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Attorney(S)
  • Sriyuths: R. Narayana, B.K Ramachandra Rao, for Appellants.
  • Sriyuths: S.P Shankar, Gurushettappa, K. Suryanarayana Rao, C.N Nagaraj Rao, C. Srinivas Vakil, J.C Umashankar, N.P Moganna, V. Markande Gowda, G. Raghuramachar, K. Malle Gowda for Respondents.
Judges
  • Bhimiah
  • Venkataramiah, JJ.
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Citation Codes
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citation codes
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Attorney(S)
  • Sriyuths: R. Narayana, B.K Ramachandra Rao, for Appellants.
  • Sriyuths: S.P Shankar, Gurushettappa, K. Suryanarayana Rao, C.N Nagaraj Rao, C. Srinivas Vakil, J.C Umashankar, N.P Moganna, V. Markande Gowda, G. Raghuramachar, K. Malle Gowda for Respondents.
Judges
  • Bhimiah
  • Venkataramiah, JJ.
Acts
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Smart Summary

Judgment Summary — Venkataramiah, J.

Factual and Procedural Background

On 3 May 1971 at about 2:45 p.m., a head-on collision occurred on the Bangalore–Tumkur Highway near Budihal Village (about 1½ miles from Nelamangala). An Ambassador motor car (reg. No. MYT 554) carrying nine persons including its driver was traveling from Tumkur to Bangalore. A lorry (reg. No. MYC 3955) belonging to Hanji Shivanna was being driven from Bangalore to Tumkur. When the two vehicles were about to cross, the middle-front portions collided; seven of the nine occupants of the car sustained fatal injuries (five died at the spot and two at hospital). One deceased was the car driver.

Seven petitions for compensation were filed before the Motor Accidents Claims Tribunal, Bangalore, by persons entitled to claim. The owner and insurer of the lorry and the owner and insurer of the car were impleaded. The Tribunal found negligence on the part of the lorry driver and awarded compensation in each case; the insurer of the lorry was directed to pay fixed sums in each case and awards were ordered to carry interest at 5% per annum from the date of petitions until payment.

The owner of the lorry, Hanji Shivanna, and the lorry's insurer, Madras Motor and General Insurance Co. Ltd., appealed to this Court against the Tribunal's awards (appeals relating to Mir Ali Hussain were disposed of separately). This opinion concerns the remaining petitions and the appeals against the Tribunal's awards.

Legal Issues Presented

  1. Whether negligence on the part of the lorry driver was established by the evidence and whether the lorry driver alone was responsible for the collision.
  2. Whether both drivers (lorry and car) were negligent and, if so, whether responsibility should be apportioned between them.
  3. Whether the insurer of the lorry is liable where it was alleged that the person driving at the time (R.W.2 Krishnappa) had no licence to drive a lorry (i.e., whether the insurer could avoid liability on that ground).
  4. Whether the insurer of the car could avoid liability on the ground that the car was being used for a purpose other than that for which it was licensed because it was overloaded (car licensed for five passengers but carrying eight plus driver).
  5. What amount of compensation is just and reasonable for each deceased passenger and how liability for payment should be allocated between the insurers.

Arguments of the Parties

Appellants (Hanji Shivanna — owner of lorry; Madras Motor and General Insurance Co., Ltd. — lorry insurer)

  • Contended that the claimants had not established negligence on the part of the lorry driver.
  • In the alternative, contended that both drivers should be held negligent and the Tribunal should have apportioned responsibility accordingly.
  • Argued that the lorry, at the relevant time, was being driven by R.W.2 Krishnappa (a cleaner/conductor) who had no licence to drive a lorry; hence the insurer asserted it was not liable.

Insurer of the Car (New India Assurance Co. Ltd.)

  • Argued that the car owner was licensed to carry five passengers only and that the vehicle was overloaded (eight passengers plus driver); therefore the car was being used for a purpose other than that for which it had been licensed and the insurer should not be liable to pay compensation.

