Maniyan, S/o. Bhargavan pillai v. Kerala State Road Transport Corporation
2025-08-04
C.S.SUDHA
body2025
DigiLaw.ai
JUDGMENT : C.S. SUDHA, J. This appeal under Section 173 of the MOTOR VEHICLES ACT , 1988 (the Act) has been filed by the claim petitioners in O.P.(MV) No.2293/2014 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram (the Tribunal), aggrieved by the dismissal of the claim petition by Award dated 31/10/2018. The respondents herein are the respondents in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition. 2. The claim petitioners are the husband and two children of the deceased. According to the claim petitioners, on 09/05/2014 at about 04:00 p.m., while the deceased was travelling as passenger in K.S.R.T.C. bus bearing registration no. KL-15/5937 and when the bus reached near Asan Square, Opposite to MLA Hostel, Thiruvananthapuram, due to the rash and negligent driving of the second respondent she was thrown out from the bus, as a result of which she sustained grievous injuries, to which she succumbed. An amount of Rs.15,00,000/- was claimed as compensation under various heads. 3. The second respondent/driver remained ex parte. 4. The first respondent/owner filed written statement contended that there was no negligence on the part of the second respondent/driver. It was also contended that the amount claimed was excessive. 5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A6 were marked on the side of the claim petitioners. No documentary evidence was adduced by the respondents. 6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found that there was no negligence on the part of the second respondent/driver of the offending bus and hence dismissed the claim petition. Aggrieved by the Award, the claim petitioners have come up in appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 8. Heard both sides. 9. It is submitted by the learned counsel for the claim petitioners that the Tribunal grossly erred in dismissing the claim petition on the ground that there was no material to show rashness or negligence on the part of the second respondent/driver of the offending vehicle. In fact, the materials on record show negligence on the part of the second respondent/driver.
It is submitted by the learned counsel for the claim petitioners that the Tribunal grossly erred in dismissing the claim petition on the ground that there was no material to show rashness or negligence on the part of the second respondent/driver of the offending vehicle. In fact, the materials on record show negligence on the part of the second respondent/driver. The principle of res ipsa loquitur is squarely applicable to the facts of the present case, which aspect is quite evident from Ext.A1 final report. In the light of Ext.A1 no further evidence was required to be adduced by the claim petitioners, who are the legal heirs of the deceased. In support of the argument reference is made to the dictums of the Apex Court in Shyam Sunder v. State of Rajasthan , CDJ 1974 SC 342 ; Asha Devi v. Assistant Director, State Insurance and Provident Fund Department , 2021 ACJ 2679 ; Kaushnuma Begum v. The New India Assurance Co. Ltd , 2021 KHC 115 ; a Division Bench judgment of this Court in New India Assurance Company Ltd. v. Pazhaniammal , 2012 ACJ 1370 and two judgments of the Shillong Bench of the High Court of Gauhati and the High Court of Sikkim, Gangtok namely Meltina Shabong v. Oriental Insurance Co.Ltd , 2014 ACJ 813 and Branch Manager, ICICI Lombard General Insurance Co.Ltd. v. Dichen Bhutia , 2017 ACJ 918 9.1. Per contra, it is submitted by the learned counsel for the first respondent/owner of the bus that there is no material(s) on record to show that there was any rashness or negligence on the part of the second respondent/driver. Hence, t he Tribunal was right in dismissing the application under Section 166 of the Act finding no negligence and so no interference is called for. 10. In Kaushnuma Begum (Supra), the question that arose for consideration was whether a claim could be maintained before the Tribunal on the basis of the principle of strict liability propounded in Rylands v. Fletcher ( 1861-1873 All England Reports 1 ). The accident which gave rise to the claim occurred on 20/03/1986. The vehicle involved in the accident, a jeep, capsized while in motion. The cause of the capsize was attributed to the bursting of the front tyre of the jeep.
