Pramila Bordoloi vs Blue Hill Travels (P.) Ltd. and Others

J.N. Sarma, J.—This appeal has been filed against the judgment and award dated 21.7.2000 passed by the Member, Motor Accident Claims Tribunal, Kamrup at Guwahati in MAC case No. 581/1996.

A claim case was filed for the death of one Pratap Bordoloi. The deceased was a driver by profession and on 15.7.1995 he was coming to Guwahati by driving a vehicle which was owned by Blue Hill Travels, Guwahati. When the bus reached Magina under Gohpur police station at about 8.30 P.M. and passing through a portion of the road, which was submerged with water, a truck bearing registration No. AMA-2819 proceeding from the opposite direction in a rash and negligent manner, collided with the bus and as a result the bus was capsized. The driver of the bus namely, Pratap Bordoloi expired as a result of the injuries sustained by him in the accident. A claim was filed for an amount of Rs. 9,00,000. The bus was insured with the M/s United India Insurance Company Ltd., O.P. No. 3. The Insurance Company, O.P. No. 3 filed written statement and denied the liability saying that as the driver himself was negligent, he is not entitled to any compensation. Issue No. 2 reads as follows :

"Whether the driver of the vehicle No. AR/01-2373 who, died in the accident drove the vehicle in negligent manner on the date and at the time and place in question?"

The learned Member relied on police report and came to the following finding:

"The piece of police report is the only material about the involvement of the vehicle in the accident. The report clearly discloses that the deceased, Pratap Bodoloi was negligent as he drove his vehicle on the road which was under water and the bus driver being failed to ascertain the road knocked the truck coming from the opposite direction and when capsized. This show that the driver was quite negligent and the entire accident happened due to his carelessness and negligent driving. The claimant''s side has totally failed to prove rash and negligent driving of the truck which was coming from the opposite direction either by adducing oral evidence or by producing any documentary evidence,"

The learned Member, MAC Tribunal relied on 1997(2) T.A.C. 307 (Mad.). That is a decision by a Division Bench of the Madras High Court. The facts are as follows :

"On 19th June, 1989 at about 2.00 A.M. while claimant in M.A.C.T.O.P. No. 22 of 1991 was driving a car bearing registration No. T.D.T. 3939, the claimant in M.A.C.T.O.P. No. 26 of 1990 who is the owner of the said car and one Pandurangan, claimant, in M.A.C.T.O.P. No. 202 of 1989 who sustained grievous injuries (later died due to the injuries), met with an accident with another lorry and dashed against a culvert on the right side of the road. On the fateful day, in the said car, the claimant in M.A.C.T.O.P. No. 202 of 1989 Sub-Inspector of Police and 2 other police constables escorted Mr. Veerapandi Arumugham, Minister, who was proceeding towards, Madurai. The car was driven by one Manthiramoorthy, claimant in M.A.C.T.O.P, No. 22 of 1991. The said car belongs to one V. Radhakrishnan, claimant in M.A.C.T.O.P. No. 26 of 1990. One of the constables, who was travelling in the said car, was examined as P.W. 2 as eye witness. The driver of the car was also examined as P.W. 6. First Information Report has been marked as Ext. P.-l. After pointing out discrepancy in the oral evidence of P.W. 2 and P.W. 6 and in the light of the other documentary evidence, the Tribunal came to the conclusion that the accident was solely due to the rashness and negligence of P.W. 6, the driver of the car T.D.T. 3939, who is also claimant in M.A.C.T.O.P. No. 22 of 1991. There is no dispute with regard to the said finding and we are also in agreement with the conclusion reached by the Tribunal on this aspect."

That judgment is no longer good law in view of judgment of Apex Court.

It was pointed out by the Apex Court in Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, what is negligence in order to be entitled to compensation as follows:

''In Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai SC 1690 the question considered was regarding the application of the Rule in cases arising out of motor accidents. The observation made by E.S. Vennkataramiah, J. (as he then was) can profitably be extracted here (para 8 of AIR):

Today, thanks to the modern civilization, thousands of motor vehicles are put on the road and the largest number of injuries and earths are taking place on the roads on account of the motor vehicles accidents. In view of the fast and constantly increasing volume of traffic, the motor vehicles upon the roads may be regarded to some extent as coming within the principle of liability defined in Rylands v. Fetcher. From the point of view of the pedestrian the roads of this country have been rendered by the use of the motor vehicles highly dangerous. ''Hit and run'' cases where the drivers of the motor vehicles who have caused the accidents are not known are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist whether negligently or not be or his legal representatives as the case may be should be entitled to recover damages if the principle of social justice should have any meaning at all. In order to meet to some extent the responsibility of the society to the deaths and injuries caused in road accidents there had been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault.

Like any other common law principle, which is acceptable to out Jurisprudence, the Rule in Rylands v. Fletcher 1861 73 AllER 1 can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents."

On this law we hold that if an accident occurred whether due to negligence or not, the claimants are entitled to compensation. Further, we hold that it is not the position in the case in hand inasmuch as the vehicle in question was dashed by a lorry coming from opposite direction and as such, it cannot be said that it was a ease of rashness and negligence of the driver of the bus. Accordingly, the finding on Issue No. 2 given by the Tribunal shall stand quashed. We hold that the claim petition is maintainable. We do not feel it proper to determine the quantum of compensation in view of necessity to appreciate the evidence. The matter shall go back to the Tribunal to decide the matter afresh after hearing both the parties. The parties shall appear before the Tribunal on 26th November 2001. As the accident took place in the year 1995, the Tribunal shall make an attempt to dispose of the matter as early as possible preferably within a period of four months from the date of receipt of the record. As the Insurance Company did not appear before this Court through representation was made, notice shall go to the Opposite parties including the Insurance Company. Heard Mr. S.P. Deka larned Advocate for the appellant.