Full Judgment Text
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
UNITED INDIA INSURANCE CO. LTD. & ORS.
DATE OF JUDGMENT: 22/10/1997
BENCH:
S. B. MAJMUDAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
JUDGMENT:
Present:
Hon’ble Mr. Justice S.B.Majmudar
Hon’ble Mr. Justice Jagannadha Rao
N.N. Goswami, K.L. Shukla, H.L. Agrawal, M.L. Jain, Sr.
Advs., Praveen Swarup, Satpal Singh, S. Wasim A. Qadri, P.
Parmeswaran, Rajiv Sharma, K.K. Dhawan, K.S. Rana, Hemant
Sharma, Y.P. Mahajan, A.D.N. Rao, A.K. Sharma, Rajiv Nanda,
Fizani Husain, Ravindra Kumar, Rajiv Mehta Yatendra Sharma,
Ms. Manupriya Mittal, Ms. Indira Swawhney, Ms. Indu Goswami
MS. Kamakshi, S. Mehlwal, Ms. Smitha Inna, Ms. Sushma Suri,
K.N. Bhargava, Ms. Beena Prakash, G. Prakash, K.M.K. Nair,
S. Srinivasan, Dr. K.S. Chauhan, M.K. Diwakaran Nambordiri,
Advs. with them for the appearing parties.
J U D G M E N T
The following Judgment of the Court was delivered:
WITH
(CA Nos. 3034, 3035, 3036, 3037, 3038, 3039, 3040, 3041,
3042, 3043, 3044, 3045, 3046, 3047, 3048, 3050, 3051, 3052,
3053, 3054, 3055, 3056, 3057, 3058, 3059, 3060, 3061, 3062,
3063, 3064, 3065, 3066/1990 & C.A. Nos. 7418-19/97 (Arising
out of S.L.P. (C) Nos. 17291/97 & 2918/89)
J U D G M E N T
M. JAGANNADHA RAO, J.
Leave granted in the SLPS.
Several important issues whether omission to perform
public law statutory duties can or cannot give rise to
action at private law (Point 4) and liability of public
bodies in tort while performing inherently dangerous
operations (Point 3) etc. arise for consideration in this
batch of cases.
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 Akaparampa (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 same 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
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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. 500/- 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 Section 110 (1) and 110B 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 the Court, pending these appeals.
The fact of the case are as follows:
The motor vehicle in question belonged to one K.
Arumugham of Arni, Tamilnadu and hired by 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 reached Cochin and
proceeded to Kaady via Angamali. The bus was to cross an
unmarried 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 any one even if one was inclined
to read. The train was visible to the driver and passengers
at a distance of 1 K.M. 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 meters by the locomotive. In that process
forty passengers and the driver died while some other
passengers were injured.
We have heard the counsel on both sides. From the
submissions the following points arise for consideration:
(1) What are the common law duties of a motor vehicle
driver at a railway level crossing? Whether, on facts, the
bus driver was negligent?
(2) Whether, under the doctrine of imputation the
negligence of the driver in which the passengers travelled
could be imputed to the passengers by the railways as part
of the defence for the purpose of raising a plea of
contributory negligence of the passengers?
(3) Whether under the law of torts the claimants in rail-
motor collisions can claim that the obligations of the
Railway under statute as well as under common law will run
concurrently? What are the common law duties of the railways
at level crossings and whether the Railway is bound to take
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cognizance of the increase in the volume of traffic and
ought to have installed gates and kept a watchman at the
level crossing?
(4) Whether a public authority upon whom powers are
conferred by statute to exercise discretion for benefit of
the public can be said to be under a duty of care so that
omission to exercise that power could be treated as
negligence at common law giving a right to compensation? If
not, whether there are any exceptions to the rule that a
statutory may can never give rise to a common law ‘ought’?
What is the effect of the omission of the Railways to
exercise power under Section 13(c) and (d)?
(5) Whether the Motor Accidents Claims Tribunal has
jurisdiction under Section 110(1) of the Motor Vehicles Act,
1939 read with Section 110(B) thereof (corresponding to
Section 165 and 168 (1) respectively of the Motor Vehicles
Act, 1988) to adjudicate a claim against the Railway
Administration when a motor vehicle is hit by a railway
train and whether the Tribunal can pass an award under
Section 110 (B) against the Railways also, in addition to an
award against the owner of the vehicle, driver and the
insurer?
Point 1: The facts of the case before us reveal that the
driver as well as the passengers in the bus saw the train at
a distance of one kilometer from the level crossing. But the
driver of the bus proceeded forward. The train which was a
Super fast one, was running at a speed of 75 K.M. per hour.
That would mean that it would have taken about 40-50 seconds
to reach the level crossing. It is not clear to us as to how
for the bus was at that time from the level crossing but the
evidence reveals that the bus proceeded to cross the railway
line and thereafter did not move from the track and was then
hit by the train and dragged upto 500 metres. There is no
evidence that the engine driver was negligent. In fact if he
had applied the brakes when the saw the bus about 100 feet
away while the train was running at a speed of 75 K.M. per
hour, there would have been a derailment of several
compartments of the train itself.
