Case: Union Of India Vs. United India Insurance Co. Ltd. &amp; Ors

3. This is a batch of appeals preferred by the Union of India represented by the General Manager, Southern Railway. The accident occurred on 9.5.1979 at an unmanned level crossing at Akaparamoa (near Kalady) in Kerala when a hired passenger bus was hit by the Jayanthi Janatha Express at about 3 P.M. and 40 passengers in the bus and the driver thereof were killed while some other passengers sustained injuries. Two judgments of the Motor Accidents Claims Tribunal, Ernakulam in regard to the same accident are under appeal before us. In one batch of cases filed by dependents of deceased and injured persons, the Motor Accidents Claims Tribunal, Ernakulam by judgment dated 28.2.1986 held that the driver of the bus was negligent and passed awards against the owner of the bus and the Insurance Company but dismissed the claim against the Railway on the ground that there was no negligence on the part of the driver of the railway-engine concerned or on part of the Railway Administration. The liability of the Insurance Company was restricted to a maximum of Rs. 5000/- per passenger as per the statutory provisions then in force. On appeals by the Insurance company, cross objections were preferred by claimants (in some cases). The appeals and cross objections filed were partly allowed by the High Court, making the Railways also liable. In two other cases which were decided in an earlier judgment dated 27.9.1984, the same Tribunal at Ernakulam had held the Railways Administration also liable on account of its negligence in regard to the same accident. However, in both judgments, it was held that under Sections 110(1) and 110-B of the Motor Vehicles Act, 1939 an award could be passed against the railway also which view was accepted by the High Court. Against all these judgments, the Union of India has preferred these Civil Appeals. Stay of operation of the judgments was refused by this Court, pending these appeals.4. The facts of the case are as follows :The motor vehicle in question belonged to one K. Arumugham of Arni, Tamilnadu and was hired by the employees of the Survey and Land Records Dept. of the Tamilnadu State for a trip to Trivandrum, Cochin, Kalady, Guruvayoor, etc. in Kerala. One Rajan was the Manager of the tour. On 7.5.1979, the bus started at Trivandrum for Cochin. There was some delay on the way and the passengers were finding fault with the driver in regard to the said delay. It appears that the driver was angry with some of the passengers who found fault with him for delay and he told them that he would abandon the bus and leave the passengers in a forest. By noon, the bus reached Cochin and proceeded to Kalady via Angamali. The bus was to cross an unmanned level crossing at Akaparamba at about 3 P.M. The said railway crossing had no gates or stiles. It is now found on evidence that the caution board at the entrance of the level crossing was moth-eaten and the writings thereon could not be deciphered by anyone even if one was inclined to read. The train was visible to the driver and passengers at a distance of 1 km. The driver drove the vehicle and was crossing the railway line when the vehicle stopped on the track and did not move. The passengers cried and shouted in panic but the bus remained there and was pushed upto a distance of 500 metres by the locomotive. In that process forty passengers and the driver died while some other passengers were injured.

