Maharashtra State Ro... v. Ramchandra Ganpatrao...

V.A Mohta, J.:— The petitioner-Ramchandra Chincholkar, an Industrial Supervisor, Grade I, in the office of the District Deputy Registrar, Co-operative Societies, Akola, was travelling in the S.T Bus No. MTR 1903 on 1st June, 1979. He was on his way to Nagpur from Akola. He sat near the right hand side window on the second bench from the rear. The bus started from Akola bus stand at 4.15 P.M and had cleared 36 K.Ms by about 4.45 P.M, when a truck came in high speed from the opposite direction. The two vehicles running on tar road crossed, the truck brushed and dashed against the right side of the bus. By that impact, the horizontal bars of the windows of the bus were uprooted and the right hand of the petitioner was completely severed from the shoulder joint and fell on the road. The elbow joint of another passenger by name Rajkumar was also seriously injured. The truck driver did not stop and went ahead with the same speed while the bus stopped at a distance of about 25 to 30 feet from the place of the accident. After giving first aid to the injured at Murtizapur, the petitioner was sent for treatment to District Hospital, Akola, where he was operated upon and the right upper arm, just below the shoulder joint of the petitioner was amputated resulting in 80 per cent permanent disability. The truck bearing registration No. MHF 6972 belonged to Himmatsing Dole — original respondent No. 1 — and driven in the regular course of his employment by driver Balbirsingh — original respondent No. 2. The truck was insured with the New India Assurance Company Limited - original respondent No. 3. Driver Balbirsingh was prosecuted under sections 279 and 338 of the Indian Penal Code and was convicted on admission of his guilt by the Judicial Magistrate, First Class, Murtizapur, on 28th June, 1979 and sentenced to pay a fine of Rs. 300/- each on both counts.

2. The above is the basic case of the petitioner before the Motor Accidents Claims Tribunal, Akola, wherein he lodged a claim for Rs. 2,03,500/- by way of compensation, interest etc. against the above respondents Nos. 1 to 3, the Maharashtra State Road Transport Corporation, its Divisional Controller and the driver of the bus (the present appellants and the original respondents Nos. 4 to 6). The owner and driver of the truck took the defence that their truck was not involved in the accident at all. The driver was stopped near the Police Station Borgaon Manju, was falsely involved in the accident and was prosecuted on presumption. The driver preferred to plead guilty only to avoid harassment of the trial. The defence of the MSRTC, the Divisional Controller and the driver of the bus was that he was driving carefully and diligently when the truck came from the opposite direction in full speed. The bus swerved to the left side, its speed was lessened, the truck passed very closely from the side of the bus, the petitioner was negligent and careless on his part and must have kept his arm protruding out of the bus window. The truck which had passed too closely by the side of the bus, resulted in the accident and injury to the petitioner.

3. The Tribunal, after considering the panchanamas of the truck — Exs. 65 and 67 — the plea of guilty pleaded by the driver of the truck and oral evidence led by the parties, came to the conclusion that the said truck was involved in the accident, the accident occurred on account of rash and negligent driving of the driver of the truck as well as the driver of the bus. Both were held jointly and severally responsible for the injury to the petitioner. The total damages were estimated at Rs. 50,000/- which included Rs. 10,000/- as special damages and Rs. 40,000/- as general damages and all the six respondents were ordered to pay the same. The owner of the truck, his driver and the Insurance Company have not appealed but the MSRTC, its Divisional Controller and the driver have, making a grievance against the finding recorded by the Tribunal that the bus driver was rash and negligent in driving. The petitioner has filed cross-objection making a grievance about the insufficient amount of compensation.

4. Award against the original respondents 1 to 3 has no doubt become final, but it is necessary to take short resume of how accident took place, since liability is held to be joint and several with the liability of the driver of the bus and his employer. Panchanama of the truck (Ex. 67) prepared on that very day states:

“The signal light towards the driver's side is broken. The rubber below the cabin glass was found brushed. There was red colour on the angle towards the driver's side and there is bent to it. Similarly, the angle by its side was found bent, with red colour like that of S.T which could be removed by scratching. From this it appears that this truck has dashed has come into contact with some S.T bus.”