It was argued for the Unions of India that as a matter
of common lam duty, at the level crossing, the driver of a
motor vehicle was obliged to stop, sea, listen and get down
and proceed. Rule 100 of the Rules made by the Central
Government under the Motor Vehicles Act, 1939 which refers
to the duties of Conductors was referred to. Clause (f) of
Rule 100 (introduced w.e.f. 1.7.1965) states that the
Conductor of a stage carriage while on duty, shall,
"....while crossing an unmanned
railway level crossing with his
vehicle, require the driver to stop
the vehicle on the road at the
places notified for such stoppage
by appropriate sign board as set
out in the Third Schedule to these
Rules and on stopping, shall get
down and after making sure that no
train is approaching the level
crossing from either side, walk
ahead of the vehicle until it has
safely crossed the level crossing".
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,
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can be said to apply. There was no notice as contemplated by
the rule which laid down an extra obligations on the
conductor to get down from the vehicle as stared in clause
(f) of Rule 100.
In our opinion, in the absence of a board statutory
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 was coming. It has
been held by the U.S. Courts that there is no absolute duty
at common law to get down from the vehicle invariably. In
fact a rigid rule of getting down from the vehicle in
addition to stooping down from the vehicle in addition to
stooping locking and hearing was laid down at one time by
Justice Holmes in Baltimore & O.R. Co. Vs. Goodman 91927)
275 US 66 (72 L.Ed. 167, 48 S.Ct. 24) but such a principle
of special caution which was under adverse criticism was
rejected by Cardozc, J. in Pokora Vs. Mabash Rly.Co. (1934)
292 US (78 L.Ed. 1149, 54 S.Ct.580) stating that the
requirement of getting down from the motor vehicle was good
if there was a curve or an obstruction or such like
situation but not when the line was straight and the train
was visible. The get out of the car requirement was in the
absence of special requirement, an uncommon precaution,
likely to be futile and sometimes even dangerous’, said
Cardozo J. In our opinion, there was no duty - in the
absence of a board directing the driver or conductor - to
get out of the vehicle, but there was certainly a duty to
stop, see and hear, at the unmanned level crossing. If that
was not more, there would clearly be negligence on the part
of the driver. In fact, it has been so held by this Court,
in a case under Section 304 A, IPC that the driver must be
deemed to be rash and negligent if he did not stop the
vehicle and then see and hear, (S.N. Hussain vs. State of
A.P.) (AIR 1972 S.C.685). It was there observed:
"Where a level crossing is
unmanned. It may be right to insist
that the driver of the vehicle
should stop the vehicle, look both
ways to see if a train is
approaching and thereafter only
drive his vehicle after satisfying
himself that there was no danger in
crossing the railway track."
It was also pointed out:
"But where a level crossing is
protected by a gateman and the
gateman opens that the gate
inviting the vehicle to pass, it
will be too much to expect of any
reasonable and prudent driver to
stop his vehicle and look out for
any approaching train".
Inasmuch as 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
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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.
Point 2: The claimants are either the injured passengers or
the dependents of the deceased passengers travelling in the
ill-fated motor-vehicle. We have accepted that the driver of
the said motor vehicle was negligent. The question is
whether the driver’s negligence in any manner vicariously
attaches to the passengers of the motor-vehicle of which he
was the driver?
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 of
employment. But, it has been also held in Mills vs.
Armstrong [1988] 13 A.C. 1 (HL) (also called The Bernina
case) that principle is not applicable to a passenger in a
vehicle in the sense that the negligence of the driver of
the vehicle in which the passenger is travelling, cannot be
imputed to passenger. (Halsbury’s laws of England 4th Ed.,
1984 Vol. 34, page 74) (Ratanlal and Dhirajlal, Law of Torts
(23rd Ed. 1997 p.511) (Ramaswamy Iyer, Law of Torts, 7th
Ed., p. 447). The Barnina case in which the principle was
laid in 1888 related to passengers in a steamship. In that
case a member of the crew and a passenger in the ship
Bushire were drowned on account of its collision with
another ship Bernina. It was held that even if the
navigators of the ship Bushire were negligent, the
navigators’ negligence could not be imputed to the deceased
who were travelling in that ship. This principle has been
applied, in latter cases, no passengers travelling in a
motor-vehicle whose driver is found guilty of contributory
negligence. In other 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 of 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 former’s
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., (984
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 joint tort-feasors. Point
3. This point deals with the common law duty of railways at
level crossings. A contention was raised for the Union of
India that there was no pleading in regard to the negligence
of the Railways. This contention was rightly rejected by the
High Court. In our view, the issue framed by the Tribunal
was broad based. It read as follows:
"Whether the accident was caused
due to the negligence of all or any
of the respondents or of the bus
driver?"
The claimants and the bus owner led evidence and were
elaborately cross examined by the Railways. The Railways
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examined the engine driver and filed the report of the
Commissioner of Railways who inquired into the cause of the
accident. No other evidence was adduced by the railways. It
is well settled that when the issue framed by the trial
court is wide and parties understood the scope thereof and
adduced such evidence as they wanted to, then there can be
no prejudice and a contention regarding absence of a
detailed pleading cannot be countenanced.
