COMPENSATION IN MOTOR

ACCIDENT CLAIMS: A STUDY OF

EMERGING TRENDS
A THESIS
SUBMITTED TO
MAHARSHI DAYANAND UNIVERSITY, ROHTAK
FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY
IN
LAW

Under the Supervision of: Submitted By:

Dr. NARESH KUMAR Manish Kumar
Professor, Law Department, Reg. No. 98-rur-88
M. D. University, Rohtak

DEPARTMENT OF LAW
MAHARSHI DAYANAND UNIVERSITY
ROHTAK – 124001 (HARYANA)
2010
 DECLARATION

This is to certify that the material embodied in the present work

entitled “COMPENSATION IN MOTOR ACCIDENT
CLAIMS: A STUDY OF EMERGING TRENDS” is based on
my original research work. It has not been submitted in part or in
full for any other diploma or degree of any university. My
indebtedness to other works has been duly acknowledged at the
relevant places.

(Signature of Candidate)

Countersigned by:

(Dr. NARESH KUMAR)

Professor in Law,
Department of Law,
M. D. University, Rohtak

(Prof. (Dr.) K. P. S. Mahalwar)

Head & Dean,
Department of Law,
M. D. University, Rohtak.
Dr. NARESH KUMAR Faculty of Law,
Professor in Law, M. D. University,
Department of Law, Rohtak - 124001
M. D. University,
Rohtak – 124001

CERTIFICATE

This is to certify that the thesis entitled “COMPENSATION IN

MOTOR ACCIDENT CLAIMS: A STUDY OF EMERGING
TRENDS” which is being submitted by Mr. Manish Kumar for the
award of the Degree of Doctor of Philosophy in Law is a bonafide
research. He has worked on the above topic under my constant
supervision and guidance to my entire satisfaction and his thesis is
complete and ready for submission. I am satisfied that this thesis is
worthy of consideration for the award of the Degree of Doctor of
Philosophy in Law. As this thesis meets the requirements laid
down by M.D. University, Rohtak for awarding the Degree of
Doctor of Philosophy in Law, I recommend that this thesis may be
accepted for evaluation by the University.

Date: (Dr. Naresh Kumar)

Place: Rohtak Supervisor
 1

COMPENSATION IN MOTOR ACCIDENT CLAIMS: A STUDY

OF EMERGING TRENDS

ABSTRACT

India has the dubious distinction of being one of the countries with the highest number of
road accidents and the longest response time in securing first aid and medical treatment. The
terrible figure of road accidents yield a cart-load of case law, which, of course, is not an
elegy on the dead but real tribute on this threatening piece of legislation. Each case, however,
bears its own imprint which cannot be universalized. The paradoxes involved in each
individual motor accident case had posed four confounding situations, namely:
1. A section of accident victims doubly unfortunate, first in getting involved in an
accident yet not getting compensation.
2. Widespread practice of using goods vehicles for passenger traffic.
3. Procedural delays in settlement of claims
4. Duty of courts to award compensation and secure it to the advantage of those for
whom it was meant.
In the present study an attempt has been made to find out the possible answers of the
following’s:
1. What are the exiting provisions relating to Motor Accident Claims in India?
2. What is the proper procedure and working pattern of Claims Tribunals for awarding
compensation in motor accident claims?
3. Whether in the matters of negligent cases relating to motor accidents the maxim res ipsa
loquitur plays a role in deciding the cases by the civil courts?
4. Whether in the matters of negligent cases relating to motor accidents the maxim of res
ipsa loquitur can be applied in determining criminal liability?
5. What are the exiting trends in grant of compensation in respect of bodily injury, death
and damages to the vehicles and property?
6. What are the methods, which are used by the courts in calculating the amount of
compensation in respect of bodily injury, death and damages to the vehicles and
property?
7. What is the procedure applied by the Lok Adalats in Disposing of the Motor Accident
Claims and whether such awards made by the Lok Adalats are just, fair and reasonable
or not?
8. What are the conditions, which are considered mandatory by the courts and tribunals
for accepting claims of compensation under Motor Vehicle Act?
9. What are the factors, which are considered by the courts and tribunals as dangerous for
a claim of compensation under Motor Vehicle Act?
10. What is the extent of liability of the owner and Insurer of the Vehicle involved in
accident?
 2

For the purpose of making the law for granting of compensation in Motor Accident Claims
more realistic and effective, following suggestions have been made:
1. It is to be ensured that all accident victims including victims of uninsured vehicles
get compensation.
2. Payment of Compensation to accident victims should be without delay.
3. Full amount of compensation awarded should not go directly in the hands of the
victim, instead should be deposited in fixed deposits with banks.
4. Just and Fair Compensation, in cases of out of Court Settlement must be ensured.
5. Award of compensation must be determined by applying the principle of structural
compensation formula in motor accident cases like railways (where a fixed
compensation of Rs. 4.00 Lakhs is paid for loss of life) irrespective of social status
and earning capacity of the victim.
6. All types of Vehicles should be regularly checked up and inspected by authorised
mechanics like checking of air pollution.
7. Driving Licence should be allotted by following strict procedure and after considering
health and mental status of the person.
8. Entry of Animals on Public Roads should be prohibited
9. Supervision and Control of Speed of Vehicle should be ensured strictly.
10. There should be ban on plying of old vehicles.
11. Where the liability of the insurer is not disputed, the insurance companies should pay
compensation as per the standard formula developed by the decisions of the Courts.
12. Insurance companies should provide for treatment of victims of motor accident in the
same manner as is provided to medi-claim policy holders.
13. There is need to bring some mechanism to ensure that the compensation awarded by
Lok Adalats is Just and Fair.
14. There is need to organise literacy programs regarding rules of road, traffic signals
etc., through mass media.
15. Road Safety Bureau must be established to lay down Road Safety Standards and
norms, enforce Road safety measures and ensure maintenance of Public Roads in
general.
16. Some effective mechanism must be devised to reduce number of vehicles on road,
including encouragement to travel by public transport system.
17. Ensuring effective functioning of Claims Tribunals, Police Authorities and Insurance
Companies.
18. Enacting a comprehensive and unified statute for dealing with motor accidents.
19. The central government may consider amendment of the Second Schedule to the Act
to rectify the several mistakes therein and rationalize the compensation payable
thereunder.
20. Trauma and First Aid Centres for Accident Victims must be established immediately.
21. There should be deterrent punishment to traffic offenders.
22. There should be some limitation period to file claim for compensation.
23. Ensure strict punishment for drunken driving.
 i

ACKNOWLEDGEMENT

It gives me an immense pleasure and a sense of gratitude to

acknowledge my indebtedness to my teacher and research
supervisor, Dr. Naresh Kumar, Professor, Law Department,
Maharshi Dayanand University, Rohtak. It is due to the valuable
guidance and sparing of time for me despite his other engagement
of the academic nature that I am able to complete this research
work. His sympathetic attitude, scholarly guidance and keen
interest in research work has inspired me at every stage of my
efforts in the completion of this thesis in time. In addition to
effective supervision, he had made valuable suggestions from time
to time to make the present study more useful and realistic.

I am highly thankful to my learned and respected teacher Prof.

K.P.S. Mahalwar, Head & Dean, Department of Law, Maharshi
Dayanand University, Rohtak, who afforded me an opportunity to
conduct research work on this topic of great significance. His
continuous encouragement besides the valuable advice on the
complex issues has enabled me to complete this study well in time.

My thanks are due to Prof. C.P. Sheoran, Dr. A. S. Dalal and other
distinguished members of the Faculty of Law, Maharshi Dayanand
 ii

University, Rohtak for their sympathetic attitude and co-operation.

In addition, I am highly indebted to officers and officials of the
Law Department, Maharshi Dayanand University, Rohtak for their
love and encouragement.

I am also thankful to staff members of the Law Library, Maharshi

Dayanand University, Rohtak, especially Sh. Balwan Singh, Inder
Prakash and Raj Kumari for making me available the standard
books, periodicals, journals and other material for reference to
complete this study.

Further, I am thankful to officers and officials of Indian Law

Institute Library, IIPA Library, Delhi High Court Library,
Supreme Court Library for helping me in finding out the relevant
material for completing my present study.

I am also thankful to all staff members of Legal Section, Canara

Bank, Circle Office, Delhi for their sympathetic attitude and co-
operation and also providing me relevant material for completing
my present study in time.

I am highly indebted to various distinguished authors whose

writings have been consulted by me in this work.
 iii

I am also thankful to my parents, brother, sisters and sister-in-law,

who have provided me full co-operation and encouragement to
complete my research work, especially to my wife Mrs. Monika
Goyal for typing this work with meticulous care.

I wish to place on record my sincere thanks to all my friends and

colleagues for their support and co-operation.

Finally, I thank to Almighty God for showering blessings and

enabling me to complete this work.

Department of Law (Manish Kumar)

Maharshi Dayanand University,
Rohtak
 i

COMPENSATION IN MOTOR ACCIDENT CLAIMS: A

STUDY OF EMERGING TRENDS

CONTENTS
Page Nos.
Acknowledgement i - iii
Abbrevations i - iv

Contents i -xvii

Table of Cases i - xxvii

CHAPTER I: Introductory 1-22

A. General 2
B. Statement of Problem 4
C. Aims and Objectives of the Study 13
D. Overview of the Existing Literature 14
E. Research Methodology 19-21
I. Coverage and Sample 20
II. Selection of Cases 20
F. Chapter Scheme 21

CHAPTER II: The Motor Vehicles Act, 1988: 23 - 97

History, Object, Scope
and Salient Features

A. Introduction 24
 ii

B. History 26 - 34
I. Pre – 1988 Position 26
II. The Motor Vehicles Act, 1988 27
III. The Motor Vehicles (Amendment) Act, 1994 29
IV. Law Commission’s 119th Report 31
V. The Motor Vehicles (Amendment) Act, 2000 32
VI. The Motor Vehicles (Amendment) Act, 2001 33
C. Objects and Scope 34
D. Definitions – The Genus and Species of Motor Vehicles 37 - 45
I. Area 38
II. Articulated Vehicle 38
III. Axle Weight 38
IV. Certificate of Registration 38
V. Conductor 38
VI. Conductor’s Licence 38
VII. Contract Carriage 38
VIII. Dealer 39
IX. Driver 39
X. Driving Licence 39
XI. Educational Institution Bus 39
XII. Fare 40
XIII. Goods 40
XIV. Goods Carriage 40
XV. Gross Vehicle Weight 40
XVI. Heavy Goods Vehicle 40
XVII. Heavy Passenger Motor Vehicle 40
XVIII. Invalid Carriage 40
XIX. Learner’s Licence 41
XX. Licensing Authority 41
 iii

XXI. Light Motor Vehicle 41

XXII. Manufacturer 41
XXIII. Maxi Cab 41
XXIV. Medium Goods Vehicle 41
XXV. Medium Passenger Motor Vehicle 41
XXVI. Motor Cab 41
XXVII. Motor Car 41
XXVIII. Motor Cycle 42
XXIX. Motor Vehicle or Vehicle 42
XXX. Tractor-Trailer 42
XXXI. Omnibus 42
XXXII. Owner 42
XXXIII. Permit 43
XXXIV. Prescribed 43
XXXV. Private Service Vehicle 43
XXXVI. Public Place 43
XXXVII. Public Service Vehicle 43
XXXVIII. Registered Axle Weight 43
XXXIX. Registering Authority 43
XL. Route 43
XLI. Semi-Trailer 44
XLII. Stage Carriage 44
XLIII. State Government 44
XLIV. State Transport Undertaking 44
XLV. Tourist Vehicle 45
XLVI. Tractor 45
XLVII. Traffic Signs 45
XLVIII. Trailer 45
XLIX. Transport Vehicle 45
 iv

L. Unladen Weight 45
LI. Weight 45

E. Concept and Meaning of Accident 46 – 51

I. Accident and Other Allied Expressions Like 47

Act of God, Inevitable Accident, Latent Defect, etc.

II. Defence of Act of God, or of Latent Defect Feeble under 48

Compensation Laws

III. An Accident Arising Out of the Use of a Motor Vehicle 49

F. Salient Features of Motor Vehicles Act, 1988 52 - 94

Relating to Awarding of Compensation in Motor
Accident Cases.

I. Liability to Pay Compensation in Certain Cases 52

on the Principle of No Fault.
II. Necessity of Insurance Against Third Party Risk. 58
(a) Authorized Insurer 58
(b) Certificate of Insurance 58
(c) Liability 59
(d) Policy of Insurance 59
(e) Property 59
(f) Goods 59
(g) Reciprocating Country 60
(h) Third Party 60
III. Requirement of Insurance Policy and Limits of 63
Liability Under Such Policy.
IV. Validity of Polices of Insurance Issued in 67
Reciprocating Countries.
 v

V. Liability of Insurer and Defence Available To Insurer. 67

VI. Third Party Insurance : Defence Available to the 72
Insurance Companies
VII. Right of Recovery from Owner to Insurance Company 73
VIII. Insolvency of Insured : Rights of Third Party Against Insurers 73
IX. Duty to Give Information as to Insurance. 75
X. Effect of Settlement Between Insure and Insured. 76
XI. Driving License 77
XII. Gratuitous Passenger 78
XIII. Effect of Dishonour of Cheque of Insurance Premium 80
XIV. Effect of Transfer of Vehicle 80
XV. Saving Clause. 80
XVI. Effect of Insolvency of Insured. 81
XVII. Effect of Death on Certain Causes of Action. 81
XVIII. Effect of Certificate of Insurance. 81
XIX. Effect of Transfer of Certificate of Insurance. 82
XX. Production of Certain Certificates, Licence and Permits etc. 83
XXI. Application for Authority to Use Vehicle: Production 85
of Certificate of Insurance
XXII. Duty to Furnish Particulars of Vehicle Involved in Accident. 86
XXIII. Special Provisions as to Compensation in Case of 86
Hit and Run Motor Accident.
XXIV. Refund of Compensation Paid Under Section 161. 88
XXV. Scheme for Payment of Compensation in Case of 89
Hit and Run Motor Accidents.
XXVI. Special Provisions as to Payment of Compensation 91
on Structured Formula Basis.
XXVII. Power of Central Government to Make Rules. 94
G. Review 95
 vi

CHAPTER III: Claims Tribunal Under Motor 98 - 156

Vehicles Act, 1988

A. Introduction 99
B. Establishment and Composition of Claims Tribunal 100 - 109
I. Setting up of Claims Tribunal. 101
II. Appointment of Member. 102
III. Appointment of Member by Name not Necessary 103
(a) Notification of Appointment is Necessary 103
(b) Transfer of Claim Application from District Judge to 104
Claims Tribunal
(c) General Notification designating all the District 104
Judges as Claims Tribunal
(d) Not to Confuse Powers of One Office With Other Office. 105

IV. Qualification for Appointment as Member of Claims Tribunal 105

V. Other Staff of Claims Tribunal. 106
VI. Claims Tribunal: Powers of Civil Courts. 106
VII. Claims Tribunal: A Substitute of Civil Courts for 108
the purpose of Compensation Claims.
C. Application for Compensation. 109 - 115
I. Who can File Claim. 113
II. Who Can Report to Claims Tribunal in Case of Accident. 113
III. Essential Documents Required to File Claim. 113
IV. Court Fees to be Deposited at the Time of Filling Claim. 115
D. Jurisdiction of Claims Tribunals 115 - 129
I. Pecuniary Jurisdiction 116
 vii

II. Exclusion of Civil Court’s Jurisdiction not Readily Inferred 116

III. Jurisdiction in Respect of Cases Where Accidents 118
Occurred Prior to Establishment of Tribunal
IV. Bar on Jurisdiction of Civil Courts 119
V. Bar on Jurisdiction of Consumer Dispute Redressal Forum 120
VI. Jurisdiction of Tribunal, Where Collision Between Trains 122
And Motor Vehicle Occurred
VII. Claimant to Choose Place of Jurisdiction 123
VIII. Jurisdiction of Tribunal in India, where Accident occurred 124
in Foreign Country
IX. Jurisdiction to Entertain Claim by Indigent Person 124
X. Death Occurred Due to Heart Attack: No Jurisdiction 126
XI. Transfer of Claims from One Tribunal to Another Tribunal 126
XII. Claimant can Withdraw Applications and File it at 127
Appropriate Place
XIII. Tribunal Cannot Entertain Application in case of 128
Hit and Run Accident
E. Options Regarding Claims for Compensation in Certain 129
Cases to Claim Compensation in Other Acts.
F. Award of Claims Tribunal. 130
G. Procedure and Power of Claims Tribunals. 131 - 140
I. Application for Compensation 132
II. Amendment of Pleadings: Amendment for Enhancement of 132
Claim Amount
III. Notices, Summons, Processes and Service 133
IV. Written Statement 134
V. Summary Procedure for Holding Enquiry 135
VI. Powers of Court in Respect of Taking Evidence on Oath, 135
Enforcing Attendance of Witness etc.
VII. Taking of Assistance of Persons Possessing Special 135
Knowledge
VIII. Framing of Issues 135
 viii

IX. Ex Parte Proceedings – Dismissal in Default, Restoration etc. 136

X. Judgement – Finding on all Issues Necessary 137
XI. Delivery of Copies of Award to Parties within 15 Days 138
XII. Person Required to Pay Compensation in Terms of Award 138
to Deposit the Entire Amount within 30 Days.
XIII. Execution of Award of Claims Tribunal 139
H. Assessment of Claim. 140
I. Impleadation of Insurer in Certain Cases. 142
J. Award of Interest Where Any Claim is Allowed. 143
K. Award of Compensatory Costs in Certain Cases 144
L. Tribunal’s Jurisdiction to Set Aside Award Procured By Fraud 145
M. Appeal against Decisions of Claims Tribunal. 146
N. Recovery of Money from Insurer as Arrears of Land Revenue. 149
O. Power of State Government to Make Rules. 150
P. Insurer and No Fault Liability. 150
Q. No Fault Claim can be Proved at Appellate Stage also. 151
R. Ignoring Multiplier in Second Schedule. 151
S. Duty of Claimant to Choose Claim under Sections 163A or 166. 153
T. Review 154

CHAPTER IV: Award of Compensation to the 157 - 288

Victims of Motor Accident
in India: Judicial Trends
A. Introduction 158
B. No Fault Liability. 159
C. Vis Major 165
D. Application of Principle of Vicarious and Absolute 169 - 185
Liability in Motor Accident Cases.
I. Vicarious Liability 170
II. Absolute Liability 172
 ix

III. Absolute Liability and State. 182

E. Negligence, Contributory Negligence and Application of 186 - 276
Doctrine of Res Ipsa Loquitur.
I. Contributory Negligence and Composite Negligence. 188
II. Rule of Last Opportunity 189
III. Contributory Negligence and Children 190
IV. Application of Doctrine of Res Ipsa Loquitur in 191
Collision Cases
(a) Light Motor Vehicles Colliding with Light Motor 193
Vehicles.
(b) Heavy Motor Vehicles Colliding with Light Motor 195
Vehicles.
(c) Heavy/ Light Motor Vehicles Colliding with Scooters/ 202
Motor Cycles.
(d) Heavy Motor Vehicles Colliding with Heavy Motor 212
Vehicles.
V. Application of Doctrine of Res Ipsa Loquitur in Non-Collision 220
Cases
(a) Motor Vehicles Hitting Pedestrians. 220
(b) Motor Vehicles Hitting Cyclist. 233
(c) Motor Vehicles Involved in Accident While Trying to 240
Save Cattle.
(d) Vehicles Falling in Ditches, Canals, Washed Away in 243
Floods, Hitting Culverts etc.
(e) Passengers Falling Down While Boarding/ Sitting on 248
the Vehicle.
(f) Motor Cycle/ Scooter Accident Involving Pillion Riders. 250
(g) Parking Vehicles on Public Places Living the key. 252
(h) Motor Vehicles Dashing Against Trees. 254
 x

(i) Accident Due to Explosion of Tankers/ Fire in Motor 258

Vehicles.
(j) Accident Due to Tyre Burst. 260
(k) Accidents Due to Mechanical Breakdown. 265
(l) Motor Vehicles Turned Turtle. 271
F. Treatment of Compensation Amount 276- 280
I. Award of Compensation in Favour of Minor Claimants 277
II. Compensation Awarded to Illiterate Claimants 277
III. Compensation to Semi-Literate Claimants 277
IV. Compensation Amount Awarded to Literate Claimants 278
V. Award of Compensation Widow Claimants 278
VI. Withdrawal of Amount in case of Personal Injury 278
VII. Withdrawal of Amount in Case of Emergency 279
VIII. No Loan or Advance Against the Fixed Deposit 279
Amount of Compensation
IX. Duty of Bank to Affix Note on Fixed Deposit Receipt. 279
X. Cases Settled Outside the Court. 280
G. Driving Licence and Liability of Insurance Company 280 - 282
I. Driving Licence 280
II. Forgery of Driving Licence 281
III. Liability of Insurance Company 281
IV. Amount paid by Insurance Company 281
V. Policy of Insurance 282
H. Third Party and Liability of Insurance Company 282 - 283
I. Insurance Company cannot Refuse to Meet its Liability 282
Qua Third Party
II. Fraud Committed by the Third Party 283
I. Grant of Compensation: Miscellaneous Trends. 283- 286
I. Ensuring Compensation to All Victims. 283
 xi

II. Collection of One Time Life Time Third Party 284

Insurance Premium.
III. Alternative to Present System of Third Party Insurance. 284
IV. Establishment of Road Safety Bureau. 285
V. Unified and Comprehensive Law Required. 285
VI. Rectification of Second Schedule to Motor Vehicles 285
Act, 1988.
J. Review 286 - 288

CHAPTER V: Lok Adalats and Motor Accident 289 - 309

Claims
A. Introduction. 290
B. Establishment, Powers and Jurisdiction of Lok Adalats 292 - 296
I. Organization of Lok Adalats. 292
II. Cognizance of Cases by Lok Adalats. 293
III. Award of Lok Adalats 295
IV. Powers of Lok Adalat/ Permanent Lok Adalats. 295
C. Refund of Court Fee. 297
D. Jurisdiction of Lok Adalats. 297
E. Idea Behind Formation of Lok Adalats. 297
F. Compromise on Behalf of Unsound Mind and Minor Persons. 298
G. Reasonableness of Amount of Compromise Settlements 299
Arrived at Lok Adalats.
H. Validity of Compromise Settlements in Lok Adalats Signed 300
by Advocate on Behalf of Party.
I. Award of Lok Adalats Even Without Compromise. 300
J. Dismissal of Claims by Lok Adalats in Case of Default 301
by Parties.
 xii

K. Award of Lok Adalat and Appeal. 301

L. Award of Lok Adalat not Open to Interference Merely 304
Because Amount Awarded was not Adequate.
M. Exemption from Court Fee 304
N. Sanctity of Award of Lok Adalat and Appeal 305
O. Civil Procedure Code, 1908 Dealing With Settlement 306- 308
of Dispute Out of Court.
I. Settlement of Disputes Outside the Court. 306
II. Direction of the Court to Opt for Any One Mode of 307
Alternative Dispute Resolution.
III. Appearance Before the Conciliation Forum, or Authority. 307
IV. Appearance Before the Court Consequent to the 308
Failure of Efforts of Conciliation.
P. Review 308 - 309

CHAPTER VI: Criminal Liability in Motor 310 - 349

Accidents.

A. Introduction 311
B. Law of Crimes and Motor Accidents 313
C. Tort and Crime Constituted by the Same Set of 315
Circumstances
D. Offences in Relation to Use of Motor Vehicles 317 - 320
I. Rash Driving or Riding on Public Way 317
II. Causing Death by Negligence. 317
III. Act Endangering Life or Personal Safety of Others 318
IV. Causing Hurt by Act Endangering Life or Personal 319
Safety of Others.
 xiii

V. Causing Grievous Hurt by Act Endangering Life 319

or Personal Safety of Others.
E. Proof of Negligence. 320
F. Grant of Compensation – Hearing of Accused Necessary 322
G. Criminal Injury or Murder as Accident 324
H. Judicial Application of the Criminal Law in the Motor 326 - 348
Accident Cases
I. Res Ispa Loquitur: Not a Special Rule of 326
Substantive Law
II. Mere Careless Not Sufficient 333
III. Burden of Proof in Certain Cases 336
IV. Rash and Negligent Driving 339
V. Culpable Rashness 343
VI. Proof of Criminal Liability 345
I. Review 348 - 349

CHAPTER – VII : Conclusions and Suggestions 350 - 386

A. General 351
B. Conclusions 352 - 369
I. Dubious Distinction. 352
II. Accident: Pre- Condition in MACT Cases 353
III. Accident Arising Out of Motor Vehicle 353
IV. Status of Gratuitous Passenger 354
V. Claims in Hit and Run Cases 354
VI. Payment of Compensation on Structured Formula Basis 355
VII. MACT is a Tribunal 355
VIII. Tribunal to be Deemed as Civil Court 356
IX. Application for Compensation Must be Complete 356
 xiv

and Proper
X. Amendment in Claim Application 357
XI. Jurisdiction of Claims Tribunal 358
XII. Claimant can Withdraw Applications and file it at 359
Appropriate Place
XIII. Award of Claim Tribunal and Appeal 359
XIV. Execution of Award and Recovery of Amount as 360
Land Revenue.
XV. Principle of Tortious Liability and Motor Accident 361 - 364
Cases
(a) No Fault Liability 361

(b) Act of God 362

(c) Vicarious Liability 362

(d) Strict and Absolute Liability 363

(e) Negligence and Contributory Negligence 363

(f) Res Ispa Loquitur 364

XVI. Treatment and Disbursement of Compensation Amount. 365

XVII. Liability of Insurance Company 365
XVIII. Lok Adalat and Motor Accident Cases. 366
XIX. Motor Accident as Crime: Liability to Pay Compensation 367
XX. Felonious Tort 369
C. Suggestions 369 - 386
I. Grant of Compensation and Treatment Thereof 370- 374
(a) Ensuring that all accident victims get compensation 370
(b) Payment of Compensation Without Delay 370
(c) Securing compensation to all victims 371
of accidents involving uninsured vehicles
 xv

(d) Disbursement of Compensation 371

i. Minors 371
ii. Illiterates 372
iii. Semi-Literates 372
iv. Literates 372
v. Widows 373
(e) Withdrawal of Amount of Compensation in Certain Cases 373
i. Withdrawal in case of Personal Injury 373
ii. Withdrawal in Case of Emergency 373
(f) Disbursement of Compensation: Duties of Banks 373
i. No Loan or Advance Against the Fixed Deposit 373
of Amount of Compensation
ii. Bank must Affix Note on Fixed Deposit Receipt 374
(g) To Ensure Just and Fair Compensation in case of 374
out of Court Settlement
(h) To Ensure the Application of Principle of Structural 374
Compensation Formula
(i) Compensation in Hit and Run Cases 374
II. Functioning of Insurance Company 375
(a) Payment of Compensation as per Standard Formula 375
(b) Treatment of Injured of Motor Accident 375
(c) Lodging of Criminal Complaint for Fake / Forged 376
Driving Licence
(d) Mitigation of Fake Cases 376
III. Lok Adalats 376
IV. To Ensure Effective Functioning of Police Authorities 377
V. To Ensure Speedy and Effective Functioning of Claims 378
Tribunals
(a) To Treat Reports of Accident as Application for 378
 xvi

Compensation
(b) Determination of Compensation where no Dispute 378
by Insurer
(c) To Dispose of the Claim Application within a Time Frame 378
(d) Not to treat Motor Accident Cases as Regular Civil Matters 379
VI. Amendment to Existing Law 379
VII. Rectification of Second Schedule to Motor Vehicles 379
Act, 1988
VIII. Modification in Insurance Policies 380
IX. Limitation to File Claim for Compensation 381
X. Drunken Driving: Prevention and Control 381
XI. Road Safety Policy : Planning and Execution 381
(a) Regular Check up and Inspection of Vehicles 382
(b) Strict Procedure for Allotment of Driving Licence 382
(c) Prohibition of Entry of Animals on Public Road 382
(d) Supervision and Control of Speed of Vehicle 382
(e) Ban on Plying of Old Vehicles 382
(f) Road Safety Bureau 382
(g) Literacy Programs Regarding Rules of Road 383
(h) Reduction of Number of Vehicles on Road 384
(i) To encourage Public Transport system 384
(j) To encourage pooling 384
(k) Permits to Taxis or Autos should be Allotted to 384
Ply the same on Alternate Days
(l) To Discover Alternate of Road Transport 385
(m) To Establish Trauma and First Aid Centres 385
for Accident Victims
(n) Tracking Down Traffic Offenders 385
(o) Deterrent Punishment 385
 xvii

(p) Inference of Negligence by applying principle of 386

Res Ispa Loquitur
(q) Strict Application of Section 196 of Motor Vehicles 386
Act, 1988

Appendix – I Format of Application for Compensation 387 - 390

in Motor Accident
Appendix – II Glossary 391 - 398
Appendix –III Traffic Offences and Penalties in India 399 - 407

Appendix –IV Ten Tips for Road Safety 408 – 408

Appendix – V Traffic Police Signals 409 - 410

Bibliography 411 - 413

 i

ABBREVIATIONS

A or All. : Indian Law Report, Allahabad Series

AC. : Appeal Cases

ACJ : Accident Claims Journal

A.H.C.R. Agra : Agra High Court Reports

AI.Cr.R : All India Criminal Reports

A.I.R. (A. or All.) : All India Reporter, Allahabad

A.I.R. (B. or Bom.) : All India Reporter, Bombay

A.I.R. (C. or Cal) : All India Reporter, Calcutta

A.I.R. (L. or Lah) : All India Reporter, Lahore

A.I.R. (M. or Mad.) : All India Reporter, Madras

A.I.R. (N. or Nag.) : All India Reporter, Nagpur

A.I.R. (O.) : All India Reporter, Oudh

A.I.R. (P. or Pat.) : All India Reporter, Patna

A.I.R. (P.C.) : All India Reporter, Privy Council

A.I.R. (R. Rang.) : All India Reporter, Rangoon

A.I.R. (S.) : All India Reporter, Sindh

AL.J. : Allahabad Law Journal

ALR : All Law Reporter

Art. : Article

A.W.N. : Allahabad Weekly Notes

B.H.C. : Bombay High Court Reports

 ii

B.L.R. : Bengal Law Reports

Bom. : Indian Law Reports, Bombay Series

Bom. L.J. : Bombay Law Journal

Bom. L.R. : Bombay Law Reporter

C. or Cal. : Calcutta Law Journal

C.L.R. : Calcutta Law Reports

C.W.N. : Calcutta Weekly Notes

C.B. : Common Bench Reports

C.B.N.S. : Common Bench Reports, New Series

C.P. : Common Pleas

C.D. : Chancery Division

Cr. L.J. : Criminal Law Journal

C.P.D. : Common Pleas Division, Law Reports

East : East’s Reports, King’s Bench

Exch. : Exchequer

Ex. D. : Law Reports, Exchequer Division

I.A. : Indian Advocate

I.B.R. : Indian Bar Review

I.C. : Indian Cases

IJI : Indian Journal of International Law

I.L.R. : Indian Law Reports

I.P.J. : Indian Police Journal

J.C.P.S. : Journal of Constitutional and Parliamentary Studies

J.L.J. : Jaipur Law Journal

 iii

K.B. : Law Reports, King’s Bench Division

L.R.C.P. : Law Reporter Common Pleas

L.J. : Law Journal

L.Q.R. : Law Quarterly Reporter

L.R. : Law Reporter

L.W. : Law Weekly

L.R.H.L. : Law Reports, House of Lords

L.T. : Law Times Reports

M. L. J. : Madras Law Journal

M.L.R. : Modern Law Review

M.L.T. : Madras Law Times

M.W.N. : Madras Weekly Notes

M.I.A. : Moore’s Indian Appeals

Mys. L.J. : Mysore Law Journal

N.L.J. : Nagpur Law Journal

N.L.R. : Nagpur Law Reports

N.W.P.H.C.R. : North Western Province High Court Reports

O.C. : Oudh Cases

O.L.J. : Oudh Law Journal

O.W.N. : Oudh Weekly Notes

P.C. : Privy Council

P.L.J. : Patna Law Journal

P.L.T. : Patna Law Times

P.L.R. : Patna Law Reporter

 iv

P.R. : Punjab Record

Q.B. : Queen’s Bench

Q.B.D. : Law Reports, Queen’s Bench Division

Rat. Un. Cr.C : Rattan Lal’s Un-reported Criminal Cases

SA : Student Advocate

SCC : Supreme Court Cases

SCJ : Supreme Court Journal

SCN : Supreme Court Notes

SCR : Supreme Court Reporter

SCWR : Supreme Court Weekly Reporter

T.L.R. : Times Law Reports

W.L.R. : Weekly Law Reporter

Ibid : Same as immediately above

Id at : Same source as mentioned above but at different page

Infra. : Same as mentioned below

See : Cited authority constitutes basic source materials

supporting an opinion or conclusion.

See also : Cited authority develops a Question analogous to

discussion in the text.

Supra : Same as mentioned before or above, whenever an

authority has been fully cited in proceeding footnotes,

the supra is used.
v
 i

TABLE OF CASES
Page Nos.

A.C.G. Venancious v. Jagajothi, 2008 ACJ 1434 164

A.Krishna Patra V. Orissa State Electricity Board, 1998 47, 166
ACJ 155 (Ori.) DB
A.S. Manjunathaiah and another v. M.V. Nanjundaiah 226
and another, 1986 A.C.J. 295, Kar.
A.S. Sharma v. Union of India and another, 1995 A.C.J. 204
Guj.
Adamkhan Mohamed v. Ramesh Raya Naik, 1978 A.C.J. 231
409 Kar.
Ahmedabad Muncipal Corporation v. Narendrabhai 204
Lalbhai Shah, 2010 ACJ 15
Ali Khan v. Vijay Singh, 2007 ACJ 350 (Raj.) 48, 167
Allanoor v. Dilip Singh 1998 ACJ 136 (Raj.) 133
Allimuddin v. Emperor, AIR 1945 Nag.242 327
Amar Nath Goel v. Mayur Syntex , 1990 ACJ 93 (Del) 168
Amina Begum v. Ram Prakash, 1979, ACJ 449 All. 230
Amritlal v.Union of India, 2004 ACJ 1868 (Raj.). 122
Anandi Ravji Vats v. Oriental Insurance and others, 1988 266
A.C.J. 129, Bom.
Anantanarayanan J. in Re Natarajan allias Natesan, AIR, 335
1966 Mad. 357
Anchor Products Ltd. v. Hedge, 1969 A.C.J. 117, H.C. of 250
Australia.
Andhra Marine Exports (P) Ltd., Quilon and another v. 216
 ii

P.Radha Krishnan and others, 1984 A.C.J. Mad.

Andrews v. Director of Public Prosecution, (1937), 2 All 312
E.R. 552
Angel Travels v. K.C. Naik (1991) 1 Kar. LJ 37 3
Angoori Devi v. Megh Raj, 2003 ACJ 293 (Del) 197
Anirudh Prasad Ambasta v. State of Bihar, 1990 ACJ 238 102, 103
(Pat.) FB
Anitha v. Bangalore Water Supply and Sewerage Board, 202
2010 ACJ 27 (Kar) DB
Asa Singh and others v. State of Himachal Pradesh and 246
another, 1981 A.C.J. 313 H.P.
Ashok Kumar v. Surinder Kumar, 1999 ACJ 1119 (HP) 168
DB

B.

B. Govindarajulu Chetty v. M.L.A. Govindaraja 15, 177, 179

Mudaliar, 1966 ACJ 153 (Madras)
B.K. Singh v. Union of India, 2006 (4) ACC 242 (SC). 128
Babu Singh v. Champa Devi and others, 1974 A.C.J. 168 249
Mad.
Baldev Narain v. State of Bihar, AIR 1959 Pat. 442. 165
Bani Ram Das v. National Insurance Co. Ltd , 2008 ACJ 150
538
Banwari Lal Aggarwal v. Jeewan Kumar Badu, 2002(3) 222
ACC 160
Barkway v. S.Wales Transport Co., (1950) 1 All E.R. 292. 259
Barkway v. South Wales Transport Co. Ltd. (1948) All 200, 264, 275
E.R. 460.
 iii

Barkway v. South Wales Transport Co. Ltd., (1941) 3 All 246, 248
E.R. 322.
Basant Kaur v. Chatarpal Singh, 2003 ACJ 369 (MP) 214
Beni Bai v. Chhandilal, 2005 (2) ACJ 816 (MP) DB 235
Bhagwandas and another v. National Insurance Co. Ltd. 241
And another, 1990 A.C.J. 495, M.P.
Bhagwat Singh and another v. Ram Pyari Bai and others, 256
1991A.C.J. 1115, M.P.
Bhaswarlal v. Kabulsingh and others, 1989 ACJ 189, MP 234
Bhuwanweswar Sahu and others v. Sudhir Kumar and 210
others, 2003 A.C.J. 1247, Jhar.
Bipal Bashi Das v. Oriental Insurance Co. Ltd., 2009 (1) 51
ACC 288 (Gau.) DB.
Bisarti Bai and others v. Madhya Pradesh State Road 218
Transport Corporation and others, 1990 A.C.J. 103(M.P.)
Bishan Devi v. Sirbaksh Singh, 1979 ACJ 496 (SC) 179
Bollord v. North British Railway Co., (1925) S.C. 43, H.L. 259
Bourhill v. Young, (1943) A.C.92,: see also Supra n.16 p. 10
249 & 250
Burmi v. Tej Bhan, 1994(2) AJR 24 (P&H). 136
Busthi Kasim Sahab (Dead) LR’s v. Mysore State Road 271
Transport Corporation and others, 1991 A.C.J. 380, S.C.
Byran Pestonji Gariwala v. Union Bank of India, AIR 300
1991 SC 2234.

C.

C.K.Subramonia Iyer v. T. Kunhikuttan Nair, AIR, 1970 140

SC 376
 iv

Calcutta State Transport Corporation Calcutta v. Kamal 264

Prakash De, 1976 A.C.J. 183 S.C.
Chairman Thiruvallurar Transport Corporation v. 120
Consumer Protection Council, AIR, 1995 SC 1384
Chairman, The Trustee of Port of Madras v. Suganesan & 61
Co.,1996 ACJ 1224 (Mad.)
Chairman-cum-Managing Director, Bihar State Road 236
Transport Corporation v. Manju Bhushan Sinha and
others 1992 ACJ 1073, Pat.
Challis v. London & South Western Railway Company, 325
(1905) 2 KB 154.
Chandrakanti Das v. State of Orissa, 2010 (1) TAC 339 304
(Orissa)
Cheriyakutty Mammi v. UmmerKutty, 1996 ACJ 402 112
(Ker.) DB
Chinna Gangappa v. B.Sanjeeva Reddy, 1998 (1) TAC 268 62
AP
Chintaram v. State of Madhya Pradesh, 1986, A.C.J. 1043, 333
M.P.
Colhills Ltd. v. Devine, 1969, 2All E.R.53. 231

Davies v. Mann, (1842) 10 M & W 546 189

Dayanand v. Baijnath, 1991 ACJ 975 (Raj.) 133
Delhi Transport Corporation v. Neelam Deshwar, (2009) 1 224
ACJ 1 (Del.)
Deputy General Manager & Divisional Controller, 302
Karnataka State Road Transport Corporation v.
 v

Kamappa, 1993 ACJ 539 (Kar.)

Devi Singh v. Vikram Singh, 2008 ACJ 393 204
Dhanrajmal Govindram v. Shamji Kalidas & Co., AIR 166
1961 SC 1283
Dhanwanti v. Kulwant Singh, 1994 ACJ 708 (MP) DB 191
Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 117
Donoughue v. Stevenson, (1932), A.C.562 19
Dwarka Nath v. Income Tax Officer, Kanpur , AIR 1966 SC 81 149
Dwarka Prasad Jhunjhunwala and another v. Shushila 253
Devi and Others, 1983 A.C.J. 570, Pat.

Farida and others v. Abid and others, 1997 A.C.J. 322, 245
Raj.
Fenton v. Thorley & Co. Ltd., (1903) AC 448 (HL) 46
First National Bank Ltd. v. Seth Sant Lal, AIR 1959 Pun. 169
328
Francis Xavier Rodrigues v. State, 1997 Cri L.J., 1374 341
Bom.
G

G. Govindan v. New India Assurance Co. Ltd, AIR 1999 83

SC 1398
G.M. Orissa State Road Transport Corporation v. 272
Maheshwar Rout and others, 1983 A.C.J. 124 Ori.
Gajanad v. Virendra Singh, 2010 ACJ 145 195
Ganga Rama and another v. Kamalabai and others, 1979 263
A.C.J. 393 Kar.
 vi

Gangi v. Second Additional District Judge, Hamirpur, 301

2001 (1) TAC 519
Gayatari Devi and others v. Ramesh Chand and others, 218
2000 A.C.J. 898, (Raj.)
Geeta Bai and others v. Ram Singh and others, 1998 249
A.C.J. 1231 M.P.
General Assurance Society Limited v. Jayalakahmi 276
Ammalj , 1975 A.C.J. 159 Mad.
General Manager, Karnataka State Road Transport 304
Corporation v.Pandu ,1998 ACJ 1389(Karn).
General Manager, Kerala State Transport Corporation v. 141, 277
Susamma Thomas, 1994 ACJ 1(SC)
Gobalad Motor Services Limited and another v. R.M.K. 212, 247, 264
Veluswami and Others, A.I.R.1962 SS.C. 1 274, 276
Golan Jilani Khan v. The State, 1972, ACJ 431, Ori. 341
Gorli Bai v. Kanti Lal, 2002 (3) TAC 402 (MP) 223
Gothelal Chourasis and another v. Gajjansingh and 227
others , 1988 A.C.J. 120, M.P.
Gourikutty v. Raghavan, 2002 ACJ 1356(Ker.) DB 137
Gousipala Manemma v. Andhra Pradesh State Road 248
Transport Corporation and another, 2001 A.C.J. 901, A.P.
Gujarat State Road Transport Corporation v. Kamla Ben 187
Valjibhai Vora, 2002 ACJ 780
Gujarat State Road Transport Corporation v. Ramanbhai 178, 180
Prabhatbhai , 1987 ACJ 561 (SC)
Gujarat State Road Transport Corporation v. Union of 50
India, AIR 1988 Guj 13
Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin, 125
2001 ACJ 346 (Guj.)
 vii

Gulaba Ram v. Divisional Forest Officer, Bilaspur, H.P., 245

1991 A.C.J. 493, H.P.
Gurbax Singh v. Financial Commissioner, AIR 1991 SC 120
435

H. Paul v. Bank of India, 1998 ISJ (Banking) 550 (P&H) 147

DB
Hanuman Dass v. Usha Rani and another, 1978 A.C.J. 310 232
(P&H).
Harendra Nath Halder v. New India Assurance Co. Ltd, 164
2006 ACJ 975
Harihar Mohanty v. Union of India, 1996 (2) ACC 438 11
(Orissa).: see also Supra n.25
Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal, 107
(1962) 2 SCR 339
Haryana State v. Krishan Kumar, 2003 ACJ 549 (P&H) 214
Haynes v. Horwood (1955) 1 K.B. 146. 19
Hazara Singh v. P.L.Joseph and another, 1996 A.C.J. 277, 205
Del.
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964) 19
A.C.465.
Helen Ekka v. Anil Sharma, 2002 ACJ 1982 (MP) DB 233
Hemu Bai v. Satish , 2007 ACJ 1159 203, 233
Henderson v. Henry E.Jenkins Sons, 1970 ACJ 198 231, 265, 276
Himachal Road Transport Corporation and another v. 205
Vinod Bali, 1998 A.C.J. 1284 H.P.
Himachal Road Transport Corporation v. Baldev Kumar 153
 viii

Nayyer, 2007 ACJ 678

Himachal Road Transport Corporation v. Himi Devi and 243
others, 1981 A.C.J. 365, H.P.
Hindustan Aeronatics v. T. Venu and another, 1972 A.C.J. 254
266, Mys.
Hirachand and another v. Union of India, 1971, A.C.J.475 211

I.Palley Ram and another v. P.K.Janardhan and another, 238

1985 ACJ 812 Del.
Indari Lal v. Vijay Kumar , 2009 ACJ (MP) (DB) 195
Inderjit Kaur v. Somnath, 2007 ACJ 2865 (P&H) 198
Iswari Yatayat Cooperative Society Ltd. And another v. 264
Umroo Singh, 1976 A.C.J. 318 M.P.

J & K State Road Transport Corporation v. Presiding 262

Officer M.A.C.T. and others , 1987 A.C.J. 945, J & K.
Jagat Singh and other v. Sawal Singh, 1971 A.C.J. 66. 276
Jai Prakash v. National Insurance Company Ltd., (2010) 2 15, 283
SCC 607
Jai Singh v. Gashwal Motor Owners and Others, 1983 267
A.C.J. 397, All.
Jameskutty Jacob v. United India Insurance Co. Ltd, AIR 65
2006 SC 3690
Jamla Bi v. Gurmit Singh, 2003 ACJ 1035 (MP) 213
 ix

Jay Laxmi Saltworks (P) Ltd. v. State of Gujarat, 1994 (4) 7

SCC 1
Jayshree Narendra Kataria v. Somnath Damodhar Kale, 65
2010 (10) TAC 10 Bom.
Jhulan Rani Saha v. National Insurance Co. Ltd, AIR 2, 17
1994 Gau. 41
Jones v. Great Western, (1930) T.L.R. 47. 259

K. Nandakumar v. Managing Director, Thanthai Periyar 180

Transport Corporation Ltd , AIR 1996 SC 1217
K.L.Pasrija and others v. Oriental Fire and General Ins. 228
Co. Ltd. And Others, 1986 A.C.J.252 P & H .
K.P.Verma v. State of Bihar, 1990 ACJ 32 (Pat.) DB. 104
K.Perumal v. State , 1998 4 Crimes 382 18, 321
Kamla Devi v. Ram Kishan, 2009 (1) ACC 920 153
Kamla Verma v. Rajesh Kumar Singh, 2002 (2) ACC 279 198
(Jhar) DB
Kanai Manna v. United India Insurance Co .Ltd., 2009 93
ACJ 544 (Cal) DB
Kanti Lal v. Manohar Lal, 1994(1) ACC 413 (MP) 136
Kanwaljit singh and Others v. Santokh Singh and Others, 237
1983 ACJ 470 (P&H)
Kapil Kaur and others v. Union of India and others, 2000 209
A.C.J. 864, P & H.
Karnataka State Road Transport Corporation v. 299
Kumudavalli, 2004 (1) ACC 80 (Kar).
 x

Kartik Ram and another v. Chandra Gopal and others, 265

1998 A.C.J. 1118 M.P.
Keshab v. Nasiruddin, (1908) 13 CWN 501 316
Kishan Lal v. State of Jammu and Kashmir, (1994) 4 SCC 120
422
Kishori v. Chairman T.S. Coop. Society, AIR, 1988 (MP) 15
38
Koh Hung Keng v. Low Pee L.T. Co., 1967 A.C.J. 303 202
Kothai v. Oriental Insurance Co. Ltd ,2003 ACJ 991 214
(Mad.)
Krishana Bus Service Ltd., v. Smt. Mangli and another, 243, 246
1976 A.C.J. 183 S.C. 248, 274
Krishna Sehgal and others v. U.P. State Road Transport 206
Corporation and others, 1983 A.C.J. 619, All.
Kumaran and another v. Augustina, 1976 A.C.J.479 Ker. 229
Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.). 123, 155

Lai Kuit Seong v. Public Prosecutor, (1969), ACJ 341 332

Federal Court of Malaysia
Lakshmi Soren v. New India Assurance Co. Ltd., 2006 151
ACJ 551 (Cal) DB
Lalchandhari Shah v. Raj Nath Shah, 2005 (1) ACJ 695 93
(MP) DB
Laurie v. Regian Building Co., Ltd. (1942) 1 K.B. 152. 200, 275
Laxmiben Pravinchandra Barot v. Thakore Prabatji 194
Babuji, AIR 2010 (NOC) 5 Guj.
Life Insurance Corporation of India v. State of Rajasthan, 301, 309
 xi

2007 (1) ACC 899 (Raj.)

Lilaben Udesing Gohal v. Oriental Insurance Co. Ltd., 276
(1996) ACJ 673.

M P State Road Transport Corporation v. Bhoj Singh , 169

1992 ACJ 1151 (MP)
M S Grewal v. Deep Chand Sood , 2001 ACJ 1719 187
M.C. Mehta v. Union of India, AIR 1987 SC 1086 173, 175, 288
M.K.Kunhimohammad v. P.A.Ahmedkutty, 1987 (4) SCC 27,161, 287
284
M.V.Jayadevappa v. Oriental Fire and General Insurance 67
Co. Ltd.,2005 ACJ (3) 1801 (SC)
M/s Automobile Transport (Rajasthan) Private Ltd., and 274
another v. Dewalal and others, 1977 A.C.J. 150, Raj.
Madan Lal v. Chimman Singh, 1991 (1) ACC 265 (MP) 132
Madhya Pradesh State Road Transport Corporation v. 244
Anjani Chaturvedi and Others, 1993 A.C.J. 363, M.P.
Madhya Pradesh State Road Transport Corporation v. 49
Bhoj Singh, 1992 ACJ 1151 (MP)
Mahendra Pal Singh and another v. Prakash Chand 244
Goyal and others, 1987 A.C.J. 677, M.P.
Maitri Koley v. New India Assurance Co. Ltd., 2004 ACJ 94
46 (SC)
Malikdhinar English Medium School v. A.Babudeen, 190
2006 ACJ 1711 (Mad.) DB
Mallamma v. Mahaboob Ali, AIR 2010 (NOC) 10 (Karn.) 138
 xii

Mallika v. S.V. Alagarsami, 1982 ACJ 272 (Madras) 181

Manager, New India Assurance Co. Ltd v. Chintnala@ 133
Anagaiah Narasimha, 2002 ACJ 1524 (AP) DB
Managing Director, Tamil Nadu State Transport 9, 186
Corporation v. Ayyammal, 2007 ACJ 66 (Mad.) DB
Manful v. Mehmood, 2005 (1) ACC 765 142
Mangal and others v. Subhadrabai and another, 1981 200
A.C.J. 156 Kar.
Mangilal v. Chairman, Rajasthan State Road Transport 215
Corporation, 2000(1) ACC 509 (Raj.)
Mangilal v. State of Madhya Pradesh, AIR, 2004 SC 1280 322
Mangla Jat v. Raju, 2001(2) ACC 195 (Raj.) 137
Maniben S. Pandya v. Shashikant P. Shrigalor, 2005(1) 214
ACJ 592 (Guj.) DB
Maniklal Dubey v. Mohd. Ismail, 1999 (3) Civil LJ 329 51
Manju Gupta v. National Insurance Co. Ltd, 1994 ACJ 298
1036 (All)
Mantoo Sarkar v. Oriental Insurance Co. Ltd, 2009 ACJ 123
564
Mathew Joseph v. Johny Sunny, 1995 ACJ 1183 (Ker.) 46
Maya Devi v. Kartav Bus Service Ltd. and Others, 1987 256
A.C.J. 145, P & H.
Meena v. M.P. State Road Transport Corporation, 2006 203
ACJ 2383 (MP) DB
Minu B Mehta v. Balakrishna Ramachandra Nayar and 101, 182, 248
another, 1976 A.C.J. 118 S.C.
Mishra v. Motor Accident Claims Tribunal, 2006(1) ACC 140
362.
Mishri Bai v. Munna, 2007 (1) ACC 911 (MP) DB 220
 xiii

Mita Gupta and others v. Oriental Insurance Co. Ltd. 219

And others, 2002 A.C.J. 393 Cal.
Mithu Rani Sadar v. United India Insurance Co. Ltd., 220
2006 ACJ 2868 (Cal.) DB
Mohammad Kasim Abdulgani Mesra v. State of 336
Karnataka, 1984, ACJ. 480 Kar.
Mohammed Aynuddin alias M alias Miyam v. State of 343
Andhra Pradesh, 2001, ACJ 13 SC
Mohammed Iyub v. Muzaheed Pasha, 2010 (1) TAC 313 90
(Del.)
Mohd. Riyazur Rehman Siddiqui v. Deputy Director of 106, 154
Health Services, 2009 (3) ACC 300 (Bom) FB
Mohd. Yaqub v. Union of India, AIR 1971 Del 45 169
Moosola Rama Rao v. District Collector, Srikakalum, 87
2002 ACJ 1085 (AP)
Mst. Anachi v. Ram Chandra, 2002 (1) AJR 643 (Raj.) 302
Mt. Prag Kaur v. Devi Dutt, 1998(1) ACC 313 (P&H). 139
Muljibhai Ajrambhai Harijan v. United India Insurance 276
Co. Ltd., 1983 ACJ 57 (Guj.).
Municipal Corporation of Greater Bombay v. Laxman 187, 189, 288
Iyer, AIR 2003 SC 4182, 2004 ACJ 53
Muthu v. State, 1990, ACJ. 530 Mad. 329, 331
Mysore State Road Transport Corporation v. Albert Dias, 10
AIR, 1973 (Mysore) 240.

N. Ramachandran v. Meera, AIR 2010 (NOC) 12 193

N.K.K. Siva Baghyam and others v. P.V. Kalliani Amma 216
 xiv

and others, 1991 A.C.J. 283( Ker.)

N.R. Patel & Co. v. T. Aparna, 2006 ACJ 2719 195
N.Tantry v. Shwaleela, 2002 (2) TAC 44 (Karn.) 223
Nageswar Shri Krishna Choube v. The State of 338
Maharashtra, 1973, ACJ.108 SC
Nand Lal v. State, 1980, A.C.J. 423, Delhi 346
National Insurance Co. Ltd v. Chandra Prava Barman, 126
2001(2) TAC 698 (Guj.) DB.
National Insurance Co. Ltd. v. Akhilesh Dwivedi, 2007 (4) 202
ACC 312 (MP) DB
National Insurance Co. Ltd. v. Anjana Shyami, 2001 (2) 143
AJR 523
National Insurance Co. Ltd. v. Balbir Kaur, 2001 ACJ 555 145
(P&H) DB.
National Insurance Co. Ltd. v. Honnappa, 2008 (3) ACC 56, 163
726 (Karn) DB
National Insurance Co. Ltd. v. Indu Saraswat, 2009 ACJ 153
2413 (Raj.).
National Insurance Co. Ltd. v. Indu Sharma, 2000 ACJ 111
808 (P&H)
National Insurance Co. Ltd. v. Khushboo, 2009 (3) ACC 60
460 (Pat.)
National Insurance Co. Ltd. v. Malathi C. Saliam, 2005 161
(2) ACC 414
National Insurance Co. Ltd. v. Mossamat Das Choudhary, 303
1998 (2) ACC 111 (Pat)
National Insurance Co. Ltd. v. Murti Devi, 2002 (1) TAC 145
470 (P&H) DB.
National Insurance Co. Ltd. v. Phool Singh, 2008 ACJ 58 60
 xv

National Insurance Co. Ltd. v. Puja Roller Flour Mills (P) 65

Ltd, 2007 (1) ACC 219
National Insurance Co. Ltd. v. Ramilaben Chinubhai 203
Parmar , 2007 ACJ 1565 (Guj) DB
National Insurance Co. Ltd. v. Sahiba Khatun and others, 197
2000 A.C.J. 168 M.P.
National Insurance Co. Ltd. v. Santro Devi and Others, 281
AIR 1998 SC 1485.
National Insurance Co. Ltd. v. Srimatya Basanti Mondal, 223
2002(3) TAC 453 (Cal.) DB
National Insurance Co. Ltd. v. Vijay Kumar Sharma, 297
2009 ACJ 403 (JHAR).
National Insurance Co. Ltd. v. William Jenifar Ajitha 61
2009 ACJ 1042
Naugapa Chinsya ans another v. Bhogoban Sahoo and 227
another, 1988 A.C.J. 685, Ori.
Nek Ram and others v. Punjab Roadways and others, 217
1984 A.C.J. 396 (P & H.)
New Asiatic Insurance Co. v. Pessumal Dhanamal 176
Aswami, (1964) 2 SCJ 428
New Asiatic Transport (P) Co. Ltd. v. Manohar Lal, 103
(1966) 68 Punj. LR (Del.) 51.
New India Assurance Co. Ltd v. Ganga Devi, 2006 ACJ 108
2857 (Jhar.) DB
New India Assurance Co. Ltd v. Mehebubanbibi, 2003 (2) 55, 129, 162
TAC 639 (Guj.) DB
New India Assurance Co. Ltd v. Parameswaran , 2006 163
ACJ 1176
New India Assurance Co. Ltd. v Raju Markose, 1989 ACJ 180
 xvi

643 (Kerala)
New India Assurance Co. Ltd. v. Bhavani Nanji 153
Pachanbhai Patel, 2007 ACJ 2067
New India Assurance Co. Ltd. v. Bimla, 2001 ACJ 388 134
(P&H).
New India Assurance Co. Ltd. v. Boda Hari Singh, 302
2000ACJ 1580 (AP)
New India Assurance Co. Ltd. v. Debajani Sahu and 207
others, 2000 A.C.J. 1512 Ori.
New India Assurance Co. Ltd. v. G. Lakshmi , 1999 ACJ 131
1068 (AP)
New India Assurance Co. Ltd. v. Meenal And Ors, 2 171
(1993) ACC 443
New India Assurance Co. Ltd. v. Molia Devi, 1969 ACJ 103
164 (MP) DB
New India Assurance Co. Ltd. v. Ponnamma Thomas, 304
2009 ACJ 1331(Ker.)
New India Assurance Co. Ltd v. Rajendra Prasad Bhatt, 90, 128
2002 ACJ 1762 (MP)
New India Assurance Co. Ltd. v. Santra Devi, 2007 ACJ 78
2273 (P&H) DB.
New India Assurance Co. Ltd. v. Saroj Tripathi, 2008 ACJ 196
1274
New India Assurance Co. Ltd. v. Sheeja, 2007 ACJ 338 51
(Ker.) DB
New India Assurance Co. Ltd. v. Shymo Chauhan, 2006 163, 193
ACJ 923
New India Assurance Co. Ltd. v. Takhuben Rajhabhai, 174
2008 ACJ 989 (Guj.) DB
 xvii

New India Assurance Co. Ltd. v. Vibhuti, 2004 ACJ 769 79

(Karn.) DB.
New India Assurance Co. v. Rukiyabai, 1985 (2) ACC 499 119
New India Assurance Company v. Kamla,2001(1) P.L.R. 280
831
New Indian Assurance Co. Ltd v. Rattan Devi, 2007 ACJ 203
1817
Nishet v. Rayne and Burn, (1910) 1 KB 689 325

Oriental Fire & General Insurance Co. v. Kamal Kamini, 99

A. I . R. 1973 (Orissa) 33
Oriental Fire and General insurance Co. Ltd. v. Suman 298
Navnath Rajguru and Others, 1985 A.C.J. 243, Bom.
Oriental Insurance C. Ltd. v. Arati Mishra, AIR, 2010 79
(NOC) 17
Oriental Insurance Co. Ltd v. Parveen Juneja, 2003 ACJ 195
378
Oriental Insurance Co. Ltd. v. Badri Ram, 2002(1) TAC 136
194 (Raj.)
Oriental Insurance Co. Ltd. v. Dongkholam, 2007 ACJ 46
1973 (Gau.)
Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor , 149
2000 ACJ 558 (Ker.)
Oriental Insurance Co. Ltd. v. Meena Variyal, AIR 2007 193
SC 1609
Oriental Insurance Co. Ltd. v. Nanak Chand, 2009 ACJ 191
 xviii

2240(HP)
Oriental Insurance Co. Ltd. v. Ram Babu, 2007 ACJ 1406 136
(All.)
Oriental Insurance Co. Ltd. v. Rooplal Singh, 2000 ACJ 128
502 (Pat.)
Oriental Insurance Co. Ltd. v. Sanjay Kumar, 2007 ACJ 134
222 (P&H).
Oriental Insurance Co. Ltd. v. Ullasini N. Kamble, 2002 222
(1) AJR 301 (Kar.)DB
Oriental Insurance Company Ltd. v. R. Mani, 2000 ACJ 145
247

P. Mahalakshmi v. I. Babu Rajendra Prasad and another 234

case, 1988 ACJ 88, AP
P. Rathinam Nagbhusan Patnik v. Union of India, AIR 321
1994 SC 1844
P.Dappammal (since deceased) and Others v. 238
International Space Research Organization and another,
1986 ACJ 812 Ker.
Padma Srinivasan v. Premier Insurance Co. Ltd., AIR 93
1982 SC 836
Padmabai and others v. Madhya Pradesh State Road 210
Transport Corporation and another, 2001 A.C.J.785, M.P.
Padmanabhan Nair v. Narayaniutty, 1988 ACJ 58 (Ker.) 50
DB.
Padminbai Ashok Yadle v. Mannan Ismail Shaikh,2003 127
 xix

ACJ 247 (Bom.).

Parkash Kaur and Others v. Municipal Corporation of 239
Delhi and Others, 1985 ACJ 639 Del.
Parvati Bai v. Bhagwat Rambhau Shelke, 2004 AACJ 192
1647 (Bom.)
Penu v. State, S. Acharya, 1980, ACJ.294 Ori. 345
Pepsu Road Transport Corp. v. Kulwant Kaur, 2009 ACJ 56, 163
1329
Perumal & others v. G. Ellesamy and another ,1974 A.C.J. 269
182,Mad.
Philippose Cherian and another v. T.A.Edward Lobo and 236
another , 1991 ACJ 634, Ker.
Pitabas Panda v. State, 1972,ACJ. 432 Ori. 342
Poonam Verma v. Ashwini Patel & others, AIR 1996 SC 187
2111
Prakash Vati and others v. Sulakhan Singh alias Lakhs 199
and others, 1999 A.C.J. 521, P & H.
Premaeswari Das and Others v. Saman Devi and 212
Anothers, A.I.R. 1960 314
Premlata Shukla v. Sitaram Rai , 2006 ACJ 1081 (MP) DB 216
Puspa Bai v. Ranjit G.P. 1971 A.C.J. 343 and 346. 202

R v. Spuuge, (1961) 2 All. E.R. 688. 270

R.J. Foujdar Bus Service v. Ganpat Singh, 2007 ACJ 1591 48, 168
(MP) DB
Rachna v. Himachal Road Transport Corporation 196
 xx

through its General Manager, Shimla and others,1990

A.C.J. 840 H.P.
Raghib Nasim and another v. Naseem Ahmad and other, 212
1986 A.C.J. 405 All.
Rajasthan State Co-op Diary Federation v. Brij Mohan 221
Lal and Others, 1990 A.C.J.118, Raj.
Rajasthan State Road Transport Corporation v. Nand 227
Kishore and Others, 2002 A.C.J. 1564.
Rajasthan State Road Transport Corporation v. Siraj 93
Ahmed, 2006 ACJ 526 (Raj.)
Rajasthan State Road Transport Corporation, Jaipur v. 273
Narain Shankar and others, 1980 A.C.J. 411, S.C.
Ram Chander v. Naresh Kumar, 2000 ACJ 727 (P&H) DB 83
Ram Dulare Shukla v. Madhya Pradesh State Road 270
Transport Corporation and others, 1970 A.C.J. 120 M.P.
Ram Singh v. Anil, 2009 ACJ 73 (MP) DB 56, 163
Ramathal v. Kerala State Road Transport Corporation 225
and another, 1986 A.C.J. 186, Ker.
Ramdev Singh V. Chudasma v. Hansrajbhai V. Kodala 46, 92, 112
1999 ACJ 1129(Guj.) DB
Ramlayak Ram v. Umrawati Devi , 2002 ACJ 1146 (HP) 233
DB
Ramwati v. Oriental Insurance Co. Ltd., 2005(2) ACC 492 9
(All) DB
Rani Devi @ Usha Rani v. Devilal, 2009 ACJ 858 (Raj.) 171, 287
Ranju Rani v. Branch Manager New India Assurance Co. 324
Ltd., 2003 ACJ 1588 (Pat.)
Ranu Bala Paul v. Bani Chakraborty, 1999 ACJ 634 131
(Gauhati)
 xxi

Ratnam v. Emperor, AIR, 1935 Mad. 209 339

Rattan Singh v. State of Punjab, 1939 1 M.L.J. 660 347
Ravi Kumar v. Manager, Indian Textile Co-operatives 236
Ltd., 2006(1) ACC 184 (Karn,) DB
Ravinder Kaur v. Haryana State, 2001 ACJ 635 (P&H) 215
Revathi Rajeskaran v. Vijaykumaran, 2002 ACJ 1925 215, 233
(Mad.)
Rishi Prusti v. Orissa State Electricity Board, 1999 ACJ 166
440
Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 324
(SC)
Rohtan Singh v. Chander Kala, 2010 (1) TAC 140 (P&H) 194
Roopa Bai v. Ramayan Vikasdhr Diwan, AIR 2010 (NOC) 204
3 (Chhat) DB
Russell v. London & South Western Rly. Co., 230
24(T.L.R.)548
Rylands v. Fletcher(1868) LR 3 HL 330: (1861-73)AII E 1. 6, 174,177

S.K. Bhatia and another v. Jaspal Singh Mann and 250

another, 1990 A.C.J. 13, H.P.
S.Kesar Singh v. Balbir Singh, 2004 (3) TAC 241 (J & K) 301
Sajjan Singh v. State of Punjab, 1986 ACJ. 88 P & H. 340
Sakamma v. Divisional Commissioner, 1994 ACJ 1266 300
(Kar).
Sakharibal Hasanali Makarsi and others v. Girish Kumar 197
Rupchand Gadia and others, 1997 A.C.J. 95 Bom.
 xxii

Sankardan Das v. Grid Corporation of Orissa Ltd. 1998 47, 166

ACJ 1420 (Ori.) DB
Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB 115, 155
Sapna v. Oriental Insurance Co. Ltd.,2008 ACJ 490 93
Sarbati v. Anil Kumar, 2006 ACJ 2532 (P&H). 124
Sarda Devi v. Birbal Ram, 2009 ACJ 2780 (Raj) 48, 167
Sardar Mohan Singh Bedi v. Mano Maya, 1972 A.C.J. 174, 255
Patna.
Sarla Verma v. Delhi Transport Corporation ,2009 (6) 286, 380
SCC 121
Sarwar Khan v. State of Andhra Pradesh, AIR, 1968, AP 347
290
Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani, 55, 162
2005 (1) ACJ 255 (Bom.) DB
Satyabadi Nayak v. Dameli Khilla, 1991 ACJ 211 (Guj.) 105
DB
Savara Pydi Raju v. T. Venkata Rao, 2007 ACJ 2245 (AP). 124
Scott v. London and St. Katherine Docks, (1865) 3 H & C. 259
598.
Selvarajamani v. National Insurance Co., 2003 ACJ 1152 164
Sewassam Alias Sewan v. Nanhe Khan alias Asgar Begand 260
others, 1987 A.C.J. 354, M.P.
Shaju v. Babu, 2008 ACJ 1228 (Ker.) DB. 191
Shakila Khader v. Nausher Gama, 1975 ACJ. 363 S.C. 320, 339
Shambhu Nath Mehra v. State of Ajmir, AIR, 1956, SC 337
404
Shamma v. Kartar Singh, 2008 ACJ 892 (MP) DB 48, 167
Shankarayya v. United India Insurance Co. Ltd., 1998 325
ACJ 513 (SC)
 xxiii

Shantaben Gordhandas Bhatt v. Gujarat State Road 92

Transport Corporation, 2002 ACJ 1714
Shashibala v. Rajender Sharma, 2008 ACJ 2744 204
Sheela Kumari Singh v. G.S.Atwal & Co. (Engg) Pvt. Ltd, 188
2006 ACJ 980 (Jhar.) DB
Shivaputra Mahadevappa Hadapad v. State of Mysore, 335
1970 A.C.J. 160 Mys.
Shivlal and Others v. Rukmabai and Others, 1987 A.C.J. 240
341, M.P.
Shyam Sunder and others v. The State of Rajasthan, 1974 259
A.C.J. 296 S.C.
Siddarmappa Patil v. President, Bhartiya Vidya 126
Vardhaka Sangha,1997 ACJ 713 (Karn.).
Sindhu v. Sekar, 2009 (1) ACC 828 (Mad.) DB 194
Sitaram Akinchan v. Rajesh Sharma, 2007 (4) ACC 604 165
Smith v. Salwyn, (1954) 3 KB 98. 316
Sohan Lal Passi v. P.Sesh Reddy, 1996 (5) SCC 21 160
Sohan Singh v. National Insurance Co. Ltd., 2009 ACJ 193
2869
Sombathina Ramu v. T. Shrinivasulu, 2009 ACJ 187 (AP) 188
Sripal v. Rajendra Prasad, 1999 ACJ 92 (All.). 127
State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC) 125
State of Karnataka v. Peter Frank, 2001 (1) ACC 704 215
State of Karnataka v. Satish, 1999, ACJ 1378, SC. 327
State of Madhya Pradesh and another v. Diwanchandra 222
Gupta and Others, 1989 A.C.J. 320, M.P.
State of Madhya Pradesh through Collector, Jhabua and 191, 268
another v. Ashadevi and others, 1988 A.C.J. 846, M.P.
State of Madhya Pradesh v. Pehlajrai Dwarkada, 1976 119
 xxiv

ACJ 222 (MP) DB

State of Mysore and another v. Fatima Manwali 231
Fernandis and another, 1979A.C.J. 323 Kar.
State of Orissa and another v. Nalini Kumari Patnaik and 257
others, 1989 A.C.J. 126, Ori.
State of Punjab & another v. Jalour Singh, ILC 2008 SC 297, 303
MAC – JAN-6, 2008 ACJ 2874 SC
State of Punjab v. Harbhajun Lai Kochhas and others, 246,247
1980 A.C.J. 437 H.P.
State of Rajasthan and others v. Lakshmi Sharma and 268
others, 1992 A.C.J. 895, Raj.
State of Rajasthan v. Ram Prasad, 2001 ACJ 647 SC 49, 168
State of Rajasthan v. Vidyawati, AIR 1962 SC 933 184
Sudhir Kumar Rana v. Surinder Singh, 2008 ACJ 393 190
(MP) FB
Sulochana v. Karnataka State Road Transport 167
Corporation, 2005(2)b ACJ 849
Sumati Debinath v. Sunil Kumar Sen and another, 1994 258
A.C.J. 734, Gau.
Sushil Kumar Jaiswal v. Bank of India , 1997 Bank LJ 37 148
Sushila Devi v. Ibrahim , 1974 A.C.J. 150. 274
Sushma Mehta v. Central Provinces Transport Services 102
Ltd, AIR 1964 (MP) 133 (DB)
Swaranlata v. N.T.I. Pvt. Ltd., A I R 1974 (Gauhati), 31 99
Syad Akabar v. State of Karnataka, (1980) A.C.J. 38, S.C. 230, 247, 248
AIR (1979) S.C. 1848 326, 334

T
 xxv

Taj Hussain v. Misru Khan, 2006 (1) ACC 30 (Raj.) 190

Talasila Sandhya v. Andhra Pradesh State Road 228
Transport Corporation and another, 1999 A.C.J. 629 A.P.
Tamil Nadu State Transport Corporation Ltd. v. 305
A.T.Narendiran, 2010 ACJ 77 (Mad)
Threeti v. M.A. C.T 1996 ACJ 609 (Kerala) 16
Tilak Singh v. Shahi Bijulwan and Others, 1999 A.C.J. 251
661, H.P.
Triveni Prasad and others v. Indrapal Kachhi and others, 243
1997 A.C.J. 269, M.P.

