IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.2727 of 2002 The Managing Director Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd., Dindigul ... Appellant / Respondent Vs. A.Rajasekar ... Respondent/Petitioner This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the judgment and decree dated 12.10.2001 of the Motor Accidents Claims Tribunal (Sub Court), Namakkal made in M.C.O.P.No.494/98. For Appellants : Ms.S.Geetha For Respondent : Mr.T.M.Ramalingam J U D G M E N T This Civil Miscellaneous Appeal has been preferred by the Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd, Dindigul against the judgment and decree of the Motor Accidents Claims Tribunal (Sub Court), Namakkal dated 12.10.2001 made in M.C.O.P.No.494/98 on its file, awarding a sum of Rs.3,95,988/- as compensation for the injuries sustained by the respondent herein, which amount was directed to be paid along with an interest at the rate of 9% per annum from the date of petition till realisation and with proportionate cost. 2. The averments made by the respondent herein/petitioner in the MCOP, in brief, are as follows:- The respondent herein/petitioner, aged about 42 years as on the date of accident, along with his friends Selvaraj and Kanagasundaram, went to Dindigul on 11.08.1998 for supplying medicines and also to get orders for further supply in connection with his business. On 13.08.1998 they were returning to Velur, Karur district travelling in the bus bearing Regn.No.TN-57 N-0941 belonging to the appellant Transport corporation. The said bus stopped at Karur and the passengers were allowed to take tiffin. As there was some dispute between the driver of the bus belonging to the appellant transport https://hcservices.ecourts.gov.in/hcservices/ corporation and one of the passengers regarding the loss of side glass pane, there occasioned a delay in the said bus starting from Karur. At that juncture, the petitioner and others intervened and brought about a compromise between the driver and the said passenger. However, the driver of the bus started the bus in a rash and arrogant manner and was driving the same in a rash and negligent manner. When the bus was nearing the level crossing of the railway line in NH-7 in between Karur and Velur, the petitioner and others saw the train fast approaching towards the level crossing and shouted hysterically to stop the bus. But the driver of the bus belonging to the appellant transport corporation, without heeding any attention to the shouts of the passengers, continued to drive the same in a rash and negligent manner and tried to cross the level crossing without noticing the red signal at the level crossing and the level crossing barrier that was coming down. On seeing the same the petitioner ran towards the back portion of the bus to escape, but meanwhile the express train No.6711 bound for Madurai hit the bus, as a result of which he was thrown inside the bus and was dragged along with the bus. Initially the petitioner was taken to Karur government hospital where from he was sent to Namakkal Thangam hospital on 14.08.1998 at about 10.00 a.m. Then he was taken to Salem for taking scanning and X-Rays. Again he was brought back to Namakkal and he was treated as an in-patient for about one month. Despite treatment, the injuries resulted in permanent disability affecting his career as Medical Representative. Therefore, the appellant transport corporation is liable to pay compensation to the respondent herein/petitioner. Though the respondent herein/petitioner would assess the damages at a higher amount, he restricts his claim to Rs.4,00,000/-, which amount, should be directed to be paid along with future interest and costs. 3. The said claim was resisted by the appellant transport corporation by filing a counter statement, the contents of which, in brief, are as follows:- a) The petition for compensation is not maintainable either in law or on facts. All the petition allegations should be proved by adducing proper evidence. The petition allegations regarding the manner in which the accident took place and the alleged injuries sustained by the respondent herein/petitioner are not true. The petitioner should also prove that the injuries sustained by him in the accident led to permanent disability. The above said accident did not occur due to the rashness or the negligence on the part of the driver of the bus belonging to the appellant transport corporation. On the other hand, the railway administration was totally responsible for the accident. When the bus belonging to the appellant transport corporation, on its way from Madurai to Salem, was approaching the place of occurrence, railway gate No.36A had been kept open without causing any hindrance to the flow of road traffic through the said level crossing. In addition to that, there was no signal indicating that the train was approaching towards the said level crossing. As a number of vehicles proceeding in front of the appellant's bus were crossing the said level crossing, the driver of https://hcservices.ecourts.gov.in/hcservices/ the bus also was in the process of crossing the railway line at the said level crossing. But, unfortunately express train No.6711 running between Chennai and Madurai came there at a high speed and dashed against the bus belonging to the appellant transport corporation. The railway administration had failed to take pre- cautionary measures by locking the railway gate to prevent the flow of road traffic when the train was approaching the said level crossing. There was also no signal functioning at the time of accident. The said lapse on the part of the railway administration alone was the cause of the accident. b) Be that as it may, the respondent/petitioner who has chosen to file a petition claiming compensation should have impleaded the railway administration also as a necessary party to the proceedings. Since the railway administration has not been made a party, the claim petition is liable to be dismissed on the ground of non-joinder of necessary party. Since the lapse on the part of the railway administration was the cause of the accident, if at all the respondent/petitioner is entitled to get any compensation, he can claim the same only against the railway administration and not against the appellant transport corporation/respondent in the MCOP. The petition allegations regarding the age and income of the respondent herein/petitioner in the MCOP, the nature of injuries sustained by him, expenditure incurred for treatment and the nature and extent of disability suffered by him should also be proved by adducing proper evidence. 