex Court. He submitted that in the MV Act of 1939, sections 92.A and 92.E for LIABILITY WITHOUT FAULT IN CERTAIN CASES have been inserted by enacting Motor Vehicles (Amendment) Act, 1982 (Act 47 of 1982). The purpose underlying the enactment of these provisions as indicated in the Statement of Object and Reasons appended to the Bill, is as under. (See paragraph 5 of AIR 1991 SC 1769 - Shivaji Dayanu Patil (supra):- "There has been a rapid development of road transport during the past few years and large increase in the number of motor vehicles on the road. The incidence of road accidents by motor vehicles has reached serious proportions. During the last three years, the number of road accidents per year on the average has been around 1.45 lakhs and of these the number of fatal accidents has been around 20,000 per year. The victims of these accidents are generally pedestrians belonging to the less affluent sections of the society. The provisions of the Act as to compensation in respect of accidents can be availed of only in cases of accidents which can be proved to have taken place as a result of a wrongful act or negligence on the part of the owners or drivers of the vehicles concerned. Having regard to the nature of circumstances in which road accidents take place, in a number of cases, it is difficult to secure adequate evidence to prove negligence. Further, in what are known as 'hit-and-run" accidents, by reason of the identity of the vehicle involved in the accident not being known, the persons affected cannot prefer any claims for compensation. It is therefore considered necessary to amend the Act suitably to secure strict enforcement of road safety measures and also to make, as a measure of social justice, suitable provisions first for compensation without proof of fault or negligence on the part of the owner or driver of the vehicle, and secondly, for compensation by way of solatium in cases in which the identity of the vehicle causing an accident is unknown". Mr. Mehta drew our attention to Motor Vehicles Act of 1988, more particularly to section 163.A, which has been incorporated by Act 54 of 1994 w.e.f. 14.11.1994. There is a specific provision as to payment of compensation on structured formula basis. Mr. Mehta submitted that in view of increase in road accidents and use of motor vehicles, the legislature has amended the provisions. There is a mandate to have separate Tribunals to determine the claims arising out of the use of motor vehicles. According to Mr. Mehta as well as Mr. Shah, learned advocates, in a case where the claim is based on the use of a motor vehicle, the MAC Tribunal alone will have jurisdiction and such Tribunals will have to entertain the petitions. 13. Mr. Mehta further submitted that, no doubt, No Fault Liability refers to a departure from the common law principle that a claimant should establish negligence on the part of the driver of a vehicle for claiming compensation for death or bodily disablement. He further submitted that in view of the fact that if a regular suit is to be filed for claiming compensation it will take number of years to decide and when the legislature has provided the separate forum i.e. a Tribunal for deciding compensation cases arising out of use of motor vehicles, and the same being a benevolent legislation, the approach of the Court must be to ensure that the benefits and purposes underlined in such enactment is achieved. He, therefore, submitted that the term "arising out of the use of the motor vehicles" must be interpreted liberally. 14. We do not entertain the request for referring this matter to a larger Bench, as on appreciation of the evidence, we find that the driver of the moped was also negligent, while driving the moped and in not taking proper care. Mr. Nanavati also vehemently submitted that the driver was negligent. Therefore, in our opinion, the MAC Tribunal will have jurisdiction to entertain and decide the application, even in the facts and circumstances of this case. 15. It is to be borne in mind that the vehicle was a two wheeler moped, and four persons in all were riding on the vehicle, out of which two were ofcourse minors. Chapter VI of the M.V. Act provides for Control of Traffic. So far as pillion rider is concerned, section 85 is the relevant section, which reads as under :- 85. "No driver of a two wheeled motor cycle shall carry more than one person in addition to himself on the cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the cycle behind the driver's seat" Thus, it is