Madhya Pradesh State Road Transport Corporation Bhopal And Another v. Munnabai And Others

1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, against the award dated 19.9.63, passed by the Claims Tribunal, Gwalior, Presided over by the Additional District Judge, in Motor Vehicles Accident Case No. 8 of 1962, awarding Rs. 20,480/- to the legal representatives of the deceased Laxminarain, as against their claim for Rs. 31,230/-.

2. The facts leading to the present claim were as follows: The deceased Laxminarain was travelling in a Bus No. M.P.G 4131 on 22.3.1962 from Shivpuri to Chanderi. The Bus belonged to the M.P State Road Transport Corporation and was being driven by the second appellant, Ratanlal. On the way the Bus collided against ‘neem’ tree at Mile No. 21/2 at about 9 A.M Laxminarain died on the spot as a result of severe injuries. Hence the claim by the heirs of the deceased.

3. The appellants defence was that there was no rash and negligent driving on the part of the driver but it was purely a case of a chance accident and the present appellants could not be held liable for any damage, whatsoever.

4. The Claims Tribunal found that the deceased at the time of his death was 59 years of age. As a Government pensioner, he was getting Rs. 32.50 paise as pension per month; and in addition was in the employment of a Member of the Legislative Assembly, Mr. Chandra Bhan Singh on a salary of Rs. 75/- per month. The deceased was healthy and had a robust physique and his expectancy of life could be assumed to be up to 80 years. For that reason, it was held that the family of the deceased was deprived of an income of Rs. 107.50 paise per month inclusive of pension for a period of 21 years. Excluding the probable amount that the deceased might have required to spend on himself during that period, the Tribunal came to the conclusion that the family was deprived of a probable income of Rs. 20,480/-. Therefore, that amount was awarded with proportionate costs along with interest at Rs. 6% per annum, from the date of the claim till realisation. As regards the question of gross and negligent driving the Tribunal held that there was no apparent cause for the accident. It was morning time. There was no fog and the road in front was clear and visible. There was no mechanical failure of any part of the Bus. Therefore, the principle of res ipsa loquitur was invoked; and in the absence of any further material to be adduced by the present appellants, the accident could be ascribed to the rash and negligent driving of the second appellant.

5. The learned counsel for the appellants pressed only three questions for consideration by this court, which we propose to discuss at some length in view of the general importance of the questions, which are as follows:

(i) That the claim petition was barred by limitation and the Tribunal was not justified in granting extension of time under the proviso to section 110-A(3) of the Motor Vehicles Act, 1939;

(ii) There was no rash and negligent driving on the part of the driver and the accident took place on account of natural causes;

(iii) That the quantum of damages awarded is not justified and in no case could more damages be awarded than what were claimed in the notice issued by the claimants under section 80 of the Civil Procedure Code namely Rs. 15,000/-.

6. On the question of limitation, it is urged that the occurrence took place on 22.3.1962 As per section 110 A (3) of the Motor Vehicles Act, 1939 the claim petition ought to have been filed within 60 days from the date of occurrence, unless under the proviso the Tribunal was of opinion that there was sufficient cause, which prevented the claimant from filing the petition. The claim petition was actually filed on 19.6.1962, which was the date of re-opening of the Civil Courts after the summer vacation. The High Court had issued a Notification stating that the sub-ordinate Civil Courts, excepting those presided over by the Revenue Officers were to remain closed from Monday, the 7th May, 1962 to Saturday, the 16th of June 1962 (both days inclusive) on account of summer vacation. The 17th of June, 1962 was Sunday. It was taken for granted by both the parties as also by the trial Judge that the 18th June 1962 was also a general holiday, though we are unable to ascertain in what manner it was declared a public holiday. However, for the purposes of this appeal we take that statement of fact to be correct, as it was not challenged by the learned counsel for the appellants. Accordingly, we hold that the claim petition was presented before the Claims Tribunal on the reopening day of the Civil Courts after the summer vacations. The contentions of the learned counsel for the appellants is that the limitation of 60 days having expired during the summer vacations on 21.5.62 that petition ought to have been filed on 22.5.62, and there being no explanation on behalf of the claimants as to why it could not be filed during the summer vacations, the trial Judge was bound to dismiss it on the ground that it was barred by time, and in the absence of any sufficient cause, time could not be extended under the proviso to section 110-A (3) of the Motor Vehicles Act, 1939.

