A. Gopal Reddy, J.@mdashAndhra Pradesh State Electricity Board calls in question the legality and validity of the award passed by the District Judge-cum-Motor Accident Claims Tribunal, Srikakulam dated 27-6-1996 in OP No. 169/1992, whereunder compensation payable to the heirs of the deceased, who died in an accident, by bus belonging to the APSRTC was apportioned between APSRTC and APSEB.
2. This appeal raises a point of some significance with regard to the jurisdiction of the Motor Accident Claims Tribunal to adjudicate the claim against APSEB, when the passenger who boarded the bus and went on to the top of the bus contacted with live electric wire due to rash and negligent driving of the bus driver who suddenly moved the bus belonging to the APSRTC and whether Tribunal can pass award u/s 110-B of the Motor Vehicles Act, 1939 (for short "the 1939 Act") (corresponding to Section 168(1) of the Motor Vehicles Act, 1988 (for short "the 1988 Act").
3. The brief facts, which are necessary for disposal of the appeal, are as under:
The wife, 1st petitioner, children, 2nd and 3rd petitioners, and parents, 4th and 5th petitioners of the deceased Munji Appa Rao (respondents 1 to 5 herein) moved the Motor Accidents Claims Tribunal, Srikakulam by filing OP No. 169/1992 u/s 166 of 1989 Act and Section 110-A of 1939 Act, claiming compensation of Rs. 80,000/- consequent to the death of Munji Appa Rao in the accident which took place on 30-11-1990 by use of offending vehicle i.e., bus, bearing registration No. AEZ 2102 belonging to APSRTC (respondents 7 and 8 herein). It is their case that deceased Munji Appa Rao boarded the bus and went on to the bus top to place luggage on the bus top, and all of a sudden, 6th respondent, driver of the bus rashly and negligently drove the bus towards Narasannapeta side and as a result of which, the deceased came into conduct with the live electrical wire hanging loosely across the road, which alleged to have negligently maintained by 4th and 5th respondents, the appellants herein. As a result of which, the deceased got electrocuted and thrown out of six feet away on the ground from the bus top and died on the spot. The accident was caused due to rash and negligent driving of the bus belonging to 7th and 8th respondents herein by the 6th respondent-driver, as due to the improper maintenance of live electrical wires by the 4th and 5th respondents. Police registered a case in Cr.No. 151/90 u/s 174 Cr.P.C. The deceased was an agricultural cooli and used to earn Rs. 450/- per month and contribute Rs. 250/- per month to the family.
4. The 2nd respondent-Depot Manager, APSRTC, Srikakulam filed counter while denying the material allegations stated that there is no negligence on the part of the driver at the relevant time and deceased was guilty of his own wrong without informing the crew of the bus got up the bus for loading the luggage and died due to electrocution, for which APSRTC cannot be held liable fore the said accident nor liable to pay any compensation.
5. The 4th and 5th respondents filed counter stating that the accident in question occurred due to the negligence of the deceased Munji Appa Rao, who has come into contact with live electrical wire. They denied the fact that they negligently maintained the live electrical wires and there is periodical maintenance of electrical wires.
6. On the pleadings of the parties, the Tribunal framed the following issues for trial :
1. Whether Munji Appa Rao died in the motor accident caused by driver of the bus bearing No. AEZ 2102 by his rash and negligent driving ?
2. Whether the petitioners are entitled for any compensation and if so, to what amount and against which of the respondents ?
3. To what relief ?
7. To prove the rash and negligent driving, and improper maintenance of live electrical wires, an eye-witness to the accident was examined as P.W.2, who stated that on the fateful day when the bus was at Vedullavalasa bus stop on Polaki-Narasannapeta road, the deceased after informing the driver was putting some luggage on the top of the bus, then the driver without verifying whether the deceased got down from the bus or not started the bus, as a result of which, the deceased came into contact with the live electrical wire, and fell down from the bus and died on the spot. He gave a report to the police under Ex.A-1. Wife of the deceased Munji Appa Rao was examined as P.W.I with regard to earnings of the deceased and his contribution to the family. The driver of the bus was examined as R.W.I. Assistant Divisional Engineer (Operation), APSEB, Tekkali, was examined as R.W.2, who stated that there was no negligence on the part of the respondents 4 and 5 in causing the death of Munji Appa Rao and by the date of accident live electrical wires were not hanging loosely at the place of accident and the height of the electrical wires is about 19 to 20 feet from the road level at the place of accident and denied the suggestion that electrical wires were hanging loosely at the place of accident and accident was occurred due to the negligence of the Board officials. To a suggestion by the Board, P.W.2 stated that if the deceased does not go on to the top there is no possibility of contacting live electrical wire and number of busses pass through Vedullavalasa.