U.P. State Road Transport Corporation v. Shanti Devi, 224

2007 ACJ 2750
U.P. State Road Transport Corporation v. Trilok 92, 286, 379
Chandra, (1996) 4 SCC 362
U.P.State Road Transport Corporation v. Rajani, 2007 9
ACJ 1771
U.P.State Road Transport Corportaion v. Motor Accident 139
Claims Tribunal, AIR 2006 NOC 198
Udayshanker Bhai v. Heirs and Legal Representatives of 224
the deceased Ala Rama and Others, 1988 A.C.J. 161, Guj.
Union Carbide Corporation v. Union of India, (1991) 4 277
SCC 584
Union of India the Secretary, Ministry of Defence, New 207
Delhi v. Sudhir Khanna and others, 1990 A.C.J. 215, H.P.
 xxvi

Union of India v. Bhagwati Prasad, AIR 2002 SC 1301. 122

Union of India v. Satish Kumar Patel, AIR 2001 MP 41 50, 122
United India Fire and General Insurance Co. Ltd. v. 201
Maddi Suseela and others, 1979 A.C.J. 110 A.P.
United India Fire and General Insurance Co. Ltd. v. 299
Pallapu Sridevi, 1994 (1) ACC 110 (AP).
United India Insurance Co, Ltd. v. Somari Devi, 1999 ACJ 46
864(Pat.)
United India Insurance Co. Ltd v. Kashi Ram, 2004 (1) 324
ACC 527 (Del.)
United India Insurance Co. Ltd. v. B. Hemavati, 2001 ACJ 134
749 (Cal.) DB
United India Insurance Co. Ltd. v. Bodali Bai, 2009 ACJ 78
2213 (Chhat.).
United India Insurance Co. Ltd. v. Dhanlaxmiben 152
Satishbhai Bhagat, 2008 ACJ 966 (Guj.) DB
United India Insurance Co. Ltd. v. Economic Roadways, 48, 167
2002 ACJ 2024 (Mad.)
United India Insurance Co. Ltd. v. Hussain Sab, AIR 2006 66
(NOC) 437 (Kar.)
United India Insurance Co. Ltd. v. Kadviben Udabhai 59
Rathwa, 2006 ACJ 2019
United India Insurance Co. Ltd. v. Kantabai , 1991 ACJ 181
22 (BOM.) DB
United India Insurance Co. Ltd. v. Mehtab Bai, AIR 1999 92
Raj. 293
United India Insurance Co. Ltd. v. Mohammed, 2000 ACJ 305
158
United India Insurance Co. Ltd. v. Patramana, 1996 ACJ 305
 xxvii

427 (Kar)
United India Insurance Co. Ltd. v. Patricia Jean 139
Mahajan, AIR 2002 SC 2616
United India Insurance Co. Ltd. v. Shabbir M Attarwala, 303
2007 ACJ 2860 (Bom)
United India Insurance Co. Ltd. v. Surinder, 2006 ACJ 79
1285 (P&H.) DB.
United India Insurance Co. v. Shaik Saibaqtualla, 1992 133
ACJ 858 (AP) DB
United India Insurance Co.Ltd. v. Kishorilal, 2005 (2) 164
ACJ 1399
United India Insurance Company Ltd. v. Pritpal Singh 42
(1996-2) 113 Punj. L.R. 49
Urmila Devi v. Sukhdev Singh, 2002(1) ACC 157 (MP) 137
Usha v. Tamil Nadu State Road Transport Corp. Ltd., 151
2009 ACJ 2424 (Mad.)

V. Narayana Reddy v. Syad Azgar Bareed, 1981 A.C.J. 246

307 Kar.
Varalakshmi Sundar v. Meeran, 1981 ACJ 50 (Mad.) 105
Varkeychan v. Thomman, 1979 ACJ 319 (Ker.), 46, 324
Vasathy G.Kamath v. Keral State Road transport 229
Corporation, 1981 A.C.J.353 Ker.
Vatticherukuru Village Panchayat v. Nori Venkataraman 119
Deehsithulu, 1991 (5) JT 140
Veeran v. Krishnamoorthy, AIR 1966 (Ker.) 172. 10
 xxviii

Venkatachalam v. Sundarambal Ammal and another, 252

1983 A.C.J. 513, Mad.
Vikram Singh v. Manvendra Singh, 2007 ACJ 950 194

Walmikrao Jayaram Kajale v. Uttam Buvaji Raut , 2004 151

ACJ 2009
Wing v. London General Omnibus Co. (1909) 2 KB 652 177, 179

Yakan v. The State of Madras, 1968, A.C.J. 216 212

Zoological Park v. S. Kaynana Raman, 2008 ACJ 133 194

 1

CHAPTER: I

INTRODUCTORY
 2

CHAPTER: I

INTRODUCTORY

A. General

After world war second, we find that there is fast increase in the number of
commercial as well as personal vehicles in the country. There is gradual
improvement in the automotive technologies also. It is also noticed that there is
greater flow of passengers and freight with the least impediments. Due to
increase in the number of vehicles and the frequency of their movement, the road
accidents have also gone up, thereby, increasing the number of victims of road
accidents. Sometimes, it is found that whole of the family has died in the road
accident leaving behind the kids only. On the other hand, it is also reported that
due to road accidents people have become permanently disable, causing a
permanent loss to their earnings, sometimes he is not in position to do any work.

The philosophy behind award of compensation as far as pain and suffering

proceeds on the footing that even though no monetary loss is occasioned because
of this situation, that it is because of the psychological aspect which the law
takes cognizance of and which has been dealt in detail in the Jhulan Rani
Saha’s case1 where both the English and Indian law have been analyzed in some
detail. It was laid down by the court that it is obliged to compensate the party to
whom such pain and suffering may have been caused, to the extent that is
necessary.2

1
Jhulan Rani Saha v. National Insurance Co. Ltd, AIR 1994 Gau. 41
2
P.K Sarkar, The Motor Vehicles Act, 1988, (2004), p.10
 3

Normally in India the award under the head “Pain and Suffering” is only for the
injured though in cases of death of a young child in accident, court may award
compensation to the parents for shock and loss of life of their child, also as to the
consequent “Pain and Suffering”. The Karnataka High Court has laid down that
the bonds that exist between the claimant and the deceased, if they happen to be
close relatives or a spouse, cannot be ignored while assessing the damages under
the head “Pain and Suffering”. The immense mental trauma which a near relative
undergoes when shocking, distressing news is received that the person has
suddenly been killed and what follows thereafter even though during a short
period of time, is pain and suffering of an immensely high gravity which
certainly qualifies for award of Compensation3.

Newspapers in every metro city in India give a daily report of people killed and
injured in traffic accidents. As a response to this heightened awareness, NGOs
have come up in many cities to deal with this increasing urban epidemic of death
and destruction. Police departments also hold road safety weeks, painting
competitions, zero tolerance drives and demand greater powers to fine and
punish. This has gone on for the last two decades. However, the killing and the
maiming continue unabated4.

A look at some of the statistics on road safety presents a very grim picture
worldwide and especially in developing countries like India. Road fatalities now
leads the list of accidental deaths in India much more than any other such as by
drowning, fire, rail or air mishaps. The magnitude of road accidents in India is
increasing at an alarming rate. About 60,000 people are killed every year in India
and top the world in the number of road fatalities. National level of fatalities per
kilometer is 0.0255.

3
Angel Travels v. K.C. Naik (1991) 1 Kar. LJ 37
4
Accessed on Website, www.indiandrivingschool.com on 18.10.2010 at 2.35 p.m.
5
Ibid.
 4

The Motor Vehicle Act, 1988 was passed with a view to regulate the law relating
to matters of motor vehicles, more specifically it consolidate and amends the law
relating to motor vehicles. This Act has been amended by the Parliament from
time to time in order to take into account the frequent improvements in the road
transport technology, pattern of passengers and freight movement, development
of road network in the country and particularly the improve techniques in the
motor vehicles management.

B. Statement of the Problem

Accident connotes a casualty caused by neglect of duty to others. The causa

causans of an accident is not mens rea, but remissness. The attributes like
animus, motive, intention etc., all tending somewhat to a future consequence are
simply misfit to explain the phenomenon of accident, which very often speaks
for itself, and is covered by the maxim res ipsa loquitur. The word approximately
representing its formal cause finds its legal nomenclature in the term negligence.
It is this element of negligence which distinguishes an accident simpliciter from
the anathema of inevitable accident, conceived in common parlance as act of
God, a stock phrase often deployed as defence to counter a claim for
compensation on account of an accident6.

In the scriptural sense, all that happens is ordained by God, as the Bhagwad Gita
proclaims: “All actions are performed by the modes of nature but the fool with
his mind perverted by ego arrogates himself as the doer”.

Floods, quakes, hailstorms, lightning, thunder, hurricanes and other catastrophes,

are occurrences having no human involvement, denoting the class of events
covered by the expression act of God, but when an act or omission resulting in to

6
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.2
 5

loss, damage or injury to another is attributable to human agency, the doer is

indicted not because he intended to bring about some disastrous result but
because he was found failing in his duty to take care. Each doer is presumed to
be conscious of the consequences of his act because they are inherent in the
nature of the act and the mode in which it is handled, the duty is cast on the doer
to the consequences likely to ensure from his doing the act in one or the other
way. It is this lack of foresight which amounts to negligence, stemming from
breach of the duty to take care7.

India has the dubious distinction of being one of the countries with the highest
number of road accidents and the longest response time in securing first aid and
medical treatment. The terrible figures of road accidents yield a cart-load of case
law, which, of course, is not an elegy on the dead but real tribute on this
threatening piece of legislation. Each case however, bears its own imprint which
cannot be universalized. The paradoxes involved in each individual motor
accident case had posed four confounding situations, namely:

1. A section of accident victims doubly unfortunate, first in getting involved

in an accident yet not getting compensation.

2. Widespread practice of using goods vehicles for passenger traffic.

3. Procedural delays in settlement of claims

4. Duty of courts to award compensation and secure it to the advantage of

those for whom it was meant8.

Negligence, in its modern nuances, including contributory and composite

negligence, concerns the tempo of social life surrounding human reciprocity. It is

7
Ibid
8
Ibid. preface to 2nd edition.
 6

a pre-condition of any civil society that no one shall conduct his affairs in a way
so as to result in loss, damage or injury to the mind, body reputation or property
of another. Accident, being casualty cannot, therefore, be a matter of contract,
and being a wrong independent of contract, it is a tort litigated under the hammer
of negligence wherein compensation is the usual relief granted to the aggrieved9.

The quantum of compensation cannot be equal in two cases, even if the origin of
wrong be identical, since the same accident may cause death of one but only a
scratch or abrasion to the other. It is the difference which imports the idea of
liability, quantitatively, the extent and qualitatively, the kind of liability.
Whatever the injury or damage, no compensation can be awarded unless there
are grounds to make the wrongdoer liable10.

Liability is, therefore, the main plank, the conduit pipe or the buckle which joins
together the injury or loss and the damage or compensation, and works
differently in tort than in any other civil wrong11.

Rylands v. Fletcher12 is a classic case on the concept of liability, stretched to its

extreme by House of Lords, in the nomenclature of strict, absolute unqualified or
the unexceptionable liability. Although liability is the basis for any action in law,
yet it in the law of torts, it operates with a bit of technicality. Jurists hold the
words malfeasance, misfeasance and nonfeasance as synonymous with the
compendious expression tort and the above three are read as equivalent to tort
which dictionarily means breach of duty leading to damage and the meaning
attached to it in law is the same13.

9
Ibid
10
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2005) p.2
11
Ibid
12
Rylands v. Fletcher (1868) LR 3 HL 330: (1861-73) AII ER 1.
13
Supra n.4
 7

Winfield has defined tortuous law arising from breach of a duty primarily fixed
by law, this duty is towards persons generally and its breach is redressable by an
action for unliquidated damages14.

Injury and damages are, thus, two basic ingredients of tort. Although these may
be found in contract as well but the violations of which may result in tortuous
liability are breach of duty primarily fixed by the law while in contract they are
fixed by parties themselves. Further, in tort the duty is towards persons
generally. In contract, it is towards specific person or persons15.

An action for tort is usually a claim for pecuniary compensation in respects of

damage suffered as a result of the invasion of a legally protected interest. But
laws of torts being a developing law, its frontiers are incapable of being strictly
barricaded. Liability in tort, which in course of time has become known as strict
liability, absolute liability, fault liability, have all gradually grown and with the
passage of time have become firmly entrenched. Absolute liability or special use
bringing with it increased dangers to others16.

The entire law of torts is founded and structured on the moral that no one has a
right to injure or harm others intentionally or even innocently. Therefore, it
would be primitive to class strictly or close finally the ever- expanding and
growing horizon of tortuous liability. In the interest of social development,
orderly growth of society and cultural refinement, a liberal approach to tortuous
liability is conducive17.

In between strict liability and fault liability, there may be numerous

circumstances in which one may be entitled to sue for damages. What is

14
Jay Laxmi Saltworks (P) Ltd. v. State of Gujarat, 1994 (4) SCC 1; see also supra n.4 p.3
15
Ibid
16
Ibid
17
Ibid
 8

fundamental is injury and not the manner in which it has been caused. Strict
liability, absolute liability, fault liability and neighbor proximity are all
refinements and developments of law by English Courts. Once the occasion for
loss or damage is failure of duty, whether general or specific, the cause of action
under the law of tort arises, though same may be due to negligence, nuisance,
trespass, inevitable mistake etc., or may even be otherwise18.

When the wrongful act, which has resulted in a single damage, was done by two
or more persons, not independently of one another but in furtherance of a
common design, the persons involved in such wrongful act are called joint
tortfeasors. When two or more persons are engaged in a common pursuit and one
of them in the course of and in furtherance of that commits a tort, both of them
will be considered as joint tortfeasors and liable as such. Persons having certain
relationships are also treated as tortfeasors. The common examples of the same
are: principle and his agent, master and his servant and partners in a partnership
firm. If an agent does a wrongful act in the scope of his employment for his
principal, the principal can be made liable along with the agent as a joint
tortfeasors19.

The distinction between joint tortfeasors and independent tortfeasors lies in the
fact that in the case of former there is concurrence not only in the ultimate
consequences but also mental concurrence in doing the act; in the case of latter,
on the other hand, there is merely a concurrence in the ultimate result of the
wrongful act independently done20. In case of joint tortfeasors, the claimants are
entitled to claim entire compensation from all or any of the drivers, owners or

18
Ibid
19
Dr. R.K.Bangia, “ Law of Torts” (1997) p.74 & 75
20
Ibid
 9

insurers involved in the accident, without compensation, contribution,

apportionment or indemnity among them21.

Negligence, according to law of torts is a mode of committing certain torts and it

denotes the mental element. Negligence is considered separate tort, which means
a conduct that creates a risk of causing damage, rather than a state of mind.

In Ramwati v. Oriental Insurance Co. Ltd.22 Where Allahabad High Court has
defined Negligence is a name of some sort of activities of a person in a single
abbreviated and concluded form and such conclusion can be drawn only on basis
of full described activity of the person attributed to be negligent.

In Managing Director, Tamil Nadu State Transport Corporation v. Ayyammal23

it was observed by the Madras High Court that negligence is a relative and
comparative term so that no rigid formula or mathematical ratio can be laid
down to determine what constitutes negligence under particular circumstances.

The liability for compensation in any accident case, founded on negligence is

technically described as arising out of damage caused by breach of duty. The
axis around which the law of negligence revolves is duty – duty to take care,
duty to take reasonable care. However, the concept of duty, its reasonableness
and the standard of care required, cannot be put in straitjacket and cannot be
rigidly fixed. Right of yesterday is duty of today.24

Whether the defendant owes a duty to the plaintiff or not depends on the
reasonable foreseability of the injury to the plaintiff. If at the time of the act or
omission the defendant could reasonably foresee injury to the plaintiff he owes a

21
U.P.State Road Transport Corporation v. Rajani, 2007 ACJ 1771
22
Ramwati v. Oriental Insurance Co. Ltd., 2005(2) ACC 492 (All) DB
23
Managing Director, Tamil Nadu State Transport Corporation v. Ayyammal, 2007 ACJ 66 (Mad.)
DB
24
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation”,(2010) p. 5.
 10

duty to prevent that injury and failure to do that makes him liable. Duty to take
care is the duty to avoid doing or omitting to do anything, the doing or omitting
to do which may have as its reasonable and probable consequence injury to
others, and the duty is owed to those to whom injury may reasonably and
probably be anticipated if the duty is not observed.25 To decide culpability we
have to determine what a reasonable man would have foreseen and thus form an
idea of how he would have behaved under the circumstances26. In deciding as to
how much care is to be taken in a certain situation one useful test is to enquire
how obvious the risk must have been to an ordinary prudent man27.

The Parliament in England introduced the Fatal Accident Act, 1846, popularly
known as Lord Campbell’s Act. In India, the same was followed by enactment of
the Fatal Accidents Act, 1855, almost on the pattern of the English Fatal
Accident Act. Claims for compensation for death caused in accidents, including
death in motor accident, had, under the Fatal Accident Act, 1855, to be laid
before the civil court whereby the rigour of the principle of actio personalis
moritur cum persona was to a major extent ameliorated. However, the maxim
actio personalis moritur cum persona was confined only to case of personal,
physical or bodily injuries and not to the claim for loss caused to the estate of the
deceased and accidental death of a person certainly constituted a loss to the
estate of the deceased by depriving his dependents of that estate which the
deceased could accumulate through his earnings28.

Claims for loss of estate of the deceased caused by tortfeasor were, therefore,
protected under Section 306 of the Indian Succession Act, 1925 which provided
that all claims and demands whatsoever and all rights to prosecute or defined any

25
Bourhill v. Young, (1943) A.C.92,: see also Supra n.16 p. 249 & 250
26
Veeran v. Krishnamoorthy, AIR 1966 (Ker.) 172.: see also Supra n.16 p.250
27
Mysore State Road Transport Corporation v. Albert Dias, AIR, 1973 (Mysore) 240.: see also Supra
n.16 p.250
28
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation”,(2010) p. 6 & 7.
 11

action or any special proceeding existing in favour of or against a person, at the

time of his decease, survive to and against executors or administrators, except
causes of action for defamation, assault, as defined in the Penal Code, or other
personal injuries not causing death of the party and except also cases where,
after death of the party the relief sought could not be enjoyed or granting it
would be nugatory. Thus, the maxim actio personalis moritur cum persona came
to be considerably abrogated or modified by Section 306 of the Indian
Succession Act, 192529.

The expression ‘other personal injuries not causing the death of the party’
affirms death of victim as loss to estate of the deceased. Death having been
excepted from the scope of the above maxim, the application thereof stands
shrunk only to cases of such personal injury where after death of the party, the
relief of compensation could not be enjoyed or granting it would be fruitless, but
so far as the relief granted can be rightfully enjoyed by heirs, successors or legal
representatives of the deceased, compensation even in cases of personal injuries
ultimately causing death of the party cannot be denied.

Supposing for instance, the victim of an accident succumbs to his injuries after a
fortnight since accident, the costs of treatment and even the expenses on his
funeral and the amount spent on his special nourishment, transport and wages of
persons engaged to wait upon him, would certainly amount to loss to his estate,
and the relief in that respect shall not die with death of the victim, though the
notional amount of compensation for his physical pain and suffering, which as
psychic agony is constituted his personal experience not forming part of his
estate , can be forfeited because of and after his death, since same could not be

29
Harihar Mohanty v. Union of India, 1996 (2) ACC 438 (Orissa).: see also Supra n.25
 12

enjoyed by the victim and granting it would be nugatory so far as the victim is
concerned30.

When, in course of time, the progress of arts and sciences, brought about an
industrial revolution the world over, the manual tools and implements of artisans
were replaced by machines and the hackney carriages by speedy automobiles,
deaths and bodily injuries doubled their toll, at work and on roads, and other
legislations became essential to cope with such situations31. There is gradual
improvement in the automotive technologies also. It is also noticed that there is
greater flow of passengers and freight with the least impediments. Due to
increase, in the number of vehicles and the frequency of their movement, the
road accidents have also gone up. Thereby, increasing the number of victims of
road accidents. Sometimes, it is found that whole of the family has died in the
road accident leaving behind the kids only. On the other hand it is also reported
that due to road accidents people have become permanently disable, causing a
permanent loss to their earnings, sometimes he is not in position to do any work.

Keeping in view, the magnitude and dimensions of the problems of the Motor
Accidents and grant of compensation thereof, the present study is an enquiry to
find out the possible answers of the following questions:

1. What are the exiting provisions relating to Motor Accident Claims in India?

2. What is the proper procedure and working pattern of Claims Tribunals for
awarding compensation in motor accident claims?

3. Whether in the matters of negligent cases relating to motor accidents the

maxim res ipsa loquitur plays a role in deciding the cases by the civil courts?

30
Ibid
31
Ibid
 13

4. Whether in the matters of negligent cases relating to motor accidents the

maxim of res ipsa loquitur can be applied in determining criminal liability?

5. What are the exiting trends in grant of compensation in respect of bodily

injury, death and damages to the vehicles and property?

6. What are the methods, which are used by the courts in calculating the amount
of compensation in respect of bodily injury, death and damages to the
vehicles and property?

7. What is the procedure applied by the Lok Adalats in Disposing of the Motor
Accident Claims and whether such awards made by the Lok Adalats are just,
fair and reasonable or not?

8. What are the conditions, which are considered mandatory by the courts and
tribunals for accepting claims of compensation under Motor Vehicle Act?

9. What are the factors, which are considered by the courts and tribunals as
dangerous for a claim of compensation under Motor Vehicle Act?

10. What is the extent of liability of the owner and Insurer of the Vehicle
involved in accident?

C. Aims and Objectives of This Study

The main object of the present research work is to analyse the existing system of
awarding compensations to the victims of motor accidents. Further, an enquiry is
also made to know whether the compensation so awarded to the victims is just,
fair and reasonable or not. An attempt is also made to find out the factors, which
are taken in to consideration by the courts to determine the quantum of
compensation. An attempt is also made to study the factors, which are dangerous
to “claims” of compensation under Motor Vehicle Act, 1988. Further, an enquiry
 14

is made to find out the trends of Lok Adalats in awarding compensation to the
victims of Motor Accidents and to study whether the awards delivered by these
courts are just, fair and reasonable or not.

Extracts from important judgements of various High Courts and Supreme Court
of India have been discussed at the appropriate place. The results of the study
may provide the criteria to evaluate the legislation and judicial philosophy in the
matter of awarding compensation in Motor Accidents.

It would also help in bridging the gap between judicial interpretation and social
perception in respect of matters of grant of compensation to the victims of Motor
Accidents. The practical utility of the work lies in the fact that the policy making
institutions may formulate their strategies and approach in view of the social
perception on different issues concerning grant of compensation to the victims of
Motor Accidents.

D. Overview of the Existing Literature

One of the steps for starting the work on the problem is to review the existing
literature on the subject. The review of existing literature not only provides
clarity of concept and understanding of the different aspects of the subjects but
also helps avoid repetition. It helps in identifying the problem zones. A number
of books, monographs, reports, articles research papers and internet sites deals
with the subject of motor accidents and granting/ awarding compensation to the
victims of motor accidents. Dr. R.G. Chaturvedi in “Law of Motor Accident
Claims and Compensation”32 focuses on different aspects of Motor Accidents
and has discussed the concept of awarding compensation to victims of Motor
Accidents. He states:

32
Dr. R.G. Chaturvedi in “Law of Motor Accident Claims and Compensation”, (2010)
 15

If the Government opts for mandating the automobiles to carry a statutory

inscription that riding kills or maims, because it is unimpeachable truth that
India’s motorized mayhem has officially made it the most dangerous place to
drive in the world. Suffice this to betray the Division Bench decision of the High
Court of Madras in B. Govinda Rajalu Chetty v. M.L.A. Goondaraja
Mudaliar33 that a motor vehicle without which modern life would become
impossible, cannot or should not be held to be inherently a dangerous thing. The
tremendous pace, at which modern life moves, has made it used to things
inherently dangerous, like electricity, cooking gas, railways, aircraft, etc., but
that cannot and should not mean that the things warranted most in a fast life are
not inherently dangerous. India has the dubious distinction of being one of the
countries with the highest number of road accidents and the longest response
time in securing first aid and medical treatment34.

Dr. R.K. Bangia in “Law of Torts, Including Compensation Under the Motor
Vehicles Act” deals with accidents which occurred due to involvement of motor
vehicles and law relating to compensation to victims of such accidents. It
provides that insurance of motor vehicles compulsory and owner of every motor
vehicle is bound to insure his vehicle against third party risk. It also provide for
the extent of liability of the insurer as well as owner of the vehicle in case of
accident by such vehicle. In his book Dr. Bangia has also explained the
constitution of Claim Tribunals, working procedures to be followed by these
tribunals, appeal against the decisions of the tribunals etc. In Kishori v.
Chairman T.S. Coop. Society35, the M.P. High Court has held that the
consignee of the transported goods is not a third party for the purpose of
compensation by the insurer under the Motor Vehicles Act. In Threeti v. M.A.

33
B. Govinda Rajalu Chetty v. M.L.A. Goondaraja Mudaliar, AIR 1966 Mad. 332
34
Jai Prakash v. National Insurance Company Ltd., (2010) 2 SCC 607
35
Kishori v. Chairman T.S. Coop. Society, AIR, 1988 (MP) 38
 16

C.T36., the Kerala High Court has held that in a case of composite negligence,
when one of the two vehicles involved in the accident can be identified, it is not
a hit and run case, and in such a case compensation under the no-fault liability
rule can be claimed.

Kunal Mehta’s “An Analyse of Law Relating to Accidents Claim in India37” is a

nice Article written by the author covering the aspects of Accidents arising out
of use of Motor Vehicles, No fault Liability, claim applications, assessment of
claim, Legal defence available to the Insurance Companies towards third party,
Gratuitous Passenger, Dishonour of cheque of insurance premium, Right of
recovery from owner to Insurance Company, Claim Tribunals and Appeal etc.

In Bakshi P.M’s Article on, “Accident Victims and the Criminal Law38”, the
author has discussed the criminal as well as civil liability of a person whose
vehicle is involved in motor accident. Author states that the principles of liability
governing civil actions and criminal prosecutions based on negligence differ.
Criminal Law both in England and in India recognize degree of negligence. The
negligence which would justify conviction must be culpable or of gross degree
and not negligence founded on a mere error of judgment or defect of
intelligence. One of the grey areas of the law is that relating to the legal
consequences of accidents and the action to be taken after a victim in injured,
particularly in an accident caused by motor vehicles.

P. K. Sarkar in his book “The Motor Vehicles Act, 198839” has explained the
philosophy behind award of compensation as far as pain and suffering proceeds
on the footing that even though no monetary loss is occasioned because of this

36
Threeti v. M.A. C.T 1996 ACJ 609 (Kerala)
37
Kunal Mehta,“An Analyse of Law Relating to Accidents Claim in India”, Accessed on Website,
www.legalservicesindia.com on 16.08.2010 at 06.42 p.m.
38
Bakshi P.M, “ Accident Victims and the Criminal Law” Law 3 JILI, 1988 P-566
39
P.K Sarkar, “The Motor Vehicles Act, 1988”, (2004), p.10
 17

situation, that it is because of the psychological aspect which the law takes
cognizance of and whish has been dealt with in some detail in the Jhulan Rani
Saha’s case40 where both the English and Indian law have been analyzed in some
detail. That the court is obliged to compensate the party to whom such pain and
suffering may have been caused, to the extent that is necessary.

N. Kumar’ in his book, “The Concept of Criminality in the Tort of

Negligence41” has provided for the concept of criminal action in cases where
accident involves Tort of Negligence. He mentioned that in English Law the
only negligence amounting to crime is one (a) Characterized by “recklessness”
(b) directly leading to the death of the victim and (c) preceded by some degree of
some mens rea. Whether particular act of negligence amounts to crime or not
falls within the purview of juries. The nearest approximation of this English Law
is to be found in Section 304A of Indian Penal Code.

R. P. Kathuria on “Law of Crimes and Criminology”42, has discussed that in

case of road accidents the onus of the proof, it is generally on the prosecution to
prove gross rash and gross negligence on the part of the accused. This onus
never shifts. Sometimes res ipsa loquitur can be corroborative evidence. The
circumstances may lead to inference against the accused or vice – versa. This
doctrine is corroborative as far as criminal law is concerned. In a case of
negligent driving there may be material evidence or witnesses namely a sketch
drawn was adduced, it was seen that the accident took place only on the left side
of the road. The vehicle was coming from East towards West. The sketch shows
that there is sufficient space about 40 feet available on the right side. Therefore,
the petitioner ought to have swerved to the right side and avoided the accident.
So in addition to the deposition of witness, the material relating to the rule of res

40
Jhulan Rani Saha v. National Insurance Co. Ltd, AIR 1994 Gau. 41
41
N. Kumar, “The Concept of Criminality in the Tort of Negligence”, 1998 Cri.L.J.136
42
R.P.Kathuria, “Law of Crimes and Criminology”, (2000).
 18

ipsa loquitur is available in this case. In K.Perumal v. State43’s case it was held
that the driver running over the deceased without attempting to save the
deceased by swerving to other side when there was sufficient space, is liable to
be punished under section 304A I.P.C.

Dr. D. K. Gaur’s “A text Book on the Indian Penal Code44”, explains duties of
Driver of motor vehicles and if driver of vehicle fails to observe his duties he
will be liable not only in civil law but also under criminal law he will be guilty
of negligence. He stated that a person driving a motor car is under a duty to
control that car, he is prima facies guilty of negligence if the car leaves the road
and dashes into a tree. It, for the person driving the car, to explain the
circumstances under which, the car came to leave the road. Those circumstances
may have been beyond his control and may exculpate him, but in the absence of
such circumstances the fact that the car left the road is evidence of negligence on
the part of the driver.

K. C. Dutt and Sunita Dadhich: on “Motor Accident Claims45” have focused on

different aspects of Motor Accidents and have discussed the concept of awarding
compensation to victims of Motor Accidents. This book deals with accidents
which occurred due to involvement of motor vehicles and law relating to
compensation to victims of such accidents. Authors have also explained the
concept of liability of owners and insurers of vehicles involved in accident and
broadly discussed the concept of negligence of driver of vehicles involved in
accident and their liability under the Motor Vehicles Act, Law of Torts and also
criminal liability in case of motor accidents46.

43
K.Perumal v. State , 1998 4 Crimes 382
44
Dr. D.K.Gaur, “A text Book on the Indian Penal Code”,(2001)
45
K.C.Dutt and Sunita Dadhich, on “ Motor Accident Claims” (1988)
46
Ibid.
 19

M. Stanley Feranandez’s Article on “Road Accidents47” explains the duty of care

in case of accidents required from owner and driver of a motor vehicle. Author
has mentioned that there are numerous and extensive categories of situations
which are treated by the courts as imposing a duty of care. By way of illustration
merely, makers or repairs of chattels owe a duty to those who use those chattels,
a teacher owes a duty to his child-pupil, an occupier of land to visitors there,
those engaged in skilled occupations to their customers, those carrying out
activities on a highway to others highway users. One reason for the increase in
road accidents is the poor conditions of our road and disproportionate number of
vehicles.48A defendant who owed a duty to another was held to owe a duty also
to those who might attempt to rescue that other from acute peril in which the
defendant’s negligence had placed him.49It finally set at rest any possible doubts
whether the tort of negligence was capable of further expansion or was to be
rigidly tied down by existing precedents. It was a clear instance of the court’s
taking account of the new conditions of mass production and complex marketing
of goods wherein there are many intermediaries between manufacturer and
consumer, and by a conscious work of judicial legislation, imposing on
manufacturers certain minimum standards of care in favour of the consumer.50

E. Research Methodology

Legal system is more to be viewed as analytical positivists assumed. As a self

contained system completely divorced from the social milieu in which it
operates, neither being affected nor affecting the wider social order in which it

47
M.Stanley Feranandez, “ Road Accidents” 1995 Cri.L.J. 49
48
Supra n.44
49
Haynes v. Horwood (1955) 1 K.B. 146.
50
The clearest exposition of this function of Donoughue v. Stevenson is in the judgement of Lord Devlin
in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964) A.C.465.
 20

functions. Thus the law is now viewed not merely as being closely to social
science but as a science itself51.

The present study is Doctrinal in nature. However, useful data has been supplied
wherever required in order to authenticate the study so as to make it more useful
and practicable.

My Research work is essentially library based. After studying Acts, Text Books,
Legal Periodicals, Legal Journals, various Law Reports, Statutes etc. I have tried
to explore the information as to the problems being faced by the Tribunals,
Courts, Advocates, and the people in general; of course, possible solution to the
problems in the form of Legislative measures and Judicial decisions thereon
remained main focus of my study.

I. Coverage and Sample:

The coverage includes the cases decided by various High Courts in India and
also by the Supreme Court of India. The study includes cases decided by the
English Courts on the subject and some of the books and articles and
available literature relating to the accidents involving Motor Vehicles and
award of compensation in such cases. The study includes cases award of
compensation in motor accidents that were decided by the various courts by
applying various principles.

II. Selection of Cases:

A number of cases decided by various High Courts and Supreme Court of

India relating to grant of compensation in Motor Accident cases with
application of various maxim’s like res ipsa loquitur, act of God, Negligence
and Contributory Negligence.
51
Indian law Institute, “Legal Research Methodology” (1983) p. 88.,
 21

A reference has been made to some of the text books relating to the subject
and other relevant literature pertaining to the cases reported in Accident
Claims Journals, All India Reporter, All India Criminal Reports, Supreme
Court Cases, etc.

F. Chapter Scheme

For the purpose of systematic study, the present research work is divided in to 7
chapters.

The first chapter as usual is Introductory. This chapter covers statement of

problems, Aim and Objective of the present study, review of existing literature
in the field of grant of compensation and research methodology.

The second chapter deals with History, Object, Scope and Salient Features of
the Motor Vehicles Act, 1988. In this chapter history of the Motor Vehicles
Act, 1988 and various definitions of terms used in the Act has been discussed. A
brief discussion of Award of compensation on no fault liability basis,
requirement of insurance against third party risk, liability of insurer and defence
available to insurer, rights of third party against insurers on insolvency of
insured, duty to give information as to insurance, duty to furnish particulars of
vehicle involved in accident, special provisions as to compensation in case of hit
and run motor accident, special provisions as to payment of compensation on
structured formula basis and power of central government to make rules etc.,
have been discussed in this chapter.

The Claims Tribunal, Its Establishment, Composition, Jurisdiction and

Procedure have been discussed in third Chapter. In this chapter an attempt has
been made to discuss the application for compensation, options regarding claims
for compensation in certain cases under other Acts, procedure and power of
 22

claim tribunals, award of claim tribunal, appeal against decisions of claim

tribunal, recovery of money from insurer as arrears of land revenue, bar on
jurisdiction of civil courts and consumer forums, etc. Further, this chapter
covers who can file claim, who can report to claim tribunal in case of accident,
essential documents required to file claim, court fees to be deposited at the time
of filling claim.

In the fourth chapter, Judicial Trends in Awarding Compensation to the

Victims of Motor Accident have been discussed. This chapter also throw light
on the application of various principles like, No Fault Liability, Act of God,
Absolute and Vicarious Liability, Negligence, Contributory Negligence and
application of doctrine of res ipsa loquitur etc. in grant of compensation.

The fifth chapter deals with role of the Lok Adalats in awarding compensation
in motor accident cases. In this chapter, relevant provisions of Legal Services
Authority Act, 1987 and Civil Procedure Code, 1908, etc. are also examined.
This chapter also throws light on powers, jurisdiction and finality of awards of
Lok Adalats.

The sixth chapter deals with Criminal Liability in Motor Accidents. In this
chapter an attempt has been made to study the nature and scope of penal liability
of owners, agents and drivers of vehicles involved in accidents. This chapter also
explains the various provisions of Indian Penal Code, which have direct bearing
with the cases involving motor driven vehicles.

The last chapter i.e. chapter seven is of Conclusion and Suggestions. Some
conclusions based on the study are drawn. At the end of this chapter, some
useful and realistic suggestions are also made.
 23

CHAPTER: II

THE MOTOR VEHICLES ACT, 1988:

HISTORY, OBJECT, SCOPE AND SALIENT
FEATURES
 24

CHAPTER: II

THE MOTOR VEHICLES ACT, 1988:

HISTORY, OBJECT, SCOPE AND SALIENT
FEATURES

A. Introduction

With the development of civilization, act of negligence have become

actionable wrong. In the English Law, any person or the legal representative of
deceased person who expired on account of negligent act of other can besides
instituting criminal proceeding, recover damages under the Law of Torts.
Accountable negligence consist in the neglect of use of ordinary care or skill
towards a person to whom the defendant owes duty of observing ordinary care
and skill by which neglect the plaintiff have suffered injury to his person or
property. Thus, negligence accompanied with losses to the other party give rise
to an action1.

In order to give effective rights to the person injured or expired in an

accident, Fatal Accidents Act, 1885 was enacted in India. This Act provided only
a procedure and a right of named legal heirs to claim compensation from the
person committing negligence. This enactment has worked in India for a
comfortable long period. Because of increase in automation and consequential
losses of life and property in accident, it was considered that to give relief to the
victims of accident claims, an effective law should be brought in. To facilitate

1
Kunal Mehta,“An Analyse of Law Relating to Accidents Claim in India”, Accessed on Website,
www.legalservicesindia.com on 16.08.2010 at 06.42 p.m.
 25

this, provisions have been inserted for compulsory third party insurance and to
provide a machinery of adjudication of claim in Motor Vehicle Act by amending
Act No.110 of 1956, by which Section 93 to 109 with reference to third party
insurance and Section 110(A) to 110(F) with reference to creation of Motor
Accident Claims Tribunal and procedure for adjudication of claim has been
provided. Initially the liability was restricted to a particular sum but after 1982
the liability of the Insurance Company has been made unlimited and even the
defences of the Insurance Companies have been restricted so as to ensure
payment of compensation to third parties. In the year 1982, a new concept of
providing interim compensation on ‘No Fault’ basis have been introduced by
addition of Section 92(A) to 92(E). By the same amendment, relief has also been
given to those persons who expire by hit and run accidents, where the offending
vehicles are not identified2.

In 1988, a new Motor Vehicle Act has been introduced. Chapter 10 of the
new Act, provides for interim award. Chapter 11 provides for insurance of motor
vehicle against third party risk and Chapter 12 provides for the constitution of
Claims Tribunal and adjudication of claim and related matters. This law is still in
an era of serious changes. The Supreme Court has held number of times that this
is a welfare legislation and the interpretation of provision of this law is required
to be made so as to help the victim. In this process, the Supreme Court has
passed various judgments in the recent past, which have restricted the statutory
defences to the Insurance Company to a greater extent as law relating to burden
of proof have been totally changed. Limited defences as to not holding valid
driving license, use of vehicle for hire and reward, use of transport vehicle for
the purpose not allowed by permit are required to be proved in so stringent
manner that insurer are not getting advantage of these defences3.

2
Ibid.
3
Ibid.
 26

B. History

I. Pre – 1988 Position

Before, the Motor Vehicle Act, 1988 came in to existence, the Motor
Vehicles Act, 1939 was applicable for all type of Motor Accidents. The
Motor Vehicles Act, 1939, consolidates and amends the law relating to motor
vehicles. This has been amended several times to keep it up to date. The need
was, however, felt that this Act should, now inter alia, take into account also
changes in the road transport technology, pattern of passenger and freight
movements, developments, of the road network in the country and
particularly the improved techniques in the motor vehicles management.

Various Committees4, like, National Transport Policy Committee, National

Police Commission, Road Safety Committee, Low Powered Two – Wheelers
Committee, as also the Law Commission have gone into different aspects of
road transport. They have recommended updating, simplification and
rationalization of this law. Several Members of Parliament have also urged
for comprehensive review of the Motor Vehicles Act, 1939, to make it
relevant to the modern – day requirements. A Working Group was, therefore,
constituted in January, 1984 to review all the provisions of the Motor
Vehicles Act, 1939 and to submit draft proposals for a comprehensive
legislation to replace the existing Act. This Working Group took into account
the suggestions and recommendations earlier made by various bodies and
institutions like Central Institute of Road Transport (CIRT), Automotive
Research Association of India (ARAI), and other transport organizations
including, the manufacturers and the general public, Besides, obtaining
comments of State Governments on the recommendations of the Working
4
The Motor Vehicle Act, 1988, Statement of Objects and Reasons
 27

Group, these were discussed in a specially convened meeting of Transport

Ministers of all States and Union territories. Some of the more important
modifications so suggested related for taking care of -

a. The fast increasing number of both commercial vehicles and personal

vehicles in the country.

b. The need for encouraging adoption of higher technology in automotive

sector;

c. The greater flow of passenger and freight with the least impediments so
that islands of isolation are not created leading to regional or local
imbalances;

d. Concern for road safety standards, and pollution-control measures,

standards for transportation of hazardous and explosive materials;

e. Simplification of procedure and policy liberalization’s for private sector

operations in the road transport field; and

f. Need for effective ways of tracking down traffic offenders5.

II. The Motor Vehicles Act, 1988

The Supreme Court in M. K. Kunhimohammed v. P. A. Ahmedkutty6,

has made certain suggestions to raise the limit of compensation payable as a
result of motor accidents in respect of death and permanent disablement in
the event of there being no proof of fault on the part of the person involved in
the accident and also in hit and run motor accidents and to remove certain
disparities in the liability of the insurer to pay compensation depending upon

5
Ibid.
6
M. K. Kunhimohammed v. P. A. Ahmedkutty, (1987) 4 S.C.C. 284
 28

the class or type of vehicles involved in the accident. The above suggestions
made by the Supreme Court have been incorporated in the Bill of the Motor
Vehicles.

The proposed legislation has been prepared in the light of the above
background. Some of the more important provisions of the Bill provide for
the following matters, namely :-

a. Rationalization of certain definitions with additions of certain new

definitions of new types of vehicles.

b. Stricter procedures relating to grant of driving licences and the period of

validity thereof.

c. Laying down of standards for the components and parts of motor

vehicles.

d. Standards for anti-pollution control devices.

e. Provision for issuing fitness certificates of vehicles also by the

authorized testing stations.

f. Enabling provision for updating the system of registration marks.

g. Liberalized schemes for grant of stage carriage permit on non

nationalized routes, all-India Tourist permits and also national permits
for goods carriages.

h. Administration of the Solatium Scheme by the General Insurance

Corporation.

i. Provision for enhanced compensation in cases of “no fault liability” and

in hit and run motor accidents.
 29

j. Provision for payment of compensation by the insurer to the extent of

actual liability to the victims of motor accidents irrespective of the class
of vehicles.

k. Maintenance of State registers for driving licences and vehicle

registration.

l. Constitution of Road Safety Councils7.

The Bill also seeks to provide for more deterrent punishment in the cases of
certain offences.

The above suggestions which were incorporated in the Motor Vehicles Bill
received the assent of the President on 14th October, 1988 and came on the
Statute Book as Motor Vehicles Act, 1988. The Act came into force with
effect from 1st July, 1989 replacing the Motor Vehicles Act, 19398.

The erstwhile Motor Vehicles Act, 1939 was repealed by section 217 of the
Motor Vehicles Act, 1988. Said section 217 also repealed all laws
corresponding to the Motor Vehicles Act, 1939, then being in force in any
State immediately before the commencement of the Act of 1988 in the
respective states9.

III. The Motor Vehicles (Amendment) Act, 1994

The Act was amended by the Motor Vehicles (Amendment) Act, 1994, which
came in to effect from 14.11.1994. After the coming into force of the Motor
Vehicles Act, 1988, Government received a number of representations and
suggestions from the State Government Transport Operators and members of
7
Supra n.4
8
Supra n.4
9
Supra n.4
 30

public regarding the inconvenience faced by them because of the operation of

some of the Provisions of the 1988 Act10.

A Review Committee was, therefore, constituted by the Government in

March, 1990 to examine and review the 1988 Act. The recommendations of
the Review Committee were forwarded to the State Governments for
comments and they generally agree with these recommendations. The
Government also considered a large number of representations received, after
finalization of the Report of the Review Committee, from the transport
operators and public for making amendments in the Act. The draft of the
proposals based on the recommendation of the Review Committee and
representations from the public were placed before the Transport
Development Council for seeking their views in the matter. The important
suggestions made by the Transport Development Council relate to, or are on
account of, -

a. The introduction of newer type of vehicles and fast increasing number of

both commercial and personal vehicles in the country.

b. Providing adequate compensation to victims of road accidents without

going into long drawn procedure.

c. Protecting consumers’ interest in Transport Sector.

d. Concern for road safety standards, transport of hazardous chemicals and

pollution control.

e. Delegation of greater powers to State Transport Authorities and

rationalizing the role of public authorities in certain matters.

10
The Motor Vehicle (Amendment) Act, 1994, Statement of Objects and Reasons
 31

f. The simplification of procedures and policy liberalization in the field of

Road Transport.

g. Enhancing penalties for traffic offenders11.

IV. Law Commission’s 119th Report

The Law Commission in its 119th Report12 had recommended that every
application for a claim be made to the Claims Tribunal having jurisdiction
over the area in which the accident occurred or to the Claims Tribunal within
the local limits of whose jurisdiction the claimant resides or carries on
business or within the local limits of whose jurisdiction the defendant resides,
at the option of the claimant. The bill also makes necessary provision to give
effect to the said recommendation. Therefore, the proposed legislation has
been prepared in the light of the above background. The Bill inter alia
provides for –

a. Modification and amplification of certain definitions of new type of

vehicles.

b. Simplification of procedure for grant of driving licences.

c. Putting restrictions on the alteration of vehicles.

d. Certain exemptions for vehicles running on non-polluting fuels.

e. Ceilings on individuals or company holdings removed to curb

“benami” holdings.

11
Ibid.
12
See 119th Report of Law Commission
 32

f. States authorized to appoint one or more State Transport Appellate

Tribunals.

g. Punitive checks on the use of such components that do not conform to

the prescribed standards by manufactures, and also stocking / sale by
the traders.

h. Increase in the amount of compensation of the victims of hit and run

cases.

i. Removal of time limit for filling of application by road accident

victims for compensation.

j. Punishment in case of certain offences is made stringent.

k. A new pre-determined formula for payment of compensation to road

accident victims on the basis of age / income, which is more liberal and
rational13.

V. The Motor Vehicles (Amendment) Act 2000

The Act was again amended by the Motor Vehicles (Amendment) Act 2000 –
Further amendments in the aforesaid Act have become necessary so as to
reduce the vehicular pollution and to ensure the safety of the road users. It is,
therefore, proposed to prohibit alteration of vehicles in any manner including
change of tyres of higher capacity. However, the alteration of vehicles with a
view to facilitating the use of eco-friendly fuel including Liquefied
Petroleum Gas (LPG) is being permitted. Further, it is proposed to confer

13
Ibid.
 33

powers on the Central Government to allow the alteration of vehicles for

certain specified purposes14.

At present, the educational institutions are not required to obtain permits for
the operation of buses owned by them. It is proposed to bring the buses run
by these institutions within the purview of the aforesaid Act by requiring
them to obtain permits. It is also proposed to allow renewal of permits,
driving licences and registration certificates granted under the Motor
Vehicles Act, 1939 to be renewed under the Motor Vehicles Act, 1988, by
inserting new section 217 – A. The proposed amendments are essential in the
overall interest of securing road safety and maintaining a clean
environment15.

VI. The Motor Vehicles (Amendment) Act, 2001

Third times amendments to this act were brought by the Motor Vehicles
(Amendment) Act, 2001. The Motor Vehicles Act, 1988 is a Central
legislation through which the road transport is regulated in the country. By
the Motor Vehicles (Amendment) Act, 1994, inter alia, amendments were
made for make special provisions under sections 66 & 67 so as to provide
that vehicles operating on eco–friendly fuels shall be exempted from the
requirements of permits and also the owners of such vehicles shall have the
discretion to fix fares and freights for carriage of passengers and goods. The
intention in bringing the said amendments was to encourage the operation of
vehicles with such eco-friendly fuels. However, it has been observed that
during the last several years, not only the supply of eco-friendly fuels like
CNG has increased tremendously, a large number of vehicles have come on
the road which in terms of sections 66 and 67, as amended by the Motor

14
The Motor Vehicle (Amendment) Act, 2000, Statement of Objects and Reasons
15
Ibid.
 34

Vehicles (Amendment) Act, 1994, are operating without any requirement of

permits and are, therefore, not subject to any control of the State
Governments. The number of such vehicles is likely to further increase
substantially16.

The aforesaid situation is likely to lead to indiscipline on the road and

consequent increase in the road accidents. It is, therefore, considered
essential to remove exemption provided under sections 66 and 67 of the said
Act to CNG operated vehicles so that vehicles which operate on eco-friendly
fuels are also covered by the terms and conditions applicable to all other
vehicles. The proposed amendments are essential in the overall interest of
securing road safety and maintaining a clean environment17.

C. Object and Scope

The Motor Vehicles Act18, 1988 has been applicable to whole India and has been
prepared to achieve the following objectives:

I. To take care of the fast increasing number of both commercial vehicles

and personal vehicles in the country.

II. The need for encouraging adoption of higher technology in automotive

sector.

III. The greater flow of passenger and freight with the least impediments so
that islands of isolation are not created leading to regional or local
imbalances.

16
The Motor Vehicle (Amendment) Act, 2001, Statement of Objects and Reasons
17
Ibid.
18
The Motor Vehicle Act, 1988, Statement of Objects and Reasons
 35

IV. Concern for road safety standards, and pollution-control measures,

standards for transportation of hazardous and explosive materials.

V. Simplification of procedure and policy liberalization’s for private sector

operations in the road transport field.

VI. Need for effective ways of tracking down traffic offenders.

VII. Rationalization of certain definitions with additions of certain new

definitions of new types of vehicles.

VIII. Stricter procedures relating to grant of driving licences and the period of
validity thereof.

IX. Laying down of standards for the components and parts of motor
vehicles;

X. Standards for anti-pollution control devices.

XI. Provision for issuing fitness certificates of vehicles also by the

authorized testing stations.

XII. Enabling provision for updating the system of registration marks.

XIII. Liberalized schemes for grant of stage carriage permit on non

nationalized routes, all-India Tourist permits and also national permits
for goods carriages.

XIV. Administration of the Solatium Scheme by the General Insurance

Corporation.

XV. Provision for enhanced compensation in cases of “no fault liability” and
in hit and run motor accidents.
 36

XVI. Provision for payment of compensation by the insurer to the extent of

actual liability to the victims of motor accidents irrespective of the class
of vehicles.

XVII. Maintenance of State registers for driving licences and vehicle

registration.

XVIII. Constitution of Road Safety Councils.

XIX. The introduction of newer type of vehicles and fast increasing number
of both commercial and personal vehicles in the country.

XX. Providing adequate compensation to victims of road accidents without

going into long drawn procedure.

XXI. Protecting consumers’ interest in Transport Sector.

XXII. Concern for road safety standards, transport of hazardous chemicals and
pollution control.

XXIII. Delegation of greater powers to State Transport Authorities and

rationalizing the role of public authorities in certain matters.

XXIV. The simplification of procedures and policy liberalization in the field of

Road Transport.

XXV. Enhancing penalties for traffic offenders.

XXVI. Modification and amplification of certain definitions of new type of

vehicles.

XXVII. Simplification of procedure for grant of driving licences.

 37

XXVIII. Putting restrictions on the alteration of vehicles.

XXIX. Certain exemptions for vehicles running on non-polluting fuels.

XXX. Ceilings on individuals or company holdings removed to curb “benami”

holdings.

XXXI. States authorized to appoint one or more State Transport Appellate

Tribunals.

XXXII. Punitive checks on the use of such components that do not conform to
the prescribed standards by manufactures, and also stocking / sale by the
traders.

XXXIII. Increase in the amount of compensation of the victims of hit and run
cases.

XXXIV. Removal of time limit for filling of application by road accident victims
for compensation.

XXXV. Punishment in case of certain offences is made stringent.

XXXVI. A new pre-determined formula for payment of compensation to road

accident victims on the basis of age / income, which is more liberal and
rational19.

D. Definitions – The Genus and Species of Motor Vehicles

Section 2 of the Motor Vehicles Act defines certain terms, which have been used
in the act, having the meaning as provided in the Motor Vehicles Act, unless the
context otherwise requires20. Some of the definitions of such terms is as under:-

19
The Motor Vehicle Act, 1988, Statement of Objects and Reasons
20
Ibid., Section 2
 38

I. Area, in relation to any provision of this Act, means such area as the State
Government may, having regard to the requirements of that provision,
specify by notification in the Official Gazette.

II. Articulated Vehicle means a motor vehicle to which a semi-trailer is

attached.

III. Axle Weight means in relation to an axle of a vehicle the total weight
transmitted by the several wheels attached to that axle to the surface on
which the vehicle rests.

IV. Certificate of Registration means the certificate issued by a competent

authority to the effect that a motor vehicle has been duly registered in
accordance with the provisions of Chapter IV of Motor Vehicles Act, 1988.

V. Conductor, in relation to a stage carriage, means a person engaged in

collecting fares from passengers, regulating their entrance into, or exit
from, the stage carriage and performing such other functions as may be
prescribed.

VI. Conductor’s Licence means the licence issued by a competent authority

under Chapter III of the Motor Vehicles Act, 1988, authorizing the person
specified therein to act as a conductor.

VII. Contract Carriage means a motor vehicle which carries a passenger or

passengers for hire or reward and is engaged under a contract, whether
expressed or implied, for the use of such vehicle as a whole for the carriage
of passengers mentioned therein and entered into by a person with a holder
of a permit in relation to such vehicle or any person authorised by him in
this behalf on a fixed or an agreed rate or sum –
 39

(a) On a time basis, whether or not with reference to any route or

distance; or

(b) From one point to another, and in either case, without stopping to
pick up or set down passengers not included in the contract
anywhere during the journey, and includes –

(i) A maxi cab; and

(ii) A motor cab notwithstanding that separate fares are charged for
its passengers.

VIII. Dealer includes a person who is engaged –

1. In building bodies for attachment to chassis;

2. Or in the repair of motor vehicles; or

3. In the business of hypothecation, leasing or hire-purchase of motor

vehicle.

IX. Driver includes, in relation to a motor vehicle which is drawn by another

motor vehicle, the person who acts as a steersman of the drawn vehicle.

X. Driving Licence means the licence issued by a competent authority under

Chapter II of the Motor Vehicles Act, 1988, authorizing the person
specified therein to drive, otherwise than as a learner, a motor vehicle or a
motor vehicle of any specified class or description.

XI. Educational Institution Bus means an omnibus, which is owned by a

college, school or other educational institution and used solely for the
purpose of transporting students or staff of the educational institution in
connection with any of its activities.
 40

XII. Fare includes sums payable for a season ticket or in respect of the hire of a
contract carriage.

XIII. Goods includes livestock, and anything (other than equipment ordinarily
used with the vehicle) carried by a vehicle except living persons, but does
not include luggage or personal effects carried in a motor car or in a trailer
attached to a motor car or the personal luggage of passengers travelling in
the vehicle.

XIV. Goods Carriage means any motor vehicle constructed or adapted for use
solely for the carriage of goods, or any motor vehicle not so constructed or
adapted when used for the carriage of goods.

XV. Gross Vehicle Weight means in respect of any vehicle the total weight of
the vehicle and load certified and registered by the registering authority as
permissible for that vehicle.

XVI. Heavy Goods Vehicle means any goods carriage the gross vehicle weight
of which, or a tractor or a road-roller the unladen weight of either of which,
exceeds 12,000 kilograms.

XVII. Heavy Passenger Motor Vehicle means any public service vehicle or
private service vehicle or educational institution bus or omnibus the gross
vehicle weight of any of which, or a motor car the unladen weight of which,
exceeds 12,000 kilograms.

XVIII. Invalid Carriage means a motor vehicle specially designed and

constructed, and not merely adapted, for the use of a person suffering from
some physical defect or disability, and used solely by or for such a person.
 41

XIX. Learner’s Licence means the licence issued by a competent authority

under Chapter II of Motor Vehicles Act, 1988, authorizing the person
specified therein to drive as a learner, a motor vehicle or a motor vehicle of
any specified class or description;

XX. Licensing Authority means an authority empowered to issue licence under

Chapter II or, as the case may be, chapter III of Motor Vehicles Act, 1988.

XXI. Light Motor Vehicle means a transport vehicle or omnibus the gross
vehicle weight of either of which or a motor car or tractor or road-roller the
unladen weight of any of which, does not exceed 7500 kilograms.

XXII. Manufacturer means a person who is engaged in the manufacture of motor

vehicles.

XXIII. Maxi Cab means any motor vehicle constructed or adapted to carry more
than six passengers, but not more than twelve passengers, excluding the
driver, for hire or reward.

XXIV. Medium Goods Vehicle means any goods carriage other than a light motor
vehicle or a heavy goods vehicle.

XXV. Medium Passenger Motor Vehicle means any public service vehicle or
private service vehicle, or educational institution bus other than a motor
cycle, invalid carriage, light motor vehicle or heavy passenger motor
vehicle.

XXVI. Motor Cab means any motor vehicle constructed or adapted to carry not
more than six passengers excluding the driver for hire or reward.

XXVII. Motor Car means any motor vehicle other than a transport vehicle,
omnibus, road-roller, tractor, motor cycle or invalid carriage.
 42

XXVIII. Motor Cycle means a two-wheeled motor vehicle, inclusive of any

detachable side-car having an extra wheel, attached to the motor vehicle.

XXIX. Motor Vehicle or Vehicle means any mechanically propelled vehicle

adapted for use upon roads whether the power of propulsion is transmitted
thereto from an external or internal source and includes a chassis to which a
body has not been attached and a trailer ; but does not include a vehicle
running upon fixed rails or a vehicle of a special type adapted for use only
in a factory or in any other enclosed premises or a vehicle having less than
four wheels fitted with engine capacity of not exceeding twenty-five cubic
centimeters.

XXX. Tractor-trailer. - A Division Bench of the Punjab and Haryana High Court
in United India Insurance Company Ltd. v. Pritpal Singh21 held that
even though trailer may be drawn by a motor vehicle if by if self is a motor
vehicle and both the Tractor & Trailer taken together would constitute a
transport vehicle.

XXXI. Omnibus means any motor vehicle constructed or adapted to carry more
than six persons excluding the driver.

XXXII. Owner means a person in whose name a motor vehicle stands registered
and where such person is a minor, the guardian of such minor, and in
relation to a motor vehicle which is the subject of a hire-purchase,
agreement, or an agreement of lease or an agreement of hypothecation, the
person in possession of the vehicle under that agreement.

21
United India Insurance Company Ltd. v. Pritpal Singh (1996-2) 113 Punj. L.R. 49
 43

XXXIII. Permit means a permit issued by a State or Regional Transport Authority

or an authority prescribed in this behalf under this Act authorizing the use
of motor vehicle as a transport vehicle.

XXXIV. Prescribed means prescribed by rules made under Motor Vehicles Act,
1988.

XXXV. Private Service Vehicle means a motor vehicle constructed or adapted to

carry more than six persons excluding the driver and ordinarily used by or
on behalf of the owner of such vehicle for the purpose of carrying persons
for, or in connection with, his trade or business otherwise than for hire or
reward but does not include a motor vehicle used for public purposes.

XXXVI. Public Place means a road, street, way or other place, whether a
thoroughfare or not, to which the public have a right of access, and includes
any place or stand at which passengers are picked up or set down by a stage
carriage.

XXXVII. Public Service Vehicle means any motor vehicle used or adapted to be
used for the carriage of passengers for hire or reward, and includes a maxi
cab, a motor cab, contract carriage, and stage carriage.

XXXVIII. Registered Axle Weight means in respect of the axle of any vehicle, the
axle weight certified and registered by the registering authority as
permissible for that axle.

XXXIX. Registering Authority means an authority empowered to register motor

vehicles under Chapter IV of Motor Vehicles Act, 1988.

XL. Route means a line of travel which specifies the highway which may be
traversed by a motor vehicle between one terminus and another.
 44

XLI. Semi-Trailer means a vehicle not mechanically propelled ( other than a

trailer ), which is intended to be connected to a motor vehicle and which is
so constructed that a portion of it is super-imposed on, and a part of whose
weight is borne by, that motor vehicle.

XLII. Stage Carriage means a motor vehicle constructed or adapted to carry

more than six passengers excluding the driver for hire or reward at separate
fares paid by or for individual passengers, either for the whole journey or
for stages of the journey.

XLIII. State Government in relation to a Union territory, means the

Administrator thereof appointed under article 239 of the Constitution.

XLIV. State transport undertaking means any undertaking providing road

transport service, where such undertaking is carried on by –

a. The Central Government or a State Government ;

b. Any Road Transport Corporation established under section 3 of the

Road Transport Corporations Act, 1950 ;

c. Any municipality or any corporation or company owned or

controlled by the Central Government or one or more State
Governments, or by the Central Government and one or more State
Government ;

d. Zilla Parishad or any other similar local authority.

Explanation. – For the purposes of this clause, “road transport service”

means a service of motor vehicles carrying passengers or goods or both by
road for hire or reward.
 45

XLV. Tourist Vehicle means a contract carriage constructed or adapted and

equipped and maintained in accordance with such specifications as may be
prescribed in this behalf.

XLVI. Tractor means a motor vehicle which is not itself constructed to carry any
load (other than equipment used for the purpose of propulsion); but
excludes a road-roller.

XLVII. Traffic Signs includes all signals, warning sign posts, direction posts,
markings on the road or other devices for the information, guidance or
direction of drivers of motor vehicles.

XLVIII. Trailer means any vehicle, other than a semi-trailer and a sidecar, drawn or
intended to be drawn by a motor vehicle.

XLIX. Transport Vehicle means a public service vehicle, a goods carriage, an

educational institution bus or a private service vehicle.

L. Unladen Weight means the weight of a vehicle or trailer including all

equipment ordinarily used with the vehicle or trailer when working, but
excluding the weight of a driver or attendant; and where alternative parts or
bodies are used the unladen weight of the vehicle means the weight of the
vehicle with the heaviest such alternative part or body.

LI. Weight means the total weight transmitted for the time being by the wheels
of a vehicle to the surface on which the vehicle rests22.

22
The Motor Vehicles Act, 1988, Section 2
 46

E. Concept and Meaning of Accident

The term ‘accident’ has not been defined in the Motor Vehicles Act. The term
‘accident’ was first time defined in Fenton v. Thorley & Co. Ltd.23 as unlooked
for mishap which is not designed nor expected.

In United India Insurance Co, Ltd. v. Somari Devi24case it was observed by

the Patna High Court that the word ‘accident’ generally denotes an event that
take place without one’s foresight or expectation, i.e. an event which proceeds
from an unknown cause or is unusual effect of a known cause or contingency.
An accident which is unforeseen is accident which term means some unexpected
and unforeseen event or overlooked mischief. It is an event happening without
concurrence of will of the person by whose agency it was caused25.

It may incidentally be stated that the term ‘accident’ for the purpose of law
relating to compensation includes any injury not designed by the injured himself,
and it is of consequence that the injury was designed and intended by the person
inflicting the same26.

In the matter of Oriental Insurance Co. Ltd. v. Dongkholam27it was held by

the High Court that the difference between a murder which is not an accident
and a murder which is an accident, depends on the proximity of the cause of
such murder. If the dominant intention of the act of felony is to kill any
particular person then such killing is not accidental murder but is a murder
simpliciter, while if the cause of murder or act of murder was originally not

23
Fenton v. Thorley & Co. Ltd., (1903) AC 448 (HL)
24
United India Insurance Co, Ltd. v. Somari Devi, 1999 ACJ 864(Pat.)
25
Ramdev Singh V. Chudasma v. Hansrajbhai V. Kodala 1999 ACJ 1129(Guj.) DB
26
Varkeychan v. Thomman, 1979 ACJ 319 (Ker.), Mathew Joseph v. Johny Sunny, 1995 ACJ 1183
(Ker.)
27
Oriental Insurance Co. Ltd. v. Dongkholam, 2007 ACJ 1973 (Gau.)
 47

intended and the same was caused in furtherance of any other felonious act then
such murder is an accidental murder within the meaning of Motor Vehicles Act.

I. Accident and Other Allied Expressions like Act of God, Inevitable

Accident, Latent Defect, etc.

All causes of inevitable accident may be divided in to two classes:

1. Those which are occasioned by the elementary forces of nature un

connected with the agency of man or other causes; and

2. Those which have their origin either in whore or in part in the agency of
man, whether in acts of commission or omission, non-feasance or of
malfeasance, or in any other cause independent of the agency of natural
forces28.

The term ‘act of God’ is applicable to the former class.

The expression ‘act of God’ signifies operation of natural forces free from
human intervention, such as lightning or severe gale, snow storming,
hurricanes, cyclones and tidal waves and the like, though every non-expected
wind or storm cannot operate as excuse from liability if there is reasonable
possibility of anticipating their happening e.g. the possibility of extraordinary
floods in any particular region being within competence of authorities to take
precautionary steps29, i.e., some casualty which human foresight could not
discern and from consequences of which no human protection could be
provided30.

28
Ratan Lal & Dhiraj Lal, “ Law of Torts” (2002) p.82
29
Sankardan Das v. Grid Corporation of Orissa Ltd. 1998 ACJ 1420 (Ori.) DB
30
A.Krishna Patra V. Orissa State Electricity Board, 1998 ACJ 155 (Ori.) DB
 48

In United India Insurance Co. Ltd. v. Economic Roadways31case it was

held that since act of God is a ground for defence, it is for the defendant to
prove that accident had occurred for reasons beyond his control.

In claims for compensation, governed by beneficial legislations, the defence

of act of God or of latent defect is a feeble defence. Tyres fleeing off running
vehicle and hitting deceased was not held an act of God by the Rajasthan
High Court32.

In Sarda Devi v. Birbal Ram33case, where the accident had occurred

because of tyre burst but the owner had failed to establish that tyre was road
worthy, the finding of tribunal that it was an act of God was reversed by
appellate court holding that owner and driver were negligent in operating the
bus with unroad-worthy tyres.

II. Defence of act of God, or of Latent defect feeble under

Compensation Laws

In the matter of Sharma v. Kartar Singh34 where a driver, continuing to

drive a jeep when there was storm despite request of occupants to stop,
cannot plead that accident was an act of God.

In R.J.Foujdar Bus Service v. Ganpat Singh35 where a driver took the bus
on the bridge when water was overflowing. The bus was washed away,
resulting in death of several passengers. Accident was not an act of God and
negligence of driver was writ large.

31
United India Insurance Co. Ltd. v. Economic Roadways, 2002 ACJ 2024 (Mad.)
32
Ali Khan v. Vijay Singh, 2007 ACJ 350 (Raj.)
33
Sarda Devi v. Birbal Ram, 2009 ACJ 2780 (Raj.)
34
Sharma v. Kartar Singh, 2008 ACJ 892 (MP) DB
35
R.J.Foujdar Bus Service v. Ganpat Singh, 2007 ACJ 1591 (MP) DB
 49

In Madhya Pradesh State Road Transport Corporation v. Bhoj Singh36,

the bus collided against a tree which caused tyre burst in the rear wheel,
causing injury to a passenger. The defence was that the tyre was in good
condition and that the burst was a vi major. The evidence was that the bus
was overloaded. It was held that the tyre burst was due to overloading and
that the driver was negligent in having the bus overloaded.