7. This argument proceeds on the assumption that the Claims Tribunal being a Tribunal and not a Court, its offices ought to remain open on all days, including the public holidays. The suggestion of the learned counsel for the appellants is that even the benefit of section 4 of the Limitation Act, cannot be given to the claimants. In this connection, we might mention that according to section 110-A(3) of the Motor Vehicles Act, 1939 a person is qualified for appointment as a Claims Tribunal only if he has been a Judge of a High Court, or is or has been a District Judge, or is qualified for appointment as a Judge of the High Court. Section 110-C of the said Act prescribes the procedure and powers of a Claims Tribunal. Sub-section (1) lays down that in holding any inquiry under section 110-C of the Act the Claims Tribunal may, subject to any Rules that may be made in this behalf, follow such summary procedure as it thinks fit. Sub-section (2) lays down that the Claims Tribunal shall have all the powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898.

8. It is true that the Claims Tribunal I may not be a civil Court in the strict sense of the word. Section 110-D of the Motor Vehicles Act, 1939 further provides that subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. The proviso further provides that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. Thus, the proviso would exclude the applicability of section 5 of the Limitation Act, 1963. But we have to consider the effect of section 29 of the said Act. Sub-section (2) of that section provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Therefore, the other sections of the Limitation Act, namely sections 4 to 24 will be applicable to a case of claim petition regarding a motor accident, unless they are excluded expressly by the special enactment. With reference to section 5 of the Limitation Act, the exclusion will have to be inferred from the provisions of section 110-A(3) proviso of the Motor Vehicles Act, 1939. But there can be no doubt that section 4 of the Limitation Act, will be attracted.

9. section 4 of the Limitation Act, 1963 provides that where prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court re-opens. A Claims Tribunal is necessarily invested with the power to try disputes of civil nature, which before the constitution of the Tribunals, were ordinarily triable by civil Courts, but which after the constitution of the Tribunals are now triable by Tribunals specially appointed for the purpose. But it cannot be disputed that they are Tribunals constituted under a special enactment, which are empowered to try particular disputes of a civil nature relating to damages on account of motor accidents. Necessarily the jurisdiction of the civil Courts is outsted due to this. But it is not possible to accept the contention of the learned counsel for the appellants that the office of the Claims Tribunal should be deemed to remain open on all days, including summer vacations of the civil Courts. We may observe that no person except a person who is qualified to be a Judge of a High Court or who has been a Judge of a High Court or who is a District Judge can be appointed a Member of the Tribunal. In our State, Additional District Judges have been appointed Claims Tribunals. The argument of learned counsel for the appellants is that the Additional District Judges happening to be the Additional Sessions Judges as well would be expected to work during the summer vacation; and as such, there is no difficulty about entertaining such claims petitions during the summer vacations. We may observe that all civil Courts are closed during summer vacations and it is only the criminal Courts that are functioning, or may be that Revenue Courts or some other Tribunals constituted under the special enactments may be functioning. But where Judges of regular civil Courts are constituted special tribunals under special enactments, it will be too much to expect the suggestion that they should function on all days irrespective of section 4 of the Limitation Act, 1963. Therefore, it cannot be said that the claim petition could have been instituted during the summer vacations of the civil Courts. From this point of view, there can be no doubt that the question of limitation does not arise, as even according to the contention of both the parties, the claim petition was filed on the re-opening day of the civil Courts after summer vacations. In this connection, we might refer to the pronouncement of their Lordships of the Supreme Court in N.S Thread Co. v. James Chandwick & Bros. . A.I.R 1953 S.C 357., wherein their Lordships laid down that where an appeal is provided to a Court of well known jurisdiction such as a High Court under a special enactment, such as Trade Marks Act, 1940, the High Court will exercise its ordinary appellate powers as conferred on it by the law. Of course, that will be subject to any special provisions in the particular enactment or the Rules framed thereunder. But this principle will equally be applicable to regular judicial officers, who are appointed tribunals under a special enactment. Ordinarily, they will follow the procedure of their own Court as prescribed by the Code of Civil Procedure subject to any special provision made in the special enactment or the Rules thereunder. From this point of view, we have no doubt that the Tribunal was right in holding that the question of limitation did not arise, as the claim petition could not be made during the summer vacations, when the civil Courts were closed. Even otherwise, the Tribunal considered it to be a sufficient cause for extension of time under the proviso to section 110-A(3) of the Motor Vehicles Act, 1939. We see no reason to take a different view.