5. The evidence of the driver of the truck that he pleaded guilty only to avoid harassment of the trial has been disbelieved by the Tribunal. The condition of the truck depicted in Ex. 67 can, therefore, be attributed to this very accident. In addition to the interested version of the parties, there is on record evidence of P.W 1 Shri R.K Deshpande, Advocate, of Akola, who was also a passenger in the bus. Both the drivers have also entered into witness-box. From the evidence of these witnesses it is clear that the accident took place near village Ambhora on a National Highway. The right side of the truck brushed against the right side of the bus from the end of the driver's seat and the iron bars fixed to the windows of the bus broke. The glass panes of the rear two windows on the right side of the bus also broke. There were scratches on the right side panel of the bus and it was bented. The iron bar was pushed to the rear on account of the impact. Not only the claimant's right hand was dismembered and fell on the road but also the ankle elbow of a Sindhi passenger broke and Shri Deshpande's daughter's left hand nails were scratched. The bus was stopped at about 20 to 25 feet from the place of the accident.

6. According to both drivers, the two vehicles did not come into contact with each other at all. Having regard to the nature of damage to both the vehicles and other evidence, this version has to be discarded. Their further common stand is that the accident took place because of the negligent act of the petitioner in taking out his body and hand out of the window of the bus. It is in evidence that there were horizontal bars to the windows of the bus. These bars made it impossible to take out the body through them. It is possible that the petitioner had put his elbow on the window sill or might be he was gripping the cross-bar. But there is nothing very uncommon about such a position being taken by a bus passenger specially of a Super Express long distance bus like this. Sometimes taking such a position becomes inevitable in a long and tedious journey when the bus is running on a plain National Highway and not on a crowded street. The petitioner was sitting on the rear side. The vehicle crossed each other in a split second leaving no time to the petitioner even to withdraw the arm from the window. The nature of the impact reveals that the sides of the two vehicles did not merely brush each other but the hooks of the loaded truck and its side pierced the side windows of the bus resulting into removal of the horizontal bars and smashing of the panels of the windows. Having regard to all these factors, it cannot be said that the petitioner failed to take reasonable care of his own safety and contributed to the accident which caused him serious injury.

7. According to the driver of the bus, while he was driving the bus by the left side of the road in normal speed, the truck was being driven on the centre of the road at a very high speed. He warned the passengers two or three times to keep their hands inside the bus, reduced the speed to 15 to 20 kilometres per hour, took the bus below the road to the extreme possible left side. He could not take the bus further to the left side since there was a nalla. Having regard to the fact that the said driver has even denied that both vehicles came into contact with each other, his testimony cannot be relied upon. Moreover, the version given by him is too unnatural to deserve acceptance. That this version is not corroborated is an added factor. It is his case that he had sighted the speedy truck coming from opposite side in the middle of the road after overtaking other trucks from a distance of few furlongs. This should have put the bus driven on his extra guard. Perhaps he merely tried to go to the left a little without keeping in mind the common possibility of the one or more passengers resting their arms on the window sills. The tar portion of the road was about 30 feet wide. There were kachcha portions on both the sides. It appears that both the vehicles were in high speed and the bus driver unmindful of the possible consequences did not move the vehicle to the extreme left side to avoid the possibility of any impact and merely presumed that the vehicles would cross each other without their sides coming into contact with each other. The bus driver was duty bound to use “reasonable care” which connotes avoidance of excessive speed, control on steering wheel, keeping a good look out and so on. He ought not to have presumed that the truck driver coming with high speed on the centre of road would behave with reasonable care. Omission to take such care was certainly negligence.

