JUDGMENT Abdul Hadi, J.
This appeal by the 2nd respondent-Insurance company is against the order dated 13.9.1984 in M.C.O.P No. 8 of 1984 on the file of Motor Accident Claims Tribunal, Pudhukottai awarding a compensation of Rs. 2 lakhs to the respondents 1 to 4 who are claimants in the above said M.C.O.P. The said compensation was awarded on account of the death one Muthuraman when he himself drove the car M.D.T 3004 on 5.9.1982 and met with an accident which resulted in his death. The 5th respondent herein is the owner of the said car and the claimants are Muthuraman's wife, two minor children and his mother.
2. The case of the claimants briefly is as follows: The said Muthuraman was driving the said car taking along with him in the said car his relatives and was proceeding in a normal speed. A cyclist, coming in the opposite direction suddenly swerved to the right in front of the car. In order to avert dashing against him and killing him, the said Muthuraman suddenly swerved his vehicle to the left, thereby brought it down to the mud portion of the road and, as the road was slippery the vehicle skidded and went uncontrollable and capsized. Due to this, the deceased sustained grievous injuries in the lower part of the abdomen and after the villagers removed him and other occupants from the car by bringing it to the normal position, he was admitted in Ponnamaravathi Hospital to which he was carried in a town bus. Immediately on admission he succumbed to the injuries. The accident is only due to the slippery condition of the road and the deceased was not in any way responsible for the same. The first respondent is the owner of the car the deceased was driver in the car as a third party, and the insurer as well as the owner are liable to answer the claim.
3. In the light of the discussion, necessary in the present case, there is no necessity for setting out the further pleadings. The first respondent in the M.C.O.P (5th respondent herein) remained exparte. The second respondent-Insurance company (the appellant herein) filed a counter inter alia pleading that there is no actionable claim against the Insurance Company, that the accident was caused due to the rash and negligent driving on the part of the deceased, that hence the claimants are not entitled to claim any compensation, that under S. 95 of the Motor Vehicles Act (hereinafter referred to as the Act) a policy is required to idemnify the owner only in respect of a liability incurred by him, traceable under Law of Torts, and in respect of the death or bodily injury, or damages to the property of a third party, arising out of the use of a vehicle in a public place and that the deceased was not a paid driver.
3 A. The tribunal below has accepted the case of the claimants and has held that the said Muthuraman did not drive the car negligently and that there is no contra-evidence on the side of the Insurance Company which has simply taken the question of maintainability of the petition. Then, on the question whether the petitioners before it are entitled to the compensation, it has observed that the petitioners before it have not claimed the compensation on the ground that the said Muthuraman was a paid driver under the 5th respondent herein, that the claim was not made by the third party against the owner of the vehicle and the insurance Company, that, since the car was entrusted to the deceased Muthuraman, he was in possession of the vehicle in the capacity of the owner of the vehicle and that hence the Insurance company is liable to pay the compensation to the claimants.
4. Even before considering the submissions of the learned counsel for the appellant, we have to see whether the above said claim petition is maintainable at all, even on the very plea of the claim petition itself. It is elementary that for maintaining any action for such compensation, the wrong or tort committed by the 5th respondent must be specifically pleaded. But, we find from the claim petition, (the relevant portion of which has been already extracted) that it does not show any wrong on the part of the owner of the car, the 5th respondent herein. There is absolutely no allegation in the claim petition that the owner of the vehicle has committed any tort. Not only there is no plea that the owner committed any wrong, there is also no proof to that effect. In fact, P.W 2 the brother of the deceased, who was sitting in the front seat of the same car when it met with an accident, and who is also the only eye-witness to the accident, admitted in cross-examination that it was not a rainy season, that he did not tell P.W 1 or his mother about any oil remaining spilt on the said road at the said time when the accident took place, that he saw the cyclist at an 80 feet distance, and that the driver did not apply the brake as soon as he saw the cyclist, that there was a distance of 15 feet between the place where the driver reduced the speed of the car and the place where the car hit the tree. Taking the above said evidence of P.W 2 into account, it cannot be concluded that the accident was an inevitable one. On the other hand, it can be concluded that the said deceased himself was negligent in driving the car.
