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Delhi High CourtIndian Cases

Veena Kumari And Ors. vs Jasbir Singh And Ors. on 14 October 2003

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Delhi High Court
Veena Kumari And Ors. vs Jasbir Singh And Ors. on 14 October, 2003
Equivalent citations: III(2004)ACC90, 2003VIIAD(DELHI)558
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT

S.K. Mahajan, J.

1. ADMIT.

2. Matter being short, the same has been heard with the consent of the parties and disposed of by this order.

3. This appeal is directed against the judgment of the Motor Accident Claims Tribunal whereby the petition filed by the appellants claiming compensation for the death of one Mr.Dharam Veer husband of appellant no.1 and father of appellants 2 to 4 was dismissed on the ground that the appellants were not able to prove that the accident was caused due to the rash and negligent driving of the offending vehicle by its driver. It was held that as the bus overturned because of the driver suddenly applying brakes to avoid accident with a two wheeler scooter, which had suddenly come in front of the bus, the driver could not be said to have been driving the bus in a rash and negligent manner.

4. The contention of learned counsel for the appellant is that besides the fact that there was sufficient evidence before the Tribunal to hold that the accident was caused due to the rash and negligent driving of the offending vehicle by its driver, even assuming that the accident was not caused due to the rash and negligent driving of the bus by its driver, the respondents can still not escape from their liability to pay compensation. Reliance for this is placed upon the judgment of the Supreme Court in S. Kaushnuma Begum Vs. New India Assurance Co. Ltd. .

5. It was held by the Supreme Court in the aforesaid case that the jurisdiction of the Tribunal was not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence was only one of the species of the causes of action for making a claim for compensation in respect of the accidents arising out of the use of motor vehicles. There are other premises for such cause of action. It was held that where the deceased pedestrian was knocked down by jeep when its front tyre burst and consequently the vehicle became dis-balanced and turned turtle, the owner can be made vicariously liable for damages to dependents of victim even if there was no negligence on the part of the driver or owner of the vehicle. It was held that even apart from Section 140 which envisages no fault liability claim for compensation can be sustained by applying the Rule in Rylands v. Fletcher ( 1861-73 All ER (Reprint) 1) unless anyone of the exceptions to Rule can be applied. The Supreme Court while extending rule in Rylands v. Fletcher ( 1861-73 All ER (Reprinted) 1) has observed:-

Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands V. Fletcher (1861-73 All ER (Reprint) 1) (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J. thus:
” The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.”
6. The House of Lords considered it and upheld the ratio with the following dictum:

“We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequences of vis major or the act of God; but, as nothing of this sort exists, here, it is unnecessary to inquire what excuse would be sufficient.”
7. The above Rule eventually gained approval in a large number of decisions rendered by Courts in England and abroad. Winfield on tort has brought out even a chapter on the “Rule in Rylands v. Fletcher”. At page 543 of the 15th Edn. of the calibrated work the learned author has pointed out that “over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation……………..”. He has elaborated seven defenses recognized in common law against action brought on the strength of the rule in Rylands v. Fletcher ( 1861-73 All ER (Reprint) 1). They are :(1) Consent of the plaintiff i.e. violent non fit in injuria. (2) Common benefit i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (3) Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (4) Exercise of statutory authority i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise. (5) Act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. (6) Default of the plaintiff i.e. if the damage is caused solely by the act or default of the plaintiff himself, he rule will not apply. (7) Remoteness of consequences i.e. the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J, the defendant is answerable only for all the damage “which is the natural consequence of its escape.”

8. The Rule in Rylands v. Fletcher (1861-73 All ER (Reprint) 1) has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, C.J., speaking for the Constitution Bench in M.C. Mehta Vs. Union of India, , expressed the view that there is no necessity to bank on the Rule in Rylands v. Fletcher. What the learned Judge observed is this:

“We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order.”
9. It is pertinent to point out that the Constitution Bench did not disapprove the Rule. On the contrary, learned Judges further said that “we are certainly prepared to receive light from whatever source it comes.”It means that the Constitution Bench did not foreclose the application of the Rule as a legal proposition.

10. In Charan Lal Sahu Vs. Union of India another Constitution Bench of this Court while dealing with Bhopal gas leak disaster cases, made a reference to the earlier decisions in M.C. Mehta (supra) did not take the same view. The rule of strict liability was found favor with. Yet another Constitution Bench in Union Carbide Corporation Vs. Union of India, referred to M.C. Mehta’s decision but did not detract from the Rule in Rylands v. Fletcher ( 1861-73 All ER (Reprinted) 1).

11. In Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai, the question considered was regarding the application of the Rule in cases arising out of motor accidents. The observation made by E.S. Venkataramiah, 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 deaths 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. Fletcher. 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, he 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 has been a continuous agitation throughout the world to make the liability for damages arising out of motor vehicles accidents as a liability without fault.”
12. Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands v. Fletcher ( 1861-73 All ER (Reprint) 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.

“No fault liability” envisages in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former the compensation amount is fixed and is payable even if any one of the exceptions to the Rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permits that compensation paid under `no fault liability’ can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.
13. From the aforesaid observations of the Supreme Court in S. Kaushnuma Begum Vs. New India Assurance Co. Ltd. it is clear that even assuming there was no negligence on the part of the driver in driving the vehicle, the respondents can still be held liable in view of the no fault liability envisaged in Section 140 and 163A of the Motor Vehicles Act. The Tribunal, in my view, has clearly erred in dismissing the claim of the appellant only on the ground that since the driver of the offending vehicle was not negligent in driving the vehicle, the appellants were not entitled to compensation. I, accordingly, allow this appeal set aside the impugned judgment and remand the case to the Tribunal for deciding other issues about the quantum of compensation payable to the appellants.

14. The parties are directed to appear before the Tribunal on 20.11.2003.

15. Trial Court file be sent back immediately.