Case: Minu B. Mehta And Another Vs. Balkrishna Ramchandra Nayan And Another

2. The applicant in Application 727 of 1969 before the Motor Accident Claims Tribunal for Greater Bombay is one Dr. Balkrishna Ramchandra Nayan practising in Bombay and is the first respondent in this appeal. On April 14, 1969 at about 1.00 p.m. the respondent was driving his car No. MRC 4450 towards Fort side on Dr. Annie Basant Road. With him was sitting on the left side in the front seat Malati M. Deshmukh, his nurse. The road has stone dividers in the middle of the road. When the car approached Lotus Cinema, the truck owned by the appellants and insured with the Insurance Company who were opposite parties 1 to 3 before the Motor Accidents Claims Tribunal came from the opposite direction at a high speed and dashed against the right side of the car. Due to the impact the car was damaged and the first respondent and Malati M. Deshmukh were injured. Respondent 1 had to undergo treatment. He was operated on the day of the accident itself and was patient in his own Nursing Home for a month till May 15, 1969. According to him his right arm was operated and kept in plaster and that he had become permanently disabled in discharging his duties as a surgeon and that he had incurred a loss during the closure of the Nursing Home and loss of income due to permanent injury along with other claims. He claimed a sum of Rs. 3 lakhs by way of general and special damages with interest thereon from the date of his application. The owners of the vehicle filed a written statement refuting the claim of the applicant. According to them while the motor lorry was proceeding from Haji Ali towards Worli, they had taken all precautions to keep the lorry in roadworthy condition and that at the material time the axle brake ring of the motor lorry came out and the driver therefore lost control of the vehicle and because of this defect which can develop in a running car the driver lost control of the steering wheel. According to them the lorry prior to the accident was being driven at a moderate speed with due care and caution. They contended that the accident did not occur on account of rash and negligent driving on the part of the driver. They also denied the claim of various items of compensation made by the applicant3. The Motor Accidents Claims Tribunal framed four issues. The first two issues were whether the applicant had proved that the driver of the lorry was driving the vehicle in rash and negligent manner and whether the opposite party had proved that at the time of the accident the axle brake ring of the motor lorry came out and the driver lost control of the motor lorry. The other two issues related to the question as to whether the applicant received the injuries as a result of this accident and whether he was entitled to the compensation claimed by him4. The applicant examined himself and Malati M. Deshmukh who was travelling with him at the time of the accident regarding the incident. He also examined PWs 2 and 3, PW 2 a nurse to prove his income from his profession and PW 3 a doctor who treated him. On behalf of the appellant six witnesses were examined in support of their case that the accident was due to a mechanical failure and not due to any rashness or negligence on the part of the driver5. The Tribunal after elaborately discussing the oral and documentary evidence adduced before it found that the accident was due to the rash and negligent driving of the driver of the lorry and the defence set up that the accident was due to mechanical failure of the lorry was unacceptable6. The Claims Tribunal accepting the evidence of the applicant and a Customs Officer, Mr. Jawkar, who was examined as DW 4 on the side of the appellant, came to the conclusion that when the doctor was in the traffic lane nearer to the road divider the lorry crossed the road divider and hit the car. The defence witness himself stated that the lorry came after crossing the central barricade. The lorry went off the track and went on the wrong side and collided with the oncoming car of the applicant who was in his car. Referring to his notes the witness stated that the right side of the lorry went and hit the right side of the car of the applicant. The portion of the lorry upto the drivers seat collided with the right side of the car. Both the wheels of the front side of the lorry had crossed the central reservation tract and so also the right rear wheel was on the wrong side and only the left rear wheel was just near edge of the central reservation tract towards Lotus Cinema. On the face of the evidence of the doctor and their own witness DW 4 who was travelling in the lorry there could be no denying the fact that the lorry crossed the middle of the road7. Relying on the evidence of the two witnesses as well as the doctrine of res ipsa loquitur the Claims Tribunal rightly found that the applicant had established rash and negligent driving on the part of the driver of the lorry. The Accidents Claims Tribunal has also discussed elaborately the defence set up on behalf of the owners of the lorry and rejected it. The plea that was taken in the pleadings was that at the time of the accident "Axle Brake Ring" of the lorry came out. The expert examined on behalf of the owner, Jimmy Dara Engineer, DW 6, stated that he had never heard of any such part as axle