M A RAHIM Vs. SAYARI BAI

JUDGEMENT

(1.) THIS appeal has been preferred against the decision of the Motor Accidents claims Tribunal (hereinafter called 'the Tribunal') against the decision awarding a sum of Rs. 25,000/- as compensation payable to one Sayari Bai, the respondent in this appeal and the claimant before the Tribunal in M. O. P. 3 of 1968 on its file. Sayari Bai's only son Rupa alias Rupraj, aged about 12 years, met with his death as a result of a bus accident in the Bazar Road, Ambattur, opposite to the State bank of India on 18-10-1967 at about 3-45 p. m. M. A. Rahim, the first respondent in the petitions, is the owner of the Bus No. MSW. 2471 involved in the fatal accident and Madras Motor and General Insurance Co. , is the 2nd respondent. Sayari Bai, the mother of the unfortunate boy, made the claim for compensation under Section 110-A of the Motor Vehicles Act (hereinafter referred to as the Act ). She claimed compensation of Rupees 70,000/- and Rs. 5,000/- for expenses, pain and suffering. The Tribunal awarded a sum of Rs. 25,000/ -. In support of her case, the father of the boy and one Doraiswami Iyengar, a retired teacher of the school, were examined as witnesses, while on the other side the bus driver, the conductor and the Joint Regional Transport Officer were examined. P. W. 2, the teacher, has given evidence that he was standing opposite to the State Bank of India at about 4 p. m. on 18-10-1967, that school children were coming out of the school, that the bus was going fast from south to north towards the bus stand and the boy was run over by the bus. There is no effective cross-examination and nothing is suggested to him that the accident happened in any other manner that the boy was run over on account of the boy's negligence and no theory is suggested to this witness to make out that the driver of the bus was not negligent and that the accident occurred on account of the negligence of the boy suddenly running across the bus or at the rear side of the bus. In the counter of the bus owner it was stated that the accident occurred because the boy suddenly darted across the road and got himself involved in the accident and that the accident was due to the negligence of the boy. Virtually the second defendant adopted the counter of the first respondent. In the course of the evidence, the driver and the conductor developed a new theory that while the bus was being driven at a slow speed, the boys were chasing the deceased and in that process the deceased ran and dashed himself at the rear end of the bus, sustained injuries, and, as a result thereof, died. The post mortem certificate Ex. A-2 shows that the boy had sustained 19 injuries, of which injuries Nos. 13 to 16 were fractures of the high bone, ribs, etc. The Judge has adverted to the discrepancy between the evidence of R. W. 1 and R. W. 2 as well as the discrepancy revealed in the evidence of R. W. 2 who gave evidence in the criminal case in which the bus driver was prosecuted. From the evidence it is clear that the driver was clearly guilty of gross negligence and rashness in driving the bus. The area is a school zone and just at the time the boys were coming out of the school and therefore the bus driver should have been extremely cautious and careful and mere regulation of speed by itself even if true would not avail. P. W. 1, the teacher, has given clear evidence. The evidence of R. Ws. 1 and 2 shows that they did not even see the boy at the time of the accident and in the cross-examination it is established that they were unable to explain how the accident occurred. It is some theory which they developed in the course of the evidence. Admittedly, there was no passenger in the bus and it is clear that the driver was driving the bus in a rash and negligent manner in a fast speed and without any care and caution, which resulted in the death of boy. We have perused the evidence of the bus driver and the conductor and we have no hesitation to say that their evidence is unreliable. The inspection report of the Motor Vehicles inspector, which contains a plan attached, also tends to the same inference that death was not due to the boy's dashing against the rear portion of the bus, but it was a clear case of the bus running over the boy. If the accident occurred in the manner claimed by the driver and the conductor, it would have been mentioned so in the forefront in the counter. But, as already observed, in the counter, the case is, the child suddenly darted across the road and got involved in the accident. This evidence is given especially when the criminal prosecution was pending against the driver at that time. We have not the slightest hesitation in accepting the finding of the Tribunal that the death was due to the rash and negligent driving of the bus by the driver without taking any care or caution in the matter.