Claimants / Counsel for Claimants

  • Proposed reduced sums of compensation to be fixed by the Court for the deceased passengers, and requested interest at 5% per annum from the date of the claim petition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Volume (1922) 1 A.C. 129 (Lord Borkenhead) Observation that a collision caused by blameworthy conduct of two vehicles does not necessarily mean loss must automatically be distributed between parties in the same proportion. Court acknowledged the principle but concluded that, on the facts, both drivers were equally responsible because there was no evidence showing whether either could by acting properly have avoided the collision.
Mills v. Armstrong (the "Bernina" case) Doctrine of identification rejected: passengers are not necessarily identified with negligent navigators and may recover full damages from the other negligent party. Court relied on the Bernina case to reject the doctrine of identification and to hold that representatives of deceased passengers could claim against both the car side and the lorry side despite negligence by their own driver.
Thorogood v. Bryan Earlier case supporting the doctrine of identification (noted to have been given a go-by in Bernina). Court noted Thorogood as an earlier authority contrasted with the Bernina decision; used this context to support refusal to apply the doctrine of identification here.
France v. Parkinson (Court of Appeal) Principle that if a taxi hired by the plaintiff collides by negligence of both drivers, the plaintiff may recover damages from both his own driver and the other driver. Court cited France v. Parkinson to support holding that claimants (passengers) could recover against both the car's and the lorry's owners/drivers/insurers.
Kesavan Nair v. State Insurance Officer Authority supporting the view that mere overloading does not necessarily make the use of a vehicle a purpose different from that for which it is licensed. Court relied on Kesavan Nair to reject the car insurer's contention that overloading changed the permitted purpose and absolved the insurer from liability.

Court's Reasoning and Analysis

The Court reviewed the primary facts: both surviving passengers (P.W.2 and P.W.4) and the lorry driver (R.W.1) stated that immediately prior to collision both vehicles were keeping to the left side of the road and that the collision occurred suddenly with little or no interval after the drivers observed each other. The point of occurrence was on a curve and the car was carrying more passengers than its licensed capacity.

From that factual matrix the Court reasoned as follows:

  1. Because there was no evidence indicating that either driver had a sufficient period of time during which he could, by proper action, have avoided the collision, the Court inferred negligence on the part of both drivers and held them equally responsible for the incident.
  2. The Court examined the doctrine of identification (which would attribute passenger/owner identity with the negligent driver) and, relying on the Bernina decision (Mills v. Armstrong), held that the doctrine is no longer a valid basis to deny recovery. Consequently, the representatives of deceased passengers could claim against both the car side (owner/driver/insurer) and the lorry side (owner/driver/insurer).
  3. The lorry insurer's contention that the lorry was actually being driven by an unlicensed cleaner/conductor (R.W.2 Krishnappa) was rejected on the basis of evidence: R.W.1 stated he was the appointed/licensed driver and had been driving; R.W.2 denied driving and said he could not drive a lorry; neither surviving passenger identified R.W.2 as the driver; the police prosecution against R.W.2 resulted in acquittal; the insurer's reliance on a newspaper report was undermined because the reporter was not produced as a witness. On this evidence the Court found R.W.1 to be the driver at the time of the incident and rejected the insurer's argument.
  4. The car insurer's argument that overloading meant the vehicle was being used for a different purpose than that for which it was licensed (and hence absolved insurer liability) was rejected. The Court reasoned that under the permit the owner was entitled to carry passengers, and although the vehicle was overloaded, the purpose remained the carriage of passengers. The Court cited Kesavan Nair to support that mere overloading did not change the permitted purpose.
  5. On the quantum of damages, the claimants' counsel proposed specific reduced amounts for each petition; the owners' counsel accepted these amounts as reasonable. After reviewing evidence relevant to compensation, the Court modified the Tribunal awards and fixed the compensation amounts as proposed (see amounts below). The Court ordered interest at 5% per annum from the date of the petition before the Tribunal until payment.
  6. As to payment, the Court directed that the insurers of the lorry and the car should pay the sums equally between them. The Court also directed that an amount previously deposited by Hanji Shivanna in one petition be refunded after insurer payments are made.

Holding and Implications

APPEALS DISPOSED OF.

Core rulings and direct consequences on the parties:

  • The Court held that both drivers were equally negligent and that representatives of six deceased passengers (excluding the car driver) were entitled to claim compensation from both the car side (owner/driver/insurer) and the lorry side (owner/driver/insurer).
  • The lorry insurer's contention that an unlicensed cleaner was driving was rejected; the Court found R.W.1 (a licensed driver) to have been driving the lorry at the time of collision.
  • The car insurer's contention that overloading changed the vehicle's licensed purpose (so as to absolve the insurer) was rejected; overloading did not amount to use for a different purpose under the permit.
  • The Court modified the Tribunal's awards and fixed the following compensation amounts (as substituted by this Court):
    V. Narayanaswamy (Misc. 141/71) — Rs. 20,000
    Saibaba (Misc. 170/71) — Rs. 12,000
    G. Govindaraju (Misc. 171/71) — Rs. 9,000
    J.B. Thimmegowda (Misc. 172/71) — Rs. 12,000
    B.M. Raghavendra (Misc. 183/71) — Rs. 12,000
    Abdul Latif (Misc. 19/72) — Rs. 20,000
  • Liability for payment: the insurers of the lorry (Madras Motor and General Insurance Co. Ltd.) and of the car (New India Assurance Co. Ltd.) were ordered to pay the amounts equally between them. The Court provided a schedule allocating half of each award to each insurer (specific split sums are recorded in the judgment and carry interest at 5% per annum from the date of the petition until payment).
  • Hanji Shivanna's prior deposit of Rs. 14,000 in Misc. (MVC) No. 141/71 shall be refunded after insurers deposit the ordered amounts before the Tribunal.
  • No costs were awarded in either this Court or before the Tribunal.