8. The Claims Tribunal accepting the evidence of P.W.2 who stated that electrical wires were loosely hanging at the place of accident concluded that the negligence can be inferred on the part of the 4th and 5th respondents, who were expected to see that electrical wires should not be hanged loosely especially across the road. In the absence of any material that Board has taken any precautions in putting the electrical wires tightly, without causing any hindrance to the traffic and there is no possibility for a person to come into contact with the live electrical wire if the person stands on the top of the bus, which have to be laid in such a way that they will not come into contact with the person, it can be safely held that accident was caused due to the negligent maintenance of the live electrical wires by 4th and 5th respondents. Except R.W.2 there is no other evidence to prove nor any explanation is offered by the Board in not examining the Lineman to substantiate that the live electrical wires were not hanging loosely at the place of accident and accordingly compensation payable was apportioned equally between APSRTC and APSEB.
9. Learned Counsel for the appellant-Board contended that application filed by the respondents 1 to 5 (claimants) for compensation u/s 166 of the 1988 Act read with Section 110-A of the 1939 Act before the Claims Tribunal constituted under the said Act is not maintainable against the appellant even if the death or bodily injury to person occurred on account of electrocution, the remedy of the claimants if any is only to move the civil Court. He further contends that since the accident occurred in November, 1990, the claim petition filed in the year 1992 was barred by limitation under Article 72 of the limitation Act and the claim petition is liable to be dismissed, therefore the impugned order passed by the Claims Tribunal fixing the liability on the appellant to a tune of 50% of the compensation payable is not sustainable and the same is liable to be set-aside.
10. Per contra, learned Counsel for the respondents 1 to 5-claimants contends that the Claims Tribunal shall have exclusive jurisdiction to entertain all claims for compensation in respect of accident involving the death of, or bodily injuries to persons where the accident is caused by the use of the motor vehicle or the use of the motor vehicle contributes such death or bodily injury either by itself or along with some other joint tortfeasor to the accident. He further contends that the jurisdiction of the Claims Tribunal is not confined to claim for compensation against the driver, owner and the insurer of the vehicle and if the third party is negligent in contributing the said accident, the Claims Tribunal can enquire into and only in the event if the accident was not due to any use of the motor vehicle and only due to negligence of the third party, then only claim petition is not maintainable before the Tribunal and in such case, the parties can be relegated to move the Civil Court for appropriate relief.
11. It is well settled that the proof of negligence remains the linchpin to recover compensation.
12. The Claims Tribunal though has not framed any issue with regard to the negligent maintenance of the live electrical wires with whom the deceased Munji Appa Rao contacted and died due to electrocution. So far as rash and negligence of the driver of the bus belonging to APSRTC is concerned, it was held that the driver has not taken any precaution from the Conductor while starting the bus, knowingly without verifying that the deceased who boarded the bus and went on to the top of the bus to keep the bundle of his goods, he stood on it while saying that give bundle to the top from the backside ladder, touched the current wire situated on the upper portion and fell down. So far as negligence of the officials of the Board is concerned, it was held that the evidence of P.W.2 shows that electrical wires were hanging loosely and Board officials have not properly maintained them, which resulted in death of deceased due to electrocution while lifting the luggage to the top of the bus. The lineman who is competent to depose whether electrical wires were hanging loosely or not has not been examined by the Board officials nor any explanation is offered for not producing the lineman. R.W.2-Assistant Divisional Engineer admitted that the height of the electrical wires is about 19 to 20 feet from the road level and also admitted that he did not go to the place of the accident to verify whether the electrical wires were hanging loosely or not at the place of the accident and Ex.B-2 rough sketch shows that the electrical wires were located by the side of the road and there is every possibility for a person who stands on the top of the bus to come into contact with electrical wire if they are hanging loosely because the wires are located by the side of the road. The Tribunal on appreciation of oral and documentary evidence held that the accident was caused on account of composite negligence of the driver of A.P.S.R.T.C. bus as well as APSEB employees in maintaining the electrical wires, therefore, the Tribunal will have jurisdiction to entertain the claim petition against both of them and directed that APSRTC and APSEB are jointly and severally liable to pay compensation to the claimants equally.
13. The question that arises for consideration in this appeal as to whether the claimants-respondents 1 to 5 properly moved for adjudication of the claim for compensation on account of the accident caused by negligent use of the bus belonging to APSRTC or accident in question was caused not only by rash and negligent driving of the driver of the bus but also by the outside agency, namely the officials of the Board which have contributed its might and was also partly responsible to the causing of the accident.
14. It is open for the claimants to urge that there was in addition to the motor vehicle driver who was a tortfeasor, another joint tortfeasor where he has not used any motor vehicle but nonetheless who might have contributed to the causing of the accident, and can proceed against joint tortfeasor i.e., outside agency or can proceed only against the driver of the bus i.e., tort feasor. Once it is established that the accident in question is alleged to have been caused on account of rash and negligent driving of the offending vehicle, the heirs of the deceased can bring an action against the driver as well as the owner of the offending vehicle for compensation through the Motor Accident Claims Tribunal constituted u/s 165 of the 1988 Act (Section 110 of the 1939 Act), but not against the outside agency who contributed for the said accident.