(2.) ON the question of the quantum of compensation, the learned counsel for both sides invited our attention to several decisions. Learned Counsel addressed arguments based upon a comparative statement as revealed in the several decisions cited with reference to the victim's age at the time of his death, the age of the claimant, if the victim had been in employment, what salary or remuneration he was earning, the prospect in the increase of his emoluments if he had led a normal life up to the end of his career the contributions likely to be made to the claimant out of the victim's earnings, the affluence and the wealth of the claimant and the damages awarded in the individual cases. A study of the decisions reveals how wide is the variation between the judgments of various courts in assessing under comparable circumstances a suitable figure as compensation which, after all should appear "to be just" to the Tribunal exercising jurisdiction under Section 110-B of the Motor Vehicles Act, newly introduced. Section 110-B does not lay down any condition as to the manner of the exercise of jurisdiction by the tribunal and all that it states is that it has to hold an enquiry into the claim and make an award determining the amount of compensation which appears to it to be just. The use of the expression 'just' which is very wide and comprehensive in its import is of vital importance while adjudicating upon a claim under Section 110-B. Sections 110 to 110-F were introduced into the provisions of the Motor Vehicles Act by Act 100 of 1956. Prior thereto several decisions in India and in England had been rendered in claims arising out of Motor Vehicles Accidents in which the compensation was determined by applying the provisions of the Fatal accidents Act of 1855 and the general law of Torts. Under Sections 110 and 110-F a self-contained machinery has been provided for the adjudication of claims for compensation in respect of claims arising out of motor vehicles accidents. Special claims tribunals have been constituted and a special procedure has been laid down in the Act for the adjudication of such claims. Section 110-F bars the jurisdiction of the Civil Courts to entertain any question relating to any claims for compensation arising out of motor vehicles accidents for which special provision has been made in the Act. When this special procedure was introduced in 1956, a wealth of case law has grown up with regard to adjudication of such claims and the various decisions pronounced by the courts in the solution of the problem in varying contexts in all of which the question was discussed mainly with reference to the fatal Accidents Act and the general law of Torts, whether in India or in England. If we may say so, the Legislature must have been aware of the fact that eminent judges have observed that the problem is by no means of easy solution and has been mainly coloured or influenced by certain technical rules and principles evolved from a long course of decisions and is beset with various difficulties, doubts, contingencies and uncertainties and to a large extent the determination of compensation is a work of estimate, balancing the relative weight of several elements which enter into the computation. The precedents while enunciating that the Court has ample latitude in the matter have at the same time laid down certain technical rules in the form of guide-lines which to some extent detract from the amplitude of the discretion of the court. It is in this environment that the new set of provisions were introduced into the Motor Vehicles Act constituting a self-contained machinery. The new provisions do not either impliedly or expressly incorporate the provisions of the Fatal Accidents Act but deliberately leave the jurisdiction, powers and discretion of the court unfettered by imposing the only condition that the tribunal should enquire into the claim and determine the amount of compensation which should be 'just'. Our attention was drawn to certain decisions arising out of the claims under the Motor Vehicles Act as amended in 1956 revealing a divergence of view on the question whether the newly introduced provisions of the Motor Vehicles Act are self contained and constitute an exhaustive machinery or whether the ultimate liability should be determined only in accordance with the provisions of the Fatal Accidents Act and the principles enunciated by decisions rendered under that Act. In a recent decision of the supreme Court reported in Sheikhpura Transport Co. Ltd. v. Northern India transporters Insurance Co. Ltd. , the Supreme Court while observing that the powers given to the Tribunal in the matter of fixing compensation under Section 110-B are very wide, has left open the question whether the compensation has to be fixed on the same basis, as is required to be done under the provisions of the Fatal Accidents Act.

(3.) WE may refer to the recent Bench decision of the High Court of Madhya Pradesh reported in Kamaladevi v. Kishan Chand, in which it was held that Sections 110 to 110-F of the Motor Vehicles Act do not deal with the liability at all, that they only provide a new mode of enforcement of liability in respect of accidents, that so far as the liability is concerned, the provisions of the Fatal accidents Act and the law of Torts would still apply and that the provisions in section 110-B that the compensation amount must appear to be just do not create any new basis for assessing compensation and that the basis for the determination of the liability is the substantive law already in force. This decision has differed from the view taken in the earlier decisions in Md. Habibulla v. Seethammal, Veena Kumari Kohli v. Punjab Roadways, 1967 Acc CJ 297 and ishwari Devi v. Union of India, that the words 'which appear to it (tribunal) to be just' are wider in scope than the words used in the provisions of the Fatal Accidents Act and the tribunal is not bound by the technical rules and the limitations evolved in the case law in the interpretation and the application of the provisions of the Fatal Accidents Act. The reasoning of the Bench is that the provisions in Sections 110 to 110-F do not enter into the field of the law of liability which would still continue to be governed by the provisions of the Fatal Accidents act and the law of Torts and the new provisions are in no way intended to give a go-by to the limits and the basis of the liability which will have to be determined under the provisions of the Fatal Accidents Act and that Sections 110-A to 110-F provide merely a cheap and expeditious remedy for the ascertainment of that liability.