Broader implications: The opinion applies existing authorities to confirm that passengers injured or killed in a collision caused by negligence of both drivers can recover from both sides; it rejects the doctrine of identification for this context and reaffirms that overloading does not automatically change the licensed purpose for insurer liability. The decision modifies (reduces/varies) the Tribunal's awards and apportions insurer liability equally between the two insurers in this case.

Show full summary ...

    The Madras Motor And General Insurance Company Ltd., Bangalore-1 v. Nanjamma And Others

    Venkataramiah, J.:— A Ghastly incident resulting in the death of seven persons took place at about 2-45 p.m on 3-5-1971 along Bangalore-Tumkur High way near Budihal Village situated about 1 and half miles away from Nelamangala Town. A motor car bearing registration No. MYT 554 carrying nine persons including the driver was coming from Tumkur to Bangalore. A lorry bearing registration No. MYC 3955 belonging to Hanji Shivanna was being driven from Bangalore to Tumkur. Near Budihal village when the two vehicles were about to cross each other there was head-on-collision. The middle front portion of the car collided with the middle front portion of the lorry just at the middle of the high way. Consequently seven persons out of nine persons who were in the car, suffered fatal injuries. Five, of them died at the spot and two of them died at the hospital immediately after they were taken there. One of them was the driver of the car.

    2. Seven petitions were filed before the Motor Accidents. Claims Tribunal, Bangalore, by the persons who were entitled to claim compensation. The owner and the insurer of the lorry and the owner and the insurer of the car were impleaded as the parties. All the petitions were tried together. The Tribunal found that the incident in question took place on account of negligence on the part of the driver of the lorry and awarded compensation in all the cases. The amounts awarded by the Tribunal are given below:—

    Sl. No. Mis. (MVS) No. Name of the decessed Compensation awarded Rs. 1. 141/71 V. Narayanaswamy .. 35,000 2. 144/71 Mir Ali Hussain .. 25,000 3. 170/71 Sai Baba .. 25,000 4. 171/71 G. Govindaraju .. 9,000 5. 172/71 J.B Thimme Gowda .. 20,000 6. 183/71 B.M Raghavendra .. 27,000 7. 19/72 Abdul Lathif .. 45,000

    The Insurer of the lorry, the Madras Motor and General Insurance Co., Limited was directed to pay Rs. 7,000 out of the amount awarded in each of the cases referred to above except in Misc. (MVC) No. 19/72 in which it was asked to pay Rs. 8,000. The Tribunal further directed that the amounts awarded should carry interest at 5 per cent per annum from the date of petitions till the date of payment.

    (3) Aggrieved by the awards passed by the Tribunal, below, Hanji Shivanna, the owner of the lorry and the Madras Motor and General Insurance Co., Ltd., filed appeals before this Court. It should be mentioned here that the appeals filed by them against the award passed in favour of the heirs of Mir Ali’ Hussain have been disposed of by this Court by a separate order. In these appeals we are concerned with the compensation awarded by the Tribunal in the other petitions.

    (4) Sri B.K Ramachandra Rao, learned counsel for Hanji Shivanna the owner of the lorry, contended that the claimants had not established that there was negligence on the part of the driver of the lorry. In the alternative he contended that the Tribunal should have held that the incident took place on account of the negligence on the part of both the driver of the lorry and the driver of the car.

