D. N. Chowdhury, J.@mdashThis appeal has been filed under section 173 of the Motor Vehicles Act, 1988 against the common Award dated 23.11.89 passed by the learned Member, Motor Accident Claims Tribunal, Kamrup, Guwahati in a number of claim cases arising out of the same accident.
2. We have heard the learned counsel for the appellant Railways and the learned counsel for the respondents..
3. The learned counsel for the appellant assailed the impugned award on the ground that the said Tribunal has no jurisdiction to enforce a claim against the Railway administration in view of the provisions of section 110 of the Motor Vehicles Act, 1939 (old) and of section 168(1) of the Motor Vehicles Act, 1988. The learned counsel in support of his contention submitted that the Railway administration will be amenable to the jurisdiction of the Tribunal in a case where both the Railway administration and the owner/driver of the offending vehicle are found to be jointly responsible. According to the learned counsel, the observation of the learned Tribunal recorded in para 8 of the impugned judgment while disposing of Issue No.3 that �the accident occurred clearly due to the negligence of NF Railway administration and not due to the fault of the driver of the bus� takes the case out of the jurisdiction of the learned Tribunal in view of the decision rendered by the Apex Court in Union of India vs. United Insurance Co Ltd & others reported in (1997) 8 SCC 683. The learned counsel further contended that in a case where the accident took place due to the sole negligence of the Railway, the claim for compensation can not be maintained before the Tribunal.
4. We may conveniently quote herein below certain excerpts from the aforesaid judgment:
�Section 110E of the Act provides for recovery of the compensation ''from any person'' as arrears of land revenue and recovery under that section is not restricted to the owner/driver or insurer specified in the second part of section HOB. Obviously, the words ''from any person'' are referable to persons other than the driver/owner or insurer of the motor vehicle.
For all the above reasons, we hold that the claim for compensation is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tort reasons, and if arising out of use of the motor vehicles. We hold that the Tribunal and the High Court were right in holding that an award could be passed against the Railways if its negligence in relation to the same accident was also proved.�
5. This matter was also dealt with by a Full Bench of this Court in MA (F) No. 24 of 1990 along with other cases on reference by a Division Bench of this Court. The Full Bench relying on the above judgment of the Apex Court remitted the case to the Division Bench for disposal. The law is now well settled in this regard. An award could be passed by a Motor Accident Claims Tribunal against the Railways in relation to an accident arising out of used of motor vehicle if negligence is also proved against them.
6. In view of the settled position of law it is to be examined as to whether the observation made by the learned Tribunal holding the Railways solely responsible for the accident in this case will debar it from passing an award against the Rail way administration.
7. The contention of Mr. P. Khataniar the learned counsel for the appellant about the want of jurisdiction of the Motor Accident Claim Tribunal can be accepted provided it is established that the accident took place solely due to the negligence of the Railway authority. For this purpose, the learned counsel of the appellant referred to certain observations of the Tribunal that the accident took place due to the negligence of Railway alone.
8. The driver of the vehicle was driving a public service vehicle carrying passengers. The driver as well as conductor of the public service vehicle owes a duty to the passenger as well as users of public roads and for up keeping the safety of the passengers. Under the Assam Motor Vehicles Rules, 1940, certain statutory duties are cast on the driver and conductor of public service vehicle, as per the Rule 96 of the Rules. Clause (xix) of the Rule 96 enjoins that the driver of a public service vehicle shall not drive the vehicle without due regard for the safety of the passengers and of the users of public roads or behave in such a way as to cause inconvenience or annoyance to the public. The duty cast on the above persons under clause (xxiii) applies to an unmanned Railway level crossing which enjoins on the driver and conductor of a public service vehicle who shall, whenever the vehicle approaches an unmanned Railway level crossing to stop the vehicle and the conductor shall get down from the vehicle. In view of Chapter XIX of the Rules a statutory duty is cast on the conductors of the vehicles to keep in mind the safety of the passengers. In addition to the common law duty of the owner/driver or conductor of a public service vehicle towards the safety of c the traveller, a driver and conductor of such vehicle/owes a statutory duty towards the safety of the passenger and as a result of collision between the bus registered as ASK 722 and 201 up Cachar Express at the Panikhaiti Railway level crossing 16 persons died on the spot and 37 others sustained grievous injuries in their persons. At the time of lodging the ejahar 8 more died out of the injured persons. The impact of the collision was severe and the vehicle was shattered to pieces. The question therefore arises as to the nature of duties of the vehicle owner/ driver visavis the Railway authority in unguarded level crossing, when a public transport was crossing the Railway track, when a train was moving in the same track. If Railway alone is responsible for the accident, the owner and driver will be absolved from its of responsibility. Negligence has its different meaning in the legal phraseology. Negligence may be a state of mind which is an antithesis of intention, a purposeful act to attain a particular object is an intentional act. A negligent act is not done with an object of producing any particular suit, it is only the consequence of the carelessness or indifference. Some of negligent acts are cited herein below from Charles Worth & Percy on Negligence (Eighth Edition):