The accident which gave rise to the claim occurred on 20/03/1986. The vehicle involved in the accident, a jeep, capsized while in motion. The cause of the capsize was attributed to the bursting of the front tyre of the jeep. In the process of capsizing, the jeep ran over the deceased who was walking on the side of the road, causing his death. The owner of the jeep disclaimed the liability by denying even the fact of the accident. Alternatively, he contended that if at all any liability is found against him in respect of the jeep, the same should be realised from the insurer as the vehicle was covered by a valid insurance policy. The said contention of the jeep owner was rejected by the Tribunal. As the reason for the vehicle capsizing was the sudden bursting of the wheel, the Tribunal held that there was no rashness or negligence of the driver of the jeep and hence the claim for compensation was dismissed. The Tribunal directed the insurer to pay Rs.50,000/- to the claimants by way of no fault liability contemplated under Section 140 of the Act. 10.1. When the matter came up before the Apex Court the question whether in cases where there is no negligence or rashness on the part of the driver, but accident happens while the vehicle is in use, could the owner be held liable for damages to the person who suffered on account of such accident, was considered. The rule in Rylands (Supra) was followed and it was held that even apart from Section 140 of the Act, a victim in an accident which occurred while using the motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions to the rule of strict liability applies. 11. In Pazhani Ammal (Supra) the deceased was a passenger in a vehicle. While the vehicle was being driven, the deceased made some movement inside the jeep as a result of which the door of the jeep opened and the deceased was thrown outside the jeep, resulting in his death. The Tribunal found negligence on the part of the driver of the jeep and awarded compensation making the owner, driver and insurer liable.
While the vehicle was being driven, the deceased made some movement inside the jeep as a result of which the door of the jeep opened and the deceased was thrown outside the jeep, resulting in his death. The Tribunal found negligence on the part of the driver of the jeep and awarded compensation making the owner, driver and insurer liable. The insurer assailed the Award on the ground that the Tribunal erred in directing payment of amounts under Section 166 of the Act in the absence of a specific finding about negligence on the part of the driver or owner of the vehicle. Rejecting the argument of the insurer, it was held that the rule in Rylands (Supra) and the doctrine of res ipsa loquitur would apply to the facts of the case. Prima facie, the charge sheet field by the police after due investigation can be accepted as evidence of negligence against the indictee and the Tribunal is not to ritualistically insist on oral evidence to prove negligence. It is sufficient that negligence on the part of the driver or owner is established from the totality of circumstances. In the facts of the case, it was held that even in the absence of a specific finding on the question of negligence by the driver, the impugned award was justified as it was the duty of the driver in charge of the vehicle to be responsible for the safety of all the passengers in the vehicle. It was up to him to ensure that the doors were properly locked/fastened before he started driving the vehicle. The said burden on the driver was elementary and fundamental in the interests of the safety of persons who were being carried in his vehicle. It was noticed that there was no case that the door which was properly locked/fastened was opened by any of the passengers negligently. Such a plea, if any, ought to have come from the driver/owner. In the absence of such a plea, negligence stood established from the totality of the facts and circumstances and the same clearly constituted the foundation of the direction to pay compensation. Holding so, the Award was upheld. 11.1. In Shyam Sunder (Supra) the deceased was Store Keeper, Office of the Executive Engineer, PWD, Bhilwara, Rajasthan. In connection with the famine relief work undertaken by the department, he was required to proceed to Banswara.