Reasoning:
The Rule therefore postulates the existence of a sign board as mentioned therein, requiring the conductor to get down. Now admittedly the writing on the sign board at the level crossing was moth-eaten and no writing was visible. Hence in our view no special obligations created by the rule, which were in addition to the common law requirements, can be said to apply. There was no notice as contemplated by the rule which laid down an extra obligation on the conductor to get down from the vehicle as stated in clause (f) of Rule 100.8. In our opinion, in the absence of a board statutorily requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop" "see and hear" and find out if any train wasas in this case, the driver did not stop the vehicle at the unmanned crossing, it must in our view be held that he was guilty of negligence even though there was no curve or obstruction at the point. The Tribunal and the High Court were, in our opinion, justified in finding negligence on the part of the driver. Of course, the High Court felt that the driver who must be deemed to be conscious that his own life was at stake could not be accused of criminal negligence in wanting to kill the passengers even if he was angry with their complaint of delay. The High Court thought that the case might be one where the driver took a risk which ought not to have been taken and the engine of the bus for some unknown reasons, might have failed, while it was on the track. In any event, the finding of negligence of the bus driver does not call for interference.There is a well-known principle in the law of torts, called the doctrine of identification or imputation. It is to the effect that the defendant can plead the contributory negligence of the plaintiff or of an employee of the plaintiff where the employee is acting in the course ofother words, the principle of contributory negligence is confined to the actual negligence of the plaintiff or of his agents. There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train or the captain of a ship on the one hand and the passengers on the other hand are to be identified so as to fasten the latter with any liability for the formers contributory negligence. There cannot be a fiction of the passenger sharing a right of control of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a backseat driver. (Prosser and Keeton on Torts, 5th Ed., 1984 P. 521-522). It is therefore clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved - could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, - the driver and owner of the bus and, if proved, the railways - can all be jointview of the above provision, which does not cast a direct obligation on the railway administration, several High Courts have taken the view, and in our opinion, rightly that the statutory duties of the Railway Administration under Section 13 do not arise unless a requisition is made by the Central Government. The above anomaly has naturally compelled the Courts to fall back upon the common law duties resting on the Railways. It has been contended for the claimants that under the common law, the Railways, as an occupier of the level crossing for the purpose of running railway trains which are inherently dangerous to those who use the public road at that point, has special responsibilities as a responsible body to see that accidents are kept at the minimum.The law in this behalf is again well settled that the claimants can at their choice sue the railways to enforce either or both types of these duties. i.e. under common law as well as underthe same decision of the Privy Council in Commissioner for Railways v. McDermott (supra), it has been stated that the Railways duty of care at common law is based on the principle of neighbourhood laid down by Lord Atkin in Donoghuev. Stevenson, 1932 AC562 inasmuch as the Railwaycarrying an inherently dangerous activity of running express trains through a level crossing which was lawfully and necessarily used by local inhabitants and their guests and persons visiting them on business. Such an activity was likely to cause accidents, unless it was carried with all reasonable care.... In principle, the liabilities is not based, however on matters of title but on the perilous nature of the operation and the de facto relationship which after Donoghue v. Stevenson (supra), would be called proximity or "neighbourly relation between the railway operator and a substantial number of persons lawfully using the levelduty to care at common law is therefore based upon the dangerous or perilous nature of the operations of the railways.In the case before us the Railways have led no independent evidence of any application of mind to these issues. Obviously, the railways presumed that the negligence of the driver of the bus could be imputed to the passengers but this, as stated by us under Point 2 is legallythe aforesaid reasons, no case is made put by the appellant for disturbing the finding of the High Court that applying common law principles, the Railway must also be deemed to be negligent is not converting the unmanned level crossing into a manned one with gates, - having regard to the volume of rail and road traffic at this point.We are of the view that the principle laid down by Mason, J. is clearly applicable here. This general expectation of the community so far as the railways are concerned can be summarised from the following passage in Halsburys Laws of England (Vol. 34, Negligence, 4th Ed. 1984, para 73). It is stated that "a plaintiff is entitled to rely on reasonable care and proper precautions being taken and, in places to which the public has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting". Hasbury then refers to a large number of cases of railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the railways at level crossings, the first precondition is, in our view, clearly satisfied.We make it however clear that Stovin v. Wise is not to be