We shall now deal with the main point. At the out set
it is necessary to notice the difference between the
statutes in England and in India. In England as shown below,
duties are statutorily imposed under two statutes of 1845
and 1863 directly on the Railways to erect gates and employ
watchmen, etc. at the level crossings if the Railway was
cutting across a public road. But the position in our
country is somewhat different. As pointed out by the Bombay
High Court in Henry Condor Vs. Ballaprasad Bhagwan in (1895)
in P.J. of Bombay High Court 91 by Sir Charles Sargent CJ
quoted in B.N. Ply Co. Vs. Tara Prasad) (AIR 1928 Cal 504],
the direct obligation cast on the Railway by Section 21 of
the Act 18 of 1954 was repealed later by Act 25 of 1871. To
this extent, the Indian statute therefore differs from the
English statute. Under Section 13 of the Railways Act, 1890
no such duties are imposed directly on the Railway
Administration by the Statute. The section on the other hand
only confers a power on the Central Government to issue a
requisition to the Railway administration, i.e. the General
Managers or the Railway Companies (if any) to take steps as
per section 13. Obviously, if the Central Government does
not think fit to exercise that power and does not think fit
to exercise that power and does not issue any such
requisition, the occasion for the Railway Administration to
take steps under section 13, as per the statutory mandate,
will not arise. (As to what can be the effect of an omission
to exercise this statutory power to issue a requisition,
will be dealt with separately under Point 4). Section 13 of
the Indian Act may be noticed:
"Section 13: Fences, screens, gates
and bars: The Central Government
may require that, within a time to
be specified in the requisition or
within such further time as it may
support in this behalf-
(a) boundary-marks or fence be
provided or renewed by a railway
administration for a railway or any
part thereof and for roads
constructed in connection
therewith;
(b) any works in the nature of a
screen near to or adjoining the
side of any public road constructed
before the making of a railway be
provided or renewed by a railway
administration for the purpose of
preventing danger to passengers on
the road by reason of horses or
other animals being frightened by
the sight or noise of the rolling-
stock moving on the railway;
(c) suitable gates, chains, bars,
stiles or hand-rails to erected or
renewed by a railway administration
at places where a railway crosses a
public road on the level;
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(d) persons be employed by a
railway administration to open and
shut such gates, chains or bars."
In view 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. Question then arises whether the
common law duties are concurrently enforceable alongwith or
independently of the statutory duties under section 13.
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 under statute. These aspects have been summarised
by the Privy Council in Commissioner for Railways Vs. Mr
Dermott [1966 (2) ALl E.R. 162 (PCO)]. That was a case which
arose from the judgment of the High Court of Australia. In
that case, Lord Gardinar L.C. stated:
"Theoretically, in such a
situation, there are two duties of
care existing concurrently, neither
displacing each other. A plaintiff
could successfully sue for breaches
of either or both of the
duties........"
It must, therefore, be accepted that the claimants can
sue the Railways concurrently for breach of the common law
or statutory duties or for breach of either of the duties.
The next question is as to what are the common law
duties of the Railways at level crossings from time to time?
In the same decision of the Privy Council in Commissioner
for Railways Vs. McDermott [1966 (2)) All E.R. 162 (PC)], it
has been stated that the Railway’s duty of care at common
law is based on the principle of neighbourhood laid down by
Lord Atkin in Donaghue Vs. Stevenson [1932 AC 5621] inasmuch
as the Railway
"was carrying an inherently
dangerous activity of running
express trains through a level
crossing which was lawfully and
necessarily used by local
inhabitant 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 defects relationship which
after Donaghue Vs. Stevenson 1932
A.C. 562 would be called
‘proximity’ or ‘neighbourly
relation between the railway
operator and a substantial number
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of persons lawfully using the level
crossing".
The duty to care at common law is therefore based upon
the dangerous or perilous nature of the operations of the
railways.
In Donoghue vs. Stevenson [1932 AC 562] a manufacturer
was held liable to the ultimate consumer at common law on
the principle of duty to care. Lord Atkin said "you must
take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your
neighbour. He asked: "who, then, in law is my neighbour? The
answer seems to be, persons who are closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question".
The test of breach of common law duty is again the test of a
reasonable or prudent person in the particular fact
situation, of course the amount of care, skill, diligence or
the like, varying according to the circumstances of the
particular case. The standard of foresight is again that of
a resonable person. Such a person is also expected to take
into account common negligence in human behaviour. Of
course, he need not anticipate folly in all its forms
(London Passenger Transport Board Vs. Udson [1949 A.C. 155
(HL)]. That if there is omission to exercise such a common
law duty of care, an action at common law can be filed for
non-feasance is also clear from a judgment of this Court in
Jay Laxmi Salt Works (P) Ltd. vs. State of Gujarat 1994 (4)
SCC 1. In our view, therefore, because the Railways are
involved in what is recognised as dangerous or perilous
operations, they are at common law, to take reasonable and
necessary care on the ‘neighbourhood’ principle - even if
the provisions in Section 13(c) and (d) of the Railways Act,
1890 are not attracted for want of requisition by the
Central Government.
The next important question is whether there can be any
breach or a common law duty on the part of the Railway if it
does not take notice of the increase in the volume of rail
and motor traffic at the unmanned level crossing and if it
does not take adequate steps such as putting up gates with a
Watchman so as to prevent accidents at such a point? What is
the extent of care required at common law has also been
decided.
In several cases the need to have a constant appraisal
of increase in volume of rail and road traffic at level
crossings has been treated as a requirement of the common
law. In Smith Vs. London Midland & Scottian Railway Co.
