Smt. K.S Chayadevi And Others v. Corporation Of The City Of Bangalore And Others

Thakur, J.:—

The short question that arises for consideration in this appeal is whether a claim petition was maintainable under the Motor Vehicles Act in a case, where the accident had occurred due entirely to the negligence of an outside agency without the agency itself making use of any motor vehicle.

The deceased Sri K.V Srinivasa Murthy was on the fateful night driving home on a scooter owned by him. When he reached 30th cross, Kanakapura Road in Jayanagar, the scooter hit a pot hole in the road and overturned. The driver Sri Murthy sustained injuries to which he succumbed. The dependents of the deceased lodged a claim for payment of compensation before the Motor Accident Claims Tribunal at Bangalore against the respondent-Corporation and the New India Insurance Company Limited with whom the scooter was insured. The claim proceeded on the ground that the accident was caused entirely because of the failure of the Corporation to maintain the road and thereby ensure the safety of those, who use the same. The maintainability of the claim Petition was assailed by the respondent on the ground that the accident had not occured on account of use of any motor vehicle. Reliance in support of that Petition was placed by the respondents upon a decision of the Madras High Court in Ellammal v. Government Of Tamil Nadu . AIR 1987 MAD 80. and in Bhola Ram v. State of Himachal Pradesh . AIR 1982 HP 11.. The objection raised by the respondent found favour with the Tribunal resulting in the dismissal of the claim petition as not maintainable. Aggrieved, the claimants-appellants have filed the present appeal challenging the order passed by the Tribunal.

Learned Counsel for the appellants argued that the Tribunal was not justified in holding that the claim petition filed by the appellants was not maintainable before it. He urged that the accident in question had arisen out of the use of a motor vehicle within the meaning of Section 165 of the Motor Vehicles Act, 1988 and was therefore maintainable before the Tribunal established under the said Act. In support, he placed reliance upon two decisions of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More . 1991 2 ACJ 777. and Union of India v. United India Insurance Company Limited . 1997 8 SCC 685.. He also placed reliance upon a decision of the High Court Himachal Pradesh in Himachal Road Transport Corporation v. Om Prakash . 1992 ACJ 40..

In Shivaji Dayanu's case (supra), on account of a collision between a truck and petrol tanker, the tanker had turned turtle. Hours after the accident the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it. The contention urged was that at the time of the explosion and the resultant fire, the petrol tanker which was lying turtle was not suitable or fit for use on the road and hence could not be treated as a motor vehicle. Repelling the contention, the Court held that there was no material on record to show that the petrol tanker would not have been in a position to move after being put back on the wheels. The Court declared that the vehicle was a motor vehicle when it collided with the truck and did not cease to be so after the collision.

In Union of India v. United India Insurance Company Limited . 1997 8 SCC 683., the claim petition had arisen out of an accident between a motor vehicle and a railway engine at an unmanned level crossing. The argument was that the Railway was guilty in not taking proper care to open and shut the gates, chains, bars etc. in Railway level crossings and since the accident had partly arisen out of the negligence of the Railways in not taking that care, the Motor Vehicles Claims Tribunal could not entertain a claim against Railways. The Supreme Court reviewed the case law on the subject and noticed a conflict of judicial opinion among the High Courts, in the Country as regards the maintainability of each claims. While the High Courts of Andhra Pradesh, Gowhati, Orissa and Madras had taken the view that claims before the Tribunal are restricted to owners, drivers and insurers of the vehicles, the High Courts of Allahabad, Punjab, Gujarat, Kerala and Rajasthan had held that so long as the accident had occurred on account of the use of a motor vehicle to which an outside agency had contributed a claim petition before the MACT would be maintainable. The Supreme Court found the latter view to be correct and declared that a claim petition would be maintainable against other person or agencies if they are guilty of composite negligence resulting in an accident arising out of the use of the motor vehicle. The Court observed:

“Claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of the exclusive negligence of Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal”.

In Himachal Road Transport Corporation v. Om Prakash . 1992 ACJ 40. the claim had arisen out of a bomb explosion lying hidden in the Roadways bus resulting in injuries to some and death of other passengers. The maintainability of the claim, it appears, was questioned on the ground that there was no direct connection between the use of the motor vehicle and the explosion causing the death of the passengers. Upon a review of the judicial pronouncements on the question, the Court rejected the contention and held that in order to give jurisdiction to the Motor Accidents Claims Tribunal, it is necessary that the motor vehicle should contribute whether by itself or along with some other joint tortfeasors to the accident. The Court held that the explosion had occurred inside the bus and in a territory where such incidents were common. It was therefore essential for the Corporation and the crew of the bus to take precautionary measures. The driver or cleaner of the vehicle were found negligent in not ensuring the safety of the vehicle resulting in the placement of the explosive material in the bus and the explosion, which eventually claimed valuable human lives.

Let us now see the facts of the present case. The deceased was himself driving the motor vehicle at the time of the accident. He was not on the showing of the claimants themselves rash or negligent in his driving. The claimant's specific case on the other hand is that the accident had occurred entirely because of the failure of the respondent-Corporation to keep the road in good repair. They argue that if the road had been maintained properly, there would be no pot holes to endanger the lives of those using the road. Suffice it to say that it was according to the claimants the negligence of the respondent-Corporation an outside agency not itself using a motor vehicle, that the accident had occurred. That being so, no claim petition before the MACT was maintainable. The claimants remedy lay in a civil action before a competent Civil Court and not before the Tribunal under the Motor Vehicles Act. The Tribunal was therefore justified in dismissing the claim petition on that ground.

In the result, this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs.