APSRTC vs M.K. Nayeemuddin

Neeladri Rao, J.—Respondent in O.P.497/84, Motor Accidents Claims Tribunal (Additional District Judge), Ranga Reddy District is the appellant. Respondent herein is the owner of the tourist bus bearing No. ATT 7106. He filed the above O.P. u/s 100-A(IXaa), Motor Vehicles Act (for short "M.V. Act") claiming an amount of Rs.68,325/- as compensation by alleging that the damage was caused to the said vehicle on 3-5-84 when it was proceeding from Hyderabad to Warangal, as R.T.C. bus bearing No. AAZ 4668 which had come on the opposite direction collided with the said tourist bus due to the rash and negligent driving of R.T.C. bus No. AAZ 4668. The lower tribunal held that the accident was due to the negligence of the driver of the tourist bus and also the driver of the R.T.C bus and the responsibility of each of the drivers was fixed, at 50%. The total amount of damage to the tourist bus was assessed at Rs. 34,000/- and 50% of it i.e. Rs.17,000/- was awarded as compensation as the appellant is liable only to the extent of 50%. The same is assailed in this appeal.

It was contended for the appellant as under:

The claim for compensation due to damage to the property in a motor accident can be made only in Civil Court but not in the Tribunal constituted under Motor Vehicles Act.

It should have been held that the accident had taken place as the driver of the tourist bus had overtaken the double bullock cart and therefore, there was no negligence on the part of the driver of the R.T.C. bus and

As the accident was due to the contributory negligence of the drivers of both the tourist bus and R.T.C. bus, they have to be treated as joint tortfeasors and one joint tortfeasor is not entitled to claim compensation against the other. These are the three points for consideration in this appeal.

Sub-clause 1(aa) of Section 110-A M.V. Act was incorporated by Act 47/78 and it had come into effect from 16-1-79 and it reads as under;

"110-A(1) An application for compensation arising out of an accident of the nature specified in sub-Section (1) of Section 110 may be made-

(a) ............

(aa) by the owner of the property; or).... ...... ...."

Thus with effect from 16-1-79 the tribunal constituted under the Motor Vehicles Act is empowered to consider the compensation even in regard to the damage to the property. As this accident had taken place in 1984, and thus subsequent to 16-1-79, the lower tribunal had the jurisdiction to entertain the application filed by the respondent herein praying for compensation for the damage alleged to the tourist bus due to the negligence alleged on the part of the driver of the bus belonging to the appelant. Hence the contention for the appellant that the petition is not maintainable before the lower tribunal has to be negatived.

Point No. 2: The accident had taken place on the bridge near Uppal. The bridge is of a width of 20''. The accident had taken place after the tourist bus had come to the side of the bullock cart which the driver of the tourist bus was overtaking. The A.P.S.R.T.C bus had come in the opposite direction. There was curve at the entry into the bridge from that direction. The driver of the A.P.S.R.T.C. bus negotiated the said curve and the said bus had come over the bridge and there was collision between the said bus and the tourist bus. The drivers of both the buses were injured. Damage was caused to both the buses. Some of the passengers in the A.P.S.R.T.C. bus sustained injuries in the said accident Then there were no passengers in the tourist bus as it was then going to Warangal to pick up a marriage party.

The width of double bullock cart will be about 6 feet. Remaining width of 14'' is not sufficient to allow both the buses going in the opposite directions to proceed along that bridge till the double bullock cart which was ahead of the tourist bus passed away.

It was observed by the learned Presiding Officer of the lower tribunal that it was possible for the driver of the A.P.S.R.T.C. bus to notice the tourist bus overtaking the double bullock cart. As there was a curve, the driver of the tourist bus might not have been in a position to notice the R.T.C. bus negotiating curve before entering the bridge. In the absence of any special circumstances, a presumption should be drawn by the courts in such cases that both the drivers were equally negligent, (vide Koth Hing Keng v. Low Pee L.T. Company), 1967 ACJ 304. When two motor cars proceeding along V roads of equal status and when they had come into collision at the centre of crossing, it was held in France v. Parkinson, 1954 (1) WLR 581 that there was prima facie case of negligence against both the drivers. Hence in view of the material on record, it cannot be held that the lower tribunal erred in holding that both the drivers are equally negligent for this accident and hence the said finding is confirmed.