15. It is convenient to consider the issue in the context of two cases i.e.,
16. The view, taken by the Gujarath High Court in
Under Section 110(1) of the Motor Vehicles Act, 1939 (corresponding to Section 165 of the 1988 Act) Claims Tribunals have been constituted for adjudicating upon claims for compensation in respect of accidents involving the death or bodily injury of persons, "arising out of the use of motor vehicles or damage to any property of a third party so arising or both". Section 110(1) in our view deals with the jurisdiction of the Tribunal. On the other hand, Section 110-B [corresponding to Section 168(1) of the new Act of 1988] is procedural and is in two parts. The first part states that after following certain procedure, the Claims Tribunal shall "make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid". Obviously, the word "compensation" here in the first part of Section 110-B is referable to the compensation to be decided by the Tribunal u/s 110(1). But it is the second part of Section 110-B on which the appellant (Union of India) has relied and that part reads as follows :
[I]n making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be." (emphasis supplied) (Para 43)
"In our view, the Tribunal is clearly an alternative forum in substitution for the civil Court for adjudicating upon claims for compensation arising out of the "use of motor vehicles". This is further made clear from Section 110-F of the Act which states that no civil Court shall entertain any question "relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal". In our view, when we are concerned only with Section 110(1) and when Section 110-B does not and cannot control Section 110(1), a claim is entertainable by the Tribunal, if it arises out of the use of a motor vehicle and if it is claimed against persons or agencies other than the driver, owner or insurer of the vehicle provided in tort, such other persons or agencies are also claimed to be liable as joint tortfeasors. It is obvious that prior to the constitution of the Tribunal, such compensation could be decreed by the civil Court not only against the owner/driver and insurer of the motor vehicle but also against others who are found to be joint tortfeasors. The words "use of the motor vehicle" are also to be construed in a wide manner. The above words were interpreted by this Court in
... no sound reason was given for restricting the phrase, ''the use of a motor vehicle'' in this way. The only limitation upon it ... that I can see is that the injury must be one in anyway a consequence of a use of the vehicles as a motor vehicle.
Further, Section 110-E 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 110-B. Obviously the words "from any person" are referable to persons other than the driver/owner or insurer of the motor vehicle. (Para 45)
and accordingly approved the view taken by various High Courts including Gujarath High Court that claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in cases where, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/ agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of the outside agency which resulting the death or bodily injury to the person (emphasis is of mine). If the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal.
17. The correctness of the view taken, namely, the finding that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only sale negligent of other agency, claims would go out of Section 110(1) of the Motor Vehicles Act, 1939 (corresponding to Section 165 of the 1988 Act) same has to be adjudicated before the civil Court, was referred to a larger Bench. The Supreme Court in Union of India v. Bhagwati Prasad (Died) and Ors. (supra), held that the jurisdiction of the Tribunal to entertain application for claim of compensation in respect of an accident arising out of the use of motor vehicle depends essentially on the fact whether there had been any use of motor vehicle and once that is established the Tribunal''s jurisdiction cannot be held to be ousted on a finding being arrived at a later point of time it is the negligence of the other joint tortfeasor and not the negligence of the motor vehicle in question. Accordingly, the said finding, namely "it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110(1) of the Act because the case would then become one of exclusive negligence of the Railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal" is not correct in law and to that extent, it has not been correctly decided by it in the case of Union of India v. United India Insurance Company (supra).
18. In view of the aforesaid authoritative pronouncements of the Supreme Court, the submission made by the learned Counsel for the appellants that the Claims Tribunal will not have jurisdiction to entertain the claim petition against the officials of the Board as a joint tortfeasor is not maintainable, cannot be countenanced and the same is accordingly rejected.
19. The submission made by the learned Counsel for the appellants that claim petition is barred by limitation appears to be a fallacy for the reason that under Article 72 of the Limitation Act for bringing an action for tortuous against the Board Officials, the period of limitation is one year. Necessary application for compensation has to be laid as contemplated u/s 166 of the 1988 Act, which came into force with effect from 1-7-1989. Subsection (3) as it originally stood prior to its deletion by Act 54/94 with effect from 14-11-1994 envisages that no application for compensation shall be entertained unless it has made within six months of the occurrence of the accident. The claims Tribunal was also authorized to entertain application after expiry of said period of six months but not later then 12 months, if it is satisfied that applicant was prevented by sufficient cause from making the application in time. It is not out of place to mention that Section 166(3), which prescribes the limitation, has been deleted and bar with regard to limitation is lifted by Act 54/94. I had an occasion to consider the effect of deletion of Sub-section 3 of Section 166 of the Act 1988 in
20. Admittedly, the accident in question was occurred after the 1988 Act came into force, on 30-11-1990 and application seeking compensation was filed on 31-7-1991 after expiry of six months but within one year from the date of occurrence of the accident. Since the claim petition is filed within one year against the action of tortuous liability, submission that the claim petition is barred by limitation cannot be accepted.
21. For the foregoing reasons, the impugned judgment passed by the Tribunal does not warrant any interference.
22. The civil miscellaneous appeal is accordingly dismissed. No costs.