10. This brings us to the second question whether the death of Laxminarayan was caused on account of the rash and negligent driving on the part of the second appellant. Before considering the legal aspect of this case, we think it necessary to scrutinize the evidence on record.

11. On behalf of the appellants, another motor-driver, who happened to travel in the Bus, namely, Chhotekhan (D.W 1) was examined. This witness stated that the Bus was proceeding from Shivpuri to Chanderi. At Shivpuri the Bus had been checked and it was found to be in perfect order. The deceased, Laxminarayan was sitting just behind the Bus driver. This witness stated that the Bus was going at a speed of 15 to 20 miles per hour. He also asserted that the Bus driver, Ratanlal had not taken any liquor and he was driving the Bus very well. According to the witness, the accident did not take place on account of any fault of Ratanlal or on account of any excessive speed.

12. The next witness for the appellants, namely, Maheshchandra Gupta (D.W 2), positively asserted that the accident took place because the right front spring of the scalpion broke down. He was the Depot Manager at Bhopal. He had sent his report (Ex. D/2) to the General Manager. The witness further stated that the left portion of the Bus had been torn into two pieces it had dashed against a tree. The next witness, Ramgopal (D.W 3) a mechanic, stated that he had examined the Bus at Shivpuri, which was in perfect order. Brahmadeo (D.W 4), another mechanic, stated that he had seen the Bus after the accident. This witness also stated that the accident took place on account of the breaking of the front spring of the scalpion According to this witness, the road is bad. In his cross-examination he stated that the tree against which the Bus had dashed had entered into the side of the chassis. The witness had to admit that he was unable to trace out any broken pin. The brakes were in perfect order. Further, he had to admit that the pin could be broken even by a dash against a tree. Ratanlal (D.W 5), the Bus driver, also gave a similar version as to the cause of the accident. In his cross-examination, the witness had to admit that at the time of the accident he did not have any impression that the scalpion had broken down and that was the reason why the Bus was getting out of control. This witness stated that he tried to put the brakes on. There was no traffic whatsoever on the road, which was clear.

13. As against this evidence led on behalf of the appellants, the respondents examined the Sub-Inspector, Rajoria (P.W 1), who stated that he had been to the spot and had met the Bus driver, Ratanlal. At that time Ratanlal never told him that the accident took place on account of the scalpion breaking down. The reason given by Ratanlal was that accidentally the Bus dashed against the tree. The other persons present on the spot told this witness that the Bus was going at a high speed and the accident took place on account of the high speed and the negligence on the part of the driver. The persons present there were uneducated fellows. Therefore, they were unable to give an exact idea of the speed. The other witnesses examined on behalf of the respondents were unable to give an exact idea of the speed, although they generally stated that the Bus was going at a high speed. Evidently, the version of the appellant's witnesses that the Bus was going at a speed of 15 miles per hour would be wholly unreliable. The road was clear. The Bus was in perfect order. There was no traffic on that road. The road is bad, as has been stated by some witnesses. Under these circumstances, the speed of the Bus must not have been very huh such as 60 miles per hour, but it could also not be so low as 15 miles per hour. There was no apparent reason ascribable for the accident that took place. Due to this, the trial Judge applied the maxim of res ipsa loquitur. The question is whether it applies and to what extent.