There must be a concurrence in the act or acts causing damage in order to be joint tortfeasors. The injuria as well as demanum must be the same. But where a person sustains a single damage from the combined negligence of two motor car drivers, who are not engaged in a common design, the persons who caused damage are independent tortfeasors or separate tortfeasors but not joint tortfeasors (vide The Koursk (1924) P.140).

Then it is necessary to consider whether the joint tortfeasor or independent tortfeasor can claim contribution from the other feasor or independent tortfeasor, if the injured or the legal representatives of the victim realise the total amount of compensation from that tortfeasor only. It was held in Merryweather v. Nixan, (1799) 8 TR 186 that there was no contribution between joint tortfeasors. But the Rule enunciated in the above judgment, was abrogated by the Law Reform (Married Women and Tortfeasors) Act, 1935.

Whether contribution can be demanded from the other joint tortfeasor in India had come up for consideration in a number of cases. In the absence of statutory provisions, Common Law principles of England are followed in India, on the basis of justice, equity and good conscience. Whether the principle enunciated in Merryweather's case has to be followed in India even after it was abrogated in England in 1935, was debated upon. The said rule was held to be not founded on any principle of justice, or equity, or even as public policy, which justifies its extension to the jurisprudence of other countries and hence it was not extended to Scotland when the matter had come up for consideration in Palmer v. Wick &P.S. Shipping Company, (1894) AC 318. The said Rule was also not followed in many of the countries in Europe on the ground that the defendant tortfeasor cannot come up with his own delinquent act in defence and it is also against the principle of unjust enrichment. It was also held that if the said Rule is followed, it will be a dangerous weapon in the hands of the plaintiff who claimed the damages as he may choose to proceed only against one of the tortfeasors while leaving others for extranceous reasons. The said Rule was not followed by the Full Bench of Allahabad High Court in Dharni Dhar and Others Vs. Chandra Shekhar and Others, . It was also not followed by Madras High Court (vide Edara Venkata Rao Vs. Edara Venkayya, .

There is no necessity to further deliberate on this point as it had not directly arisen in this case. It is merely referred to for holding that when the Common Law Rule in England is harsh and unjust and when it is not found on equity, justice, good conscience or public policy, the same need not be followed in India, especially when such Rule is abrogated in the country of the origin.

As already observed, this accident had taken place due to the collision of the tourist bus and the APSRTC bus. Of course if it is a case where the negligence of the driver of the R.T.C. bus alone is the cause for the accident, the owner of the tourist bus herein is entitled to claim damages. But I held that the drivers of both the vehicles are negligent. Then the question that arises for determination in this case is as to whether the owner of one of those vehicles is entitled to claim compensation from the owner of the other vehicle for the loss sustained due to such accident. In Cayzer, Irvine & Company v. Carron Company, (1884) 9 APR Cas. 873 Lord Blackburn said that "the rule of law is that if there is blame causing the accident on both sides, however small may be on one side, the loss lies where it falls."

Thus the rule laid down is that in case of contributory negligence, the sufferer cannot claim compensation from the other however small that blame may be on his side. The said Rule was found to be harsh and not fair especially in cases where there was so substantial a difference between the position of the two parties at the material time. So, a departure was made from the said rule in Dairies v. Mann, (1842) 10 M & W. 546 and later judgments. The fundamental idea behind those decisions is that it would not be fair or reasonable to regard him as the author of his own wrong when his negligence is not so blameworthy as that of the defendant. Salmond invented the last opportunity Rule. It means that in cases of contributory negligence if the defendant has the last opportunity of avoiding the accident and if still he could not avert it, he has to be held liable for compensation. But that Rule fails in cases of high way collision between two modern fast moving vehicles, for here the maximum period available to either party for avoiding the accident is seldom as much as few seconds (vide Comersall v. Yole, (1954) VLR 269).

The Rule in Cayzer's case was abrogated by Law Reform (Contributory Negligence) Act, 1945. But even before the said Act was passed, the damages were awarded in Admiralty law, even in cases of contributory negligence, by apportioning the liability of each of the parties. Viscount Birkenhead L.C. in The, Volute (1922) 1 AC 129 said that "Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon commonsense principles as a jury would probably deal with it. And while no doubt, where a clear line can be drawn, the subsequent negligence is the only one to 100k to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame under the Bywell Castle rule, might, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution."