4. Based on the above said pleadings, the appellant transport corporation (respondent) had pleaded for the dismissal of the MCOP with cost. 5. The learned Subordinate Judge as the Presiding Officer of the Motor Accident Claims Tribunal, Namakkal framed necessary points for determination and conducted an enquiry, in which three witnesses were examined as P.W.1 to P.W.3 and 20 documents were marked as Ex.A1 to Ex.A20 on the side of the respondent herein/claimant. No witness was examined and no document was marked on the side of the appellant herein/respondent. 6. The Tribunal considered the evidence brought before it in the light of the arguments advanced on either side and upon such consideration, came to the conclusion that the accident occurred due to the rashness and negligence on the part of the driver of the bus bearing Regn.No.TN-57 N-0941 belonging to the appellant transport corporation/respondent in the MCOP and that hence the appellant transport corporation was liable to pay compensation to the respondent herein/claimant. The tribunal also held that the injuries sustained by the petitioner in the above said accident led to permanent disability and awarded a sum of Rs.3,95,988/- as compensation to the respondent herein/claimant in the MCOP, directing the appellant transport corporation to pay the said amount together with an interest at the rate of 9% per annum from the date of claim till realisation and with proportionate cost. https://hcservices.ecourts.gov.in/hcservices/ 7. Aggrieved by and challenging the said award of the Motor Accident Claims Tribunal (Sub Court), Namakkal dated 20.10.2001, the appellant transport corporation/respondent in the MCOP has brought- forth this civil miscellaneous appeal on various grounds set out in the memorandum of appeal. Along with the appeal, the appellant had filed an application C.M.P.No.18540 of 2002 for reception of additional documentary evidence. Similarly, the respondent/claimant also filed a petition C.M.P.No.714 of 2008 for reception of additional documentary evidence. Both the applications were heard along with the appeal and upon such hearing, this court reserved orders and thereafter passed an order on 14.10.2008 allowing both the miscellaneous petitions. There upon by consent of the parties, one more document on the side of the respondent/claimant was marked as Ex.A21 and one document was marked on the side of the appellant/respondent as Ex.B1. Consequently, further arguments advanced on either side in the appeal were heard and the materials available on record wee also perused. 8. The points that arise for consideration in the CMA is: " 1) whether the claim made against the appellant transport corporation without impleading the railway administration is not maintainable? 2) Whether the appellant transport corporation is liable to pay compensation? 3) Whether the amount awarded by the Tribunal as compensation is excessive requiring reduction in the appeal? " 9. The sole respondent in the MCOP before the Motor Accident Claims Tribunal (Sub Court), Namakkal is the appellant herein. The claim was made by the respondent herein/injured person based on his plea that the accident occurred solely due to the rash and negligent driving of the bus belonging to the appellant transport corporation by its driver and that hence the appellant transport corporation/respondent was liable to pay compensation to the respondent herein/claimant. The appellant transport corporation, as the sole respondent in the MCOP had taken a stand that the claim was not maintainable since the railway administration was not made a party in the MCOP. When such a plea of non-joinder of necessary party is raised by the opposite party, it is quite natural for the Tribunal to frame an issue in this regard and decide that issue also. In the case on hand, though such a plea had been raised by the appellant transport corporation as the foremost plea of defence, the learned Motor Accident Claims Tribunal (Sub Court), Namakkal failed to frame an issue in this regard and decide the same. Pointing out the same, the learned counsel for the appellant argued that the judgment and award of the Tribunal suffered a vital defect and infirmity in so far as it had failed to frame a necessary point for determination and https://hcservices.ecourts.gov.in/hcservices/ decide the said point based on the pleadings raised and evidence brought before it. 10. On the other hand, the learned counsel for the respondent would contend that the mere omission to frame and decide such a point for consideration, at best, may amount to an irregularity which can be rectified in the appeal by the appellate court and that the issue being a legal issue can be framed and decided in the appeal itself based on the available materials. 