Holding so, the Award was upheld. 11.1. In Shyam Sunder (Supra) the deceased was Store Keeper, Office of the Executive Engineer, PWD, Bhilwara, Rajasthan. In connection with the famine relief work undertaken by the department, he was required to proceed to Banswara. For the said purpose, he boarded a truck owned by the department from Bhilwara in the morning of 19/05/1952 and reached Chittorgarh in the evening. Besides the deceased, there were the driver, cleaner and another person in the truck. On 20/05/1952, they resumed the journey from Chittorgarh by about 11:00 a.m. and reached Pratapgarh in the evening. The truck then started from the said place to Banswara by about 10:00 a.m. on 21/05/1952. After travelling for a distance of about 4 miles, the engine of the truck caught fire. As soon as the fire was seen, the driver alerted the occupants to jump out of the truck. Consequently, the deceased and the other persons in the truck jumped out of the vehicle. The deceased struck against a stone lying by the side of the road and died instantaneously. In the suit for damages under the Fatal Accidents Act, 1855 filed by the widow against the State, it was alleged that it was on account of the negligence of the driver of the truck, that a truck which was not roadworthy was put on the road and that it caught fire which led to the death of the deceased. Hence the State was liable for the negligence of its employee in the course of his employment. On the other hand, it was contended by the State that the vehicle had developed some mechanical trouble as a result of which it caught fire and hence there was no negligence on the part of the driver. The Trial court finding that the act of the driver in putting the truck on the road was negligent as the truck was not roadworthy held the driver to be negligent and hence the State was vicariously liable for the act of its employee and so granted a decree in favour of the plaintiff. In appeal before the High Court, the judgment of the trial court was reversed holding that the plaintiff had failed to prove that the driver was negligent and that in the facts of the case the maxim res ipsa loquitur was not applicable. 11.2.
In appeal before the High Court, the judgment of the trial court was reversed holding that the plaintiff had failed to prove that the driver was negligent and that in the facts of the case the maxim res ipsa loquitur was not applicable. 11.2. When the matter came up before the Apex court, the main point for consideration was “whether the truck catching fire was evidence of negligence on the part of the driver in the course of his employment”. The trial court was found right in inferring negligence on the part of the driver of the truck because generally/normally, an ordinary roadworthy vehicle would not catch fire. The act of the driver of putting the vehicle on road, which was not roadworthy, was a negligent act. The materials on record revealed that the radiator of the vehicle was frequently getting heated and the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh. The fact that normally a motor vehicle will not catch fire if its mechanism is in order, would indicate that there was some defect in it. The trial court based on the testimony of the witnesses concluded that the driver knew about the defective condition of the truck when he started the journey from Bhilwara. The driver was in management of the vehicle and the accident was such that the same does not happen in the ordinary course of thing. There was no material(s) on record to show the reason for the truck catching fire. No explanation was also given by the driver or the department concerned. It was a matter within the exclusive knowledge of the defendant and it was not possible for the plaintiff to give evidence as to the cause of the accident. In the said circumstances, the maxim res ipsa loquitur was held to be attracted. Holding so, the judgment and decree of the trial court was restored. 11.3. In Asha Devi (Supra), the deceased was a cleaning employee with the Municipal Council. He had gone in the tractor to pick up garbage. The tractor met with an accident as a result of which he sustained fatal injuries.
Holding so, the judgment and decree of the trial court was restored. 11.3. In Asha Devi (Supra), the deceased was a cleaning employee with the Municipal Council. He had gone in the tractor to pick up garbage. The tractor met with an accident as a result of which he sustained fatal injuries. The Tribunal dismissed the claim petition filed by his wife holding that negligence of the driver of the tractor had not been established.The Apex court relying on the dictum in Shyam Sunder (Supra) held that it was the driver of the accident who was the best person to say the manner in which the accident took place and to establish that he was not negligent in driving the tractor. The doctrine of res ipsa loquitur was found to be applicable as the respondents had failed to discharge the onus on them to prove that the accident was not on account of any negligent driving of the tractor. 11.4. According to the claim petitioner in Meltina Shabong (Supra), her husband had boarded a bus. During the journey, the bus took a sharp turn as a result of which, her husband was thrown out of the bus resulting in causing fatal injuries to him. The accident was alleged to be due to the rash and negligent driving of the bus driver. The insurer contested the claim and contended that the deceased was travelling on the roof top of the bus without the permission of the driver or the conductor. The deceased had climbed on to the roof top without the notice of the driver or conductor and hence died due to his own negligence for which the insurer could not be held liable. Before the tribunal, both sides let in oral and documentary evidence. The witnesses of the claim petitioner testified that the deceased was travelling inside the bus and it was due to the negligence of the driver of the bus, the accident had occurred. On the other hand, the witnesses on the side of the insurer testified that the deceased was hanging on the back carrier of the bus without the knowledge of the driver or conductor of the vehicle. The Tribunal believing the testimony of the respondents, dismissed the claim petition.
