Ali v. Madhavan — 1989 DIGILAW 457 (KER)

Judgment :- Jagannadha Raju, J. 1. This is an appeal by the claimants who are the parents of the deceased Dr. K.P. Mohammed Ashraf, who died in an accident which took place at 1.30 P.M. on 1-1-1979 in front of the Karuna Hospital, Cheruvannur. The appellants filed M.A.C. No.940 of 1980 which was originally numbered as O.P.No.183 of 1979 on the file of the District Court, Kozhikode. In the O.P. the claimants claimed a compensation of Rs.3,00,000/- for the death of their son. The Motor Accidents Claims Tribunal, Kozhikode, by its judgment dated 28-6-1984 dismissed the O.P. on the ground that the accident took place as a result of rash and negligent driving of the motor-cycle by the deceased and that it was a clear case of motor-cycle coming and dashing against the bus, which was on its right side of the road. The Tribunal held that the petitioners failed to prove negligence on the part of the bus driver, the second respondent. Aggrieved by the dismissal of O.P. the present appeal is filed. 2. In this appeal Shri. T. H. Abdul Aziz, counsel appearing for the claimants - appellants, contends that the judgment of the Tribunal is wholly unjustified. The accident took place in the middle of the road and it is a clear case of the bus, KLZ 6364, driven by the second respondent, at great speed and in a negligent manner, coming and dashing against the motor-cycle of the deceased who was coming in the opposite direction. There is no acceptable reason to doubt the evidence of PWs.3 and 4 who are eye-witnesses to the accident. While PW3 saw the accident while he was on the road, P W4 who is a passenger in the offending bus saw the accident while he was sitting in the front portion of the bus to the left of the driver of the bus. The Tribunal went wrong in placing reliance on interested evidence of RW1, the driver, and the evidence of RW2, the Assistant Sub Inspector of Police, who prepared Ext. R2 inquest report long after the accident took place. The decision of the Tribunal is mostly based upon the inquest report and no reasons are given for discarding the evidence of PWs.3 and 4 and preferring the recitals in the inquest report. R2 inquest report long after the accident took place. The decision of the Tribunal is mostly based upon the inquest report and no reasons are given for discarding the evidence of PWs.3 and 4 and preferring the recitals in the inquest report. Shri. Aziz further contends that it is clear from the evidence that the accident took place in the course of the bus overtaking another bus and after hitting the motor-cycle it dragged the motor-cycle and the injured to some distance. The skid mark of 8 metres length clearly indicates that the bus was travelling at a terrible speed. He contends that at the most it can be said that the driver of the motor-cycle, the deceased, is guilty of contributory negligence for the accident. Under no circumstances, can it be said that he is solely responsible for the accident. Shri. Aziz argues that this is a case where res ipsa loquitur applies, and there is a presumption in favour of negligence on the part of the bus driver. As a last argument Shri. Aziz urges the court to appreciate the evidence in a sympathetic manner and on humanitarian considerations as the deceased, a young promising doctor, aged 26 years, died in the accident. 3. The learned counsel for respondents land 2, the bus owner and the driver, contends that PWs.3 and 4 are trumped-up eye-witnesses procured by the uncle of the deceased doctor. Their evidence was rightly discarded by the Tribunal. The evidence of PWs. 3 and 4 does not indicate in which portion of the road the accident and the impact took place and how it took place. The evidence on record clearly indicates that the motor-cycle driven by the deceased came at great speed and on its wrong side and violently dashed against the bus, which was travelling on its right side. The theory of the accident taking place while the bus was overtaking another bus is demolished by the circumstantial evidence and the position of the bus and the motor-cycle. The physical features noticed at the time of inquest are consistent with the case of the motor cycle coming and dashing against the bus. They are not consistent with the case of the bus going to the wrong side of the road and dashing against the motor-cycle. The physical features noticed at the time of inquest are consistent with the case of the motor cycle coming and dashing against the bus. They are not consistent with the case of the bus going to the wrong side of the road and dashing against the motor-cycle. The existence of skid mark of 8 metres length only proves that the driver applied breaks and took precautions to avoid the accident. But inspite of the care and caution exercised by the bus driver the deceased came on his motor-cycle and dashed against the bus in a violent manner and met his death. The damage caused to the bus itself shows that it is a case of the motor-cycle coming and dashing against the bus violently. The deceased alone is responsible for the accident. The evidence of RWs 1 and 2 completely demolishes the theory of the bus going and dashing against the motor-cycle and then dragging the motor-cycle and the deceased. The injuries found on the deceased are not consistent with the case of injuries caused by dragging. The evidence of RWs 1 and 2 appears to be truthful and is fully supported by Ext.R2 and the circumstantial evidence. The very fact that the driver of the bus was acquitted in the criminal case lends support to the theory that the driver of the bus is not at fault. He further contends that in this case there is absolutely no scope for invoking the doctrine of res ipsa loquitur. 