�An act is negligent when it is done, not with the desire of producing a particular result, but actually producing that result by carelessness or indifference. There may be negligence as to the act, as where a man thoughtlessly leaves open the gate of field so that cattle escape on to the highway. Alternatively there may be negligence as to the consequence of the act, as where a man intentionally throws a stone over a wall, careless as to the chances of anyone on the other side of the wall struck by it, but without intending to hit anyone. A negligent state of mind is consistent with a pedestrian. In the circumstances he does not intend to have a collision and exercises as much care as he can, consistently with his desire to drive quickly. His negligence consists in his carelessness or indifference in exposing pedestrians to the risk of a collision, because he is not prepared to subordinate his desire for speed to his desire to drive carefully. In other words he is guilty of recklessness.�
9. Negligence can also be inferred from the careless conduct of a person without reference to any duty being imposed to take care. In Blyth vs. Birmingham Water Works Co, (1856) 11 Ex 781, 784 it was observed:
�Negligence is the commission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do...�
10. There is another meaning of negligence which is used in an objective sense pertaining to breach of duty to take care imposed by law or conduct. For the above purpose negligence as well as duty go hand in hand. In this sense negligence is a neglect to do a thing which a person is bound by law to do. In Donoghue vs. Stevenson, (1932) AC 562, 618, 619 Lord Macmillan said :
�The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of duty.�
11. Lord Wright said in Lochgelly Iron and Coal Co vs. M. Mullan, (1934) AC 1, 25 :
�In strict legal analysis, negligence means more than heedless or careless conduct, whether in commission or omission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing��
12. In judging as to whether there is any breach of some duty owed to another, one is to judge the conduct of the person and not the actual state of mind. Negligence as a breach of duty to take care may arise in a different way as regards of contractual duty as well as breach of duty created by statute. In addition to the contractual duty, the owner as well as the driver and conductor of public transport owe a duty for safe driving of a transport service. Motor Vehicles Rules has also created a duty to take care under the statute. The foundation of negligence in such cases is the existence of duty to take care. The relevant test for ascertaining the existence of duty of a case is a duty of a reasonable man with reasonable foresight. In Bourhill vs. Yount reported in (1943) AC 92, 101 Lord Russell of Killowen expressed as follows:
�... In considering whether a person owes to another duty, a breach of which will render him liable to that other in damages for negligence, it is material to consider that the defendant ought to have contemplated as a reasonable man. The consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e. to the question of compensation or to culpability, but of the alleged negligence, i.e. to the question of culpability not to compensation.�
13. Lord Atkin introduced the test of neighbourhood in Donoghue vs. Stenvenson (supra) in the following familiar passage :
�... The rule that you are to have your neighbour becomes in law. You must not injure your neighbour; and the lawyer question, who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour ? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question.�
14. Lord Reid in Dorset Yacht Co vs. Home Office reported in (1970) SC 1004 (1027) observed that Donoghue vs. Stevenson may be regarded as a milestone and the well known passage in Lord Atkin''s speech should be regarded as statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Lord Reid however observed that in the said judgment that it ought to apply unless there is some justification valid explanation for its exclusion. Lord Reid''s view was considered and approved in Anns vs. Merton Borough Council (1978 AC 728). There well known passage of Lord Wilber force contains. Following statements are cited :
�... that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrong doer and the person who has suffered damage there is sufficient relationship of proximity or neighbourhood such a that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the later. In which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which .ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise..�
15. A charge of paradigm however is discernible in the Governor Peabody Donation Fund vs. Sir Lindsay Parkinson & Co Ltd reported in. (1985) AC 210 as will appear from the following statement of Lord Keith.