It is common knowledge that road accidents are increasing due to fast moving vehicles. There are cases where the accidents are due to the contributory negligence of heavy vehicle like lorry or bus on one hand and that of the pedestrian, cyclist, rickshaw driver, autorickshaw driver, scootorist, or driver of the motor car on the other. In many of such cases injuries are sustained and at times fatal by the pedestrians, scootoristsor drivers of rickshaw, autorickshaw, motor cycle or one who goes on cycle and in majority of the cases damage to the property is more to their vehicles than the lorry and the bus when the driver of which is equally negligible if not more for the accident. If the Rule propounded by Lord Blackburn in Cayzer's case is followed, then the victims or their legal representatives have to suffer when they cannot claim compensation even in cases where the drivers of the heavy vehicles are either equally negligent or substantially negligent for the accident. Realising the said principle as harsh, Section 92-A, Motor Vehicles Act, 1939 was incorporated for providing solace to such victims or their legal representatives by way of no fault liability. When the Rule laid down by Lord Blackburn is harsh, and when it was even so reaslised in England in the 19th century, and when it was abrogated in the country of the origin in 1945, it is not just and proper to follow the said Rule in India. In M. Viswanadham v. State 10 this court held that clam by one party for damages against the other is maintainable when drivers of both the vehicles are guilty of negligent acts, and in such cases the damages have to be apportioned. Hence with due respect, I feel that in the present day circumstances, it is not just and proper to follow the Rule laid down by Lord Blackburn in Cayzer's case. I respectfully agree with the view expressed by Chennakesav Reddy, J., (as he then was) in Manda Viswanadham and Another Vs. The State of Andhra Pradesh and Another, .

When damages caused to both the vehicles in the accident occurred due to the negligence of the drivers of both the vehicles, the total damage of both the vehicles has to be assessed and the same has to be borne by both the parties in proportion to the guilt of each of the driver. Then it can be decided as to whether the plaintiff is entitled to any amount by way of compensation and if so what amount. But if it is a case where damage was suffered by one side and that party is also contributorily negligent, deduction to the extent of the guilt of the said party, has to be made from the total amount assessed by way of compensation.

In this case though it was stated that there was some damage to the R.T.C. bus and some of the passengers also sustained injuries because of this accident, no evidence is adduced about the extent of damage to R.T.C. bus or whether any amount was paid by way of compensation to those passengers. In the absence of such evidence, the court proceeded on the basis that the owner of the tourist bus alone suffered damage and as the driver was negligent to the extent of 50%, half of the amount assessed as damage was awarded as compensation. Thus the same does not warrant interference in this appeal.

Accordingly the appeal fails and it is dismissed. No costs.

Cross-objections in AA.O. No. 1049 of 1988:

By judgment dt.7-11-1991. I disposed of CM.A. No. 1049 of 1988. Therein, I held that the drivers of the R.T.C bus belonging to the appellant and the Tourist Bus belonging to the cross-objector are equally liable and hence, the liability has to be equally apportioned between the two parties.

The next contention that was urged in the cross-objections is that though the lower tribunal had given cogent reasons for disallowing the claim of Rs. 10,000/-, there are not sufficient reasons for disallowing the balance of Rs.7,325/-.

When the cross-objector claimed an amount of Rs. 51,325/- which is inclusive of Rs. 10,000/- which is claimed towards the loss of profits when the vehicle was in the shed for repairs, the lower Tribunal assessed the total damage at Rs.34,000/-. After considering the evidence of P.Ws.2 to 7, it was held that an amount of Rs.14,000/- would have been given towards repairs and new parts of the value of Rs.30,000/-would have been fixed. 1/3 rd of the value of the new parts was deducted to compensate the depreciation of the old parts, which were lost. Hence, the total amount of damage was assessed at Rs. 34,000/-.

It is a case of appreciation of oral evidence. As these mechanics had not maintained any record, it is a question of appreciating their evidence in view of the extent of the damage. On that basis, the lower Court estimated the amount which would have been given towards charges for repairs and the value of the new parts purchased. It is not shown for the cross-objector that the lower tribunal erred in coming to the said finding on the basis of the material on record. Hence, the cross-objections have to be dismissed and accordingly, they are dismissed. No costs.