4. Shri. S. Parameswaran, appearing for the insurance company, the third respondent, contends that in this case no appeal lies against the order of the Tribunal because the Tribunal dismissed the claim petition. He contends that under S.110-D of the Motor Vehicles Act an appeal would lie only when the Tribunal passed an award. He contends that on the facts of this case, the doctrine of res ipsa loquitur has no application. That doctrine can be invoked only where injuries are caused by first causing the injuries to the inanimate objects and then accident taking place. Here the case is one of the motor-cycle coming at a high speed, going to its wrong side, and dashing against the bus. At the worst it can only be said that there is contributory negligence on the pan of the bus driver. Here the case is one of the motor-cycle coming at a high speed, going to its wrong side, and dashing against the bus. At the worst it can only be said that there is contributory negligence on the pan of the bus driver. Under no circumstances on the basis of the evidence available in this case can it be said that the accident was the direct result of the negligence of the bus driver. Shri. Parameswaran contends that the Tribunal correctly appreciated the evidence on record. PWs 3 and 4 appear to be trumped-up eye-witnesses and the Tribunal's conclusion that the deceased alone is responsible for the accident is perfectly correct. 5. On the basis of the rival contends, the following points arise for determination: (1) whether an appeal does not lie in the present case as the Tribunal dismissed the Claim Petition and as the Tribunal did not pass an award; (2) whether the accident took place as a result of rash and negligent driving of the motor-cycle by the deceased or whether it took place as a result of rash and negligent driving of the bus KLZ 6364 by the second respondent, the bus driver, or, whether it is the result of contributory negligence on the pan of the deceased and the second respondent; (3) whether PWs 3 and 4 are real eye-witnesses to the accident or whether they are trumped-up eye-witnesses procured by the uncle of the deceased; (4) whether the circumstantial evidence in Exts.R1 and R2 and the evidence of RWs 1 and 2 prove the case set up by respondents 1 and 2; and, (5) are the claimants en titled to any compensation and if so to what amount. 6. Point No.1: The argument of Shri. S. Parameswaran, counsel for the third respondent, that by reason of the language of S.110-D of the Motor Vehicles Act, no appeal would lie against an order dismissing an M. V. O.P. appears to be attractive, but we are not convinced about it. S.110-D is in two parts. Sub-section (1) states that any person aggrieved by an award of a Claims Tribunal may within 90 days from the date of the award prefer an appeal to the High Court. A person whose Claim Petition is dismissed is certainly an aggrieved party. The word used in the Section is "award" and not "judgment". S.110-D is in two parts. Sub-section (1) states that any person aggrieved by an award of a Claims Tribunal may within 90 days from the date of the award prefer an appeal to the High Court. A person whose Claim Petition is dismissed is certainly an aggrieved party. The word used in the Section is "award" and not "judgment". An award granting compensation is an instance of court passing an award for a certain sum. The order dismissing an O.P. amounts to an award, where no sum or nil sum is granted. It is true under sub-section (2) an appeal will not lie if the amount in dispute is less than Rs.2,000/-. Where the amount in dispute is less than Rs.2,000/-only a revision would lie under Art.227 of the Constitution. This very question was considered by a Full Bench of this Court in Pennamma Pillai v. Nambi,1981 KLT 479 (F. B.) to which one of us is a party. The Full Bench observed as follows in Para.10 and 11: "10. After holding the inquiry directed to be held, the Claims Tribunal decides the claim. The Claims Tribunal is by S.110-B enabled to quantify the amount of compensation and make an enforceable award (decision) where it finds that the applicant is entitled to compensation. In case where the Claims Tribunal finds that the applicant is not entitled to compensation, it makes an award (decision) holding so. That its decision in either of the cases mentioned above is an award is clear from S.110-B of the Act which provides for recovery of money in cases 'where any money is due from any person under an award' suggesting thereby that under all awards money may not be due to the applicant. 