On the other hand, the witnesses on the side of the insurer testified that the deceased was hanging on the back carrier of the bus without the knowledge of the driver or conductor of the vehicle. The Tribunal believing the testimony of the respondents, dismissed the claim petition. When the matter came up before the High Court, it was held that normally it is for the claimant to prove negligence and not for the insurer/owner to disprove it. However, there is an exception as in some cases considerable hardship would be caused to the claim petitioner as the true cause of the accident may not be known to him/her. In such cases, it may be possible to prove the accident but not as to how it happened to establish negligence on the part of the driver. It is in such circumstance that the maxim res ipsa loquitur is required to be applied. The High Court on a re-appreciation of the oral evidence let in by the rival parties found that the deceased had boarded the bus from the starting point and that the bus had moved non-stop till the accident occurred. The testimony of the witnesses of the claim petitioner who deposed that the deceased was travelling inside the bus and that he was sitting near the rear door of the bus was believed. In the said circumstance, the driver of the bus was found negligent and so the judgment of the Tribunal was set aside and the appeal was allowed. It was also held that even assuming that the deceased was on the roof top of the bus, it could be presumed that he was allowed to travel on the roof of the bus. Hence the driver of the bus was expected to take care so that the person on the roof top may not fall down or meet with any accident. 11.5. In Dichen Bhutia (Supra), the deceased took a lift while returning from work in his colleagues vehicle. En route the vehicle met with an accident due to landslide which crushed the vehicle resulting in death of all the occupants. The defence that was taken up was that the accident occurred due to landslide ; that it was an act of God and hence the principle of res ipsa loquitur cannot be applied.
En route the vehicle met with an accident due to landslide which crushed the vehicle resulting in death of all the occupants. The defence that was taken up was that the accident occurred due to landslide ; that it was an act of God and hence the principle of res ipsa loquitur cannot be applied. Based on the materials on record it was found that the incident had taken place in the midst of monsoons and so the driver was duty bound to take sufficient precaution before starting his journey by checking the area for landslides. However, he failed in the said duty. Holding so it was held that the principle of res ipsa loquitur would be applicable and compensation is liable to be paid by the insurer. 12. As held in Kaushnuma Begum (Supra) the rule of strict liability will not apply in certain cases or in other words, the defences available against action brought on the strength of the rule in Rylands (Supra) are- (i) consent of the plaintiff i.e. volenti non fit injuria. (ii) common benefit i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (iii) act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (iv) exercise of statutory authority i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise. (v) act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility. (vi) default of the plaintiff i.e. if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply. (vii) remoteness of consequences i.e. the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage which is the natural consequence of its escape. Therefore, if the fault is on the part of the plaintiff/claimant, then the rule of strict liability could be applied. 13.
Therefore, if the fault is on the part of the plaintiff/claimant, then the rule of strict liability could be applied. 13. In the judgments relied on by the learned counsel for the claim petitioner, the drivers of the vehicle failed to perform a duty which they were bound to do before the journey started. In Kaushnuma Begum (Supra), the accident occurred as one of the wheels of the vehicle burst resulting in the vehicle capsizing. In Pazhani Ammal (Supra), the driver had a duty to see that the door(s) were locked/fastened. But the driver failed in the duty. In Shyam Sunder (Supra), a vehicle which was not roadworthy was put on the road despite the driver being aware of its defect. In Meltina Shabong (Supra), the evidence on record which included oral testimony of eye witnesses, negligence was found on the driver of the offending vehicle. 14. The facts in the case on hand are different. Nobody has a case that the door of the bus was not locked or fastened or that the driver or conductor failed in their duty to see that the door was closed/locked. There is also no case that the lock was faulty. Ext.A1 final report submitted by the police on completion of the investigation states that the deceased was standing in the bus holding on to a bar while the bus was negotiating a roundabout. For taking ticket, she released her hold and tried to take money from her purse. The deceased then lost balance, fell on to the door of the bus and in her attempt to regain balance by gripping/holding on to some place, she accidentally clutched/grasped/brushed the door handle as a result of which it opened and she was thrown out of the bus whereby she sustained fatal injuries. Apart from Ext.A1, there is no material(s) on record to prove negligence. 15. It was submitted by the learned counsel for the claim petitioner that the 161 statements based on which the investigating officer submitted Ext.A1 report is not believable. The driver, the conductor and a person standing on the road are the witnesses in the said case. It would not have been possible for the driver to see what had happened inside the bus as at the relevant time he was driving the bus.