11. It is an admitted fact that both parties went for trial knowing fully well the plea of defence raised by the appellant herein/respondent in the MCOP including the one questioning the maintainability on the ground of non-joinder of necessary parties. When the parties have taken part in the trial based on such rival plea, the mere omission to frame an issue will not automatically lead to the conclusion that the order of the court below should be reversed or set aside. On the other hand, in such cases, it is not only permissible but also just and necessary that such an issue is framed by the appellate court in the appeal and decided on the basis of available evidence. During the hearing of the appeal, the learned counsel appearing on either side, informed the court that they were very much aware of the legal position and that the said question could be framed and decided by this court in the appeal itself based on the evidence adduced before the Tribunal and the additional documentary evidence adduced by either party in this appeal by virtue of the order dated 14.10.2008 passed in C.M.P.Nos.18540 of 2002 and 714 of 2008. Let us now consider the plea of non-joinder of necessary party attacking the maintainability of the MCOP. 12. Admittedly the accident took place, as the bus belonging to the appellant transport corporation while crossing a manned level crossing was hit by the express train bearing No.6711 running between Chennai and Madurai belonging to the Railways. According to the respondent herein/claimant, the rash and negligent act on the part of the driver of the bus belonging to the appellant herein/respondent transport corporation was the sole cause of the accident. The respondent herein/claimant has made a clear averment to the effect that when the barrier at the level crossing was slowly coming down, disregarding the same and in an attempt to cross the level crossing before ever the train could come, the driver of the bus belonging to the Transport Corporation followed another vehicle; that in such an attempt the bus got trapped under the barrier that was coming down and that in the meanwhile the train came and hit the bus. 13. On the other hand, the appellant herein/respondent contended that the railway administration had failed to fix signal lights at the point of level crossing; that the gate keeper also failed to close and lock the gate barring entry of the motor vehicles when the train was to pass through the said level crossing and that only because of the negligence on the part of the railway administration, the accident took place. When the claimant has come forward with a https://hcservices.ecourts.gov.in/hcservices/ plea that the accident took place solely due to the negligence on the part of the driver of the motor vehicle, the mere fact that a train was also involved in the accident or that the accident took place due to the composite negligence of the driver of the motor vehicle as well as the railway administration, the same shall not be enough to reject the claim application on the ground of non-joinder of necessary parties as the railway administration has not been made a party. 14. In case of composite negligence, the liability of joint tort-feasers is joint and several and a victim who suffers injury in an accident occurring due to the composite negligence of joint tort- feasers, can claim compensation from all or any one of the joint tort-feasers. This position was made clear by a full bench of the Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9. The majority view of the full bench of Karnataka High Court in the above said case is to the effect that, in the case of a motor vehicle accident caused due to the composite negligence of the drivers of two or more vehicles, the person who is injured or the legal representatives of a person who is killed in such accident, shall be entitled to claim the entire compensation from the drivers, owners and insurers of all such vehicles or one of such vehicles alone. 15. The Hon'ble Supreme Court in Union of India Vs. United India Insurance Co. Ltd., and Others reported in 1997 (8) SCC 683 held that the Tribunal constituted under Section 110(1) of the Motor Vehicles Act, 1939 (old act) was an alternative forum in substitution of civil courts for adjudicating upon the claims for compensation in respect of the accidents arising out of the use of the motor vehicles and that the claim for compensation was maintainable before the Tribunal against the persons or the agencies which were held to be guilty of composite negligence or against joint tort-feasers. Of course in the said judgment, the Hon'ble Supreme Court has expressed a view that in case of composite negligence, the right of the claimant for compensation and the corresponding duty cast on the Tribunal are circumscribed by various checks and limitations, which directly tell upon various common law principles enunciated in English Law Textbook on torts conveying a meaning that all the joint tort-feasers should be made parties to the claim petition. However, in another case decided by the Full Bench of Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9 in respect of an accident that had occurred due to the composite negligence of the drivers of two vehicles it was held that the Motor Accidents Claims Tribunal was clearly the alternative forum in substitution of the civil court for adjudicating upon claims for compensation in respect of an accident arising out of use of the motor vehicles was joint and several and each one was responsible jointly with each and all of the others and also severally for the whole of the amount of damage caused by the tort-feasers' act irrespective of the extent of his participation and that the injured might sue any one of them separately for the full amount of loss or may sue all of them jointly https://hcservices.ecourts.gov.in/hcservices/ in the same action and even in the latter case a judgment so obtained against all of them might be executed in full against any one of them. 16. Relying on the above said majority view expressed by the Full Bench of the Karnataka High Court in Ganesh Vs. Syed Munned Ahamed and Ors. reported in II(1999) ACC 9 and the view of the Supreme Court in Union of India Vs. United India Insurance Co. Ltd., and Others reported in 1997 (8) SCC 683 cited supra, once again another full bench