14. As stated by the learned author, Charlesworth on Negligence (Fourth Edition) at page 110, there may be cases where the plaintiff proves the happening of the accident and nothing more. It may be that he cannot prove more, but whether he can or not he does not prove any specific act or omission on the part of the defendant. The mere happening of the accident itself may be more consistent with negligence on the part of the defendant than with other causes and, if that is so, the Court may ??? negligence on the part of the defendant unless he gives a reasonable explanation to show how the accident may have occurred without negligence on his part. The maxim is not a rule of law. It is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. The doctrine does not apply when the cause of the accident is known, Citing the case of Halliwell v. Venables, the learned author propounds the proposition that if a motor vehicle under the control of the defendant or his servant over-turned for no apparent cause while being driven along the highway, that fact alone is evidence of negligence against the defendant and so is the fact that it leaves the road and falls down an embankment. The case of Hunter v. Wright . 1938 All. E.R 621., was a case of a vehicle knocking down a pedestrian. In that case the defendant succeeded in rebutting the presumption of negligence for that reason it was held that the defendant was not liable for the damages. But where no particular cause can be assigned for the accident and the circumstances are consistent with the negligence of the defendant, the plaintiff can invoke the doctrine, and in that event the burden lies on the defendant to rebut the presumption arising on account of the application of the doctrine.

15. In this connection, we might advert to the statement of the law as propounded in Cole v. De Trafford . 1918 2 K.B 523. wherein it is stated that the doctrine only means that an accident by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes, and in such a case the mere fact of the accident would be prima facie evidence of such negligence. The burden of proof should be on the defendant to explain and to show that the accident occurred without any fault on his part. Thus the applicability of the doctrine to such cases is merely a rule of evidence relating to burden of proof and nothing more. In the absence of any explanation on the part of the defendant, the Court can infer negligence on his part. Therefore, we are of opinion that the trial Judge was right in applying the doctrine of res ispa loquitur to the facts of the present case and in holding that the defendant had failed to rebut the presumption arising on account of application of the said doctrine. It is significant to note that at the time of the accident, as stated by the Sub-Inspector, Rajoria (P.W 10), no such explanation was given by the driver at the time the witness had visited the spot. The road was quite clear. There was no traffic whatsoever. The road also was visible. The Bus had been found to be in perfect order when it left Shivpuri, as has been deposed to by Chhotekhan (D.W 1). The explanation of the appellants witnesses was that the accident took place as the scalpion of the right front spring broke down. Strangely enough, the claimants' witnesses were not at all cross-examined on these lines. We are unable to appreciate the attitude of the State Road Transport Corporation in avoiding to get the vehicle examined by the Motor Vehicles Inspector, whose duty under the Motor Vehicles Act is to visit every scene of accident and to make his report. The appellants merely examined their employees. Even as stated by Brahmadeo (D.W 4), he could not trace out any broken pin. The bracket in which the pin is attached was intact according to this witness. It is, therefore, clear that the defendant failed to establish any cause of the accident due to a mechanical failure of any part of the vehicle. Clearly they failed to rebut the presumption arising on accout of the applicability of the doctrine of res ispa loquitur. The accident could therefore, be attributed to the negligence on the part of the second appellant alone and to no other cause. Therefore, agreeing with the trial Judge, we affirm the finding that the accident was the result of the negligence on the part of the Bus driver.

16. This brings us to the third question as to the quantum of damages and the principles on which the quantum has to be fixed. In the present case there is no difficulty about assessing the measure of damages awardable to the plaintiff, as deceased Laxminarayan was an earning member of the family, whose dependents the respondents are. In a case of accident if the head of the family is killed, the family naturally is deprived of his services for the expected duration of his remaining life. In this connection, we may only refer to the pronouncement of their Lordships of the Supreme Court in Gobald Motor Service Ltd. v. R.M.K Veluswami wherein their Lordships have laid down that it is the loss of benefit that has to be compensated in a case of death as per the provisions of the Fatal Accidents Act, 1855. Difficulties may arise where a non-earning member of the family dies or where a small child dies. Those principles we propose to consider in other connected cases, which were heard together along with this appeal. As the question of stating of those principles does not arise in this appeal we proceed to ascertain the quantum of damages.

