| SooperKanoon Citation | sooperkanoon.com/917987 |
| Court | Allahabad High Court |
| Decided On | Jan-11-2011 |
| Case Number | First Appeal From Order No. 896 of 2005 |
| Judge | Sunil Ambwani; Dilip Gupta, JJ. |
| Appellant | Smt. Alimunnishan and ors. |
| Respondent | Om Prakash and anr. |
| Cases Referred | Rylands vs. Fletcher |
1. The First Appeal From Order arises out of Claim Petition No. 33 of 2002 (Smt. Alimunnishan & 8 Ors. v. Om Prakash & Anr.) filed on account of death of Naqvi Ahmad in the accident that had taken place on 17th November, 2001 with Truck No. U.P.44-A/2098 owned by Om Prakash Singh.
2. The said Claim Petition No. 33 of 2002 was filed by Smt. Alimunnishan & 8 Ors. under Section 166 of the Motor Vehicles Act, 1988 with the averments that the deceased Naqvi Ahmad was the sole bread earner of the family; on 17th November, 2001 he went to Sultanpur for business purposes but Truck bearing No. U.P.44-A/2098 which was being negligently driven by the driver hit the husband of Smt. Alimunnishan as a result of which he and many others died and many were injured; the husband of the petitioner No. 1 used to earn Rs. 5,000/- per month from the business; First Information Report could not be lodged in time since medical treatment was immediately required to be provided to the injured and, therefore, as the bread earner had succumbed to the injuries, the claimants suffered irreparable injury and appropriate compensation should be awarded to them.
3. A reply was filed to the claim petition. Opposite Party No. 1 Om Prakash Singh stated that he was the owner of the truck bearing No. U.P.44-A/2098; truck was insured with the National Insurance Company Branch Rai Bareilly upto 18th December, 2001; truck was being driven by Taufeeq Ahmad Khan, who had a valid and effective driving license; truck was carrying cement from Tikeriya Industrial Area to Faizabad when the 'Kamani' of the truck broke down as a result of which the truck lost balance and over turned killing two persons and inuring three; the injured were taken to the hospital by the police; passengers were not sitting in the truck at the time of accident and the owner had also given instructions to the driver not to permit any person to sit in the truck and assurance had also taken from the driver to this effect; the driver had informed the owner that Naqvi Ahmad was not sitting in the truck at the time of accident; that there was no violation of the terms and conditions contained in the Insurance policy; that the accident was not caused due to rash and negligent driving and that the owner was not responsible for payment of any compensation.
4. The National Insurance Company also filed a reply to the claim petition. It was stated that the driver did not have a valid and effective license at the time of accident and so the Insurance Company was not liable to pay any compensation; the truck owner did not inform the Insurance Company of the accident; the accident was caused on account of rash and negligent driving by the truck driver and so the Insurance Company was not liable to pay any compensation; the truck was being driven contrary to the terms and conditions of the Motor Vehicles Act since passengers were being carried for which no premium had been paid; the insured had not followed the provisions of Section 64 of the Motor Vehicles Act and in any case the claimants were not dependent on the deceased.
5. The following issues were framed:-
(1)Whether the death of Naqvi Ahmad had occurred on account of rash and negligent driving by the driver of the truck No. U.P.44-A/2098.
(2)Whether on the date of accident, the driver of the truck had a valid and effective driving license.
(3)Whether the truck was insured and whether it was being used in accordance with the terms and conditions stipulated in the insurance policy.
(4)Whether the claimants were entitled to compensation and if so then from which opposite party and to what extent.
6. In support of the claim petition, documentary evidence in the form of postmortem report was filed and three witnesses P.W.1, Safeeq Ahmad son of Kasim Ali gave the evidence. On behalf of the owner of the truck, driving license, payment of deposit of tax, registration papers, insurance cover, copy of judgment dated 18th October, 2004, copy of order dated 8th April, 2005 were filed. D.W. 1 Alimunnishan gave oral evidence.
7. While deciding Issue no.1, the Tribunal held that the version of the driver of the truck should be believed and the owner of the truck and the Insurance Company could not prove that the death occurred due to rash and negligent driving. The Tribunal also found that the Insurance Company could not establish that the deceased Naqvi Ahmad was travelling in the truck. Issue no. 2 was decided by the Tribunal holding that at the time of accident the driver of the truck had a valid and effective driving license. Issue no.3 was decided by the Tribunal holding that the truck was being driven in accordance with the terms and conditions stipulated in the insurance policy. Issue no. 4 was decided holding that there was no negligence on the part of the driver of the truck and the accident had occurred on account of the breakage of 'Kamani' and that the deceased and his friends were not sitting in the truck at the time of the accident and was walking on the left path side of the road. The death occurred because the truck overturned and so the Insurance Company under the 'No fault liability' clause should pay Rs. 50,000/- with simple interest of 5%.