    (5) The car had been licenced to carry five passengers. On that fateful day, the car was carrying eight persons in addition to its driver. It was an Ambassador car. All the nine persons, who were travelling in the car, were adults. Some of them were stated to be bulky. Five persons were sitting in the rear seat and four persons including the driver were sitting in the front seat. At the point where the occurrence took place, there was a curve. P.Ws 2 and 4 are the only survivors among those who were travelling in that car. P.W 2 has stated in the course of his evidence that just before the occurrence the car was being driven on the left side of the road and the lorry was coming from the opposite direction keeping to the left side of the road. All of a sudden within a few seconds there was a collision between the two moving vehicles P.W 4 the other surviving passenger of the car has also stated that just before the occurrence both the car and the lorry were keeping to the left side of the road and that the incident in question took place all of a sudden. He has further stated as follows:—

    “….The front portion of the lorry dashed against the front portion of our taxi. The middle portion of the lorry hit the middle portion of out taxi.”

    R.W 1 the driver of the lorry has stated that he was driving the lorry on the left side of the road just before the incident took place and the incident took place all of a sudden. No substantial period of time could have elapsed between the time when either of the drivers saw the other vehicle and the moment of collision. From these facts, which are fairly established, it has to be inferred that the incident took place on account of the negligence on the part of both the drivers of the lorry and the car. It is true that, as observed by Lord Borkenhead in the case of the Volume (1922) 1 A.C 129 the mere fact that a collision has occurred on account of the blameworthy of conduct of two vehicles does not necessarily imply that the loss must, automatically be distributed between the parties in the same proportion. But in the instant case both of them were equally responsible for the incident in question, since there is no evidence before the Court, as to whether any of them could have by acting properly avoided the incident.

    6. It is no doubt true that the persons who died (excluding the driver) on account of the incident had engaged the taxi in which they were travelling. That circumstance would not in any way disentitle the claimants to the compensation, merely because the driver of the car was also negligent since it is not established in this case that they had control over the driving of the car and that the driver of the car acted as their agent. In fact the driver of the car was in the position of an independent contractor. The principle on which reliance was placed on behalf of the appellants, which was popularly known as the doctrine of identification, is no longer considered as good law. In Mills v. Armstrong(1) popularly known as the Bernina case, the doctrine of identification which had been followed in Thorogood v. Bryan(2) was given a go by. In the Bernina case the collision having occurred between the steam-ships, Bushire and Bernina through the fault or default of the masters and crews of both, two persons on board the Bushire, one of the crew and a passenger, neither of whom had anything to do with the negligent navigation, were drowned. The representatives of the deceased having brought in the admirality Division actions in personam against the owners of the Bernina for negligence under Lord Campbell's Act, it was held by the House of Lords that the deceased persons were not identified in respect of the negligence with those navigating the Bushire and that their representatives could maintain the actions and could recover the whole of damages.

    (7) In view of the aforesaid decision, we hold that the representatives of six passengers who died on account of the injuries sustained by them at the time of the incident are entitled to claim compensation in equal proportions from the owner, driver and the insurer of the car and from the owner, driver and the insurer of the lorry in the circumstances of the case. Our view receives support from the decision of the Court of Appeal in France v. Parkinson(3). Summarising the decision in France v. Parkinson the learned Editor of the Fifteenth Edition of Salmond on Torts has observed at page 704 as follows:

    “If a taxi-cab hired by the plaintiff comes into collision with another vehicle by the negligence of both the drivers, and the plaintiff is hurt, he can recover damages not only from his own driver but also from the other.”

    It was argued by Sri R. Narayanan that the insurer of the lorry was not responsible to pay compensation because the lorry was at the relevant point of time being driven by R.W 2 Krishnappa who was working as either conductor or cleaner in the lorry and who had no licence to drive a lorry. A similar argument was addressed before the Tribunal below by the insurer of the lorry. The Tribunal rightly rejected it R.W 1 Giriyappa has given evidence in the case. He has stated that he was working as a lorry driver, that the owner of the lorry had appointed him that he had a licence to drive the lorry and that he was driving the lorry at the time when the incident took place. He has further stated that he ran away from the place of occurrence as he was afraid of persons nearby attacking him. R.W 2 Krishnappa, who according to the insurer was the driver of the lorry at that time, has stated that he was not driving the lorry when the incident took place. He has also stated that he does not know how to drive a lorry. It is no doubt true that the police instituted a criminal case against R.W 2 Krishnappa because he was present at the place of the incident, but the said case ended in his acquittal. Neither P.W 2 nor P.W 4 who was a passenger in the car says that R.W 2 Krishnappa was driving the lorry. There is no other reliable evidence before the Court in support of the contention urged on behalf of the insurer. No reliance can be placed by the insurer on the news item appearing in the English-daily ‘Indian Express’ stating that a cleaner or conductor was driving the lorry at the time of the incident as the insurer has not examined the person who contributed the report to the newspaper as a witness in this case. It is no doubt true in some claim petitions before the Tribunal it was stated that R.W 2 Krishnappa was driving the lorry at the time of the incident. None of the claimants was present at the scene of occurrence. Apparently they made the said statement in the Course of their claim petition on the basis of the prosecution instituted by the police against him in the criminal court. In these circumstances, we hold that R.W 1 who was a licenced driver was driving the lorry at the time of the incident. Hence we reject the contention urged on behalf of the insurer of the lorry.