17. The trial Judge took the expectancy of life of Laxminarayan to be about 80 years. There is longevity in the family. His another brother, Kampta prasad (P.W 6) was aged about 75 years when he was examined as witness in April, 1963. The deceased Laxminarayan was his younger brother. At the time of death, the deceased was aged about 59 years. As regards the probable expectancy of life we might state that the same cannot be particularised as there are many ifs and buts. But some reasonable probability can be conceived. If the elder brother of the deceased at the age of 75 years is still alive, it can reasonably be inferred that the probable expectancy of life of the deceased might without any unexpected happenning be roughly 75 years. As has clearly been established on record, the deceased was quite hale and hearty and he had a robust physique. At the time he had young children aged about 7 years, 5 years, and 2½ years, who are respondents, in this appeal. Had he been of ill-health, things might have been different, and in that event, we might have been inclined to invoke the principle as in the case of Barentt v. Cohen. But where a person is quite healthy and hale and hearty, it can be inferred that his probable expectancy of life might be to the extent that other members of his family might have been found living. Thus, there is no difficulty about fixing the probable expectancy of life of the deceased to be up to 75 years. As such, he could have lived at least for 16 yeas more.

18. As regards the loss of earning capacity, we might observe that the amount of pension, that is Rs. 32.50 paise would be a fixed amount payable to the deceased till his death. The family was undoubtedly deprived of that amount for a period of 16 years. That amount would come to Rs. 240/-. The trial Judge also awarded damages for the loss of the monthly salary of Rs. 75/- that the deceased was drawing from Shri Chandrabhan Singh, Member of Legislative Assembly. Regarding this, we might observe that it was merely a temporary job secured privately. Of course, the deceased being in good health would be able to accept private jobs which might bring him some income. But a job with a Member of a Legislative Assembly would only be of a temporary nature; probably lasting till the person continues as a Legislator. There would be no guarantee that he would be continuing the services of the deceased even after he ceased to be a Legislator. Shri Chandrabhansingh (P.W 8) stated that he was the Member of the Legislative Assembly for that term. The term evidently would be from the year 1962 to the year 1967 for five years. The accident took place on 22.3.62 as such, Shri Chandrabhansingh might have been able to retain the services of the deceased till the end of the present term of the Legislature. Therefore, it will be reasonable to calculate the loss of earning capacity on that basis till the end of 1966 or beginning of 1970. Calculating it this way the amount comes to Rs. 4,500/-.

19. Regarding the remaining period of 11 years of the probable expectancy of life of deceased, we have only to take some rough basis. There is no doubt that the deceased might not be able to maintain his family in the small amount of the pension drawn by him and he would naturally seek part time jobs privately or might explore other sources of income. Under the circumstances, we think that it will not be unreasonable to hold that the deceased could have reasonably earned an additional income of Rs. 60/- to Rs. 70/- per month by seeking part time jobs privately. In order to put his income in round figures, we would take the amount of his pension at Rs. 30.55 paise and his income from other source to be Rs. 60/- per month, so as to make up the round figure of Rs. 90/- per month. Therefore, for the remaining period of 11 years, we calculate the loss of income on that basis. The amount comes to Rs. 7,920/-. The total loss of income would, therefore, be 17,660/-. We might have been inclined to award this amount to the respondents, but for the fact that in the notice dated 7.5.62 (Ex. D/1) under section 80, Civil Procedure Code the respondents had claimed an amount of Rs. 15,000/- only. As such it can be asserted that the respondents not having made any larger claim in the notice, their claim for any excess amount would be without any statutory notice. At the time the notice was given, the Madhya Bharat Roadways was a department of the State Government and a notice under section 80 Civil Procedure Code was mandatory. It is only subsequently that the Madhya Bharat Roadways have been incorporated into an independent corporation, known as the Madhya Pradesh State Road Transport Corporation, which is not a department of the Government as such. Of course, in case of non-statutory notices, it might be possible to award a larger claim than mentioned in the notice. But in case of statutory notices, it may not be possible to award a larger claim. Under the circumstances, we confine the claim of the respondents to the amount stated in the statutory notice.

20. As a result of the discussion aforesaid, we find no reason to interfere with the award made by the Claims Tribunal, except for the reason mentioned in the preceding paragraph. As such, this appeal fails and is accordingly dismissed, subject to a modification regarding reduction of the claim to Rs. 15,000/- with interest of 6% from the date of the claim, namely, 19.6.62 till realisation. The appeal has substantially failed, and therefore, we direct that the respondents will be entitled to their costs of this Court. Counsel's fee shall be according to schedule or certificate, whichever be less. The costs of the Courts below shall be borne as directed by that Court.

21. Appeal dismissed; award reduced.