�... The true question in each case is whether the particular defendant owed to the particular plaintiff a duty of care having the scope which is contended for, and whether he was hi breach of that duty with consequent loss to the plaintiff. A relationship of proximity in Lord Atkin''s sense must exist before any duty of care can arise, but the scope of the duty must depend on all the circumstances in the case.�
16. There is no identifiable mechanism to ascertain the concept of duty of care. The nexus of proximity as an integral part of duty of care is noticeable in an Australian decision in Sutherland Shire Council vs. Heyman reported in (1985) 60 ALR 1, 55 in the following statement of Deane J,:
�... the requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness or the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained.�
17. In this context the following observation made in Charlesworth & Percy on Negligence (8th Edition, The Commonwealth Library Number 6 Sweet & Maxwell) at 289 page 63 is quoted :
�... Although there are likely to be variations in different categories of case, important factors which are determinative of an issue of proximity, necessarily must include such maters as: (a) foresee ability, itself; (b) the defendants voluntary assumption of direct responsibility to taking care; and (c) the plaintiffs reliance on such taking of care, whether as regards acts or omissions or as regards advice tendered or information disclosed, in the Hedley Byrne type of situation. Unlike foresee ability, which is ultimately a question of fact in any given set of circumstances of a new or developing area of the law of negligence, Deane J. said that the �question of what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning, induction and deduction. Whilst the requirement of a relationship of proximity� serves as a touchstone and control of the categories of case in which the common law will adjudge that a duty of care is owed'' notions of both public policy and what is deemed to be ''fir and reasonable'' remain relevant in identifying the content of that requirement in such an area of. the law.�
18. The driver and owner of the vehicle can not be absolved from its negligence when it failed to comply with the rules of the road as indicated in the statute. In England a Highway Code was issued in the year 1987 with the authority of Parliament in addition to Road Traffic Act, 1988 containing general provision required to be followed by driver or rider of a wheeled vehicle approaching a level crossing. Perhaps time has come for our law makers to ponder over this area and formulate a code of conduct. The duties imposed by rules are already indicated by us in the preceding paragraphs. The evidence on record did not suggest that the driver of the vehicle as well as the conductor took care and caution for the safety of the passengers. From the facts situation as well as the nature of the accident on the other hand also suggest the negligence of driver and owner of the vehicle in addition to the Railway authority. It may be stated herein that the learned Claims Tribunal took note of the fact leading to the settlement of the claims of the claimants with the undertakers, ie the insurance company. The finding of the learned Motor Vehicle Claims Tribunal it was only the Railway authority which were negligence in the case is a therefore is to be judged in that context. There cannot be, on the facts situation any misgiving that the accident arose out of the use of the Motor Vehicle justifying the claim of the Claimants (Reference Samir Chanda vs. Managing Director, Assam State Transport Corporation reported in (1998) 5 SCALE 23.
19. We are no doubt aware of the fact in that the learned Tribunal ought to have made a deeper probe in evaluating the case of the parties and instead of leaving rooms for grievance. Considering the increase docket of the Courts, the passage of time we thus however from remanding the matter for a further probe for assaying the respective liabilities which will only procrastinate the adjudicatory process of the parties. ''Salus populi suprema ler'' Regard for public good is the highest lawprivate rights or public rights can be given away/for the larger public interest. We can herein recall the following statement of Krishna Iyer J, in Everest Coal Co Private Ltd vs. State of Bihar reported in AIR 1977 SC 230 usefully rehearsed by the Supreme Court in M/s Raptakos Brett & Co Ltd vs. Ganesh Property reported in (1998) 7 SCC 184 :
�... Once amends are made by later leave being obtained, the gravamen is gone and the suit can proceed. The pity is that sometimes even such points are expanded into important questions calculated to protect Indian litigation already suffering from unhealthy longevity..�
20. As a result of the discussions made above we reject the plea of the appellant. Mr. Pradip Khataniar did not argue on other points and in our view rightly. In the result the appeal is dismissed. In the facts and circumstances of the case there shall be no order as to costs.