The driver, the conductor and a person standing on the road are the witnesses in the said case. It would not have been possible for the driver to see what had happened inside the bus as at the relevant time he was driving the bus. There is also no material to show where the conductor was standing to ascertain as to whether it was possible for him to see the incident. The third witness, is a person who was standing outside the bus and therefore he could not have known what had happened inside the bus. Hence, the argument is that the 161 statements on the basis of which Ext.A1 final report has been submitted is not creditworthy, and so the finding of the investigating officer that it was only a “motor occurrence” is wrong. 16. It is true that the driver and the witness standing outside the bus might not have been in a position to say what exactly happened. But the conductor can certainly say because the case in the final report is that the deceased lost her balance while she was trying to take a ticket. Further, if the opinion or findings in Ext.A1 final report was wrong or incorrect or the assertions made in the 161 statement by the witnesses were incorrect, as held in Pazhani Ammal (Supra), it was the duty of the claim petitioners to disprove the same. No such attempt is seen made in this case. That being the position, I do not find any reason to disbelieve or reject Ext.A1 final report which does not support the case of negligence on the part of the second respondent/driver. Apart from Ext.A1, there is no other evidence. Hence, I do not find any infirmity committed by the Tribunal in dismissing the claim petition. 17. It was also submitted by the learned counsel for the claim petitioner that the Tribunal while dismissing the petition at least ought to have granted compensation under Section 140 of the Act. Reference was also made to Section 164 of the Act on the basis of which it was submitted that the claim petitioners are entitled to an amount of Rs.5,00,000/-. Per contra, it is submitted by the learned counsel for the first respondent/owner that Section 164 has no retrospective effect and therefore the compensation as per the amended provision cannot be granted.
Per contra, it is submitted by the learned counsel for the first respondent/owner that Section 164 has no retrospective effect and therefore the compensation as per the amended provision cannot be granted. The learned counsel for the claim petitioners rely on the dictum in Ram Murti v. Punjab State Electricity Board , 2023 ACJ 631 18. The accident in this case took place on 09/05/2014, apparently before Section 164 was brought into the statute book by way of amendment of the year 2019, which came into effect from 01/04/2022. Here, I refer to the judgment of the Apex Court dated 13/02/2025 in Valsamma Chacko v. M.A.Titto , 2025 KHC 7141 . In the said case it was noticed that by the 2019 amendment which came into force on 01/04/2022, Section 163A of the Act has been repealed for the reason that a similar provision has been inserted in the Act. By the amendment an entirely new chapter, that is, Chapter XI which bears the similar provision in Section 164 of the Act has been incorporated. The accident in the said case occurred on 19/08/2000. In the facts of the said case, it was held that what is relevant is the provision that was applicable at the time of the accident. It was the benefit available under Section 163A of the Act that was allowed in the case and not the benefit under Section 164 of the Act. In the light of the dictum in Valsamma Chacko (Supra), I find that the amended provisions of Section 164 of the Act cannot be given as the accident took place much before Section 164 came into the statute book. Being a death case, based on Section 140 of the Act, the claim petitioners are entitled to Rs.50,000/- which shall be paid by the first respondent/owner. In the result, the appeal is partly allowed. Interlocutory applications, if any pending, shall stand closed.