8. Learned counsel for the appellants submitted that even if there was no negligence or rashness on the part of the driver of the truck, then too the owner should be made liable for the damages to the persons who suffers on account of such accident. This has been disputed by learned counsel for the respondents.
9. This issue was examined by the Supreme Court in S. Kaushnuma Begum & Ors., v. The New India Assurance Co. Ltd. & Ors. AIR 2001 SC 485. The accident which gave rise to the claim occurred at about 7.00 P.M. on 20.3.1986. The vehicle involved in the accident was a jeep. It capsized while it was in motion. The cause of the capsize was attributed to bursting of the front tyre of the jeep. In the process of capsizing the vehicle hit against one Haji Mohammad Hanif who was walking on the road at that ill-fated moment and consequently that pedestrian was crushed and subsequently succumbed to the injuries sustained in that accident. The widow and children filed a Claim Petition before the Tribunal. The Tribunal dismissed the claim for compensation holding that rash and negligence of the jeep was not established but directed the Insurance Company to pay Rs. 50,000/- to the claimants by way of 'No fault liability' under Section 140 of the Motors Vehicles Act, 1988 (hereinafter referred to as the 'Act'). Aggrieved by the said rejection of the claim the claimants moved the High Court. On 28.4.1999, a Division Bench of the High Court dismissed the appeal and the order reads thus:
"Heard learned counsel for the appellant.
Finding has been recorded that the tempo overturned and there was no negligence or rashness of the driver. Hence Rs.50,000/- has been awarded as compensation which is the minimum amount. There is no error in the order. Dismissed."
10. The widow and the children thereafter filed an appeal before the Supreme Court which observed as follows:-
"It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.
Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands vs. Fletcher (1861-73 All ER (Reprint) 1) (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus:
"The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the naturalconsequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
11. The House of Lords considered it and upheld the ratio with the following dictum:
"We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequences of vis major or the act of God; but, as nothing of this sort exists, here, it is unnecessary to inquire what excuse would be sufficient.
The above Rule eventually gained approval in a large number of decisions rendered by Courts in England and abroad. Winfield on Tort has brought out even a chapter on the "Rule in Rylands v. Fletcher". At page 543 of the 15th Edn. of the calibrated work the learned author has pointed out that "over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation......" He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands vs. Fletcher. They are: (1) Consent of the plaintiff i.e. volenti non fit injuria. (2) 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. (3) Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (4) 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. (5) 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. (6) 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. (7) 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."
12. The Rule in Rylands vs. Fletcher has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, CJ, speaking for the Constitution Bench in M.C. Mehta vs. Union of India and ors. (1987 (1) SCC 395): (AIR 1987 SC 1086), expressed the view that there is no necessity to bank on the Rule in Rylands vs. Fletcher. What the learned Judge observed is this:
"We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order."
13. It is pertinent to point out that the Constitution Bench did not disapprove the Rule. On the contrary, learned judges further said that "we are certainly prepared to receive light from whatever source it comes." It means that the Constitution Bench did not foreclose the application of the Rule as a legal proposition.
14. In Charan Lal Sahu vs. Union of India {1990 (1)SCC 613):(AIR 1990 SC 1480) another Constitution Bench of this Court while dealing with Bhopal gas leak disaster cases, made a reference to the earlier decisions in M.C. Mehta (supra) but did not take the same view. The rule of strict liability was found favour with. Yet another Constitution Bench in Union Carbide Corporation vs. Union of India {1991(4)SCC 584 (AIR 1992 SC 248) referred to M.C. Mehtas decision but did not detract from the Rule in Rylands vs. Fletcher (1861-73 All ER 1).
15. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai {1987 (3) SCC 234} the question considered was regarding the application of the Rule in cases arising out of motor accidents. The observation made by E.S. Venkataramiah, J. (as he then was) can profitably be extracted here: "Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and deaths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fletcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. 'Hit and run' cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not, he or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault."
16. Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands vs. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.
"No Fault Liability" envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them."
(emphasis supplied)
17. Thus, in view of the aforesaid decision of the Supreme Court, it has to be held that even apart from Section 140 of the Act, compensation can be claimed from a Tribunal unless any one of the exceptions laid down in Rylands vs. Fletcher applies.
18. In the present case also, as in S. Kaushnuma Begum (supra), the Tribunal has only awarded Rs. 50,000/- as compensation under the 'No Fault Liability Clause' under Section 140 of the Act but has denied compensation as there was no rash or negligent driving by the driver of the truck. The claim of compensation is, therefore, required to be determined in the light of the observations made by the Supreme Court in S. Kaushnuma Begum (supra). The matter, therefore, needs to go back to the Tribunal for giving fresh award.
19. The judgment given by the Tribunal in so far as it rejects the claim is, accordingly, set aside. The Tribunal shall give a fresh award as expeditiously as is possible.
20. The First Appeal From Order is allowed to the extent indicated above.