In State of Rajasthan v. Ram Prasad37, claim for compensation was made

under the Workmen’s Compensation Act, 1923, in respect of death of a lady
worker who died of an accident which took place on account of lightning.
The defence was that lightning was act of God. Repelling such defence, the
court observed:

“… the concept of the liability under the Act is wide enough to cover a case
of this nature in as much as death has taken place arising as result of accident
in the course of employment. It is no doubt true that accident must have a
causal connection with the employment and arise out of it. If the workmen is
injured as a result of natural force such as lightning though in itself has no
connection with employment, she can recover compensation by showing
such employment exposed her to such injury. In this case, the finding is that
the said….was working on the site an would not have been exposed to such
hazard of lightning striking her had she not been working so38”.

III. An Accident Arising Out of the Use of a Motor Vehicle

The expression ‘ an accident arising out of the use of a motor vehicle’ is the
foundation of a claim for compensation and is, therefore, of vital significance

36
Madhya Pradesh State Road Transport Corporation v. Bhoj Singh, 1992 ACJ 1151 (MP)
37
State of Rajasthan v. Ram Prasad, 2001 ACJ 647(SC).
38
Ibid
 50

which, of course, needs an independent chapter for the construction and

meaning thereof.

In construing the scope of the expression ‘ accident arising out of the use of a
motor vehicle’, it can be said that the word ‘use’ is used in the Act in a wide
sense so as to cover all employments of a motor vehicle, so that whichever
the vehicle is put into action or service, there is ‘user’ of the vehicle within
the meaning of the Act, whether the vehicle was being driven or repaired or
simply parked or kept stationary or left unattended and in that sense, the
vehicle is used, whenever the vehicle is driven out for any purpose,
whatsoever. This, without anything more, is sufficient to attract the
provisions of the Act. Thus, whenever any accident occurs causing death of
or bodily injury to persons because of the vehicle or in the course of its user,
the jurisdiction of the Claims Tribunal arises39.

In Union of India v. Satish Kumar Patel40 and Gujarat State Road

Transport Corporation v. Union of India41 s matters where accidents do
often occur because of collision between a train and a motor vehicle, usually
on unmanned level crossing, and such accidents may take one of the
following modes, namely:

a. Where there is negligence only on part of the driver of the train.

b. Where the railway, or the driver of a train and the driver of a motor
vehicle are both jointly responsible for the accident in question.

c. Where the driver of a motor vehicle is alone responsible for the accident
in question.

39
Padmanabhan Nair v. Narayaniutty, 1988 ACJ 58 (Ker.) DB.
40
Union of India v. Satish Kumar Patel , AIR 2001 MP 41
41
Gujarat State Road Transport Corporation v. Union of India, AIR 1988 Guj 13
 51

In cases falling within (a.) above, the accident cannot be said to have arisen
out of the use of motor vehicle and a claim for compensation cannot lie
before a Motor Accidents Claims Tribunal, but in cases covered by (b) and
(c) above, the accident shall be held to have arisen out of the use of a Motor
Vehicle, and a claim for compensation shall lie before the Motor Accidents
Claims Tribunal42.

Section 165 provides the form of constitution of Claim Tribunal in adjudging

claims of compensation in respect of accidents involving the death of bodily
injury to persons "arising out of the use of Motor Vehicle". Being welfare
legislation the scope of this term have been widened which includes accident
by a stationery vehicle, injuries suffered by passengers in bomb blast, injuries
due to fire in petrol tanker. Murder in a motor vehicle has also been covered
as a motor accident.

In Bipal Bashi Das v. Oriental Insurance Co. Ltd.43 where the extremists
had hired a vehicle causing death of one and injury to other passengers, death
was held to have arisen out of use of motor vehicle.

In New India Assurance Co. Ltd. v. Sheeja44 where the driver taken his taxi
to workshop and the gas cylinders exploded in the course of repair, the
accident was held to have arisen out of use of motor vehicle.

42
Maniklal Dubey v. Mohd. Ismail, 1999 (3) Civil LJ 329
43
Bipal Bashi Das v. Oriental Insurance Co. Ltd., 2009 (1) ACC 288 (Gau.) DB.
44
New India Assurance Co. Ltd. v. Sheeja, 2007 ACJ 338 (Ker.) DB
 52

F. Salient Features of Motor Vehicles Act, 1988 Relating to

Awarding of Compensation in Motor Accident Cases

The relevant provisions relating to awarding of compensation in Motor Vehicle

Accidents has been provided in Chapter X, Chapter XI and Chapter XII of the
Motor Vehicles Act, 1988. These chapters deal with following subjects:

1. Chapter X deals with No Fault Liability in certain cases.

2. Chapter XI of the Act deals with Insurance of Motor Vehicles against Third
Party Risk, and

3. Chapter XII of the Act deals with establishment of Claims Tribunals,

application for and award of compensation in cases of accidents arising out
of use of Motor Vehicles, recovery of amount of compensation from insurer
as arrears of land revenue and other procedural and incidental matters.

In this chapter, first two chapters i.e. Chapter X & XI of Motor Vehicles Act,
1988 have been studied and judicially analyzed. Third chapter i.e. Chapter XII of
Motor Vehicles Act, 1988 is studied separately in the next Chapter with title
“Claims Tribunals under Motor Vehicles Act”.

I. Liability to Pay Compensation in Certain Cases on the Principle

of No Fault.

Sections 140 to 144 of the Act, provides for payment of compensation on the
principle of no fault liability i.e. without any fault on the part of any party.

Section 140 of the Motor Vehicles Act, 1988 provides for liability to pay
compensation in certain cases on the principle of no fault. Where death or
permanent disablement of any person has resulted from an accident arising
 53

out of the use of a motor vehicle or motor vehicles, the owner of the vehicles
shall, or, as the case may be, the owners of the vehicles shall, jointly and
severally, be liable to pay compensation in respect of such death or
disablement in accordance with the provisions of this section.

(a) The amount of compensation which shall be payable under section 140
(1) in respect of the death of any person shall be a fixed sum of 45[fifty
thousand rupees] and the amount of compensation payable under that
sub-section in respect of the permanent disablement of any person shall
be a fixed sum of 46[twenty – five thousand rupees].

(b) In any claim for compensation under section 140 (1), the claimant shall
not be required to plead and establish that the death or permanent
disablement in respect of which the claim has been made was due to any
wrongful act, neglect or default of the owner or owners of the vehicle or
vehicles concerned or of any other person.

(c) A claim for compensation under section 140 (1) shall not be defeated by
reason of any wrongful act, neglect or default of the person in respect of
whose death or permanent disablement the claim has been made nor
shall the quantum of compensation recoverable in respect of such death
or permanent disablement be reduced on the basis of the share of such
person in the responsibility for such death or permanent disablement.

(d) Notwithstanding anything contained in Section 140(2) regarding death

or bodily injury to any person47, for which the owner of the vehicle is
liable to give compensation for relief, he is also liable to pay
compensation under any other law for the time being in force:

45
Substituted for “twenty – five thousand rupees” by Act 54 of 1994, S. 43 (w.e.f. 14-11-1994).
46
Substituted, for “twelve thousand rupees” by Act 54 of 1994, S. 43 (w.e.f. 14-11-1994).
47
Inserted, Ibid. (w.e.f. 14-11-1994).
 54

Provided that the amount of such compensation to be given under any

other law shall be reduced from the amount of compensation payable
under this section or under section 163 – A”.

Section 140 of the Act provides that in case of death or permanent

disablement of any person resulting from an accident which arise out of use
of a Motor Vehicle/s, the owner of offending vehicle/s shall be liable jointly
or severally to pay compensation in respect of such death or permanent
disablement. Under this section amount of compensation is a fixed amount of
Rs. 50,000/- in case of death and Rs. 25,000/- in case of permanent
disablement. For claiming such compensation, claimant is not required to
plead that such accident is occurred due to negligence or fault of the owner/
driver of the vehicle and death or permanent disablement is result of that
accident. Moreover, such claim shall not be defeated by reason of any
wrongful act, neglect or default on the part of the person whose death or
disablement has been occurred. Nor the quantum of compensation shall be
reduced due to contributory negligence on the part of person who sustained
disablement or death.

Compensation awarded under this section does not barred the victim to claim
compensation under any other law being in force, though the amount of such
compensation to be given under any other law shall be reduced by the
amount of compensation payable under no fault liability under this section or
in accordance with the structured formula laid down under schedule -2 to this
Act read with Section 163A of the Act.
 55

In Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani48case it was

held by the Double Bench of the Mumbai High Court that the phrase ‘has
resulted from’ occurring in section 140 of the Motor Vehicles Act, 1988 does
not require the death to have occurred in the accident itself. The section is
attracted even where death is result or the consequence of the accident arising
out of a motor vehicle. What is necessary to see is whether the death is the
consequence of an accident arising out of use of motor vehicle.

In New India Assurance Co. Ltd v. Mehebubanbibi49 case the deceased

was deputed by his employer to carry a damaged transformer in a tractor. The
tractor fell in to a ditch. The deceased was pressed under the damaged
transformer, sustained injuries and died in hospital. Death of the deceased
had arisen out of and in course of his employment. Though the case was not
one of no fault liability, but as the accident had occurred due to negligence of
the driver of the tractor, yet the fact of the case attract for a claim of double
compensation under two different laws, irrespective of whether the claim is
based on fault liability or on no fault liability.

What is material is that a claim under the Motor Vehicles Act is no bar to
claiming compensation, if permissible, also under a different law. The
Double Bench of Gujarat High Court held that the heirs of deceased in such
case could claim compensation both under the Motor Vehicles Act for
negligence of the driver of the tractor and also under Worken’s
Compensation Act, 1923 for death occurring out of and in the course of
employment.

48
Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani, 2005 (1) ACJ 255 (Mum) DB
49
New India Assurance Co. Ltd v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB
 56

In Ram Singh v. Anil50 it was held by the High Court that when occurrence
of accident is proved to have arisen out of use of Motor Vehicle, it is not
necessary to plead or prove negligence of driver of vehicle under Section
163A.

In National Insurance Co. Ltd. v. Honnappa51 in a claim under no fault

liability, claimant need not plead or establish that permanent disablement was
due to wrongful act or negligence or default of owner of the other vehicle
with which the vehicle of claimant has colluded.

In Pepsu Road Transport Corp. v. Kulwant Kaur52’s case it was held by

the supreme court that section 140, as it came in to effect from 01.07.1989, is
not retrospective. Hence the provision amended with effect from 14.11.1994
is also not retrospective. Therefore, in accident which occurred on
30.11.1982, and decided on 16.07.1984, the claimant was entitled only Rs.
15,000/- as per provisions of section 92A of the Motor Vehicles Act, 1939.

The right to claim compensation under section 140 in respect of death or

permanent disablement of any person shall be in addition to any other right,
except the right to claim under the scheme referred to in section 163 – A
(such other right hereafter in this section referred to as the right on the
principle of fault) to claim compensation in respect thereof under any other
provision of this Act or of any other law for the time being in force53.

A claim for compensation under section 140 in respect of death or permanent

disablement of any person shall be disposed of as expeditiously as possible
and where compensation is claimed in respect of such death or permanent

50
Ram Singh v. Anil, 2009 ACJ 73 (MP) DB
51
National Insurance Co. Ltd. v. Honnappa, 2008 (3) ACC 726 (Karn) DB
52
Pepsu Road Transport Corp. v. Kulwant Kaur, 2009 ACJ 1329
53
The Motor Vehicles Act, 1988, Section 141 (1)
 57

disablement under section 140 and also in pursuance of any right on the
principle of fault, the claim for compensation under section 140 shall be
disposed of as aforesaid in the first place54.

Notwithstanding anything contained in section 141(1), where in respect of

the death or permanent disablement of any person, the person liable to pay
compensation under section 140 is also liable to pay compensation in
accordance with the right on the principle of fault, the person so liable shall
pay the first-mentioned compensation and if the amount of the first-
mentioned compensation is less than the amount of the second- mentioned
compensation, he shall be liable to pay (in addition to the first-mentioned
compensation) only so much of the second-mentioned compensation as is
equal to the amount by which it exceeds the first-mentioned compensation
and also if the amount of the first-mentioned compensation is equal to or
more than the amount of the second-mentioned compensation, he shall not be
liable to pay the second-mentioned compensation55.

For the purposes of this Chapter, permanent disablement of a person shall be

deemed to have resulted from an accident of the nature referred to in sub-
section (1) of section 140 if such person has suffered by reason of the
accident, any injury or injuries involving permanent privation of the sight of
either eye or the hearing of either ear, or privation of any member or joint; or
destruction or permanent impairing of the powers of any members or joint; or
permanent disfiguration of the head or face56.

The provisions of this Chapter shall also apply in relation to any claim for
compensation in respect of death or permanent disablement of any person

54
Ibid, Section 141 (2)
55
Ibid, Section 141 (3)
56
Ibid, Section 142
 58

under the Workmen’s Compensation Act, 1923 (8 of 1923) resulting from an

accident of the nature referred to in sub-section (1) of section 140 and for this
purpose, the said provisions shall, with necessary modifications, be deemed
to form part of that Act57.

The provisions of this Chapter shall have effect notwithstanding anything

contained in any other provision of this Act or of any other law for the time
being in force58.

II. Necessity of Insurance Against Third Party Risk.

Chapter XI of the Motor Vehicles Act, 1988 deals with Provisions regarding
insurance of motor vehicles against third party risks.

Section 145 of the Act defines certain terms like authorized insurer,
certificate of insurance, liability, policy, property etc., which terms are
relevant to motor insurance against third party. Some of the definitions are as
under:

(a) Authorised Insurer

The term Authorised Insurer means an insurer for the time being carrying
on general insurance business in India under the General Insurance
Business (Nationalisation) Act, 1972, and any Government insurance fund
authorised to do general insurance business under that Act.

(b) Certificate of Insurance

The expression Certificate of Insurance means a certificate issued by an

authorised insurer in pursuance of sub-section (3) of section 147 and

57
Ibid, Section 143
58
Ibid, Section 144
 59

includes a cover note complying with such requirements as may be

prescribed, and where more than one certificate has been issued in
connection with a policy, or where a copy of a certificate has been issued,
all those certificates or that copy, as the case may be.

(c) Liability

The word Liability is here used in relation to the death of or bodily injury to
any person, includes liability in respect thereof under section 140.

(d) Policy of Insurance

Policy of Insurance includes “certificate of insurance”.

(e) Property

The word property includes goods carried in the motor vehicle, roads,
bridges, culverts, causeways, trees, posts and mile-stones;

In United India Insurance Co. Ltd. v. Kadviben Udabhai Rathwa59 it

was held by the Full Bench of the Gujarat High Court that insurer is not
entitled to raise any defence under section 149 (2) in an application under
section 140.

(f) Goods

Goods as defined in section 2 (13) of the Act includes livestock and

anything carried by a vehicle except living persons.

59
United India Insurance Co. Ltd. v. Kadviben Udabhai Rathwa, 2006 ACJ 2019
 60

In National Insurance Co. Ltd. v. Khushboo60 it was held by Patna High

Court that goods does not include luggage or personal effects carried in a
motor car or in a trailer attached to a motor car or the personal luggage of
passengers travelling in the vehicle.

In National Insurance Co. Ltd. v. Phool Singh61 it was held by the Punjab
and Haryana High Court that personal effects are not goods. Merely
because the person is going to join his duties was carrying a box, suit case
and bed holder and had paid Rs. 100 as fare, cannot be said to be owner of
goods.

In National Insurance Co. Ltd. v. Khushboo62it was held that a dead

body comes under the definition of goods.

(g) Reciprocating Country

This word means any such country as may on the basis of reciprocity be
notified by the Central Government in the Official Gazette to be a
reciprocating country for the purposes of this Chapter.

(h) Third Party

The word third party includes the Government.

Section 146 of the Act provides for the necessity for insurance against third
party risk. According to sub-section 1 no person shall use, except as a
passenger, or cause or allow any other person to use, a motor vehicle in a
public place, unless there is in force in relation to the use of the vehicle by

60
National Insurance Co. Ltd. v. Khushboo, 2009 (3) ACC 460 (Pat.)
61
National Insurance Co. Ltd. v. Phool Singh, 2008 ACJ 58
62
Supra n.60
 61

that person or that other person, as the case may be, a policy of insurance
complying with the requirements of this Chapter.

Provided that in the case of a vehicle carrying, or meant to carry, dangerous

or hazardous goods, there shall also be a policy of insurance under the Public
Liability Insurance Act, 199163.

Explanation added to this sub-section states that a person driving a motor

vehicle merely as a paid employee, while there is in force in relation to the
use of the vehicle no such policy as is required by this sub-section, shall not
be deemed to act in contravention of the sub-section unless he knows or has
reason to believe that there is no such policy in force.

The word public place has been defined under section 2(34) of the act to
mean a road, street way or other place, whether a thoroughfare or not, to
which the public have a right of access and includes any place or stand at
which passengers are picked up or set down by a stage carriage.

The word public place was interpreted in the case of Chairman, The
Trustee of Port of Madras v. Suganesan & Co.64 as place accessible to
members of public and available for their use, enjoyment, avocation and
other purposes though right of access thereto may be permissive, limited,
restricted or regulated by tickets, passes, payment or oral or written
permission and any place restricted generally or to a particular purpose or
purposes, such as harbor, port trust, or railway station.

In National Insurance Co. Ltd. v. William Jenifar Ajitha65 it was held by

Madras high Court that even those places of private ownership where

63
Inserted by Act 54 of 1994, S. 45 (w.e.f. 14-11-1994).
64
Chairman, The Trustee of Port of Madras v. Suganesan & Co.,1996 ACJ 1224 (Mad.)
65
National Insurance Co. Ltd. v. William Jenifar Ajitha 2009 ACJ 1042
 62

members of public have access whether free or controlled, falls under public
place.

It was held in Chinna Gangappa v. B.Sanjeeva Reddy66that an accident

which occurred in garage in the process of reversing a tractor, would be held
as accident in a public place, since access to garage is not prohibited to
members of public.

The provision of compulsory insurance shall not apply to any vehicle owned
by the Central Government or a State Government and used for Government
purposes unconnected with any commercial enterprise67.

Sub Section -3 of Section 146 authorised the appropriate Government to

exempt the operation of sub-section (1) for any vehicle owned by the Central
Government or a State Government, if the vehicle is used for Government
purposes connected with any commercial enterprise or any local authority or
any State transport undertaking.

Provided that no such order shall be made in relation to any such authority
unless a fund has been established and is maintained by that authority in
accordance with the rules made in that behalf under this Act for meeting any
liability arising out of the use of any vehicle of that authority which that
authority or any person in its employment may incur to third parties.

Explanation to Section 146 (3) states that for the purposes of this sub-section,
“appropriate Government” means the Central Government or a State
Government, as the case may be, and

66
Chinna Gangappa v. B.Sanjeeva Reddy, 1998 (1) TAC 268 AP
67
The Motor Vehicles Act, 1988, Section 146 (2)
 63

a. In relation to any corporation or company owned by the Central

Government or any State Government, means the Central Government or
that State Government.

b. In relation to any corporation or company owned by the Central

Government & one or more State Governments, means the Central
Government.

c. In relation to any other State transport undertaking or any local authority,

means that Government which has control over that undertaking or
authority.

III. Requirement of Insurance Policy and Limits of Liability Under

Such Policy.

Section 147 of the Act deals with the provisions regarding requirement of
policies and limits of liability.

In order to comply with the requirements of this Chapter, a policy of

insurance must be a policy which (a) is issued by a person who is an
authorised insurer and (b) insurers the person or classes of persons specified
in the policy to the extent specified in Sub Section (2):

a. Against any liability which may be incurred by him in respect of the death
of or bodily injury to any person, including owner of the goods or his
authorised representative carried in the vehicle or damage to any property
of a third party caused by or arising out of the use of the vehicle in a public
place.

b. Against the death of or bodily injury to any passenger of a public service

vehicle caused by or arising out of the use of the vehicle in a public place.
 64

Provided that a policy shall not be required –

(i) To cover liability in respect of the death, arising out of and in the
course of this employment, of the employee of a person insured by the
policy or in respect of bodily injury sustained by such an employee
arising out of and in the course of his employment other than a
liability arising under the Workmen’s Compensation Act, 1923 (8 of
1923), in respect of the death of, or bodily injury to, any such
employee

(a) Engaged in driving the vehicle, or

(b) If it is a public service vehicle, engaged as a conductor of the vehicle

or in examining tickets on the vehicle, or

(c) If it is a goods carriage, being carried in the vehicle, or

(ii) To cover any contractual liability.

An explanation appended to sub section (1) has declared for the removal of
doubts that the death of or bodily injury to any person or damage to any
property of a third party shall be deemed to have been caused by or to have
arisen out of, the use of a vehicle in a public place notwithstanding that the
person who is dead or injured or the property which is damaged was not in a
public place at the time of the accident, if the act or omission which led to the
accident occurred in a public place.

Sub Section (2) of the Section provides that subject to the proviso to sub-
section (1), a policy of insurance referred to in sub-section (1), shall cover
any liability incurred in respect of any accident, up to the following limits,
namely :-
 65

(a) Save as provided in clause (b), the amount of liability incurred.

(b) In respect of damage to any property of a third party, a limit of rupees six
thousand:

Provided that any policy of insurance issued with any limited liability and in
force, immediately before the commencement of this Act, shall continue to
be effective for a period of four months after such commencement or till the
date of expiry of such policy whichever is earlier.

In National Insurance Co. Ltd. v. Puja Roller Flour Mills (P) Ltd.68 It
was held by the apex court that liability under policy issued under ACT of
1939 had stipulated the liability of Insurer to the extent of Rs. 1.5 Lakhs only

In Jameskutty Jacob v. United India Insurance Co. Ltd69it was held by

the Supreme Court that if the policy itself has provided for Rs. 50,000/- than
the insurer cannot be made liable in excess thereof.

In Jayshree Narendra Kataria v. Somnath Damodhar Kale70 it was held

by the Mumbai High Court that where the policy showed limited liability in
respect of any one claim or series of claims arising out of one event upto Rs.
1.5 Lakhs and premium of Rs. 240 was accepted, the liability of insurer was
held unlimited.

Sub Section (3) of Section 147 provides that a policy shall be of no effect for
the purposes of this Chapter unless and until there is issued by the insurer in
favour of the person by whom the policy is effected a certificate of insurance
in the prescribed form and containing the prescribed particulars of any

68
National Insurance Co. Ltd. v. Puja Roller Flour Mills (P) Ltd, 2007 (1) ACC 219
69
Jameskutty Jacob v. United India Insurance Co. Ltd, AIR 2006 SC 3690
70
Jayshree Narendra Kataria v. Somnath Damodhar Kale, 2010 (10) TAC 10 Bom.
 66

condition subject to which the policy is issued and of any other prescribed
matters; and different forms, particulars and matters may be prescribed in
different cases.

Where a cover note issued by the insurer under the provisions of this Chapter
or the rules made there under is not followed by a policy of insurance within
the prescribed time, the insurer shall, within seven days of the expiry of the
period of the validity of the cover note, notify the fact to the registering
authority in whose records the vehicle to which the cover note relates has
been registered or to such other authority as the State Government may
prescribe71.

Notwithstanding anything contained in any law for the time being in force, an
insurer issuing a policy of insurance under this section shall be liable to
indemnify the person or classes of persons specified in the policy in respect
of any liability which the policy purports to cover in the case of that person
or those classes of persons72.

In United India Insurance Co. Ltd. v. Hussain Sab73, the owner of the
goods vehicle as well as the insurance company denied liability on the
ground that the deceased persons were not travelling in the goods vehicle as
passengers but were only pedestrians. The claimants in support of their claim
produced documents relating to criminal case, namely FIR etc., which
disclosed that the deceased were travelling as passengers in the goods
vehicle. It was held that the FIR would be admissible in evidence since strict
rules of evidence are not applicable to trials and enquiry relating to motor
accident claims.

71
The Motor Vehicles Act, 1988, Section 147 (4)
72
Ibid, Section 147 (5)
73
United India Insurance Co. Ltd. v. Hussain Sab, AIR 2006 (NOC) 437 (Kar.)
 67

In the case of M.V.Jayadevappa v. Oriental Fire and General Insurance

Co. Ltd.74 It was held by the apex court that a vehicle described in the
Schedule annexed with policy as ‘Cheverolet Lorry with open body’ with its
licensed carrying capacity as 2 tons is a good vehicle when it is nowhere
written in policy that it was authorised to carry passengers.

IV. Validity of Polices of Insurance Issued in Reciprocating Countries

Section 148 of the ACT relates to validity of polices of insurance issued in

reciprocating countries. Which states that where, in pursuance of an
arrangement between India and any reciprocating country, the motor vehicle
registered in the reciprocating country operates on any route or within any
area common to the two countries and there is in force in relation to the use
of the vehicle in the reciprocating country, a policy of insurance complying
with the requirements of the law of insurance in force in that country, then,
notwithstanding anything contained in section 147 but subject to any rules
which may be made under section 164, such policy of insurance shall be
effective throughout the route or area in respect of which, the arrangement
has been made, as if the policy of insurance had complied with the
requirements of this Chapter.

V. Liability of Insurer and Defence Available to Insurer.

Section 149 of the Act provides for liability of insurer and defences available
to insurer in a case of Motor Accident filed before a Motor Accident Claims
Tribunal and provides for duties of insurers to satisfy judgments and awards
against persons insured in respect of third party risks. If, after a certificate of
insurance has been issued under sub-section (3) of section 147 in favour of
the person by whom a policy has been effected, judgement or award in
74
M.V.Jayadevappa v. Oriental Fire and General Insurance Co. Ltd.,2005 ACJ (3) 1801 (SC)
 68

respect of any such liability as is requirement to be covered by a policy under

clause (b) of sub-section (1) of section 147 (being a liability covered by the
terms of the policy) 91[or under the provisions of section 163 – A] is
obtained against any person insured by the policy, then, notwithstanding that
the insurer may be entitled to avoid of cancel or may have avoided or
cancelled the policy, the insurer shall, subject to the provisions of this
section, pay to the person entitled to the benefit of the decree any sum not
exceeding the sum assured payable there under, as if he were the judgement
debtor, in respect of the liability, together with any amount payable in respect
of costs and any sum payable in respect of interest on that sum by virtue of
any enactment relating to interest on judgements75.

No sum shall be payable by an insurer under sub-section (1) in respect of any

judgement or award unless, before the commencement of the proceedings in
which the judgement or award is given the insurer had notice through the
Court or, as the case may be, the Claims Tribunal of the bringing of the
proceedings, or in respect of such judgement or award so long as execution is
stayed thereon pending an appeal; and an insurer to whom notice of the
bringing of any such proceedings is so given shall be entitled to be made a
party thereto and to defend the action on any of the following grounds:

a. That there has been a breach of a specified condition of the policy, being
one of the following conditions:-

i. A condition excluding the use of the vehicle

a) for hire or reward, where the vehicle is on the date of the contract
of insurance a vehicle not covered by a permit to ply for hire or
reward, or

75
The Motor Vehicles Act, 1988, Section 149 (1)
 69

b) for organised racing and speed testing, or

c) for a purpose not allowed by the permit under which the vehicle
is used, where the vehicle is a transport vehicle, or

d) without side-car being attached where the vehicle is a motor

cycle; or

ii. A condition excluding driving by a named person or persons or by

any person who is not duly licenced, or by any person who has
been disqualified for holding or obtaining a driving licence during
the period of disqualification; or

iii. A condition excluding liability for injury caused or contributed to

by conditions of war, civil war, riot or civil commotion; or

b. That the policy is void on the ground that it was obtained by the non-
disclosure of a material fact or by a representation of fact which was false
in some material particular76.

Where any such judgement as is referred to in sub-section (1) is obtained

from a Court in a reciprocating country and in the case of a foreign
judgement is, by virtue of the provisions of section 13 of the Code of Civil
Procedure, 1908 conclusive as to any matter adjudicated upon by it, the
insurer (being an insurer registered under the Insurance Act, 1938 and
whether or not he is registered under the corresponding law of the
reciprocating country) shall be liable to the person entitled to the benefit of
the decree in the manner and to the extent specified in sub-section (1), as if
the judgement were given by a Court in India :

76
Ibid, Section 149 (2)
 70

Provided that no sum shall be payable by the insurer in respect of any such
judgement unless, before the commencement of the proceedings in which the
judgement is given, the insurer had notice through the Court concerned of the
bringing of the proceedings and the insurer to whom notice is so given is
entitled under the corresponding law of the reciprocating country, to be made
a party to the proceedings and to defend the action on grounds similar to
those specified in sub-section (2)77.

Section 13 of Civil Procedure Code reads as under:

a. When foreign judgment not conclusive? A foreign judgment shall be

conclusive as to any matter thereby directly adjudicated upon between
the same parties or between parties under whom they or any of them
claim litigating under the same title except?

b. Where it has not been pronounced by a Court of competent jurisdiction;

c. Where it has not been given on the merits of the case;

d. Where it appears on the face of the proceedings to be founded on an

incorrect view of international law or a refusal to recognize the law of
India in cases in which such law is applicable;

e. Where the proceedings in which the judgment was obtained are opposed
to natural justice;

f. Where it has been obtained by fraud;

77
Ibid, Section 149 (3)
 71

g. Where it sustains a claim founded on a breach of any law in force in

India78.

Sub Section (4) of the section states that where a certificate of insurance has
been issued under sub-section (3) of section 147 to the person by whom a
policy has been effected, so much of the policy as purports to restrict the
insurance of the persons insured thereby by reference to any conditions other
than those in clause (b) of subsection (2) shall, as respects such liabilities as
are required to be covered by a policy under clause (b) of sub-section (1) of
section 147, be of no effect.

Provided that any sum paid by the insurer in or towards the discharge of any
liability of any person which is covered by the policy by virtue only of this
sub-section shall be recoverable by the insurer from that person79.

Sub-Section 5 states that if the amount which an insurer becomes liable under
this section to pay in respect of a liability incurred by a person insured by a
policy exceeds the amount for which the insurer would apart from the
provisions of this section be liable under the policy in respect of that liability,
the insurer shall be entitled to recover the excess from that person.

Sub Section 6 defines the expression “material fact” and “material particular”
means, respectively, a fact or particular of such a nature as to influence the
judgement of a prudent insurer in determining whether he will take the risk
and, if so, at what premium and on what conditions, and the expression
“liability covered by the terms of the policy” means liability which is covered

78
Civil Procedure Code, 1908, Section 13
79
The Motor Vehicles Act, 1988, Proviso to Section 149 (4)
 72

by the policy or which would be so covered but for the fact that the insurer is
entitled to avoid or cancel or has avoided or cancelled the policy80.

Sub Section 7 provides that no insurer to whom the notice referred to in sub-
section (2) or sub-section (3) has been given shall be entitled to avoid his
liability to any person entitled to the benefit of any such judgement or award
as is referred to in sub-section (1) or in such judgement as is referred to in
sub-section (3) otherwise than in the manner provided for in sub-section (2)
or in the corresponding law of the reciprocating country, as the case may be.

For the purposes of this section, “Claims Tribunal” means a Claims Tribunal
constituted under section 165 and “award” means an award made by that
Tribunal under section 16881.

VI. Third Party Insurance: Defence Available to the Insurer.

The Insurance Company cannot avoid the liability except on the grounds and
not any other ground, which have been provided in Section 149(2). In recent
time, Supreme Court while dealing with the provisions of Motor Vehicle Act
has held that even if the defence has been pleaded and proved by the
Insurance Company, they are not absolve from liability to make payment to
the third party but can receive such amount from the owner insured. The
courts one after one have held that the burden of proving availability of
defence is on Insurance Company and Insurance Company has not only to
lead evidence as to breach of condition of policy or violation of provisions of
Section 149(2) but has to prove also that such act happens with the
connivance or knowledge of the owner. If knowledge or connivance has not

80
Ibid, Section 149 (6)
81
Ibid, Explanation to Section 149 (7)
 73

been proved, the Insurance Company shall remain liable even if defence is
available.

VII. Right of Recovery from Owner to Insurance Company

With the development of law, liability of the insurance Company has been
made strict to the third party even if there is no negligence or defences to the
Insurance Company are available. A right has been given to the Insurance
Company by way of legal precedents incorporating various provisions to
recover the said amount paid to third party from owner. This recovery can be
made by mere filing of an execution application and not by a separate civil
suit.

VIII. Rights of Third Party Against Insurers on Insolvency of Insured.

Section 150 of the Act provides for the rights of third parties against insurers
on insolvency of the insured. Sub section (1) of the Section provides that
where under any contract of insurance effected in accordance with the
provisions of this Chapter, a person is insured against liabilities which he
may incur to third parties, then in the event of the person becoming insolvent
or making a composition or arrangement with his creditors, or where the
insured person is a company, in the event of a winding-up order being made
or a resolution for a voluntary winding-up being passed with respect to the
company or of a receiver or manager of the company’s business or
undertaking being duly appointed, or of possession being taken by or on
behalf of the holders of any debentures secured by a floating charge of any
property comprised in or subject to the charge, if, either before or after that
event, any such liability is incurred by the insured person, his rights against
the insurer under the contract in respect of the liability shall, notwithstanding
 74

anything to the contrary in any provision of law, be transferred to and vest in

the third party to whom the liability was so incurred.

Where an order for the administration of the estate of a deceased debtor is

made according to the law of insolvency, then, if any debt provable in
insolvency is owing by the deceased in respect of a liability to a third party
against which he was insured under a contract of insurance in accordance
with the provisions of this Chapter, the deceased debtor’s rights against the
insurer in respect of that liability shall, notwithstanding anything to the
contrary is any provision of law, be transferred to and vest in the person to
whom the debt is owing82.

Any condition in a policy issued for the purposes of this Chapter purporting
either directly or indirectly to avoid the policy or to alter the rights of the
parties there under upon the happening to the insured person of any of the
events specified in clause (a) or clause (b) of sub-section (1) or upon the
making of an order for the administration of the estate of a deceased debtor
according to the law of insolvency shall be of no effect83.

Upon a transfer under sub-section (1) or sub-section (2), the insurer shall be
under the same liability to the third party as he would have been to the
insured person, but (a) if the liability of the insurer to the insured person
exceeds the liability of the insured person to the third party, nothing in this
Chapter shall affect the rights of the insured person against the insurer in
respect of the excess, and (b) if the liability of the insurer to the insured
person is less than the liability of the insured person to the third party,

82
Ibid Section 150 (2)
83
Ibid, Section 150 (3)
 75

nothing in this Chapter shall affect the rights of the third party against the
insured person in respect of the balance84.

IX. Duty to Give Information as to Insurance.

Section 151 of the Act provides about the duty to give information as to
insurance. No person against whom a claim is made in respect of any liability
referred to in clause (b) of sub-section (1) of section 147 shall on demand by
or on behalf of the person making the claim refuse to state whether or not he
was insured in respect of that liability by any policy issued under the
provisions of this Chapter, or would have been so insured if the insurer had
not avoided or cancelled the policy, nor shall he refuse, if he was or would
have been so insured, to give such particulars with respect to that policy as
were specified in the certificate of insurance issued in respect hereof85.

In the event of any person becoming insolvent or making a composition or

arrangement with his creditors or in the event of an order being made for the
administration of the estate of a deceased person according to the law of
insolvency, or in the event of a winding-up order being made or a resolution
for a voluntary winding-up being passed with respect to any company or of a
receiver or manager of the company’s business or undertaking being duly
appointed or of possession being taken by or on behalf of the holders of any
debentures secured by a floating charge on any property comprised in or
subject to the charge, it shall be the duty of the insolvent debtor, personal
representative of the deceased debtor or company, as the case may be, or the
official assignee or receiver in insolvency, trustee, liquidator, receiver or
manager, or person in possession of the property to give at the request of any
person claiming that the insolvent debtor, deceased debtor or company is

84
Ibid, Section 150 (4)
85
The Motor Vehicles Act, 1988, Section 151 (1)
 76

under such liability to him as is covered by the provision of this Chapter,

such information as may reasonably be required by him for the purpose of
ascertaining whether any rights have been transferred to an vested in him by
section 150, and for the purpose of enforcing such rights, if any; and any
such contract of insurance as purports whether directly or indirectly to avoid
the contract or to alter the rights of the parties there under upon the giving of
such information in the events aforesaid, or otherwise to prohibit or prevent
the giving thereof in the said events, shall be of no effect86.

If, from the information given to any person in pursuance of sub section (2)
or otherwise, he has reasonable ground for supporting that there have or may
have been transferred to him under this Chapter rights against any particular
insurer, that insurer shall be subject to the same duty as is imposed by the
said sub-section on the persons therein mentioned87.

The duty to give the information imposed by this section shall include a duty
to allow all contracts of insurance, receipts for premiums, and other relevant
documents in the possession or power of the person on whom the duty so
imposed to be inspected and copies thereof to be taken88.

X. Effect of Settlement Between Insure and Insured.

Section 152 of the Act concerned with the effect of any settlement between
insurers and insured persons. No settlement made by an insurer in respect of
any claim which might be made by a third party in respect of any liability of
the nature referred to in clause (b) of sub-section (1) of section 147 shall be
valid unless such third party is a party to the settlement89.

86
Ibid, Section 151 (2)
87
Ibid, Section 151 (3)
88
Ibid, Section 151 (4)
89
The Motor Vehicles Act, 1988, Section 152 (1)
 77

Where a person who is insured under a policy issued for the purpose of this
Chapter has become insolvent, or where, if such insured person is a company,
a winding-up order has been made or a resolution for a voluntary winding-up
has been passed with respect to the company, no agreement made between
the insurer and the insured person after the liability has been incurred to a
third party and after the commencement of the insolvency or winding-up, as
the case may be, nor any waiver, assignment or other disposition made by or
payment made to the insured person after the commencement aforesaid shall
be effective to defeat the rights transferred to the third party under this
Chapter, but those rights shall be the same as if no such agreement, waiver,
assignment or disposition or payment has been made90.

XI. Driving License

Earlier not holding a valid driving license was a good defence to the
Insurance Company to avoid liability. It was been held by the Supreme Court
that the Insurance Company is not liable for claim if driver is not holding
effective & valid driving licence. It has also been held that the learner's
licence absolves the insurance Company from liability, but later Supreme
Court in order to give purposeful meaning to the Act have made this defence
very difficult. In Sohan Lal Pasi's case it has been held for the first time by
the Supreme Court that the breach of condition should be with the knowledge
of the owner. If owner's knowledge with reference to fake driving licence
held by driver is not proved by the Insurance Company, such defence, which
was otherwise available, can not absolve insurer from the liability. Recently
in a dynamic judgment in case of Swaran Singh, the Supreme Court has
almost taken away the said right by holding;

90
Ibid, Section 152 (2)
 78

a. Proving breach of condition or not holding driving licence or holding

fake licence or carrying gratuitous passenger would not absolve the
Insurance Company until it is proved that the said breach was with the
knowledge of owner.

b. Learner's licence is a licence and will not absolve Insurance Company

from liability.

c. The breach of the conditions of the policy even within the scope of
Section 149(2) should be material one which must have been effect
cause of accident and thereby absolving requirement of driving licence
to those accidents with standing vehicle, fire or murder during the
course of use of vehicle.

This judgment has created a landmark history and is a message to the

Government to remove such defence from the legislation as the victim has to
be given compensation.

XII. Gratuitous Passenger

In United India Insurance Co. Ltd. v. Bodali Bai91 where the owner had
permitted the truck to be used for taking a dead body for cremation and on
return journey the driver allowed two passengers, then on death of those
passengers as truck had dashed against a bridge, the insurer is not liable
because the deceased were gratuitous passengers, but the owner was held
vicariously liable.

In New India Assurance Co. Ltd. v. Santra Devi 92 it was held by the court
that so far as taking gratuitous passengers in goods carriage is concerned, the

91
United India Insurance Co. Ltd. v. Bodali Bai, 2009 ACJ 2213 (Chhat.).
92
New India Assurance Co. Ltd. v. Santra Devi, 2007 ACJ 2273 (P&H) DB.
 79

law is settled that insurer cannot be made liable, since a commercial vehicle
is not at all meant for carrying passengers.

The Liability of the insurance company to pay compensation on account of

death or bodily injury to any person who was travelling by the vehicle does
not depend upon whether the person concerned was a gratuitous passenger or
had paid fare for the journey performed by him. What is important is whether
the person was killed or injured while travelling in or upon or entering or
mounting or alighting from the motor vehicle and not whether he had or had
not paid any fare for such travel93.

Status of passenger is matter of evidence. Where insurer has failed to prove

that deceased was gratuitous passenger, it cannot avoid its liability94.

Where the claimants were travelling as gratuitous passengers in a jeep

covered by ‘Act only’ policy covering risk in respect of third party only in
respect of such private vehicle let out on hire, and there was no mention in
the policy for coverage of any occupants of jeep, no liability could be
fastened on the insurer95.

A gratuitous or fare paying passenger in a goods vehicle or fare paying

passenger in private vehicle has been proved to be a good defence. In Motor
Vehicle Act 1939 the gratuitous passenger was not covered under the
insurance policy but a fare passenger in a goods vehicle was considered to be
covered by 5 Judges Bench judgment of Rajasthan High Court. In new Motor
Vehicle Act, a Division Bench of Supreme Court held that Insurance
Company is liable for a passenger in goods vehicle. In another judgment of 3
Judges Bench of Supreme Court it was held that the Insurance Company is

93
New India Assurance Co. Ltd. v. Vibhuti, 2004 ACJ 769 (Karn.) DB.
94
United India Insurance Co. Ltd. v. Surinder, 2006 ACJ 1285 (P&H.) DB.
95
Oriental Insurance C. Ltd. v. Arati Mishra, AIR, 2010 (NOC) 17
 80

not liable for the gratuitous passenger traveling in the goods vehicle. In
number of other cases this judgment has been reiterated with a direction that
the Insurance Company shall first make payment of the compensation to the
claimant and then recover it from the owner.

XIII. Effect of Dishonour of Cheque of Insurance Premium

It has been held by the Supreme Court that once the Cover Note is issued the
Insurance Company is bound to make payment to a third party and can
recover amount from owner. This judgment deserves to be reviewed else
Section 64 VB of Insurance Act will become non-existent. This judgment can
give momentum to those persons who will get the insurance and will get their
cheque been bounced as the liability of Insurance Company will run for
another one year without there being a premium. This may be opposed to
public policy also. Further there will be clash between the two provisions.

XIV. Effect of Transfer of Vehicle

Transfer of a vehicle prior to accident has been held to be not valid defence
for the purpose of third party liability. It can be a defence for own damage
but as far as third party liability, even the vehicle has been transferred and
policy has not been transferred, liability of Insurance Company shall remain
there.

XV. Saving Clause

Section 153 of the Act is a saving clause stating that for the purposes of
section 150,151 and 152 a reference to “liabilities to third parties” in relation
to a person insured under any policy of insurance shall not include a
reference to any liability of that person in the capacity of insurer under some
other policy of insurance.
 81

The provisions of section 150, 151 and 152 shall not apply where a company
is wound-up voluntarily merely for the purposes of reconstruction or of an
amalgamation with another company.

XVI. Effect of Insolvency of Insured

Section 154 of the ACT deals with effect of insolvency of insured. Where a
certificate of insurance has been issued to the person by whom a policy has
been effected, the happening in relation to any person insured by the policy
of any such event as is mentioned in sub-section (1) or sub-section (2) of
section 150 shall, notwithstanding anything contained in this Chapter, not
affect any liability of that person of the nature referred to in clause (b) of sub-
section (1) of section 147; but nothing in this section shall affect any rights
against the insurer conferred under the provisions of section 150,151 and 152
on the person to whom the liability was incurred.

XVII. Effect of Death on Certain Causes of Action.

Section 155 of the Act deals with effect of death on certain causes of action.
It provides that notwithstanding anything contained in section 306 of the
Indian Succession Act, 1925 of the death of a person in whose favour a
certificate of insurance had been issued, if it occurs after the happening of an
event which has given rise to a claim under the provisions of this Chapter,
shall not be a bar to the survival of any cause of action arising out of the said
event against his estate or against the insurer.

XVIII. Effect of Certificate of Insurance.

Section 156 of the Act provides the effect of certificate of insurance. When
an insurer has issued a certificate of insurance in respect of a contract of
 82

insurance between the insurer and the insured person, then - (a) if and so long
as the policy described in the certificate has not been issued by the insurer to
the insured, the insurer shall, as between himself and any other person except
the insured, be deemed to have issued to the insured person a policy of
insurance conforming in all respects with the description and particulars
stated in such certificate; and (b) if the insurer has issued to the insured the
policy described in the certificate, but the actual terms of the policy are less
favourable to persons claiming under or by virtue of the policy against the
insurer either directly or through the insured than the particulars of the policy
as stated in the certificate, the policy shall, as between the insurer and any
other person except the insured, be deemed to be in terms conforming in all
respects with the particulars stated in the said certificate.

XIX. Effect of Transfer of Certificate of Insurance.

Section 157 of the Act stated the effect of transfer of certificate of insurance.
It provides that where a person in whose favour the certificate of insurance
has been issued in accordance with the provisions of this Chapter transfer to
another person the ownership of the another vehicle in respect of which such
insurance was taken together with the policy of insurance relating thereto, the
certificate of insurance and the policy described in the certificate shall be
deemed to have been transferred in favour of the person to whom the motor
vehicle is transferred with effect from the date of its transfer.

For the removal of doubts, it is hereby declared that such deemed transfer
shall include transfer of rights and liabilities of the said certificate of
insurance and policy of insurance96.

96
Ibid, Explanation to Section 157 (1)
 83

The transferee shall apply within fourteen days from the date of transfer in
the prescribed form to the insurer for making necessary changes in regard to
the fact of transfer in the certificate of insurance and the policy described in
the certificate in his favour and the insurer shall make the necessary changes
in the certificate and the policy of insurance in regard to the transfer of
insurance97.

In G.Govindan v. New India Assurance Co. Ltd.98 it was held by the

Supreme Court that compensation to the victim cannot be denied merely on
the ground that the policy had not been transferred.

In Ram Chander v. Naresh Kumar99 it was held by the High Court that
there should be no error in making the transferee owner liable instead of the
insurer.

XX. Production of Certain Certificates, Licence and Permit etc.

Section 158 of the Act, provides the details as to production of certain

certificates, licence and permit in certain cases. This section states that any
person driving a motor vehicle in any public place shall, on being so required
by a police officer in uniform authorised in this behalf by the State
Government, should produce the following:

a) the certificate of insurance;

b) the certificate of registration;

c) the driving licence; and

97
Ibid, Section 157 (2)
98
G. Govindan v. New India Assurance Co. Ltd, AIR 1999 SC 1398
99
Ram Chander v. Naresh Kumar, 2000 ACJ 727 (P&H) DB
 84

d) in the case of a transport vehicle also the certificate of fitness referred to

in section 56 and the permit, relating to the use of the vehicle.

If, where owing to the presence of a motor vehicle in a public place an

accident occurs involving death or bodily injury to another person, the driver
of the vehicle does not at the time produce the certificate, driving licence and
permit referred to in sub-section (1) to a police officer, he shall produce the
said certificates, licence and permit at the police station at which he makes
the report required by section 134100.

No person shall be liable to conviction under sub-section (1) or sub-section

(2) by reason only of the failure to produce the certificate of insurance if,
within seven days from the date on which its production was required under
sub-section (1), or as the case may be, from the date of occurrence of the
accident, he produces the certificate at such police station as may have been
specified by him to the police officer who required its production or, as the
case may be, to the police officer at the site of the accident or to the officer-
in-charge of the police station at which he reported the accident101.

Provided that except to such extent and with such modifications as may be
prescribed, the provisions of this sub-section shall not apply to the driver of a
transport vehicle102.

The owner of a motor vehicle shall give such information as he may be

required by or on behalf of a police officer empowered in this behalf by the
State Government to give for the purpose of determining whether the vehicle
was or was not being driven in contravention of section 146 and on any

100
The Motor Vehicles Act, 1988, Section 158 (2)
101
Ibid, Section 158 (3)
102
Ibid, Provisio to Section 158 (3)
 85

occasion when the driver was required under this section to produce his
certificate of insurance103.

In this section, the expression “produce his certificate of insurance” means

produce for examination the relevant certificate of insurance or such other
evidence as may be prescribed that the vehicle was not being driven in
contravention of section 146104.

As soon as any information regarding any accident involving death or bodily

injury to any person is recorded or report under this section is completed by a
police officer, the officer-in-charge of the police station shall forward a copy
of the same within thirty days from the date of recording of information or, as
the case may be, on completion of such report to the Claims Tribunal having
jurisdiction and a copy thereof to the concerned insurer, and where a copy is
made available to the owner, he shall also within thirty days of receipt of
such report, forward the same to such Claims Tribunal and insurer105.

XXI. Production of Certificate of Insurance on Application for

Authority to Use Vehicle.

Section 159 of the ACT provides for the production of certificate of

insurance on application for authority to use vehicle. It provides that a State
Government may make rules requiring the owner of any motor vehicle when
applying whether by payment of a tax or otherwise for authority to use the
vehicle in a public place to produce such evidence as may be prescribed by
those rules to the effect that either on the date when the authority to use the
vehicle comes into operation there will be in force the necessary policy of
insurance in relation to the use of the vehicle by the applicant or by other
103
Ibid, Section 158 (4)
104
Ibid, Section 158 (5)
105
The Motor Vehicles Act, 1988, Section 158 (6)
 86

persons on his order or with his permission, or the vehicle is a vehicle to

which section 146 does not apply.

XXII. Duty to Furnish Particulars of Vehicle Involved in Accident.

Section 160 of the Act deals with duty to furnish particulars of vehicle
involved in accident. It states that a registering authority or the officer-in-
charge of a police station shall, if so required by a person who alleges that he
is entitled to claim compensation in respect of an accident arising out of the
use of a motor vehicle, or if so required by an insurer against whom a claim
has been made in respect of any motor vehicle, furnish to that person or to
that insurer, as the case may be, on payment of the prescribed fee any
information at the disposal of the said authority or the said police officer
relating to the identification marks and other particulars of the vehicle and
the name and address of the person who was using the vehicle at the time of
the accident or was injured by it and the property, if any, damaged in such
form and within such time as the Central Government may prescribe.

XXIII. Special Provisions as to Compensation in Case of Hit and Run

Motor Accident.

Section 161 of the Act provides for special provisions as to compensation in

case of hit and run motor accident. It provides that for the purposes of this
section, section 162 and section 163 –

a) “grievous hurt” shall have the same meaning as in the Indian Penal Code,
1860.

b) “hit and run motor accident” means an accident arising out of the use of
a motor vehicle or motor vehicles the identity whereof cannot be
ascertained in spite of reasonable efforts for the purpose;
 87

c) “scheme” means the scheme framed under section 163.

Notwithstanding anything contained in the General Insurance Business

(Nationalisation) Act, 1972 or any other law for the time being in force or
any instrument having the force of law, the General Insurance Corporation of
India formed under section 9 of the said Act and the insurance companies for
the time being carrying on general insurance business in India shall provide
for paying in accordance with the provisions of this Act and the scheme,
compensation in respect of the death of, or grievous hurt to, persons resulting
from hit and run motor accidents106.

Subject to the provisions of this Act and the scheme, compensation shall be
paid in respect of the death of any person resulting from a hit and run motor
accident, a fixed sum of twenty-five thousand rupees and in respect of
grievous hurt to any person resulting from a hit and run motor accident, a
fixed sum of twelve thousand and five hundred rupees107.

The provisions of sub-section (1) of section 166 shall apply for the purpose
of making applications for compensation under this section as they apply for
the purpose of making applications for compensation referred to in that sub-
section108.

In Moosola Rama Rao v. District Collector, Srikakalum109 it was held by

the high court that the applications for compensation under that Scheme have
to be decided expeditiously. Where an application for compensation in a hit
and run accident had been kept pending for more than four years, direction
was issued, in writ jurisdiction, to decide the application within three months.

106
Ibid, Section 161 (2)
107
Ibid, 1988, Section 161 (3)
108
Ibid, Section 161( 4)
109
Moosola Rama Rao v. District Collector, Srikakalum, 2002 ACJ 1085 (AP)
 88

XXIV. Refund of Compensation Paid Under Section 161.

Section 162 of the Act deals with refund in certain cases of compensation
paid under section 161. It provides that the payment of compensation in
respect of the death of or grievous hurt to any person under section 161 shall
be subject to the condition that if any compensation or other amount in lieu
of or by way of satisfaction of a claim for compensation is awarded or paid in
respect of such death or grievous hurt under any other provision of this Act
or any other law or otherwise so much of the other compensation or other
amount aforesaid as is equal to the compensation paid under section 161 shall
be refunded to the insurer.

Before awarding compensation in respect of an accident involving the death

of, or bodily injury to, any person arising out of the use of a motor vehicle or
motor vehicles under any provision of this Act (other than section 161) or
any other law, the Tribunal Court or other authority awarding such
compensation shall verify as to whether in respect of such death or bodily
injury compensation has already been paid under section 161 or an
application for payment of compensation is pending under that section, and
such Tribunal, Court or other authority shall –

a) If compensation has already been paid under section 161, direct the
person liable to pay the compensation awarded by it to refund to the
insurer, so much thereof as is required to be refunded in accordance
with the provisions of sub-section (1).
 89

b) If an application for payment of compensation is pending under section

161 forward the particulars as to the compensation awarded by it to the
insurer110.

For the purpose of this sub-section, an application for compensation under

section 161 shall be deemed to be pending, if such application has been
rejected, till the date of the rejection of the application, and in any other case,
till the date of payment of compensation in pursuance of the application111.

XXV. Scheme for Payment of Compensation in Case of Hit and Run

Motor Accidents.

Section 163 of the Act deals with scheme for payment of compensation in
case of hit and run motor accidents. It provides that the Central Government
may, by notification in the Official Gazette, make a scheme specifying, the
manner in which the scheme shall be administered by the General Insurance
Corporation, the form, manner and the time within which applications for
compensation may be made, the officers or authorities to whom such
applications may be made, the procedure to be followed by such officers or
authorities for considering and passing orders on such applications, and all
other matters connected with, or incidental to, the administration of the
scheme and the payment of compensation.

A scheme made under sub-section (1) may provide that –

(a) a contravention of any provision thereof shall be punishable with

imprisonment for such term as may be specified but in no case
exceeding three months, or with fine which may extend to such amount

110
The Motor Vehicles Act, 1988, Section 162 (2)
111
Ibid, Explanation to Section 162(2)
 90

as may be specified but in no case exceeding five hundred rupees or

with both;

(b) the powers, functions or duties conferred or imposed on any officer or

authority by such scheme may be delegated with the prior approval in
writing of the Central Government, by such officer or authority to any
other officer or authority;

(c) any provision of such scheme may operate with retrospective effect
from a date not earlier than the date of establishment of the Solatium
Fund under the Motor Vehicles Act, 1939 (4 of 1939) as it stood
immediately before the commencement of this Act112.

Provided that no such retrospective effect shall be given so as to prejudicially

affect the interests of any person who may be governed by such provision113.

A hit and run accident is one in which the identity of the offending vehicle
cannot be ascertained since it had hit and run away.

In New India Assurance Co. Ltd v. Rajendra Prasad Bhatt114 it was held
by the court that a Scheme under section 163 in the name of Solatium
Scheme, 1989 has been framed and Rule 20 of that Scheme makes it clear,
that an application for compensation thereunder has to be filed in Form 1
before the Claims Enquiry Officer of the Sub-Division in which the accident
has taken place and not before the Motor Accidents Claims Tribunal.

In Mohammed Iyub v. Muzaheed Pasha115 it was held that in a case when

an uninsured vehicle is involved and the standing of the owner or the user of

112
Ibid, Section 163 (2)
113
Ibid, Proviso to Section 163 (2)
114
New India Assurance Co. Ltd v. Rajendra Prasad Bhatt, 2002 ACJ 1762 (MP)
115
Mohammed Iyub v. Muzaheed Pasha, 2010 (1) TAC 313 (Del.)
 91

the vehicle is not known, the vehicle itself is the most proximate asset, in
respect of which, the claimant in a motor accident, could proceed.
Notwithstanding that the vehicle may have been under the use of a person
other than the owner for hire or otherwise, a charge ought to be fastened on
the vehicle, disabling any disposal of the vehicle to protect claimants such as
the petitioner from recovering some portion of the compensation by bringing
the vehicle to sale. There is no such legal provision available which would
operate to ensure the recovery of money by bringing such a vehicle to sale.

XXVI. Special Provisions as to Payment of Compensation on Structured

Formula Basis.

Section 163A of the Act provides for special provisions as to payment of

compensation on structured formula basis. It provides that notwithstanding
anything contained in this Act or in any other law for the time being in force
or instrument having the force of law, the owner of the motor vehicle or the
authorised insurer shall be liable to pay in the case of death or permanent
disablement due to accident arising out of the use of motor vehicle
compensation, as indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be.

For the purposes of this sub-section, “permanent disability” shall have the
same meaning and extent as in the Workmen’s Compensation Act, 1923116.

In any claim for compensation under sub-section (1), the claimant shall not
be required to plead or establish that the death or permanent disablement in
respect of which the claim has been made was due to any wrongful act or

116
Ibid, Explanation to Section 163A(1)
 92

neglect or default of the owner of the vehicle or vehicles concerned or of any

other person117.

The Central Government may, keeping in view the cost of living by

notification in the Official Gazette, from time to time amend the Second
Schedule118.

Where a person is entitled to claim compensation under section 140 and

section 163-A, he shall file the claim under either of the said sections and not
under both119.

In United India Insurance Co. Ltd. v. Mehtab Bai120it was held by the
High Court that unless the legislature had made Section 163A of the Motor
Vehicles Act, 1988, operative retrospectively, its operation shall only be
prospective.

In Shantaben Gordhandas Bhatt v. Gujarat State Road Transport

Corporation121case it was held that in passing award for compensation in
cases of accidents occurring prior to coming in to force of Section 163A,
guidance can be taken from Second Schedule at least in the selection of
multiplier, so as to avoid innumerable mistake likely to occur in the
calculation of income of the victim and in selection of a proper multiplier122.

In Ramadevsing v. Hansrajbhai v. Kodala123 it was held by the High Court

of Gujarat that it is with this purpose that the legislature has introduced a

117
The Motor Vehicles Act, 1988, Section 163 A(2)
118
Ibid, Section 163A (3)
119
Ibid, Section 163B
120
United India Insurance Co. Ltd. v. Mehtab Bai, AIR 1999 Raj. 293
121
Shantaben Gordhandas Bhatt v. Gujarat State Road Transport Corporation, 2002 ACJ 1714
122
U.P. State Road Transport Corporation v. Trilok Chandra, (1996) 4 SCC 362
123
Ramadevsing v. Hansrajbhai v. Kodala, 1999 ACJ 1129
 93

predetermined formula to award compensation by selecting a proper

multiplier with a view to maintaining consistency and uniformity.

In Lalchandhari Shah v. Raj Nath Shah124 it was held by the Division

Bench of the Madhya Pradesh High Court that section 163A is a special
provision which eliminates pleading and proof with regard to wrongful act,
neglect or default of the owner of vehicle or of any other person.

In Kanai Manna v. United India Insurance Co .Ltd.125 it was held that

where the income of the victim was more than claim under Section 163A was
held not maintainable.

In Sapna v. Oriental Insurance Co. Ltd.126 It was held that since fault has
not to be proved, benefit under section 163A of the Motor Vehicles Act,
1988, which is beneficial legislation cannot be denied to legal representatives
of the deceased.

In Rajasthan State Road Transport Corporation v. Siraj Ahmed127where

amount of compensation has been determined on structured formula basis
under the Second Schedule to the Motor Vehicles Act, no interest is payable
on the principle amount unless there are special circumstances to justify the
same or the principle amount of compensation is too meager or abnormally
low.

It was held by the Supreme Court of India in the case of Padma Srinivasan
v. Premier Insurance Co. Ltd128 that if on the date of the accident the 1988
Act had not come into force and under the old Act there was no Schedule,

124
Lalchandhari Shah v. Raj Nath Shah, 2005 (1) ACJ 695 (MP) DB
125
Kanai Manna v. United India Insurance Co .Ltd., 2009 ACJ 544 (Cal) DB
126
Sapna v. Oriental Insurance Co. Ltd.,2008 ACJ 490
127
Rajasthan State Road Transport Corporation v. Siraj Ahmed, 2006 ACJ 526 (Raj.)
128
Padma Srinivasan v. Premier Insurance Co. Ltd., AIR 1982 SC 836
 94

then the multipliers then being applied were on the basis of ratio laid down
by the Supreme Court in various cases129.

XXVII. Power of Central Government to Make Rules.

Last Section in Chapter XI of the Act is Section 164 which confers powers
on Central Government to make rules. This section provides that the Central
Government may make rules for the purpose of carrying into effect the
provisions of this Chapter, other than the matters specified in section 159.

Sub Section (2) of Section 164 provides that without prejudice to the
generality of the foregoing power, such rules may provide for –

a. The forms to be used for the purposes of this Chapter;

b. The making of applications for and the issue of certificates of insurance;

c. The issue of duplicates to replace certificates of insurance lost,

destroyed or mutilated;

d. The custody, production, cancellation and surrender of certificates of

insurance;

e. The records to be maintained by insurers of policies of insurance issued

under this Chapter;

f. The identification by certificates or otherwise of persons or vehicle

exempted from the provisions of this Chapter;

g. The furnishing of information respecting policies of insurance by

insurers;

129
Maitri Koley v. New India Assurance Co. Ltd., 2004 ACJ 46 (SC)
 95

h. Adopting the provisions of this Chapter to vehicles brought into India

by persons making only a temporary stay therein or to vehicles
registered in a reciprocating country and operating on any route or
within any area in India by applying those provisions with prescribed
modifications;

i. The form in which and the time limit within which the particulars
referred to in section 160 may be furnished; and

j. Any other matter which is to be, or may be, prescribed.

G. Review

In order to give effective rights to the person injured or expired in an accident,

Fatal Accidents Act, 1885 was enacted in India. This Act provided only a
procedure and a right of named legal heirs to claim compensation from the
person committing negligence. This enactment has worked in India for a
comfortable long period. Before the Motor Vehicle Act, 1988 came in to
existence, the Motor Vehicles Act, 1939 was applicable. This Act was amended
several times to keep it up to date. Various Committees and the Law
Commission have gone into different aspects of road transport. They have
recommended for updating, simplification and rationalization of this law. The
Motor Vehicle Act, 1988, has been enacted with following objectives:-

a. Rationalization of certain definitions with additions of certain new

definitions of new types of vehicles.

b. Stricter procedures relating to grant of driving licences and the period of

validity thereof.

c. Laying down of standards for the components and parts of motor vehicles.
 96

d. Standards for anti-pollution control devices.

e. Provision for issuing fitness certificates of vehicles also by the authorized

testing stations.

f. Enabling provision for updating the system of registration marks.

g. Liberalized schemes for grant of stage carriage permit on non nationalized

routes, all-India Tourist permits and also national permits for goods
carriages.

h. Administration of the Solatium Scheme by the General Insurance

Corporation.

i. Provision for enhanced compensation in cases of “no fault liability” and in

hit and run motor accidents.

j. Provision for payment of compensation by the insurer to the extent of

actual liability to the victims of motor accidents irrespective of the class of
vehicles.

k. Maintenance of State registers for driving licences and vehicle registration.

l. Constitution of Road Safety Councils.

Section 140 of the Act provides that in case of death or permanent disablement
of any person resulting from an accident which arise out of use of a Motor
Vehicle/s, the owner of offending vehicle/s shall be liable jointly or severally to
pay compensation in respect of such death or permanent disablement. Under this
section amount of compensation is a fixed amount of Rs. 50,000/- in case of
death and Rs. 25,000/- in case of permanent disablement. Compensation
awarded under this section does not bar the victim to claim compensation under
 97

any other law for the time being in force, though the amount of such
compensation to be given under any other law shall be reduced by the amount of
compensation payable under no fault liability under this section or in accordance
with the structured formula laid down under schedule -2 to this Act read with
Section 163A of the Act.

The Insurance Company cannot avoid the liability except on the grounds, which
have been provided in Section 149(2) and not any other ground. In recent times,
Supreme Court while dealing with the provisions of Motor Vehicle Act has held
that even if the defence has been pleaded and proved by the Insurance Company,
they are not absolved from liability to make payment to the third party but can
receive such amount from the owner insured. If knowledge or connivance has
not been proved, the Insurance Company shall remain liable even if defence is
available.

Section 161 of the Act provides for special provisions as to compensation in case
of hit and run motor accident and Section 163 of the Act deals with scheme for
payment of compensation in case of hit and run motor accidents.

Section 163A of the Act provides for special provisions as to payment of

compensation on structured formula basis. It provides that notwithstanding
anything contained in this Act or in any other law for the time being in force or
instrument having the force of law, the owner of the motor vehicle of the
authorised insurer shall be liable to pay in the case of death or permanent
disablement due to accident arising out of the use of motor vehicle,
compensation, as indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be.
 98

CHAPTER: III

Claims Tribunal under Motor Vehicles Act, 1988

 99

CHAPTER: III

Claims Tribunal under Motor Vehicles Act, 1988

A. Introduction

A new forum, i.e. Motor Accidents Claims Tribunal, which substitutes Civil
Court, has been created by the Motor Vehicles Act, for cheaper and speedier
remedy to the victims of accident of motor vehicles. Prior to the Motor Vehicles
Act, a suit for damages had to be filed with civil court, on payment of ad
valorem court fee. But, under the provisions of this Act, an application claiming
compensation can be made to the Claims Tribunal without payment of ad
valorem fee1. New provisions in Motor Vehicles Act, do not create any new
liability, and the liability is still based on law of tort and enactments like the
Fatal Accidents Act. The position on this point was critically explained in
Oriental Fire & General Insurance Co. v. Kamal Kamini2:

“The object of this group of sections 110 to 110F of the (1939) Act is to supply a
cheap and expeditious mode of enforcing liability arising out of claim for
compensation in respect of accident involving the death, or bodily injury to,
persons arising out of the use of motor vehicles, or damage to any property of a
third party so arising, or both as referred to in Section 110. Prior to the
constitution of the Tribunal, compensation could be claimed by institution of
suits for damages only through the medium of the Civil Court on payment of ad
valorem court fee. This group of sections furnishes a self-contained Code that

1
Swaranlata v. N.T.I. Pvt. Ltd., A I R 1974 (Gauhati), 31 ; see also R.K.Bangia, “ Law of Torts
including Compensation under the Motor Vehicles Act” (1997) p.469
2
Oriental Fire & General Insurance Co. v. Kamal Kamini, A. I . R. 1973 (Orissa) 33
 100

the claims can be lodged on the basis of an application without payment of ad

valorem court fee. By providing a direct appeal to the High Court, second
appeals are also dispensed with. The Tribunal is to follow a summary procedure
for adjudication of claims being provided, the sections do not deal with the
substantive law regarding determination of liability. They only furnish a new
mode of enforcing liability. For determination of liability one has still to look to
the substantive law in the law of torts and Fatal Accident Act, 1855 or at any rate
to the principles thereof.”

Chapter XII of the Motor Vehicles Act, 1988 deals with the constitution of
Claims Tribunal, Application of Claims and award of compensation etc. This
chapter also deals with procedure followed by tribunals in awarding claim and
awarding of interest and compensatory costs in some cases and appeals against
the orders of claims tribunal.

B. Establishment and Composition of Claims Tribunal.

Section 165 of Motor Vehicles Act, 1988 empowers the State Government to
constitute Claims Tribunal to adjudicate upon claims for compensation arising
out of motor vehicle accidents, resulting in death or bodily injury to persons or
damages to any property of third parties.

A State Government may, by notification in the Official Gazette, constitute one

or more Motor Accidents Claims Tribunal (hereafter in this Chapter referred to
as Claims Tribunal) for such area as may be specified in the notification for the
purpose of adjudicating upon claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons arising out of the use of motor
vehicles, or damages to any property of a third party so arising, or both3.

3
The Motor Vehicles Act, 1988, Section 165 (1)
 101

For the removal of doubts, it is hereby declared that the expression “claims for
compensation in respect of accidents involving the death of or bodily injury to
persons arising out of the use of motor vehicles” includes claims for
compensation under section 140 and section 163-A4.

A Claims Tribunal shall consist of such number of members as the State

Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof5.

A person shall not be qualified for appointment as a member of a Claims

Tribunal unless he is or has been a Judge of a High Court, or is or has been a
District Judge or is qualified for appointment as a High Court Judge or as a
District Judge6.

Where two or more Claims Tribunal are constituted for any area, the State
Government, may by general or special order, regulate the distribution of
business among them7.

I. Setting up of Claims Tribunal

A State Government may, by notification in the official gazette, constitute

one or more motor accident claims tribunal for such area as may be specified
in the notification.

In Minu B. Mehta v. Balkrishna8it was held by the Supreme Court of India

that the power of a State Government to constitute Claims Tribunal is
optional, and the State Government may not constitute a Claims Tribunal for
certain areas.
4
Ibid., Explanation to Section 165 (1)
5
Ibid., Section 165 (2)
6
Ibid., Section 165 (3)
7
Ibid., Section 165 (4)
8
Minu B. Mehta v. Balkrishna, A.I.R. 1977 S.C. 1248
 102

Where any claims Tribunal has been constituted for any areas, no civil court
shall have jurisdiction to entertain any question relating to any claim for
compensation which may be adjudicated upon by the Claims Tribunal for
that area, and no injunction in respect any action taken or to be taken by or
before the claims tribunal in respect of the claim for compensation shall be
granted by the civil court.