11. In the backdrop of the discussion in the preceding paragraphs we hold that a decision of the Claims Tribunal dismissing an application filed under S.110A of the Act at any stage of the inquiry held under S.110-B of the Act and for whatsoever reasons, is an award under S.110-B and that consequently, S.110-D of the Act is attracted to such a decision" (emphasis supplied) The Full Bench decision is a complete answer to the argument of the learned counsel for the third respondent. We hold point No.1 against the third respondent. (Paras. 7 to 14 omitted being appreciation of evidence) 15. We hold point No.1 against the third respondent. (Paras. 7 to 14 omitted being appreciation of evidence) 15. In view of our conclusions on points 3 and 4, we hold that the accident took place solely due to the rash and negligent driving of the motor-cycle by the deceased and that the accident is not due to any rash and negligent driving of the bus by the second respondent. The second respondent is in no way responsible for the accident. He is not even guilty of contributory negligence for this accident. 16. Though the appellants' counsel has invited the court to apply the principle of res ipsa loquitur to this case, we find on the facts, there is absolutely no scope for invoking the doctrine of res ipsa loquitur. We are thankful to Shri. S. Parameswaran who made a thorough study of the case and enlightened us as to how in a case of this nature, the doctrine of res ipsa loquitur cannot be invoked. He has taken us through pages 73 to 80 in the book Winfield & Jolowicz on Tort, 10th Edition. He has also taken us through the decision of the Supreme Court in Syed Akbar v. State of Karnataka, 1980 A.C.J. 38. This decision deals elaborately with the maxim res ipsa loquitur and its applicability in India and as to how far this doctrine, res ipsa loquitur, fits in with the conceptual pattern of the Indian Evidence Act. After examining the evidence on record, we find that there is absolutely no scope for applying the doctrine of res ipsa loquitur to the facts of this case. In this view of the matter, it is unnecessary to discuss in detail the numerous decisions brought to our notice by Shri. S. Parameswaran. 17. Point No.S: Though the appellants' counsel requested the court to consider the facts of the case in a sympathetic and humanitarian manner, considering the fact that a young doctor with promising career ahead of him died in the accident; he did not provide us any legal basis by which this Court could help the dependants of the deceased. The accident took place on 1-1-1979 long before S.92A of the Motor Vehicles Act was introduced into the statute book. S.92A was introduced by Act 47 of 1982 and it came into force on 1-10-1982. Under this Section the principle of no fault liability was introduced. The accident took place on 1-1-1979 long before S.92A of the Motor Vehicles Act was introduced into the statute book. S.92A was introduced by Act 47 of 1982 and it came into force on 1-10-1982. Under this Section the principle of no fault liability was introduced. According to sub-section (2) a fixed sum of Rs.15,000/- is payable as compensation in the case of death, even without proof of negligence. Dealing with S.92A, a Division Bench of this Court in Krishna Pillai Bhaskara Pillai v. Jaleel Ahamed & Others, 1989(1) KLT 942 =1989(1) KLN 8 laid down that no fault liability can be recognised and compensation awarded under S.92A, even if no formal application is filed for granting compensation under S.92A. The Division Bench observed at page 10 as follows: "In other words, it creates a no fault liability to the extent indicated above. This is clear from sub-section (3) which states that the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle or of any other person" Then dealing with sub-section (2) the court observed as follows: "Sub-section (2) quantifies the claim, that is, Rs.15,000/- in the case of death and Rs.7,500/-in the case of permanent disablement. There is nothing in S.92A which would indicate that the owner can be ordered to pay compensation only on a claim application to be filed by the claimant." After dealing with the scope and ambit of S.92A in conjunction with S.110A, the court observed in Para.7 at page 11 as follows: "To hold that the liability can be recognised only in cases where formal application is filed will go against the salutary purpose of the provision. It is necessary for the claimant to bring it to the notice of the tribunal so as to enable the tribunal to exercise its jurisdiction under S.92A. If the tribunal for some reason or other fails to take into consideration this aspect, parties could bring this to the notice of the tribunal in order to enable the