readily invoked in every case of non-exercise of statutory powers unless the two pre- conditions laid down in the judgment of the majority in Stovin v. Wise are satisfied. [For discussion on Stovin v. Wise and recent views in Newzealand, Canada & Australia - See Jackson & Powell on Professional Negligence (4th Edn., 1997 pp. 26 to 41), Aronson and Whitemore, Public Torts and Contracts Australia, (1982), Craig (1978) 94 L.Q.R 428; Bowman & Bailey: 1984 P.L. 27.] We should not also be understood as saying that all unmanned level crossings should have gates with watchmen. It all depends on the volume of traffic at the point and the applicability of the principles stated above in Points 3 &our view, the second part of Section 110-B extracted above is purely procedural when it refers to the specification of the amounts payable by the insurer or owner or driver and has no bearing on the scope of the jurisdiction conferred by Section 110(1) upon the Tribunals. That question was to be decided by interpreting the plain words, "arising out of the use of the vehicle" occurring in Section 110(1) and is not in any manner controlled by Section 110(B). The scope of the jurisdiction is clear. In NewIndia Insurance Co. Ltd. v. Shanti Mishra, 1975(2) SCC840, this court stated that the provisions in Chapter VIII of the 1939 Act contained a law "relating to change of forum". It was specifically held that the "jurisdiction of the Civil Court is ousted as soon as the Claims Tribunal is constituted and the filing of the application before the Tribunal is the only remedy available for the claimant". It was again held in Gujarat State RTC v. Ramanbhai Prabhatbhai, 1967(3) SCC 234 that Chapter VIII provided for an "alternative forum" to the one provided under the Fatal Accidents Act for realisation of compensation payable on account of motor vehicle accidents.42. In our view, the Tribunal is clearly an alternative forum in substitution for the Civil Court for adjudicating upon claims for compensation arising out of the "use of motor vehicles". This is further made clear from Section 110-F of the Act which states that no Civil Court shall entertain any question "relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal". In our view, when we are concerned only with Section 110(1) and when Section 110-B does not and cannot control Section 110(1), a claim is entertainable by the Tribunal, if it arises out of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as joint tort-feasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the Civil Court not only against the owner/driver and insurer of the motor vehicle but also against others who are found to be joint tort feasors. The words "use of the motor vehicle" are also to be construed in a wideSection 110-E of the Act provides for recovery of the compensation "from any person" as arrears of land revenue and recovery under that Section is not restricted to the owner/driver or insurer specified in the second part of Section 110-B. Obviously the words `from any person are referable to persons other than the driver/owner or insurer of the motor vehicle.43. For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort-feasors, and if arising out of use of the motor vehicle. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the railways if its negligence in relation to the same accident was also proved. We find that there has been a conflict of judicial opinion among the High Courts on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General Insurance Co. Ltd. v. Union of India, 1975 ACJ 33 (AP) : AIR 1975 AP 222 took the view that the claims before the Tribunal are restricted to those against the driver, owner and insurer of the motor vehicles and not against the railways. But on facts the decision is correct inasmuch as though it was an accident between a lorry and a train at a railway crossing, it was a case where the driver, cleaner etc. travelling in the lorry were injured and there was no claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the Tribunal had jurisdiction was negatived. In our view, on facts the decision is correct because the plea was one of the exclusive negligence of the railway. In Union of India v. Bhimeswara Raddy, 1988 ACJ 660 (AP), though the driver and owner were parties, the ultimate finding was that the driver of the motor vehicle was not negligent and the sole negligence was that of the railway. The case then at that stage comes out of Section 110(1). Here also the conclusion on facts, in our view, is correct. But certain general broad observations made in these two cases that in no circumstances a claim can be tried by the Tribunal against the persons/agencies not referred to in the second part of Section 110-B, are not correct. Similarly the Gauhati High Court in Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR 1974 Gau. 31, by the Orissa High Court in Orissa RTC Ltd. v. Umakanta Singh, (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. Kailasam, 1974 ACJ 488 (Mad.) have held that no award can be passed against others except the owner/driver or insurer of the motor vehicle. On the other hand the Allahabad HIgh Court in Union of India v. Bhagwati Prasad, AIR 1982 (AII) 310, the majority in the Full Bench of the Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 ACJ 344 (P&H), the Gujarat High Court in Gujarat SRTC v. Union of India, (AIR 1988 Guj. 13 ), the Kerala High Court in the judgment under appeal and in United India Insurance Co. v. Premakumaran, 1988 ACJ 597 (Ker.) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 ACJ 366 (Raj.) have taken the view that a claim lies before the Tribunal even against another joint tort-feasor connected with the same accident or against whom composite negligence is alleged.44. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati, Orissa and Madras High Courts is not correct and that the view taken by the Allahabad, Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal.