A. Rahiman And Another v. H. Webber And Others

Nesargi, J.:— This Appeal is filed by the respondents 1 and 2 in claims Case No. 72 of 1966 on the file of the Motor Accident Claims Tribunal and District Judge, South Kanara, Mangalore, against the award passed by the Tribunal holding that the claimant in the said claims case was entitled to an amount of Rs. 6,750 as compensation from these appellants in regard to his claim arising out of a motor accident that took place at about 5:30 P.M on 22nd October, 1966 on Mangalore-Charmady Road between milestones 27/4 and 27/5.

2. The averment of the claimant are that he was an Engineer expert working in the Sasal Mission Trust, Mangalore and drawing about Rs. 665/- per month though he was entitled to a salary of Rs. 2,000 per month. On 22nd October, 1966 he was traveling in car bearing registration No. MYX 761 belonging to the said Trust and driven by one Mr. Bauer. The car was proceeding towards Mangalore. There was a ‘S’ curve between the said mile-stones. It was upgradient for the car. The car was being driven at a speed of 20 miles per hour and while it was negotiating the curve on its proper side of the road, lorry bearing registration No. MYX 5335, belonging to appellant-1 and driven by the driver of appellant-1 and insured with the insurance company which is appellant-2 came from the opposite direction. It was being driven in great speed and rashly and negligently. In view of such driving on the part of the driver of the lorry, the lorry dashed against the car and it was a head-on collision. In view of this collision, the claimant sustained injuries and he became unconscious. He was taken to Fr. Muller's Hospital at Kankanady in Mangalore and treated there. Thereafter also he was treated for a considerable time. In view of the injuries sustained by him in the accident, his noss had lost its shape and there was a permanent disfigurements and that his collar bone got fractured and now he is prohibited from exerting himself to the extent that he was required to extent in the discharge of his duties and his consultation of eminent surgeons in Geremony showed to him that no operation was desirable as it was a risky one. The claimant claimed Rs. 50,000 compensation.

3. In his claim petition, he male the owner of the car and the insurer of the car as respondents. He had also averred in his petition that the car in which he was traveling was not being driven rashly or negligently by Mr. Bauer the driver.

4. The contention of the appellants was that the lorry of appellant-1 was not being driven either rashly or negligently, but it was the driver of the car who drove the car in question rashly and negligently and dashed against the lorry. In fact, according to them, while the lorry was negotiating the ‘S’ curve, the driver of the lorry found this car coming from the opposite direction, and thereafter, in order to allow the car to pass safely over the road, he took the lorry to his extreme left-side of the road and halted it there, but still the car went and dashed against the frontside of the lorry.

5. On the evidence adduced before the Tribunal, the learned member of the Tribunal concluded that the lorry was being driven rashly and negligently and it was the result of such rash and negligent driving on the part of the driver of the lorry that the accident took place and the claimant sustained injuries, and, therefore, the appellants were liable to pay the said sum as compensation to the claimant.

6. In the cross-objections filed by the claimant, it is contended that the claimant is entitled to compensation at least of Rs. 20,000 more than what has been awarded by the Tribunal, and the Tribunal was to that extent wrong in deciding the quantum of compensation.

7. Sri Tukaram S. Pai, the learned counsel for the appellants, firstly contended that the Tribunal ought not to have placed reliance on Exhibits A-5 and A-6 which are observation yadast and a hand-sketch drawn by the investigation officer when he investigated into the cause of the accident and ultimately lodged charge-sheet for the offence under section 337 of the Indian Penal Code. He pointed out that the two documents have been admitted in evidence on the basis of the concession made by the counsel on both sides and such concession would, according to him, hold good to the extent of showing that an observation yadast and a hand-sketch had been prepared. He urged that the contents of these documents were not proved as correct and therefore, no reliance could be placed on the contents of these documents. We are not in agreement with this contention. The award passed by the Tribunal and the records show that the counsel representing the appellants before the Tribunal admitted these documents and conceded that may be admitted in evidence and marked as exhibits in the case. In view of this statement made by the learned counsel for the appellants before the Tribunal, it will have to be held that the contents of these documents were admitted to be correct and they should be treated as evidence in this case.