(1949 S.C. 125), Lord Cooper emphasised that the railway
should take all precautions which will Reduce the danger to
the minimum and should take into account the nature and
volume of such traffic reasonably to be anticipated’. In
Lloyds Bank Ltd. Vs. Railway Executive 1952 (1) All E. R.
1248 (CA), Denning and Romer, L.JJ had occasion to say that
the railway authorities were bound to take steps from time
to time by considering the increase in he rail and rod
traffic at the level crossing. On facts in Lloyds Bank case
it was found that 75 to 100 vehicles crossed the level
crossing per day and it was held that the railway company
could not say.
"--this increased traffic on the
road is no concern of ours.
It was their concern".
The duties of the railways treating the railway line as
an accommodation line at a private road and alternatively as
one cutting across a public road were separately considered.
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It was held that treating it as a private road, the railway
authorities ought to have taken steps to have warnings or
whistles given. Alternatively, treating it as a public road
the railways ought to have put up pates as per the Railway
Clauses Consolidation Act, 1845 and a lodge as per the
Railway Clauses Act, 1863. Under both alternatives, the
increased traffic required a re-appraisal of the measures
previously taken by the railway to prevent accidents.
In an earlier case Lush, J. also had occasion to
emphasis the need to take into account the increase in the
volume of traffic. In Cliff Vs. Midland Railway Co. (1870)
L.R. 5 Q.B. 258, he stated that the greater the thoroughfare
over any part of the line, the greater care and vigilance
that ought to be exercised by those who have the charge of
the trains. Whatever the degree of traffic may be, be it
more or less, a corresponding degree of care was required on
the part of the company.
In Halstury’s laws of England Railways Vol. 39. 4th
Edn. 1984 para 868), it is stated that if there is increase
in the number local inhabitants using the level crossing,
then reasonable additional precautions must be taken.
In regard to the absence of a proper notice board, we
may also refer to what Krishnan, Judicial Commissioner, said
in Union of India vs. Lalman S/o Badri Prasad [AIR 1954
V.P. 173. He said: "even if the car driver knew that there
was a crossing, the road users should be altered at the
proper moment" by the boards and it is not a case for remote
knowledge but "one for immediate alertness".
Further in our view, the following passage in the
judgment of the aforesaid learned Judicial Commissioner
correctly represents the position at common law:
"A level crossing is on the one
hand a danger spot in view of the
possible movement of trains, and on
the other is an invitation to the
passerby. This is a public crossing
and not merely one by private
accommodation. Therefore it is the
legal duty of the railway to assure
reasonable safety. The most obvious
way of doing it is to provide gates
or chain barriers and to post a
watchman who should close them
shortly before the trains pass.
But failure to do so is not by
itself an act of negligence
provided that the railway had taken
other steps sufficient in those
circumstances to caution
effectively a passerby of average
alertness and prudence. At a
reasonable distance on either side,
prominently written boards can be
affixed, asking the road-users to
beware of trains. If the track on
either side is visible from near
the caution board or within a short
distance from the crossing, this
would be sufficient because a
diligent road-user could look round
and see the train. On the other
hand, if there is a bend on the
track or there are trees or bush in
between, or the road on either side
of the crossing is very far below
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the level of the railway track, or
for any other similar reasons the
track is not visible beyond a short
distance, then even the caution
boards are useless. In that case
gates are indicated. Similarly
boards may be affixed along the
railway, say half to three-fourth
of a mile in either direction
ceiling upon the engine driver to
whistle. A whistle by the driver
can supplement, but cannot replace
gates or caution boards as a device
to protect the users of a
crossing."
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 legally
untenable. The High Court has noticed that 300 vehicles pass
through this point and six express trains cut across this
public road every day (obviously there must be other non-
express or passenger trains and goods trains every day). The
population in dense in Kerala and more so near Kalady, the
pilgrimage centre connected with Sri Jagadguru Adi
Sankaracharya. In Lloyd’s case 1932 (1) All E.R. 1248 (CA),
the Court of Appeal though that even when the road traffic
reached a level of 75 to 100 vehicles, the railways ought to
have, if it was a public road, put gates and a watchman, as
required by statute. The High Court, in our view, rightly
observed that the bus driver was from Tamil Nadu, he was not
familiar with this place in Kerala State where the accident
occurred, there was no caution board or other indication to
show that the road was cutting across a railway line, and
there were no gates or hand-rails to alert the passer-by. It
was held that if the Railway had taken adequate
precautionary measures such as, erecting hand rails or
gates, a severe accident like this would not have taken
place. In the absence of gates and caution board, the level
crossing was held to be in the nature of a trap.
For the aforesaid reasons, no case is made out 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 manner one with gates, - having regard to
the volume of rail and road traffic at this point.
Point 4: Point is whether omission to perform public law
statutory duties can or cannot give rise to actions at
private law and if they cannot, ordinarily, - whether there
are any exceptions?
We are here concerned with the question as to whether
omission on the part of the Central Government to take a
decision whether or not to exercise powers under Section 13
of the Railway Act, 1890 _ in particular under clause (c)
and (d) of Section 13 - amounted to a breach of a statutory
duty giving rise to a cause of action for damaged based on
negligence.