8. We have already referred to the common experience that bus passengers sitting adjoining windows often rest their arm on the window sills, as a result their elbows project outside the windows. The driver of the bus is always expected to have such possibilities in mind while overtaking or crossing another vehicle on the road. He must also bear in mind common negligence and follies in human behaviour and as a reasonable and responsible driver anticipate them and guard against them. Leaving sufficient gap between the vehicles to avoid injury to these passengers is one such duty in which the bus driver failed. When there is collision, the drivers owe an answer. Either of them or both, are guilty and cannot escape the consequences and the liability. Basic facts of this case clearly establish that it is a case of negligence on the part of both the drivers. They both owed a duty to take reasonable care to anticipate the common place factors and to go to their left side to such an extent that the other vehicle passed from a reasonably safe distance. In this context, following passage from Charlesworth on Nagligence may be usefully noticed: (Page 520, Para 871 of 6th Edition)

“The rule of road is that when two vehicles are approaching each other from opposite directions, each must go on the left or near side of the road for the purpose of allowing the other to pass. Failure to observe this rule is prima facie evidence of negligence.”

9. It is true, as rightly pointed out by the learned counsel for the appellants, that there is no pleading in specific words about the rash and negligent driving of the driver of the bus in the application. But that aspect is not decisive of the matter. Application under section 110-A of the Motor Vehicles Act is not a plaint governed by the Civil Procedure Code. Form prescribed under the Maharashtra Motor Vehicles Rules for making application for compensation does not require averments to be made in so many words. Column 8 refers to the place, date and time of accident and column 22 refers to the other information that may be helpful in the disposal of claim. In this context useful reference may be made to the following observations of this Court in the case of Bessarlal v. Motor Accidents Claims Tribunal, 1970 Mah LJ 742 : 1970 ACJ 334 : AIR 1970 Bom 337:

“Provision of section 110-A(2) of the Motor Vehicles Act and Rule 291 of the Rules made under section 111-A (Bombay) in connection with application for claims for compensation and the prescribed form No. Comp. A do not require any party to be mentioned as opposite parties in the title of the application for claims for compensation. All the relevant facts are in this connection left to be ascertained by the claims tribunal which has been entrusted with the very serious duties of finding out all the parties who may be liable to pay compensation by recording evidence to be produced by the parties concerned. Formal defect of failure to mention appropriate names of the parties who would be liable to pay ultimately compensation to the claimant was never intended to defeat the claims filed under the Act.”

10. In the case of Bhuban Chandra Dutta Gupta v. General Manager, Orissa State Road Transport Corporation, Cuttak, AIR 1985 Orissa 19, it is held that the application for compensation under the Motor Vehicles Act cannot be dismissed only on the ground of absence of specific plea of negligence when details of the accident are given, because the question of rashness and negligence is an inference to be drawn from the circumstances leading to the accident, the manner in which the accident occurred and other relevant facts. In a given situation, recourse may have to be taken also to the principle of res ipsa loquitor and then it is for the Tribunal to draw its inference regarding rashness and negligence from the material on record.

11. Even in the context of Order 6, Rule 2, Civil Procedure Code, the Supreme Court has in the case of Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 has observed: (Para 10)

“If a plea is not specific made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then mere fact that the plea was not expressly taken in the pleadings would not disentitle a party from relying upon it, if it is satisfactorily proved by evidence.”

12. Though the averment about negligence has not been made in the application in so many words, basic facts are pleaded and compensation is claimed from all the opponents jointly and severally. This implies that the petitioner was holding both the drivers to be rash and negligent in driving. Parties had joined issues which were specifically framed to find out which of the two drivers or both were negligent in driving their respective vehicles. Evidence was led and cross-examination of witnesses was made by every one on that basis. Thus, the appellants fully knew that the petitioner was holding them also responsible for the accident.