brake ring and he has never seen such a part. The owners subsequently explained that what they meant by " Axle Brake Ring" was drag link on the rod end. The Claims Tribunal also referred to the evidence of the expert examined on behalf of the owners and remarked that the nut on the pin could not be blown off all of a sudden and that the driver, unless he was negligent, could feel the change if there was anything wrong with the drag link end and can stop the vehicle immediately. Rejecting the evidence of the driver and relying on the evidence of the expert on the side of the defence that even if there was any defect the vehicle could be stopped within 4 or 5 feet and need not cover the distance which it did, the Claims Tribunal also found that the defect which the defence witness, Motor Vehicle Inspector Pratapsingh Chavan, DW 1, saw when he examined the lorry on April 22, 1969, could not be accepted as the owners of the lorry could have played mischief and created evidence before inspection on April 22, 1969. Criticising the conduct of the owners as unworthy of their status the Claims Tribunal totally rejected the defence8. Regarding the compensation the Claims Tribunal fixed the amount at Rs. 1, 43, 400 together with interest at 6 per cent. This sum was apart from a sum of Rs. 500 which was found payable to Malati M. Deshmukh who had sustained injuries. The Claims Tribunal directed the owners as well as the insures jointly to pay the amount, to the respondent Dr. Balkrishna Ramchandra Nayan. It also directed the opposite parties and insurers to pay Rs. 1000 as costs and Rs. 100 as costs of Malati M. Deshmukh9. The Claims Tribunal fixed a sum of Rs. 83, 779 as the loss sustained by the doctor for a period of 4 years from the date of the accident. It also for a subsequent period of 7 years fixed the future loss at Rs. 9000 a year and a total amount of Rs. 63, 000. In addition it awarded a sum of Rs. 5000 for discomfort and inconvenience suffered by the doctor. Thus the total compensation that was granted amounted to Rs. 1, 43, 400. As already stated the interest was awarded from the filing of the application till payment10. The insurance company as well as the owners of lorry preferred appeal against the award of the Tribunal in Appeal 449 of 1975 before the High Court of Bombay. Though the appeal was filed on behalf of the insurance company and the owners of the lorry, during the hearing of the appeal it was contended on behalf of the insurance company that in any event the liability of the insurance company under the policy could not exceed Rs. 20, 000. The High Court on the question of whether there was negligence on the part of the driver of the lorry or not found itself in complete agreement with the Claims Tribunal and observed that it was for the lorry driver and owners to establish as to how the lorry crossed the road dividers, went on the wrong side and mounted on the Fiat Car coming from the opposite direction. Agreeing with the Tribunal it found that the driver was negligent. The High Court concurred with the reasons and findings of the Tribunal. It also held in the circumstances of the case that the principle res ipsa loquitur applied. The High Court also rejected the defence taken by the owners that the injury was due to a mechanical defect and not due to the negligence. After referring to the evidence and the reasoning of the Tribunal on he defence set up by the owners the High Court came to the conclusion that the plea about the breaking of the tie rod was not proved satisfactorily by the owners. The High Court regarding the defence raised found itself in complete agreement with the conclusion arrived at by the Tribunal observing that the Tribunal rightly disbelieved the defence plea and came to the conclusion after careful consideration of the evidence of the driver, Customs Officer and other evidence in the case that it was the driver who was negligent11. Regarding the quantum of damages the High Court expressed its opinion that the Tribunal had made best efforts and tried to determine the compensation in a just manner on the facts and circumstances of the case. It confirmed the amount as awarded by the Tribunal and dismissed the appeal. The High Court dismissed the appeal of the owners and the insurance company and confirmed the award passed by the Tribunal. But it gave liberty to the insurance company to apply to the Claims Tribunal on depositing Rs. 20, 000 within interest from the date of the application to the date of the deposit for determination of the question that the liability of the insurance company is limited only to Rs. 20, 000. The High Court directed the Tribunal to decide the question of the liability of the insurance company on its application under Section 110E after giving opportunity to the parties to put forward their cases. The insurance company was directed to pay the costs of all the parties. It also provided that the claimant was at liberty to withdraw Rs. 20, 000 with interest when deposited by the insurance company. The order also made it clear that the right of the applicant to recover the balance of the awarded amount from the other party or from the insurance company will not in any way be affected12. The appeal to this Court is preferred by the owners. The insurance company is impleaded as the second respondent in the appeal before us.