In Sushma Mehta v. Central Provinces Transport Services Ltd9 it was

held by the court that no tribunal can be constituted unless there has been
firstly, a notification of the State Government and Secondly, such notification
has been published in the official gazette of the state.

II. Appointment of Member

A Claims Tribunal shall consist of such number of members as the State

Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof.
Appointment of a person as member of tribunal by name is not necessary and
appointment with reference to an office is sufficient. But, it does not mean
that no appointment by name can be made. If a person fulfils the qualification
test for such appointment, any person can be appointed to be a member of a
tribunal by name. The usual practice has been to designate as claims tribunal,
the District Judge or Additional District Judge, provided the latter is qualified
to become a District Judge.

In Anirudh Prasad Ambasta v. State of Bihar10it was held that a District

Judge or Additional District Judge, when appointed as member of the

9
Sushma Mehta v. Central Provinces Transport Services Ltd, AIR 1964 (MP) 133 (DB)
10
Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 (Pat.) 49
 103

tribunal would continue to exercise his original jurisdiction as a member of

the State Judicial Service.

III. Appointment of Member by Name not Necessary

Delhi High Court in New Asiatic Transport (P) Co. Ltd. v. Manohar
Lal11held that appointment of a person as Member of Tribunal by name is not
necessary and appointment with reference to an office is sufficient.

However, it does not follow that no appointment by name can ever be made.
If a person fulfils the qualification test for such appointment, any person can
be appointed to be a Member of a Tribunal by name. The usual practice has
been to designate as Claims Tribunal, the District Judge or Additional
District Judge, provided the latter is qualified to become a District Judge. A
District Judge or Additional District Judge, when appointed as Member of
the Tribunal would continue to exercise his original jurisdiction as a Member
of the State Judicial Service12.

However, the person so appointed shall function not virtually as court, but
purely as persona designate13.

The following points should not be ignored while appointment of a person or

denominating any particular judicial officer, to be a Member of the Tribunal:

(a) Notification of Appointment is Necessary

A notification is always necessary for constituting a Claims Tribunal, and

vesting of powers of a Claims Tribunal, whether by name or with
reference to the judicial office. Without notification even a district judge

11
New Asiatic Transport (P) Co. Ltd. v. Manohar Lal, (1966) 68 Punj. LR (Del.) 51.
12
Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 ACJ 238 (Pat.) FB
13
New India Assurance Co. Ltd. v. Molia Devi, 1969 ACJ 164 (MP) DB
 104

cannot exercise the powers of a Claims Tribunal, merely because he is a

District Judge and in a case a claim for compensation has been filed
before a District Judge not backed by a notification designating him as
Claims Tribunal, the claim so filed shall not be a claim filed under
Section 166 of the Motor Vechiles Act, 1988 and in that case such claim
shall have to be returned to the claimant for presenting it before a duly
nominated Claims Tribunal14.

(b) Transfer of Claim Application from District Judge to

Claims Tribunal

Transfer of a claim application filed before a District Judge to the

Competent Claims Tribunal, as concerned to in K.P.Verma v. State of
Bihar15, will be misconceived since the power of such transfer is ont
inherently vested in the civil court in which such claim has been
erroneously filed, but can be exercised by High Court only either under
Section 24 of the Civil Procedure Code or under Article 227 of the
Constitution, and the only thing the civil court, bereft of the powers of a
Claims Tribunal, can do is to return the claim to the claimant under Order
7, Rule 10 of the Code of Civil Procedure, for it being presented to the
proper Tribunal constituted for that area under section 165 of the Motor
Vehicles Act, 1988.

(c) General Notification Designating All the District Judges as

Claims Tribunal

There can be a general notification designating all the District Judges as

Claims Tribunal. Such notification would be notification generally in

14
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.495
15
K.P.Verma v. State of Bihar, 1990 ACJ 32 (Pat.) DB.
 105

favour of a class of District Judges and then, whoever, occupies the office
of the District Judge shall function also as Claims Tribunal16.

(d) Not to Confuse Powers of One Office with Other Office.

In Varalakshmi Sundar v. Meeran17 case, it was held by the Madras

High Court that a district Judge when appointed as Claims Tribunal shall
not confuse powers in one office with that of the other. While functioning
as Claims Tribunal, he cannot make use of all his powers as a District
Judge, because the powers of the same judicial officer while acting as
court as also a Claims Tribunal cannot be the same. Whereas a civil court
has plenary powers, the Claims Tribunal is vested only with specified and
limited powers as contemplated by or conferred under the Motor Vehicles
Act18.

IV. Qualification for Appointment as Member of Claims Tribunal

A person shall not be qualified for appointment as a member of a Claims

Tribunal unless he is or has been a Judge of a High Court, or is or has been a
District Judge or is qualified for appointment as a High Court Judge or as a
District Judge.

The expression ‘is or has been’ a Judge of the High Court, or a District Judge
implies that a retired Judge of the High Court or a retired District Judge can
be appointed as the member, or the presiding officer, as the case may be, of a
Claims Tribunal.

The expression “qualified for appointment’ as High Court judge or as a

District Judge is referable to relevant provisions of the Constitution of India.
16
Supra n. 14 p.496
17
Varalakshmi Sundar v. Meeran, 1981 ACJ 50 (Mad.)
18
Satyabadi Nayak v. Dameli Khilla, 1991 ACJ 211 (Guj.) DB
 106

In computing the period during which a person has held judicial office in the
territory of India, there shall be included any period, after he has held any
judicial office, during which the person has been an advocate of a High Court
or has held the office as a Member of a Tribunal or any post, under the Union
or a state, requiring special knowledge of law. Similarly, in computing the
period during which a person has been an advocate of a High Court, there
shall be included any period during which the person has held judicial office
of a member of a tribunal or any post under the Union or a State, requiring
special knowledge of law after he became an advocate.

V. Other Staff of Claims Tribunal

There is no separate provision for appointment of persons as staff of the

claims tribunal. In case a sitting judicial officer, falling within the definition
of a District Judge, is appointed as member of claims tribunal, the staff of
such appointee shall also function as staff of such Claims Tribunal. In the
case of constitution of the tribunal by appointing a person other than the
person holding the post of a District Judge, it would be open for the State
Government to furnish such tribunal with a staff of persons appointed or to
be appointed by the State Government19.

VI. Claims Tribunal: Powers of Civil Courts

Claims tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services20it was
held that technically grammatically speaking, tribunal may not be a civil

19
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.497, 498
20
Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 (3) ACC 300 (Bom)
FB
 107

court, but it has all the trapping of court since it passes an award which has
all the ingredients of a judgement as known under civil jurisprudence.

In the matter of Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal21

the distinction between courts and tribunal was pointed out by the Supreme
Court of India as follows:

“The word court is not defined in the Companies Act, 1956. It is not defined
in the Civil Procedure Code. The definition in the Indian Evidence Act is not
exhaustive, and is for the purpose of that Act. In the New English
Dictionary22 the meaning is given is: ‘an assembly of judges or other persons
legally appointed and acting as a tribunal to hear and determine any cause,
civil, ecclesiastical, military or naval”.

The Claims Tribunal shall, for the purposes of holding any determination
under this Act, have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908, while trying a suit in respect of the following
matters, namely:

a) The summoning and enforcing the attendance of any witness and

examining him on oath;

b) The discovery and production of any document;

c) The reception of evidence on affidavits;

d) The requisitioning of any public record or document or copy of such

record or document from any court or office; and

e) Such other matters as may be prescribed.

21
Harinagar Sugar Mills v. Shyamsunder Jhunjhuinwal, (1962) 2 SCR 339
22
New English Dictionary, Vol. II, p. 1090, 1091
 108

VII. Claims Tribunal : A Substitute of Civil Courts for the Purpose

of Compensation Claims

To say that Claims Tribunal is a Court is entirely different from saying that a
Claims tribunal is a Civil Court. It is a civil court for all intents and purposes
of adjudication of claims for compensation in motor accident cases. From the
scheme of the Motor vehicles Act and the Rules framed thereunder, it is clear
that a Claims tribunal is constituted for a specific area, which is specified in
the notification for adjudication of such claim. The institution of the
proceedings is by an application for compensation. The tribunal disposes
such application by giving the parties an opportunity of being heard and
holding an inquiry in to the claim and it has to make an award determining
the amount of compensation is to be paid and the amount which is to be paid
by the insurer. The tribunal has been given all the powers of a civil judge for
the purpose of taking evidence on oath and enforcing the attendance of
witness and of compelling the discovery and production of documents. Rules
framed under the Act also confer all the powers of a civil court on the Claims
tribunal in so far as the same are not inconsistent with the provisions of the
Act. Right to appeal to the High Court is also provided.

Resort to Article 227 of Constitution of India in preference to Revision under

Section 151 of Civil Procedure Code, 1908

In New India Assurance Co. Ltd v. Ganga Devi23it was held that as a
matter of law and practice both, where the statute has made provision for an
appeal against a judgement or order and right of appeal is absolute,
additional, restricted or otherwise, a revision against such judgement or order
does not lie.

23
New India Assurance Co. Ltd v. Ganga Devi, 2006 ACJ 2857 (Jhar.) DB
 109

The reasoning conceding to the power of the High Court to entertain such a
revision seems to gravitate upon one or the other of the propositions not
appealing to the reason. The claims tribunal is said to have trapping of civil
court, but merely because some authority has been clothed with the trappings
of a court, it cannot logically follow that it is liable to be treated as civil court
for all intents and purposes. If the tribunal is or can be considered to be a
civil court, there is no use of employing the additive which inheres the
expression ‘trappings of court’. The use of this expression is itself indicative
that the possession of some trappings of a court cannot identify an authority
with a de facto civil court24.

C. Application for Compensation

Section 166 of the Act provides for the form of application for compensation, the
person who may claim compensation, the time within which the application
should be filed, etc. It also provides that if the Claims Tribunal, thinks so, may
treat the accident report filed by the Police Officer as per Section 158 as an
application under this Act.

An application for compensation arising out of an accident of the nature

specified in sub-section (1) of section 165 may be made by the person who has
sustained the injury or by the owner of the property or where death has resulted
from the accident, by all or any of the legal representatives of the deceased or by
any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be25.

Provided that where all the legal representatives of the deceased have not joined
in any such application for compensation, the application shall be made on
24
Ibid.
25
The Motor Vehicles Act, 1988, Section 166(1)
 110

behalf of or for the benefit of all the legal representatives of the deceased and the
legal representatives who have not so joined, shall be impleaded as respondents
to the application26.

Every application under sub - section (1) of section 166 shall be made, at the
option of the claimant, either to the Claims Tribunal having jurisdiction over the
area in which the accident occurred or to the Claims Tribunal within the local
limits of whose jurisdiction the claimant resides, or carries on business or within
the local limits of whose jurisdiction the defendant resides and shall be in such
form and contain such particulars as may be prescribed27.

Provided that where no claim for compensation under section 140 is made in
such application, the application shall contain a separate statement to that effect
immediately before the signature of the applicant28.

The Claims Tribunal shall treat any report of accidents forwarded to it under
sub-section (6) of section 158 as an application for compensation under this
Act29.

The state government may under rules prescribes the form of application for
compensation and sub section 2 of section 166 confers jurisdiction to entertain
and adjudicate on such application upon following three different tribunal:

1. The Tribunal within the local limits of whose jurisdiction the accident has
occurred, or:

2. The Tribunal within the local limits of whose jurisdiction the claimant
resides or carries on business, or

26
Ibid., Proviso to Section 166 (1)
27
Ibid., Section 166 (2)
28
Ibid., Proviso to Section 166 (2)
29
Ibid., Section 166(4)
 111

3. Within the local limits of whose jurisdiction the defendant resides.

And confusion lingers as to which tribunal shall have jurisdiction to entertain

and adjudicate upon application or applications in cases where the claimants of a
person deceased in an accident, or the defendants, where there are more than
one, are residing or carrying on their business at two or more different places,
and the confusion is embittered particularly in absence of any statutory provision
for transfer of an application from one claims tribunal to another. Assuming that
such transfer at instance of one or more parties can be allowed by the High Court
under Article 227 of the Constitution, if not under section 24 of the code of Civil
Procedure, confusion can hardly be said to have been resolved if in case of
several claimants or several defendants, each may be residing or carrying
business in different states.

Assuming in the last resort, that the Supreme Court may be approached for
allowing such transfer of a claim from one tribunal to the other under Section 25
of the Code of Civil Procedure, it is difficult yet to conceive on what grounds
such transfer can be allowed, when each of the several claimants has legal right
to have his claim decided by the tribunal within the local limits of whose
jurisdiction he resides or carries on business.

In National Insurance Co. Ltd. v. Indu Sharma30it was held by the High Court
that the proceedings on a claim for compensation under section 163A and
section 166 of the Act can go together, both being independent provisions and
awarding of compensation under section 163 A, unlike that under section 140,
does not detract or defeat the provisions of section 166.

30
National Insurance Co. Ltd. v. Indu Sharma, 2000 ACJ 808 (P&H)
 112

In Ramdev Singh V. Chudasma v. Hansrajbhai V Kodala31it was held by the

High Court that section 163A has specially provided for loss to the estate of the
deceased to a given extent without any proof where compensation on head of
loss of estate cannot be awarded without proof under section 166.

Claim application can be filed under Section 163A for claim to be determined on
structural formula basis provided in Schedule-II. Schedule-II has been adjudged
as suffering from severe mistakes and the Supreme Court has held that total
reliance cannot be placed on this schedule. Further the Schedule do not provide
any computation chart for the persons having more than Rs.40,000/- annual
income. Claim petition can also be filed under Section 166 of Motor Vehicle Act
pleading negligence where the claim shall be assessed by the Judge not on the
basis of structural formula but on the basis of evidence led.

The injured or the legal representatives of deceased can file claim application in
a prescribed format making driver, owner and insurer as party. Driver is not a
necessary party in some states. For e.g. in the Rajasthan Motor Accident Claims
Tribunal Rules only owner and insurer are required to be party. No limitation has
been prescribed for filing of the claim application. Initially when the law has
come into force the limitation was 6 months which was later increased to one
year and ultimately in the garb of welfare legislation the provision of limitation
has been deleted. A claim launched by dependents of deceased but not by his
legal representatives would be defective unless the legal representatives of the
deceased have been joined either as claimants or even as respondents32.

31
Ramdev Singh V. Chudasma v. Hansrajbhai V. Kodala 1999 ACJ 1129 (Guj.) DB
32
Cheriyakutty Mammi v. UmmerKutty, 1996 ACJ 402 (Ker.) DB
 113

I. Who Can File A Claim?

In case of damage to property, the application for compensation has to be

made by the owner of the property damaged. It is implied that in case of
death of owner of the property, the legal representatives of deceased owner
can competently claim compensation33.

1. People, who have been injured in accidents on the road, can themselves
file for compensation or route the claims though their advocates.

2. But accident victims, who are below 18 years of age, cannot file for
compensation themselves; they have to go through their advocates.

3. Legal heirs of people who have died in accidents can also claim
compensation; alternatively, they can route their claims through their
advocates.

II. Who Can Report to MACT in Case of Accident?

Victim himself or through Advocate, in the case of personal injury. Through

advocate in case of minor applicant below the age of 18 years. Legal heirs
themselves or through advocate in the case of death. The owner of the
vehicle in the case of property damage.

III. Essential Documents Required to File Claim

Following documents are required along with application for compensation

claim34 :

1. Copy of the FIR registered in connection with said accident, if any.

33
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.642
34
‘MACT- Motor Accident Claims Tribunal’, Accessed on Website, www.Vakilno1.com. On
14.07.2010 at 3.22 p.m.
 114

2. Panchnama copy (this is a list of damages that is drawn by cops in the

presence of witnesses).

3. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

4. The documents of the identity of the claimants and of the deceased in a

death case.

5. Original bills of expenses incurred on the treatment along with treatment

record.

6. Documents of the educational qualifications of the deceased, if any.

7. Disability Certificate, if already obtained, in an injury case.

8. The proof of income of the deceased/injured.

9. Documents about the age of the victim.

10. The cover note of the third party insurance policy, if any.

11. An affidavit detailing the relationship of the claimants with the deceased.

12. RTO Certificate (showing name and address of owner and insurance
particulars of vehicle/s involved in the mishap).

13. Passport-Size Photograph.

14. Court-Fee Stamp35.

35
Ibid.
 115

IV. The Court Fees For Filling An Application For Compensation

1. Affix a court-fee stamp of Rs 10 if the compensation you are claiming is

less than Rs 5,000.

2. Affix a court-fee stamp that is worth .25 per cent of your claim if you are
asking for compensation that is between Rs 5,001 and Rs 50,000.

3. Affix a court-fee stamp that is worth .5 per cent of your claim if you are
asking for compensation that is between Rs 50,001 and Rs 100,000.

4. Affix a court-fee stamp that is worth 1 per cent of your claim if you are
asking for compensation that is more than Rs 100,000; but the maximum
fee that you have to pay is Rs 15,00036.

D. Jurisdiction of Claims Tribunal

In Sanno Devi v. Balram37 it was held that jurisdiction of tribunal depends

essentially on the fact whether there had been any use of motor vehicle and once
it has been established, tribunal’s jurisdiction cannot be held ousted on findings
that it is negligence of other joint tortfeasor and not of the motor vehicle in
question.

A victim of an accident arising out of use of motor vehicles may file their claim
application to the Claims Tribunal within local limits of whose jurisdiction the
claimant resides or carries on business.

36
Ibid.
37
Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB
 116

I. Pecuniary Jurisdiction

The pecuniary jurisdiction of the Claims Tribunal has a double implication

i.e. compensation in case of death or bodily injury and in respect of damage
caused to any property. Section 165 of the Act empowers the tribunal to
award compensation not only for death and bodily injury but also for damage
to property. As regards the former, there are three different provisions in the
Motor Vehicles Act, 1988, namely:

1. Compensation in certain cases on the principle of no fault, as provided in

section 140 of the Act.

2. Compensation on structured formula basis, under section 163-A of the

Act, and

3. Compensation which appears to the Claims Tribunal to be just, under

section 168 of the Act.

In the category of claims under 1. Above, i.e. compensation on principle of

no fault, compensation can be awarded either in cases of death or in cases of
permanent disablement of any person, and in either case, the fixed and
different amounts have been fixed respectively for death and permanent
disablement. The relevant provisions are sub-sections (1) and (2) of section
14038.

II. Exclusion of Civil Court’s Jurisdiction not Readily Inferred

The civil courts under section 9 of the Civil Procedure Code, have general
and overall jurisdiction to try all suits of a civil nature and a suit wherein the
right to property or to an office is contested is a suit of a civil nature. The bar

38
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.537.
 117

of jurisdiction of the civil court cannot thus, readily inferred, and the
Supreme Court in a classic decision in Dhulabhai v. State of Madhya
Pradesh39 has covered out as many as seven exceptions to a statutory bar
created on jurisdiction of the civil court, seven exceptions are as under:

1. “Where the statute gives finality to the order of the special tribunal, the
civil court’s jurisdiction must be held to be excluded if there is adequate
remedy to do what the civil courts would normally do in a suit. Such
provision, however, does not exclude those cases where the provisions of
the particular Act have been complied with or the statutory tribunal has
not acted in conformity with the fundamental principles of judicial
procedure.

2. Where there is an express bar of jurisdiction of the courts, an examination

of the scheme of the particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not decisive to sustain the
jurisdiction of the civil court. Where there is no express exclusion, the
examination of the remedies and the scheme of the particular Act to find
out the intendment become necessary and the result of the inquiry may be
decisive. In the latter case, it is necessary to see if the statute creates a
special right or a liability and provides for the determination of the right
or liability and further lays down that all questions provides the said right
and liability shall be determined by the tribunal so constituted, and
whether remedies normally associated with actions in civil courts are
prescribed by the said statute or not.

3. Challenge to the provisions of the particular Act as ultra vies cannot be

brought before tribunal constituted under that Act. Even the High Court

39
Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78
 118

cannot go into the question on a revision or reference from the decision of

the tribunal.

4. When a provision is already declared unconstitutional or the

constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.

5. Where the particular Act contains no machinery for refund of tax

collected in excess of constitutional limits or illegally collected, a suit
lies.

6. Question of the correctness of the assessment apart from its

constitutionality are for the decision of the authorities and a civil suit does
not lie if the orders of the authorities are declared to be final or there is an
express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is a relevant inquiry.

An exclusion of the jurisdiction of the Civil Court is not to be readily

inferred unless the conditions above set down apply”.

III. Jurisdiction in Respect of Cases Where Accidents Occurred

Prior to Establishment of Tribunal

The existence of a claims tribunal on the date of accident is not a condition

precedent for entertaining a claim for compensation. A claim for
compensation can be entertained by a Tribunal even in respect of an accident
which occurred at a time when there was no claims tribunal for that area.
 119

In New India Assurance Co. v. Rukiyabai40 a motor accident took place

within the jurisdiction of the civil court at Nasik. There was no claims
tribunal on the date when the accident had occurred or on the date when the
suit for compensation was instituted in the Nasik. After the institution of the
suit, the claims tribunal came to be established, but even then the tribunal set
up at Nasik had no jurisdiction to entertain claim for compensation in respect
of accidents which occurred at a place within the territorial jurisdiction of the
Nasik court. It was, therefore, held that the notification establishing a tribunal
at Indore could not come in the way of the civil court at Nasik to proceed
with the claim instituted therein when no tribunal for that area was then in
existence41.

IV. Bar on jurisdiction of Civil Courts

Section 175 bars the jurisdiction of Civil Courts where any Claims Tribunal
has been constituted.

Where any Claims Tribunal has been constituted for any area, no Civil Court
shall have jurisdiction to entertain any question relating to any claim for
compensation which may be adjudicated upon by the Claims tribunal for that
area, and no injunction in respect of any action taken or to be taken by or
before the Claims Tribunal in respect of the claim for compensation shall be
granted by the Civil Court42.

In Vatticherukuru Village Panchayat v. Nori Venkataraman

Deehsithulu43it was held by the apex court that the procedure before the
tribunal is simple and not hidebound by intricate procedure of pleadings and

40
New India Assurance Co. v. Rukiyabai, 1985 (2) ACC 499
41
State of Madhya Pradesh v. Pehlajrai Dwarkada, 1976 ACJ 222 (MP) DB
42
The Motor Vehicles Act, 1988, Section 175
43
Vatticherukuru Village Panchayat v. Nori Venkataraman Deehsithulu, 1991 (5) JT 140
 120

trial, admissibility of the evidence and proof of facts according to law.

Therefore, there is abundant flexibility in the discharge of the functions with
greater expedition and in expensiveness.

In Gurbax Singh v. Financial Commissioner44it was held by the Supreme

Court that despite the bar on civil courts jurisdiction under a statute, if the
special tribunal or authority acts ultra vires or illegally, the civil court has
power by virtue of section 9 of the C.P.C.to interfere and set matters right. If
the provisions of the statute have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of
judicial procedure, the civil courts have jurisdiction to examine such cases.

In Kishan Lal v. State of Jammu and Kashmir45 it was held by the court
that jurisdiction of civil court is not barred where the impugned order, being
in violation of mandatory provisions of the statute is without jurisdiction and
a nullity.

V. Bar on Jurisdiction of Consumer Dispute Redressal Forum

In Chairman Thiruvallurar Transport Corporation v. Consumer

Protection Council46 the deceased was travelling in an omni bus which met
with an accident while trying to avert a bullock – cart. It appears that when
the bus driver was in process of overtaking the bullock cart, the bullock got
panickly whereupon the driver swerved the bus to left and ran in to branches
of a tree on the roadside resulting in damage to the vehicle, the window panes
having been smashed. As the vehicle suddenly swerved and the driver
applied the brakes the deceased who was sitting in the centre of the rear seat

44
Gurbax Singh v. Financial Commissioner, AIR 1991 SC 435
45
Kishan Lal v. State of Jammu and Kashmir, (1994) 4 SCC 422
46
Chairman Thiruvallurar Transport Corporation v. Consumer Protection Council, AIR, 1995 SC
1384
 121

was thrown in the front and hit against the iron side bar, sustaining a serious
head injury. Subsequently he succumbed to the injury.

The Consumer Protection Council, Tamil Nadu on behalf of the legal

representative of the deceased, lodged a complaint before the National
Commission under the 1986 Act claiming compensation. The appellant
contested the claim contending that the claimant i.e. the Council, had no
locus standi to maintain the action and in any case the National Commission
had no jurisdiction to entertain a petition since exclusive jurisdiction was
conferred by the 1988 Act on the Claims Tribunal constituted thereunder.
The National Commission contended the appellant, side stepped the question
regarding jurisdiction and without answering the same awarded Rs. 5.10 Lacs
by way of compensation with interest at 18% per annum with costs of Rs.
10,000/-. An appeal against the judgement was preferred to the Supreme
Court. The question that arose for consideration was whether the National
Commission had jurisdiction to entertain the claim application and award
compensation in respect of an accident involving death of the deceased
caused by the use of Motor Vehicle.

The Supreme Court without going in to depth of awarding of compensation

by National Commission to the victim, only answer the question of law as to
whether National Commission can entertain such case held that National
Commission has no jurisdiction whatsoever and was entirely wrong in
exercising jurisdiction and awarding compensation. However, in the facts and
circumstances of this case, the judgment pronounced by National
Commission was reversed and appellant were not entitled to recover the
compensation money already paid to the victim under the order’s of National
Commission.
 122

Hence, claims for compensation arising out of use of motor vehicles cannot
be adjudicated by any of the Consumer Disputes Redressal Forums
contemplated and created under Consumer Protection Act, 1986.

The complaint in the case of motor accident cannot be said to be in relation to

any service hired or availed of by the consumer because the injury sustained
by the consumer has nothing to do with the service provided or availed of by
him if the injury is the direct result of the accident.

VI. Jurisdiction of Tribunal, Where Collision Between Trains And

Motor Vehicle Occurred

In Union of India v. Satish Kumar Patel47 where there is negligence only of

the driver of the motor vehicle or where there is negligence both of the driver
of the motor vehicle and of the railway, a claim is entertainable by the motor
accidents claims tribunal.

In Amritlal v.Union of India48where the truck driver was warned by inmates

of truck about approaching railway engine and there was consequent
collision between truck and the engine on unmanned railway level crossing
and resultant death of some of the passengers in the truck and injuries to
other inmates of truck, award of compensation by the tribunal was held
justified and the railways was held not liable since it is no duty of railways to
man all level crossings.

In Union of India v. Bhagwati Prasad49 there was collision between a

passenger train and a taxi. The track was lying open even at time of passing
of the train. Some of the inmates of the taxi died and others sustained injury.

47
Union of India v. Satish Kumar Patel, AIR 2001 MP 41
48
Amritlal v.Union of India, 2004 ACJ 1868 (Raj.).
49
Union of India v. Bhagwati Prasad, AIR 2002 SC 1301.
 123

It was held that once it is established that the accident arose out of use of
motor vehicle, the tribunal’s jurisdiction cannot be said to be ousted on a
finding that it was negligence of the other joint tortfeasor and not negligence
of the motor driver.

VII. Claimant to Choose Place of Jurisdiction

A plain reading of section 166(2) shows legislative intent to insert sub-

section (2) that making of claim application under section 166(1) has been
left totally at the option of the claimant, either to the claims tribunal having
jurisdiction over the area where the accident took place, or to such tribunal
within local limits of whose jurisdiction the claimant resides or carries on
business or within local limits of whose jurisdiction the defendant resides. In
other words, obviously the claimant can file an application within the
jurisdiction of claims tribunal (1) where the accident occurred, or (2) before
the tribunal within local limits of whose jurisdiction, claimant resides or
carries on his business, or (3) within local limits of whose jurisdiction, the
defendant resides or carries on his business. In Kusum Devi v.
Dungaram50it was held that in view of the word “or” which separates three
clauses, the claimant can choose either of the three options and as per
legislative intent, there are three options implied, whereby he has been given
a right to pick one of three places for exercising his option.

In Mantoo Sarkar v. Oriental Insurance C. Ltd51in this case injured, a

migrant labourer working in district Nanital, sustained injuries in collision
between a bus and truck at a place in Uttar Pradesh. It was held by the
Supreme Court of India that Tribunal of Nanital has jurisdiction to entertain
the claim.

50
Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.).
51
Mantoo Sarkar v. Oriental Insurance Co. Ltd, 2009 ACJ 564
 124

VIII. Jurisdiction of Tribunal in India, where Accident occurred in

Foreign Country

A suit or proceeding can be filed in a court or tribunal having jurisdiction in

relation with the place where the cause of action or part thereof had arisen52
and where a bus was booked at Delhi, part of cause action had arisen in India
and the claimants can file a claim in the tribunal having jurisdiction over
place or residence of claimant under section 166(2) of the Act53.

In the above case, a bus for pilgrimage from Delhi to Kathmandu was booked
at Delhi and vehicle was registered in India. The bus fell into a river in the
territory of Nepal. It was held that a claim under section 163A of the Act was
maintainable in a tribunal within the State of Punjab. It was further held that
the Motor Vehicles Operations and Contiguous Counties Rules, 1963 had no
application, since the rules could operate only if the claim was filed in Nepal.
Eventually, the insurer was held liable.

In Savara Pydi Raju v. T. Venkata Rao54, it was held that as per amended
provisions of section 166(2) victims are entitled to make their claims in any
court having jurisdiction over place where accident occurred or over place
where they are residing.

IX. Jurisdiction to Entertain Claim by Indigent Person

The tribunal has trapping of civil court for the purpose of taking evidence on
oath and of enforcing attendance of witnesses and compelling the discovery
and production of documents and material objects and for such other

52
Civil Procedure Code, 1908, Section 20.
53
Sarbati v. Anil Kumar, 2006 ACJ 2532 (P&H).
54
Savara Pydi Raju v. T. Venkata Rao, 2007 ACJ 2245 (AP).
 125

purposes as may be prescribed, as section 169(2) of the Motor vehicle Act,

1988 has stated. There is no direct reference of Order 33 of Civil Procedure
Code which deals with suits by or on behalf of indigent persons.

In State of Haryana v. Darshana Devi55 the Supreme Court of India

observed that the poor shall not be forced out of the justice market by
instance on court fee and refusal to apply the exemptive provisions of Order
XXXIII, Civil Procedure Code. So we are distressed that the State of
Haryana, mindless of the mandate of equal justice to the indigent under the
magna carta of our Republic, expressed in article 14 and stressed in article
39A of the Constitution, has sought of leave to appeal against the order of the
High Court which has rightly extended the pauper provisions to the auto
accident claims. The reasoning of the High Court in holding trail under Order
XXXIII will apply to tribunals which have the trappings of the civil court
finds our approval and hence upheld the decision of the High Court.

In Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin56 where a prayer

was made for filling the appeal as indigent person. The appellant was
permitted to file the claim before the tribunal as indigent person, but the
claim was dismissed. Permitting the appeal to be filed as indigent person the
court observed that in the legal aid programmes, whatever amount is paid as
legal assistance to the litigant….that is not repayable by the litigant. In the
case where a person comes up with a prayer that he may be permitted to file
appeal as an indigent person…by permitting him to file appeal as indigent
person, payment of court fee is only being deferred. So this court, while
dealing with such applications, should be more liberal which will advance the
cause of justice to poor persons.

55
State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC)
56
Gulab Singh Meruji v. Jayantilal Shankarlal Brahmin, 2001 ACJ 346 (Guj.)
 126

The court was of the view that in such matter, even notice to the opposite
party is unnecessary, since the other side can challenge the same later on with
necessary, cogent and justifiable evidence57.

X. Death Occurred Due To Heart Attack : No Jurisdiction

In National Insurance Co. Ltd v. Chandra Prava Barman58 where the

insurer argued that admittedly the father of the claimant died on account of
heart attack and not due to vehicular accident, and that Motor Accidents
Claims Tribunal can award compensation only in connection with the
liability of the insurer on the insured which arises out of vehicular accident
and not for any remote cause. Holding this statement as well merited the
High Court held that the claim for death of the father might or could have
been taken up under Law of Torts and not by Motor Accidents Claims
Tribunal, which has got limited jurisdiction to deal with claims arising out of
accident. Such a claim which has been allowed by the tribunal could only be
within the competence of the civil court and not within the competence of the
Motor Accidents Claims Tribunal.

XI. Transfer of Claims from one Tribunal to another Tribunal

In Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka

Sangha59the tribunal entertaining the claim was situated at a distance of 1000
kilometers from the claimants residence. Subsequent to the amendment of the
section, giving option to the claimants to file claim at the place of residence,
transfer of claim petition was allowed in conformity with the spirit of law as
amended.

57
Ibid.
58
National Insurance Co. Ltd v. Chandra Prava Barman, 2001(2) TAC 698 (Guj.) DB.
59
Siddarmappa Patil v. President, Bhartiya Vidya Vardhaka Sangha,1997 ACJ 713 (Karn.).
 127

In Sripal v. Rajendra Prasad60the accident had occurred at Eath. The

claimant prayed for transfer of the claim proceedings from Eath to Etawah on
ground of his posting at Etawah, forcing difficulty in obtaining leave for
attending to proceedings at Eath. No prejudice was likely to caused to the
opposite party by such transfer. Transfer of proceedings was allowed in view
of the subsequent amendment in section 166 permitting claim to be instituted
at place of accident or at place of business of claimant or at place of
residence of defendant.

In Padminbai Ashok Yadle v. Mannan Ismail Shaikh61the claim was

pending before the claims tribunal at Latur, whereas the claimant was
residing at Mumbai, the claim petition was transferred from tribunal at Latur
to the tribunal at Polghar.

The benefit of Section 166(2), which had been inserted by way of a

amendment in 1994, can be extended even in respect of a claim instituted
prior to such amendment.

XII. Claimant can Withdraw Applications and file it at

Appropriate Place

Where the claim was filed in a tribunal having Jurisdiction over the area in
which the accident occurred or defendant resides, but the claimant having
become totally crippled and unable to prosecute his claim there, he may be
allowed to withdraw his claim and file it afresh at a place where he usually
resides.

60
Sripal v. Rajendra Prasad, 1999 ACJ 92 (All.).
61
Padminbai Ashok Yadle v. Mannan Ismail Shaikh,2003 ACJ 247 (Bom.).
 128

In B.K. Singh v. Union of India62where the claim was filed in a tribunal in

Assam having Jurisdiction over the area in which the accident occurred, but
the claimant having become totally crippled and unable to prosecute his
claim, he was allowed to withdraw his claim and file it afresh at Pune as
desired by him.

XIII. Tribunal Cannot Entertain Application for Claim in Case of

Hit and Run Accident

A plain reading of Rule 20 of the Solatium Scheme, 1989, makes it clear that
an application seeking compensation under the Scheme in case of hit and run
accidents is to be filed in Form 1 before the Claims Enquiry Officer of the
Sub-Division in which the accident had taken place. Thus, under the scheme,
a particular forum has been provided for claiming compensation in case of hit
and run motor accidents. This being the position, claimants claiming
compensation in cases of death or grievous hurt arising under the hit and run
motor accidents cannot file application before the Claims Tribunal, and the
Claims Tribunal having no jurisdiction in the matter, the order of the Claims
Tribunal rejecting the objection taken by the insurer as regards the
maintainability of the application cannot be allowed to stand63.

In Oriental Insurance Co. Ltd. v. Rooplal Singh64’s case it was held by the
Patna High Court that the Claims Tribunal must return such application to be
filed before the Claims Enquiry Officer of the concerned Sub-Division in
which the accident had taken place and such matter has to be agitated before
the collector.

62
B.K. Singh v. Union of India, 2006 (4) ACC 242 (SC).
63
New India Assurance Co. Ltd. v. Rajendra Prasad Bhatt, 2002 ACJ 1762 (MP).
64
Oriental Insurance Co. Ltd. v. Rooplal Singh, 2000 ACJ 502 (Pat.)
 129

E. Option Regarding Claims For Compensation In Certain

Cases

Section 167 of the Act lays down that when claim arises under this Act and
under the compensation only under either of these Acts and not under both the
Act.

Notwithstanding anything contained in the Workmen’s Compensation Act, 1923

where the death of, or bodily injury to, any person gives rise to a claim for
compensation under this Act and also under the Workmen’s Compensation Act,
1923, the person entitled to compensation may without prejudice to the
provisions of Chapter X claim such compensation under either of those Acts but
not under both65.

In New India Assurance Co. Ltd. v. Mehebubanbibi66the decision in the case

may be taken as an exception to the provision of section 167, wherein the facts
(at the cost of repetition) were that the deceased had been deputed by his
employer to carry a damaged transformer in a tractor, had fallen into a ditch. The
deceased, pressed under the damaged transformer in the ditch succumbed to his
injuries in the hospital. Death of the deceased had arisen out of and in the course
of employment since the deceased was employee of the electricity board and
died while on duty. Since the accident had occurred because of negligence of the
driver of the tractor, which belonged to a different person, it was held by the
Division Bench that the claimants, in the peculiar circumstance of the case, were
entitled to claim compensation under the Motor Vehicles Act as well as under
the Workmen’s Compensation Act.

65
The Motor Vehicles Act, 1988, Section 167
66
New India Assurance Co. Ltd. v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB
 130

F. Award of the Claims Tribunal

Section 168 of the Act provides that the Claims Tribunal shall deliver the copies
of the award to the parties within fifteen days of the award and that the person
against whom the award is made shall deposit the amount awarded within thirty
days of announcement of the award.

On receipt of an application for compensation made under section 166, the

Claims Tribunal shall, after giving notice of the application to the insurer and
after giving the parties (including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may 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 and in 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 be67.

Provided that where such application makes a claim for compensation under
section 140 in respect of the death or permanent disablement of any person, such
claim and any other claim (whether made in such application or otherwise) for
compensation in respect of such death or permanent disablement shall be
disposed of in accordance with the provisions of Chapter X68.

The Claims tribunal shall arrange to deliver copies of the award to the parties
concerned expeditiously and in any case within a period of fifteen days from the
date of the award69.

67
The Motor Vehicles Act, 1988, Section 168 (1)
68
Ibid., Proviso to Section 168 (1)
69
Ibid., Section 168 (2)
 131

When an award is made under this section, the person who is required to pay any
amount in terms of such award shall, within thirty days of the date of announcing
the award by the Claims Tribunal, deposit the entire amount awarded in such
manner as the Claims Tribunal may direct70.

In Ranu Bala Paul v. Bani Chakraborty71it was held that an award under
Motor Vehicles Act, 1988 cannot be equated either with a civil or a criminal
case, and the tribunal while awarding compensation is not expected to go into
niceties or technicalities but must adopt a broad and a liberal approach.

In New India Assurance Co. Ltd. v. G. Lakshmi72it was held that the tribunal
is expected to award a compensation which appears to be just, it follows that in
deserving cases, the tribunal may not be bound by the figure stated in the claim
petition and can award an amount even more that what has been claimed.

G. Procedure and powers of Claims Tribunal

Section 169 of the Act lays down the procedure to be followed by the Claims
Tribunal in setting claims compensation and the powers of the Claims tribunal.

In holding any inquiry under section 168, the Claims Tribunal may, subject to
any rules that may be made in this behalf, follow such summary procedures as it
thinks fit73.

The Claims Tribunal shall have all the powers of a Civil Court for the purpose of
taking evidence on oath and of enforcing the attendance of witnesses and of
compelling the discovery and production of documents and material objects and
for such other purposes as may be prescribed; and the Claims Tribunal shall be

70
Ibid., Section 168 (3)
71
Ranu Bala Paul v. Bani Chakraborty, 1999 ACJ 634 (Gauhati)
72
New India Assurance Co. Ltd. v. G. Lakshmi , 1999 ACJ 1068 (AP)
73
The Motor Vehicles Act, 1988, Section 169 (1)
 132

deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI
of the Code of Criminal Procedure, 197374.

Subject to any rules that may be made in this behalf, the Claims Tribunal may,
for the purpose of adjudicating upon any claim for compensation, choose one or
more persons possessing special knowledge of any matter relevant to the inquiry
to assist it in holding the inquiry75.

The procedure to be followed at the Claims Tribunal is as under:

I. Application for Compensation

First step at claims tribunal is application for compensation by either the

victim of motor vehicle accident or his legal heirs or legal representative.
Application for Compensation has been studied in detail earlier in this
chapter under para C with heading - Application for Compensation.

II. Amendment of Pleadings: Amendment for Enhancement of Claim

Amount

In Madan Lal v. Chimman Singh76’s Case, it was held by the High Court
that amendment in pleadings cannot be refused on ground of doubt about
truth of averments in pleadings. Truth or otherwise of averments in pleadings
has to be ascertained on basis of evidence.

In a claim by widow for her and her minor son, the widow died during
pendency of proceedings and the son having become major south some
amendment in claim petition. It was wrong on part of Tribunal to have
disallowed amendment holding that there is no provision for amendment and

74
Ibid., Section 169 (2)
75
Ibid., Section 169 (3)
76
Madan Lal v. Chimman Singh, 1991 (1) ACC 265 (MP)
 133

doubting bonafides or argument made in application for amendment. In

appeal, the amendment was allowed on costs77.

In United India Insurance Co. v. Shaik Saibaqtualla78 it was held by the

High Court that there is no provision in law for amendment after decision of
claim. Subsequent events can be no basis for seeking amendment in original
claim after its decision.

An amendment in claim petition for enhancement of amount of compensation

can be sought before the Tribunal but not before the appellate court79.

III. Notices, Summons, Processes and Service

On receipt of claim application Claims tribunal is duty bound to ensure

service of summons on owner and driver of the vehicle. Where a notice has
been sent in regular course as also through Registered Post, AD, but could
not be served on one of the two owners and there was nothing to show that
said owner was avoiding service or that claimant had made efforts to give
correct address of said owner, it was held that condition for substituted
service through newspaper was not satisfied. Case had to be remanded after
setting aside ex parte orders80.

In Allanoor v. Dilip Singh81case it was held by the High Court that the claim
cannot be dismissed by attributing default in filling process fee on part of
claimant for substituted service on owner.

77
Ibid.
78
United India Insurance Co. v. Shaik Saibaqtualla, 1992 ACJ 858 (AP) DB
79
Manager, New India Assurance Co. Ltd v. Chintnala@ Anagaiah Narasimha, 2002 ACJ 1524 (AP)
DB
80
Dayanand v. Baijnath, 1991 ACJ 975 (Raj.)
81
Allanoor v. Dilip Singh 1998 ACJ 136 (Raj.)
 134

It was further held that summons on owner and driver of vehicle can be
served on counsel representing driver and owner in criminal court for
purpose of bail82.

IV. Written Statement

The provision of Rule 1 of Order 1 Civil Procedure Code lays down that
written statement should be filed within 90 days from date of service is
directory and court can grant permission to file written statement even
beyond period of 90 days if a case in this regard is made out. This provision
does not specifically take away the power of court to record written statement
even after period of 90 days.

In Oriental Insurance Co. Ltd. v. Sanjay Kumar83s case, the Hon’ble High
Court set aside the order of striking off defence in the interest of justice.

In New India Assurance Co. Ltd. v. Bimla84’s case it was held by the High
Court that mere admission of driver in his written statement of some of
contentions raised in the claim petition cannot amount to collusion of driver
with the claimant. For the purpose of collusion, there should have been an
issue and for framing of issue, there should have been specific pleading.

Absence of pleadings in written statement that the conditions of insurance

policy were violated resulting in not casting any issue on the point, precludes
insurer to meet such objection85.

82
Ibid.
83
Oriental Insurance Co. Ltd. v. Sanjay Kumar, 2007 ACJ 222 (P&H).
84
New India Assurance Co. Ltd. v. Bimla, 2001 ACJ 388 (P&H).
85
United India Insurance Co. Ltd. v. B. Hemavati, 2001 ACJ 749 (Cal.) DB
 135

V. Summary Procedure for Holding Enquiry

In holding any enquiry under Section 168 of the Motor Vehicles Act, 1988,
the Claims Tribunal may, subject to any rules that may be made in this
behalf, follow such summary procedure as it thinks fit86.

VI. Powers of Court in Respect of Taking Evidence on Oath,

Enforcing Attendance of Witness Etc.

The claims tribunal shall have all the powers of a civil court for the purpose
of taking evidence on oath and of enforcing the attendance of witness and all
compelling the discovery and production of documents and material objects
and for such other purposes as may be prescribed, and the Claims Tribunal
shall be deemed to be a civil court for all the purposes of Section 195 of the
Motor Vehicles Act, 1988 and Chapter XXVI of the Code of Criminal
Procedure, 197387.

VII. Taking of Assistance of Persons Possessing Special Knowledge

The Claims Tribunal may, for the purpose of adjudicating upon any claim for
compensation choose one or more persons possessing special knowledge of
any matter relevant to the inquiry to assist it in holding the inquiry. This is
subject to any rules made in this behalf88.

VIII. Framing of Issues

On receipt of application for compensation and written statement, it is the

duty of the claims tribunal to frame issues involved in the matter.
Adjudicating authority is required to pronounce its judgement on all issues.

86
The Motor Vehicles Act, 1988, Section 169(1)
87
Ibid. Section 169(2)
88
Ibid. Section 169(3)
 136

In an accident cases, material propositions for framing issues would be

whether owner of vehicle was involved in accident and who was the person
driving the vehicle and whether accident took place due to rash and negligent
driving of vehicle89.

Where there are several issues, no party can compel the tribunal to decide an
issue as preliminary issue particularly when the issue raised is not a question
of law or jurisdiction. Order of tribunal was not faulted90.

Several claims in respect of one single accident when disposed of by

common award and some of them if not appealed from, the issue of
negligence attains finality in awards not appealed from, and same cannot be
reopened in appeal91.

Once issues have been framed, it is incumbent on tribunal to record its

findings thereon. There is no scope for dismissal in default after claim has
been admitted and issues have been framed. If a claim has been dismissed
after framing issues, Order 9 of Civil Procedure Code would apply for its
restoration92.

IX. Ex Parte Proceedings – Dismissal in Default, Restoration etc.

Where defendants failed to submit written statement as well as failed to

appear before the tribunal either personally or through authorised
representatives or submit written statement but subsequently failed to appear,
the tribunal may record the defendants as ex-parte.

89
Kanti Lal v. Manohar Lal, 1994(1) ACC 413 (MP)
90
Oriental Insurance Co. Ltd. v. Ram Babu, 2007 ACJ 1406 (All.)
91
Oriental Insurance Co. Ltd. v. Badri Ram, 2002(1) TAC 194 (Raj.)
92
Burmi v. Tej Bhan, 1994(2) AJR 24 (P&H).
 137

Remedy against order of tribunal refusing to set aside ex-parte award lies in
petition under Article 227 of Constitution of India. A miscellaneous appeal
under Order 43, Rule 1 of Civil Procedure Code is not maintainable nor can
such appeal be treated as petition under article 227 of the Constitution,
though such petition can be filed afresh93.

An application for setting aside ex parte award was dismissed as not pressed.
It was held that point of ex parte award cannot be reopened or reagitated in
appeal, since fact of application to set aside ex parte award being dismissed
as not pressed amounts to acceptance that defendant was properly declared ex
parte94.

Where a claim petition was dismissed on the day fixed for evidence but
absence of claimant was not deliberate and counsel of claimant had gone out
of town, it was held that a party cannot be penalized for mistake or
negligence of counsel95.

X. Judgement – Finding on all Issues Necessary

On receipt of an application for compensation made under section 166, the

Claims Tribunal shall, after giving notice of the application to the insurer and
after giving the parties (including the insurer) an opportunity of being heard,
hold an inquiry into the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may 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 and in making the
award the Claims Tribunal shall specify the amount which shall be paid by

93
Mangla Jat v. Raju, 2001(2) ACC 195 (Raj.)
94
Gourikutty v. Raghavan, 2002 ACJ 1356(Ker.) DB
95
Urmila Devi v. Sukhdev Singh, 2002(1) ACC 157 (MP)
 138

the insurer or owner or driver of the vehicle involved in the accident or by all
or any of them, as the case may be96.

It is duty of tribunal to record findings on all issues, even if on the finding of

one or other of the issues, it was possible to decide the matter one way or the
other. Under Order 20, Rule 5 of Code of Civil Procedure, it is mandatory
that the court shall state its finding or decision, with the reason therefore,
upon each separate issue and all the distinct issues have to be answered
separately. The exceptional situations are only those provided under Order
14, Rule 2(2), where an issue relating to the jurisdiction or a bar to a suit/
proceedings is required by any law for the time being in force to be decided
as a preliminary issue, where evidence is recorded on all the issues, when
there is scope of appeal, under Section 173 of the Act, to avoid delay and
protraction of litigation, that tribunal/ court should, when dealing with matter
dispose of all issues and not merely to rest its decision on one or more issues
by leaving unanswered the remaining issues97.

XI. Delivery of Copies of Award to Parties within 15 Days

Section 168(2) of the Motor Vehicles Act, 1988 provides that the Claims
Tribunal shall arrange to deliver copies of the award to the parties concerned
expeditiously and in any case within a period of fifteen days from the date of
award.

XII. Person Required to Pay Compensation in Terms of Award to

Deposit the Entire Amount within 30 Days.

Section 168(3) states that when an award is made under this section, the
person who is required to pay any amount in terms of such award shall within
96
The Motor Vehicles Act, 1988, Section 168 (1)
97
Mallamma v. Mahaboob Ali, AIR 2010 (NOC) 10 (Karn.)
 139

30 days of the date of announcing the award by the Claims Tribunal deposit
the entire amount awarded in such manner as the Claims Tribunal may direct.

It may also be noted here that ordinarily while awarding compensation, the
provisions contained in the second schedule may be taken as a guide
including the multiplier, but they may arise some cases, as one in hand,
which may fall in the category having special feature or facts calling for
deviation from the multiplier usually applicable98.

XIII. Execution of Award of Claims Tribunal

Executing court is not empowered to reconsider any aspect of award afresh

but is required to execute it as passed by trial court. Execution of award if
taken out after twelve years is not permissible. The award if not executed
within twelve years becomes inoperative and unenforceable99.

The executing court while enforcing the award cannot travel beyond the main
award. Where the offending vehicle was the exclusive property of the U.P.
State Road transport Corporation, the Corporation would be liable for
payment of compensation qua the accident. Any subsequent apportionment
of the assets of the corporation between the state of U.P. and State of
Uttranchal can be no ground to obstruct execution of the award so as to
adversely affects the rights of the claimant. Application of the corporation for
Impleading Uttranchal State Road Transport Corporation was held rightly
rejected by the executing court100.

Jurisdiction of tribunal to enforce its award is not limited only one method,
namely issuance of certificate to the collector for recovery of the amount due

98
United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2616
99
Mt. Prag Kaur v. Devi Dutt, 1998(1) ACC 313 (P&H).
100
U.P.State Road Transport Corportaion v. Motor Accident Claims Tribunal, AIR 2006 NOC 198
 140

under the award as arrears of land revenue. The tribunal posses inherent
jurisdiction to enforce its own award in accordance with the provisions of the
Code of Civil Procedure as applicable to execution of orders and decrees
passed by a civil court. When tribunal possesses such inherent jurisdiction,
the claimant cannot be asked to follow another procedure and the tribunal is
to execute the award under Order 21, Rule 11 of Civil Procedure Code101.

H. Assessment of Claim

The assessment of compensation, however, be made good but cannot be said to

be fool proof. In every such assessment certain assumptions are to be made and
there is all possibility of variance from Judge to Judge in applying the various
principles enunciated by the Courts from time to time. Lord Viscount Simon has
evolved a method of assessment known as "Nance's method" more popularly as
"discounting method". Another popular method, which is known as Davis
Method was evolved by Lord Wright.

Hon'ble Supreme Court while dealing with a matter evolved a formula. Yearly
Income Yearly expenditure on Deceased gives the sum expended on legal
representatives. If this amount is capitalized subject to certain deductions,
pecuniary loss to the family can be assessed. While improving the above formula
Supreme Court in C.K.Subramonia Iyer v. T. Kunhikuttan Nair102 case has
stated that there is no exact uniform rule for measuring the value of human life
and measure of damages cannot be arrived at by a mathematical calculation but
the amount recoverable depends upon life expectancy of legal representative
beneficiaries. In the same period Lord Diploc has evolved Interest Capitalization
method by calculating net pecuniary loss on annual basis and multiplied with
number of years purchase. The Hon'ble Supreme Court of India with the
101
Mishra v. Motor Accident Claims Tribunal, 2006(1) ACC 362.
102
C.K.Subramonia Iyer v. T. Kunhikuttan Nair, AIR, 1970 SC 376
 141

development of accident claims has decided the landmark case of General

Manager, Kerala State Road Transport Corporation v. Susamma
Thomas103 has started giving appreciation to the annual income of deceased.
This appreciation ranges to the double of income depending upon the nature of
job, age, future prospects etc. Supreme Court has held that after determining and
doubling annual income, 1/3 should be deducted towards the expenses to be
incurred on the deceased and the remaining amount should be multiplied by a
multiplier depending on the age of deceased and beneficiary. The maximum
multiplier approved by Supreme Court in this case was 16. Later, Supreme
Court's 3 Judges bench have approved the Davis formula along with
determination of dependency on unit basis in which the adults have been taken
as 2 units and the minors has been taken as 1 unit. The multiplier, which was
approved as 16 in Sushma Thomas case, was increased to maximum of 18. In
this case the court did not allow double of the amount except that a premium
may be given looking to the future prospects. But, in a recent Supreme Court
judgment, in order to make compensation just and to take consideration of
overall factors multiplier was reduced from 16 to 12 in case of deceased of 38
years. In same facts and circumstances, in another case Supreme Court has said
for determination of multiplier depends upon (1) age of deceased (2) age of
claimants (3) marital status (4) education and employment of the claimants; and
(5) loss of pecuniary benefits. The Supreme Court has also held that criteria of
awarding compensation include some guess work, some hypothetical
consideration and some amount of sympathy linked with the nature of disability
caused are all involved. But, all such elements are required to be viewed with the
objective standard104.

103
General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, AIR, 1994SC
1631.
104
Ibid.
 142

In view of the above case laws, one can say that the assessment of compensation
is to be guided by way of applying precedents on the facts and circumstances of
a particular case. It should not be misunderstood that an injured or legal
representatives of the deceased should be given exorbitant claim, but the law
restrict them to be "just compensation" so as to save the injured or legal
representatives of deceased from possible pecuniary and non-pecuniary losses
guided by the above judgments.

I. Impleadation of Insurer in Certain Cases

Section 170 of the Act provides for impleadation of insurer in certain cases.
Where in the course of any inquiry, the Claims Tribunal is satisfied that there is
collusion between the person making the claim and the person against whom the
claim is made or the persons against whom the claim is made has failed to
contest the claim, it may, for reasons to be recorded in writing, direct that the
insurer who may be liable in respect of such claim, shall be impleaded as a party
to the proceeding and the insurer so impleaded shall thereupon have, without
prejudice to the provisions contained in sub-section (2) of section 149, the right
to contest the claim on all or any of the grounds that are available to the person
against whom the claim has been made105.

In Manful v. Mehmood106 it was held that strict rules of evidence are not
applicable to proceedings before the Tribunal and it is to be prima facie
established that accident took place with a motor vehicle and injury caused or
resulted into death of the victim.

Section 170 of the Act has also contemplated an additional situation wherein the
insurer has to be necessarily impleaded and for that an occasion arises only when

105
The Motor Vehicles Act, 1988, Section 170
106
Manful v. Mehmood, 2005 (1) ACC 765
 143

the Claims Tribunal gets satisfied that the claimant and the owner of the vehicle
are in collusion or where the owner or driver has not contested the claim and as
regards the former, it is unusual for the tribunal to smell any such collusion and
it is only the insurer who has to make such application and satisfy the tribunal by
adducing evidence that there has been a collusion between the claimant and the
insured owner of the vehicle. On the tribunal being satisfied, it shall allow the
insurer to take over the entire defence, raise all such pleas as be available to the
owner- insured, and such pleas shall, then be in addition to the statutory defences
available to or already taken by the insurer under section 149 (2).

In National Insurance Co. Ltd. v. Anjana Shyami107 it was held that unless
tribunal has permitted the insurer to contest the claim on all or any other grounds
that are available to persons against whom the claim had been made, application
under section 170 is not maintainable.

J. Award of Interest Where Any Claim is Allowed

Section 171 of the Act empowers the Claims Tribunal to order that simple
interest at such rates as it thinks fit shall also be paid along with the award of
compensation.

Where any Claims Tribunal allows a claim for compensation made under this
Act, such Tribunal may direct that in addition to the amount of compensation
simple interest shall also be paid at such rate and from such date not earlier than
the date of making the claim as it may specify in this behalf108.

107
National Insurance Co. Ltd. v. Anjana Shyami, 2001 (2) AJR 523
108
The Motor Vehicles Act, 1988, Section 171
 144

K. Award of Compensatory Costs in Certain Cases

Section 172 of the Act seeks to empower the Claims Tribunal to award special
compensatory costs where in certain cases it is found that there has been mis-
representation of case or vexatious to claims or defence.

Any Claims Tribunal adjudicating upon any claim for compensation under this
Act, may in any case where it is satisfied for reasons to be recorded by it in
writing that the policy of insurance is void on the ground that it was obtained by
representation of fact which was false in any material particular or any party or
insurer has put forward a false or vexatious claim or defence such Tribunal may
make an order for the payment, by the party who is guilty of misrepresentation
or by whom such claim or defence has been put forward of special costs by way
of compensation to the insurer or, as the case may be, to the party against whom
such claim or defence has been put forward109.

No Claims Tribunal Shall pass an order for special costs under sub section (1) of
section 172 for any amount exceeding one thousand rupees110.

No person or insurer against whom an order has been made under this section
shall, by reason thereof be exempted from any criminal liability in respect of
such mis-representation, claim or defence as is referred to in sub-section (1) of
section 172111.

Any amount awarded by way of compensation under this section in respect of

any mis-representation, claim or defence, shall be taken into account in any

109
Ibid., Section 172 (1)
110
Ibid., Section 172 (2)
111
Ibid., Section 172 (3)
 145

subsequent suit for damages for compensation in respect of such mis-

representation, claim or defence112.

L. Tribunal’s Jurisdiction to Set Aside Award Procured by Fraud

In Oriental Insurance Company Ltd. v. R. Mani113 since fraud affects the

solemnity, regularity and orderliness of the proceedings of the court and also
amounts to an abuse of the process of court, the courts have been held to have
inherent powers to set aside an order obtained by fraud practiced upon the court.
Similarly, where the court is misled by a party or the court itself commits a
mistake which prejudices a party, the court has the inherent jurisdiction to recall
its order.

It was held that where an award had been obtained on basis of a fabricated
policy, the commissioner of workmen’s compensation, was empowered to
reopen the case if allegation of fraud was sustainable114.

In National Insurance Co. Ltd. v. Murti Devi115, where a fraud was committed
on the insurer which had not been taken note of by the tribunal while passing its
award. The fraud perpetrated by the claimants had come to the knowledge of the
insurer even while proceedings were before the tribunal, yet the insurer had not
filed an application under section 170 of the Motor Vehicles Act, for obtaining
an order to contest the claim on all grounds that are available to the insured. The
insurer having failed to do so, the court was of opinion, in view’s of the court’s
earlier decision in National Insurance Co. Ltd. v. Balbir Kaur116that the
appeal by the insurer was not maintainable. However, the appeal was treated as a
writ petition and it was held that if a fraud has been committed by the claimants,
112
Ibid., Section 172 (4)
113
Oriental Insurance Company Ltd. v. R. Mani, 2000 ACJ 247
114
Ibid.
115
National Insurance Co. Ltd. v. Murti Devi, 2002 (1) TAC 470 (P&H) DB.
116
National Insurance Co. Ltd. v. Balbir Kaur, 2001 ACJ 555 (P&H) DB.
 146

it was open to the insurer to have moved an application before the tribunal under
section 151, 152 or 153 of the Civil Procedure Code for recalling the award. It
was observed that as and when such application be filed, the same shall be
considered and disposed of by the tribunal.

M. Appeals Against the Decisions of Claims tribunal

Section 173 makes provision for appeal to High Court by the aggrieved against
the orders of Claims tribunal and where the person aggrieved is the person who
has to pay the compensation such person shall deposit 50 percent of the amount
awarded as directed by the High Court.

Subject to the provisions of sub-section (2), any person aggrieved by an award of

a Claims Tribunal may, within ninety days from the date of the award, prefer an
appeal to the High Court117.

Provided that no appeal by the person who is required to pay any amount in
terms of such award shall be entertained by the High Court, unless he has
deposited with it twenty-five thousand rupees of fifty per cent, of the amount so
awarded, whichever is less, in the manner directed by the High Court118.

Provided further that the High Court may entertain the appeal after the expiry of
the said period of ninety days, if it is satisfied that the appellant was prevented
by sufficient cause from preferring the appeal in time119.

No appeal shall lie against any award of a Claims Tribunal if the amount in
dispute in the appeal is less than ten thousand rupees120.

117
The Motor Vehicles Act, 1988, Section 173 (1)
118
Ibid., Proviso to Section 173 (1)
119
Ibid., Proviso to Section 173 (1)
120
Ibid., Section 173 (2)
 147

The condition of deposit of Rs. 25,000/- or 50% of the amount, whichever is

less, as imposed by the first proviso to Section 173(1) is a rule which is
unexceptionable. Nor can the amount as specified to be deposited be reduced.
Such conditions are imposed in other statutes, for example, under section 21 of
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and
under the third proviso to section 30 of the Workmen’s Compensation Act, 1923.

In H. Paul v. Bank of India121 it was held that the remedy of appeal cannot be
said to be illusory merely because the appellant is required to deposit the
prescribed amount.

Provision of appeal has been provided under Section 173 of Motor Vehicle Act.
But the courts have held that the right to appeal is available only to the driver
and owner against whom the award is passed. The right of Insurance Company
to file appeal is not permitted on the ground of quantum or negligence. Insurance
Company can file appeal only on the ground of statutory defenses available.

In circumstances where the application under Section 170 has been rejected, the
insurance Company has got right of one judicial review on the reasons of
rejection either by filing writ petition or to agitate the matter in appeal. Similarly,
in all other circumstances where no order has been passed by the court or no
reasons have been recorded by the Tribunal. Such act cannot be accountable to
the insurer and the insurer must get an opportunity to challenge the same. I am
impressed by a judgment passed by Himachal Pradesh High Court in which the
court has referred the 3 Judges Bench Supreme Court judgment of Nicolletta
Rohtagi and has held that in these circumstances the insurer can file appeal and
agitate these issues in appeal before the Court and if the court found it proper
will permit to continue the appeal and to decide the appeal on merit.

121
H. Paul v. Bank of India, 1998 ISJ (Banking) 550 (P&H) DB
 148

In my humble opinion this provision (section 173) is not of benefit to anybody

because it do not provide the right to appeal to one of the litigating party who
has to make payment of compensation i.e. insurer. If the owners are not
participating or presenting themselves in order to help the claimants, the insurer
would not be in a position to control the high awards in want of cross
examination of income and other issues. Legislature has already restricted the
right of defense but a further restriction of not participating in the trial would not
be just. There is imminent need of amendment to permit the insurer to contest
the claims as they are the persons who have to make payment of the
compensation. Once the insurance cover is available, the owner feels safe and do
not help the Insurance Company in the process of contesting the claim.

Further, now a day, if seriously quantified, a good number of cases are coming
as a flood in the courts of law for compensation. This is because of huge sum of
compensation are allowed to the claimants and for that purpose fake accidents,
fake drivers are planned with the connivance of the police. The police in
connivance do not investigate the matter of delay in lodging of F.I.R., delay in
recording of statements. In these circumstances, a right to contest on merit and
quantum should be provided to the Insurance Company in order to make the
contest just and equitable.

It may be useful to mention here that the condition of deposit cannot be bypassed
by filling a writ petition instead of appeal. In Sushil Kumar Jaiswal v. Bank of
India122 it was held that the petitioner cannot be permitted to resort to exercise of
revisional jurisdiction under Article 227 merely to avoid the rigour of the
statutory provision of appeal.

122
Sushil Kumar Jaiswal v. Bank of India , 1997 Bank LJ 37
 149

In Dwarka Nath v. Income Tax Officer, Kanpur123, it was observed by the

Supreme Court, as far as back in 1966 that Article 226 is couched in
comprehensive phraseology and it ex facie confers a wide power on the High
Courts to reach injustice wherever it is found. A wide language in describing the
nature of the power, the purpose for which and the person or authority against
whom it can be exercised was designedly used by the constitution.

In Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor124 it was held that

the bar of appeal in case of the award being less than Rs. 10,000/- reflects the
intention of the parliament that if amount of an award is less than Rs. 10,000/- or
below, the same should be paid without demur or contest. It follows that the bar
created by Section 173 (2) cannot be bypassed by filling a writ petition except in
extraordinary circumstances.

N. Recovery of Money from Insurer as Arrear of Land Revenue

Where any amount is due from any person under an award, the Claims tribunal
may, on an application made to it by the person entitled to the amount, issue a
certificate for the amount to the Collector and the Collector shall proceed to
recover the same in the same manner as an arrear of land revenue125.

A person entitled for amount under an award by Claims tribunal in a motor

accident may move an application to the claims tribunal under Section 174 of the
Act for recovery of the amount awarded by the claims tribunal and claims
tribunal may issue to such claimant a certificate for such amount and collector
may proceed under such certificate to recover the amount as an arrear of land
revenue.

123
Dwarka Nath v. Income Tax Officer, Kanpur , AIR 1966 SC 81
124
Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor , 2000 ACJ 558 (Ker.)
125
The Motor Vehicles Act, 1988, Section 174
 150

O. Power of State Government to Make Rules

Section 176 of the Act confers upon the State Government to make rules for
carrying into effect provisions of clauses 165 to 173.

A State Government may make rules for the purpose of carrying into effect the
provisions of sections 165 to 174, and in particular, such rules may provide for
all or any of the following matters, namely :-

(a) the form of application for claims for compensation and the particulars it
may contain, and the fees, if any, to be paid in respect of such applications;

(b) the procedure to be followed by a Claims Tribunal in holding an inquiry

under this Chapter;

(c) the powers vested in a Civil Court which may be exercised by a Claims
Tribunal;

(d) the form and the manner in which and the fees (if any) on payment of
which an appeal may be preferred against an award of a Claims Tribunal;
and

(e) any other matter which is to be, or may be, prescribed.

P. Insurer and No Fault Liability

In Bani Ram Das v. National Insurance Co. Ltd126 it was held that the statute
never placed any liability on the insurer to pay compensation under no fault
liability even if vehicle is covered under a valid insurance policy since the statute
clearly placed that liability on the owner to pay.

126
Bani Ram Das v. National Insurance Co. Ltd , 2008 ACJ 538
 151

Q. No Fault Claim Can Be Proved At Appellate Stage also.

In Walmikrao Jayaram Kajale v. Uttam Buvaji Raut127in this matter the

claim was that motor cyclist on motorcycle A was hit by motorcycle B from
behind but the defence that motorcycle A having been broken down was being
towed by motorcycle B but the motorcyclist got injured because the towing rope
had given way, was held proable by the appellate Court. The tribunal had
dismissed the claim but the appellate court held that the claimant despite
rejection of his claim on fault liability could agitate the claim under no fault
liability even at the stage of appeal.

In Lakshmi Soren v. New India Assurance Co. Ltd.128 a victim initially

injured in accident had died within one year from date of discharge from
hospital. There was no evidence that he ever led a normal life after discharge
from hospital. In view of close proximity of time of death of victim from date of
discharge, cause of death being nothing but injuries, award under no fault
liability was passed in appeal for Rs. 50,000, even if the fault claim was
dismissed by the tribunal.

R. Multiplier in Second Schedule when to be ignored

In Usha v. Tamil Nadu State Road Transport Corp. Ltd.129 It was held that
the multiplier set out in Second Schedule is not all conclusive, and can vary
depending upon circumstances, and in some cases it could be more and in others
less than what is contemplated in the section.

127
Walmikrao Jayaram Kajale v. Uttam Buvaji Raut , 2004 ACJ 2009
128
Lakshmi Soren v. New India Assurance Co. Ltd., 2006 ACJ 551 (Cal) DB
129
Usha v. Tamil Nadu State Road Transport Corp. Ltd., 2009 ACJ 2424 (Mad.)
 152

In United India Insurance Co. Ltd. v. Dhanlaxmiben Satishbhai Bhagat130 it

was held that the multiplier is on higher side, the multiplier indicated in the
Second Schedule may not be adopted.

Since section 163A is incomplete without the text of the Second Schedule of the
Motor Vehicles Act, 1988, the same for purposes of determining the pecuniary
jurisdiction of the Claims tribunal under that section has to follow section 163A.

Multiplier Table in Claim Cases under Section 166

Multiplier to be Adopted
Age of the Victim (in In regard to Accident In regard to Accident
Years) prior to 14.11.1994 after 14.11.1994
18 to 22 16 18
23 to 27 15 17
28 to 32 14 16
33 to 37 13 15
38 to 42 12 14
43 to 47 11 13
48 to 52 10 12
53 to 57 9 11
58 to 62 8 10
63 to 67 7 9
68 to 72 6 8
73 to 77 5 7

130
United India Insurance Co. Ltd. v. Dhanlaxmiben Satishbhai Bhagat, 2008 ACJ 966 (Guj.) DB
 153

S. Duty of claimant to choose between Sections 163A and 166

In New India Assurance Co. Ltd. v. Bhavani Nanji Pachanbhai Patel131it was
held that remedies under section 163A and 166 being independent of each other,
the claimant must elect or opt for either of them. Compensation under section
163A is final in nature and cannot be altered or varied in any other proceedings.