Recently this court had occasion in Rajkat Municipal
Corporation vs. Manjulaben Jayantilal Nakum 1997(9) SCC 562
to consider an analogous problem. There the issue was
regarding the omission on the part of the local authority to
remove a tree from a public road The tree later fell on the
plaintiff’s husband who was passing by the road resulting in
his death. The High Court had decreed compensation but this
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court allowed the appeal and dismissed the claim holding
that no breach of statutory duty was involved. In that
context, this court had occasion to refer to the principles
laid down by Lord Atkin in Donoghue vs. Stevenson [1932 AC
562] as regards ‘proximity’ and ‘neighbourhood’, and to the
extension of these principles by Lord Wilberforce in Anns
vs. Merton London Borough 1978 AC 728 to cases of omission
on the part of local authorities to properly scrutinise
building plans where such omissions resulted in the cracking
of walls of the buildings constructed, thereby causing
‘economic losses’. This court also referred to Murphy vs.
Brent - wood District Council 1991 (1) AC 398 which
overrules Anns.
Whether Anns was rightly overruled in Murphy in regard
to economic losses. It is not necessary for us to decide. We
shall assume Murphy is tight. We are referring to this
aspect because the extent to which private law rights under
common law can arise on account of non-performance of
statutory, mandatory or discretionary duties or omission to
exercise such statutory powers can differ from country to
country. In several common law countries, it is seen that
Anns might still be pressed into service. (See the Canadian
view of 1992 of McLachlin, L’Haureax - Dube & Cory, JJ the
Australian view of 1995 (in fact Brennanm J., whose opinion
as to incremental development of common law was the basis
for Murphy, soon found himself in a minority in later cases
in Australia); and the 1994 deviation from Murphy in New
Zealand (which was approved with special appreciation by the
Privy Council in 1996 in a case noted below) (See Jackson
and Poweli on Professional Negligence, 1997 4th Ed., p. 36-
40). In fact Bhagwati, CJ stated in M.C.Mehta & Another vs.
Union of India & Others [1987 (1) SCC 395] that the common
law in our country is to keep pace with socio-economic norms
of our country.
We may state that there are two distinct types of
cases. One relates to the omission on the part of the public
authority to perform an alleged statutory duty - as in the
Rajkot case. Another relates to omission to exercise a power
or rather not deciding whether to exercise statutory power
or not. The case before us belongs to the latter category.
Section 13 of the Railways Act, 1850 enables the Central
Government to send a regulation to the railway
administration to take certain steps in regard to level
crossings. The House of Lords in a recent case in Stoyin Vs.
Wise: 1996 (3) W.L.R 388 was directly concerned with this
second type of cases - omission to take a decision with
regard to exercise of statutory power under Section 79 of
the Highway Act. That case, we consider is more directly in
point. In that case, an earthen mound in the land of the
defendant was causing obstructor to the vision of the drives
of vehicles passing on the road at a junction and on that
account the plaintiff met with an accident and was injured.
The local authority had no power to enter on the land of the
owner and remove the mound, but had power under Section 79
to issue a requisition to the land power to remove the
mound. In fact, a requisition was sent a few days before the
accident and the land-owner was yet to respond. The claim
was based on the delay in the exercise of powre by the loc
authority, that is to say, at an earlier point of time which
according to the plaintiff, was the cause for the accident.
Lord Hoffman, speaking for the majority (it is not
necessary here for us to decide whether the minority view
------------------------------------------------------------
(1) See among others, (1997) Vol. 60. Modern Law Review p.
559 ‘Public or Private’: Duty of care in a statutory frame
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work: Stovin Vs. Wise vs. Wise in the House of Lorde by Jane
Convery. See also: (1997) Vol. 113 Law Quartersly Review p.
398. Powers and Duties - A small breach in East Suffolk Wall
by M.C. Harris where Stovin Vs. Wise was commented upon.
------------------------------------------------------------
of Lord Nicholas is not correct. We shall assume that the
majority view of Lord Hoffman is correct stated that in the
case of positive acts, the liability of a public authority
in tort is in principle the same as that of a private person
but may be restricted by its statutory powers and duties.
The argument therein - Stovin Vs. Wise was that the duty of
the highway authority was enlarged because of the statutory
powers and they created a proximity between the authority
and the road-user (p.409). But in East Buffolk Rivers
Catchment Board Vs. Kent 1941 Ac 74, Lord Romer had stated:
"Where a statutory authority is
entrusted with a mere power it
cannot be made liable for any
damage sustained by a member of the
public by reason of its failure to
exercise that power".
In Anns, this principle was somewhat deviated from. As
stated earlier the plaintiff in Anns had sued for losses to
flats in a new block which had been damaged by subsidence
caused by inedequate foundations. The contention that the
Council was negligent in the exercise of statutory powers to
inspect foundations of new buildings givingrise to a claim
for economic damage suffered was upheld. This principle was
however not accepted in Murphy to the extent economic losses
were concerned. According to Lord Hoffman, Anns was not
overruled in Murphy so far as physical injury resulting from
omission to exercise statutory powers was concerned (p 410).
A duty of care at common law can be derived from the
authority’s duty in public law to "give proper consideration
to the question" whether to exercise power or not (p. 411).
This public law duty cannot by itself give rise to a duty of
care. A public body almost always has a duty in public law
to consider whether it should exercise its powers but that
did not mean that it necessarily owed a duty of care which
might require that the power should be actually exercised. A
mandamus could require future consideration of the exercise
of a power. But an action for negligence looked back at what
the authority ought to have done. Question is as to when a
public law duty to consider exercise of power vested by
statute would create a private law duty to act, giving rise
to a claim too compensation against public funds (p. 412).