Reasoning:
We find that the High Court has given a clear finding in paragraph 30 of its judgment that the Tribunal rightly disbelieved the plea and held that it was driver who was negligent and that they fully concur with the reasons and findings of the learned Members of the Tribunal. In the face of the clear finding we are unable to accept the plea of the learned Counsel that this question was not gone into by the High Court. We find ourselves in complete agreement with the finding of the Tribunal and the High Court that it was due to rash and negligent driving of the lorry that the car in which the applicant and Malati M. Deshmukh were travelling was hit causing injuries to both of them. We accept the testimony of the doctor and DW 4 Jawkar that the lorry crossed the road dividers, ran into the wrong side and hit the car which was driven by the applicant. We have no hesitation in accepting the concurrent findings of the High Court and the Claims Tribunal that the accident was due to the rash and negligent driving of the lorry driver. We have also no hesitation in rejecting the testimony of the defence that there was some mechanical defect which resulted in the tie rod end breaking. We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them. In this connection we may also point out that in order to succeed in a defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition. No such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners14. In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owners is not liable if the accident is due to a latent defect which is not discoverable by reasonable care15. The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remained hidden. In this case in the written statement all that is pleaded is that the axle brake ring of the lorry came out and the driver lost control of the motor lorry and that the defect can develop in a running vehicle resulting in the drivers losing control of the steering wheel. Though it was stated that all precautions were taken to keep the lorry in a roadworthy condition it was not specifically pleaded that the defect i.e. the axle brake ring coming out, is a latent defect and could not have been discovered by the use of reasonable care. This lack of plea is in addition to the lack of evidence and the fact that the defence set up has been rightly rejected by the TribunalWe have considered this contention carefully but taking all the circumstances into account we do not feel called upon to interfere with the quantum arrived at by the Tribunal and confirmed by the High CourtUnder Section 95(1)(b) (i) of the Act, it is required that policy of insurance must be a policy which insures the person against any liability which may be incurred by him in respect of death or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. It may be noted that what is intended by the policy of insurance is insuring a person against any liability which may be incurred by him. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The accident to which the owner or the person insuring is liable is to the extent of his liability in respect of death or bodily injury and that liability is covered by the insurance. It is therefore obvious that if the owner has not incurred any liability in respect to death or bodily injury to any person there is no liability and it is not intended to be covered by the insurance. The liability contemplated arises under the law of negligence and under the principle of vicarious liability. The provisions as they stand do not make the owner or the insurance company liable for any bodily injury caused to a third party arising out of the use of the vehicle unless the liability can be fastened on him. It is significant to note that under sub-clause (ii) of Section 95(1) of the Act, the policy of insurance must be insure a person against the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Under Section 95(1)(b) clause (ii) of the Act liability of the person arises when bodily injury to any passenger is caused by or use of the vehicle in a public place. So far as the bodily injury caused to a passenger is concerned it need not be due to any act or liability incurred by the person. It may be noted that the provisions of Section 95 are similar to Section 36(1) of the English Road Traffic Act, 1930, the relevant portion of which is to the effect that a policy of insurance must be policy which insures a person in respect of any liability which may be incurred by him in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle on road. The expression "liability which may be incurred by him" is meant as covering any liability arising out of the use of the vehicle. It will thus be seen that the person must be under a liability and that liability alone is covered by the insurance policy25. Section 96 of the Act also makes the position clear. It provides that when a judgment in respect of such liability as is required to be covered by a policy is obtained against any person insured by the policy then the insurer shall pay to the person entitled the benefit of the decree as if he were a judgment-debtor. The liability is thus limited to the liability as is covered by the policy33. The reasoning of the two learned Judges is unacceptable as it is opposed to basic principles of the owners liability for negligence of his servant and is based on a complete misreading of the provisions of Chapter VIII of the Act. The High Courts zeal for what it considered to be protection of public good has misled it into adopting a course which is nothing short of legislation34. Equally unacceptable is the view of the Bench of the Andhra Pradesh High Court in Haji Zakaria v. Naoshir Cama (supra) wherein the Court concluded without any hesitation that the liability to compensate arises when death or bodily injury to any person or damage to any property of a third party is caused by or arising out of the use of the vehicle in a public place and to infer the qualifications or limitations that such death or bodily injury should have been caused before such liability arises only on account of rash and negligent driving would amount to introducing something which is not there and would be violating and transgressing the clear provisions of the statute and intention of the legislatureWe conclude by stating that the view of the learned Judges of the High Court has no support in law and hold that proof of negligence is 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.