In Kamla Devi v. Ram Kishan132 the claim petition was filed under section 166
and award under section 140 had been passed, the application for amendment to
covert petition from section 166 to section 163A was not held permissible, since
after passing of award it is no longer open to the claimant to such conversion.

In Himachal Road Transport Corporation v. Baldev Kumar Nayyer133 it was

laid down that the claims tribunal cannot treat a petition under section 166 as one
under section 163 by restricting income of injured/ deceased at Rs. 40,000.00 per
annum when deceased/injured was earning more than Rs. 40,000/- per annum.

In National Insurance Co. Ltd. v. Indu Saraswat134it was held that claim
application under section 163A in respect of a person whose income was more
than Rs. 40,000/- per annum cannot become maintainable by reducing the claim
to the limit provided in the section because the section has been inserted with the
object of giving relief to a section of public having income upto a particular
level.

131
New India Assurance Co. Ltd. v. Bhavani Nanji Pachanbhai Patel, 2007 ACJ 2067
132
Kamla Devi v. Ram Kishan, 2009 (1) ACC 920
133
Himachal Road Transport Corporation v. Baldev Kumar Nayyer, 2007 ACJ 678
134
National Insurance Co. Ltd. v. Indu Saraswat, 2009 ACJ 2413 (Raj.).
 154

T. Review

State Government may, by notification in the Official Gazette, constitute one or

more Motor Accident Claims Tribunal (hereafter in this Chapter referred to as
Claims tribunal) for such area as may be specified in the notification for the
purpose of adjudicating upon claims for compensation in respect of accidents
involving the death of, or bodily injury to, persons arising out of the use of motor
vehicles, or damages to any property of a third party so arising, or both.

A Claims Tribunal shall consist of such number of members as the State

Government may think fit to appoint and where it consists of two or more
members, one of them shall be appointed as the Chairman thereof. A person
shall not be qualified for appointment as a member of a Claims Tribunal unless
he is or has been a Judge of a High Court, or is or has been a District Judge or is
qualified for appointment as a High Court Judge or as a District Judge.

Claims Tribunal set up under this Act are deemed Civil Courts. In Mohd.
Riyazur Rehman Siddiqui v. Deputy Director of Health Services,135it was
held that technically and grammatically speaking, tribunal may not be a civil
court, but it has all the trappings of court since it passes an award which has all
the ingredients of a judgement as known under civil jurisprudence.

An application for compensation arising out of an accident of the nature

specified in sub-section (1) of section 165 may be made by the person who has
sustained the injury or by the owner of the property or where death has resulted
from the accident, by all or any of the legal representatives of the deceased or by

135
Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 (3) ACC 300 (Bom)
FB
 155

any agent duly authorised by the person injured or all or any of the legal
representatives of the deceased, as the case may be136.

In Sanno Devi v. Balram,137 it was held that the jurisdiction of a tribunal

depends essentially on the fact whether there had been any use of motor vehicle
and once it has been established, tribunal’s jurisdiction cannot be held ousted on
findings that it is negligence of other joint tortfeasor and not of the motor vehicle
in question.

The claimant can file an application within the jurisdiction of claims tribunal (1)
where the accident occurred, or (2) before the tribunal within local limits of
whose jurisdiction, claimant resides or carries on his business, or (3) within local
limits of whose jurisdiction, the defendant resides or carries on his business. In
Kusum Devi v. Dungaram,138it was held that in view of the word “or” which
separates three clauses, the claimant can choose either of the three options and as
per legislative intent, there are three options implied, whereby he has been given
a right to pick one of three places for exercising his option.

Section 168 of the Act provides that the Claims Tribunal shall deliver the copies
of the award to the parties within fifteen days of the award and that the person
against whom the award is made shall deposit the amount awarded within thirty
days of announcement of the award.

The Claims Tribunal shall have all the powers of a Civil Court for the purpose of
taking evidence on oath and of enforcing the attendance of witnesses and
compelling the discovery and production of documents and material objects and
for such other purposes as may be prescribed. Further, the Claims Tribunal shall

136
The Motor Vehicles Act, 1988, Section 166(1)
137
Sanno Devi v. Balram, 2007, ACJ 1881 (MP) DB
138
Kusum Devi v. Dungaram, 2008 ACJ 1709 (Raj.).
 156

be deemed to be a Civil Court for all the purposes of section 195 and Chapter
XXVI of the Code of Criminal Procedure, 1973139.

Section 173 makes provision for appeal to High Court by the aggrieved against
the orders of Claims Tribunal and where the person aggrieved is the person who
has to pay the compensation such person shall deposit 50 percent of the amount
awarded or as directed by the High Court.

Section 176 of the Act confers upon the State Government power to make rules
for carrying into effect the various provisions including Sections 165 to 173.

139
The Motor Vehicles Act, 1988, Section 169 (2)
 157

CHAPTER: IV

Award of Compensation to the Victims of Motor

Accident in India: Judicial Trends
 158

CHAPTER: IV

Award of Compensation to the Victims of Motor

Accident in India: Judicial Trends

A. Introduction

The case law relating to Motor Vehicle Accident Cases, which have been
judicially determined in High Courts and the Supreme Court of India have been
studied, examined, analyzed and critically commented upon for the purpose of
appreciating the judicial invocation and application of the evidentiary principles
of No Fault Liability, Contributory Negligence, res ipsa loquitur in negligence
cases, Act of God, Absolute and Vicarious Liability etc.. These cases cover
motor accidents of the nature of both collision as well as non- collision. The
word “ collision “ is used in this chapter as a case where there is collision
between two or more motor vehicles, like collision between car and bus etc. The
word “non collision” is used in this chapter as a case where there is no collision
between two or more motor vehicles, although these may have been hitting a
wall or tree or a human being.

Accidents and compensation are fundamentally the incidents of Law of Torts.

Accident connotes a casualty caused by neglect of duty to others. The causa
causans of an accident is not mens rea, but remissness. The attributes like
animus, motive, intention etc., all tending somewhat to a future consequence are
simply misfit to explain the phenomenon of accident, which very often speaks
for itself, and is covered by the maxim res ipsa loquitur. The word approximately
representing its formal cause finds its legal nomenclature in the term in
negligence.
 159

It is this element of negligence which distinguishes an accident simpliciter from

the anathema of inevitable accident, conceived in common parlance as Act of
God, a stock phrase often deployed as defence to counter a claim for
compensation on account of an accident. In the scriptural sense, all that happens
is ordained by God, as the Bhagwad Gita proclaims: “all actions are performed
by the modes of nature but the fool with his mind perverted by ego arrogates
himself as the doer”.1

It is a pre-condition of any civil society that no one shall conduct his affairs in a
way so as to result in loss, damage or injury to the mind, body, reputation or
property of another.

Accident, being casualty, cannot, therefore, be a matter of contract and being a

wrong independent of contract, it is a tort litigated under the hammer of
negligence wherein compensation is the usual relief granted to the aggrieved.

The quantum of compensation cannot be equal in two cases, even if the origin of
wrong be identical, since the same accident may cause death of one but only a
scratch or abrasion to the other. It is the difference which imports the idea of
liability, quantitatively, the extent and qualitatively, the kind of liability.
Whatever the injury or damage, no compensation can be awarded unless there
are grounds to make the wrongdoer liable2.

B. No Fault Liability

Today road accidents in our country has touched a new height and road accidents
are increasing day by day and resultant cases relating to motor accidents are
increasing in our courts. In majority of road accident cases because of rash and
negligent driving, innocent person becomes victims and because of this their

1
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.1.
2
Ibid. at 2.
 160

dependents in many cases are virtually on the streets. Because of increasing

number of motor accidents and their victims, question of payment of
compensation is assuming great importance in public as well as for the courts.
Generally as a rule, victims of road accidents have to first establish that the
accident was due to fault of the person causing injury or damage, than only court
will direct for payment of compensation. Indian legislature being aware of the
magnitude of the plight of victims of road accidents has introduced several
beneficial provisions to protect the interest of the claimants and to enable them
to claim compensation from the owner of the vehicle or insurance company.

In 1982 Chapter VII-A was introduced in Motor Vehicles Act, 1939, wherein
section 92A(1) provided that where the death or permanent disablement of any
person had resulted due to an accident, the owner of the vehicle shall be liable to
pay compensation in respect of such death or disablement in accordance with the
provisions of Section 92A(1). Section 92A(2) provided for the fixed amount for
such liability on the basis of no fault liability. The claimant was not required to
plead or establish that the death or permanent disablement in respect of which
the claim had been filed was the result of the wrongful act, neglect or fault of the
owner of the vehicle3.

In Sohan Lal Passi v. P.Sesh Reddy4 it was observed by the Supreme Court
that by introducing the chapter VII-A in the Motor Vehicles Act, 1939, the
Parliament has provided for payment of compensation within certain limits,
ignoring the principle of fault. Same is the position in the Motor Vehicles Act,
1988 and similar provisions have been retained in Chapter X of the Motor
Vehicles Act, 1988.

3
Motor Vehicles Act. 1939, Section 92A(3)
4
Sohan Lal Passi v. P.Sesh Reddy, 1996 (5) SCC 21
 161

In National Insurance Co. Ltd. v. Malathi C. Saliam5 it was held by Kerala

High Court that claim under Section 163A of the Motor Vehicles Act, 1988
cannot be defeated on the ground that death or permanent disablement had
occurred due to wrongful act, neglect or default on the part of the deceased or
disabled person. Nor the quantum of compensation shall be reduced due to
contributory negligence on the part of person who sustained disablement or
death.

In M.K.Kunhimohammad v. P.A.Ahmedkutty’s6 matter, the apex court has

made suggestions to raise limit of the compensation payable in respect of death
or permanent disablement, as a result of motor accidents, in the event of there
being no proof of fault on the part of the person involved in the accident, and
also in hit and run motor accidents and to remove certain disparities in the
liability of the insurer to pay compensation depending upon the class or type of
vehicles involved in accident.

The above suggestions were incorporated in the bill of Motor Vehicles Act,
1988. Section 140 of the Act provides that in case of death or permanent
disablement of any person resulting from an accident which arise out of use of a
Motor Vehicle/s, the owner of offending vehicle/s shall be liable jointly or
severally to pay compensation in respect of such death or permanent
disablement. Under this section amount of compensation is a fixed amount of
Rs. 50,000/- in case of death and Rs. 25,000/- in case of permanent disablement.

Compensation awarded under this section does not barred the victim to claim
compensation under any other law being in force, though the amount of such
compensation to be given under any other law shall be reduced by the amount of
compensation payable under no fault liability under this section or in accordance

5
National Insurance Co. Ltd. v. Malathi C. Saliam, 2005 (2) ACC 414
6
M.K.Kunhimohammad v. P.A.Ahmedkutty, 1987 (4) SCC 284
 162

with the structured formula laid down under schedule -2 to this Act read with
Section 163A of the Act.

In Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani7case it was held

by the Double Bench of the Mumbai High Court that the phrase ‘has resulted
from’ occurring in section 140 of the Motor Vehicles Act, 1988 does not require
the death to have occurred in the accident itself. The section is attracted even
where death is result or the consequence of the accident arising out of a motor
vehicle. What is necessary to see is whether the death is the consequence of an
accident arising out of use of motor vehicle.

In New India Assurance Co. Ltd v. Mehebubanbibi8 case the deceased was
deputed by his employer to carry a damaged transformer in a tractor. The tractor
fell in to a ditch. The deceased was pressed under the damaged transformer,
sustained injuries and died in hospital. Death of the deceased had arisen out of
and in course of his employment. Though the case was not one of no fault
liability, but as the accident had occurred due to negligence of the driver of the
tractor, yet the fact of the case attract for a claim of double compensation under
two different laws, irrespective of whether the claim is based on fault liability or
on no fault liability.

What is material is that a claim under the Motor Vehicles Act is no bar to
claiming compensation, if permissible, also under a different law. The Double
Bench of Gujarat High Court held that the heirs of deceased in such case could
claim compensation both under the Motor Vehicles Act for negligence of the
driver of the tractor and also under Worken’s Compensation Act, 1923 for death
occurring out of and in the course of employment.

7
Satvantkumar Harjit Singh Vig v. Aarti Jayant Lalwani, 2005 (1) ACJ 255 (Bom.) DB
8
New India Assurance Co. Ltd v. Mehebubanbibi, 2003 (2) TAC 639 (Guj.) DB
 163

In Ram Singh v. Anil9 it was held by the High Court that when occurrence of
accident is proved to have arisen out of use of Motor Vehicle, it is not necessary
to plead or prove negligence of driver of vehicle under Section 163A.

In National Insurance Co. Ltd. v. Honnappa10 in a claim under no fault

liability, claimant need not plead or establish that permanent disablement was
due to wrongful act or negligence or default of owner of the other vehicle with
which the vehicle of claimant has colluded.

In Pepsu Road Transport Corp. v. Kulwant Kaur11’s case it was held by the
Supreme Court that section 140, as it came in to effect from 01.07.1989, is not
retrospective. Hence the provision amended with effect from 14.11.1994 is also
not retrospective. Therefore, in accident which occurred on 30.11.1982, and
decided on 16.07.1984, the claimant was entitled only Rs. 15,000/- as per
provisions of section 92A of the Motor Vehicles Act, 1939.

In New India Assurance Co. Ltd v. Shymo Chauhan12 it was held by the
Punjab and Haryana High Court that when a claim application is filed under
section 163A, the owner and insurer are liable to pay to the legal heirs of the
deceased in case of death provided the accident has taken place or has arisen out
of use of motor vehicle and the liability extends even to cases where the
deceased was driver.

In New India Assurance Co. Ltd v. Parameswaran13 it was held by Kerala

high Court that under Section 140 of the Motor Vehicles Act, 1988 liability to
pay compensation is absolute and liability created there under is outside law of
tort requiring no enquiry as to who was the wrong doer and this right is

9
Ram Singh v. Anil, 2009 ACJ 73 (MP) DB
10
National Insurance Co. Ltd. v. Honnappa, 2008 (3) ACC 726 (Karn) DB
11
Pepsu Road Transport Corp. v. Kulwant Kaur, 2009 ACJ 1329
12
New India Assurance Co. Ltd v. Shymo Chauhan , 2006 ACJ 923
13
New India Assurance Co. Ltd v. Parameswaran , 2006 ACJ 1176
 164

substantive and liability to award specified compensation for death or permanent

disability is incurred right on date of accident and not on date of consideration of
the claim.

In Harendra Nath Halder v. New India Assurance Co. Ltd14, it was held by
the Calcutta High Court that so far as no fault liability is concerned, there is no
distinction between section 140 and 163A except one that whereas claimant
would be entitled to a statutory compensation fixed under section 140,
compensation under section 163A would be determined on the basis of
structured formula as there under provided with reference to Second Schedule of
the Motor Vehicles Act, 1988.

In Selvarajamani v. National Insurance Co.15, in this matter accident was

caused by a thief having stolen the car from possession of the owner, it was held
that the owner and the insurer of the car could be made liable under no fault
liability.

In United India Insurance Co.Ltd. v. Kishorilal16in this matter keys of the car
were snatched from the driver and the person who snatched the keys drove the
car and caused accident killing a person, the Tribunal exonerated the owner and
yet made the insurer liable to pay. In appeal, the insurer was absolved of liability
on ground that the owner was rightly exonerated and, hence the insurer could not
be made liable. The person who drove the car was held liable.

In A.C.G. Venancious v. Jagajothi17 in this case accident was caused by a

stolen motor cycle, it was held that the insurer cannot avoid liability, since there
was no breach of terms of policy in such case.

14
Harendra Nath Halder v. New India Assurance Co. Ltd, 2006 ACJ 975
15
Selvarajamani v. National Insurance Co., 2003 ACJ 1152
16
United India Insurance Co.Ltd. v. Kishorilal, 2005 (2) ACJ 1399
17
A.C.G. Venancious v. Jagajothi, 2008 ACJ 1434
 165

In Sitaram Akinchan v. Rajesh Sharma18in this case an accident was caused

by a motorcyclist on 05.06.1990 and the vehicle was not insured prior to
11.06.1990. it was held that the liability falls solely on owner of the vehicle
despite the plea that it was stolen at the time when accident took place.

C. Vis Major

In Hindu Religion it is considered that whatever happens in the world is Act of

God, yet in legal parlance, the expression Act of God is a mere short way of
expressing the proposition that a common carrier is not liable for any accident as
to which he can show that it is due to natural causes, directly and exclusively,
without human intervention and that it could not have been prevented by any
amount of foresight and pains and care reasonably to be expected of him19.

Act of God usually denoted by the expression vis major, which is distinct from
its kindred expression force majeure. The latter expression is not a mere French
version of the Latin expression vis major, but is a term of wider import.
Difficulties have arisen in the past as to what would legitimately be included in
force majeure. Judges have agreed that strikes breakdown of machinery, which
though normally not included in vis major, one included in force majeure. An
analysis of rulings on the subject shows that where reference is made to force
majeure the intention is to save the performing party from the consequence of
anything over which he has no control.

Whether force majeure or vis major can be any defence in cases of absolute or
strict liability, as opposed to liability simpliciter, since the doctrine propounded
in late nineteenth century must have undergone mitigation, modification or made
more absolute in course of years, is a debatable question.

18
Sitaram Akinchan v. Rajesh Sharma, 2007 (4) ACC 604
19
Baldev Narain v. State of Bihar, AIR 1959 Pat. 442. See also, Dr. R.G.Chaturvedi, “Law of Motor
Accident Claims and Compensation” (2010) p.56.
 166

In Baldev Narain v. State of Bihar20 it was held by the High Court that a
common carrier is not liable for any accident as to which he can show that it is
due to natural causes, directly and exclusively, without human intervention and
that it could not have been prevented by any amount of foresight and pains and
care reasonably to be expected of him.

In Dhanrajmal Govindram v. Shamji Kalidas & Co.21 it was held by the

Supreme Court that where reference is made to force majeure the intention is to
save the performing party from the consequence of anything over which he has
no control.

In Sankardan Das v. Grid Corporation of Orissa Ltd22 it was held that the
expression Act of God signifies operation of natural forces free from human
intervention, such as lightning or severe gale, snow storming, hurricanes,
cyclones and tidal waves and the like, though every non-expected wind or storm
cannot operate as excuse from liability if there is reasonable possibility of
anticipating their happening e.g. the possibility of extraordinary floods in
particular region being within competence of authorities to take precautionary
steps.

In A. Krishna Patra v. Orissa State Electricity Board23 it was held that Act of
god is some casualty which human foresight could not discern and from
consequences of which no human protection could be provided.

In Rishi Prusti v. Orissa State Electricity Board24 it was held that Act of god
is that which human prudence is not bound to recognize possibility.

20
Ibid.
21
Dhanrajmal Govindram v. Shamji Kalidas & Co., AIR 1961 SC 1283
22
Sankardan Das v. Grid Corporation of Orissa Ltd, 1998 ACJ 1420
23
A. Krishna Patra v. Orissa State Electricity Board , 1998 ACJ 155
24
Rishi Prusti v. Orissa State Electricity Board, 1999 ACJ 440
 167

In Ali Khan v. Vijay Singh25 it was held by the Rajasthan High Court that tyre
fleeing off a running motor vehicle and hitting the deceased person did not
constitutes Act of God.

In Sarda Devi v. Birbal Ram26 in this matter the accident was occurred due to
bursting of tyre but the owner had failed to establish that tyre was road worthy,
the finding of the Tribunal that it was an Act of God was reversed by the
appellate court holding that owner and driver were negligent in operating the bus
with unroad-worthy tyres.

In Shamma v. Kartar Singh27 in this case a tree had fallen on a jeep and a
passenger sustained fatal injuries, the plea that the tree had fallen because of
storm and therefore there was no negligence on the part of the driver was
negated because the occupants of vehicle had warned the driver not to drive in
great speed and stop the vehicle prior to accident.

In Sulochana v. Karnataka State Road Transport Corporation28 in this case

a tree had fallen on bus resulting in death of passenger. Tribunal dismissed the
claim on ground that accident was a vis major. It was held in appeal that use of
vehicle and death are so closely connected that it is difficult to treat death be an
Act of God unrelated to such user.

In United India Insurance Co. Ltd. v. Economic Roadways29it was held that
Act of God is a ground defence, it is for the defendant to prove that accident had
occurred for reasons beyond his control.

In Ashok Kumar v. Surinder Kumar30 it was held that jamming of steering of

the motor vehicle is mechanical defect and cannot be held to be vis major.

25
Ali Khan v. Vijay Singh, 2007 ACJ 350 (Raj.)
26
Sarda Devi v. Birbal Ram, 2009 ACJ 2780 (Raj)
27
Shamma v. Kartar Singh, 2008 ACJ 892 (MP) DB
28
Sulochana v. Karnataka State Road Transport Corporation, 2005(2)b ACJ 849
29
United India Insurance Co. Ltd. v. Economic Roadways , 2002 ACJ 2024 (Mad.)
 168

In State of Rajasthan v. Ram Prasad31 in the matter claim for compensation

was made under the Workmen’s Compensation Act, 1923, in respect of death of
a lady worker who died of an accident which took place on account of lightning.
It was held that she was working on the site and would not have been exposed to
such hazard of lighting striking her, had she not been working so.

Sharma v. Kartar Singh32 it was held that a driver, continuing to drive a jeep
when there was storm despite request of occupants to stop, cannot plead that
accident was an Act of God.

R.J. Foujdar Bus Service v. Ganpat Singh33in this matter a driver took the bus
on the bridge when water was overflowing. The bus was washed away, resulting
in death of several passengers. Accident was not an Act of God and negligence
of driver was writ large.

In Amar Nath Goel v. Mayur Syntex34 in this matter, the portion of a factory
wall had collapsed, resulting in death of three persons and injuries to the
plaintiff. The defence plea was that the wall had collapsed due to lightning but
neither there was any report nor any witness from the meteorological department
was examined, nor any independent evidence was adduced to substantiate the
plea. No evidence of the design of the wall at the time of its construction and
precautions taken, had been produced. It was held that it was duty of the
defendant to ensure that the wall was not dangerous and that same was
maintained in proper condition, and having failed so to prove, the defendant was
held liable.

30
Ashok Kumar v. Surinder Kumar, 1999 ACJ 1119 (HP) DB
31
State of Rajasthan v. Ram Prasad, 2001 ACJ 647 SC
32
Supra n.27
33
R.J. Foujdar Bus Service v. Ganpat Singh, 2007 ACJ 1591 (MP) DB
34
Amar Nath Goel v. Mayur Syntex , 1990 ACJ 93 (Del)
 169

In M P State Road Transport Corporation v. Bhoj Singh35in this case a bus

had collided against a tree which caused a tyre burst in the rear wheel, causing
injury to a passenger. The defence was that the tyre was in good condition and
that the burst was a vis major. The evidence was that the bus was overloaded
with 80-90 passengers. It was held that the tyre burst was due to overloading and
that the driver was negligent in having the bus overloaded.

D. Application of Principle of Vicarious and Absolute Liability in

Motor Accident Cases

The term liability gives wide suggestions. It is a broad term of large and
comprehensive significance and means legal responsibility or obligation to do a
thing. Liability means “the state of being bound or obliged in law or justice to
do, pay or make good something; legal responsibility36”.

In First National Bank Ltd. v. Seth Sant Lal37it was observed in this matter
that the term ‘liability was of large and comprehensive significance and when
construed in its usual and ordinary sense in which it is commonly employed, it
expresses the state of being under obligation in law or in justice.

Similar observations were given by the Delhi High Court in the matter of Mohd.
Yaqub v. Union of India38, it observed that the word Liability in ordinary sense
in which it is commonly employed, it expresses the state of being under
obligation in law or in justice.

Thus, is what the term ‘liability’ simpliciter should connote. When liability of
one is substituted by that of another, that is, when one becomes liable by legal

35
M P State Road Transport Corporation v. Bhoj Singh , 1992 ACJ 1151 (MP)
36
Andersons’Law Dictionary
37
First National Bank Ltd. v. Seth Sant Lal, AIR 1959 Pun. 328
38
Mohd. Yaqub v. Union of India, AIR 1971 Del 45
 170

fiction for the wrong or neglect of another, the term ‘liability’ is prefixed by the
appellative ‘vicarious’.

I. Vicarious Liability

Normally no person is held responsible for the wrongs done by someone else.
However, there are few instances wherein a person can be held liable for the
conduct of another person. This liability is known as Vicarious Liability.

The following relationships are the best examples of Vicarious Liability:

 Liability of the Principal for the act of his Agent

 Liability of the Partners

 Liability of the Master for the act of his Servant

Liability of the Principal for the act of his Agent When a principal authorizes
his agent to perform any Act, he becomes liable for the act of such agent
provided the agent has conducted it in the course of performance of duties.

Liability of the Partners For the tort committed by a partner of a firm, in the
normal course of business of that partnership, other partners are responsible
to the same extent as that of the partner who is in fault. The liability thus
arising will be joint and several39.

Liability of the Master for the act of his Servant The liability of the master
for the act of his servant is based on the principle of ‘respondeat superior’,
which means ‘let the principal be liable’. This principle originates from the
maxim, ‘Qui Facit per Alium Facit per se’ which means ‘he who does an act
through another is deemed in law to do it himself’. In tort, the wrongful act of
the servant is thus deemed to be the act of the master. However, such
39
“Vicarious Liability” Accessed on www.VakilNo1.com. On 27.05.2010 at 12.40 p.m.
 171

wrongful act should be within the course of his master’s business and any
act, which is not in the course of such business, will not make the master
liable40.

In Rani Devi @ Usha Rani v. Devilal41 it was held that if vehicle is used for
purpose of owner or owner’s business, the act of servant would make the
owner vicariously liable for payment of compensation, but where the vehicle
was driven by an unauthorized person not for owner’s purpose or owner’s
business, owner would not be vicariously liable.

Expression ‘Vicarious liability’, has been defined by Peter Barrie as under:

“Vicarious Liability: where a person is liable for an act committed by

someone else on his behalf. The commonest situation is employment: an
employer is liable for the acts of his employee, it is the employer who will be
named as the defendant (and who will hold the relevant liability insurance
policy)”42.

The term vicarious liability has been described in Winfiel & Jolowicz on Tort
as follows:

“The expression ‘ vicarious liability’ signifies the liability which A may incur
to C for damage caused to C by the negligence or other tort of B. the fact that
A is liable does not, of course, insulate B from liability, though in most cases
it is unlikely that he will be sued or that judgement will be enforced against
him. It is not necessary for vicarious liability to arise that A shall have
participated in any way in the commission of the tort nor that a duty owed in
law by A to C shall have been broken. What is required is that A should stand
in a particular relationship to B and that B’s tort should be referable in a

40
Ibid.
41
Rani Devi @ Usha Rani v. Devilal, 2009 ACJ 858 (Raj.)
42
Oxford University Press. “Compensation for Personal Injuries”, (2002), p.12,
 172

certain manner to that relationship A’s liability is truly strict, though for it to
arise, a case of negligence, there has to be fault on the part of B. the
commonest instance of this in modern law is the liability of an employer for
the torts of his servants done in the course of their employment. The
relationship required is the specific one, that arising under a contract of
service and the tort must be referable to that relationship in the sense that it
must have been committed by the servant in the course of his employment43”.

The liability of one partner for another, that of father for his minor son, that
of husband, in certain cases for the act of his wife, or that of a principal for
his agent, may be other illustrations. In criminal law, it implicates the act of
abettor for the act of the person abetted, and the conspirators in the act
committed in pursuance of a conspiracy.

Generally the doctrine of vicarious liability recognizes that a person may be

bound to answer for the acts of another. Similarly in the case of corporations
–the company may be liable for the acts of its employees, agents, or any
person for whom it is responsible. The doctrine of vicarious liability
developed originally in the context of tortious liability, was imported into the
criminal law, when this type of offences were essentially absolute liability
offences.

II. Absolute Liability

Rules of Strict and Absolute Liability are based on the concept of ‘No fault
liability’. At times a person may be held responsible for some wrong though
there was no negligence or intention on his part to do such wrong. This rule
was laid down by the House of Lords in Rylands v Fletcher and hence it is
also commonly termed as the Rule in Rylands v Fletcher.

43
Winfiel & Jolowicz on Tort, ( 2002), p.701
 173

In India, this rule was formulated in the case of M.C. Mehta v Union of
India44, wherein the Supreme Court termed it as ‘Absolute Liability’ This
rule was also followed in the case of Indian Council for Enviro-Legal Action
v Union of India (1996) Section 92A of the Motor Vehicles Act, 1939 also
recognises this concept of ‘liability without fault’. The ingredients of the
Rule of Strict Liability are:

 Some hazardous thing must be brought by the defendant on his land.

 There must be an escape of such thing from that land.

 There must be a non-natural use of the land.

Exceptions to the Rule of Strict Liability:

 If the escape of the hazardous good was due to plaintiff’s own fault or
negligence.

 Vis Major or Act of God is a good defence in an action under the Rule of
Strict Liability.

 In cases where the wrong done has been by someone who is a stranger and
the defendant has no control over him.

 Cases where the plaintiff has given his consent to accumulate the hazardous
thing in the defendant’s land for the purpose of common benefit.

 Any act done under the authority of a statute

Where an enterprise is engaged in a hazardous or inherently dangerous

activity, the enterprise is strictly and absolutely liable to compensate all those
who are affected by the accident, and such liability is not subject to any of

44
M.C. Mehta v Union of India, AIR, 1987 SC 1086
 174

the exceptions which operate vis a vis the tortious principle of strict liability
under the rule in Rylands v. Fletcher45.

In Rylands v. Fletcher46, the plaintiff was the occupier of certain mines and
the defendants were the owners and occupiers of a mill standing on land
adjoining the plaintiff’s land. The defendant wished to construct a reservoir
and employed a competent engineer and a contractor to do it. There were
certain old passages of disused mines on the defendant’s lands which were
connected with vertical shafts which communicated with the above land.
These shafts were filled with mud and earth and so were not apparent. When
the reservoir was constructed and filled with water, the water broke through
the shafts, ran along passages and flooded the plaintiff’s mines. The
defendants were held liable, though there was no negligence on their part.

The absolute or strict liability evolved in Rylands v. Fletcher’ case dispenses

with the liability being incumbent on negligence. Negligence is wholly
irrelevant to the escape of things to which the rule of absolute or strict
liability would apply, and the rule applies to all those things which are either
inherently dangerous or which are likely to do mischief if they escape, the
negligence or the utmost care or precaution on part of the defendant being
both out of question or consideration.

In New India Assurance Co. Ltd. v. Takhuben Rajhabhai47case, it was

held by the High Court that rule propounded in Rylands v. Fletcher’s case
would apply where death or injury is caused to a pedestrian or bystander on
road and the claimant would not be required to lead evidence, but enquiry
would have to be made where accident has arisen by use of two or more
vehicles to find out which of the drivers, or both drivers were negligent.

45
Rylands v. Fletcher, (1868) LR 3 HL 330
46
Ibid.
47
New India Assurance Co. Ltd. v. Takhuben Rajhabhai, 2008 ACJ 989 (Guj.) DB
 175

The rule of strict liability admits of certain exceptions. In order to defend

himself against the rule of absolute liability, the defendant is entitled to show
that the escape of the dangerous thing was caused by the plaintiff’s own
default or by an Act of God or by the act of a stranger, or that the
accumulation was with the consent of the plaintiff or by a statutory authority,
or the act of an enemy alien.

Whether the motor vehicle is an inherently dangerous chattel has yet to be

examined, but the law evolved in India and abroad has never accepted the
defence of volenti non fit injuria in case of motor accidents, and the owner of
the vehicle cannot be allowed to argue that the passenger who rode his
vehicle, for fare or reward or even gratuitously, had done so with all
awareness of the dangers inherent in its driving or in the roads on which it is
driven, but to an extent the plying of the motor vehicle is hazardous to public
and passenger health, because, in the wake of the new ecological culture, the
motor vehicle is a contributing factor to ecological pollution both by its noise
and by the fumes it discharges by burning of the fuel.

In M.C. Mehta v. Union of India48the Supreme Court, felt justified in

alienating itself from the limitations of the rule of Rylands v. Fletcher, firstly,
because of the incapacity of the rule to cope with the liabilities of an
industrialized society and secondly, because of the need for a free and
indigenous thinking.

As to the first, the court said: “Law cannot afford to remain static. We have
to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialized economy”.

48
M.C. Mehta v. Union of India, AIR 1987 SC 1086
 176

As to the second, the court said: “We no longer need the crutches of a foreign
legal order. We are certainly prepared to receive light from whatever source
it comes but we have to build upon own jurisprudence and we cannot
countenance an argument that merely because the new law does not
recognize the rule of strict and absolute liability in cases of hazardous or
dangerous liability or the rule as laid down in Rylands v. Fletcher as it is or it
developed in England recognizes certain limitations and responsibilities. We
in India cannot hold our hands back and venture to evolve a new principle of
liability which English courts have not done.

With this inspiration, the traditional idea of the activities or chattel inherently
dangerous would have to be impenetrated afresh. In a conspectus of foreign
decisions, the motor vehicle has not been held to be an inherently dangerous
chattel. In case a motor vehicle as such be held to be not an inherently
dangerous chattel, the principle of absolute liability may not apply to the
keeping or plying of a motor vehicle.

In New Asiatic Insurance Co. v. Pessumal Dhanamal Aswami49wherein

the owner of an insured car, had permitted one person who was not the
regular driver, to drive the car along with two other persons therein. In an
accident of that car, one of the two inmates died and the other sustained
injuries. In two separate claims for compensation, one by the legal heirs of
the deceased and the other by the injured, both against the driver of the car,
insurer contented that driver was not a person insured under the policy in
question and hence, the insurer cannot be held liable. Negativing the
contention of the insurer, the Supreme Court held that the liability of the
insurer for indemnity towards any driver who drives the car with the consent
or order of the insured and that in the present case, the driver was driving the
car with the permission of thee owner who had effected the policy with the
49
New Asiatic Insurance Co. v. Pessumal Dhanamal Aswami, (1964) 2 SCJ 428
 177

result that the insurer must be held to have undertaken indemnify the driver
in accordance with the terms of the policy.

In B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar50, it was

held that the motor vehicles are not such dangerous things. The following
observations therein are significant, "...there is ample authority for the view
that the lorry is not in itself a nuisance or a hazardous chattel so as to attract
the doctrine of absolute liability.... At page 665 the learned Law Lord in
Wing v. London General Omnibus Co51., has explained as to why the rule
in Rylands v. Fletcher52, would not apply to the ownership of a motor
vehicle."

In New India Assurance Co. Ltd. vs Meenal And Ors53 one Muthuraman
was driving the said car taking along with him in the said car his relatives and
was proceeding in a normal speed. A cyclist, coming in the opposite
direction, suddenly swerved to the right in front of the car. In order to avert
dashing against him and killing him, the said Muthuraman suddenly swerved
his vehicle to the left, thereby brought it down to the mud portion of the road
and as the road was slippery the vehicle skidded and went uncontrollable and
capsized. Due to this, the deceased sustained grievous in juries in the lower
part of the abdomen and after the villagers removed him and other occupants
from the car by bringing it to the normal position, he was admitted in
Ponnamaravathi Hospital to which he was carried in a town bus. Immediately
on admission he succumbed to the injuries. The accident is only due to the
slippery condition of the road and the deceased was not in any way
responsible for the same. The first respondent is the owner of the car, the

50
B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar,1966 ACJ 153 (Mad.)
51
Wing v. London General Omnibus Co. (1909) 2 KB 652
52
Rylands v. Fletcher (1868) LR 3 HL 330
53
New India Assurance Co. Ltd. v. Meenal And Ors, 2 (1993) ACC 443
 178

deceased was driver in the car as a third party, and the insurer as well as the
owner are liable to answer the claim.

The Tribunal has accepted the case of the claimants and has held that the said
Muthuraman did not drive the car negligently and that there is no contra-
evidence on the side of the Insurance Company which has simply taken the
question of maintainability of the petition. Then, on the question whether the
petitioners before it are entitled to the compensation, it has observed that the
petitioners before it have not claimed the compensation on the ground that
the said Muthuraman was a paid driver under the 5th respondent therein, that
the claim was not made by the third party against the owner of the vehicle
and the Insurance Company, that since the car was entrusted to the deceased
Muthuraman, he was in possession of the vehicle in the capacity of the owner
of the vehicle and that hence the Insurance Company is liable to pay the
compensation to the claimants.

There was no plea that there was any master-servant relationship between the
owner of the car and the said Muthuraman. In such a case, no vicarious
liability also will arise or can be foisted on the owner, the 5th respondent
herein. It is also well settled law that when the owner/insured is not liable,
the insurer cannot be held liable.

Then claimant raised the issue that this case is a case of strict or absolute
liability as was in the case of Rylands v. Fletcher. For this, they contended
that the motor vehicle itself was a dangerous chattel coming within the
principle of the said liability. He also cited in this connection Gujarat State
Road Transport Corporation v. Ramanbhai Prabhatbhai54. But there the
Supreme Court only observed that in view of the fast and constantly
increasing volume of traffic, the motor vehicles upon the roads may be

54
Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai , 1987 ACJ 561 (SC)
 179

regarded to some extent as coming within the principle of liability defined in

Rylands v. Fletcher.

But, from that it cannot be concluded that the motor vehicles are always
dangerous chattels coming within the principle of the above said liability.
Further, here also, there is neither plea nor proof that the above said car was
such a dangerous chattel which would give rise to the abovesaid strict
liability under Law of Torts. That apart, in B. Govindarajulu Chetty v.
M.L.A. Govindaraja Mudaliar55, it was held that the motor vehicles are not
such dangerous things. The following observations therein are significant”.

There is ample authority for the view that the lorry is not in itself a nuisance
or a hazardous chattel so as to attract the doctrine of absolute liability.... At
page 665 the learned Law Lord in Wing v. London General Omnibus Co.56,
has explained as to why the rule in Rylands v. Fletcher, would not apply to
the ownership of a motor vehicle."

Further in Bishan Devi v. Sirbaksh Singh57, the Supreme Court has held
that a liability can be cast on another only if he is in any way responsible for
the accident which occasioned the injury. In other words, there is no scope
for any absolute liability on the owner of the vehicle to compensate the
injured. The provisions of the Motor Vehicles Act do not contain any
statutory provision to that effect. The Act does not provide a new right or a
new remedy to a person who is injured by an accident. The provisions of the
Act do not in any way interfere with the substantive common law on the
subject.

55
B. Govindarajulu Chetty v. M.L.A. Govindaraja Mudaliar, 1966 ACJ 153 (Madras)
56
Wing v. London General Omnibus Co. (1909) 2 KB 652
57
Bishan Devi v. Sirbaksh Singh, 1979 ACJ 496 (SC)
 180

This principle is also followed by Kerala High Court in New India

Assurance Co. Ltd. v Raju Markose58. There also it was held that proof of
negligence is necessary before owner or the insurer can be held liable for
payment of compensation in a motor accident claim's case. There, the
accident occurred before Section 92-A of the Act which provided for no fault
liability came into force. It is also explained there that Section 92-A
dispenses with proof of negligence in the matter of award of compensation to
the extent indicated therein, that the said section indicates that the substantive
law is changed only to the extent indicated and that, but for the said
modification, the substantive law continues to be in force and no claim for
compensation is sustainable without proof of negligence except to the extent
such proof is dispensed with by Section 92-A. It is also so observed in the
Supreme Court decision reported in Gujarat State Road Transport
Corporation v. Ramanbhai Prabhatbhai59, while dealing with Section 92-
A of the Act in the newly introduced Chapter VII-A of he said Act providing
for 'no fault liability'. The Supreme Court in the said decision observed that
part of the Act is clearly a departure from the usual common law principle
that a claimant should establish negligence on the part of the owner or driver
of the motor vehicle before claiming any compensation for the death or
permanent disablement caused on account of a motor vehicle accident. To
that extent the substantive law of the country stands modified.

This passage of the Supreme Court is also referred to in one judgment in K.

Nandakumar v. Managing Director, Thanthai Periyar Transport
Corporation Ltd60. and it was held that it must be noted here that only to the
above extent, the substantive law has been modified in this regard, and not to
the extent that even where the deceased or the injured, as the case may be, is
58
New India Assurance Co. Ltd. v Raju Markose, 1989 ACJ 643 (Kerala)
59
Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, 1987 ACJ 561 (SC)
60
K. Nandakumar v. Managing Director, Thanthai Periyar Transport Corporation Ltd , AIR 1996
SC 1217
 181

negligent and not the other party, the former can claim compensation. Where
the former is negligent, there is no scope at all for himself claiming any
compensation from any other party for his own fault that is the substantive
law. That part of the substantive law has not at all been modified by Section
92-A of the Act.

In United India Insurance Co. Ltd. v. Kantabai61 , it was held that even on
general principles it was difficult to entertain the contention that the liability
in respect of the tortfeasors himself would be covered by the Insurance
Company.

In Mallika v. S.V. Alagarsami62, also it has been held that the question of
vicarious liability will not arise when the claim is made by the tortfeasors
himself or any person claiming under the tortfeasors. There, the deceased, his
wife and children accompanied the son of the owner in the car. Due to long
driving, the driver of the car felt tired and the deceased relieved him and
drove the car. The car dashed against the tree and the deceased sustained fatal
injuries. The Court observed that Section 95(1), Motor Vehicles Act, in so far
as it uses the expression 'in respect of the death of or bodily injury to any
person or damage to any property of a third parry' should be taken to cover
any liability which may be incurred by the owner of the vehicle in respect of
death of or bodily injury to any person or damage to any property of a third
party. The presence of two expressions 'any person' and 'third party' in the
same provision would indicate that the expression 'any person' has been used
in a wide sense and not only in the sense of a 'third party'. Even if Section
95(1) can be construed as including the liability of the owner of the car for
the death of or bodily injury to any person, this provision cannot be invoked
by the claimants in this case, unless the claimants are able to establish that

61
United India Insurance Co. Ltd. v. Kantabai , 1991 ACJ 22 (BOM.) DB
62
Mallika v. S.V. Alagarsami, 1982 ACJ 272 (Madras)
 182

the owner has incurred a liability in respect of the death of or bodily injury to
the deceased, which liability has to be insured as per the provisions of
Section 95(1). It cannot be said that the mere ownership of the car creates
liability on the part of the owner of the vehicle to pay compensation for the
death of or injury to any person. The liability can arise only when the owner
of the vehicle was in any way responsible for causing the accident which has
resulted in that liability. In this case, the accident was caused by the rashness
and negligence of the deceased and in such cases there is no legal liability
arising either under the Law of Torts or any other basis under the common
law. Only when there is a legal liability, that liability has to be insured under
Section 95(1). In this view of the matter, we are unable to agree with the
learned Counsel for the appellant that an absolute liability has been cast on
the owner of the vehicle to pay compensation under Section 95(1) and that
absolute liability does not depend on the fact as to who caused the accident
and whether the owner of the vehicle is negligent or not.

In Minu B. Mehta v. Balkrishna Ramchandra Nayan63, the Supreme

Court also held that the concept of vicarious liability without any negligence
was opposed to the basic principles of law.

III. Absolute Liability and State

State cannot claim sovereign immunity in Motor Accident cases. The already
devastated legal heirs of deceased victim of the vehicle accident involving
government vehicle now, no longer have to run from pillar to post to get
compensation which is denied to them on the ground of government vehicle
engaged in so called sovereign duty and thus claim sovereign immunity which is
an archaic concept. No civilized country in this world which claims itself to be
founded on the notions of the welfare state, shun its liability towards accident

63
Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 ACJ 118 (SC)
 183

victims and their legal heirs involving its own vehicle on the ground they were
doing a government duty, thus, entitled to act in any manner as it is sovereign.
No legal system today can place the State above law as it is unjust and unfair for
a citizen to be deprived of his life or property illegally by negligent act of
employees or officers of the State without any remedy. The Government and its
functionary have trend to deny their liability towards the poor victim or the legal
heir victim of state negligent act by raising the plea of the sovereign immunity,
showing their apathy towards the victims which reflects the medieval mindset
borrowed from the British Raj64.

The Motor Accident Claims Tribunal awarded the compensation to the poor
widowed lady whose husband died in an accident cause by the Air Force
Vehicle. The Air force filed an appeal in the High Court that it is not liable to
pay compensation as its vehicle was exercising a sovereign function, an oft
repeated plea taken by various departments of governments to shun their liability
towards the accident victim. Advocate Neeraj Arora took the noble cause to fight
for justice for the poor lady pro bono and represented the poor lady in the Delhi
High Court against the irresponsible behavior of the Air Force. Advocate Neeraj
Arora argued at length the dichotomy between sovereign and non-sovereign
functions citing leading judgments of Apex Court and various High Courts
which shows that the doctrine of sovereign immunity has no application so far as
claims for compensation under the Motor Vehicles Act is concerned65.

The Hon’ble Mr. Justice J.R. Middha, taking the note of the important
constitutional issue that whether the “Doctrine of Sovereign Immunity” is
available to defeat the claim for compensation under the Motor Vehicles Act,
1988 appointed Amicus Curie and also requested the Additional Solicitor
General to assist the case. The legal luminaries submitted that the Motor Vehicle
64
Neeraj Arora, “State cannot Claim Sovereign Immunity in Motor Accident Cases” Accessed on
www.wordpress.com\theme.htm on 29.06.2010 at 9.32p.m.
65
Ibid.
 184

Act, 1988 was a special law and no exception had been carved out in the statute
in respect of use of government vehicle for defense purposes. It was also
submitted that the doctrine of sovereign immunity had no place in Indian
Jurisprudence citing the judgment of the Hon’ble Apex Court in State of
Rajasthan v. Vidyawati66,. The said principle has been reiterated by the
Supreme Court in a large number of decisions and in one of the decisions; the
concept was described as ‘Old and Archaic”. In addition to the judgments of the
Supreme Court, there are a substantial number of judgments of various High
Courts which have rejected the plea of sovereign immunity. The doctrine of
sovereign immunity is based on the supremacy of the monarchy of the England.
In India, which is a parliamentary democracy governed by the Constitution, there
is no equivalent to monarch67.

The Hon’ble Mr. Justice J.R. Middha took note of the contentions raised against
the illogical principles of sovereign immunity reflecting the apathy of the state
towards the poor victims of the accident involving government vehicles and
rightly observed that it did not behoove the State to take cover under the
principle of sovereign immunity only to shun liability for the consequences of
the negligence of its servants. However, before passing any final verdict on the
issue, the Hon’ble Mr. Justice J.R. Middha considering the adverse implications
of the government raising the plea of sovereign immunity in claims under the
Motor Vehicles Act, 1988 despite clear and well settled law by the Hon’ble
Supreme Court issued the direction to the Ld. Attorney General seeking its
opinion as to in how many cases, the state has taken or raised the plea of
“sovereign immunity” in pending motor accident claim cases in various courts
and tribunals and also directed the Attorney General to consider the possibility

66
State of Rajasthan v. Vidyawati, AIR 1962 SC 933
67
Supra n.64
 185

of issuance of a circular/Government of India directive in respect of all pending

motor accident claim cases as well as cases that may arise in future68.

The aforesaid directions of the Hon’ble Mr. Justice J.R. Middha are judicious,
well thought-out, highly commendable as it seeks out to curb the government
apathy and irresponsible behavior in motor accident cases once and for all not
only in present pending cases but also the similar cases which may arise in future
through the country69.

The Ld. Solicitor General Mr. Gopal Subramaniam in his communiqué dated
19th May, 2010 addressed to the Hon’ble High Court of Delhi opined that taking
into account correct legal position as enumerated above, a clear office
memorandum should be issued to the effect that the defence of sovereign
immunity not be pleaded by Department of Government in cases involving
compensation arising out of motor vehicle accidents involving the use of
Government vehicles on Government duty and advised the Ministry of Law &
Justice to issue the said memorandum70.

Thus, the aforesaid direction of the Hon’ble Justice Mr. J.R. Middha has paved a
new foundation for justice and corrected a grave constitutional error in form of
doctrine of sovereign immunity which can now no more be pressed as defence
by the government departments to shun their liability towards its poor subjects71.

68
Ibid.
69
Ibid.
70
Ibid.
71
Ibid.
 186

E. Negligence, Contributory Negligence and Application of Res

Ipsa Loquitur

Black’s Law Dictionary72 defines the term Negligence as “omission to do

something which a reasonable man, guided by those ordinary considerations
which ordinarily regulate human affairs, would do or the doing of something
which a reasonable and prudent man would not do”.

In Managing Director, Tamil Nadu State Transport Corporation v.

Ayyammal73 it was observed that negligence is not only commission of an act
but is also an omission to do something which a reasonable man would do or is
obliged to do.

Negligence does not always mean absolute carelessness, but want of such a
degree of care as is required in particular circumstances. Negligence is failure to
observe for the protection of the interests of another person, the degree of care,
precaution and vigilance, which the circumstances justly demand, whereby such
other person suffers injury. The idea of negligence and duty are correlative.
Negligence means either subjectively a careless state of mind or objectively
careless conduct. Negligence is not an absolute term, but is a relative one, it
rather a comparative term.

What constitutes negligence varies under different conditions and in determining

whether negligence exist in a particular case, or whether a mere act or course of
conduct amounts to negligence, all the attending and surrounding facts and
circumstances have to be taken into account. To determine whether an act would
be or would not be negligent, it is relevant to determine, if any reasonable man
would foresee that the act would cause damage or not.

72
Black’s Law Dictionary, 6th Edition
73
Managing Director, Tamil Nadu State Transport Corporation v. Ayyammal, 2007 ACJ 66 (Mad.)
DB
 187

In Municipal Corporation of Greater Bombay v. Laxman Iyer74The omission

what the law obligates or even the failure to do anything in a manner, mode or
method envisaged by law would equally and per se constitute negligence on the
part of such person. If the answer is in the affirmative, it is negligent act.

In Poonam Verma v. Ashwini Patel & others75it was held by the Supreme
Court that negligence as a tort is the breach of a duty caused by omission to do
something which a reasonable man would do or doing something which a
prudent and reasonable man would not do. The breach of duty may occur either
by not doing something which a reasonable man, under a given set of
circumstances, would do, or by doing some act which a reasonable prudent man
would not do.

In motor accident cases negligence is understood as failure in duty to take care

which implies the degree of care that ought to be taken by a reasonable man in a
given set of circumstances.

In M S Grewal v. Deep Chand Sood76it was held that negligence is breach of

duty or lack of proper care in doing something. It is want of attention and doing
something which a prudent and reasonable man would not do.

In Gujarat State Road Transport Corporation v. Kamla Ben Valjibhai

Vora77it was held that negligence is careless conduct. An act is negligent when
done either from error of judgement or on account of mistake or wrong
judgement without involving intention of the doer.

74
Municipal Corporation of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182
75
Poonam Verma v. Ashwini Patel & others, AIR 1996 SC 2111
76
M S Grewal v. Deep Chand Sood , 2001 ACJ 1719
77
Gujarat State Road Transport Corporation v. Kamla Ben Valjibhai Vora, 2002 ACJ 780
 188

In Sheela Kumari Singh v. G.S.Atwal & Co. (Engg) Pvt. Ltd78it was held by
the High Court that negligence on the part of both the drivers of vehicles cannot
be ruled out when accident has been taken place in the middle of road.

I. Contributory Negligence and Composite Negligence

The expressions contributory negligence and composite negligence are

having different meanings.

Contributory negligence has been defined as “a plaintiff’s own negligence

that played a part in causing the plaintiff’s injury and that is significant
enough to bar the plaintiff from recovering damages79”.

Contributory negligence is defence whereas composite negligence is a fact

situation involving joint or combined negligence.

Composite negligence is defined as “where a person is injured without any

negligence on his part but as a combined effect of the negligence of two other
persons”.

If due to negligence of A and B, Z has been injured. Z can sue both A and B
for the whole damage. There is clear distinction between the contributory
negligence and composite negligence. The term contributory negligence
applies solely to the conduct of a plaintiff.

In Sombathina Ramu v. T. Shrinivasulu80It was held that contributory

negligence means that there has been an act of omission on the part of
plaintiff, which has materially contributed to the damage.

78
Sheela Kumari Singh v. G.S.Atwal & Co. (Engg) Pvt. Ltd, 2006 ACJ 980 (Jhar.) DB
79
Black’s Law Dictionary, edition 7
80
Sombathina Ramu v. T. Shrinivasulu, 2009 ACJ 187 (AP)
 189

It was further held that where a person is injured without any negligence on
his part but as result of the combined effect of the negligence of two other
persons, it is not a case of contributory negligence in that sense. It is a case of
what has been styled by Polock as injury by composite negligence81.

Composite negligence is not a term defined or explained. It should ordinarily

mean that both acts of negligence operate at the same time so as to form one
transaction, which gets so mixed up that it is not possible to separate the
same in order to find out the whole fault in question. Principle of composite
negligence are when more than one person is responsible in the commission
of the wrong, the person wronged has a choice of proceeding against all or
any one or more than one of the wrongdoers. Every wrongdoer is liable for
the whole damage if it is otherwise made out82.

II. Rule of Last Opportunity

Doctrine of last opportunity is explained in simplest way in the matter of

Municipal Corporation of Greater Bombay v. Laxman Iyer83 Where an
accident is due to negligence of both parties, substantially, there would be
contributory negligence yet even in such a case, whichever party could have
avoided the consequence of other’s negligence would be liable for the
accident.

The decision in the matter of Davies v. Mann84 is said to be the originator of

the rule of last opportunity, though the word as such do not appear in the
judgement. In that case, the plaintiff had left his donkey in the lane with its
forefeet fettered. The donkey was run over by a wagon going a little too fast.
The plaintiff succeeded since the defendant could have avoided the accident

81
Ibid.
82
Ibid.
83
Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53
84
Davies v. Mann, (1842) 10 M & W 546
 190

though the plaintiff was also at fault in turning the donkey in to the lane with
its forefeet fettered.

Doctrine of last opportunity cannot be applied in case of children who are

seldom held guilty of contributory negligence.

III. Contributory Negligence and Children

In Taj Hussain v. Misru Khan85 where offending truck was being parked at
the place of accident where children were playing and while the truck was
being taken on reverse hitting a boy of 12 years causing 100% permanent
disability. Apportionment of liability by the tribunal on the basis of
contributory negligence was held unsustainable. Claimant being 12 years of
age cannot be said to be of such an age as reasonably to be expected to take
precautions for his own safety and he had no road sense or experience of his
elders. Therefore, he is not to be found guilty of contributory negligence.
Truck driver should have taken extra precaution to save the pedestrians.

In Malikdhinar English Medium School v. A.Babudeen86where a girl of

3½ years alighted from the school bus and the driver started the bus suddenly
without caring for the safety of the child and in that process the vehicle ran
over the child resulting in her death on the spot, it was held that since a child
age 3 ½ years can hardly be blamed for negligence, the driver of the bus was
guilty since it was duty of the driver to take care of the child.

In Sudhir Kumar Rana v. Surinder Singh87where a minor scooterist who

had no driving licence, collided with mini truck and sustained injuries, it was
held that the scooterist could not be held guilty of contributory negligence
merely because he had no licence.

85
Taj Hussain v. Misru Khan, 2006 (1) ACC 30 (Raj.)
86
Malikdhinar English Medium School v. A.Babudeen, 2006 ACJ 1711 (Mad.) DB
87
Sudhir Kumar Rana v. Surinder Singh, 2008 ACJ 393 (MP) FB
 191

IV. Application of Doctrine of Res Ipsa Loquitur in Collision Cases

Res Ispa Loquitur is a rule of evidence coming in to play when circumstances

suggest negligence of driver of the vehicle88, but in some cases considerable
hardship is caused to the plaintiff as the true cause of the accident is not
known to him, but is solely within the knowledge of the defendant who
caused it. The plaintiff can prove the accident but cannot prove how it
happened to establish negligence. This hardship is to be avoided by applying
the principle of res ispa loquitur.

The general import of the words res ispa loquitur is that the accident speaks
for itself. There are cases in which the accident speaks for itself so that it is
sufficient for the plaintiff to prove the accident and nothing more89.

In Dhanwanti v. Kulwant Singh90, where it was held by the High Court that
on the application of this principle, the burden shifts upon the respondent/
defendents to explain the accident.

The maxim applies whenever it is so improbable that such an accident would

have happened without the negligence of the defendant that a reasonable jury
could find without further evidence that it was so caused91.

The doctrine can extend to the cases of breach of duty, general or statutory,
on part of driver. A driver is duty bound to give signal before taking a turn on
National Highway. Where the driver, instead of explaining his omission, had
runaway from the spot he was held guilty of negligence by applying the
principle of res ispa loquitur92. The doctrine applies when accident is

88
Shaju v. Babu, 2008 ACJ 1228 (Ker.) DB.
89
State of Madhya Pradesh v. Asha Devi, 1988 ACJ 846 (MP)
90
Dhanwanti v. Kulwant Singh, 1994 ACJ 708 (MP) DB
91
Salmond, “Law of Torts” 15th edition, p.306
92
Oriental Insurance Co. Ltd. v. Nanak Chand, 2009 ACJ 2240(HP)
 192

admitted but its cause is doubtful. When there is direct evidence of

negligence, there can be no question of applying the doctrine93.

The term “collision” used in title has been used here relating to cases where
there is collision between two or more motor vehicles, like collision between
car and bus etc.

In collision cases where two or more motor vehicles collided together,

question arises is what the position of third party who suffers due to the
negligence of two or more independent persons damage is caused to a third,
individual (person), where the sufferer is not driven to apply any such
analysis to find out whom he can sue. Answer is he will be entitled to bring
action for damages within the limits set out by the general rules as to
remoteness of damage to sue all or any one of the negligent persons. It is no
concern of his whether there is any duty of contribution or indemnity as
between these persons through in any case he cannot recover more than what
he is legally entitled.

The study of case laws relating to collision of Motor Vehicle Accident has
been classified in to four categories viz.

(a) Light motor vehicles colliding with light motor vehicles

(b) Heavy motor vehicles colliding with light motor vehicles

(c) Heavy/light motor vehicles colliding with scooters/motor cycles and

(d) Heavy motor vehicles colliding with heavy motor vehicles

93
Parvati Bai v. Bhagwat Rambhau Shelke, 2004 AACJ 1647 (Bom.)
 193

(a) Light Motor Vehicles Colliding With Light Motor Vehicles

In New India Assurance Co. Ltd. v. Shymo Chauhan94 it was held by the
Punjab and Haryana High Court that where claim application is filed under
section 163A, the owner and insurer are liable to pay to the legal heirs of
the deceased in case of death provided the accident has taken place or has
arisen out of use of motor vehicle and the liability extends even to cases
where the deceased was driver.

In Oriental Insurance Co. Ltd. v. Meena Variyal95it was held by the

Supreme Court of India that the legislature while enacting the Act of 1988
introducing section 163A, giving the victim an option either to proceed
under section 166 or section 163A of the Act. Once they approach the
tribunal under section 166, they have to take upon themselves the burden of
establishing negligence of the driver or owner of the vechile whereas if they
approach under section 163A, compensation has to be awarded accordingly
to Second Schedule without establishing fault or negligence.

In Sohan Singh v. National Insurance Co. Ltd.96 In a claim application

filed by parents for death of their son driving jeep belonging to his mother
and met with accident due to his own negligence, it was held that the claim
application was not maintainable even under Section 163 for the reason that
the liability falls on the owner and a person cannot be both claimant and
respondent.

In N. Ramachandran v. Meera97 where the deceased was driving on

wrong side in an inebriated condition, as proved by toxicological report, it
was held by Madras High Court that no compensation was payable.

94
New India Assurance Co. Ltd. v. Shymo Chauhan, 2006 ACJ 923
95
Oriental Insurance Co. Ltd. v. Meena Variyal, AIR 2007 SC 1609
96
Sohan Singh v. National Insurance Co. Ltd., 2009 ACJ 2869
97
N. Ramachandran v. Meera, AIR 2010 (NOC) 12
 194

In Vikram Singh v. Manvendra Singh98 where the accident was caused

because a car had suddenly come in front of speeding jeep, statement of the
jeep driver that he was slowly driving was not acceptable since had he been
slow, he could have stopped the vehicle at once. The driver was held rash
and negligent.

In Zoological Park v. S. Kaynana Raman99 it was held by Madars High

Court that a driver cannot be exonerated from his negligence merely
because criminal proceedings were decided in his favour.

In Sindhu v. Sekar100 where the accident has occurred in broad day light
on highway good enough for two vehicles to pass, yet the accident was
caused on the middle of road, both the drivers of cars A & B were held
negligent, with 70 % of car B which attempted to overtake a bus and had
the last opportunity to avoid the accident.

In Rohtan Singh v. Chander Kala101 it was held by the High Court of

Punjab and Haryana that the registered owner of the offending vehicle is
vicariously liable for the damage caused by the driver in an accident.

In Laxmiben Pravinchandra Barot v. Thakore Prabatji Babuji102 where

a person having consumed poison was being taken to hospital in a matador
which met with an accident causing death of that person, and it was proved
that poison had not spread to entire body but dash of Matador was very
heavy, death was held attributable to negligence of driver of Matador.

98
Vikram Singh v. Manvendra Singh, 2007 ACJ 950
99
Zoological Park v. S. Kaynana Raman, 2008 ACJ 133
100
Sindhu v. Sekar, 2009 (1) ACC 828 (Mad.) DB
101
Rohtan Singh v. Chander Kala, 2010 (1) TAC 140 (P&H)
102
Laxmiben Pravinchandra Barot v. Thakore Prabatji Babuji, AIR 2010 (NOC) 5 Guj.
 195

In N.R. Patel & Co. v. T. Aparna103 where a car at high speed while
overtaking a lorry came to wrong side and dashed against a jeep which
went off the road and turned turtle, finding that car driver was negligent and
solely responsible, which was upheld by the Double Bench of Andhra
Pradesh High Court.

(b) Heavy Motor Vehicles Colliding With Light Motor Vehicles

In Gajanad v. Virendra Singh104 in an accident between a Matador and a

truck resulting in death of driver and inmates of matador, the tribunal
dismissed the claim application on the ground that claimants did not implead
the owner and the insurer of matador. It was held by the Madhya Pradesh
High Court that Tribunal has erred in dismissing the claim application on
account of non-impleadment of owner and insurer of matador since there was
no necessity to apportion inter se liability of joint tortfeasors.

In Oriental Insurance Co. Ltd v. Parveen Juneja105 where in a collision

between a car and a stationary tractor trolley, the victims were passengers in
the car, it was held by the Punjab and Haryana High Court that no question of
contributory negligence of drivers of both vehicles can arise and the
claimants in such case of composite negligence can sue any of tortfeasors.

In Indari Lal v. Vijay Kumar106 where a matador had come from behind
and had dashed against a truck going ahead, resulting in death of passenger in
the matador, it was held by the double bench of Madhya Pradesh High court
that driver of matador was rightly held negligent in causing the accident.

103
N.R. Patel & Co. v. T. Aparna, 2006 ACJ 2719
104
Gajanad v. Virendra Singh, 2010 ACJ 145
105
Oriental Insurance Co. Ltd v. Parveen Juneja, 2003 ACJ 378
106
Indari Lal v. Vijay Kumar , 2009 ACJ (MP) (DB)
 196

In Rachna v. Himachal Road Transport Corporation through its

General Manager, Shimla and others107 the driver of the corporation bus
was said to have suffered a fit of epilepsy and the bus hit a stationary jeep
and then rolled down the road killing and injuring several passengers, the
driver contended that the accident was due to the defective condition of the
bus and denied that he was suffering from fits of epilepsy. The Corporation
contended that the driver was recently employed and he had produced
certificate from Chief Medical Officer and that the accident was inevitable.
The Corporation failed to discharge the onus to prove that it had taken all
dues care to ensure that it was entrusting the bus to be driven by a person
who was capable in all respects to do so. The accident was not inevitable.
The doctrine of res ipsa loquitur is applicable irrespective of the fact that the
claimants were able to present partial account how the accident happened. In
this case, it is stated that

“a defendant cannot plead that the plaintiff is not entitled to rely upon the
doctrine of res ipsa loquitur merely because the plaintiff is able to present
partial account of how an accident happened. The plaintiff can rely upon it
for further inferences essential to the winning of his case; the partial
explanation may make it more obvious that an inference of negligence on the
part of the defendant can be drawn.”108

In New India Assurance Co. Ltd. v. Saroj Tripathi109 in a case of collision

of jeep with a truck, the evidence was that both vehicles had come together
on the culvert and the jeep fell down after breaking the ralling, both drivers
were held equally negligent.

107
Rachna v. Himachal Road Transport Corporation through its General Manager, Shimla and
others,1990 A.C.J. 840 H.P.
108
Ibid. at 845
109
New India Assurance Co. Ltd. v. Saroj Tripathi, 2008 ACJ 1274
 197

In Angoori Devi v. Megh Raj110 in case of collision between a car and

stationary tractor trolly the victims in the accident were passengers in the car.
It was held that there was no question of contributory negligence and the
claimants in a case of composite negligence of drivers of two vehicles can
sue any of tortfeasors. Since composite negligence is a situation where loss or
damage is no negligence on his own part.

In Sakharibal Hasanali Makarsi and others v. Girish Kumar Rupchand

Gadia and others111 a truck driven at fast speed dashed against a taxi
coming from the opposite direction resulting in the death of the taxi driver
and a passenger in the taxi, and another passenger sustained injuries. The taxi
turtle and all the four doors came out, the roof was blown away and the taxi
was smashed. The truck went ahead 250 feet into the adjoining field. A
passenger in the taxi deposed that the truck came from the opposite direction
at a fast speed, hit the taxi which was being driven on its left side of the road.
The passenger denied the suggestion that the front tyre of taxi burst, which
resulted in the collision. The driver of the truck did not enter the witness box.

The Tribunal held that the accident was an act of God as it was caused by
bursting of tyre of the taxi. Rejecting the contention of the Tribunal the
Allahabad High Court held that the principle of res ipsa loquitur is applicable
and it is established that truck was driven rashly and negligently and the
defendant were held liable.

In National Insurance Co. Ltd. v. Sahiba Khatun and others112 a dumper

dashed against a stationary jeep on the wrong side of the road in open mine
area resulting in death of an occupant and the driver of the jeep. The Tribunal

110
Angoori Devi v. Megh Raj, 2003 ACJ 293 (Del)
111
Sakharibal Hasanali Makarsi and others v. Girish Kumar Rupchand Gadia and others, 1997
A.C.J. 95 Bom.
112
National Insurance Co. Ltd. v. Sahiba Khatun and others, 2000 A.C.J. 168 M.P.
 198

raised adverse inference for non-examination of dumper driver and on the

basis of F.I.R. Charge-sheet spot map, post-mortem report and applying
principle of res ipsa loquitur held that the accident occurred due to rash
negligent act of the dumper driver.

The Appellate Court observed that through the jeep was wrongly parked, it
was staionary in the open area, easily visible, the driver of the dumper had
the last opportunity to avoid the accident and upheld the findings of the
Tribunal. The court said :

“In the circumstances, the contention that the jeep driver also contributed to
the accident as it was parked on the wrong side of the road cannot be
accepted. It may be that the driver of the jeep violated the traffic regulations,
for that he would have been prosecuted. But the jeep was stationary parked in
the open area of the mines, easily visible. Therefore, even if the jeep was
wrongly parked, the driver of the dumper had the last opportunity to avoid
the accident, hence, the Tribunal rightly applied the principle of res ipsa
loquitur.”113

In Inderjit Kaur v. Somnath114 where a matador tried to overtake a jeep

from wrong side of jeep, it was held that there was no contributory
negligence on the part of driver of jeep and driver of matador alone was held
negligent.

In Kamla Verma v. Rajesh Kumar Singh115 in a collision between a car

and a truck, the evidence of the person on back seat of car was that the
accident had taken place because of rash and negligent driving on the part of

113
Ibid. at 170.
114
Inderjit Kaur v. Somnath, 2007 ACJ 2865 (P&H)
115
Kamla Verma v. Rajesh Kumar Singh, 2002 (2) ACC 279 (Jhar) DB
 199

driver of truck. The finding of contributory negligence on the part of driver

of car was set aside and driver of truck alone was held negligent.