tribunal to exercise its jurisdiction. Where however the tribunal foils to exercise its jurisdiction, it is open to the appellate court to pass appropriate order. If the tribunal for some reason or other fails to take into consideration this aspect, parties could bring this to the notice of the tribunal in order to enable the tribunal to exercise its jurisdiction. Where however the tribunal foils to exercise its jurisdiction, it is open to the appellate court to pass appropriate order. We see no reason to reject the claim for compensation under S.92A." This decision clearly establishes that even in cases where no formal application is made for granting the benefit under S.92A, it is open to the Tribunal or the Appellate Court before which a matter is pending to exercise the jurisdiction under S.92A and award the compensation in accordance with S.92A, The further question is whether S.92A can be given retrospective effect. As pointed out earlier, it came into statute book on 1-10-1982. The accident in the present case took place on 1-1-1979. A Division Bench of this Court had occasion to consider this question in Vilasini V. K. S. R. T. C., 1988 (1) KLT 915. After considering the objects and reasons of the amending Act and the purpose sought to be achieved by introducing S.92A, the court dealt with the question as to whether S.92A has to be given retrospective effect or not from Para.7 onwards. The court took into consideration a Single Judge decision of the Rajasthan High Court in Narendra Singh v. Oriental Fire and General Insurance Co. Ltd., Delhi, AIR 1987 Raj. 77, which held that S.92A is in the spirit of social welfare legislation and should be interpreted beneficially in favour of the claimant and in such a matter the technicalities of law should not be allowed to have any upper hand and to obliterate the beneficial and social justice orientations of the enactment. The Division Bench disagreed with the Division Bench decision of the Allahabad High Court in Ram Mani Gupta and others v. Mohammed Ibrahim and others, 1985 ACJ. 476 and the single judge decision of the Rajasthan High Court in Yashada Kumari and others V. Rajasthan Road Transport Corporation, Jaipur and others, 1984 ACJ 716, but agreed with the decision of the Bombay High Court in Oriental Fire & General Insurance Co. 476 and the single judge decision of the Rajasthan High Court in Yashada Kumari and others V. Rajasthan Road Transport Corporation, Jaipur and others, 1984 ACJ 716, but agreed with the decision of the Bombay High Court in Oriental Fire & General Insurance Co. Ltd. v. Shantabai S. Dhume and others, 1987 ACJ 198, and came to the conclusion that as indicated by the Bombay decision S.92A is to be applied to all pending cases irrespective of the date on which the accident occurred, as the amendment Act is a beneficial piece of legislation intended to give benefits to all victims who were involved in the accident due to no fault basis and to remove the mischief that people suffered the accident had to face, being sometimes unable to prove the negligence or rashness of the driver or owner of the vehicle. The court gave its final conclusion in Para.17 at page 919 in the following terms: "17. Bearing in mind that S.92A is a social welfare legislation intended to remove the difficulties faced by the victims to establish the rashness and negligence on the part of the driver of the vehicle, we are inclined to hold that the provisions contained in S.92A are applicable to the pending proceeding also." The Division Bench preferred to follow the Bombay decision ignoring the decision of the Division Bench of the Allahabad High Court and the Single Judge decision of the Rajasthan High Court. In that decision the Division Bench was dealing with a case where the accident took place on 29-5-1982, that is before the amendment. We respectfully follow the Bench decision of this Court in Vilasini v. K. S. R. T. C., 1988 (1) KLT 915, and hold that in the present appeal the benefit of S.92A can be granted, though the accident took place on 1-1-1979. As the present proceeding is a pending proceeding, the appellants are entitled to the advantage of S.92A. Following the decision of this Court in Krishna Pillai Bhaskara Pillai v. Jaleel Ahamed & Others, 1989(1) KLT 942 =1989 (1) KLN 8 we hold that no separate application is necessary for invoking the aid of S.92A. In this view of the matter, we hold on Point No.5 that the claimants-appellants are entitled to compensation on the basis of no fault liability as per S.92A. 18. In this view of the matter, we hold on Point No.5 that the claimants-appellants are entitled to compensation on the basis of no fault liability as per S.92A. 18. In the result the appeal is allowed in part There shall be an award granting compensation of Rs.15,000/- under S.92A against the respondents. The liability is joint and several. The appellants-claimants are entitled to 12% interest from the date of the O.P., that is 30-6-1979, to the date of payment. Allowed in part.