One simply cannot derive a common law "ought" from a
statutory "may". The distinction made by Lord Wilberforce in
Anna between ‘policy’ and ‘operations’ is an inadequate tool
with which to discover whether it was appropriate to impose
a duty of care or not. But leaving that distinction, it does
not always follow that the law should superimpose a common
law duty of care upon a discretionary statutory power (p.
413). Apart from exceptions relating to individual or
societal reliance on exerciwe of statutory power, - it is
not reasonable to expect a service to be provided at public
exepnse and also a duty to pay compensation for loss
occasion by failure to provide the service. An absolute rule
to provide compensation would increase the burden on public
funds.
Lord Hoffman further observed that whether a statutory
duty gave rise to a private cause of action or not was a
question of construction of the statute. It required an
examination of the policy of the statute to decide whether
it was intended to confer a right to compensation for
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breach. The question whether it could be relied upon to
support the existence of a common law duty of care was not
exactly a matter of construction because the cause of action
did not arise out of the statute itself. Whether there was a
common law duty and if so what was its ambit must be
profoundly influenced by the statutory framework within
which the acts complained of were done. The same was true of
omission to perform a statutory duty. If the policy of the
Act was not to create a statutory liability to pay
compensation, the same policy should certainly exclude the
existence of a common lae duty to care.
But it is not as ig that a statutory ‘may’ can never
give rise to a common law duty of care (p. 414). There was
exceptions in which a statutory ‘may’ could create a common
law ‘ought’.
The exceptions according to Lord Hoffman require two
conditions to be proved to postulate a duty to perform a
common law obligation within the statutory framewor of a
discretionary power. The two minimum pre-conditions for
basing a duty of care on the exercise of a statutory power
were firstly, that it would have been irrational not to have
exercised the power so that there was a public duty to act
and secondly that there were exceptional grounds for holding
that the policy of the statute must have been to require
compensation to be paid to persons who woudl suffer damage
because the power conferred was not exercised at all or not
exercised when it was generally expected to be exercised.
Lord Hoffman’s observations indicate that the agreed
that Anns was overrules in Murphy only in relation to the
extension of the neighbourhood rule as laid down in donoghue
vs. Stevenson to economic losses and that the said judgment
in Anns was not overruled so far as compensation for
physical injury (p 410). But on facts in Stovin vs. Wise,
though it was a case of personal injury, the claim against
the local authority for non-exercise of the power to direct
the land owner to remove the earthen mound was rejected by
the House of Lords on the ground that the above two
preconditions were not fulfilled. Again, Lord Hoffman stated
that the distinction made by Lord Wilberforce in Anns
between non-feasance due to ‘policy’ and ‘operations’ was
not a sound one.(2)
Having referred to the two preconditions. We shall
------------------------------------------------------------
(2) A view to the contrary was expressed in De Smith. Woolf
and Jowell in Judicial Review of Administrative Law in 1995
that Anns still holds the field in regard to ‘operations’
but that was before Stovin Vs. Wise came to be decided by
the House of Lords in 1996.
------------------------------------------------------------
now refer to the more important part of the decision of the
majority. This concerns the manner in which one can show
that the two preconditions are to be satisfied in a given
case of non-exercise of statutory powers.
So far as the first conditions relating to
irrationality is concerned, reference was made by the House
of Lords in the above case to the principle of "particular
reliance" laid down by Prennan J. of the Australian High
Court in Sutherland Shire Council vs. Heyman (1985) 157 CLR
424 (at 483) and also to the other alternative principle of
"general reliance" laid down by Mason.J in the same case
(p415). Lord Hoffman said that if the particular reliance’
of the plaintiff n respect of an expectation of exercise of
statutory power by the authority was belied, then a
conclusion can be drawn that the non-exercise was
irrational. This form of liability based upon representation
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and reliance would not depend upon the public nature of the
authority’s power and would cause no probllem.
Alternatively, if the plaintiff had no idea of particularly
relying upon the exercise of power by the authority in his
favour but if a matter of general reliance society could by
previous experience expect the exercise of such a power and
if such an expectstion stood belied, then also a conclusion
could be drawn that the non-exercise of power by the
authority was irrational. This doctrine of general reliance
according to the House of Lords had little in common with
the ordinary doctrine of reliance. Here so far as general
reliance was concerned, the particular plaintiff need not
have expected that the power would be used or need not have
even known that such a power existed. This principle is
based upon the general expectation of the community - which
the individual plaintiff may or may not have shared. A
widespread assumption would certainly affect the general
pattern of economic and social behaviour of the community.
It was further stated by the majority that this doctrine
required an injury into the role of a given statutory power
and its effect on the behaviour of the general public. On
this principle of general reliance’; their Lordships stated
that an outstanding example of its meaning was contained in
the judgment of Richardson. J of Newzealand Appeal Court in
Invercargill vs. Hamelin 1994 (3) NZLR 513 (526) which was
affirmed by the Privy Council in INvercargill vs. Hamelin
1996 (2) WLR 367 (PC). As per this principle of general
reliance propounded by Mason.J, it appeared that the benefit
of service provided under statutory powers should be of a
uniform and routins nature, so that one could describe
exactly what the public authority was supposed to do. For
example, a power of inspection for defects would clearly
fall into this category. Again if a particular service was
being provided as a matter of routine, it would be
irrational for a public authority to provide it in one case
and withhold it in another. Obviously this was the main
ground upon which in Anns it was considered that the power
of the local authority to inspect foundations gave rise to a
duty of cars.