5. Further, there is also no plea that there was any master-servant relationship between the owner of the car and the said Muthuraman. In such a case, no vicarious liability also will arise or can be foisted on the owner, the 5th respondent herein. It is also well settled law that when the owner/insured is not liable, the insurer cannot be held liable. This position is also accepted by the learned counsel for the claimants.
6. However, the argument of the learned counsel for the claimant is as follows:—
The driver in having averted hitting against the cyclist and killing him has saved the owner of the car from the claim for compensation by the said cyclist or his legal representatives. So, the owner must compensate the present claimants who are the legal representatives of the driver Muthuraman, who saved the owner from paying any compensation to the cyclist or his legal representatives.
7. This argument of the counsel cannot be accepted at all. First of all, there is no plea or proof that in order to avoid the alleged liability of the owner, the deceased swerved to his left. Further the deceased was not driving the car on any errand of the owner. Further what has been pleaded itself would also show negligence on the part of the driver himself. If only he had driven the car slowly and cautiously, he could have easily avoided hitting against the above said cyclist. If according to P.W 2, the car after reducing the speed was going in 15 km/ph speed, easily the driver could have avoided hitting against the cyclist and at the same time would not have dashed against the tree. The learned counsel could not also establish that such a claim would be a tortious claim, the learned counsel no doubt relied on Carmarthenshire Country Council v. Lewis 1955 1 All. E.R 565 But, we don't think that it was any application to the present case since in the said case, the owner of the lorry was not held liable for the death of his driver who drove the lorry and said to have averted hitting against the child coming on the road.
8. After making the above said argument, the learned counsel went on to make another argument taking entirely a different stand, there again, not based on pleading or proof. It is as follows:
This was a case of strict or absolute liability as was in the case of Rylands v. Fletcher 1886-LR. 3 H.L 330. For this, he contended that the motor vehicle itself was a dangerous chattel coming within the principle of the said liability. He also cited in this connection Gujarat S.R.T.C v. Ramanbhai Prabhatbhai 1987 3 S.C.C 234. But, there, the Supreme Court only observed thus:
“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 (Emphasis supplied).
9. But, from this it cannot be concluded that the motor vehicles are always dangerous chattels coining within the principle of the above said liability. Further, here also, there is neither plea nor proof that the abovesaid car was such a dangerous chattel which would give rise to the above said strict liability under Law of Torts. That apart in Govindarajulu v. Govindaraja AIR 1966 Madras 332 D.B = 79 L.W 17 it was held that the motor vehicles are not such dangerous things. The following observations therein are significant, “there is ample authority for the view that the lorry is not in itself a nuisance or a hazardous chattel so as to attach the doctrine of absolute liability. At page 665 the learned Law Lord (in 1909 2 KB 652) has explained as to why the rule in Rylands v. Eletcher would not apply to the ownership of a motor vehicle.”
10. Further in Bishan Devi v. Sirbaksh Singh 1979 A.C.J 496 S.C the Supreme Court has held as follows:—
“A liability can be cast on another only if he is in any way responsible for the accident which occasioned the injury. In other words there is no scope for any absolute liability on the owner of the vehicle to compensate the injured. The provisions of the Motor Vehicles Act do not contain any statutory provision to that effect. The act does not provide a new right or a new remedy to a person who is injured by an accident. The provisions of the Act do not in anyway interfere with the substantive common law on the subject.”