In Prakash Vati and others v. Sulakhan Singh alias Lakhs and others116
case, an accident took place between a truck and a jeep resulting in the death
of the driver and two passengers in the jeep. The claimants filed claim
applications against the driver and the owner of the truck. The Tribunal and
the single Judge in appeal disbelieved the testimony of the eye witnesses and
doubted their presence at the time of the accident. The claimants produced
evidence to establish the negligence of the truck driver. In L.P.A. the
statement of these two eye witnesses have been perused and not found
creditworthy. The principle of res ipsa loquitur could not be applied on the
basis of photos of the scene of occurrence to establish negligence on the part
of the truck driver in the absence of any other reliable evidence. K.K.
Srivastava, J. observed:

“In the instant case the principle of res ipsa loquitur is sought to be applied
on the basis of the photographs of the scene of occurrence. No doubt the
accident resulted due to negligence. The accident caused due to the collision
of the two vehicles is Jonga Jeep and the truck which is alleged to be
involved in this occurrence. It cannot be said that on the application of the
said principle the liability would necessarily be fastened on the driver of that
truck and the finding could be arrived at, in the absence of any other reliable
evidence, that the driver of the offending vehicle was the culprit and
responsible for causing the accident due to his rash, negligent and careless
driving. In the facts and the circumstances of the case, the claimants were
required in law to prove as a fact that the accident was caused due to rash and
negligent driving of the respondent driver. After carefully perusing the entire
evidence on record, we are considered view that the learned single Judge has
116
Prakash Vati and others v. Sulakhan Singh alias Lakhs and others, 1999 A.C.J. 521, P & H.
 200

rightly held that the claimants have failed to establish that the accident
resulted due to rash and negligent driving on the part of the respondent
driver. Resultantly, these appeals are devoid of any substance and merit and
are dismissed.”117

Mangal and others v. Subhadrabai and another118, is an appeal against

dismissal of the claim for compensation filed before the Motor Accident
Claims Tribunal. Here the accident took place on the off side of the road
from the direction in which the truck was proceeding. The car being on its
correct side, the truck hit the off side of the front door of the car and caused
the death of the driver of the car. Thereafter, the truck proceeded to distance
of 15 to 30 feet, hit a tamarind tree and stopped, which itself attracted the
maxim res ipsa loquitur, as contended by counsel for the plaintiff. But the
evidence is that all the tyre of the truck including the tyre which burst was
brand new without any defect either patent or latent. Thus it is true that
evidence on record was that the first respondent and her driver used all
reasonable care in and around the management of tyre.

Thus it was held, affirming the judgement of the tribunal that the accident in
question was inevitable and the maxim is not applicable in the sense that the
accident was not due to rash or negligent driving of the defendant truck
driver. Thus the appeal failed in this case, the court referred to cases such as
Barkway’s case119 and Laurie’s case120, in giving its judgement. The court
also referred to the principle underlying the maxim ‘res ipsa loquitur’ as
stated in Halsbury’s Laws of England121, that wherever the facts already
established are such that the proper and natural inference arising from them

117
Ibid. at 528
118
Mangal and others v. Subhadrabai and another, 1981 A.C.J. 156 Kar.
119
Barkway v. South Wales Transport Co. Ltd. (1948)2 All E.R. 460.
120
Laurie v. Regian Building Co., Ltd. (1942) 1 K.B. 152.
121
Halsbury “Laws of England” 2nd, ed. Vol. 23, 671
 201

proves that the injury complained of was caused by the defendant’s

negligence or where the event charged as negligence “tells its own story” on
the part of the defendant, being clear and unambiguous then, the maxim res
ipsa loquitur applies. Thus the burden is on the defendant to disprove his
liability stating that he had taken all reasonable care, failing which he would
be held liable in negligence.

In the case of United India Fire and General Insurance Co. Ltd. v. Maddi
Suseela and others122, a lorry crashed into an Ambassador car as a result of
which all the inmates of the car died on the spot. The lorry owner (1st
defendant) filed a counter stating innocence on the part of the driver in the
sense that there was total absence of rash and negligent driving on the part of
his driver. The insurance company (2nd defendant) filed the counter stating
that the accident was due to the negligent driving of the car driver and thus
the car driver contributed to the accident to a greater extent. The lorry was
coming at a high speed with passengers, it failed to turn to the left side of the
road because of curves. As a result it went to the wrong side and hit the car.
The learned counsel for the plaintiffs pleaded that the above maxim res ipsa
loquitur has to be applied in this case, where as the counsel for the lorry
owner alleged that the accident was nothing but the result of the rash and
negligent driving of the car driver.

The serious nature of the accident is apparent from the fact that the accident
which took place in board day light caused the death of all the persons sitting
in the car except plaintiff who became unconscious. In the absence of any eye
witness before the court to speak to the factum of the occurrence of the
accident and having regard to the fact that the lorry driver also who could
have been available for being examined to speak of the concurrence of the

122
United India Fire and General Insurance Co. Ltd. v. Maddi Suseela and others, 1979 A.C.J. 110
A.P.
 202

accident died, the court came to the conclusion that this is a case where the
drivers of both the vehicles must be presumed to be negligent. The court
referred to the following two cases in support of the judgement viz. (1) Koh
Hung Keng v. Low Pee L.T. Co.123 and (2) Puspa Bai v. Ranjit G.P.124 and
also referred the learned views of Salmond125 in support of their findings.

Thus in the present case, the plaintiff’s witness who could be said to have
witnessed the occurrence in the way that he fell unconscious when the
occurrence took place and having regard to the peculiar circumstances
standing upon the occurrence of this accident the doctrine of res ipsa loquitur
applies and the persons who are opposing the claim of the plaintiffs did not
discharge the onus cast on them on account of the applicability of the
doctrine. Thus the plaintiffs are entitled to the compensation they claimed.

(c) Heavy/Light Motor Vehicles Colliding With Scooters/Motor Cycles

In Anitha V Bangalore Water Supply and Sewerage Board126 where the

eye witnesses had neither stated that deceased drove the vehicle rashly or
negligently or at high speed nor that accident occurred due to negligence on
part of deceased, the finding of the Tribunal that deceased was responsible
for accident to the extent of 80% was reversed by the appellate court,
holding that the accident occurred due to negligence on the part of
Bangalore Mahanagara Palika whose driver drove the vehicle and hit the
deceased scooterist.

In National Insurance Co. Ltd. v. Akhilesh Dwivedi127 A truck while

overtaking a bus came to its wrong side and collided with a motorcycle.

123
Koh Hung Keng v. Low Pee L.T. Co., 1967 A.C.J. 303
124
Puspa Bai v. Ranjit G.P. 1971 A.C.J. 343 and 346.
125
Salmond “The Law of Tort”(1969) p. 306.
126
Anitha v. Bangalore Water Supply and Sewerage Board, 2010 ACJ 27 (Kar) DB
127
National Insurance Co. Ltd. v. Akhilesh Dwivedi, 2007 (4) ACC 312 (MP) DB
 203

Deceased Motorcyclist was driving on his correct side with moderate speed
and could not move to further left because of ditches and boulders. Truck
driver was alone held rash and negligent in driving.

In National Insurance Co. Ltd. v. Ramilaben Chinubhai Parmar128 a

tanker driver was driving at fast speed on wrong side and had hit to death a
motorcyclist and defence was that half portion of road was closed for repair
work and that deceased motorcyclist was overtaking another vehicle. No
evidence was led by defendant that road was closed for repair. Tanker
driver was not examined. Tanker driver alone was held negligent by
Gujarat High Court.

In Meena v. M.P. State Road Transport Corporation129 a bus at fast

speed dashed against a motorcycle killing all the three riders thereon. The
explanation of driver was not found satisfactory. Finding of rash and
negligent driving on part of driver of the bus was upheld by Double Bench
of M.P. High Court.

In New Indian Assurance Co. Ltd v. Rattan Devi130where a truck hit

motorcyclist and then a cyclist and finally a person causing three deaths, it
was held that negligence on the part of truck driver is obvious.

In Hemu Bai v. Satish131a maruti van came at fast speed and hit a cyclist
from behind resulting in his death. Driver of the van who was the best
witness to the manner of accident was not examined. Finding that driver
was rash and negligent was upheld by Double Bench of M.P. High Court.

128
National Insurance Co. Ltd. v. Ramilaben Chinubhai Parmar , 2007 ACJ 1565 (Guj) DB
129
Meena v. M.P. State Road Transport Corporation, 2006 ACJ 2383 (MP) DB
130
New Indian Assurance Co. Ltd v. Rattan Devi, 2007 ACJ 1817
131
Hemu Bai v. Satish, 2007 ACJ 1159
 204

In Shashibala v. Rajender Sharma132in a case of collision between a van

and motorcycle, the driver of van had not appeared in witness box. In
appeal driver of van alone was held responsible.

In Devi Singh v. Vikram Singh133it was held by Full Bench of Madhya

Pradesh High Court that simply because deceased and other 2 persons were
sitting on a scooter, that itself does not fasten them with the responsibility
of negligence in driving.

In similar case of Ahmedabad Muncipal Corporation v. Narendrabhai

Lalbhai Shah134Gujarat High Court held the same that simply because
deceased and other 2 persons were sitting on a scooter, that itself does not
fasten them with the responsibility of negligence in driving.

In Roopa Bai v. Ramayan Vikasdhr Diwan135 where the solitary eye

witness had ststed that deceased cyclist came in front of car and dashed
against it and the driver of car was not at all responsible, no compensation
could be awarded since the deceased himself was negligent.

In A.S. Sharma v. Union of India and another136 case, a military jeep,

while overtaking an auto rickshaw, went to the wrong side of its road and
dashed against a scooter coming from the opposite direction. The defence
was that the scooterist hit against the petrol tank, which is always fitted on
the left side of the vehicle and it was so fitted on the jeep also. The
opponents also failed to establish their contention that the scooterist was
driving the scooter in violation of traffic rules by allowing two persons to
sit on pillion.

132
Shashibala v. Rajender Sharma, 2008 ACJ 2744
133
Devi Singh v. Vikram Singh, 2008 ACJ 393
134
Ahmedabad Muncipal Corporation v. Narendrabhai Lalbhai Shah, 2010 ACJ 15
135
Roopa Bai v. Ramayan Vikasdhr Diwan, AIR 2010 (NOC) 3 (Chhat) DB
136
A.S. Sharma v. Union of India and another, 1995 A.C.J. Guj.
 205

The Tribunal held that the jeep was driven in a rash and negligent manner
and it caused the accident. The Tribunal’s findings were upheld in appeal.
The applicability of doctrine can be invoked where the facts admit an
incidence or accident which ordinarily does not happen in the usual affairs
or the management of the vehicle driven. The facts and circumstances
emerging from the record of the present case invoke the application of res
ipsa loquitur.

In Himachal Road Transport Corporation and another v. Vinod Bali137

a bus hit a scooter and the scooterist was thrown 10 to 15 feet away
sustaining injuries. The pillion rider deposed that the scooter was being
driven on the extreme left side of the road at a speed of 15 to 20 Kmh and
the evidence has not been shaken in cross-examination. The driver of the
bus was the only witness produced in defence but he could not explain how
the injured was rash and negligent in driving his scooter. The scooter was
going uphill whereas the bus was going downhill; the velocity of the bus
naturally would have been more.

The Tribunal held the bus driver was rash and negligent in causing the
accident. The appellate court found “the way in which the accident has
occurred can also lead to the application of the principle of res ipsa loquitur
and the court is entitled to draw an inference that the bus was driven in a
rash and negligent manner in this case.138

In Hazara Singh v. P.L.Joseph and another139 case, a car hit a scooter

from behind and dragged it resulting in injuries to the scooterist. The owner
of the car contended that the scooterist came from the side of the van,
turned to the right and came in front of the car. Skid marks upto 25 paces,

137
Himachal Road Transport Corporation and another v. Vinod Bali, 1998 A.C.J. 1284 H.P.
138
Ibid at 1286.
139
Hazara Singh v. P.L.Joseph and another, 1996 A.C.J. 277, Del.
 206

mechanical inspection of the vehicles and medical evidence corroborate the

claimant’s version. The car driver’s version was found to be not reliable
and the same was not corroborated by any independent evidence.

S.B.Wad J. gave judgement that the Tribunal had rightly come to the
conclusion in applying the doctrine of res ipsa loquitur of res ipsa loquitur
and the accident was caused because of the rash and negligent driving of
the car.

The Corporation was accordingly held to be liable.

It is to be mentioned here that the learned Tribunal in this case has

dismissed the claims application holding that the accident had not taken
place as a result of negligence on the part of the driver of the four-wheeler
which collided with the scooter driven by the deceased.

In Krishna Sehgal and others v. U.P. State Road Transport

Corporation and others140 a bus went to the wrong side of the road hitting
a motor cycle and stopping only after hitting a tree. As a result of accident,
the motor cyclist succumbed to injuries. It was held that the driver of the
bus was guilty of rash and negligent driving and the deceased motor cyclist
was not guilty of contributory negligence as he was driving his motor cycle
on his left side. On the facts proved the doctrine of res ipsa loquitur was
applicable. The proved facts spoke for themselves that the driver of the bus
was plying the vehicle in violation of the traffic rules and the vehicle was in
great speed, and for that reason it could not be controlled even after dashing
against the motor cycle as it crossed the entire path and hit a tree and it
could stop only there. The Court held that the Tribunal rightly held that the
driver of the bus was guilty of rash and negligent driving.

140
Krishna Sehgal and others v. U.P. State Road Transport Corporation and others, 1983 A.C.J. 619,
All.
 207

In Union of India the Secretary, Ministry of Defence, New Delhi v.

Sudhir Khanna and others141 a military truck, negotiating a curve while
descending a slope at fast speed, went to the wrong side and collided with a
motor cycle causing injuries to the pillion rider. The sketch map prepared
by the police clarified that the truck was being driven on the wrong side of
the road leaving a very little space for the vehicles from the other side to
cross. The skid marks indicated the high speed of the truck. Bhawani Singh
J. held,

“It is very difficult to believe that the vehicle was being driven at a speed of
20 to 25 km per hour, as stated. There may be some direction to drivers
driving the military vehicles to drive them at a particular speed, but whether
the vehicles were actually driven at that space, cannot be said with
precision. However, it is clear in this case that the military vehicle was
descending. The truck was clearing a curve and it cleared it in such a way
that it left no space for the other vehicles to pass through its left side, and
the result was that the vehicle struck the motor cycle. The negligence is at
large and has been clearly established by the claimants. Besides, the skid
marks of the truck found at the spot further establish this fact quite
conclusively and the efforts of the respondents to prove to the contrary
cannot be accepted in view of the cogent and convincing evidence of the
claimants. In such situation the maxim res ipsa loquitur applies.”142

In New India Assurance Co. Ltd. v. Debajani Sahu and others143 case, a
bus came from behind at a fast speed and dashed against a scooter going
ahead, ran over the scooterist causing his death. The claimants’ version was

141
Union of India the Secretary, Ministry of Defence, New Delhi v. Sudhir Khanna and others, 1990
A.C.J. 215, H.P.
142
Ibid. at 218.
143
New India Assurance Co. Ltd. v. Debajani Sahu and others, 2000 A.C.J. 1512 Ori.
 208

corroborated by a witness and the driver was not examined to rebut his
evidence. The principle of res ipsa loquitur is applicable to the
circumstances of the case and an adverse inference is drawable against the
driver. The Tribunal held that the bus driver was rash and negligent in
causing the accident. The Tribunal’s finding was upheld in appeal.

P.K.Misra, J. observed as under:

“In the present case, the claims Tribunal found about the negligence of the
bus driver on the basis of the evidence of witnesses. It is contended that
PW2 himself being the driver employed by the deceased was a highly
interested witness and his evidence cannot be accepted as reliable. There is
no dispute in the fact that the accident was caused involving the scooter and
the bus. Even assuming that the evidence of P.W.2 is not accepted, still
then the doctrine of res ipsa loquitur is applicable. In such a situation, the
owner of the bus should have examined the driver of the bus to explain the
circumstances under which the accident occurred, as the other person
involved in the accident having died cannot speak from the grave to explain
the circumstances under the accident had taken place.

Of course the bus owner has remained ex parte, but no attempt was made
by the insurance company which was contesting the case even on merit
(whether justifiably or not is immaterial), to adduce any evidence to rebut
the evidence of P.W.2, nor has bothered to summon the bus driver to
explain the circumstances under which the accident took place. In such a
case, an adverse inference can be drawn against the owner/insurance
company for not examining the bus driver who would have been the best
witness to explain the circumstances under which the accident occurred. In
such a view of the matter, the findings of the Tribunal on the question of
 209

negligence cannot be assailed and the contention in this regard raised by the
counsel for the appellant cannot be accepted.”144

In Kapil Kaur and others v. Union of India and others145 a military truck
running at a fast speed hit a scooter going ahead on the left side of the road
resulting in death of the scooterist. The defence was that the scooterist
could not control his scooter and it struck against the truck on its left side
bumper. An eye witness denied that the military vehicle was moving at a
slow speed and had already taken a turn when the scooterist fell in a pit and
struck against the left side of the truck. Another eye witness stated that the
truck, at fast speed, crossed him and he could save himself by getting on the
kacha road; 5-6 yards ahead, he heard a loud bang and he found that scooter
was hit and smashed resulting in the death of the scooterist. The site-plan
prepared by military authorities’ shows that the scooterist was hit by the
truck from behind.

The Tribunal relied upon statement of the relative of the deceased that the
truck driver was not to be blamed for the accident and found that the
claimants failed to establish negligence of the truck driver. The Appellate
Court observed that relative gave this statement to obtain the body without
the post-mortem, similarly, the statement of the son of the deceased that
‘there is no foul play involved in the accident’ does not amount to
admission regarding negligence of the deceased in the accident.

The Appellate Court reversed the finding of the Tribunal and found that the
Principle of res ipsa loquitur was applicable and evidence on record clearly
established that the accident was caused entirely due to rash and negligent
driving of the truck.

144
Ibid..at 1514 i.
145
Kapil Kaur and others v. Union of India and others, 2000 A.C.J. 864, P & H.
 210

V.K.Jhanji, J. observed,

“It is difficult to believe that the deceased took turn at a high speed and fell
in a pit and struck against the military truck on its left side and fell down. It
is a case where the maxim res ipsa loquitur is applicable and it can be said
that in view of the evidence on record with regard to the fast speed of the
truck on G. T. Road and the nature of the weather and road, the accident
took place because of negligent driving of the military truck by its driver
and the deceased died due to injuries sustained by him in the accident.”146

In Padmabai and others v. Madhya Pradesh State Road Transport

Corporation and another147a motor cyclist dashed against the bus coming
from the opposite direction and sustained fatal injuries. The allegation was
that the bus driver drove the bus in rash and negligent manner and caused
the accident. The Tribunal appreciated the evidence and held that the
claimants failed to prove rash and negligent driving of the bus. The driver
of the bus deposed that the deceased came from the opposite direction
driving his motor cycle rashly and negligently at a high speed. By seeing
this, he took his bus to his left side and stopped it. But the motor cyclist
could not control his motor cycle and dashed against the stationed bus and
fell down from the motor cycle and sustained injuries and nothing could be
elicited in his cross examination. The Tribunal finding is upheld in appeal.

In Bhuwanweswar Sahu and others v. Sudhir Kumar and others148

case, a dumper dashed against a motor cycle coming from opposite
direction and dragged it and its occupants to a distance of 30 feet. The
principle of res ipsa loquitur is applicable and dragging to a distance of 30

146
Ibid..at 867
147
Padmabai and others v. Madhya Pradesh State Road Transport Corporation and another, 2001
A.C.J.785, M.P.
148
Bhuwanweswar Sahu and others v. Sudhir Kumar and others, 2003 A.C.J. 1247, Jhar.
 211

feet is by itself sufficient to infer rashness and negligence on the part of the
driver in driving the dumper.

Eqbal and Prasad J.J. held,

“We have perused the judgment of the tribunal and the findings recorded on
the issue of rash and negligent driving. The tribunal has held that no
reliable evidence has been brought by the claimants to prove that the
accident took place due to rash and negligent driving of the dumper. The
case of the claimant is that while the deceased was going on a motor cycle,
the dumper came from the opposite direction and hit the motor cycle and
dragged it along with the occupants for about 30 feet”.

The court said having regarded to the undisputed statements, the tribunal
ought to have applied the doctrine of res ipsa loquitur. In other words,
sometimes the accident itself proves the negligence. The fact that the
dumper hit the motor cycle and dragged it along with the occupants for
about 30 feet is itself sufficient to infer rashness and negligence on the part
of driver in driving the dumper. We therefore, hold that the accident was
caused by the driver of the dumper and as such the claimants are entitled to
compensation. The appeal is allowed.

In the case of Hirachand and another v. Union of India149while the

plaintiff was going on a scooter on the main road, a bus belonging to the
Union of India came on its extreme wrong side and struck against the
scooter, as a result of which the son of the plaintiff died on the spot.
Accordingly, to the defendant bus driver, even though the speed of the bus
was very low, the scooter coming on the wrong side of the road, on which
the deceased was sitting at the backseat, collided with the bus. He had no

149
Hirachand and another v. Union of India, 1971, A.C.J.475
 212

experience of driving of a scooter, so much so that he even did not have a

driving licence. The accident could not be averted due to the failure of
brakes which took place on the spot. The tribunal held that the accident has
taken place due to negligence of the bus driver.

The learned advocate general, while arguing in favour of the Union of India
held that the bus had to take a turn on the left side but at that time a cyclist
who was coming from the opposite direction, came in front of the bus. To
avoid the cyclist, the bus driver tried his best to turn to the right, but in spite
of his best effort the cyclist was struck and as the brakes of the bus failed it
collided with the scooter.

The court held that as the defendant failed to provide the reliable evidence
to rebut the presumption raised in favour of the plaintiff, they were liable
for negligence. This case is based on the judgements given in the Yakan v.
The State of Madras150 and Gobalad Motor Services Limited and
another v. R.M.K. Veluswami and Others151and Premaeswari Das and
Others v. Saman Devi and Anothers152.

(d) Heavy Motor Vehicles Colliding With Heavy Motor Vehicles

In Raghib Nasim and another v. Naseem Ahmad and other153case, an

accident between HRTC bus and private bus coming from opposite
directions resulted in the death of a passenger travelling in the private bus.
The driver of the HRTC bus stated that he was driving at a slow speed
when the private bus at fast speed tried to overtake another bus, thereby
causing the accident. Site Plan established that the HRTC bus was on the
extreme left side. It was held that the accident was caused due to the sole

150
Yakan v. The State of Madras, 1968, A.C.J. 216
151
Gobalad Motor Services Limited and another v. R.M.K. Veluswami and Others, A.I.R.1962 SS.C. 1
152
Premaeswari Das and Others v. Saman Devi and Anothers, A.I.R. 1960 314
153
Raghib Nasim and another v. Naseem Ahmad and other, 1986 A.C.J. 405 All.
 213

negligence of the private bus driver. “It is true that the claims Tribunal
committed an error of applying the principle of res ipsa loquitur in the
present case, in as much as this principle applies when there is no evidence
to lead the court to the conclusion with regard to the accident for the
purpose of fastening the liability and finding as to who is the defaulting
party. In the present case, the evidence had been led by the parties. This
error of the claims Tribunal is of a trivial nature as it does not affect the
result of the appeal at all.”154

In this connection it is mentioned, “When a person is injured without any

negligence on his part but as a result of negligence on the part of another
person or due to the combined negligence of two persons, it is not a case of
contributory negligence. The question of the contributory negligence arises
in a case where the injured or the deceased had contributed to the accident.
In a case of composite negligence, the person wronged has a choice of
proceeding against all or any or more than one of the wrong-doers. Every
wrong-doer is liable for the whole damages if it is otherwise made out”.155

In Jamla Bi v. Gurmit Singh156where driver of a truck put his loaded truck

on jack. The jack slipped and the truck, and fell on a mechanic who was
attending to that other truck nearby. The mechanic died. The tribunal held
the driver of both the trucks to be equally negligent. In appeal, it was held
that the truck on jack should have first been unloaded before being put on
jack and as the driver of the truck on jack was solely responsible for the
accident.

154
Ibid. at 408.
155
Ibid. at 407.
156
Jamla Bi v. Gurmit Singh, 2003 ACJ 1035 (MP)
 214

In Kothai v. Oriental Insurance Co. Ltd157where logs protruding outside

the offending truck hit against a bus resulting in death of a passenger in
bus. Both drivers were blaming each other. The finding of the tribunal that
accident occurred solely due to negligence of the truck driver was upheld
by the High Court.

In Basant Kaur v. Chatarpal Singh158there was accident between trucks

A and B resulting in death of driver of truck A. owner of truck A informed
the widow of the deceased driver that death was caused because of rash and
negligent driving on part of driver of truck B. the tribunal dismissed the
claim on ground that negligence of driver of truck B had not been proved.
In appeal it was held that facts were enough to record a finding that driver
of truck B was alone responsible for causing the accident.

In Maniben S. Pandya v. Shashikant P. Shrigalor159where both the

vehicles were moving in different directions but collided and then
separated, both the drivers were held equally responsible for the accident.

In Haryana State v. Krishan Kumar160where a truck came on wrong side

of the road and there was collision with another truck coming from opposite
direction on its correct side. Defence was that accident was due to
inevitable accident due to mechanical fault. There was no evidence of
mechanical failure despite due care and caution to check roadworthiness of
the vehicle from time to time. The other truck had been damaged. The
driver of the first truck was held to be rash and negligent.

157
Kothai v. Oriental Insurance Co. Ltd ,2003 ACJ 991 (Mad.)
158
Basant Kaur v. Chatarpal Singh, 2003 ACJ 369 (MP)
159
Maniben S. Pandya v. Shashikant P. Shrigalor, 2005(1) ACJ 592 (Guj.) DB
160
Haryana State v. Krishan Kumar, 2003 ACJ 549 (P&H)
 215

In Revathi Rajeskaran v. Vijaykumaran161where a truck in high speed

had twisted to wrong side and then dashed against a bus. The driver of bus
applied brakes and swerved to left on the mud road. Another bus coming
from behind that bus was also hit by the truck. The other bus, thus, fell into
a ditch causing death of two and injury to several other passengers. The
driver of the truck was not examined. The tribunal, relying on the FIR and
evidence of driver of bus and claimants, held the driver of the truck as
negligent. In appeal, the findings of the tribunal were upheld.

In State of Karnataka v. Peter Frank162 where the accused driver of bus

overtaking not one but three buses. It was held that the act itself was a
highly dangerous act. There was clinching evidence that not only the
accused collided with an incoming bus but had also lost control of his
vehicle and dashed against a tree. The factors taken were clearly to be
indicative of fact that the vehicle was driven in a rash and negligent
manner.

In Ravinder Kaur v. Haryana State163where a bus collided with truck.

Evidence of eye witnesses were that driver of bus had tried to avert accident
by applying brakes. The truck being heavier than passenger bus, it was duty
of driver of truck to give way to the bus. No negligence was established on
part of bud driver. The driver of truck was alone held responsible.

In Mangilal v. Chairman, Rajasthan State Road Transport

Corporation164there had been collision between a private bus and a
roadways bus, causing injury to passengers in private bus. The accident
occurred while the private bus was taking a turn to the right without any

161
Revathi Rajeskaran v. Vijaykumaran, 2002 ACJ 1925 (Mad.)
162
State of Karnataka v. Peter Frank, 2001 (1) ACC 704
163
Ravinder Kaur v. Haryana State, 2001 ACJ 635 (P&H)
164
Mangilal v. Chairman, Rajasthan State Road Transport Corporation, 2000(1) ACC 509 (Raj.)
 216

indication. The roadways bus was being driven in high speed. The driver of
the roadways bus was not examined to prove that he was not negligent or
that the accident was occurred in a manner in which he could not be held
negligent. The findings of the tribunal as to negligence of driver of private
bus was alone was set aside since driver of the roadways bus could not be
said to be not responsible for the accident.

In Premlata Shukla v. Sitaram Rai165where in a collision of a tempo with

a truck, the statement of widow of deceased who was also travelling in the
tempo that was driven in rash and negligent manner, and there being
nothing to controvert her statement, but same was corroborated by another
witness, the finding that driver of the truck was negligent was set aside and
driver of the tempo was alone was held negligent.

In Andhra Marine Exports (p) Ltd., Quilon and another v. P.Radha

Krishnan and others166 case, the road at the place of accident was 31 ¼
feet wide and straight. A van coming from the opposite direction went to
the wrong side of the road and dashed against the bus resulting in extensive
damage to the bus. It was held that the principle of res ipsa loquitur is
applicable and the van driver was found guilty of rash and negligent
driving.

In N.K.K. Siva Baghyam and others v. P.V. Kalliani Amma and

others167case, there was a collision between a bus and a van resulting in the
death of a passenger in the van. K.T. Thomas J held, “We have our own
reasons to hold that the claims Tribunal crossed in finding that there was
composite negligence of the bus driver and van driver in causing the

165
Premlata Shukla v. Sitaram Rai , 2006 ACJ 1081 (MP) DB
166
Andhra Marine Exports (p) Ltd., Quilon and another v. P.Radha Krishnan and others, 1984
A.C.J. Mad.
167
N.K.K. Siva Baghyam and others v. P.V. Kalliani Amma and others, 1991 A.C.J. 283( Ker.)
 217

accident. As a broad case is admitted by both the sides that the bus was
entering the national highway from a by-lane, the degree of care, diligence
and circumspection which the bus driver should have adopted was of a far
higher one. He is permitted to take his vehicle into the main road from a by-
lane only after ensuring that his passage is clear and that there is no risk
involved in taking the vehicle into the main road, since the vehicle plying
on the main road has the right of passage through the main road. As the
accident is a collision between a vehicle which went into the main road
from a by-lane and another vehicle which was already plying through the
main road, the doctrine of res ipsa loquitur heavily favours the van driver
and raises a presumption that the negligence was on the part of the bus
driver. Of course, he is entitled to rebut the presumption. But no counter
theory was advanced by the owner or the driver of the bus in the joint
written statement filed by them except saying that the van was proceeding
through the eastern side of the national highways.”168 The spot of the
damage of the front right side of the bus suggests that the van was not being
driven on the eastern side of the road the doctrine of res ipsa loquitur
heavily favoured the van driver and raise a presumption that the negligence
was on the part of the bus driver. The Tribunal’s finding was set aside in
appeal and held that the accident was entirely due to the negligence of the
bus driver.

In Nek Ram and others v. Punjab Roadways and others169case, there

was head on collision between bus and truck resulting in the death of the
both the drivers and cleaner of the truck. Claim for damages was made by
the legal representative of the bus driver. The bus was on its correct side of
the road. Bursting of right front tyre of the truck resulted in swaying of the
truck to its right and it hit against the bus. There was no evidence to prove
168
Ibid. at 284.
169
Nek Ram and others v. Punjab Roadways and others, 1984 A.C.J. 396 (P & H.)
 218

the condition of the tyre. It was held that the res ipsa loquitur was
applicable and the truck driver was negligent in causing death of the bus
driver.

In Bisarti Bai and others v. Madhya Pradesh State Road Transport

Corporation and others170there was head on collision between a truck and
a bus coming from opposite direction, the truck travelled some distance
before it over turned on its left side crushed several persons standing by the
road side. Both the vehicles were travelling at fast speed and none of the
drivers was careful to leave the middle of the road, taking his vehicle to the
left side and reduce the speed while crossing each other though the road
was wide, straight, clear and had no traffic. Driver neither blew horn nor
gave any signal to the approaching vehicle to keep more to the left. The
Tribunal found that both the drivers were equally rash and negligent in
causing the accident. The Appellate Court found that apart from evidence,
the doctrine of res ipsa loquitur was applicable and upheld the finding of
the tribunal that inter se liability between both the drivers is 50:50.

In Gayatari Devi and others v. Ramesh Chand and others171a collision

occurred between a bus and truck coming from the opposite direction
resulting in the death of the driver and a passenger in truck. The bus fell at
a distance of 20 steps from the place of occurrence towards west side of the
road whereas the truck stopped at a distance of 30 steps towards east.

It was held that the principle of res ipsa loquitur is applicable and it was
sufficient for the claimants to plead and prove the accident and nothing
more; the onus then shifts on the respondents and it would be for them to
discharge the burden by pleading and proving specific defence available to

170
Bisarti Bai and others v. Madhya Pradesh State Road Transport Corporation and others, 1990
A.C.J. 103(M.P.)
171
Gayatari Devi and others v. Ramesh Chand and others, 2000 A.C.J. 898, (Raj.)
 219

them. The court held that in the circumstances of the case all concerns
parties are jointly and severally liable for the accident. Accordingly the bus
owner, its driver and the truck owner including the New India Assurance
Co. Ltd. Were directed to pay the compensation to the appellants as
determined by the learned Tribunal.

In Mita Gupta and others v. Oriental Insurance Co. Ltd. And

others172a truck ‘B’ dashed against truck ‘A’ coming from the opposite
direction resulting in the death of the driver of truck ‘A’. In F.I.R. it is
stated that the driver of truck ‘B’ was driving his vehicle in a rash and
negligent manner and it dashed against truck ‘A’. Eyewitness corroborated
claimants’ version. The driver of truck ‘B’ is not examined and adverse
inference against him is drawable. But the Tribunal disbelieving the
eyewitness found that the claimants failed to prove negligence of driver of
truck ‘B’ and dismissed the claim application.

The Appellate Court reversed the finding and held that the claimants have
proved the accident. Therefore the principle of res ipsa loquitur is
applicable and the drivers of both the trucks were held responsible for the
accident. A. Karib J. observed,

“The evidence of the driver of truck was the best evidence available as to
the manner in which the accident took place. By not producing him as a
witness, the respondents withheld the best evidence which ought to have
led the Tribunal to draw an adverse presumption in favour of the appellants.
Even if there is some manner of doubt as to how the accident occurred by
applying the doctrine of res ipsa loquitur, we hold that since the accident
was composite in nature, it involved contributory negligence on the part of
the both the drivers of the two trucks involved in the accident. In fact, from

172
Mita Gupta and others v. Oriental Insurance Co. Ltd. And others, 2002 A.C.J. 393 Cal.
 220

a copy of the F.I.R. produced before us, it appears that the driver of the
truck was driving in a rash and negligent manner and dashed against
truck”.173

The Judgement of the Tribunal was accordingly set aside and damages were
awarded.

V. Application of Doctrine of Res Ipsa Loquitur in Non Collision Cases

Non collision Motor Accident Cases relates to those cases where there is no
collision between two or more motor vehicles, although these may have been
hitting a wall or tree or a human being. The study of Judicial Determination
of Non-collision cases by various High Courts and Supreme Court of India
have been divided in the following categories:

(a) Motor Vehicles Hitting Pedestrians

In Mithu Rani Sadar v. United India Insurance Co. Ltd.174where a

tractor trailer hit a pedestrian and driver and owner of the vehicle remains
ex-parte in the matter and post mortem conducted after 10 days of accident
could not suggest that deceased was under influence of liquor, and evidence
of witness and widow of deceased was consistent, driver of tractor trailer
was held rash and negligent.

In Mishri Bai v. Munna175where a matador dashed against a person

standing on footpath but the tribunal dismissed the claim on the ground that
FIR was lodged after 22 days, it was held in appeal that deceased had died
in accident by use of matador.

173
Ibid. at 402
174
Mithu Rani Sadar v. United India Insurance Co. Ltd., 2006 ACJ 2868 (Cal.) DB
175
Mishri Bai v. Munna, 2007 (1) ACC 911 (MP) DB
 221

In Rajasthan State Co-op Diary Federation v. Brij Mohan Lal and

Others176case, a tanker hit a pedestrian resulting in his death. The defence
was that the deceased was crossing the intersection of two main roads and
was in the middle when she moved backward because of an approaching
car from the opposite side and she struck against the tanker. The driver
speed away after the accident. The driver was the best person to depose
about the circumstances of the accident, but he was not examined. The
Tribunal drew adverse inference and on the principle of res ipsa loquitur
found that the tanker driver was rash and negligent in causing the accident.
The Tribunal’s finding was upheld in appeal.

The accident took place on the middle of intersection of the two main
roads. One road was 72 feet wide. The other road was 39 feet wide. After
causing the accident the truck sped away. The driver was expected to drive
his tanker (truck) on the left side of the road. He was under a duty to take
care of pedestrians going on the road. The site plan, formal proof of which
has been dispensed with by the appellant ( as per the endorsement
appearing on the same) goes to show that the impact of the accident was
very severe and the books, chappals etc. of the girl were found scattered at
quite some distance from the place of the accident. These facts speak for
themselves. In my opinion, the appellant ought to have examined to explain
the circumstances, the learned Tribunal rightly drew adverse inference
against the appellant. On a careful consideration of all the circumstances in
question occurred due to rash and negligence driving of the tanker (truck).
The finding of the Tribunal was accordingly upheld.177

176
Rajasthan State Co-op Diary Federation v. Brij Mohan Lal and Others, 1990 A.C.J.118, Raj.
177
Ibid. at 122.
 222

In the matter of Banwari Lal Aggarwal v. Jeewan Kumar Badu178where

a boy standing on roadside was hit by a vehicle. The fact had been proved
by eye-witness. It was held that the evidence of eye-witness directly in
Tribunal cannot be ignored on the basis of contents of criminal charge sheet
or on unfounded evidence led by defence. The findings of the tribunal that
the boy was guilty of contributory negligence was set aside by the High
Court and the driver of the vehicle alone was held negligent.

In Oriental Insurance Co. Ltd. v. Ullasini N. Kamble179a pedestrian died

when hit by a moped. The mopedist deposed that deceased had attempted to
cross road at place not marked for crossing. There was no evidence that
deceased had even tried to cross the road at a prohibited point. The findings
that deceased was guilty of contributory negligence was based only on
conjecture. In appeal, the mopedist alone was held negligent.

In the State of Madhya Pradesh and another v. Diwanchandra Gupta

and Others180 case, a truck parked on a slope without the driver and
without and precautionary measure slid down the gradient and killed a girl
sitting at some distance. The driver’s deposition that some girls had pushed
the vehicle was not accepted. It was held that the principle of res ipsa
loquitur is applicable and the driver was negligent.

Dr. T.N. Singh, J. observed that the truck was parked on a slope and the
driver was not anywhere near the vehicle. It is also in evidence that no
precaution or step was taken by the driver to secure the vehicle in such a
way that it would not slide down the gradient. The girl Mamta was sitting at
some distance from the vehicle at the back side of the vehicle. The truck
suddenly moved down and ran over her and death was instantaneous. In

178
Banwari Lal Aggarwal v. Jeewan Kumar Badu, 2002(3) ACC 160
179
Oriental Insurance Co. Ltd. v. Ullasini N. Kamble, 2002 (1) AJR 301 (Kar.)DB
180
State of Madhya Pradesh and another v. Diwanchandra Gupta and Others, 1989 A.C.J. 320, M.P.
 223

these circumstances, the doctrine of res ipsa loquitur immediately becomes

operative and the burden is shifted to the driver to satisfy the court that he
was not negligent. Although the driver has given evidence that some girls
had pushed the vehicle, the Tribunal has rightly not believed him. Those
girls who were there were all students of degree class and it is difficult to
conceive of the suggestion that they were playing mischief intentionally
and indeed, there is no evidence on record to take the view that they had
any animus against the deceased so as to cause her death by moving the
vehicle in that manner. The court accordingly affirmed the tribunal’s
verdict and held that for the negligence of the driver, the claimants were
entitled for the compensation for their daughter’s death.181

In Gorli Bai v. Kanti Lal182a lady passenger was waiting for bus at bus
stand and was hit by a truck. The evidence of witnesses was that the truck
was driven at excessive speed. The situation was self-evident to hold that
the driver of the truck was guilty of rash and negligent driving.

In N.Tantry v. Shwaleela183where a mopedist had dashed against a

pedestrian and the pedestrian died, and criminal case was also instituted
against the mopedist, and evidence was that the mopedist had first hit the
pedestrian and thereafter struck against an electric pole, it was held that the
mopedist was rash and negligent in driving.

In National Insurance Co. Ltd. v. Srimatya Basanti Mondal184where

victim was suddenly run over by a vehicle. The defence was that the
deceased himself came in front of the vehicle in an attempt to commit
suicide. The witness of the opposite party did not establish fact of suicide

181
Ibid. at 321.
182
Gorli Bai v. Kanti Lal, 2002 (3) TAC 402 (MP)
183
N.Tantry v. Shwaleela, 2002 (2) TAC 44 (Karn.)
184
National Insurance Co. Ltd. v. Srimatya Basanti Mondal, 2002(3) TAC 453 (Cal.) DB
 224

whereas claimants and other eye witnesses were found consistent and
reliable. The finding of the tribunal ruling out defence of suicide and
holding the driver of the vehicle guilty of rash and negligent driving was
upheld by the High Court.

In Delhi Transport Corporation v. Neelam Deshwar185where it was

implicit from site plan that at the time of accident, the driver was driving
his bus from a bypass towards right edge of road, i.e. on the wrong side, it
was held that the driver of the bus alone was negligent.

In U.P. State Road Transport Corporation v. Shanti Devi186where the

post mortem report suggested that death had taken place on account of
shock and hemorrhage due to profuse bleeding from ante mortem injuries,
the driver of the bus was rightly held responsible for the accident.

In Udayshanker Bhai v. Heirs and Legal Representatives of the

deceased Ala Rama and Others187case, a truck knocked down a
pedestrian. The driver lodged F.I.R. to the effect that he was driving the
truck in a rash and negligent manner and the deceased fell down from the
truck and was killed. The claimants based their claim application on the
F.I.R. The owners contented that the deceased jumped out of the truck.
Neither any eye-witness to the accident nor the driver was examined,. The
version of the accident as given in the F.I.R. in the absence of evidence of
the driver was not accepted. Blood spots at a place 2 feet from the western
side of the road and some articles of the deceased and bajra were lying near
the blood spots on the road. The truck was found about 600 feet away from
the spot and was facing towards place ‘p’ to purchase grains on the

185
Delhi Transport Corporation v. Neelam Deshwar, (2009) 1 ACJ 1 (Del.)
186
U.P. State Road Transport Corporation v. Shanti Devi, 2007 ACJ 2750
187
Udayshanker Bhai v. Heirs and Legal Representatives of the deceased Ala Rama and Others, 1988
A.C.J. 161, Guj.
 225

previous day. The bags of bajrs indicate that he was returning from ‘p’ after
making purchases and he was not traveling in the truck which was going
towards ‘p’. The deceased and his belongings would not fall at the same
place from the running truck. It was held that the truck driver rashly and
negligently knocked down the deceased when he was walking on the road
carrying his goods. R.C. Mankad, J. observed, that the deceased received
fatal injuries when he was knocked down by the truck of the appellant
which was driven by the driver. We are not making out any new case for
the claimants who did not have any personal knowledge about the manner
in which the accident occurred. It is the duty of the court to probe into facts
and draw appropriate inference from the physical facts which were found
soon after the accident. It is in a case like this that the principle of res ipsa
loquitur is attracted and it is the duty of the court to reconstruct the accident
or occurrence from the physical facts. In a case like this, in which claimants
who have no personal knowledge and most of whom are minors, cannot be
bound by what has been stated in the application. Again, as already pointed
out above, what is stated in the claim petition is not on the basis of personal
knowledge, but on the basis of the information which was in their
possession. The High Court of Gujarat held the accident occurred on
account of rash and negligent driving of the truck on the part of the driver
when the deceased was walking on the road.188

In Ramathal v. Kerala State Road Transport Corporation and

another189case, a bus overtook a stationary bus at high speed at right and
ran over two boys crossing the road in the middle of the road. The Trial
court held that the driver could not be in a position to see those crossing the
road suddenly, and it being night time, nobody could anticipate the accident
and the boys were negligent. It was held that principle of res ipsa loquitur is
188
Ibid. at 165.
189
Ramathal v. Kerala State Road Transport Corporation and another, 1986 A.C.J. 186, Ker.
 226

applicable and driver was negligent as he violated the requirements of rule

56 of Kerala Motor Vehicles Rules 1961 which states that:

“56(2) the driver of the public service vehicle while on duty… (i) shall not,
when bringing his vehicle to rest for the purpose pf picking up or setting
down any passenger at or near the place where another public service
vehicle is at rest for the same purpose, driver the vehicle so as to endanger,
inconvenience or interfere with the driver or the conductor of the other
vehicle or any person mounting or preparing to mount hereon or alighting
there from, and shall bring his vehicle to rest behind the other vehicle and
on the left hand side of the road or place.

The court held that the accident happened at an important junction in the
periphery of the city with large flow of traffic, a pedestrian crossing the
road has to be anticipated and necessary precaution taken190”.

In A.S. Manjunathaiah and another v. M.V. Nanjundaiah and

another191case, a girl walking on the left side of the road was run over by a
bus coming from the opposite direction resulting in her death. The bus
driven at fast speed crossed to its extreme right side and knocked down the
pedestrian girl. It was held that the circumstances speak for themselves and
the doctrine of res ipsa loquitur applied. The accident was caused due to
rash and negligent driving of the bus. In this case the learned member of the
tribunal says, in the case of his judgement, that this is not a case where the
doctrine of res ipsa loquitur is attracted. That clearly shows that he has not
taken into consideration the circumstantial evidence at all, paced on record.

190
Ibid.
191
A.S. Manjunathaiah and another v. M.V. Nanjundaiah and another, 1986 A.C.J. 295, Kar.
 227

In Gothelal Chourasis and another v. Gajjansingh and others192case, a

truck dashed against a child and killed her. The respondents contended that
the accident occurred due to negligence and carelessness of the child. The
Claimants’ witnesses deposed that the truck was being driven at a speed of
50-60 kilometers per hour and the horn was not blown. The Tribunal
accepted the contention of the respondents and dismissed the claim. The
appellate Court held that the doctrine of res ipsa loquitur is applicable and
driver was guilty of negligent driving as he failed to keep a good look out
and take care of the pedestrian and his duty becomes higher when the
pedestrians are children of tender age, because the behaviour of children is
uncertain on the approach of a motor vehicle.

In Naugapa Chinsya ans another v. Bhogoban Sahoo and

another193case, a tractor-trailer hit and killed a woman who was selling
vegetables. The vehicle was being driven at a fast speed without blowing
the horn in a crowed place and the speed of the vehicle was not controlled
even though it was coming down gradient. The principle of res ipsa loquitur
was applicable and it was for the defendant to establish that the accident
happened not due to negligence. Therefore it was held the vehicle was
being driven in a rash and negligent manner.

In Rajasthan State Road Transport Corporation v. Nand Kishore and

Others194case, the offending bus went off the road that too by 5-7ft. away
from the metalled portion of the road and hit the deceased pedestrian
resulting in his death. The bus went in Kachha road and covered a distance
of 61 feet after hitting the deceased. It was held that the principle of res ipsa
loquitur was applicable to the circumstances of the case. The tribunal held

192
Gothelal Chourasis and another v. Gajjansingh and others , 1988 A.C.J. 120, M.P.
193
Naugapa Chinsya ans another v. Bhogoban Sahoo and another, 1988 A.C.J. 685, Ori.
194
Rajasthan State Road Transport Corporation v. Nand Kishore and Others, 2002 A.C.J. 1564.
 228

that the bus driver was rash and negligent in causing the accident. The
tribunal’s finding was upheld in appeal.

In Talasila Sandhya v. Andhra Pradesh State Road Transport

Corporation and another195case, a bus hit two little girls crossing the road
and one of them sustained injuries. The defence was that the two girls
suddenly emerged from behind a parked truck and while crossing the road,
they had a fall, and sustained injuries due to the fall and not by hitting the
bus. Medical evidence that injuries leading to disabilities to one of the girls
support the circumstances that the bus hit the girl. Neither the report which
was given to the police after the accident nor the report to the official
superiors of the driver was produced before the Tribunal.

The Tribunal did not assist the child witnesses in understanding the
questions and giving rational reasons but found inconsistency in their
testimony and exonerated the driver. The Appellate Court observed that
there cannot be any negligence or contributory negligence against a child of
tender age and inability of the driver of a public transport bus in stopping
the vehicle claimed to be moving slowly within a distance of 20 yards
speaks of his incompetence. The Appellate court applied the doctrine of res
ipsa loquitur and held that the bus driver was rash and negligent in causing
the accident.

In K.L.Pasrija and others v. Oriental Fire and General Ins. Co. Ltd.
And Others196case, car hit a child pedestrian and ran over him and then
dashed against a parked scooter rickshaw. The car driver did not possess a

195
Talasila Sandhya v. Andhra Pradesh State Road Transport Corporation and another, 1999 A.C.J.
629 A.P.
196
K.L.Pasrija and others v. Oriental Fire and General Ins. Co. Ltd. And Others, 1986 A.C.J.252 P &
H.
 229

driving licence nor knew driving. It was held that res ipsa loquitur is
applicable and car driver was held negligent.

Gokal Chand Mittal J., observed “I am of the view that there is no escape
from the conclusion that it was the driver of the car who was negligent. The
photographs and other evidence brought on the record clearly go to show
that it was a case of res ipsa loquitur”197.

In Vasathy G.Kamath v. Keral State Road transport

Corporation198case, the deceased was proceeding along the National
Highway, on his way to the bus stop to catch the bus to his school. The
deceased was beyond the foot path, he was off the sandy portion newly
acquired for the highway. A bus belonging to the defendants came from
behind and knocked him down. The left front wheel of the bus ran over the
right leg and inflicted fatal injuries on him. The deceased was not negligent
in any manner.

According to the plaintiff the bus was driven carelessly and at a high speed.
The court held that this case was pre-eminently a fit case for the application
of the principle of res ipsa loquitur.

Kumaran and another v. Augustina199is a case where a bus took a sudden

turn to right and hit the plaintiff, and knocked him down, thereby he was
seriously injured in his head and limbs. The bus was going from the west to
the northern side of the road had suddenly turned to the right and gone to
the south side of the road and stop after hitting a concrete post. Defendants
alleged that before the bus stopped, the plaintiff who was on the northern
side of the road suddenly crossed the road to the south and as a result, to

197
Ibid..at 254.
198
Vasathy G.Kamath v. Keral State Road transport Corporation, 1981 A.C.J.353 Ker.
199
Kumaran and another v. Augustina, 1976 A.C.J.479 Ker.
 230

avoid a fatal accident, the bus had to be swerved to the south and in that
process it hit the plaintiff and he fell down. But no attempt was made by the
defendants to prove any positive evidence that the plaintiff was at the
northern side of the road and crossed the road suddenly. In the absence of
sufficient evidence for the defence, the defendants were held to be
negligent. Syed Akbar v. State of Karnataka200 and Russell v. London &
South Western Rly. Co.201were cited in support. The inference of
negligence on the part of the second defendant as drawn by the lower court
cannot be said incorrect. The court affirmed the decision of the lower court.

In Amina Begum v. Ram Prakash202the plaintiff was sitting in front of his

shop and doing his work as a painter. The defendant’s bus, when it reached
the shop of the plaintiff, it swerved towards the right side of the road and
hit the plaintiff. The impact caused multiple fractures in his left leg. The
defendant owner of the bus alleged that the accident was a result of a latent
defect in the vehicle in as much as its brakes suddenly failed and the
steering wheel became free on account of the bolt of the push and pull rod
going out of order. The defendant driver lost control over the steering
wheel.

Hyder J. was of the view that the defendant has not been able to rebut the
presumption by merely proving the latent defects in the vehicle. The sudden
failure of the brakes and the steering wheel may be due to carelessness on
her part to keep the vehicle in a proper state of repair. In the circumstances
the defendant should have further proved that the latent defect pleaded by
her occurred in spite of the fact that she took necessary steps for the proper
maintenance and upkeep of the vehicle. The defendant made no attempt to
do so. The scale was tilted against the defendant by the presumption. The
200
Syed Akbar v. State of Karnataka, 1980 ACJ, 38
201
Russell v. London & South Western Rly. Co., 24(T.L.R.)548
202
Amina Begum v. Ram Prakash, 1979, ACJ 449 All.
 231

decision of this court was also based on the views expressed in Colhills
Ltd. v. Devine203and Henderson v. Henry E.Jenkins Sons204.

In State of Mysore and another v. Fatima Manwali Fernandis and

another205case P.W.D. truck was going up the gradient from towing a tar
mixing machine tagged it with the help of a rope. Two girls were coming
on the left side of the road. On seeing the truck they got upon the parapet
wall of the drain. The truck passed by them. But, soon after, the tar mixing
machine which was tagged to the truck with the help of the rope stated
sliding down as the rope snapped and it came and hit the girls. The right leg
of one girl was crushed as also heels of both the legs of the other girl. The
doctrine res ipsa loquitur was invoked. Normally, the driver could have
taken care to see that a strong rope was used to tag the tar mixing machine
in the up gradient. The driver had not stepped into the box to explain how
the snapping occurred. The burden was on the defendant. Hence the High
Court of Karnataka held that actionable negligence on the part of the driver
was established. There was no substance in the argument addressed to the
contrary.

In Adamkhan Mohamed v. Ramesh Raya Naik206case, a lorry driven by

the defendant driver went off the road on the extreme left side, hit against a
boy who was on the extreme left side and dragged to the lorry on the road
for some distance, as result of which the boy sustained serious injuries on
his left arm. Ultimately, there was permanent deformity and disability. The
evidence revealed that the lorry came in a rash and negligent manner. But
the defendant driver never appeared as a witness. So, adverse inference had
to be drawn in the circumstances against the driver. In addition to the

203
Colhills Ltd. v. Devine, 1969, 2All E.R.53.
204
Henderson v. Henry E.Jenkins Sons, 1970 ACJ 198
205
State of Mysore and another v. Fatima Manwali Fernandis and another, 1979A.C.J. 323 Kar.
206
Adamkhan Mohamed v. Ramesh Raya Naik, 1978 A.C.J. 409 Kar.
 232

positive evidence on the record the maxim res ipsa loquitur was invoked to
hold that the defendants were held liable.

In Hanuman Dass v. Usha Rani and another207the plaintiff met with an

accident, as a result of which her right collar bone was fractured, right arm
was amputated near the shoulder and three fingers of right foot were
chopped off. The truck which was involved in the accident struck against
an electric pole, situated on the corner of the terrace in front of a house. The
plaintiff, in order to escape injury, had suddenly mounted the terrace but
got injured.

A vehicle has to be driven on the path, and in the course of normal drive,
there is no question of its leaving the path and striking against the platform
and the electric pole abutting the path unless the driver happened to be
negligent or there were circumstances which left him no choice but to take
the vehicle to a point where it struck the electric pole. The fact of the
present case, the doctrine of res ipsa loquitur, was straight away attracted
for the negligence of the driver, unless he placed on record the
circumstances which left him no choice but to take the truck in the direction
of the electric pole. The burden is on the defendant to prove that he was not
negligent. The driver himself made confessional statement in the criminal
court which was proved. The driver admitted his own negligent driving.
The defendant did not deny that he did not know driving well and that at no
time he had possessed a driving license and yet he was rash enough to take
to driving in the streets of the town. The judge in the case found that the
lower court was right in holding that the accident occurred as a result of the
rash and negligent driving of the truck by the defendant. Hence, liable for
the consequences.

207
Hanuman Dass v. Usha Rani and another, 1978 A.C.J. 310 Pij. & Har.
 233

(b) Motor Vehicles Hitting Cyclists

In Hemu Bai v. Satish208 where a maruti van came at fast speed and hit a
cyclist from behind resulting in his death. Driver of the van who was the
best witness to the manner of the accident was not examined. It was held by
the Madhya Pradesh High Court that driver of the van was rash and
negligent.

In Ramlayak Ram v. Umrawati Devi209 where a cyclist was dashed

against by a truck, causing death of one of riders of the cycle. The surviving
rider deposed that no horn was blown by the driver and that he himself was
thrown away into a field. Tribunal’s findings that death did not occur
because of accident was reversed by the High Court and driver of the truck
was held responsible for the accident.

In Revathi Rajsekharan v. Vijay Kumaran210where a cyclist was hit by a

jeep from behind. The cyclist got injured but the pillion rider died. The
driver of jeep had run away from the spot and later denied involvement of
the vehicle in any accident. The officer who maintained the log bookwas
not examined. The driver was prosecuted but acquitted. Finding of the
tribunal that driver was negligent was upheld by the High Court.

In Helen Ekka v. Anil Sharma211where a cyclist was hit by truck and died
on spot. Evidence clearly demonstrated that accident took place due to rash
and negligent driving of truck. Defence taken by the respondents was not
supported by evidence. The findings of the tribunal that the truck driver
was negligent was upheld by the High Court.

208
Hemu Bai v. Satish , 2007 ACJ 1159
209
Ramlayak Ram v. Umrawati Devi , 2002 ACJ 1146 (HP) DB
210
Revathi Rajsekharan v. Vijay Kumaran, 2002 ACJ 1925 (Mad.)
211
Helen Ekka v. Anil Sharma, 2002 ACJ 1982 (MP) DB
 234

In P. Satyanarayana represented by his wife, P. Mahalakshmi v. I. Babu

Rajendra Prasad and another case212a jeep went to the wrong side and
hit a cyclist coming from the opposite direction. The defence was that the
cyclist dashed against some pedestrians and came to his right side but there
was no evidence except that of the driver. There was a government official
traveling in the government jeep at the time of accident, but he was not
examined. The serious nature of the injuries gives rise to an inference that
the jeep was going at fast speed. The Tribunal discovered discrepancies in
the evidence of the claimant’s witnesses and rejected the theory of
negligence of the jeep driver. The appellate court set aside the finding of
the tribunal and applied the doctrine of res ipsa loquitur and held the jeep
driver negligent.

M. Jagannadha Rao, J. observed:

“having regard to the serious injuries, losing of one eye on the spot (and the
other later) and the severe head injuries – the inference can only be that the
jeep was going at a high speed. If, in fact, it was going slow at 5 Km. as
alleged by the respondent, and the cyclist hit the jeep, these injuries are
almost impossible. The place where the claimant fell, even as per the
respondents, requires invoking the principles of res ipsa loquitur. I have no
hesitation in holding that this serious accident occurred solely because of
the negligence of the driver of the jeep. I hold accordingly213”.

In Bhaswarlal v. Kabulsingh and others214a truck came from behind and

dashed against a cyclist who was going on the left side of the road. The
cyclist was injured and his cycle was damaged. The truck did not stop at the
site. It was held that the principle of res ipsa loquitur is applicable and the

212
P. Mahalakshmi v. I. Babu Rajendra Prasad and another case, 1988 ACJ 88, AP
213
Ibid. at 92.
214
Bhaswarlal v. Kabulsingh and others, 1989 ACJ 189, MP
 235

truck driver was rash and negligent in causing the accident. Dubey, J. held
that there was another feature in the case that why an illiterate person will
involve the respondent in a case, if accident had not occurred with the said
truck of the respondent Nos. 1 and 2. No enmity or any ulterior motive has
been proved nor there is any cross- examination to that effect on the
claimant. In such circumstances, when both the parties led evidence and the
burden lost its importance, it was the duty of the respondents to prove that
the accident was not caused by the said truck and according to their plea of
alibi, the truck at the relevant time was at some other place and it could not
have been there where the accident occurred. In the circumstances, I am of
the view that the findings of the Tribunal arrived at with an erroneous
approach deserve to be set aside, and hold that it was the truck which was
involved in the accident; and to evade the liability, false defence was raised
by the respondents, the owner and the driver. As the truck dashed against
the claimant who was going on his bicycle on the left side of the road and
the claimant fell down on the road as a result of the impact, his cycle was
crushed, he received multiple injuries and the truck did not stop at the site.
This also suggests that the truck driver was rash and negligent in the
circumstances of the case. Moreover, the aid of the principle of res ipsa
loquitur can also be taken for holding the truck in question was being
driven rashly and negligently causing the accident to the claimant215.

In Beni Bai v. Chhandilal216 where a cycle was hit by a jeep, resulting in

death of the cyclist but the tribunal had not relied on evidence of the eye
witness deposing that the jeep was driven rashly and negligently merely
because name of such witness was not mentioned in FIR. In appeal,
findings of the tribunal were reversed by holding the driver of the jeep as
rash and negligent.
215
Ibid..at 192.
216
Beni Bai v. Chhandilal, 2005 (2) ACJ 816 (MP) DB
 236

In Chairman-cum-Managing Director, Bihar State Road Transport

Corporation v. Manju Bhushan Sinha and others217, a bus came at fast
speed and hit a cycle-rickshaw from behind throwing away its occupants
more than 10 feet away on the road, injuring them, and one of the
passengers succumbed to his injuries. The defence was that two rickshaws
were trying to overtake each other and they were being driven negligently.
The bus did not stop after accident and traversed to the right side of the
wide road and broke the boundary wall of the open ground to the length of
21 feet. The defendants failed to examine the driver and this failure leads to
adverse inference. The manner of the accidents clearly goes to show that
the bus was driven rashly and negligently.

The Tribunal applied the doctrine of res ipsa loquitur and held that the bus
driver was rash and negligent in causing the accident. The Tribunal’s
finding was upheld in appeal by the High Court of Patna.

In Ravi Kumar v. Manager, Indian Textile Co-operatives Ltd.218in a

case of accident between a car and a cycle carrying a pillion rider, the
cyclist was held guilty of contributory negligence, since two persons riding
on cycle would make it oscillate in zigzag fashion

In Philippose Cherian and another vs. T.A.Edward Lobo and

another219 case, there was a collision between a bus and the cycle coming
from opposite direction and the cyclist sustained fatal injuries. The scene
mahazar was prepared by the investigating officer, and the driver of the bus
admitted that the accident occurred on the northern half of the road which

217
Chairman-cum-Managing Director, Bihar State Road Transport Corporation v. Manju Bhushan
Sinha and others 1992 ACJ 1073, Pat.
218
Ravi Kumar v. Manager, Indian Textile Co-operatives Ltd., 2006(1) ACC 184 (Karn,) DB
219
Philippose Cherian and another v. T.A.Edward Lobo and another , 1991 ACJ 634, Ker.
 237

was the wrong side for the bus. The Tribunal found that there was no proof
of negligence in driving the bus and dismissed the claim. The
Tribunal’s finding was reversed in appeal and held that the doctrine of res
ipsa loquitur was applicable and as there was no evidence to rebut the
presumption, the bus driver was held negligent in causing the accident.

In Kanwaljit Singh and Others v. Santokh Singh and Others220case, a

car and a cyclist were proceeding in the same direction. The car hit the
cyclist from behind. As a result of the accident, the cyclist was run over
while his minor son sustained grievous injuries.

S.S.Sodhi, J. observed that the circumstances and the evidence on record,

thus clearly lead to the conclusion that both the cyclist and the car were
proceeding in the same direction when the accident took place and that the
car came from behind and hit the cyclist. It follows from this that it lay
upon the car driver to explain the manner in which he came to hit the
cyclist from behind, more so when the position of the deceased Joginder
Singh and his injured son Kanwaljit Singh immediately after the accident
pointed to their having been on the left edge of the road when the car hit
them. What the driver came forthwith instead is a totally different version
which cannot stand for scrutiny.

The damage on the front right side of the car shows negligence on the part
of the car driver keeping in view the position of the deceased and the
injured child immediately after the accident as observed by AW 4 Suraj
Bhan. The counsel for the claimants was indeed justified in invoking the
principle of res ipsa loquitur, in the circumstances of this case the burden
shifts upon the car driver failed to discharge. There can, thus, be no escape
from the finding that the accident in this case took place as per the version

220
Kanwaljit singh and Others v. Santokh Singh and Others, 1983 ACJ 470 (P&H)
 238

of the claimants and was, thus, entirely due to the rash and negligent
driving of the car driver221.

In I. Palley Ram and another v. P.K.Janardhan and another222 case, a

military vehicle came at fast speed and knocked down a cyclist from behind
resulting in his death. The cyclist was on his correct side of the road. The
Appeal Court found that the Tribunal has correctly appreciated the
evidence. The doctrine of res ipsa loquitur was applicable and held that the
driver of the military vehicle was rash and negligent and the finding of the
Tribunal was upheld.

In P.Dappammal (since deceased) and Others v. International Space

Research Organization and another223 case, a bus brushed against a cycle
while overtaking and ran over a person sitting on the cycle carrier. The bus
driver blew the horn and the cyclist went to his left. The road was 11/2 feet
space for the cyclist. Even an expert cyclist negotiating through that narrow
space, with the bus overtaking him, would have lost his balance, especially
when rubble had been stacked on that side of the road. It was held that the
accident was caused due to rash and negligent driving of the bus driver. A
prudent driver would have seen the probability of the cyclist and his
companion losing balance and falling and being run over by the bus; he
should have waited till the cyclist went past the trenches so as to avoid the
accident.

Kochu Thomman, J. observed, that res ipsa loquitur apart, the evidence on
record clearly supports the plaintiff’s case that the deceased died as a result
of the rash and negligent driving of the second defendant. Seeing that the

221
Ibid. at 474
222
I. Palley Ram and another v. P.K.Janardhan and another, 1985 ACJ 812 Del.
223
P.Dappammal (since deceased) and Others v. International Space Research Organization and
another, 1986 ACJ 812 Ker.
 239

cycle was proceeding well ahead of the bus and then turned to the left hand
side of the road when the bus sounded the horn at a point where it was far
too narrow for the bus to overtake it, any reasonable person in the position
of the second defendant would have anticipated the danger of not waiting
till the cycle passed the narrow area.

The court held the second defendant ought to reasonably have foreseen the
grave danger to which he was exposing the cyclist and his companion by
overtaking them at that point. His own evidence as DWI regarding the
width of the road and the bus highlights this aspect. These facts together
with what followed, namely, the death of the deceased, clearly speak for
themselves and irresistibly point to the negligence of the second defendant
who was acting in the course of his employment, thereby making the first
defendant vicariously liable224.

In Parkash Kaur and Others v. Municipal Corporation of Delhi and

Others225 case, a bus hit a cyclist at a round-about on road crossing and the
cyclist succumbed to injuries. The bus was coming at a fast speed without
blowing the horn. Eye-witness, site plan and medical evidence establish
that the deceased was hit from behind.

It was held that the maxim applies and accident caused due to rash and
negligent driving of the bus.

S.B.Wad, J. observed that the evidence of the eye witness gives the clear
account as to how the accident took place. The fact that the cyclist was hit
from behind is established by the evidence, by the site plan and medical
evidence. The injuries were very serious and the death took place due to the
said injurious. The maxim of res ipsa loquitur clearly applies in this case.

224
Ibid. at 815.
225
Parkash Kaur and Others v. Municipal Corporation of Delhi and Others, 1985 ACJ 639 Del.
 240

The respondents had failed in cross-objection. It was tried to be contended

that the bus driver was not driving rashly as he was carrying the school
children. It was then submitted that the deceased took a turn without giving
signal and hit the bus.

The tribunal has carefully considered the evidence of the claimant’s witness
and has rightly believed the version. The counsel for the respondents could
not persuade the court to take a different view from that of the Tribunal.
The accident was thus caused due to rash and negligent driving by
respondent No. 3, the driver in the employment of respondent No. 2, the
O.T.C. The accident took place during the course of employment.
Respondent No. 2 is, therefore, liable to pay compensation226.

(c) Motor Vehicles Involved in Accident While Trying to Save

Cattle

In Shivlal and Others v. Rukmabai and Others227 case, the driver of a

tractor driving at an excessive speed lost control when faced with a cow and
the tractor turned turtle causing death of a passenger. The driver contended
that to save the cow he swerved the tractor and thereafter tried to bring it to
a proper side in the consequent jolt, the deceased caught hold of the
steering resulting in the accident. This version of the accident does not find
place in the report lodged by the driver immediately after the accident. A
heavy vehicle like tractor does not normally turn turtle without negligence.
The maxim res ipsa loquitur is applicable. The owner/driver failed to
produce credible material to rebut the presumption of negligence. It was
held that the negligence of the tractor driver was the cause of accident.

226
Ibid. at 640.
227
Shivlal and Others v. Rukmabai and Others, 1987 A.C.J. 341, M.P.
 241

“It may be pointed out that in evaluating evidence for a conclusion on the
question of negligence the standard of proof required in a criminal trial is
not to be applied and a broad view on the basis of probabilities is the proper
approach.

In the instant case a heavy vehicle like the tractor had turned turtle and
normally such a thing does not happen with a careful driving. The
applicability of the maxim res ipsa loquitur is clearly, therefore, attracted in
this case and there is no credible material to rebut the presumption of
negligence. We, therefore, hold that the learned Tribunal committed no
error in coming to the conclusion that negligence on the part of the driver
was the cause of the accident”.228

In Bhagwandas and another v. National Insurance Co. Ltd. and

another229 case, a truck overturned due to excessive speed resulting in the
death of several persons and injuries to many. The driver contended that
two buffaloes were crossing the road and as he applied brakes, there was
sudden breakdown of some parts of the truck which resulted in its
overturning. There was no corroborative evidence about the breakdown of
the truck. It is evident that it was drizzling and the truck was driven at a fast
speed. It was held that the principle of res ipsa loquitur was applicable and
the accident occurred on account of the rash and negligent driving.

K.K.Verma, J. observed,

“The claimants Ram Prasad AW2, Kamal Singh AW3 and Sardar Singh
AW4 were traveling in the same truck as passengers. Their evidence is to
the effect that when all of them including the dead and the injured boarded
the truck, it was drizzling. They consistently deposed that the truck driver

228
Ibid. at 344.
229
Bhagwandas and another v. National Insurance Co. Ltd. and another, 1990 A.C.J. 495, M.P.
 242

tore off in an excessive speed which induced fear and apprehension in the
minds of the passengers. They cried out for the slackening of the speed but
the truck driver did not pay any heed to them. The result was that the truck
overturned. These witnesses withstood the cross-examination very well.

The sole witness in rebuttal was appellant No. 1 Bhagwandas, the truck
driver. He admitted that the truck was loaded with murrum. He admitted
that the truck over-turned on its side near the river.

The driver’s explanation is that two buffaloes were coming on the road.
The truck was being driven slowly. He applied the foot brakes resulting in
the sudden breakdown of some parts of the truck and the accident occurred.
The claimant’s witnesses denied the aforementioned suggestions.

The five labourers, who escaped uninjured, were not examined by the
appellants, who did not adduce any corroborative evidence about the
breakdown of the truck as a result of the use of the foot brakes of the truck.