We are of the view that the principle and 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
Helsbury’s Laws of England (Vol. 34, Negligence, 0th 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 pxblic has access, he is
entitled to assume the existence of such protection as the
public has, through custom, become justified in expecting"
Halsbury 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.
As to the second condition, namely, whether the statute
can be takne to have intended to provide compensation for
the injury arising out of non-exercise of statutory powers,
Lord Hoffman again referred to Mason. J’s Judgment where he
said that such a policy to pau compensation could be
inferred if the power was intended to protect members of the
public, from risks against which they could not guard
themselves i.e. having regard to the expense involved or the
highly technical nature of safeguards needed to be taken or
because the safeguards have to be taken in the premises of
the public authority. In the Invercargill case the
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Newzealand Court of Appeal found it in the general pattern
of socio-economic behaviour. A careful analysis of community
behavious was therefore warranted. It is therefore necessary
to know exactly what in the judgment of the Australian High
Court, Mason J stated. He observed as follows: (at p460 of
157 CLR)
"But an authority may by its
conduct place itself in such a
position that it attracts a duty of
care which calls for exercise of
the power. A common illustration is
provided by the cases in which an
authority in the exercise of its
functions has created a danger,
thereby subjection itself to a duty
of care for the safety of others
which must be discharged by an
exercise of its statutory powers or
by giving a warning. That it is the
conduct of the authority in
creating the danger that attracts
the duty of care is demonstrated by
Sheppard Vs. Glossop Corporation
1921 (2) K.B. 132
-----------------------------------
-------------------------
There are situations in which the
authority’s occupation of premises
or its ownership or control of a
structure in a highway or public
place attracts to it a duty of
care.
And then there are situations in
which a public authority not
otherwise under a relevant duty may
place itself in such a position
that others rely on it to take care
for their safety so that the
authority comes under a duty of
care calling for positive action
....... Marcer vs. South Eastern &
Chetham Railway (1922 (2) KB,
549)".
Thereafter Justice Mason touched the crucial aspect in
this branch of law which was quoted by the House of Lords)
in Stovin Vs. Wise. That passage refers to the special
duties of public authorities recognised by the legislature
to cover situations in which it is necessary to presume the
inability of the public to protect themselves against
certain serious and complex risks. That passage reads as
follows:- (6464)
"Reliance or dependance in this
case is in general the product of
the grant (and exercise) of powers
designed to prevent or minimise a
risk of personal injury of
disability recognized by the
legislature as being of such
magnitude or complexity that
individuals cannot, or may not,
take adequate steps for their own
protection. This situation
generates on one side (the
individual) a general expectation
that the power will be exercised
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and on the other side (the
authority) a realisation that there
is a general reliance or dependance
on its exercise of power to act
..... The control of air traffic,
the safety inspection of air craft
and the fighting of a fire in a
building by a fire authority may
well be examples of this type of
function."
The reference here to air traffic and fire fighting
department, in our view,mis illustrative but important and
in our opinion the principle laid down by Mason, J. clearly
extends to other operations which are inherently dangerous
or complex against which members of the public cannot
protect themselves. In Canada, it has been held in Swanson
Estate Vs. Canada (1991) 80 D.L.R. (4th) 741 by Linden J.A.
that the special protection in favour of the Government
"must be limited only to those functions of Government that
are considered to be ‘governing’ and that the decision of
the regional director of a licencing body to allow an
airline to continue unsafe flying practices was not part of
a governmental function and the transport regulator was
liable for negligence. In last Vs. British Columbia (1990)
64 D.L.R (4th) 689 it was held that reduction in budgetary
allotment for road inspection to prevent accidents could be
a protected policy decision only if it constituted a
reasonable exercise of funds. The running of trains by the
railways, as pointed out by the Privy Council in
Commissioner for Railways Vs. Mc Dermott 1966(2) All E.R.
162 (PC) has been recognised as inherently preilous and, in
our view, certainly creates, in the minds of the public a
general expectation that safety measures _ whcih the public
canot otherwise afford, have been taken by the railway
administration. In our opinion, the steps mentioned by the
legislature in the various clauses of Section 13 of the
Railways Act, 1890 are in the words of Mason, J. steps
which, even according to the legislature, individual members
of society can not afford to take and are not capable of
taking, having regard to the expense or expertise involved
or for the reason that these steps have to be taken in or in
respect of the property of the railways. Applying the
principle laid down by Lord Hoffman, in Stovin vs. Wise,
there is, in our opinion a clear indication in section 13(c)
and (d) of the Railways Act itself that the affected parties
are intended to be compensated because of the non-exercise
of the aforesaid statutory powers by the railways. Thus the
second condition as to a statutory intent of providing
compensation is also satisfied.
Once the two preconditions laid in Stovin vs. Wisa are
satisfied both as to non-exercise of statutory powers which
was irrational and as to the statutory intent of payment of
compensation for injury or death due to running inherently
dangerous services in respect of which individuals cannot
afford to protect themselves the conclusion is irresistible
that the non-exercise of public law or statutory powers
under Section 13(c) and (d) did create a private law cause
of action for damages for breach of a statutory duty. The
case falls within the exception where a statutory ‘may’
gives rise to a ‘common law’ ought.