8. The claimant has sworn that the car in which he was traveling was running at a speed of about 20 miles per hour and it was being driven by Mr. Bauer and that there was a ‘S’ Curve where the accident took place. He has also sworn that the driver of the car drove it carefully and cautiously and even then the lorry driven by the driver of appellant-1 came in great speed in the opposite direction irrespective of the ‘S’ curve being there between the said mile-stones, and dashed against teacher though the car was negotiating the curve on its proper side of the road and thereby caused the accident. Sri Tukaram S. Pai pointed out from Exhibits A-5 and A-6 that the spot of the accident is more towards that part of the road which was towards the right side of the car and that too beyond the central line of the road and that would go to show that the car was not travelling on its proper side of the road, and therefore, urged that no blame would be attached to the driving of the lorry by the driver of the lorry. It is seen from Ex. A-5 that what is stated by Sri Pai is on the basis of the measurements mentioned therein, accurate, but we do not find this manner of driving the car either rash or negligent on the part of Mr. Sauer the driver. It is to be remembered that the car was negotiating a left-side curve at that spot. In order to negotiate a left-turn a vehicle will necessarily have to move more towards its right-side to some extent beyond the centre of the road when it is not so very wide the road in question, it is in evidence, is about 19½ feet in width because the centre of gravity of the car will have to be maintained while negotiating a turn. The measurements seen from Ex. A-5 show that the front right-side wheel of the car had travelled just beyond the central line of the road towards the right-side of the car. We cannot, under these circumstances, regard this manner of driving of the car either rash or negligent in regard to what was the required manner of driving the lorry, under the circumstances, the driver of the lorry, who is examined as D.W 1, has himself sworn as follows:—

“There are also two curves near the spot. First I took my lorry towards left and then while taking it towards the right at the time of negotiating the turn a car came from the opposite direction. On seeing that car, I stopped the lorry by putting it on gear. There was a mud road of about 1 feet; left towards the left hand side of the lorry. I stopped it. After that I feet mud portion of the road, there was a channel. The car could slowly pass by the side of the lorry to its right. But the said car came at high speed and dashed against my lorry. The driver of the car could not see by lorry because of the intervening tree and the compound wall and also a temple”.

What the driver has stated above makes it abundantly clear that was how the lorry ought to have been under the circumstances and in fact he did drive accordingly. It is to be remembered that the driver of the lorry had to negotiate a right-hand side curve so far as the movement of the lorry was, concerned. In order to do that and to maintain the centre of gravity, of the lorry, he had to keep, as far as possible, to his left-hand side of the road. In fact he has stated that he moved the lorry towards the extreme left-hand side edge of the road and allowed only 1 ft. between the lorry and the channel that was on his left-hand side of the road. Now it is to be seen with the aid on Exhibits A-5 and A-6 whether in fact he had driven the lorry accordingly. Ex. A-5 which gives the different distances from the different parts of the road, shows that the front left wheels of the lorry were 7 feet 6 inches away from the northern side of the road i.e, towards that part of the road which was towards the left-hand side of the lorry and the rear left wheels were about 2 ft. 6 inches away from the said part of the road. It is, therefore, evident that he had not driven the lorry, in the manner that he has sworn to before the Tribunal. Why he did not take the lorry to the extreme edge of the road on his left-side is not explained by him. On the other hand, he has tried to make it appear that he took the lorry to that part of the road and on seeing the car from the opposite direction he actually stopped the lorry by putting it into gear. In this connection it is to be particularly remembered that the driver of the lorry was going on down gradient so far as he was concerned. When he has failed to drive the lorry in the manner that he ought to have done taking into consideration the situation, the topography and the circumstances existing at that point of time, it will have to be held that the driver of the lorry had not exercised due care and caution that was expected of him at that point of time while driving the lorry. This amounts to rash and negligent driving on the part of the driver of the lorry of appellant-1 while no blame can be attached to the driver of the car, in question. The Tribunal has after applying its mind to the evidence before it, come to the very same conclusion and we agree with that conclusion.

9. Sri Pai quite fairly, did not attempt to contend that the Tribunal has erred grievously while arriving at the quantum of compensation. He only pointed out that the claimant had claimed Rs. 1,000 towards medical expenses while the Tribunal had granted Rs. 750. We also pointed out that the claimant was a person working as an employee under the Basel Mission Trust and Fr. Muller's Hospital was run by another Trust, therefore it was not likely that the claimant had been made to incur any expenditure towards his treatment. He urged that the claimant had not produced any vouchers in proof of his claim that he had incurred medical expenses. When it is seen that the claimant was hospitalised and he was treated as he had sustained grievous injuries, it goes without saying that he must have undergone medical treatment and that too at considerable expenditure. Whether he had actually contributed a particular sum towards that expenditure is, of course, not established by the claimant by producing necessary vouchers. The claimant has sworn that he had to spend about Rs. 1,000 and we think that must have been the expenditure incurred for treatment of the claimant. The Tribunal has awarded only Rs. 750. It is not the case put forward by the appellants that the claimant was treated at the cost of his employer. There is no evidence also to that effect. Under these circumstances we are unable to agree with what is contended by Sri Pai.