of the Karnataka High Court in Karnataka State Transport Corporation, Bangalore and Others vs. Arun alias Aravind and others reported in AIR 2004 Karnataka 149 expressed similar view that in case of composite negligence of drivers of two vehicles, the claimants could recover compensation from any one of the joint tort- feasers and the non-impleadment of the other joint tort-feasers was no ground either to reject the claim on the ground of absence of necessary party or to reduce the compensation in proportion to the blame worthiness of the joint tort-feaser who was not impleaded as party. Unanimous view of the full bench of the Karnataka High Court in the said case was to the effect that in case of composite negligence, non-impleadment of the joint tort-feasers was not fatal to the case; that the claimant could maintain his claim for compensation against all or any one of the joint tort feasers to its full extent and that the Tribunal should not aim at either apportioning the liability or reducing the liability in proportion to the extent of blame-worthiness of the joint tort-feasers who were not made parties, for the simple reason that such an order of apportionment would not be binding on the other joint tort-feasers. 17. In United India Insurance Co. Ltd., Vs. Prem Kumaram reported in 1988 ACJ 597, a case wherein the accident occurred as a result of the composite negligence of the driver of a motor vehicle and the railways, facts of which are similar to the facts of the case on hand, Kerala High Court held that the Motor Accidents Claims Tribunal alone had got jurisdiction to entertain a claim for compensation. When the said judgment of the Kerala High Court and the two full court judgments of the Karnataka High Court cited supra are considered in the light of the views expressed by the Supreme Court in the above said cases, this court has to necessarily come to the conclusion that the defence plea raised by the appellant herein/respondent that the claim for compensation made by the respondent herein/claimant without impleading the railway is bad for non-joinder of necessary parties has got to be discountenanced. The said contention, in the light of the above said pronouncements, deserves to be rejected as unsound and untenable. Accordingly the arguments advanced on behalf of the appellant on the above said lines is hereby rejected as there is no substance in it. 18. The learned counsel for the appellant/respondent made a further submission to the effect that even if it is assumed that an application for compensation in respect of an accident involving a motor vehicle and a train belonging to the Railways can be maintained https://hcservices.ecourts.gov.in/hcservices/ against the owner of the motor vehicle alone on the strength of the plea that there was negligence on the part of the driver of the motor vehicle, unless the respondent herein/claimant was in a position to substantiate his contention that the accident was the result of the negligence of the driver of the bus belonging to the appellant herein/respondent or that the composite negligence of the driver of the bus and the Railway Administration was the cause of the accident, the respondent herein/claimant could not sustain a claim against the appellant herein/respondent. In other words, the contention of the appellant herein/respondent is to the effect that there was no negligence, not even a composite negligence, on the part of either the appellant herein/respondent or its driver; that the accident occurred solely due to the negligence on the part of the railways and that hence though the MCOP filed against the appellant was maintainable, the appellant herein/respondent could not be held liable to pay compensation except to the extent of no fault liability under Section 140 of the Motor Vehicles Act, 1988 in the absence of proof of any amount of negligence or rashness on the part of the appellant or its employee. 19. As per Section 175 of the Motor Vehicles Act, 1988, where any Claims Tribunal has been constituted for any area, the civil court shall not have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. As per Section 165 of the Motor Vehicles Act, 1988, Tribunals may be constituted by the state government for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. A conjoint reading of Section 165 and 175 of the Motor Vehicles Act, 1988, in the light of a specific provision contained in Section 167 providing for option to the claimant to claim compensation either under the Motor Vehicles Act or the Workmen's Compensation Act, it has been held in several cases that the Tribunal constituted under the provisions of the Motor Vehicles Act shall alone have the power to deal with such a claim to the exclusion of the civil court either the claim be against the driver, owner or insurer of the motor vehicle or against a third party like Railways. However, it has also been held that unless the claimant is able to prove that there was at least a nominal degree of blame worthiness on the part of the respondent in the MCOP, the question of such respondent becoming jointly and severally liable with the other persons as joint tort feaser could not arise. In such an event the respondent against whom the claim is made shall be entitled to the dismissal of the claim petition to the extent of the claim made on the basis of alleged fault on the part of the respondent. The same is subject to the following exceptions:- i) In case the applicant coming within the category of persons eligible to claim compensation under the structured formula provided under Schedule II, as per Section 163-A of the Motor Vehicles Act, 1988 makes a claim under the said provision of law, he shall not be https://hcservices.ecourts.gov.in/hcservices/ called upon either to plead or prove any fault on the part of the driver or owner of the vehicle against whom the claim is made; and ii) In any other case the liability