We make it however clear that Stovin Vs. Wise is not to
be eadily 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 vs. Wise are
satisfied.(3) We should not also be understood as saying
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that all unmanned level crossings should have gates with
watchman. It all depends on the volume of traffic at the
point and the applicability of the principles stated above
in Points 3 & 4.
Point 5: Under Section 110(1) of the Motor Vehicles Act,
1939 (corresponding to Section 165 of the 1988 Act) Claims
Tribunals have been constitured for adjudicating
------------------------------------------------------------
(3) For discussion on Stovin Vs. Wise and recent views in
Newzealand, Canada & Australia - See Jackon & Powell on
Professional Negligence (4th Edn., 1997 pp. 26 to 41),
Aronson and Whitemore, Public Torts and Contracts
Australia, 1982); Craig (1978) 94 L.W.R 428; Bowman &
Bailey: 1984 P.L. 27.
------------------------------------------------------------
upon claims for compensation in respect of accidents
involving the death or bodily injury of persons, "arising
byt of the sue of motorvehicles or damage to any property of
a third party "so arising" or both. Section 110 (1) in out
view deals with the jurisdiction of the Tribunal. On the
other hand, Section 110-B (corresponding to Section 168(1)
of the new Act of 1988) is procedural and is in two parts.
The first part states that after following certain
procedure, the Claims Tribunal shall "make an award
determining the amount of compensation which appears to it
to be just and specifying the person or persons to whom
compensation shall be paid". Obviously, the word
‘compensation’ here in the first part of Section 110(B) is
referable to the compensation to be decided by the Tribunal
under Section 110 (1). But it is the second part of Section
100 B on which the appellant (Union of India) has relied and
that part reads as follows:-
"In making the award the Claims
Tribunal shall specify the amount
which shall be paid by the insurer
or owner or driver of the vehicle
involved in the accident or by all
or any of them, as the case may
be".
It is stressed for the appellant that because of the
specific reference here to the insurer, owner and driver, an
award cannot be passed by the Tribunal against anybody else.
In our view, the second part‘ of Section 110-P extracted
above is purely procedural when it refers to the
specification of the amounts payable by the insurer or owner
driver and has no bearing on the scope of the jurisdiction
red by Section 110(1) upon the Tribunals. That question has
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 New India Insurance
Co. Ltd. vs. Shanti Mishra 1975 (2) SCC 840, 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 vs. Ramanbhai Prabhatbhai 1987 (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.
In our view, the Tribunal is clearly an alternative
forum in substitution for the Civil Court for adjudicating
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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 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 point 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 be
construed in a wide manner. The above words were interpreted
by this Court in Shivaji Davanu Patil vs. Vatschala Uttam
More: 1991 (3) SCC 530, in the context of Section 92A. This
Court in that connection referred to the Australian case in
Government Insurance Office of N.S.W vs. R.J. Green & Lloyds
Pvt. Ltd. (1965) 114 C.L.R 437 and to the observations of
Barwick CJ that those words have to be widely construed. We
may also refer to the observations of Windeyer J. in same
case to the following effect:-
"........ no sound reason was given
for restricting the phrase, "the
use of a motor vehicle" in this
way. The only limitation upon its
........... that I can see is that
the injury must be one in sany way
a consequence of a use of the
vehicle as a motor vehicle".
Further, Section 110-E of the Act provides of 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.
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
composites, negligence or are joint tort feasors, and if
arising out of use of the motor vehicle. We hold 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 vs. Union
of India 1975 ACC 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 through 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
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exclusive negligence of the railway. In Union of India vs.
Bhimeswara Reddy [1988 ACT 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 sale
negligence was that of the railway. The case then at that
stage comes out of Section 110 (1). Here also the concluded
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 vs. National Transport India
(Pvt.) Ltd.s [AIR 1974 Gav.31], by the Orissa High Court in
Orissa RTC Ltd. vs. Umakanta Singh (AIR 1987 Orissa 110) and
the Madras High Court in Union of India vs. Kailasan 1974
AC] 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 vs. Bhagwati Prasad AIR 1982 (All) 310, the
majority in the Full Bench of the Punjab & Haryana High
Court in Rajpal Singh vs. Union of India 1986 ACT 344 (P&H),
the Gujarat High Court in Gujarat SRTC vs. Union of India
(AIR 1988 Guj.13), the Kerala High Court in the Judgment
under appeal and in United India Insurance Co. vs.
Premakumarar [1988 ACT 597 (Ker)] and the Rajasthan High
Court in Union of India vs. Dr. Sewak Ram 1993 ACT 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.
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 Court 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 them
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.
We may however add that if, as of today, any claims
against persons other than the driver\owner\insurer are
pending in Civil Courts, but which as per the law
hereinabove stated ought to have been lodger before the
Tribunal, then the Civil Courts concerned shall return the
plaints and the claimants could present the same as a
petition before the Tribunals. In that event, they shall be
dealt with as if they are claim petitions presented before
the Tribunals on the date on which the plaints were filed in
the Civil Courts and shall be disposed of under the
provisions of the Motor Vehicles Act and in accordance with
law.
For all the aforesaid reasons, these appeals are
dismissed but without costs.
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