We accept he claimants’ evidence and hold that the accident occurred. It is

a clear case of res ipsa loquitur as a result of rash driving by appellant No. 1
Bhagwandas”.230

In the above cases the vehicles were driver by the driven at a fast speed.
Due to their negligence, when the cattle were on the road the drivers could
not control the vehicles and the vehicles turned turtle. The principle of res
ipsa loquitur clearly applied in such cases.

230
Ibid. at 500.
 243

(d) Motor Vehicles Falling in Ditches, Canals, Washed Away in

Floods, Hitting Culverts etc.

In Himachal Road Transport Corporation v. Himi Devi and others231,

plaintiff filed a suit to recover damages. Some passengers were traveling in
a bus. The bus had been taken very near the outer edge of the road from
where it fell in to the Khud. As many as nine persons, including the driver,
were killed and many received injuries. The bus in question was a
condemned bus. The bus was over-loaded and it had to be started by
pushing it over some distance. In the circumstances of this case the maxim
res ipsa loquitur was applied. The buses are not supposed to leave the road
and roll down into khuds. If they do so, a heavy burden lies only on the
appellant to show that all reasonable care had been taken and there was no
negligence. The defendants were held liable. The case of Krishna Bus
Service Ltd. v. Smt. Mangli and other232was referred to in support.

In Triveni Prasad and others v. Indrapal Kachhi and others233 case, a

boy was working as casual labourer for filling tractor-trolley with soil and
on the date of accident went for work. He was brought back injured to his
house in the trolley and he succumbed to his injuries. The owner of the
tractor-trolley did not deny his employment and the fact that he went in the
tractor for his duty. The driver of the tractor said that the boy went in the
tractor. The defendant’s evidence is not clear how the boy met with the
accident and what happened when he was on duty. Medical evidence
revealed that there were eight injuries on the person of the boy and opines
that these injuries could be caused by tractor accident. It was held that the

231
Himachal Road Transport Corporation v. Himi Devi and others, 1981 A.C.J. 365, H.P.
232
Krishna Bus Service Ltd. v. Smt. Mangli and other, 1976 A.C.J. 183, S.C.
233
Triveni Prasad and others v. Indrapal Kachhi and others, 1997 A.C.J. 269, M.P.
 244

principle of res ipsa loquitur was applicable and the boy died in accident
with the tractor.

In Madhya Pradesh State Road Transport Corporation v. Anjani

Chaturvedi and Others234 case, the driver took the bus across the bridge
which was submerged and the bus was washed away by flood water when it
was in mid-stream resulting in the death of all the passengers persuaded the
driver to cross the bridge and when the bus entered the bridge it was not
submerged and the accident took place due to sudden rising of water-level,
a vis major. The defence taken is based on hearsay evidence because no one
from whom this information was gathered had been examined. An eye-
witness who saw the accident from the bank of the river deposed that the
bridge was submerged and trucks were waiting on both ends for water-level
to recede but the driver of the bus despite warning proceeded ahead. The
Tribunal relied upon the evidence of the eye-witness which negatives the
plea of vis major and invoking the doctrine of res ipsa loquitur, held that
the accident was caused due to rashness of the driver. The tribunal’s finding
was upheld in appeal.

In Mahendra Pal Singh and another v. Prakash Chand Goyal and

others235case, the deceased was traveling in a truck proceeding on a high
way. The truck, after hitting a culvert turned topsy-topsy and the deceased
was buried under a coal lad in the truck. The driver stated that another truck
was coming from the opposite direction at excessive speed and with full-
bloom light. The Tribunal held that the truck and lost control and was
therefore negligent in not controlling the speed of the vehicle. Appellants
challenged the finding of negligence against the driver on the ground that
the claimants have not discharged their onus to prove the negligence on the
234
Madhya Pradesh State Road Transport Corporation v. Anjani Chaturvedi and Others, 1993
A.C.J. 363, M.P.
235
Mahendra Pal Singh and another v. Prakash Chand Goyal and others, 1987 A.C.J. 677, M.P.
 245

part of the driver. It was held that res ipsa loquitur is applicable and it is
sufficient for the elements to prove the accident and nothing more. Because
the true cause of the accident was solely within the knowledge of the driver
who caused it. When the driver had seen a truck coming from the opposite
direction with full-bloom light, he should have controlled the speed of his
vehicle and should have kept his vehicle standstill by the side of the road,
as it was well in his knowledge that his truck was loaded with coal.

In Gulaba Ram v. Divisional Forest Officer, Bilaspur, H.P.236 case, a

jeep driven at fast speed fell into a khud and a passenger sustained injuries.
The defence was that the accident was due to failure of breaks. There was
no mention in the F.I.R. that the accident was caused due to failure of
breaks. There was no evidence to discharge the burden that the respondent
had taken all reasonable care in the maintenance of the vehicle and its break
system and that the vehicle was subjected to periodical checks and it was in
a road worthy condition. The tribunal was reversed in appeal, and held that
the principle of res ipsa loquitur is applicable and accident was caused due
to the rash and negligent driving of the jeep.

In Farida and others v. Abid and others237 case, a passenger traveling in

a trolley hooked to tractor fell down when the trolley jumped and the wheel
of the trolley past over his stomach resulting in his death. Defence was that
the deceased was sitting at the edge on front panel of the trolley and when
the trolley jumped, he lost his balance and fell down and he was himself
responsible for the accident. No evidence was shown that the driver drove
the vehicle negligently and rashly. Tribunal held that the principle of res
ipsa loquitur did not apply to the facts of the case as musk-melon and other
articles did not fall out from the trolley as a result of jump of the trolley and

236
Gulaba Ram v. Divisional Forest Officer, Bilaspur, H.P., 1991 A.C.J. 493, H.P.
237
Farida and others v. Abid and others, 1997 A.C.J. 322, Raj.
 246

deceased lost balance on account of his own negligence. \Appeal Court

upheld the findings of the Tribunal.

In Asa Singh and others v. State of Himachal Pradesh and

another238case, a jeep carrying a passenger met with an accident at a place
nearly four miles from the starting point. It was averted that the driver of
the jeep drove the jeep negligently as a result of which the front wheel of
the jeep collided with the hillock and the rear wheel went out of the road.
The driver lost control over the vehicle and the jeep ultimately rolled down
some 500 feet and fell into a nallah. The deceased passenger died on the
spot. The driver of the jeep was also injured even through the driver of the
jeep was stated to be alive, he was not produced as a witness to show that
the accident did not take place due to his negligence. It was held that the
defendants were liable for the negligence. State of Punjab v. H.L. Kochar
and another239 and Barkway’s Case240 and also Krishna Bus Service
Ltd.241 were relied on.

V. Narayana Reddy v. Syad Azgar Bareed242 is a case where the plaintiff

was traveling in a bus along with the passengers. The bus went off the road
300 feet away on the right side of the road as a result of which it fell into a
ditch, thereby caused injuries to the plaintiff and to the other passengers.
Plaintiff suffered facture of the right femur ultimately causing him the loss
of his right leg. The bus was owned by first defendant and driven by second
defendant (driver).

The High Court of Kerala observed that res ipsa loquitur applies in this
case. The second defendant had filed a written statement taking the stand

238
Asa Singh and others v. State of Himachal Pradesh and another, 1981 A.C.J. 313 H.P.
239
State of Punjab v. H.L. Kochar and another, 1980 A.C.J. 427 Punj.
240
Barkway v. South Wales Transport Co. Ltd., (1941) 3 All. E.R. 322.
241
Krishna Bus Service Ltd. v. Mangli and Others, 1976 A.C.J. 184 S.C.
242
V. Narayana Reddy v. Syad Azgar Bareed, 1981 A.C.J. 307 Kar.
 247

that he lost control of the vehicle because the steering did not work. He
died during the pendency of the proceeding, and so had no opportunity to
substantiate his stand. But that cannot be held to have prevented the
plaintiff from bringing a suit against the defendant for vicarious liability.
The defendant had not discharged the burden shifted on to him and so was
held liable for negligence. Cases referred in support of this decision were
Syad Akabar v. State of Karnataka243 and Gobald Motor Service Ltd.
v. R.M.K. Velusami.244

State of Punjab v. Harbhajun Lai Kochhas and others245is a case where

a passenger bus belonging to state of Punjab left the last stop and traveled a
distance of about 200 meters, the bus went off the road rolled down into the
khad. Some of the passengers had died while some received injuries. It was
averted that the accident tool place due to rash and negligent driving of the
driver defendant. The passengers found that the driver driving the bus in an
irresponsible manner and warned him twice for that. The driver was in the
habit of suddenly applying the brakes and giving a great jolt to all the
passengers. The driver overtook some staionary vehicle near the place of
the accident and while he did do lost control of the bus because of its speed,
with the result that the bus went off the road and rolled down the khad. The
driver could not control the bus and for that reason it rolled down
immediately. There was no evidence on record to show that at the time of
the accident the steering got jammed. The bus must have been inspected
mechanically by the experts after the accident. That evidence was available
to the experts after the accident. That evidence was available to the
defendant owner. But it was not produced. The condition of the bus about
its road-worthiness was within the special knowledge of the defendants and

243
Syad Akabar v. State of Karnataka, (1980) A.C.J. 38, S.C.
244
Gobald Motor Service Ltd. v. R.M.K. Velusami, A.I.R. (1962) S.C. 1.
245
State of Punjab v. Harbhajun Lai Kochhas and others, 1980 A.C.J. 437 H.P.
 248

it was for them to prove that there was some latent defect in the bus which
resulted in the alleged jamming of the steering system.

The High Court of Himachal Pradesh held that the facts as described no
doubt prove that the maxim of res ipsa loquitur is applicable in the
circumstances of the present case. The court found that the bus had no
latent defect, it should not have gone off the road and rolled down the khad
but for the negligence on the part of the defendant driver. Hence defendants
were held liable. The cases referred in support were Barkway v. South
Wales Transport Co. Ltd.,246 Krishna Bus Service Ltd. v. Mangli and
Others,247 Minu B Mehta v. Balakrishna Ramachandra Nayar and
another,248 Syad Akbar v. State of Karnataka.249

(e) Passengers Falling Down While Boarding/Sitting on the Vehicle

In Gousipala Manemma v. Andhra Pradesh State Road Transport

Corporation and another250 case, the driver accelerated speed of the bus
without caring to see that all the passengers had boarded the bus safely and
a passenger who was boarding the bus was thrown out and sustained fatal
injuries. The driver, despite shouting by other passengers, did not stop the
bus. A friend of the deceased who was travelling with him corroborated the
claimant’s version. The F.I.R. did not contain the number of the bus and the
name of the driver and it shows that the deceased fell down from the bus
while boarding due to accidental slip. The Tribunal did not believe the
evidence of the claimant’s witness on the ground that he was a friend of the
deceased. The driver who was the best witness to explain the circumstances

246
Barkway v. South Wales Transport Co. Ltd., (1941) 3 All E.R. 322.
247
Krishna Bus Service Ltd. v. Mangli and Others, 1976 A.C.J. 183 S.C.
248
Minu B Mehta v. Balakrishna Ramachandra Nayar and another, 1976 A.C.J. 118 S.C.
249
Syad Akbar v. State of Karnataka, 1980 A.C.J. 38 S.C.
250
Gousipala Manemma v. Andhra Pradesh State Road Transport Corporation and another, 2001
A.C.J. 901, A.P.
 249

of the accident was not examined. The tribunal held that there was no
negligence of the bus driver. The Appellate Court applied the doctrine of
res ipsa loquitur and observed that once the accident was proved by the
claimant, it was for the corporation to prove that there was no negligence of
the bus driver. Therefore the Appellate Court reversed the finding and held
that bus driver was rash and negligent in causing the accident.

In Geeta Bai and others v. Ram Singh and others251case, the driver of a
tractor took a sudden turn without reducing speed and a labourer sitting on
the tractor was thrown on the ground and was crushed under the wheel of
the trolley. An eyewitness who was travelling on the same vehicle
corroborated claimant’s version. The Tribunal held that claimants failed to
establish rash and negligent driving of the tractor driver and dismissed the
claim application. Appellate Court observed that taking a sudden turn at the
same speed shows rash and negligent driving and even otherwise principle
of res ipsa loquitur is applicable. The Tribunal’s finding was reversed.
Appeal Court held that tractor driver caused the accident due to his rash and
negligent driving.

In a case Babu Singh v. Champa Devi and others252 the deceased was
going on his cart. A truck came from behind and smashed the buffalo cart,
with the result that the deceased and the buffalo died on the spot and the
cart was badly damaged.

The cart was going on the left of the road in the same direction, and the
road was 12 feet wide. There was no justification for the truck to collide
with the cart if the driver was vigilant enough. The extent of damage done
was also relevant and material to assess the speed of the truck 20 or 25

251
Geeta Bai and others v. Ram Singh and others, 1998 A.C.J. 1231 M.P.
252
Babu Singh v. Champa Devi and others, 1974 A.C.J. 168 Mad.
 250

kilometers per hour on a clear road may not be excessive speed, but it will
be a negligent speed at a place where there the road is narrow. The court
considered the views expressed in Anchor Products Ltd. v. Hedge253 and
the evidence on record and inferred that res ipsa loquitur applied in this
case to show negligence of the truck driver.

The defendant stated later that a bus was intervening between the cart and
his truck with the result that the truck driver could not see the cart. But the
court disbelieved this story, since there is no proper supporting evidence.
Hence the court was in full agreement with the finding of the tribunal that
the accident was the result of the negligence act of the truck driver.

It is the duty of the driver and the conductor to see that passengers do not
fall and get injured. The above accident is a clear case of negligence and the
principle of res ipsa loquitur applied.

(f) Motor Cycle/Scooter Accident Involving Pillion Riders

In S.K. Bhatia and another v. Jaspal Singh Mann and another254case, a

motor cycle going a fast speed skidded and the pillion rider (second person
sitting on a motor cycle) sustained fatal injuries. The doctrine of res ipsa
loquitur was applicable and the motor-cyclist was negligent in causing the
accident since it is not a case of collusion between two vehicles.

Bhawani Singh, J. observed,

“It is in evidence that the motor cycle was lying in the middle of the road
where the accident had taken place. The road was not wet and it is difficult
to believe the story set up by Respondents No. 1 that the deceased might
have lost balance and fallen down the seat. It is not a case of collision

253
Anchor Products Ltd. v. Hedge, 1969 A.C.J. 117, H.C. of Australia.
254
S.K. Bhatia and another v. Jaspal Singh Mann and another, 1990 A.C.J. 13, H.P.
 251

between two vehicles and is a case where the maxim res ipsa loquitur is
applicable and it can be said that in view of the evidence on record as to the
fast speed of the vehicle and nature of the road, the accident took place
because of the negligent driving by respondent No. 1 and the deceased died
as a result of the injuries sustained by him due to the accident”.255

In Tilak Singh v. Shahi Bijulwan and Others256case, a scooter skidded

and fell in a nalla resulting in the death of pillion rider. The defence was
that the scooter skidded due to bajri lying on the road. The scooterist
admitted to having seen the bajri but continued to drive at the same speed.
Skidding of the vehicle across the 20 feet wide road indicates that the
vehicle was being driven at fast speed and the scooterist failed to take
necessary precautions while driving. Tribunal applied the doctrine of res
ipsa loquitur and held that accident occurred due to rash and negligent
driving of the scooter. The tribunal’s finding was upheld in appeal.

R.L.Khurana, J. observed,

“It appears that in spite of having seen the bajri, the appellant continued
driving at the same aped, and as a result the scooter skidded from the left
side of the road to the right side and after having gone off the road had
fallen into a nalla shows that the scooter was being driven at a very high
speed. The appellant, therefore, failed to take the necessary precautions
expected of him while driving the scooter. The learned Tribunal by
applying the principle of res ipsa loquitur, has rightly held that the accident
had taken place due to rash and negligent driving on the part of the
appellant”.257

255
Ibid, at 16.
256
Tilak Singh v. Shahi Bijulwan and Others, 1999 A.C.J. 661, H.P.
257
Ibid. at 663.
 252

These two are the cases in which the accidents were caused due to fast
speed of the vehicles and skid causing death of one pillion rider and fatal
injuries to another pillion rider. In both the cases principle of res ipsa
loquitur was applied.

(g) Parking Vehicles on Public Places Leaving the Key

In Venkatachalam v. Sundarambal Ammal and another258 case, the

driver parked the bus in the bus stand. The driver and the conductor left the
bus unattended with the ignition key in the bus. A third person drove the
bus out of the stand and dashed against a shop causing damage to the
building shutter, cycles etc. The owner of the bus contended that the third
person was not connected with him, he was not authorized and there was no
relation of master and servant between the owner and the third person.

It was held that the owner of the bus is liable for the damages because the
driver was negligent and he did not take due precaution in taking away the
ignition key so as to rule out the possibility of somebody meddling with the
bus and as such the owner was vicariously liable for the damages. The
doctrine of res ipsa loquitur was applicable.

Ratnam Justice held that ordinarily, when a vehicle is parked and the driver
is desirous of going away the place where the vehicle is so parked, certain
elementary precautions have to be taken to see to it that the vehicle is
stationed in such a manner that nobody can attempt to move or drive the
vehicle from the place where it is parked. In this case it clearly indicates
that R.W.2 the driver of the vehicle did not take all the necessary
precautions for parking the bus in such a manner as to rule out the
possibility of somebody meddling with the bus during his absence and

258
Venkatachalam v. Sundarambal Ammal and another, 1983 A.C.J. 513, Mad.
 253

thereby causing an accident. The driver of the bus R.W.2 in this case, has
facilitated and assisted the occurring of the accident by leaving the key in
the vehicle itself. The negligence of the driver in having so left the key in
the vehicle was the primary cause of the accident. The driver while leaving
the bus had taken care to remove the starting key and had also taken other
precautions to ensure that the vehicle could not be moved during his
absence then different considerations may arise. But such is not the case
here.

The leaving of the ignition key by the driver had facilitated the person who
drove the vehicle at the time of the accident, to start the vehicle and also
drive the same. The accident could have been averted or avoided if the
driver had not left the ignition key in the bus. In other words this would be
a cause to which the principle of res ipsa loquitur would apply. The
accident in this case had taken place only on account of the key of the bus
having been left in the bus when the bus was not attended to either by the
driver or by the conductor. Under those circumstances the appellant as the
owner of the vehicle would undoubtedly be liable for the accident that had
been caused by the negligence of his own servant R.W.2. In this view, it is
really unnecessary to deal with or examine whether the person who drove
the bus was a broker, he was a broker or not and whether even if he was not
such a broker, he was one who had been authorized by the driver to drive
the bus or not and whether on that basis the appellant could avoid his
liability.259

In Dwarka Prasad Jhunjhunwala and another v. Shushila Devi and

Others260 case, the driver parked the car leaving the key in it by mistake. A
third person stated the car and caused the accident. It was held that the

259
Ibid. at 516.
260
Dwarka Prasad Jhunjhunwala and another v. Shushila Devi and Others, 1983 A.C.J. 570, Pat.
 254

owner of car is held that the owner f car is held liable for the negligent act
of his driver the principle of res ipsa loquitur is applied.

Harilal Agrawal, J. observed:

“two witnesses were examined on behalf of the appellant. It is not

necessary to advert to their evidence on the record as the learned counsel
for both the parties did not challenge any of the finding recorded by the
learned District Judge. He accepted the case of the appellants regarding the
manner of occurrence,, namely, that the car was started by some unknown
person unnoticed by anybody, and in course of the movement of the car, it
knocked the deceased against a wall resulting in his death as already said
earlier. By applying the rule of res ipsa loquitur the learned judge has
rightly put the burden of proof on the appellants. On the facts of the present
case is obvious that here the driver had not permitted anybody to drive the
vehicle. He might not even be expecting such an eventuality, but none-the-
less, his omission in not taking the precaution just mentioned above would
be a negligent act”.261

These above two cases very clearly show that the principle res ipsa loquitur
is applied. Leaving the key in the parked vehicle itself gives scope for
others to handle the vehicles. Which itself is negligence. Also while
parking the vehicle on a slope one has to take more case to see that the
vehicle does not slide.

(h) Motor Vehicles Dashing Against Trees

In Hindustan Aeronatics v. T. Venu and another,262 the plaintiff boarded

a bus belonging to Hindustan Aeronautics Ltd. when it approached a

261
Ibid. at 572.
262
Hindustan Aeronatics v. T. Venu and another, 1972 A.C.J. 266, Mys.
 255

particular spot, its right wheel went over the pit about 1 ½ feet in diameter
which was on the right, there was a jerk, and suddenly took a turn towards
right and hit a tree at a distance of nearly 25 ft. which gave way and there
after it dashed against another tree. The plaintiff who was sitting near the
windscreen on the left side of the driver sustained a compound fracture. The
axle centre bolt was cut. Steering turned towards right. This was the reason
given by the driver. He admitted that he was driving the bus on that road
even prior to the accident; he saw the pit even on his earlier trips and used
to slow down. He stated that through he applied brakes, the bus did not
stop. It dragged till it hit the tree. He did not specify at what speed he was
driving at that time.

Evidence showed that the driver had not slowed down the bus nor
attempted to do so when the bus was approaching the pit. There was also
evidence of the S.I. that the bus swerved to the right because the driver
wanted to avoid collision with another bus which was destructive of the
theory of the breakage of the bolt, put in defence. There was no report
about the regular inspection or maintenance of the vehicle.

The court held that the evidence is sufficient to infer rash and negligence
driving. The maxim res ipsa loquitur was attracted. The burden on the
defendant did not discharge to the satisfaction of the court.

Sardar Mohan singh Bedi v. Mano Maya is a case263, where plaintiff

claimed compensation for the death of her husband in a motor vehicle
accident. The owner of the motor vehicle caused the accident. The deceased
was traveling at the time of the accident in the truck. According to plaintiff
the accident occurred due to rash and negligent driving by the defendant
owner. The defendant’s plea was that the accident was not due to rash and

263
Sardar Mohan Singh Bedi v. Mano Maya, 1972 A.C.J. 174, Patna.
 256

negligent driving. It was also contended that there was no direct evidence
proving that the truck was being driven rashly and negligently. The
evidence in this case disclosed that the driver hit an electric pole and then
against a tree which was there on the left flank on the road.

As a result of the impact the electric pole was damaged and the tree was
uprooted. Both the front wheels were pulled out and thrown behind the
truck. The injuries on the deceased are clear indication of the great impact
which was the result of the accident. It was not disputed that the engine of
the truck was very badly damaged. From all these facts and circumstances,
the Court came to the conclusion that the truck in question was being
driven rashly and negligently at the time of the accident. These
circumstances speak for themselves and in the absence of any satisfactory
explanation by the defendant regarding the accident, affirmed the decision
of the tribunal.

In Bhagwat Singh and another v. Ram Pyari Bai and others264case, the
deceased was found dead with his cycle lying near his body and the truck
was lying in a damaged condition after having dashed against a road side
tree. In such a situation the doctrine of res ipsa loquitur could be
appropriately applied. In this case the driver remained ex-parte and the
defendants failed to prove that the accident did not take place due to
negligence of the driver. The Tribunal was justified in holding that the
accident took place because of negligence of the driver of the truck.

In Maya Devi v. Kartav Bus Service Ltd. and Others265case, the bus was
driven at a fast speed and while overtaking a truck, the driver suddenly
noticed another bus coming from the opposite direction. The driver, while

264
Bhagwat Singh and another v. Ram Pyari Bai and others, 1991 A.C.J. 1115, M.P.
265
Maya Devi v. Kartav Bus Service Ltd. and Others, 1987 A.C.J. 145, P & H.
 257

giving way to the other bus, lost control and hit into a tree resulting in the
death of one of its passengers. The respondent’s contention that stub-axle
and tie-rod of the bus broke while going over a slight bump on the road and
the driver lost control of the bus did not find mention in the written
statement. It would appear that if at all the stub axle had broken it was by
the bus hitting against the tree.

S. S. Sodhi J Observed:

“There is clearly no warrant to attribute the present accident to any latent

defect which could spare the bus driver from blame for the accident.
Indeed, the manner in which the accident occurred clearly attracted the
maxim res ipsa loquitur. The testimony of the claimant’s witness in fact
clearly established that the accident here occurred entirely due to the rash
and negligent driving of the bus driver. The finding on the issue of
negligence to the contrary, as recorded by the Tribunal cannot, therefore, be
sustained”.

In State of Orissa and another v. Nalini Kumari Patnaik and

others266case, a jeep, while negotiating a U turn dashed against a tree and
then over turned and then moved away a distance of 150 feet from the road.
Its passenger’s were thrown off resulting in the death of one passenger and
injuries to others. The doctrine of res ipsa loquitur was attracted; and the
presumption was that the vehicle was being driven rashly and negligently
causing the accident. “Neither the driver, who was driving the vehicle, nor
any other person was examined to say how in fact the accident took place.
The Tribunal was, therefore, right in drawing presumption of negligence
from the manifest circumstances of the case”.267

266
State of Orissa and another v. Nalini Kumari Patnaik and others, 1989 A.C.J. 126, Ori.
267
Ibid. at 127.
 258

In Sumati Debinath v. Sunil Kumar Sen and another268, a mini bus

being driven at fast speed went off the road, dashed against a tree and
overturned. A passenger in the bus sustained fatal injuries. The court
observed that the driver was not vigilant to see it there was any impediment
on the way and held that the accident occurred on account of rah and
negligent driving on the part of the driver. “Where the vehicles did not go
in the usual manner, went off the road and dashed against a tree, then the
principle of res ipsa loquitur is applicable and the burden of proof shifts on
to the other party”.269

(i) Accident Due to Explosion of Tankers/Fire in Motor Vehicles

Oriental Fire and General insurance Co. Ltd. v. Suman Navnath

Rajguru and Others270 is a case of accident caused by or arising out of use
of vehicle in a public place. The deceased was walking along the road when
an oil tanker parked near the footpath, exploded. The deceased was
seriously injured and succumbed to injuries later. The insurance company
contended that it was not liable as the vehicle was not in state of
locomotion. It was held that the injury arose out of use of vehicle and
owner and insurer held liable. An Oil tanker normally does not have
tendency to burst into flames and if such a situation occurs under the
principle of res ipsa loquitur, the owner of the vehicle will prima facie be
guilty of negligence:

It is observed by Vaze, Judge that there is no force in this contention of the

learned counsel for the insurance company, because according to the
evidence of Barikoo Rajguru a nephew of the deceased, who visited the

268
Sumati Debinath v. Sunil Kumar Sen and another, 1994 A.C.J. 734, Gau.
269
Ibid. at 737.
270
Oriental Fire and General insurance Co. Ltd. v. Suman Navnath Rajguru and Others, 1985 A.C.J.
243, Bom.
 259

spot of accident, the green coloured tanker was standing near the footpath
on the road and not in any garage and the dead body of Navnath was found
at a distance of about 10 feet from the tanker.

As regards the question of negligence, it need not be emphasized that the

oil tanker normally does not have tendency to burst into flames and if such
a situation occurs under the principle of res ipsa loquitur, the owner of the
vehicle will prima facie guilty of negligence. The poor and innocent
cobbler who was moving by the side of the parked vehicle on the road had
no reason to suspect that there is any lurking danger in a parked tanker, nor
is there any suggestion of arson by the claimants”.271

In Shyam Sunder and others v. The State of Rajasthan case,272 wife and
children of the deceased who died in the accident were the plaintiffs.

After traveling for 4 miles from the last stop the engine of the truck caught
fire. As soon as the fire was seen the driver cautioned the occupants to
jump out of the truck. Consequently the deceased and other persons jumped
out of the truck. While doing so the deceased struck against the stone lying
by the side of the road and died instantaneously.

The Supreme Court referred, in this case, to the following cases and
authorities, i.e., judgement of Earl C.J. in Scott v. London and St.
Katherine Docks.273 Bollord v. North British Railway Co.,274 Barkway
v. S.Wales Transport Co.,275 Lord Macmillan’s dissenting judgement in
Jones v. Great Western,276and John G. Fleming view277 regarding burden
of proof and the application of res ipsa loquitur.

271
Ibid. at 244.
272
Shyam Sunder and others v. The State of Rajasthan, 1974 A.C.J. 296 S.C.
273
Scott v. London and St. Katherine Docks, (1865) 3 H & C. 598.
274
Bollord v. North British Railway Co., (1925) S.C. 43, H.L.
275
Barkway v. S.Wales Transport Co., (1950) 1 All E.R. 292.
276
Jones v. Great Western, (1930) T.L.R. 47.
 260

After considering the above views, the Supreme Court gave judgement that
the District Judge was correct in inferring negligence on the part of the
driver. Generally speaking, an ordinary road worthy vehicle on the road.
From the evidence it is clear that the radiator was getting heated frequently
and that the driver was pouring water in the radiator every 6 to 7 miles of
the journey. The vehicle took 9 hours to cover the distance of 70 miles. The
fact that normally a motor vehicle would not catch fire if its mechanism is
in order would indicate that there was some defect in it. The district Judge
found on the basis of the evidence of the witness that driver knew about the
defective condition of the truck when he started from the last stop.

It is clear the driver was in the management of the vehicle and the accident
is such that it does not happen in the ordinary course of things. There is no
evidence as to show how the truck caught fire. There was no explanation by
the defendant about it. It was a matter within the exclusive knowledge of
the defendant. It was not possible for the plaintiff to give any evidence as to
the cause of the accident. In these circumstances the maxim res ipsa
loquitur applies. The Supreme Court held the defendant liable.

In these above two cases the principle is applied for their negligence. The
vehicles were not in roadworthy condition. Hence the accident was caused
and people died. It is always dangerous to keep such vehicles on the road
without taking proper care.

(j) Motor Accidents Due to Tyre Burst

In Sewassam Alias Sewan v. Nanhe Khan alias Asgar Begand others278

case, a truck driven at excessive speed turned turtle and a labourer in the

277
John G. Fleming’s “The Law of Torts”, 4th edition, p. 260 & 264.
278
Sewassam Alias Sewan v. Nanhe Khan alias Asgar Begand others, 1987 A.C.J. 354, M.P.
 261

truck sustained injuries. The owner/driver contended that the accident took
place due to tyre burst. Where mechanical defect or tyre burst is pleaded as
cause of accident, then responsibility lies on the owner/driver to discharge
the burden. Absence of reasonable explanation affords presumption that the
accident arose for want of care and the doctrine of res ipsa loquitur applies.
It was held that the driver of the vehicle was responsible for the mishap.

B. M. Lal, J. observed:

“As far as rah and negligent driving of the truck is concerned, from the
perusal of the record, including the evidence of the parties, it appears that
there is sufficient material to reach the conclusion that the truck was driven
at an excessive speed. Although the cleaner of the truck, Barbal stated that
the accident took place due to bursting of the tyre, yet Ghasiram (A.W. 2)
and Sitaram (A.W.3) who went in the truck at the time of the accident have
deposed that due to rash and negligent driving of the truck, the alleged
accident had taken place. In such circumstances where it is pleaded by the
truck owner or the driver that suddenly on account of some mechanical
defect or bursting of the tyre, the accident had taken place, then strict
burden of proof lies on them to discharge their liability and the doctrine of
res ipsa loquitur applies in the cases of motor accidents that where the thing
is shown to be under the control and the management of the respondent
owner of the truck on his servant driver and the accident in such as in the
ordinary course of things does not happen, if those who have the
management, use proper care, it affords reasonable evidence in the absence
of reasonable explanation by the truck owner or his driver that the accident
arose for want of care”.279

279
Ibid. at 356.
 262

In J & K State Road Transport Corporation v. Presiding Officer

M.A.C.T. and others280 case, the tyre had burst and the vehicle swerved to
a side killing a pedestrian. No evidence to show the mileage down by the
tyre and that the tyre was periodically examined, and it was in a roadworthy
condition. It was held the owner was held liable. The doctrine of res ipsa
loquitur is was applicable and the owner failed to show that he had taken
proper care to ensure road worthiness of the vehicle.

Dr. A.S. Anand, Chief Justice observed that there is no evidence brought on
the record by the appellant to show the total mileage done by the tyre which
had burst. No witness has come forth to say on behalf of the appellant
examined by a mechanic with a view to knowing its condition. The solitary
statement of respondent No. 3, driver of the offending vehicle, who stated
that the vehicle had been checked even one day prior to the accident by
some mechanic who had found that the tyre was in a good condition, is not
sufficient to discharge the onus of negativating negligence. The mechanic,
who, according to the deposition of the driver had examined the vehicle and
the tyres of the vehicle one day prior to the accident, was not examined by
the appellant for reasons best known to it. Even his report was not brought
on record, an inference would, therefore, be available to be drawn against
the appellant that, had the mechanic been examined, his evidence would
have gone against the appellant.

In the absence of any evidence led by the appellant to show that it had taken
proper care to ensure the road worthiness of the vehicle which, in the case
of the public utility service, was its paramount duty and obligation and that
the bursting of the tyre took place on account of some latent defect which
was not discovered despite reasonable care and diligence having been

280
J & K State Road Transport Corporation v. Presiding Officer M.A.C.T. and others , 1987 A.C.J.
945, J & K.
 263

taken, there is no escape from the conclusion that the doctrine of res ipsa
loquitur applies and the accident, in the present case, must be attributed to
the negligence of the driver and the owner of the offending vehicle. Issue
No. 1 in my opinion, was, therefore, correctly decided by the learned Motor
Acciden6ts Claims Tribunal in favour of the claimant and against the owner
and driver and I confirm the finding on that issue.281

In the case of Ganga Rama and another v. Kamalabai and others282

defendant driver was driving the taxi in a rash and negligent manner as a
result of which the front right tyre burst and the taxi left the road, went on
its off-side and toppled, as a result of which the two passengers in the taxi
died on the spot. Plaintiffs were related to one of the deceased. The law on
this point was settled when the vehicle which was admitted in control of the
driver, left the road, went on its off side and toppled, without doubt, the
doctrine res ipsa loquitur was attracted. The burden shifts to the defendant.
The defendants alleged that the accident was inevitable. The tyres were
new. The front right wheel tyre burst, as a result of which the driver lost
control over the vehicle. The vehicle turned a somersault.

There was no evidence produced before the tribunal in that behalf.

Normally a new tyre does not burst. The opinion of a layman without
giving any basis that the tyre was a new one cannot be relied upon. Hence
the driver and the owner i.e. defendants failed to discharge the onus placed
on them to establish that they had taken all care and precaution to keep the
tyre roadworthy. Thus the court held that the defendants were liable. Two
decided cases were considered in support of this decision Gobalad Motor

281
Ibid. at 947.
282
Ganga Rama and another v. Kamalabai and others, 1979 A.C.J. 393 Kar.
 264

Service Ltd., v. R.M.K. Veluswamy283 and Barkway v. South Wales

Transport Co.284

In Iswari Yatayat Cooperative Society Ltd. And another v. Umroo

Singh case,285 the plaintiff was sitting on the seat above the mudguard of a
bus. When the tyre of the bus got burst, an iron sheet of the mudguard came
up and injured him. The Judge expressed his opinion that in this case the
doctrine of res ipsa loquitur was attracted. Normally when the tyre burst,
that by itself does not ordinarily result in flying of the metal sheet of the
body of the bus.

The defendant driver gave different versions about the cause of the accident
that it was due to the piercing of the metal sheet of the bus. He also said,
changing his version, that the tyre burst was due to the crushing of a
horseshoe under the wheel. The defendant’s conduct showed that he could
not give definite cause for it. The judge held that in the absence of
satisfactory explanation the defendants were held to be negligent and liable
for the consequences.

In Calcutta State Transport Corporation Calcutta v. Kamal Prakash

De case286, the injured person occupied a seat just over the rear left wheel
on the lower dock before the accident. The inner tyre of the said rear left
wheel had a burst, as a result whereof he received bleeding injuries and a
fracture of both the bones of his left leg. The bus was overloaded and the
passengers duly alighted. The defendants said that the accident in question
was an act of God (Vis Major). They contended that the accident could not
be foreseen and that the driver of the bus had no control over the same.

283
Gobalad Motor Service Ltd., v. R.M.K. Veluswamy, A.I.R. (1962) S.C. 1.
284
Barkway v. South Wales Transport Co., (1948) 2 All. E.R. 460.
285
Iswari Yatayat Cooperative Society Ltd. And another v. Umroo Singh, 1976 A.C.J. 318 M.P.
286
Calcutta State Transport Corporation Calcutta v. Kamal Prakash De, 1976 A.C.J. 183 S.C.
 265

The judge expressed his view that the onus of proof was not discharged by
the defendants. It is the duty and the obligation of the owner in a case like
this to prove and establish by reliable evidence that all the necessary
precaution and due care were taken for maintaining and offering proper and
sufficient service to the travelling public. Here the defendants significantly
failed to discharge the said onus and the rule res ipsa loquitur applied. The
defendants were held liable citing the Henderson’s case287 .

The above five accident cases clearly indicate that they were caused due
burst injuring and killing the passengers. The type burst was caused due to
overloading, due to negligent driving and improper maintenance of the
vehicles. The principle of res ipsa loquitur was applied in 100% cases.

(k) Motor Accidents Due to Mechanical Breakdown

In Kartik Ram and another v. Chandra Gopal and others288 case, death
of a person sitting on the mudguard of tractor occurred when the tractor
turned turtle. Defence was that the accident occurred due to breaking of
connecting hooks coupling the trolley with the tractor. No evidence that the
connecting rod and tie-rod were checked before putting tractor-trolley on
road for transporting and found to be in good and roadworthy condition. It
was held that the principle of res ipsa loquitur was applicable and the driver
of tractor-trolley was rash and negligent in causing the accident.
Presumption of negligence has not been rebutted and it was not proved that
there was no want of reasonable care and the vehicle was kept in
roadworthy condition.

S. K. Dubey, Judge held that no evidence has been led by the owner and the
insurer that the connecting rod or its tie-rod was not weak when it was

287
Henderson v. Henry E.Jenkins Sons, 1970 ACJ 198.
288
Kartik Ram and another v. Chandra Gopal and others, 1998 A.C.J. 1118 M.P.
 266

checked before the tractor-trolley was put on road for transporting paddy.
No mechanical expert was also examined that the connecting rod and its
tie-rod were in good and road worthy condition and were able to carry load
in the trolley. In the circumstances, when the accident is admitted and the
defence taken by the owner of the vehicle that it was due to mechanical
breakdown due to latent defect has not been established, even if the
witnesses examined who were travelling in the trolley could not see the
manner and the circumstances in which the accident occurred to remove
hardship to claimants the principle of res ipsa loquitur could be safely
applied, which is a rule of evidence departing from the rule that it is for the
claimants to prove negligence, but in such cases considerable hardship is
caused to claimants as the true cause of the accident is not known to them
but is solely within the knowledge of the person who caused it.

Claimants can prove the accident but cannot prove how it happened to
establish negligence. The present case is that where the accident speaks for
itself. When this principle is applied, the burden shifts upon the owner and
driver to establish that the accident was not caused due to their negligence
which in the case has not been discharged. The presumption of negligence
is not rebutted by the mere fact that there was mechanical breakdown but
the burden was further on them to prove that there was no want of
reasonable care and vehicle was kept in order.289

In Anandi Ravji Vats v. Oriental Insurance and others290a case of

breaking away of universal joint the bus driver, at fast speed, knocked
down a pedestrian girl causing injuries. The driver contended that it was not
the bus which knocked the injured, but the universal joint of the bus
suddenly stripped itself apart and hit her and this was an inevitable accident

289
Ibid. at 1121.
290
Anandi Ravji Vats v. Oriental Insurance and others, 1988 A.C.J. 129, Bom.
 267

as the eventuality could not be foreseen. No evidence to the effect that

vehicle was subjected to rigorous periodical check within reasonable time
before embarking upon the journey and each part was found in perfectly fit
condition and subsequent breaking away of the universal joint could not be
attributed to the initial weak or fault condition.

Coming out of such a part would give rise to the presumption that the
requisite initial care was not taken by the driver or the owner. Respondents
failed to rebut this presumption. Trial court accepted the condition of the
driver and dismissed the insured’s suit. It was held in appeal that failure to
take care constitutes negligence and owner and driver are liable; owner’s
liability is not only vicarious for the negligence of the driver, but he is
himself negligent in not keeping the vehicle in a roadworthy condition.

In Jai Singh v. Gashwal Motor Owners and Others,291case plaintiff filed

a suit for recovery of damages arising from personal injury caused to him
by motor accident. It was caused due to breaking down of spindle of front
wheel of the bus. It was held that burden lay on the owner to prove that he
took all the necessary care and caution, but even then accident could not be
prevented. The maxim res ipsa loquitur was applicable.

D.Nandan, J observed:

“The motor bus was undoubtedly under the management of the defendants
and spindles of motor buses do not in ordinary course of things break down
unless of course the case is of negligence in running the bus. It follows that
the fact that the accident was caused by the breaking down of the spindle
speaks for itself and shows that the defendants must have been negligent

291
Jai Singh v. Gashwal Motor Owners and Others, 1983 A.C.J. 397, All.
 268

and defendants can rebut that inference only showing that they used all the
necessary care and caution and that the accident could not be prevented in
spite of the same.”292

In State of Rajasthan and others v. Lakshmi Sharma and others293 case,

a jeep skidded, over turned and fell in a deep ditch resulting in death of a
passenger. The defence was that the accident occurred due to the breaking
of tie-rod. It was neither pleaded nor proved that the jeep was regularly
maintained in a roadworthy condition by all necessary care and precautions
having been taken. No evidence was provided that the vehicle was checked
before the commencement of the journey. It was held that the principle of
res ipsa loquitur was applicable and the driver was rash and negligent in
causing the accident.

In State of Madhya Pradesh through Collector, Jhabua and another v.

Ashadevi and others,294case, the driver lost control of the police vehicle
and it dashed against a culvert and turned turtle. Several constables
travelling in the vehicle died and many sustained injuries. The driver
contended that he saw some cows and buffaloes on the road after the
culvert and applied the brakes, but found that the brakes were not working.
Eye-witnesses deposed that the vehicle was being driven at an excessive
speed and there was no effective cross-examination of the eye-witnesses.
Opposite parties neither pleaded mechanical breakdown nor led evidence of
any mechanical expert and about day to day maintenance of the vehicle.
Inspection report of the mechanical expert after the accident was not
produced. Tribunal found that the accident occurred due to sudden failure
to brake and driver was not negligent. Appellate court by applying the

292
Ibid . at 405.
293
State of Rajasthan and others v. Lakshmi Sharma and others, 1992 A.C.J. 895, Raj.
294
State of Madhya Pradesh through Collector, Jhabua and another v. Ashadevi and others, 1988
A.C.J. 846, M.P.
 269

principle of res ipsa loquitur reversed the finding and held that accident was
caused due to rash and negligent driving of the vehicle.

S.K. Dubey, J observed that after a careful consideration of the pleadings of

the parties and the evidence on record, we are of the opinion that the
Tribunal erred in accepting the defence of the failure of brakes on the bare
statement of the driver. It is also settled that the tribunal, while deciding
cases of motor accidents is as much bound by the pleadings of the parties as
the civil court, through pleadings in cases of claimants are liberally
constructed. No amount of evidence can be looked into without the
pleadings and issues. The plea of mechanical breakdown, sudden failure of
brakes or the latent defect or of inevitable accident, is a special plea within
the knowledge of the driver and the owner and it should be specifically
pleaded, issue should be raised and that such plea should be proved by
cogent and legal evidence that reasonable care in inspection and
maintenance of the vehicle was properly taken, it was regularly checked
and was checked on the ill-fated day of the accident and the vehicle was
found in order, but, even after exercising due attention and care the accident
could not be avoided and occurred due to the latent defect or a sudden
failure of the brakes.295

In Perumal & others v. G. Ellesamy and another,296 the deceased was

actually standing on the steps of a tea stall of the pedestrian pavement,
facing the stall which was on the left side of the road. He was taking tea. It
was then that a lorry swerved to the extreme left, jumped over the pavement
and crashed into the tea stall, in the process of which deceased was caught
between the lorry and the tea stall and was crushed to death. Another
person was also injured in the accident. The front part of the tea stall and

295
Ibid. at 852.
296
Perumal & others v. G. Ellesamy and another ,1974 A.C.J. 182,Mad.
 270

southern walls were found badly damaged. The driver of the lorry said that
two bullock carts were going on his right side. He overtook the two carts
and then wanted to bring the lorry to the centre of the road, then the
steering began to wobble and turned left and could not be brought to the
normal position and that when he applied the brakes they failed and
therefore the vehicle got over the platform on the extreme left side and
crashed into the tea stall and then came to a stop. The left front wheel was
found detached and lying on the left side of the lorry. It was found that the
brakes of the vehicle were efficient.

Under such circumstances the doctrine res ipsa loquitur came into play. The
mere fact of the accident is prima facie evidence of negligence. Then the
burden of proof is on the defendant to explain and to show that it occurred
without fault.

There was no evidence as to whether the sub nuts broke or slipped and why
the left front wheel came off. If it was due to mechanical defect, there was
no evidence that the defendants took all reasonable care to maintain the
vehicle in proper condition to avoid such defect. The defendants had not
discharged the burden of rebutting the presumption arising from the
doctrine res ipsa loquitur. The Court referred to the views of the Bingham,
“Motor Claims Cases”297 and R v. Spuuge298 in support of the decision.

In Ram Dulare Shukla v. Madhya Pradesh State Road Transport

Corporation and others299, the plaintiff was a passenger in a bus owned
by the defendant. The bus suddenly swerved to the right, jumped over a
nallah and crashed into a road side tree. As a result of the accident, plaintiff

297
Bingham, “Motor Claims Cases” (6th edition), p. 183.
298
R v. Spuuge, (1961) 2 All. E.R. 688.
299
Ram Dulare Shukla v. Madhya Pradesh State Road Transport Corporation and others, 1970
A.C.J. 120 M.P.
 271

received severe injuries. He alleged that it was due to the negligence of the
driver in driving the bus at an excessive speed. But the defendant
Corporation denied the allegations and gave an explanation saying that the
shackle pin had fallen down as a result of which the bus went out of his
control. This was an unforeseen event and, therefore, an act of God for
which no liability could be imposed.

The plaintiffs said that the shackle pin was dislodged due to the violence of
the impact on the tree which had the effect of shattering the bolts in the
locking device fastening it. This was not proved by him. Withholding of
such material evidence clearly justifies an adverse inference against the
plaintiff. In the Court’s opinion, the contributory cause of the accident was
a latent defect in the vehicle brought about by the slipping of the shackle-
pin or the right front wheel. But not any negligence on the part of the driver
in driving the bus at uncontrollable speed. The plea of res ipsa loquitur by
the plaintiff was rejected in this case by the court.

(l) Motor Vehicles Turned Turtle

In Busthi Kasim Sahab (Dead) LR’s v. Mysore State Road Transport

Corporation and others300case, the bus was driven at fast speed while
crossing a bullock cart which was stationary on the left flank of the road,
went on to the kacha flank on the right side, its wheel sank in the soil and
the vehicle toppled on its right side resulting in injuries to a passenger. It
was raining and in rainy season the unmetaled portion of the road used to
be rendered slushy and muddy and the driver who had been serving on the
route for many months ought to be aware of it. The driver admitted that he
continued to drive the vehicle in the third gear even at the time of accident.

300
Busthi Kasim Sahab (Dead) LR’s v. Mysore State Road Transport Corporation and others, 1991
A.C.J. 380, S.C.
 272

The High Court set aside the finding and dismissed the claim. The Supreme
Court held that doctrine of res ipsa loquitur is applicable and it was for the
driver to explain the accident but the defence failed to produce any
evidence to support that there was no negligence on the part of the bus
driver and upheld the finding of the Tribunal.

Sharme J. observed, that the evidence in the case indicates that there was no
traffic on the road at the time of the accident. No untoward incident took
place like sudden failure of the brakes or unexpected stray cattle coming in
front of the bus and still the vehicle got into trouble. In the absence of any
unexpected development it was for the driver to have explained how this
happened and there is no such explanation forth coming. In such a situation
the principle of res ipsa loquitur applies.

The petitioner, in the circumstances, could not have proved the actual cause
of the accident, and on the face of it, it was so improbable that such an
accident could have happened without the negligence of the driver, that the
court should presume such negligence without further evidence. The burden
of such situation is on the defendant to show that the driver was not
negligent and that the accident might, more probably have happened in a
manner which did not connote negligence on his part, but the defence has
failed to produce any evidence to support such a possibility. We therefore,
agree with the finding of the trial court on this issue and set aside the
judgement of the High Court.301

In G.M. Orissa State Road Transport Corporation v. Maheshwar Rout

and others302 case, a bus went off the national highway and rolled over
twice. As a result, the deceased was thrown out and died on the spot. It was

301
Ibid. at 382.
302
G.M. Orissa State Road Transport Corporation v. Maheshwar Rout and others, 1983 A.C.J. 124
Ori.
 273

held that presumptive evidence of rash and negligent driving and doctrine
of res ipsa loquitur was applicable.

R.C. Patnaik, J. observed, that having regard to the facts and circumstances,
the application of the principle res ipsa loquitur is applicable. The fact that
the vehicle while moving on a national highway went off the road and
rolled over twice in presumptive evidence of rash and negligent driving.
The burden was on the owner to establish that there was no rashness and
negligence. But no material was placed by the owner before the tribunal by
way of examining witnesses of proving documents to substantiate the plea
taken in the written statement. The finding of the Tribunal on the question
of rashness and negligence cannot, therefore, be faulted.303

In Rajasthan State Road Transport Corporation, Jaipur v. Narain

Shankar and others,304many passengers lost their limbs while travelling in
a bus belonging to the nationalized transport system of Rajasthan State
Corporation, which was involved in an accident. The Supreme Court
observed that the principle was rightly invoked by the tribunal in view of
nature of accident and surrounding circumstances. A flimsy plea was put
forward by the defendant to escape liability for compensation that the lights
of the bus accidentally failed and therefore the unfortunate episode
occurred. No reasonable proof was put forward to discharge their burden
that they were not negligent. The Supreme Court held that the nature of the
accident and the surrounding circumstances are such that the doctrine res
ipsa loquitur was rightly invoked by the court below.

303
Ibid. at 125.
304
Rajasthan State Road Transport Corporation, Jaipur v. Narain Shankar and others, 1980 A.C.J.
411, S.C.
 274

In M/s Automobile Transport (Rajasthan) Private Ltd., and another v.

Dewalal and others305 a tree was fallen on the road. Other vehicles passed
on the right side, which alone provided sufficient space for the vehicle to
pass. There was no sufficient space on the left side of the road. But the
defendant driver drove the vehicle rashly and negligently on the left side of
the tree, in spite of the protests of the occupants. The vehicle crashed into a
side wall which gave way and the vehicle then over turned and fell down.
The left side rule applies only when the road is clear. In this case the road
was blocked. The vehicle had to pass through the space that was available.
When other vehicles successfully negotiated on the right side of the road,
there was hardly any ground for the driver to defend himself. It was a case
of mere error of judgment. Therefore, the High Court affirmed the findings
of the tribunal that the accident occurred on account of the negligent action
on the part of the defendant driver. The Judge mentioned two cases in
support of his judgment one Gobald Motor Service306 and the other Sushila
Devi v. Ibrahim307.

In the case of Krishana Bus Service Ltd., v. Smt. Mangli and

another308the bus was overloaded with goods and passengers. It was
drizzling the road was wet and slippery. The tie rod of the bus was not
found broken but only ‘opened’ (dismantled), when it was examined by the
expert motor mechanic on the day following the accident. At the time of the
accident the bus was negotiating a turn and passing through the habitation
of a village. Immediately before the accident the bus was making zig-zag
movement and was being driven at a fast speed despite the protests and
shouts of the passengers asking the driver to slow down. The speed of the

305
M/s Automobile Transport (Rajasthan) Private Ltd., and another v. Dewalal and others, 1977
A.C.J. 150, Raj.
306
Gobald Motor Services Ltd. v. R.M.K.Veluswami,, A.I.R. (1962) S.C.1.
307
Sushila Devi v. Ibrahim , 1974 A.C.J. 150.
308
Krishana Bus Service Ltd., v. Smt. Mangli and another, 1976 A.C.J. 183 S.C.
 275

bus at the material time was about 30 miles per hour. The bus overturned as
a result of which the deceased who was the relative of the plaintiffs, died on
the spot and other passengers received injuries.

The driver who knew best the relevant facts, did not appear in the witness
stand to explain the circumstances in which the accident occurred.

The facts mentioned by the High Court were taken into consideration and
the judgement was affirmed by the Supreme Court saying that in the
peculiar circumstances a duty was cast on the driver to go dead slow. The
speed 30 miles per hour in the conditions and in the situation, at the turn of
the road was imprudently excessive. Had the bus been properly maintained
in a sound road worthy conditions, and used with due care and driven with
due caution, the tie road should not have broken loose by the fall of the
wheel in the pit, hardly six inches deep, particularly when the upward thrust
of the water in the pit had largely absorbed the shock of the fall. The pit
was in Kacha flank and not right in the metalled portion. The driver could
have with ordinary care and diligence avoided it. Thus the breaking of the
tie-rod assuming it did break was at best a neutral circumstance.

At rightly pointed out by the High Court, buses in a sound roadworthy

condition driven with ordinary care do not normally over turn. It would be
in the driver who had special knowledge of the relevant facts to explain
why the vehicle overturned. The maxim res ipsa loquitur would be attracted
to such a case. Defendant’s company and the driver failed to rebut the
presumption of negligence that arose from the manifold circumstance of the
case. The referred cases in favour of the judgement are Barkway309 case
and Laurie v. Regian Building Co., Ltd.,310

309
Barkway v. South Wales Transport Co. Ltd. (1948) All E.R. 460.
310
Laurie v. Regian Building Co., Ltd., (1941) 3 All E.R. 332.
 276

In General Assurance Society Limited v. Jayalakahmi Ammalj Case311,

the driver of the lorry, belonging to the third defendant, was driving the
lorry. The deceased was also travelling i9n the lorry, as an employee under
him. The lorry was proceeding at a fast speed and at that time a car came
from the opposite side and the lorry after crossing the car moved on to a
cement road. Then the lorry, taking a curve at a particular point, skidded
and since the front left wheel moved into a pit of mud the lorry capsized
and overturned. It cannot be said that this accident was due to vis major. No
doubt there were heavy rains. The facts certainly show that the driver did
not have control over the vehicle at that time and must have driven it at an
excessive speed. The explanation given by the driver was totally
unacceptable. If the driver had driver at a low speed and if he had applied
the brakes the lorry would not have left the road and fallen into the pit. The
res ipsa loquitur was attracted in this case. The judge agreed with the
findings of the lower Court that the defendant was rash and negligent, and
so held him liable. In support of this decision following cases were
considered Gobald Motor Service Ltd., and another312 case, Handersons
case313, Jagat Singh and other v. Sawal Singh314.

F. Treatment of Compensation Amount

The judgment of the Apex Court in the case titled Lilaben Udesing Gohal v.
Oriental Insurance Co. Ltd315reiterates its appreciation of the guidelines
laid down in the case titled Muljibhai Ajrambhai Harijan v. United India
Insurance Co. Ltd.316 as approved by the Apex Court in its earlier
judgments in the cases tilted Union Carbide Corporation v. Union of

311
General Assurance Society Limited v. Jayalakahmi Ammalj , 1975 A.C.J. 159 Mad.
312
Gobald Motor Services Ltd. v. R.M.K.Veluswami, A.I.R. 1962, 1 S.C.
313
Henderson v. Henry E.Jenkins Sons,1970 A.C.J. 185.
314
Jagat Singh and other v. Sawal Singh, 1971 A.C.J. 66.
315
Lilaben Udesing Gohal v. Oriental Insurance Co. Ltd., (1996) ACJ 673.
316
Muljibhai Ajrambhai Harijan v. United India Insurance Co. Ltd., 1983 ACJ 57 (Guj.).
 277

India317 and General manager, Kerala State Transport Corporation v.

Susamma Thomas318 regarding treatment of compensation awarded to
claimants like minor, illiterate and widow etc.. The guidelines stipulated by
the apex court are as under:

I. Award of Compensation in Favour of Minor Claimants

The Claims Tribunal should, in the case of minors, invariably order the
amount of compensation awarded to the minor to be invested in long term
fixed deposits at least till the date of the minor attaining majority. The
expenses incurred by the guardian or next friend may, however, be allowed
to be withdrawn319.

II. Compensation Awarded to Illiterate Claimants

In the case of illiterate claimants also the Claims Tribunal should follow the
procedures set out in case of minors above, but if lump sum payment is
required for effecting purchases of any movable or immovable property,
such as, agricultural implements, rickshaws, etc., to earn a living, the
Tribunal may consider such a request after making sure that the amount is
actually spent for the purpose and the demand is not a ruse to withdraw
money320;

III. Compensation to Semi-Literate Claimants

In the case of semi/literate persons the Tribunal should ordinarily resort to

the procedure set out in case of minors above unless it is satisfied, for
reasons to be stated in writing, that the whole or part of the amount is
required for expanding any existing business or for purchasing some
317
Union Carbide Corporation v. Union of India, (1991) 4 SCC 584
318
General Manager, Kerala State Transport Corporation v. Susamma Thomas, 1994 ACJ 1(SC)
319
Supra n. 315
320
Ibid.
 278

property as mentioned in case of illiterate claimants above for earning his

livelihood, in which case the Tribunal will ensure that the amount is
invested for the purpose for which it is demanded and paid321;

IV. Compensation Amount Awarded to Literate Claimants

In the case of literate persons also the Tribunal may resort to the procedure
indicated in case of Minor Claimant above, subject to the relaxation set out
in case of Illiterate and Semi-literate claimants above, if having regard to
the age, fiscal background and strata of society to which the claimant
belongs and such other consideration, the Tribunal in the larger interest of
the claimant and with a view to ensuring the safety of the compensation
awarded to him thinks it necessary to so order322.

V. Award of Compensation to Widow Claimants

In the case of widows the Claims Tribunal should invariably follow the
procedure set out in case of Minor Claimant above323.

VI. Withdrawal of Amount in case of Personal Injury

In personal injury cases if further treatment is necessary the Claims

Tribunal on being satisfied about the same, which shall be recorded in
writing, permit withdrawal of such amount as is necessary for incurring the
expenses for such treatment324.

321
Ibid.
322
Ibid.
323
Ibid.
324
Supra n. 315
 279

VII. Withdrawal of Amount in Case of Emergency

In all cases Tribunal should grant to the claimants liberty to apply for
withdrawal in case of an emergency. To meet with such a contingency, if
the amount awarded is substantial, the Claims Tribunal may invest it in
more than one fixed deposit so that if need be one such FDR can be
liquidated325.

VIII. No Loan or Advance Against the Fixed Deposit Amount of

Compensation

In all cases in which investment in long term fixed deposits is made it

should be on condition that the bank will not permit any loan or advance on
the fixed deposit and interest on the amount invested is paid monthly
directly to the claimant or his guardian, as the case may be326.

IX. Duty of Bank to Affix Note on Fixed Deposit Receipt

We must add one further guideline to the effect that when the amount is
invested in a fixed deposit, the bank should invariably be directed to affix a
note on the fixed deposit receipt that no loan or advance should be granted
on the strength of the said FDR without the express permission of the
court/Tribunal which ordered the deposit. This will eliminate the practice of
taking loans which may be upto 80 percent of the amount invested and
thereby defeating the very purpose of the order. We do hope that the
courts/Tribunals in the country will not succumb to the temptation of
permitting huge withdrawals in the hope of disposing of the claim. We are
sure that the courts/Tribunals will realize their duty towards the victims of
the accident so that a large part of the compensation amount is not lost to

325
Ibid.
326
Ibid.
 280

them. The very purpose of laying down the guidelines was to ensure the
safety of the amount so that the claimants do not become victims of
unscrupulous persons and unethical agreements or arrangements. We do
hope our anxiety to protect the claimants from exploitation by such
elements will be equally shared by the court/Tribunals327.

X. Cases Settled Outside the Court

It has been observed that in claims that are settled in or outside the court or
Tribunal, including Lok Adalats or Lok Nyayalayas, these guidelines are
overlooked. We would like to make it absolutely clear that in all cases in
which compensation is awarded for injury caused in a motor accident,
whether by way of adjudication or agreement between parties, the
court/Tribunal must apply these guidelines328.

G. Driving Licence and Liability of Insurance Company

In the case titled New India Assurance Company v. Kamla329 it was held by
the Hon’ble Supreme Court as under : -

I. Driving Licence

Contention that insured made all due enquiries and believed bonafide that
the driver employed by him had a valid driving license, in which case there
was no breach of the policy condition. As we have not decided on that
contention, it is open to the insured to raise it before the Claims Tribunal330.

327
Ibid.
328
Ibid.
329
New India Assurance Company v. Kamla,2001(1) P.L.R. 831
330
Ibid.
 281

II. Forgery of Driving Licence

Driving Licence cannot get its forgery outfit striped off merely on account
of same officer renewing the same with or without knowing it to be
forged331.

The insured bonafidely believing in the validity of a forged driving licence

employing the holder of a fake driving licence renewed by a competent
authority would not amount to violation of the conditions of contract or of
the insurance policy. It would not be violating either conditions of
indemnity or the insurance policy or the contract or violation of any
statutory provisions. Under these circumstances, merely employing a driver
with a forged driving licence would not absolve the insurer of its
liability332.

III. Liability of Insurance Company

When a valid insurance policy has been issued in respect of a vehicle as

evidenced by a certificate of insurance, the burden is on the insurer to pay
the third parties, whether or not there has been any breach or violation of
the policy conditions. But the amount so paid by the insurer to third parties
can be allowed to be recovered from the insured if as per the policy
conditions, the insurer had no liability to pay such sum to the insured333.

IV. Amount paid by Insurance Company

Now the Claims Tribunal has to decide the next question whether the
insurance company is entitled to recover that amount from the owner of the
vehicle on account of the vehicle being driven by a person who had no

331
Ibid.
332
National Insurance Co. Ltd. v. Santro Devi and Others, AIR 1998 SC 1485.
333
Supra n. 329
 282

valid licence to drive the vehicle-For that purpose, we remit the case to the
Claims Tribunal334.

V. Policy of Insurance

If the insurance company succeeds in establishing that there was a breach

of the policy condition the claims Tribunal shall direct the insured to pay
that amount to the insurer-In default, the insurer shall be allowed to recover
that amount from the insured person335.

H. Third Party and Liability of Insurance Company.

In case titled National Insurance co. Ltd. Vs. Santro Devi and others336
the Hon’ble Supreme Court has discussed liability of insurance companies in
validly renewed driving licence cases as under:

I. Insurance Company cannot Refuse to Meet its Liability Qua

Third Party

The insurance company cannot refuse to meet its liability qua third party
for any act or omission bonafidely or otherwise committed by the insured
or its liability in as much as third party for whose benefit the insurance has
been provided, is not a privity to any breach as being not in control of the
act or conduct of the insured or its employee or insurer. Thus, the insurance
company cannot refuse to meet its liability qua third party337.

334
Ibid.
335
Ibid.
336
Supra n. 332
337
Ibid.
 283

II. Fraud Committed by the Third Party

The insurance company can neither refuse to indemnify nor is discharged

from its liability to the insured or the claimants for an act of fraud
committed by the third party qua the insured though it has a right to recover
any loss suffered by it from the person, who committed the fraud or from
any other authority, as permissible either under tort or any other statute338.

I. Grant of Compensation : Miscellaneous Trends

In Jai Prakash v. National Insurance Co. Ltd.339Supreme Court of India

has issued a number of important guidelines for motor accidents and
incidental issues. These are as under:

I. Ensuring Compensation to all victims

To ensure that all accident victims get compensation, it is necessary to

formulate a more comprehensive scheme for payment of compensation to
victims of road accidents, in place of the present system of third party
insurance. For example, in South Africa and some other Africans countries,
Road Accident Funds have been created, managed by Road Accident Fund
Commissions, thereby eliminating the need for third party insurance. A fuel
levy/ surcharge is collected on the sale of petrol and diesel and credited to
such fund. All accident victims, without exception, are paid compensation
from out of the said Fund by the Commission. But the feedback from
operational statics relating to such funds is that the scheme, while
successful in smaller countries, may encounter difficulties and financial

338
Ibid.
339
Jai Prakash v. National Insurance Co. Ltd., 2010 (2) SCC 607
 284

deficits in larger countries like South Africa or developing countries with

infrastructural deficiencies 340.

II. Collection of one time life time third party insurance premium

An alternative scheme involves the collection of a one time (life time) third
party insurance premium by a Central Insurance Agency in respect of every
vehicle sold (in a similar manner to the collection of life time road tax). The
fund created by collection of such third party insurance can be augmented/
supplemented by an appropriate road accident cess/ surcharge on the price
of petrol/ diesel sold across the country. Such a hybrid model which
involves collection of a fixed life time premium in regard to each vehicle
plus imposition of a road accident cess may provide a more satisfactory
solution in a vast country like India. This will also address a major
grievance of insurance companies that their outgoings by way of
compensation in motor accident claims is four times the amount received as
motor insurance premium. The general insurance companies may however
continue with optional insurance to provide cover against damage to the
vehicle and injury to the owner341.

III. Alternate to present system of third party insurance

A more realistic and easier alternative is to continue with the present

system of third party insurance with two changes:

a. Define third party to cover any accident victim (that is any third
party, other than the owner) and increasing the premium, if
necessary.

340
Ibid.
341
Ibid.
 285

b. Increase the quantum of compensation payable under section 161 of

the Act in case of hit and run motor accidents342.

IV. Establishment of Road Safety Bureau

India has the dubious distinction of being one of the countries with the
highest number of road accidents and the longest response time in securing
first aid and medical treatment. There is therefore an urgent need for laying
down and enforcing road safety measures and establishment of large
numbers of Trauma Centres and First Aid Centres. It is also necessary to
consider the establishment of a road safety bureau to lay down road safety
standards and norms, enforce road safety measures, establish and run
trauma centres, establish first aid centres in petrol stations and carry out
research/ data collection for accident prevention343.

V. Unified and Comprehensive law required

Several countries have comprehensive enactments dealing exclusively with

accidents. In place of the provisions relating to the Accident Tribunal and
award of compensation in the Motor Vehicle Act, 1988 and other statutes
dealing with accidents and compensation, enacting a comprehensive and
unified statute dealing with accidents may be considered344.

VI. Rectification of Second Schedule to Motor Vehicles Act, 1988

The central government may consider amendment of the Second Schedule

to the Act to rectify the several mistakes therein and rationalize the

342
Ibid.
343
Ibid.
344
Ibid.
 286

compensation payable there under, repeatedly pointed out by the Supreme

Court345.

Supreme Court of India has earlier also in two cases namely U.P.State
Road Transport Corporation v. Trilok Chandra346 and Sarla Verma v.
Delhi Transport Corporation347 express its views for amendment of
Second Schedule to the Motor Vehicles Act, 1988.

J. Review

The case law relating to Motor Vehicle Accident Cases, which have been
judicially determined in High Courts and the Supreme Court of India have been
studied, examined, analyzed and critically commented upon for the purpose of
appreciating the judicial invocation and application of the evidentiary principles
of No Fault Liability, Contributory Negligence, res ipsa loquitur in negligence
cases along with Act of God, Absolute and Vicarious Liability etc.. These cases
cover motor accidents of the nature of both collision as well as non- collision.

Today road accidents in our country has touched a new height and are increasing
day by day and resultant cases relating to motor accidents are increasing in our
courts. In majority of road accident cases because of rash and negligent driving,
innocent person becomes victims and because of this their dependents in many
cases are virtually on the streets. Because of increasing number of motor
accidents and their victims, question of payment of compensation is assuming
great importance in public as well as for the courts. Generally as a rule, victims
of road accidents have to first establish that the accident was due to fault of the
person causing injury or damage, then only court will direct for payment of
compensation.

345
Ibid.
346
U.P.State Road Transport Corporation v. Trilok Chandra, 1996 (4) SCC 362
347
Sarla Verma v. Delhi Transport Corporation ,2009 (6) SCC 121
 287

The quantum of compensation cannot be equal in two cases, even if the origin of
wrong be identical, since the same accident may cause death of one but only a
scratch or abrasion to the other. It is the difference which imports the idea of
liability, quantitatively, the extent and qualitatively, the kind of liability.
Whatever the injury or damage, no compensation can be awarded unless there
are grounds to make the wrongdoer liable348.

In M.K.Kunhimohammad v. P.A.Ahmedkutty’s349 matter, the apex court had

made suggestions to raise limit of the compensation payable in respect of death
or permanent disablement, as a result of motor accidents, in the event of there
being no proof of fault on the part of the person involved in the accident, and
also in hit and run motor accidents and to remove certain disparities in the
liability of the insurer to pay compensation depending upon the class or type of
vehicles involved in accident.

Whether force majeure or vis major can be a defence in cases of absolute or

strict liability, as opposed to liability simpliciter, since the doctrine propounded
in late nineteenth century must have undergone mitigation, modification or made
more absolute in course of years, is a debatable question.

Normally no person is held responsible for the wrongs done by someone else.
However, there are few instances wherein a person can be held liable for the
conduct of another person. This liability is known as Vicarious Liability. In Rani
Devi @ Usha Rani v. Devilal350 it was held that if vehicle is used for purpose of
owner or owner’s business, the act of servant would make the owner vicariously
liable for payment of compensation, but where the vehicle was driven by an
unauthorized person not for owner’s purpose or owner’s business, owner would
not be vicariously liable.