    (8) Sri Suryanarayana Rao, learned counsel for the insurer of the car, argued that the insurer of the car would not be liable to pay compensation as the car was being used for a purpose other than the purpose for which it had been licenced. He contended, that the owner of the car was entitled to carry five passengers only and since eight passengers were being carried, it had to be held that the car had been used for a purpose for which it was not licenced and that therefore the insurer was not liable to pay any compensation. We do not think that there is any substance in this contention. Under the permit issued under the Motor Vehicles Act, the owner of the car was entitled to carry passengers. Admittedly the passengers were being carried in the car at the time of the incident. So it cannot be said that the car was being used for a purpose different from the one for which it had been licenced. Merely because there was over-loading, we cannot say that the car was being used for a different purpose. This view is supported by the view expressed in the case of Kesavan Nair… v. State Insurance Officer….(4). The contention urged on behalf of the insurer of the car also fails.

    (9) The next question relates to the amount of compensation to which the claimants are entitled. At the time of the hearing, the learned counsel for the claimants stated that the amounts of compensation awarded in their favour might be fixed at the following amounts:—

    Sl. No. Misc. (MVC) No. Name of the deceased Compensation amount Rs. 1. 141/71 V. Narayanaswamy 20,000 2. 170/71 Saibaba 12,000 3. 171/71 G. Govindaraju 9,000 4. 172/71 J.B Thimmegowda 12,000 5. 183/71 B.M Ragkavendra 12,000 6. 19/72 Abdul Latif 20,000

    They have also stated that interest at 5 per cent per annum from the date of claim petition might be awarded.

    (10) Sri B.K Ramachandra Rao, learned counsel for the owner of the lorry, and Sri S. Gurusettappa, learned counsel for the owner of the car, submitted that the amounts now claimed by the learned counsel for the claimants are reasonable and that an order may be made accordingly. We have also been taken through the evidence bearing on the above question. We are of the view that the sums now claimed by the learned counsel for the claimants are just and reasonable. We therefore, modify the awards passed by the Tribunal below and fix the compensation accordingly in substitution of the compensation awarded by the Tribunal.

    (11) The insurer of the lorry, the Madras Motor and General insurance Company Limited, and the insurer of the car, the New India Assurance Company Limited, shall pay the amounts payable to the claimants equally.

    (12) The Madras Motor and General Insurance Company Limited shall pay the following sums:

    Sl. No. Misc. (MVC) No. Name of the deceased Compensation amount Rs. 1. 141/71 V. Narayanaswamy 10,000 2. 170/71 Saibaba 6,000 3. 171/71 G. Govindaraju 4,500 4. 172/71 J.B Thimmegowda 6,000 5. 183/71 B.M Raghavendra 6,000 6. 19/72 Abdul Latif 10,000

    These sums shall carry interest at 5 per cent per annum from the date of the petition before the Tribunal till day of payment.

    (13) The insurer of car, the New India Assurance Company Limited shall pay the following sums:

    Sl. No. Misc. (MVC) No. Name of the deceased Compensation amount Rs. 1. 141/71 V. Narayanaswamy 10,000 2. 170/71 Saibaba 6,000 3. 171/71 G. Govindaraju 4,500 4. 172/71 J.B Thimmegowda 6,000 5. 183/71 B.M Raghavendra 6,000 6. 19/72 Abdul Latif 10,000

    These sums shall carry interest at 5 per cent per annum from the date of the petition before the Tribunal till date of payment.

    (14) It is stated that Hanji Shivanna, the owner of the lorry, has deposited a sum of Rs. 14,000 before the Tribunal in Misc. (MVC) No. 141/71, pursuant to an interim order passed by this Court. After the amounts are deposited by the insurers before the Tribunal below, the amount deposited by Hanji Shivanna in Misc. (MVC) 141/71 shall be refunded.

    (15) These appeals are accordingly disposed of. No costs both in this Court and before the Tribunal.

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    Comments

    The Madras Motor And General Insurance Company Ltd., Bangalore-1 v. Nanjamma And Others
    (Apr 8, 1976)