This principle is also followed by Kerala High Court in New India Assurance Co. Ltd. v. Raju Markose & Others. There also it is held that proof of negligence is necessary before owner or the injured can be held liable for payment of compensation in a Motor Accident Claims's case. There, the accident occurred, before S. 92A of the Act which provided for no fault liability, came into force. It is also explained there that S. 92A dispenses with proof of negligence in the matter of award of compensation to the extent indicated therein, that the said section indicates that the substantive law is changed only to the extent indicated and that, but for the said modification, the substantive law continues to be in force and no claim for compensation is sustainable without proof of negligence except to the extent such proof is dispensed with S. 92A. It is also so observed in the Supreme Court decision reported in G.S.R.T Corporation, Ahmedabad v. Ramanbhai while dealing with S. 92A of the Act in the newly introduced Chap. VII-A of the said Act providing for no fault liability”, The Supreme Court in the said decision observed as follows:
“That part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law of the country stands modified.”
(Emphasis supplied)
This passage of the Supreme Court is also referred to in our Judgment dated 20.9.1991 in C.M.A No. 694/91 K. Nandakumar v. The Managing Director Thanthai Periyar Transport Corpn. Ltd. villupuram and we have expressed further as follows:
“It must be noted here that only to the above extent, the substantive law has been modified in this regard, and not to the extent that, even where the deceased or the injured, as the case may be, is negligent and not the other party, the former can claim compensation. Where the former is negligent, there is no scope at all for himself claiming any compensation from any other party for his own fault. That is the substantive law. That part of the substantive law has not at all been modified by S. 92A of the Act.”
11. Further, in United India Insurance Co. Ltd. v. Kantabai it was held that even on general principles it was difficult to entertain the contention that the liability in respect of the tort-feasor himself would be covered by the insurance company.
12. Further in Mallika v. Alagarsami also it has been held that the question of vicarious liability will not arise when the claim is made by the tort-feasor himself or any person claiming under the tort-feasor. There, the deceased, his wife and children accompanied the son of the owner in the car. Due to long driving, the driver of the car felt tired and the deceased relieved him and drove the car. The car dashed against a tree and the deceased sustained fatal injuries in that context, this court observed as follows:—
“S. 95(1) (Motor Vehicles Act) in so far as it uses the expression in respect of the death of or bodily injury to any person or damage to any property of a third party/should be taken to cover any liability which may be incurred by the owner of the vehicle in respect of death or bodily injury to any person or damage to any property of a third party. The presence of two expressions any person” and “third party” in the same provision would indicate that the expression “any person” has been used in a wide sense and not only in the sense of a “third party”. Even if, S. 95(1) can be construed as including the liability of the owner of the car for the death of bodily injury to any person this provision cannot be invoked by the claimants in this case unless the claimants are able to establish that the owner has incurred a liability in respect of the death or bodily injury to the deceased which liability has to be insured as per the provisions of S. 95(1). It cannot be said that the more ownership of the car create liability on the part of the owner of the vehicle to pay compensation for the death or injury to any person. The liability can arise only when the owner of the vehicle was in any way responsible for causing the accident which has resulted in that liability. In this case the accident was caused by the rashness and negligence of the deceased and in such cases there is no legal liability arising either under the law of torts or any other basis under the common law. Only when there is a legal liability, that liability has to be insured under S. 95(1). In this view of the matter, we are unable to agree with the learned counsel for the appellants that an absolute liability has been cast on the owner of the vehicle to pay compensation under S. 95(1) and that absolute liability does not depend on the fact as to who caused the accident and whether the owner of the vehicle is negligent or not.”
13. Further in Minu B. Mehta v. Balakrishna Ramachandra Nayan the Supreme Court also held that the concept of vicarious liability without any negligence was opposed to the basic principles of law.
14. Taking all these into account, we are quite convinced that the present claim by the claimants is absolutely mis-conceived and they cannot claim any compensation from the owner of the vehicle and consequently they cannot have any claim against the appellant, the Insurance Company. Hence, the order of the Tribunal below is set aside and the appeal is allowed. In the circumstances, no costs. In pursuance of this judgment, the appellant is allowed to withdraw the amount deposited by it.
RR/VCS