10. This brings us to consider the cross-objections filed by the claimant. A preliminary objection was raised by Sri Pai that cross-objections are not maintainable as no such provision had been made in the statute, i.e, either the Motor Vehicles Act or the Rules framed thereunder in regard to the procedure to be adopted by the Motor Accidents Claims Tribunals. We further urged that in regard to the filing of claims petitions, the procedures of hearing the claims petitions, right of appeal and procedure in regard to hearing of appeals, the Motor Vehicles Act is a complete code by itself, and, thereforce, the provisions of the code of civil procedure and especially the provisions contained in order 41 relating to appeals in the code of Civil Procedure could not be brought to bear in such matters. He placed reliance on the decision of this court in Union of India v. Narasiyappa(1) in support of this contention. Sri U.L Narayana Rao, the learned counsel appearing on behalf of the claimant, urged that when once an appeal is preferred to the High Court, the usual practice and rules of procedure applying to appeals being dealt with by the High Court would become applicable and, therefore, a right to file cross-objections would acrue to the respondents in such an appeal and, hence, the cross-objections filed by the claimant are maintainable. He placed reliance on two decisions in support of his contention; one being the decision in Manjuladevi Bhuta v. Manjusri Raha(2) and another, being the decision in Delhi Transport undertaking v. Raj Kumari(3) in which the decision in Manjuladevi Bhuta's case has been followed.

11. The decision in Manjuladevi Bhuta's case has been rendered by the High Court of Madhya Pradesh.

12. That was a case arising out of an accident being dealt with under the provisions of the Motor Vehicles Act. It was contended in that case that cross-objections filed by the claimant were not maintainable as no such right had been given to the claimants and the provisions of the Code of Civil Procedure would not be applicable. The court held that the rules of practice and procedures of the High Court should apply even to an appeal filed under section 110-C of the Motor Vehicles Act and the High Court could give relief even to a party who had not appealed and cross-objections were maintainable. In Delhi Transport undertaking's case Mr. R.A Ansari, Judge of the Delhi High Court followed the decision in Manjuladevi Bhuti's case and held that was the correct position in law. It appears to us that what has not been taken into consideration while rendering the decisions in Manjuladevi Bhuta's case and Delhi Transport undertaking's case is that it is a recognised principle that a right of appeal must be given to a party by the Statute. If such a right has not been given, the party does not get a right to prefer an appeal and further that filing of cross-objections would be nothing but exercising a right of appeal given to the party who files cross-objections and such right also must be granted by the Statute. Our court has in Union of India's case (which is a Bench Decision) considered these principles while dealing with the question of maintainability of cross-objections, in an appeal arising out of proceedings under Acquisitioning and Acquisition of Immovable Property Act (30 of 1952). It is laid down as follows:—

“The Principle therefore is that the right to file cross-objection is not different from the right to appeal which is a substantive right and not a mere matter of procedure. The right to appeal therefore has to be expressly conferred upon a party by the relevant statute, and a right already conferred by a statute is not lost unless it is taken away by another statutory provision either expressly or by necessary intendment.

It has to be held therefore that in appeals preferred under Section 11 of the requisitioning and Acquisition of Immovable Property Act, 1952 no cross-objection by a respondent is possible”. (Reliance has been placed on the decision of the Supreme Court in Hanskumar v. Union of India(4).

In view of what has been laid down by our court, we respectively disagree with what has been laid down is Manjuladevi Bhutta's case and in Delhi Transport undertaking's case. We, therefore, hold that the cross-objections filed by the claimant are not maintainable.

13. Sri Narayana Rao further contended that even if cross objections are held to be not maintainable, this court, can consider the cross-objections as an appeal and permit him to file an application for condonation of delay in filing the appeal as per the proviso to Section 110-D of the Motor Vehicles Act. In support of this contention, Ire placed reliance on the decision in Union of India's case. Firstly it is to be proved that no such application praying for condonation of delay has yet been filed before us. When this was pointed out, Sri Narayana Rao prayed for an adjournment in this appeal to secure his client and file necessary application for condonation of delay. The award in question was passed by the Tribunal on 4th December, 1970. The notice of this appeal was served on the claimant on 12th April, 1971. By that time, the period of limitation prescribed for filing an appeal by the claimant had evidently expired and he had not at all field any appeal. It is therefore apparent that the claimant must have been provoked to file cross-objections on finding that the appellants had filed this appeal against the award. Under these circumstances, we do not consider it a fit case where time should be granted to Sri Narayana Rao to enable his client to file a petition for condonation of delay.

14. In view of the foregoing reasons, we hold that the appeal is to be dismissed and hence dismiss the same. We reject the cross-objection as not maintainable. Each party will bear its costs.