13. This takes us to the question of quantum of compensation. The petitioner has filed cross-objections for enhancement of compensation, in which we see no substance. The petitioner was aged 48 years and had 10 years of service left. His monthly salary was Rs. 786/-. He was required to undergo treatment and pay for an artificial limb costing Rs. 2,000/- as deposed to by P.W 6 Dr. Deo of the Artificial Limb Centre, Nagpur. The petitioner attended the Centre for treatment from 16th August, 1979 to 16th July, 1981. It is evident from the testimony of Dr. Deo that despite fixation of the artificial limb, the disability would be of a permanent nature. The petitioner was working as an Office Superintendent and had received promotion even after the accident. Considering all these aspects of the matter and the quantum of compensation awarded by various Courts in similar cases referred to in the Award, the Tribunal awarded Rs. 40,000/- as general damages on account of permanent disability, physical suffering, mental agony etc. and Rs. 10,000/- by way of special damages which includes medical expenses, treatment at the Artificial Limb Centre, cost of artificial limb, conveyance charges etc. Though some element of guess work is inevitable in determining such compensations, the estimate of damages appears to be quite fair and reasonable calling for no interference. Grant of interest at the rate of 6 per cent per annum from the date of petition till realization and proportionate costs also does not call for interference.

14. This was a case of composite negligence of both the drivers. Their liability was, therefore, undoubtedly joint and several. A grievance is made on behalf of the appellants that the liabilities ought to have been apportioned. In such cases, only inter se liabilities of the two vehicles can be apportioned and in our view, the Tribunal ought to have undertaken that exercise in the interest of finality and to avoid multiplicity of proceedings. Section 110-B of the Motor Vehicles Act mandates the Tribunal not only to determine the amount of compensation but also to specify the amount payable by the insurer or the owner, or the driver of the vehicle involved in the accident or by all or any of them. Punjab and Haryana High Court in the case of Narinderpal Singh v. Punjab State, AIR 1989 Punjab and Haryana 82 had an occasion to deal with this controversy. Taking into consideration the above provision it was held that such apportionment is in the interest of justice and every Tribunal is duty bound to apportion the compensation, make the complete determination of all the rights involved in the matter and not subject the joint tort feasors to fresh litigation for determining their inter se liability. It was made clear that as far as claimant is concerned, both would be jointly and severally liable. Following observations are to the point: (Para 19)

“Having considered the provision of section 110-B of the Act, quoted above, view expressed in Halsbury's Laws of England, view expressed in Corpus Juris Secundum and the decided cases, we find it clear that it is the duty of the Tribunal to apportion the compensation even in the case of joint and several liability, without which it would not be a complete determination by it. Moreover, when exclusive jurisdiction has been given to the Tribunal, it would not be proper to say that inter se between the two joint tort feasors there should be fresh litigation before a civil Court in separate proceedings and that Court should decide the dispute. It is another cardinal rule of jurisprudence that multiplicity of proceedings on the same matter should be avoided and unless it is expressly provided or is the necessary intendment, the interpretation should be such that a Tribunal of exclusive jurisdiction should finally decide the dispute on all matters between them and should not leave any part to be gone into in a separate suit before another Court of law. As has been noticed above it is expressed provision in section 110-B of the Act and inter se dispute between the joint tort feasors has also to be decided, whether all of them are liable and to what extent, and if not then which of them and for how much amount. Therefore, we hold that Mukhtiar Singh's case, 1986 (1) 89 Punjab 600 (supra) is correctly decided and the learned Judge was right in apportioning the compensation between the two joint tort feasors by holding that their liability would be joint and several so far as the claimant is concerned.”

15. On reappraisal of the basic material before us, it seems clear to us that the driver of the truck was much more negligent than the driver of the bus and hence, we determine their inter se liability in the proportion of 2:1.

16. In the result, this appeal is partly allowed only to the limited extent of determination of inter se liability to the two vehicles. Liability to pay the amount of compensation, in the sum of Rs. 50,000/-, interest, costs, etc. is apportioned between the original respondents Nos. 1 to 3 on one hand and original respondents Nos. 4 to 6 (appellants) on the other, in the proportion of 2:1.

17. Cross-objections are dismissed.

18. No order as to costs.

19. Needless to mention that the liability of the Insurance Company shall not exceed Rs. 50,000/- as per section 95(2) of the Motor Vehicles Act. Needless also to mention that the liability of all the respondents vis-a-vis the petitioner shall be joint and several.

Appeal partly allowed.