348
Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation, (2010), page 2.
349
M.K.Kunhimohammad v. P.A.Ahmedkutty, 1987 (4) SCC 284
350
Rani Devi @ Usha Rani v. Devilal, 2009 ACJ 858 (Raj.)
 288

Rules of Strict and Absolute Liability are based on the concept of ‘No fault
liability’. At times a person may be held responsible for some wrong though
there was no negligence or intention on his part to do such wrong. This rule was
laid down by the House of Lords in Rylands v Fletcher. In India, this rule was
formulated in the case of M.C. Mehta v Union of India351, wherein the
Supreme Court termed it as ‘Absolute Liability’ This rule was also followed in
the case of Indian Council for Enviro-Legal Action v Union of India (1996).
Further, section 92A of the Motor Vehicles Act, 1938 also recognises this
concept as ‘liability without fault’.

Negligence does not always mean absolute carelessness, but want of such a
degree of care as is required in particular circumstances. Negligence is failure to
observe for the protection of the interests of another person, the degree of care,
precaution and vigilance, which the circumstances justly demand, whereby such
other person suffers injury. The idea of negligence and duty are correlative.
Negligence means either subjectively a careless state of mind or objectively
careless conduct. Negligence is not an absolute term, but is a relative one, it is
rather a comparative term.

Doctrine of last opportunity is explained in simplest way in the matter of

Municipal Corporation of Greater Bombay v. Laxman Iyer,352 wherein an
accident caused due to negligence of both parties, substantially, there would be
contributory negligence yet even in such a case, whichever party could have
avoided the consequence of other’s negligence would be liable for the accident.

351
M.C. Mehta v Union of India, AIR, 1987 SC 1086
352
Municipal Corporation of Greater Bombay v. Laxman Iyer, 2004 ACJ 53
 289

CHAPTER: V

The Lok Adalat and Motor Accident Claims

 290

CHAPTER: V

The Lok Adalat and Motor Accident Claims

A. Introduction

Camps of Lok Adalat were started initially in Gujarat in March 1982 and now it
has been extended throughout the Country. The evolution of this movement was
a part of the strategy to relieve heavy burden on the Courts with pending cases.
The reason to create such camps were only the pending cases and to give relief
to the litigants who were in a queue to get justice. Seekers of justice are in
millions and it is becoming rather difficult for the Courts to cope up with the
ever-increasing cases with the present infrastructure and manpower. Courts are
clogged with cases. There is serious problem of overcrowding of dockets.
Because of the ever-increasing number of cases the Court system is under great
pressure. Therefore, if there was at the threshold a permanent mechanism or
machinery to settle the matters at a pre-trial stage, many matters would not find
their way to the Courts. Similarly, if there are permanent forums to which Courts
may refer cases, the load of cases could be taken off the Courts. In order to
reduce the heavy demand on Court time, cases must be resolved by resorting to
'Alternative Dispute Resolution' Methods before they enter the portals of Court.
Here comes the significance of Lok Adalat which has showed its significance by
settling huge number of Third Party claims referred by Motor Accident Claim
Tribunal (MACT). Except matters relating to offences, which are not
compoundable, a Lok Adalat has jurisdiction to deal with all matters. Matters
pending or at pre-trial stage, provided a reference is made to it by a court or by
 291

the concerned authority or committee, when the dispute is at a pre-trial stage and
not before a Court of Law it can be referred to Lok Adalat.

A large number of cases are settled expeditiously through Lok Adalats and with
lesser costs to the parties. Initially, there was no statutory backing for its
functioning and decisions and Lok Adalats were working as voluntary and
conciliatory agency. It was becoming popular day by day for providing a
speedier system of administration of justice. In view of its growing popularity
there has been a demand for providing a statutory backing to the institution of
and the awards given by the Lok Adalats. It was felt that such a statutory support
would not only reduce the burden of the arrears of work in regular courts, but
would also take justice to the doorsteps of the poor and the needy and make
justice quicker and less expensive1.

In order, therefore, to constitute Legal Services Authorities to provide free and

competent legal service to the weaker sections of the society, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic and other disabilities, and to organize Lok Adalats to secure that the
operations of the legal system promotes justice on a basis of equal opportunity,
the Legal Services Authorities Act, 1987, was enacted which received the assent
of the President on 11th October, 1987 and came on the statue book. Sections 19
to 22 of Legal Services Authorities Act, 1987, deal with formation, organization
and functions of Lok Adalats.

1
Legal Services Authorities Act, 1987, Statement of Objects and Reasons
 292

B. Relevant Provisions of Legal Services Authorities Act, 1987

dealing with Lok Adalats

Section 19 to 22 of Legal Services Authorities Act, 1987, deals with

organization and functions of Lok Adalats, which reads as under:

I. Organization of Lok Adalats

Section 19 of Legal Services Authorities Act, 19872 deals with Organization

of Lok Adalats –

a) Every State Authority or District Authority or the Supreme Court Legal

Services Committee or every High Court Legal Services Committee or, as
the case may be, Taluk Legal Services Committee may organize Lok
Adalats at such intervals and places and for exercising such jurisdiction
and for such areas as it thinks fit.

b) Every Lok Adalat organized for an area shall consist of such number of-
(a) serving or retired judicial officers; and (b) other persons, of the area as
may be specified by the State Authority or the District Authority or the
Supreme Court Legal Services Committee or the High Court Legal
Services Committee or, as the case may be, the Taluk Legal Services
Committee, organizing such Lok Adalat.

c) The experience and qualifications of other persons referred to in clause

(b) of sub-section (2) for Lok Adalats organized by the Supreme Court
Legal Services Committee shall be such as may be prescribed by the
Central Government in consultation with the Chief Justice of India.

2
Motor Vehicles Act, 1988, Subs. by Act 59 of 1994, sec. 15, for section 19 (w.e.f. 29.10.1994).
 293

d) The experience and qualifications of other persons referred to in clause

(b) of sub-section (2) for Lok Adalats other than referred to in sub-section
(3) shall be such as may be prescribed by the State Government in
consultation with the Chief Justice of the High Court.

e) A Lok Adalat shall have jurisdiction to determine and to arrive at a

compromise or settlement between the parties to a dispute in respect of (j)
any case pending before; or (ii) any matter which is falling within the
jurisdiction of, and is not brought before, any court for which the Lok
Adalat is organized.

The Legal Services Authorities Act, 1987 provided that the Lok Adalat
shall have no jurisdiction in respect of any case or matter relating to an
offence not compoundable under any law.

II. Cognizance of cases by Lok Adalats

Section 20 of the Legal Services Authorities Act, 19873 deals with

Cognizance of cases by Lok Adalats

(1) Where in any case referred to in clause (i) of sub-section (5) of section 19:

(i) (a) the parties thereof agree; or (b) one of the parties thereof makes
an application to the court for referring the case to the Lok Adalat
for settlement and if such court is prima facie satisfied that there are
chances of such settlement; or

(ii) the court is satisfied that the matter is an appropriate one to be taken
cognizance of by the Lok Adalat, the court shall refer the case to the
Lok Adalat :

3
Ibid., Subs. by Act 59 of 1994, sec. 15, for section 20 (w.e.f. 29.10.1994).
 294

Provided that no case shall be referred to the Lok Adalat under sub-clause
(b) of clause (i) or clause (ii) by such court except after giving a reasonable
opportunity of being heard to the parties.

(2) Notwithstanding anything contained in any other law for the time being
in force, the Authority or Committee organizing the Lok Adalat under
subsection (1) of section 19 may, on receipt of an application from any
one of the parties to any matter referred to in clause (ii) of sub-section
(5) of section 19 that such matter needs to be determined by a Lok
Adalat, refer such matter to the Lok Adalat, for determination:

Provided that no matter shall be referred to the Lok Adalat except after
giving a reasonable opportunity of being heard to the other party.

(3) Where any case is referred to a Lok Adalat under sub-section (1) or
where a reference has been made to it under sub-section (2), the Lok
Adalat shall proceed to dispose of the case or matter and arrive at a
compromise or settlement between the parties.

(4) Every Lok Adalat shall, while determining any reference before it under
this Act, act with utmost expedition to arrive at a compromise or
settlement between the parties and shall be guided by the principles of
justice, equity fair play and other legal principles.

(5) Where no award is made by the Lok Adalat on the ground that no
compromise or settlement could be arrived at between the parties, the
record of the case shall be returned by it to the court, from which the
reference has been received under sub-section (1) for disposal in
accordance with law.
 295

(6) Where no award is made by the Lok Adalat on the ground that no
compromise or settlement could be arrived at between the parties, in a
matter referred to in sub-section (2), that Lok Adalat shall advice the
parties to seek remedy in a court.

(7) Where the record of the case is returned under sub-section (5) to the
court, such court shall proceed to deal with such case from the stage
which was reached before such reference under sub-section (1).

III. Award of Lok Adalat

Section 21 of The Legal Services Authorities Act, 19874 deals with Award of
Lok Adalat

(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil
court or, as the case may be, an order of any other court and where a
compromise or settlement has been arrived at by a Lok Adalat in a case
referred to it under sub-section (1) of section 20, the court-fee paid in
such case shall be refunded in the manner provided under the Court-fees
Act, 1870.

(2) Every award made by a Lok Adalat shall be final and binding on all the
parties to the dispute, and no appeal shall lie to any court against the
award.

IV. Powers of Lok Adalat or Permanent Lok Adalat

Section 22 of The Legal Services Authorities Act, 19875 deals with Powers
of Lok Adalat or Permanent Lok Adalat –

4
Ibid., Subs. by Act 59 of 1994, sec. 16, for sub-section (1) (w.e.f. 29.10.1994).
5
Ibid., Subs. by Act 37 of 2002, sec. 3, for “Lok Adalat” (w.e.f. 11.6.2002).
 296

(1) The Lok Adalat “or Permanent Lok Adalat” shall, for the purposes of
holding any determination under this Act, have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908, (5 of
1908) while trying a suit in respect of the following matters, namely:

a) The summoning and enforcing the attendance of any witness and

examining him on oath;

b) The discovery and production of any document;

c) The reception of evidence on affidavits;

d) The requisitioning of any public record or document or copy of such

record or document from any court or office; and

e) Such other matters as may be prescribed.

(2) Without prejudice to the generality of the powers contained in sub-

section (1), every Lok Adalat or Permanent Lok Adalat shall have the
requisite powers to specify its own procedure for the determination of
any dispute coming before it.

(3) All proceedings before a Lok Adalat “or Permanent Lok Adalat” shall
be deemed to be judicial proceedings within the meaning of sections
193, 219 and 228 of the Indian Penal Code (45 of 1860) and every Lok
Adalat or Permanent Lok Adalat shall be deemed to be a civil court for
the purpose of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
 297

C. Refund of Court Fee

Where the Court refers the parties to the suit to any one of the mode of
settlement of dispute referred to in Section 89 of the Code of Civil Procedure,
1908 (5 of 1908) the plaintiff shall be entitled to a certificate from the Court
authorizing him to receive back from the collector, the full amount of the fee
paid in respect of such plaint6.”

D. Jurisdiction of Lok Adalats

In State of Punjab V Jalour Singh7’s case Honb’le Supreme Court of India

held that the Lok Adalat has no jurisdiction to decide matters without the consent
of parties to the matters.

In National Insurance Co. Ltd. v. Vijay Kumar Sharma8’s case it was held by
the court that Permanent Lok Adalats have jurisdiction to decide matter relating
to accident claims in which insurer disputed the claim.

E. Idea Behind Formation of Lok Adalats

The idea behind formation of Lok Adalats is no doubt to expeditiously settle the
claims and disputes between the parties. But at the same time the court should
not forget its obligation under law to protect the interest of the parties, specially
the claims of minors and persons of unsound mind. In fact, the court should keep
a watch while making settlements of claims in Lok Adalats. It cannot be lost
sight of that a litigant under pressure of time and money spent in courts easily
succumbs to the pressure and agrees to the small amounts which may not be
adequate to compensate the actual loss suffered. The court should keep a watch

6
Court Fees Act, 1870, Section 16
7
State of Punjab v. Jalour Singh, 2008 ACJ 2874 (SC)
8
National Insurance Co. Ltd. v. Vijay Kumar Sharma, 2009 ACJ 403 (JHAR).
 298

that no such pressure prevails on a litigant. This responsibility becomes heavier

when the court or tribunal is dealing with cases of minors or persons of unsound
mind. In the matter of Manju Gupta v. National Insurance Co. Ltd9, it was
observed by Hon’ble Allahabad High Court that Lok Adalats in the name of
speedy justice, the courts should not sacrifice the real cause of justice for which
confidence has been reposed on them by the society.

F. Compromise on behalf of Unsound Mind and Minor Persons

In a claim petition on behalf of Unsound Person and Minor, no settlement or

compromise could be arrived at without the permission of the court as required
under Rules 6 and 7 of Order 32 of Civil Procedure Code. In the matter of
Manju Gupta v. National Insurance Co. Ltd10 the District Judge mentioned in
his report that no leave of this court has been obtained before entering in to the
settlement or compromise and the mandatory provisions of Rules 7 of Order 32
of Civil Procedure Code not complied with. The Lok Adalat in the matter was
presided over by the Additional District Judge acting also as the Presiding
Officer of the Claims Tribunal. In the matter, a girl of the age of 3 years has lost
her both legs in motor accident and father of the girl settled the matter in Lok
Adalat for Rs. 30,000/- payable by Insurance Company. Tribunal passed the
award on the basis of that compromise. It was held by Hon’ble Allahabad High
Court that the compromise entered in to was not only without compliance of
Rules 7 of Order 32 of Civil Procedure Code but also the amount of Rs. 30,000/-
was grossly inadequate for the injury sustained by the minor girl. Taking suo
motu notice of these inadequacies, the High Court enhanced the amount of
compensation to Rs. One lakhs.

9
Manju Gupta v. National Insurance Co. Ltd, 1994 ACJ 1036 (All)
10
Ibid.
 299

From the above it follows that Claims Tribunals have the authority to enhance
the amount of compensation even when a compromise settlement has been
arrived between the parties at Lok Adalats.

G. Reasonableness of Amount of Compromise Settlements arrived

at Lok Adalats

It is for the court or tribunal to decide the reasonableness of the amount of

compromise settlement and agreement, if any entered in to before the Lok
Adalats. Agreement entered in to before the Lok Adalats will not come in the
way of the court or tribunal for granting reasonable compensation. In the matter
of United India Fire and General Insurance Co. Ltd. v. Pallapu Sridevi11,
Andhra Pradesh High Court held that an amount of compensation for Rs.
91,000/- passed by the Claim Tribunal for amputation of leg of a Young Girl of
seven years was not on the higher side.

In the case of Karnataka State Road Transport Corporation v.

Kumudavalli12 Double Bench of Karnataka High Court held that where there is
wide gulf between amount that would have been received by claimants and
consequently by minors in traditional method of adjudication, and which would
be much higher than which has been agreed to in compromise settlement by Lok
Adalat, the tribunal would be right in rejecting the compromise.

11
United India Fire and General Insurance Co. Ltd. v. Pallapu Sridevi, 1994 (1) ACC 110 (AP).
12
Karnataka State Road Transport Corporation v. Kumudavalli, 2004 (1) ACC 80 (Kar).
 300

H. Validity of Compromise Settlements in Lok Adalats Signed by

Advocate on behalf of Party

In the matter of Sakamma v. Divisional Commissioner13 Double Bench of

Karnataka High Court held that the award passed by the Tribunal in terms of the
compromise is valid. In the matter contention of the claimants was that they have
not authorized their Advocate to enter in to the com promise and that the
compromise petitions were not signed by the claimants. However, the clause in
the Vakalatnama had authorized the Advocate to compromise the matter.

The Supreme Court of India in the matter of Byran Pestonji Gariwala v. Union
Bank of India14 has observed in the context that: “ To insist upon the party
himself personally signing the agreement or compromise would often cause
undue delay, loss and inconvenience, especially in the case of non-resident
persons. It has always been universally understood that a party can always act by
his duly authorized representative. If a power of attorney holder can enter in to
an agreement or compromise on behalf of his principal, so can counsel possessed
of the requisite authorization by vakalatnama, act on behalf of his client, not to
recognize such capacity is not only to cause much inconvenience and loss to the
parties personally, but also to delay in the progress of the proceedings of the
court. If the legislature had intended to make such a fundamental change, even at
the risk of delay, inconvenience and needless expenditure, it would have
expressly so stated”.

I. Award of Lok Adalats Even Without Compromise

13
Sakamma v. Divisional Commissioner, 1994 ACJ 1266 (Kar).
14
Byran Pestonji Gariwala v. Union Bank of India, AIR 1991 SC 2234.
 301

In the matter of Life Insurance Corporation of India v. State of Rajasthan15,

Double Bench of Rajasthan High Court held that in a dispute arising from a
public utility service, Permanent Lok Adalat can pass an award even without a
compromise having been arrived at between parties.

J. Dismissal of Claims by Lok Adalats in Case of Default by

Parties

In case of absence of claimant or for any other reasons, the Lok Adalats cannot
dismiss the claims of the claimants on the basis of default of claimant. The Lok
Adalats must return the records of the matter to the concerned Court or Tribunal
by making a noting that compromise or settlement failed. In the matter of Gangi
v. Second Additional District Judge, Hamirpur16’s case Allahabad High Court
held that it is not proper on the part of Lok Adalat to dismiss the claim for
default of claimant to appear.

K. Award of Lok Adalat and Appeal

It is settled law that no appeal lies against the award of a Lok Adalat as Lok
Adalat’s award is always based on consent decree. In the matter of S.Kesar
Singh v. Balbir Singh17High Court of Jammu and Kashmir held that though
such decree can be interfered with if same is result of fraud and
misrepresentation or such like factors and mere vague allegation against the
counsel entering in to compromise on behalf of the claimant without there being
any proof or material cannot lead to a conclusion or inference that consent of
claimants were result of fraud played by the counsel for the claimants.

15
Life Insurance Corporation of India v. State of Rajasthan, 2007 (1) ACC 899 (Raj.)
16
Gangi v. Second Additional District Judge, Hamirpur, 2001 (1) TAC 519
17
S.Kesar Singh v. Balbir Singh, 2004 (3) TAC 241 (J & K)
 302

In New India Assurance Co. Ltd. v. Boda Hari Singh18 High Court of Andhra
Pradesh had mentioned in the award that the parties had compromised the matter
before the Lok Adalat. A mere reading of the award had revealed that the award
was passed not by the Lok Adalat but by the Claims Tribunal. There was no
material to show that any compromise memo signed by both the parties was ever
filed in the Tribunal. Moreover, section 20 of the Legal Services Authorities Act,
1987 prescribes the procedure of the Lok Adalat to take cognizance of cases.
There must be a reference by the court concerned in all pending cases. There was
nothing to show that any such reference was made. The award having not been
passed by the Lok Adalat, the bar under section 21(2) of that Act in respect of
Appeal was, hence, not attracted and the appeal was maintainable.

However, in the matter of Mst. Anachi v. Ram Chandra19 an appeal against the
award passed by the Lok Adalat on compromise between the parties was
preferred on the ground that interest was not awarded. Dismissing the appeal, it
was held by the Hon’ble High Court that once principal amount was accepted by
way of compromise, question of interest cannot be reopened in appeal after a
delay of1 ½ years and more so when interest on award of compensation is not a
separate cause of action.

In Deputy General Manager & Divisional Controller, Karnataka State Road

Transport Corporation v. Kamappa20 the State Transport Corporation had
filed this appeal against a compromise award passed by the Lok Adalat,
contending that the compromise petition presented before the Lok Adalat was
not signed by it or its law officer on its behalf on basis of which the compromise
award had been passed. However, the compromise petition was signed by the

18
New India Assurance Co. Ltd. v. Boda Hari Singh, 2000ACJ 1580 (AP)
19
Mst. Anachi v. Ram Chandra, 2002 (1) AJR 643 (Raj.)
20
Deputy General Manager & Divisional Controller, Karnataka State Road Transport Corporation
v. Kamappa, 1993 ACJ 539 (Kar.)
 303

Advocate for the corporation, whose Vakalatnama had been filed in the court
and clause in vakalatnama had authorized the Advocate to enter in to a
compromise on behalf of the executants of the vakalatnama. It was held by the
High Court that the award passed in terms of the compromise petition was valid
and the appeal had to be dismissed.

In United India Insurance Co. Ltd. v. Shabbir M Attarwala21 the Double

Bench of Mumbai High Court held that where the award of Lok Adalat could not
have been passed without consent or compromise between parties, the award
would be amenable to judicial review and liable to be set aside.

In National Insurance Co. Ltd. v. Mossamat Das Choudhary’s case22, the

Lok Adalat awarded Rs. 45,000/- less Rs. 15,000/- as already paid under no fault
liability, but in other two cases arising out of one and same accident, the tribunal
awarded Rs.50,000/- each. On appeal by the insurer, contending its liability to be
limited only up to Rs. 15,000/- the awards passed by Tribunal were restricted to
Rs. 45,000/- as in first case compromised before the Lok Adalat.

In State of Punjab & another v. Jalour Singh23 ’s case it was held by the
Supreme Court that functioning and procedure of Lok Adalat is based on
principles of nature justice, equity and fair play and they are the guiding
principles for Lok Adalat.

In this case it was also held by the Supreme Court that duties of Lok Adalat are
to explain and persuade the parties for compromise24.

In this case it was further held by the Supreme Court that modification of award
by Lok Adalat in absence of parties - not valid and liable to be set aside25.

21
United India Insurance Co. Ltd. v. Shabbir M Attarwala, 2007 ACJ 2860 (Bom)
22
National Insurance Co. Ltd. v. Mossamat Das Choudhary, 1998 (2) ACC 111 (Pat)
23
State of Punjab & another v. Jalour Singh, ILC 2008 SC MAC – JAN-6
24
Ibid.
 304

L. Award of Lok Adalat not open to interference merely because

amount awarded was not adequate

In General Manager, Karnataka State Road Transport Corporation

v.Pandu26 it was held by the High Court that the Tribunal has responsibility to
see that due sanctity is given to a compromise made before the Lok Adalat and
merely because the Tribunal holds that the amount awarded is not just, it can be
no ground to reject the compromise particularly when there is no grievance or
protest against such compromise alleging fraud, misrepresentation or coercion
compelling the parties to arrive at compromise. The Tribunal cannot refuse to
record the compromise on ground that amount compromised was not just and
reasonable.

In New India Assurance Co. Ltd. v. Ponnamma Thomas27 it was held by the
Double Bench of Kerala High Court that Tribunal was not empowered to review
an award by enhancing the compensation awarded by Lok Adalat, where
Tribunal reviewed an award stating error in calculation.

M. Exemption from Court Fee

In Chandrakanti Das v. State of Orissa28it was held by the High Court that
where the party has not paid the prescribed fee at the time of filing of claim
petition and the Lok Adalat did not insist the party to pay the fee, it was deemed
that the party was exempted from paying fees under Rule 22(2) of the Orissa
Motor Vehicles ( Accident Claims) Rules 1960.

25
Ibid.
26
General Manager, Karnataka State Road Transport Corporation v.Pandu ,1998 ACJ 1389(Karn).
27
New India Assurance Co. Ltd. v. Ponnamma Thomas, 2009 ACJ 1331(Ker.)
28
Chandrakanti Das v. State of Orissa, 2010 (1) TAC 339 (Orissa)
 305

N. Sanctity of Award of Lok Adalat

Every award of Lok Adalat is deemed to be decree of civil court as per section
21 of Legal Services Authorities Act. Hence every award made by Lok Adalat is
final and binding on all the parties to the dispute.

In Tamil Nadu State Transport Corporation Ltd. v. A.T.Narendiran29, the

Madaras High Court Held that every award made by Lok Adalat is final and
binding on all the parties to the dispute.

In United India Insurance Co. Ltd. v. Patramana30 it was held by the

Karnataka High Court that once an award has been passed by the Lok Adalat,
there cannot be any interference with it unless it is manifestly shown that the
award is bad or perverse or is inherently wrong.

No law comes in the way of the award made by the Lok Adalat and if at all the
claimant was not happy with the award made by the Lok Adalat, he could not
have agreed to file a compromise. Once the compromise is filed, tribunal is
stopped from resorting to procedural irregularity and tribunal is left with no
option other than drawing a decree. If the claimant has taken any objection that
he has not prepared to accept the award, then the Tribunal could have proceeded
in accordance with law.

In United India Insurance Co. Ltd. v. Mohammed31 the Karnataka High Court
held that the award of Lok Adalat is not being an agreement arrived at between
private parties, the award of Lok Adalat has got sanctity.

In this matter, the Karnataka High Court had further held that the award of Lok
Adalat cannot be bypassed on ground of technical irregularities32.
29
Tamil Nadu State Transport Corporation Ltd. v. A.T.Narendiran, 2010 ACJ 77 (Mad)
30
United India Insurance Co. Ltd. v. Patramana, 1996 ACJ 427 (Kar)
31
United India Insurance Co. Ltd. v. Mohammed, 2000 ACJ 158
 306

O. Provision in Civil Procedure Code for settlement of disputes out

of Court

I. Settlement of disputes outside the Court

Section 89 of Code of Civil Procedure, 190833 deals with Settlement of

disputes outside the Court.

1. Where appears to the Court that there exist elements of a settlement

which may be acceptable to the parties, the Court shall formulate the
terms of settlement and give them to the parties for their observations
and after receiving the observation of the parties, the Court may
reformulate the terms of a possible settlement and refer the same for—

a. Arbitration;

b. Conciliation;

c. Judicial settlement including settlement through Lok Adalat; or

d. Mediation.

2. Where a dispute has been referred—

a. For arbitration or conciliation, the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings
for arbitration of conciliation were referred for settlement under the
provisions of that Act;

32
Ibid.
33
Inserted by C.P.C. (Amendment) Act, No. 46 of 1999
 307

b. To Lok Adalat, the Court shall refer the same to the Lok Adalat in
accordance with the provisions of sub-section (1) of Section 20 of
the Legal Services Authorities Act, 1987 (39 of 1987) and all other
provisions of that Act shall apply in respect of the dispute referred to
the Lok Adalat;

c. For judicial settlement, the Court shall refer the same to a suitable
institution or person and such institution or person shall be deemed
to be a Lok Adalat and all the provisions of the Legal Services
Authorities Act,1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that Act;

d. For mediation, the Court shall effect a compromise between the

parties and shall follow such procedure as may be prescribed.

II. Direction of the Court to Opt for Any One Mode of Alternative
Dispute Resolution.

After recording the admissions and denials, the court shall direct the parties
to the suit to opt either mode of the settlement outside the court as specified
in sub-section (1) of Section 89 of Civil Procedure Code, 1908. On the option
of the parties, the court shall fix the date of appearance before such forum or
authority as may be opted by the parties34.

III. Appearance Before the Conciliation Forum, or Authority.

Where a suit is referred under rule 1A of Order X, Civil Procedure Code,

1908, the parties shall appear before such forum or authority for conciliation
of the suit35.

34
Civil Procedure Code, 1908, Order X, Rule 1A, (inserted by CPC (Amendment) Act, 1999)
35
Ibid., Order X, Rule 1B,( inserted by CPC (Amendment) Act, 1999)
 308

IV. Appearance before the Court consequent to the failure of efforts

of conciliation.

Where a suit is referred under rule 1A of Order X, Civil Procedure Code,

1908 and the Presiding Officer of conciliation forum or authority is satisfied
that it would not be proper in the interest of justice to proceed with the matter
further, then, it shall refer the matter again to the court and direct the parties
to appear before the court on the date fixed by it36.

P. Review.

A large number of cases are settled expeditiously through Lok Adalats and with
lesser costs to the parties. Initially, there was no statutory backing for its
functioning and decisions and Lok Adalats were working as voluntary and
conciliatory agency. It is becoming popular day by day for providing a speedier
system of administration of justice. In view of its growing popularity there was
a demand for providing a statutory backing to the institution of and the awards
given by the Lok Adalats. It was felt that such a statutory support would not only
reduce the burden of the arrears of work in regular courts, but would also take
justice to the doorsteps of the poor and the needy and make justice quicker and
less expensive.

Sections 19 to 22 of Legal Services Authorities Act, 1987, deals with

organization and functions of Lok Adalats.

Every State Authority or District Authority or the Supreme Court Legal Services
Committee or every High Court Legal Services Committee or, as the case may
be, Taluk Legal Services Committee may organize Lok Adalats at such intervals

36
Ibid., Order X, Rule 1C, (inserted by CPC (Amendment) Act, 1999)
 309

and places and for exercising such jurisdiction and for such areas as it thinks fit
and every Lok Adalat organized for an area shall consist of such number of- (a)
serving or retired judicial officers; and (b) other persons, of the area as may be
specified.

The parties to a matter pending before a court may agree or one of the parties
thereof makes an application to the court for referring the case to the Lok Adalat
for settlement and if such court is prima facie satisfied that there are chances of
such settlement or the court is satisfied that the matter is an appropriate one to be
taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok
Adalat.

Every Lok Adalat shall, while determining any reference before it under this
Act, act with utmost expedition to arrive at a compromise or settlement between
the parties and shall be guided by the principles of justice, equity fair play and
other legal principles. Where no award is made by the Lok Adalat on the ground
that no compromise or settlement could be arrived at between the parties, the
record of the case shall be returned by it to the court, from which the reference
has been received for disposal in accordance with law.

Award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the
case may be and award made by a Lok Adalat shall be final and binding on all
the parties to the dispute, and no appeal shall lie to any court against the award.

In the matter of Life Insurance Corporation of India v. State of Rajasthan37,

Double Bench of Rajasthan High Court held that in a dispute arising from a
public utility service, Permanent Lok Adalat can pass an award even without a
compromise having been arrived at between parties.

37
Life Insurance Corporation of India v. State of Rajasthan, 2007 (1) ACC 899 (Raj.)
 310

CHAPTER: VI

Criminal Liability in Motor Accidents.

 311

CHAPTER: VI

Criminal Liability in Motor Accidents.

A. Introduction

This chapter deals with criminal liability in motor vehicles accidents along with
negligent act and proof of the negligence in criminal liability. It is of utmost
importance owing to the alarming increase in accidental deaths, injuries to life,
limbs and property as an impact of the modern civilization becomes a major
problem.

Negligence must be distinguished from neglect. Neglect, unlike negligence does

not indicate a specific attitude of mind, but states a matter of fact, which may be
the result of either intentional or neglect act. A man, who knows that the brake of
his scooter is defective, neglects to set it right, and knocks down a child on the
road. The harm to the child is caused not by his negligence, but by his willful
neglect or recklessness in not repairing the brake1.

The principles of liability governing civil actions and criminal prosecutions

based on negligence differ. Criminal Law both in England and in India recognize
degree of negligence. The negligence which would justify conviction must be
culpable or of gross degree and not negligence founded on a mere error of
judgment or defect of intelligence. One of the grey areas of the law is that
relating to the legal consequences of accidents and the action to be taken after a
victim in injured, particularly in an accident caused by motor vehicles2.

1
K.D.Gaur, “Criminal Law: Cases and Materials”,(1999) p.29.
2
P.M.Bakshi, Accident Victims and the Criminal Law, 3 JILI (1989) 566.
 312

It is a basic principle of both Anglo – American and European Procedure that in

Criminal Cases guilt must be established beyond reasonable doubt. The burden
of proof in both the systems rests upon the prosecution. In the common law
tradition the jury must be persuaded of the guilt of the accused “beyond
reasonable doubt3”.

The Indian Criminal System is characterized by an accelerated rate of acquittals.

Besides the issues of the improper collection of evidence and a lack of witnesses
for the trial, the legal system is severely crippled by the issue of burden of proof.
In line with Common Law tradition, the Indian system emphasizes the burden of
proof on the prosecution. In this issue that gains prominence in the light of the
disquieting situation with respect acquittals4. Lord Atkin observed in Andrews
v. Director of Public Prosecution5 as follows:

“simple lack of care such as will constitute civil liability is not enough. For
purposes of criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is established. Probably
of all the epithets that can be applied ‘reckless’ most nearly covers”.

The degree of negligence which would justify a conviction must be something

like the danger which, if one draws the accused’s attention, the latter might
exclaim: “I don’t care”. This shows indifference to consequences. It must thus be
more than mere omission or neglect of duty.

In criminal cases there must be mens rea or guilty mind i.e. rashness or guilty
mind of a degree which can be described as criminal negligence. The principle

3
P.M.Bakshi, Continental System of Criminal Justice, 36 JILI 1994 p. 425.
4
Priyadarhini Narayana, The Burden of Proof on the Prosecution: An Excuse for Acquittal, 2001CILQ
Vol. XIV 548
5
Andrews v. Director of Public Prosecution, (1937), 2 All E.R. 552
 313

of avoidance of liability, when in contributory negligence by the injured person

is no defense in criminal law.

Section 279 and 280 to 289, Section 304A, 336, 337 and 338 of Indian Penal
code deal with the accused’s rash and negligent conduct endangering the safety
of others. All these sections cover the possibility or likelihood of injury as a
result of the accused’s conduct. Under all these sections, there is a rash and
negligent act involved a one of the ingredients of the offence and that rash or
negligent driving or riding on a public road is therefore, be covered by all these
sections. But section 304A, 337 and 338 are specific provisions relating to cases
in which rash and negligent driving or riding result in the death of another
person or in hurt or grievous hurt caused to another person.

B. Law of Crimes and Motor Accidents

Had there been no law of crimes, each wrong would have been actionable in
damages, that is a monetary recompense for each wrong. In the primitive feeling
of revenge, the rule is believed to be head for head, tooth for tooth, eye for eye
and so on. Henry Ergson has aptly ascribed this rudimentary justice to this law of
retaliatory barter, but he warned that this vendetta for head for head would have
continued for ages by succeeding generations, until one of the parties had to
agree to measure the injury in terms of money. This explains that criminal
justice, though primarily concerned with imparting punishment on the culprit for
his proved offence by way of incarceration or fine has, to some extent, given
recognition to this compensatory aspect even under the penal law6.

Section 357 of the Code of Criminal Procedure, 1973, provides for payment of
compensation. It provides that:

6
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.1115.
 314

“When a court impose a sentence of fine or a sentence ( including a sentence of

death) of which fine forms a part, the court may, when passing judgement, order
the whole or any part of the fine recovered to be applied:

a. In defraying the expenses properly incurred in the prosecution;

b. In the payment of any person of compensation for any loss or injury caused
by the offence, when compensation is, in the opinion of the court,
recoverable by such person in a civil court:

c. When any person is convicted of any offence for having caused the death of
another person or of having abetted the commission of such an offence, in
paying compensation to the persons who are, under the Fatal Accidents
Act, 1855, entitled to recover damages from the person sentenced for the
loss resulting to them from such death:

d. When any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having
dishonestly received or retained, or of having voluntarily assisted in
disposing of, stolen property knowing or having reason to believe the same
to be stolen, in compensating any bona fide purchaser of such property for
the loss of the same if such property is restored to the possession of the
person entitled thereto.

If the fine is imposed in a case which is subject to appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, or if an
appeal be presented, before the decision of the appeal.

When a court imposes a sentence, of which fine does not form a part, the court
may, when passing judgement, order the accused person to pay, by way of
compensation, such amount as may be specified in the order to the person who has
 315

suffered any loss or injury by reason of the act for which the accused person has
been so sentenced.

An order under this section may also be made by an appellate court or by the High
Court or Court of Session, when exercising its power of revision.

At the time of awarding compensation in any subsequent civil suit relating to the
same matter, the court shall take in to account any sum paid or recovered as
compensation under this section7”.

All wrongs are basically torts, which is the unwritten charter of universally
accepted wrongs, committed by man in his conduct towards others. It is only some
definite wrongs, abhorrent or shocking to the society, that are set apart as crimes in
the penal codes of civilized nations, and acts affecting the body, property, health,
safety or reputation are recognised as actionable both under civil and the criminal
law and the wrong doer may for any such act, be made doubly liable under civil
and criminal jurisdiction both.

C. Tort and Crime Constituted by the Same Set of Circumstances

The same set of circumstances, will in fact, from one point of view, constitute a
tort, while from another point of view, amount to a crime. In the case, for
instance, of an assault, the right violated is that which every man has, that his
bodily safety shall be respected, and for the wrong done to this right, the sufferer
is entitled to get damages. But this is not all. The act of violence is a menace to
the safety of the society generally and will therefore be punished by the state.
Where the same wrong is both a crime and tort e.g. assault, its two aspects are
not identical, its definition as a crime and a tort may differ, what is a defence to
the tort may not be so in crime and the object and result of a prosecution and of

7
Criminal Procedure Code, 1973, Section 357
 316

an action in tort are different. The wrongdoer may be ordered in a civil action to
make compensation to the injured party and be also punished criminally by
imprisonment or fine. There was a common law rule that when a tort was also a
felony, the offender could not be sued in tort until he had been prosecuted for the
felony or a reasonable excuse had been shown for his non-prosecution8. The rule
did not bar an action but was a ground for staying it. It was based on the public
policy that claims of public justice must take precedence over those of private
reparation. The rule, however, became an anomaly after the police was entrusted
with the duty to prosecute the offenders. The rule has not been followed in India9
and has been abolished in England.

For instance, manslaughter is the supreme crime, punishable under section 302
of the Indian Penal Code, if murder, or under section 304 of that code, if
amounting only to culpable homicide, but from the mere fact of its culpability it
does not follow that the parents, or widow or the children of the deceased may
not sue the wrongdoer for compensation reasonably equivalent to the
contribution the deceased made for and towards their maintenance10.

Negligence is basic element in a claim for compensation for death, bodily injury
or damage to property of a third party caused by accident arising out of use of a
motor vehicle, but whereas death or bodily injury caused by rash or negligent
driving, and rash and negligent driving itself, are crimes defined and made
punishable under the Indian Penal Code, 1860, causing damage to property by
some negligent act has not been included in the catena of offences defined and
described under the said penal code.

8
Smith v. Salwyn, (1954) 3 KB 98.
9
Keshab v. Nasiruddin, (1908) 13 CWN 501
10
Ratan Lal & Dhiraj Lal, “ Law of Torts” (2000) p.11
 317

D. Offences in Relation to Use of Motor Vehicles Which are

Punishable Under Indian Penal Code.

I. Rash Driving or Riding on Public Way

Section 279 I.P.C. states that whoever drives any vehicle or rides on any
public way in manner so rash and negligent as to endanger human life or to
be likely to cause hurt or injury to any other person shall be punished with
imprisonment of either description for a term which may extend to six
months or with fine which may extend to one thousand rupees or with both11.

Rash driving is, thus, an independent offence irrespective of its

consequences, though if consequences of death or bodily injury also follow,
the offender shall be tried in relation to such consequences also in addition to
the charge under the above section12.

The offence under section 279 is cognizable and bailable and triable by the
Magistrate having territorial jurisdiction over the area wherein such offence
has been committed.

II. Causing Death by Negligence

Section 304A I.P.C. dealing with causing death by negligence, “whoever

causes the death of any person by doing any rash or negligent act not
amounting to culpable homicide shall be punished with imprisonment of
either description for a term which may extend to two years or with fine or
both13”.

11
Dr. R.G.Chaturvedi, “Law of Motor Accident Claims and Compensation” (2010) p.1116.
12
Ibid.
13
Ibid.
 318

The offence under this section is cognizable and bailable and triable by the
Magistrate of the first class.

This section has been couched in general terms, based on the main
ingredients of ‘rash and negligent act’ which would, naturally, include the act
of ‘rash and negligent driving14.

III. Act Endangering Life or Personal Safety of Others

Section 336 I.P.C. deals with Act Endangering Life or Personal Safety of
Others. It is provided in the act that whoever does any act so rashly or
negligently as to endanger human life of the personal safety of others, shall
be punished with imprisonment of either description for a term which may
extend to three months, or with fine which may extend to Rs. 250/-, or with
both15.

The offence under this section, as under section 279, is an offence

independent of its consequences, and if consequences also follow, the
offence would become aggravated and taken account of under section 336
and 337.

The offence under section 336 is cognizable and bailable and triable by the
Magistrate having territorial jurisdiction over the area wherein such offence
has been committed.

14
Ibid.
15
Ibid.
 319

IV. Causing Hurt by Act Endangering Life or Personal Safety of

Others

Section 337 I.P.C. deals with cases causing hurt act endangering life or
personal safety of others. It is as stated below:

“whoever causes hurt to any person by doing any act so rashly or negligently
as to endanger human life, or the personal safety of others, shall be punished
with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to five hundred rupees, or with
both16”.

The offence under section 337 is cognizable and bailable and triable by the
Magistrate having territorial jurisdiction over the area wherein such offence
has been committed.

V. Causing Grievous Hurt by Act Endangering Life or Personal

Safety of Others

Section 338 deals with cases causing grievous hurt by acts endangering life
or personal safety of others and it states that whoever causes grievous hurt to
any person by doing any act so rashly or negligence as to endanger human
life, or the personal safety of others, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine
which may extend to one thousand rupees, or with both17.

The offence under section 338 is cognizable and bailable and triable by the
Magistrate having territorial jurisdiction over the area wherein such offence
has been committed.

16
Ibid. at 1117.
17
Ibid. at 1117
 320

The above sections 336, 337, and 338, like that under section 304A, do not
specifically refer to rash and negligent driving but the general connotation of
the word ‘act’ shall naturally include the act of rash and negligent driving in
such manner as to endanger human life, and thereby causing hurt or grievous
hurt, as the case may be, to others.

In English Law the only negligence amounting to crime is one (a)

Characterized by “recklessness” (b) directly leading to the death of the victim
and (c) preceded by some degree of some mens rea. Whether particular act of
negligence amounts to crime or not falls within the purview of juries. The
nearest approximation of this English Law is to be found in Section 304A of
Indian Penal Code18.

E. Proof of Negligence

The degree of rashness or negligence on the part of the accused required to be

proved in criminal cases should be such a nature that an inference about the
commission of crime may safely made against him. In Criminal Law, it is
necessary to prove beyond reasonable doubt the negligent act of the accused
under section 304A I.P.C. It is necessary that the death should be direct result of
the negligent act of the accused and that act must be proximate of efficient cause
without the intervention of another’s negligence. The main criterion for deciding
whether the driving which led to the accident was rash and negligent is not only
the speed but the width of the road, the density of the traffic and in going to the
wrong side of the road in an attempt to overtake the other vehicle and thus being
responsible for the accident. In Shakila Khaker v. Nausher Gama19’s case it
was held by the Supreme Court that even if the accident takes place in the

18
N.Kumar, “The Concept of Criminality in the Tort of Negligence” 1998 Cri.L.J.136
19
Shakila Khaker v. Nausher Gama ,AIR 1975 SC 1325.
 321

twinkling of an eye it is not difficult for an eye – witness to notice a car

overtaking other vehicle and going to the wrong side of the road and hitting a
vehicle traveling on the side of the road.

In P. Rathinam Nagbhusan Patnik v. Union of India20’s case, it was held by

the Supreme Court that in the way there is not distinction between crime and tort
in as much as a tort harms an individual where as a crime is supposed to harm a
society. But then, a society is made of individuals, harm to an individual is
ultimately harm to the society.

Regarding the onus of the proof, it is generally on the prosecution to prove gross
rash and gross negligence on the part of the accused. This onus never shifts.
Sometimes res ipsa loquitur can be corroborative evidence. The circumstances
may lead to inference against the accused or vice – versa. This doctrine is
corroborative as far as criminal law is concerned21. In a case of negligent driving
there may be material evidence or witnesses namely a sketch drawn was
adduced, it was seen that the accident took place only on the left side of the road.
The vehicle was coming from East towards West. The sketch shows that there is
sufficient space about 40 feet available on the right side. Therefore, the
petitioner ought to have swerved to the right side and avoided the accident. So in
addition to the deposition of witness, the material relating to the rule of res ipsa
loquitur is available in this case. In K.Perumal v. State22’s case it was held that
the driver running over the deceased without attempting to save the deceased by
swerving to other side when there was sufficient space, is liable to be punished
under section 304A I.P.C.

20
P. Rathinam Nagbhusan Patnik v. Union of India, AIR 1994 SC 1844
21
R.P.Kathuria, “Law of Crimes and Criminology”, (2000), p. 2196.
22
K.Perumal v. State, 1998 4 Crimes 382
 322

“A person driving a motor car is under a duty to control that car, he is prima
facies guilty of negligence if the car leaves the road and dashes into a tree. It for
the person driving the car to explain the circumstances under which the car came
to leave the road. Those circumstances may have been beyond his control and
may exculpate him, but in the absence of such circumstances the fact that the car
left the road is evidence of negligence on the part of the driver”23.

The question relating to scope and ambit of section 357 of the code of Criminal
Procedure, 1973 and grant of compensation thereunder arose in Mangilal v.
State of Madhya Pradesh24wherein Supreme Court interpreted and analysed all
the five sub sections of that section and the same may usefully be extracted
hereunder. Apart from construing its sub-sections with precision, the point
emphasized is that while resorting to this section for grant of compensation, the
accused must be given a hearing.

F. Grant of Compensation – Hearing of Accused Necessary

Section 357 (1) of Cr.P.C. deals with a situation when a court imposes a fine or
sentence of which fine also forms a part. It confers a discretion on the court to
order as to how the whole or any part of the fine recovered to be applied. For
bringing in application of section 357 (1) it is statutory requirement that fine is
imposed and thereupon make further orders as to the disbursement of the said
fine in the manner envisaged therein. If no fine is imposed section 357 (1) has no
application. In Mangilal v. State of Madhya Pradesh25, case where no fine was
imposed by the trial court or the High Court, then section 357 (3), on the other
hand, deals with the situation where fine does not form part of the sentence
imposed by the court. In such a case, the court when passing a judgement can

23
Dr. D.K.Gaur, “A text Book on the Indian Penal Code”,(2001) p. 446.
24
Mangilal v. State of Madhya Pradesh, AIR, 2004 SC 1280
25
Ibid.
 323

order, the accused person to pay by way of compensation such amount as may be
specified in the order to the person who has suffered a loss or injury by reason of
the act for which the accused person has been so convicted and sentenced. The
basic difference between Section 357 (1) and Section 357 (3) is that in the
former case, the imposition of the fine is basic and essential requirement, while
in the later, even in the absence thereof empowers the court to direct payment of
compensation. Such power is available to be exercised by an appellate court or
by the High Court or Court of Session, when exercising revisional powers.
Section 357 (5) deals with a situation when the court fixes the compensation in
any subsequent civil suit relating to same matter, while awarding compensation
the court is required to take in to account any sum paid or recovered as
compensation under section 357 of the Cr.P.C.

The crucial question then is whether the court is required to hear accused before
fixing the quantum of compensation. It is urged by the learned counsel for the
state that unlike a sentence of fine before imposition of which a court is required
is to hear the accused while considering the question of quantum of sentence, it
is but natural that the trial court after hearing on the question of sentence does
not impose a fine, but in terms of section 357 (3) proceeds to award
compensation, at that juncture or even during the course of hearing as to the
quantum of sentence by sufficient indication made by the court concerned, that
accused gets opportunity to present his version as to the relevant criteria or
norms to be applied in the context of the case before the court on the quantum of
compensation. The position cannot be said to be, in any way different while the
appellate or revisional court also does it in terms of section 357 (4), as long as it
requires to be done in the light of the criteria indicated as above, unless it is by
any agreement or consent of the parties such compensation has been fixed26.

26
Ibid.
 324

G. Criminal Injury or Murder as Accident

In United India Insurance Co. Ltd v. Kashi Ram27 case, where the driver
of the truck was murdered by another driver, and the truck was taken away
and the goods therein stolen. All these events cannot be said to be unrelated.
When there was no evidence to suggest that the dominant purpose of accused
was to kill the deceased and not to commit theft, murder of deceased during
course of his employment was held to amount to death in accident arising out
of use of motor vehicle.

However, where a person on motorcycle was shot at due to personal

animosity resulting in his death, murder cannot be said to have arisen out of
use of motor vehicle since dominant intention of accused was to commit
murder which was not accidental murder but murder simpliciter28.

It may incidentally be stated, with reference to the decision of the High Court
of Kerla, in Varkeychem v. Thomman29, that the term accident for the
purpose of law relating to compensation includes any injury not designed by
the injured himself, and it is of no consequence that the injury was designed
and intended by the person inflicting the same.

The question before the Supreme Court in Rita Devi v. New India
Assurance Co. Ltd30. was: can a murder be an accident in a given case?

The facts were that the deceased was the driver of an auto-rickshaw. Some
unknown persons hired the above rickshaw from the rickshaw stand. The
stand auto-rickshaw was reported stolen and the dead body of the driver was
recovered by the police on the next day, though the auto-rickshaw was never
27
United India Insurance Co. Ltd v. Kashi Ram, 2004 (1) ACC 527 (Del.)
28
Ranju Rani v. Branch Manager New India Assurance Co. Ltd., 2003 ACJ 1588 (Pat.)
29
Varkeychem v. Thomman, 1979 ACJ 319 (Ker.)
30
Rita Devi v. New India Assurance Co. Ltd., 2000 ACJ 801 (SC)
 325

recovered and the claim of the owner for the loss of auto-rickshaw was
satisfied by the insurance company. The tribunal had allowed the claim but
the High Court held that there was no motor accident as contemplated under
the Motor Vehicles Act.

In appeal to the Supreme Court, the appellant relied on the decision in

Shankarayya v. United India Insurance Co. Ltd31, to which the respondent
contended that the meaning ascribed to the word accident in the Workmen’s
Compensation Act by the judicial pronouncements cannot be applied to the
word accident as contemplated under the Motor Vehicles Act.

The Supreme Court relied upon two passes, respectively from Challis v.
London & South Western Railway Company32 and Nishet v. Rayne and
Burn33.

In the case of Challis34, the engine driver of a tram under a bridge was killed
by a stone willfully dropped on the tram by a boy from the bridge. Rejecting
the argument that the said accident cannot be treated as accident, it was held:

“ The accident which befell the deceased was, as it appears…, one which was
incidental to his employment as an engine driver, in other words, it arose out
of his employment. The argument for the respondents really involves the
reading in to the Act of a proviso to the effect that an accident shall not be
deemed to be within the Act, if it arose from the mischievous act of a person
not in the service of the employer. I see no reason to suppose that the
legislature intended so to limit the operation of the Act. The result is the same
to the engine driver, from whatever cause the accident happened; and it does

31
Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC)
32
Challis v. London & South Western Railway Company, (1905) 2 KB 154.
33
Nishet v. Rayne and Burn, (1910) 1 KB 689
34
Supra n. 32
 326

not appear to me to be any answer to the claim for indemnification under the
Act to say that the accident was caused by some person who acted
mischievously35”.

In the other case of Nishet v. Rayne and Burn36, a cashier while travelling
in a railway to a colliery with a large sum of money for the payment of his
employer’s workmen, was robbed and murdered. The court of appeal held:

“ That the murder was an accident from the standpoint of the person who
suffered from it and that it arose out of an employment which involved more
than the ordinary risk, and, consequently, that the widow was entitled to
compensation under the Workmen’s Compensation Act, 190637”.

H. Judicial Application of the Criminal Law in the Motor Accident

Cases

I. Res Ispa Loquitur: Not a Special Rule of Substantive Law

In Syed Akbar v. State of Karnataka38 it was held that regarding

application and effect of maxim res ipsa loquitur is not a special rule
substantive law. It is only an aid in the evaluation of evidence, an application
of the general method of inferring one or more facts in issue from
circumstances proved in evidence. In this view, the maximum res ipsa
loquitur does not require the raising of any presumption of law which must
shift the onus on the defendant only, when applied appropriately, allows the
drawing of a permissive inference of fact as distinguished from a mandatory
presumption properly so – called having regard to the totality of the

35
Ibid.
36
Supra n.33
37
Ibid.
38
Syed Akbar v. State of Karnataka, AIR 1979 SC 1848
 327

circumstances and probabilities of the case res ipsa loquitur is only a means
of establishing probability from the circumstances of the accident.”

The presumption of res ipsa loquitur does not conflict with the principles of
criminal jurisprudence that the burden of proving an offence lies on the
prosecution. The prosecution has in the first instance the obligation of
proving relevant facts from which the inference can be drawn where such
facts have been proved by the prosecution inference of negligence can be
drawn. It means that the circumstances are themselves eloquent of the
negligence of somebody, who brought about the state of things complained
of. The res speaks because the facts remain unexplained and, therefore,
natural and reasonable. In Allimuddin v. Emperor39’s case it was held that
not conjectural inference from the facts shows that what was happened is
reasonable to be attributed to some act of negligence on the part of
somebody, that is, some want of reasonable care under the circumstance.

“The Maxim ‘res ipsa loquitur’ the thing speaks for itself can be applied in
case of criminal law (negligence) only when the cause of the accident in
unknown. But in the case of Syad Akbar v. State of Karnataka40 where the
accident was caused due to error of judgment and in spite of driver’s best
precautions according to his knowledge and belief to avoid accident. The
principle of res ipsa loquitur is not attracted41.”

In State of Karnataka v. Satish42, a truck turned turtle while crossing a nalla

resulting in the death of 15 persons and injuries sustained by 18 persons who
were traveling in the truck. The trial court held that the driver of the truck
drove the vehicle at a high speed which resulted in the accident and

39
Allimuddin v. Emperor, AIR 1945 Nag.242
40
Supra n.38.
41
K.D.Gaur, “Criminal Law, Cases and Materials”(1999) p.453
42
State of Karnataka v. Satish, 1999, ACJ 1378, SC.
 328

consequent conviction and the sentence was confirmed by the low Appellate
Court. No finding recorded either by the trial court or by the first Appellate
Court to the effect that the driver was rash or negligent. Both the courts
applied the doctrine of res ipsa loquitur a driver can be held guilty for
offences under section 337, 338 and 304 A of Indian Penal Code on the
finding that he was driving the truck at a high speed without specific finding
to the effect that he was driving the vehicle either negligently or rashly. It
was held no and added that high speed does not be speak of either negligence
or rashness by itself.

Anand and Majumdar JJ observed as follows:

“ Both the Trial Court and Appellate Court held the respondent guilty for
offence under section 337, 338 and 304A, Indian Penal Code after recording
a finding that the respondent was driving the truck at a high speed. No
specific finding has been recorded either by the trial court or by the first
Appellate Court to the effect that the respondent was driving the truck either
negligently or rashly. After holding that the respondent was driving the truck
at a high speed both the courts pressed into aid the doctrine of res ipsa
loquitur to hold the respondent guilty”.

Merely because the truck was being driven at a high speed does not be speak
of either ‘negligence’ or ‘rashness’ by itself. None of the witnesses examined
by the prosecution could give any indication, even approximately, as to what
they meant by high speed. High speed is a relative term. It was for the
prosecution to bring on record material to establish as to what it meant by ‘
high speed’ in the fact and circumstances of the case. In a criminal trial the
burden of proving everything essential to the establishment of the charge
 329

against an accused always rest on the prosecution and there is a presumption

of innocence in favour of the accused until the contrary is proved.

Criminality is always to be presumed, subject to course to some statutory

exceptions. There is no such statutory exception pleaded in the present case.
In the absence of any material on the record, no presumption of ‘rashness’ or
‘negligence’ could be drawn by invoking the maximum res ipsa loquitur.
There is evidence to show that immediately before the truck turned turtle,
there was a big jerk. It is not explained whether the jerk was because of the
uneven road or mechanical failure. The Motor Vehicle Inspector who
inspected the vehicle had submitted his report. That report is not forthcoming
from the record and the Inspector was not examined for reasons best known
to the prosecution. This is a serious infirmity and lacuna in the prosecution
case.

There being no evidence on the record to establish ‘negligence’ or ‘rashness’

in driving the truck on the part of the respondent, it cannot be said that the
view taken by the High Court is acquitting the respondent is a perverse view.
To us it appears that the view of the High Court, in the fact and
circumstances of this case, it a reasonably possible view. We, therefore, do
not find any reason to interfere with the order of acquittal. The appeal fails
and is dismissed. The respondent is on bail. His bail bonds shall stand
discharged43.

In Muthu v. State44, a water tanker lorry capsized on a turning and the water
tanker fell on the pavement resulting in death of one person and injuries to
others. Eye witnesses did not say anything about the speed of the vehicle.
There was no evidence with regard to rashness or negligence of the driver.

43
Ibid. at 1379.
44
Muthu v. State, 1990, ACJ. 530 Mad.
 330

The lower appellate court relied upon the doctrine of res ipsa loquitur and the
absence of any explanation about the manner of the accident by the driver
found him guilty of rash and negligent driving and confirmed the conviction.
The appellate court held that principle of res ipsa loquitur is not applicable in
criminal proceedings and conviction of the driver was not maintainable. To
fasten criminal liability upon the accused for either rashness or negligence
has to be necessarily proved. Conviction and sentence on these counts were
set aside.

Practically there is no evidence available on record either with regard to the

rashness or negligence on the part of the driver of the vehicle, revision
petitioner, at the relevant point of time. The learned counsel appearing for
the revision petitioned contended that in criminal prosecution the burden to
prove the ingredients of the offence is always on the prosecution and that the
burden never shifts at all at any point of time to the accused. The principle of
res ipsa loquitur is not applicable and the reliance be placed upon the
following observation of the Supreme Court in the decision reported in Syed
Akbar v. State of Karnataka45.

“ In our opinion for reasons that follow, the first line of approach which tends
to give the maxim a larger effect than that of a merely permissive inference,
by laying down that the application of the maxim shifts or casts, even in the
first instance, the burden on the defendant, who in order to exculpate himself
must revert to the presumption of negligence against him, cannot, a such be
invoked in the trial of criminal cases where the accused stands charged for
causing injury or death by negligent or rash act. The primary reasons for non
application of this abstract doctrine of res ipsa loquitur to criminal trials are:
Firstly, in a criminal trial, the burden of proving everything essential to the

45
Supra n.38.
 331

establishment of the charge against the accused always rests on the

prosecution, as every man is presumed to be innocent, until the contrary is
proved, as criminality is never to be innocent, until the contrary is proved, as
criminality is never to be presumed subject to statutory exception. No such
statutory exception has been made by requiring the drawing of a mandatory
presumption of negligence against the accused where the accident tells its
story of negligence of somebody. Secondly, there is a marked difference as
to the effect of evidence, the proof, in civil and criminal proceedings. In
Civil proceedings, a mere preponderance of probability is sufficient and the
defendant is not necessarily entitled to the benefit of every reasonable doubt;
but in criminal proceedings, the persuasion of guilt must amount to such a
moral certainty as convinces the mind of the court, as a reasonable man
beyond all reasonable doubt. Where negligence is an essential ingredient of
the offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error of
judgement.”

From the above observations of the Supreme Court Janarthanam, J. observed

“it is crystal clear that for the proof of the offence under section 304A, Indian
Penal Code, either rashness or negligence has to be necessarily proved in the
manner allowed by law by the prosecution and in the absence of proof
forthcoming on these aspects, it is not possible to fasten criminal liability
upon the accused and the doctrine of res ipsa loquitur has no application at all
in criminal proceedings. As such, the conviction and sentence of the revision
petitioner for the offences under section 304A and 338 (2 counts) Indian
Penal Code, and the violation of section 116 of motor vehicle act are liable to
be set aside46.”

46
Muthu v. State, 1990 ACJ 532, Mad.
 332

In Malaysian case Lai Kuit Seong v. Public Prosecutor47 case the appellant
had been summoned on a charge of driving a motor-bus without due care and
attention, contrary to section 36(a) and punishable under section 146(1)(2) of
the Road Traffic Ordinance, 1958. The prosecution based its case mainly, if
not solely, on the fact that the vehicle came to halt some 66 yards after it had
negotiated a sharp bent, where it was found by investigating officer, lying on
it side near the drain. At the close of the prosecution the learned magistrate
accepted counsel’s submission that res ipsa loquitur had no application in
criminal cases and on that ground dismissed the charge without calling on the
defence. The public prosecutor appealed against this decision and his appeal
was allowed on the facts, since a vehicle does not ordinarily overturn after
taking any bend, sharp curve.

Ong Hock Thye, C.J. (Malaya) observed :

“ in may view the phrasing of the question itself shows that the maxim
seemed to have been misunderstood: if in the circumstances of the case, the
trail magistrate can not properly find or infer from the evidence adduced how
can res ipsa loquitur be raised? The res must speak for itself. If it does not,
the maxim means nothing at all and can not be invoked to fill a gap or supply
a missing link in the evidence.

The answer, therefore, is implicit in the question itself. Before us both

counsel were agreed – we think rightly – that the maxim has no application at
all in criminal cases……… in criminal proceedings, where the heavier onus
of proof rests on the prosecution and facts proved must be sufficient to
support the charges beyond reasonable doubt, the occasion can never arise
where the facts require to be bolstered up by invocation of the doctrine.

47
Lai Kuit Seong v. Public Prosecutor, (1969), ACJ 341 Federal Court of Malaysia
 333

There is no mystique in application of res ipsa loquitur to proof of

negligence.”

But the functional use of the maxim, only as a convenient rational aid in the
assessment of evidence will not conflict with the provision of the Evidence
Act relating to burden of proof and other cognate matters peculiar to criminal
jurisprudence. This application of the maxim is subject to all the principles
relating to circumstantial evidence, that is, they should be incompatible with
innocence and exclude reasonable doubt as to guilt. Thus the maxim could
be adopted in marginal cases, where the facts speak clear and loud as to
rashness and negligence and where there is little or no scope for any doubt
being entertained as to the culpability of the accused. Therefore the maxim
of res ipsa loquitur should be applied only in exceptional cases where there
are no eye witnesses to speak to rashness on negligence, but where the facts
and circumstances are clear and clinching and establish in no uncertain terms
that the occurrence was for no other reason or reasons but on account of
rashness on negligence exhibited by the accused.

II. Mere Careless Not Sufficient

In Chintaram v. State of Madhya Pradesh48 the deceased was walking in

the middle of the road and the accused driving his motor cycle on the left side
of the road tried to pass her from her left as there was a gap of about 15 feet
from the left edge. When the motor cycle was very close to the deceased, she
abruptly went to the left side of the road and was struck by the motor cycle.
The motor cyclist was not negligent because deceased by her erratic decision
to come to her left made the accident inevitable since she did not give any

48
Chintaram v. State of Madhya Pradesh, 1986, A.C.J. 1043, M.P.
 334

reasonable time for the motor – cyclist to avoid her. Therefore, the motor
cyclist was acquitted.

In order to establish criminal liability, the facts must be such that the
negligence of the accused showed such disregard for the life and safety of
others to amount a crime. Mere carelessness is not sufficient for criminal
liability. Section 304A requires a mens rea or guilt mind. The prosecution
has to prove that rash and negligent act of the accursed was the proximate
cause of death. In this case the motor cyclist ran away after hitting a
pedestrian. Inference of guilt cannot be drawn. The conduct of the driver may
be to save himself from the fury of the approaching crowd.

In Syed Akbar v. State of Karnataka49the appellant was accused under

Section 304 – A I.P.C. while discussing the maxim res ipsa loquitur the
liability in torts has also been considered as follows:

“It is clear that even in an action in torts, if the defendant gives no rebutting
evidence but a reasonable explanation equally consistent with the presence as
well as the absence of negligence, the presumption of inference based on res
ipsa loquitur can no longer be sustained. The burden of proving in the
affirmative that the defendant was negligent and the accident occurred by
negligence still remains with the plaintiff and in such a situation it will be for
the court to determine at the time of judgement whether the proven or
undisputed facts as a whole disclose negligence.”

It was further held that the accident has clearly happened by an error of
judgement and not negligence or want of driving skill.

49
Syed Akbar v. State of Karnataka AIR 1979 SC 1848
 335

In Shivaputra Mahadevappa Hadapad v. State of Mysore50the petitioner

was an accused in the trial court. He was convicted for having committed an
offence under section 304 – A, Indian Penal Code. The Session’ Judge
confirmed his conviction. A vehicle left the road, went off side and met with
an accident. This Appellate Court felt this fact by itself was not sufficient to
prove the guilt. No such presumption could be raised. Prosecution must prove
that the death was the direct result of the rash and negligent act of the
accused. A motor cycle may leave the road and collide against some fixed
structure under a variety of circumstances. Merely because the prosecution
proves that the vehicle left the road, it does not necessarily follow that the
accused drove the vehicle rashly or negligently. There may be innumerable
circumstances such as a mechanical breakdown. For instance, in the present
case the trailer in which the deceased was sitting went off the road as a result
of the snapping of the hook which connected it with the tractor.

The High Court set aside the conviction and sentence passed on the petition
for an offence under section 304 – A Indian Penal Code by taking the
observations of Anantanarayanan J. in Re Natarajan allias Natesan51.

His lordship has pointed out in the said decision that: -

“There could be no general presumption that the fact that a car leaves a road,
is evidence of rash and negligent driving. A motor vehicle may leave the
road, proceed on the margin or collide against some fixed structure of the
margin, under a variety of circumstances. Some of those circumstances
certainly, may probabilise rash and negligent driving, but many other
circumstances may not. There can be no burden on an accused to prove that
he was not driving the vehicle in a rash and negligent manner because the

50
Shivaputra Mahadevappa Hadapad v. State of Mysore, 1970 A.C.J. 160 Mys.
51
Anantanarayanan J. in Re Natarajan allias Natesan, AIR, 1966 Mad. 357
 336

prosecution proves the fact that the car has left the road. For instance, as in
the case with regard to all mechanisms, there may be innumerable
circumstances of defect not even within the knowledge of the driver of the
vehicle.

The road may be wet, slippery, or in some manner unsafe. The connection
between the steering mechanism and the propelling mechanism in the car.
Might have been broken, or put out of gear, owing to a large variety of
causes. In such a situation, the driver himself might not know why the car
had suddenly behaved in that manner fraught with danger to the driver
himself and to the other occupants of the car. It is difficult to appreciate how
the driver could establish or prove a fact, such as the disconnection of a
particular mechanism of which he himself might have been genuinely
unaware.”

III. Burden of Proof in Certain Cases

In Mohammad Kasim Abdulgani Mesra v. State of Karnataka52a goods

vehicle hit a tree on the extreme right edge of the kacha portion of the wide
and straight road.

Extensive damage was caused to the front portion of the truck. The driver
explained that a bullock cart coming from the opposite direction was moving
from side to side as the bullocks got frightened by head lights and that the
accident had occurred in avoiding the bullock cart. The driver was rash and
negligent. The bullock cart, if any, is not a vehicle which could emerge
suddenly. The damage to the truck indicates the force of impact and
excessive speed.

52
Mohammad Kasim Abdulgani Mesra v. State of Karnataka, 1984, ACJ. 480 Kar.
 337

The goods vehicle hit a tree on the extreme right end of the road. It was held
by the Appellate Court that the accused driver could be asked to explain the
facts, if it is impossible or disproportionately difficult for the prosecution to
establish certain facts, the said facts being especially within the knowledge of
the accused, he should explain the same.

N. D. Venkatesh, J. observed that “it is true the law as to force in this country
does not cast on the accused the burden of proving that the crime has been
committed by him. At the same time, we should not forget what is provided
for under section 106 of the Indian Evidence Act 1872. Certain facts which
are especially within his knowledge’ should be proved by him. Say, for
example, if he pleads alibi, he must prove the same. Likewise, if the
prosecution succeeds in prima facie establishing the part played by the
accused in the happening and if it is impossible or at any rate
disproportionately difficult for the prosecution to establish certain facts, the
said facts being especially with in the knowledge of the accused concerning
his role in the happening, he should explain the same. It is for him to place on
record and say as to what might have happened or as to how the situation had
developed etc., so that the benefit of the same could be given to him53.”

The observations made in Shambhu Nath Mehra v. State of Ajmir54 may

be noted:

“Section 106 is an exception to section 101. The latter with its illustrations
(a) lays down the general rule that in a criminal case the burden of proof is on
the prosecution and section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately difficult, for

53
Ibid. at 482.
54
Shambhu Nath Mehra v. State of Ajmir, AIR, 1956, SC 404
 338

the prosecution to establish facts which are especially with in the

knowledge’, of the accused and which he could prove without difficulty or
inconvenience. The word ‘especially’ stresses that. It means facts that are
permanently or exceptionally with in his knowledge.”

In Nageswar Shri Krishna Choube v. The State of Maharashtra55a

vehicle mounted the pavement and crashed into an electric pole. The pole fell
on a pedestrian. The pedestrian died. It was contended on behalf of the driver
that he was compelled to swerve the vehicle aside so as to save a pedestrian
who had suddenly rushed into the road. The Trial Court as well as the High
Court on appeal held the driver to be guilty of rash and negligent driving.
Both the courts gave this finding almost exclusively on the basis of the nature
of the accident and on the facts that the driver had failed to stop the vehicle in
spite of seeing that the pedestrian was attempting to cross the road. It was
contended on behalf of the driver that in such cases, the prosecution had to
prove by evidence beyond reasonable doubt that the accused was rash and
negligent and that the mere fact that the accident had taken place in a manner
which did not seem to be normal was not by itself sufficient to cast on the
accused person the onus of establishing his innocence. The prosecution failed
to produce the pedestrian who was injured in the accident while crossing the
road. The Investigating Officer did not give any valid reason for not
examining the said pedestrian. He failed to measure the length of the tyre
marks on the road. None of the passengers in the bus had been examined. He
did not even care to take the measurement of the height of the kerb which
was very relevant factor. Nor did he care to get the vehicle examined by a
mechanic for purpose of ascertaining it its mechanism was in order and
particularly if its brakes were working properly. It was contended on behalf

55
Nageswar Shri Krishna Choube v. The State of Maharashtra, 1973, ACJ.108 SC
 339

of the accused that these lacunae were sufficient to hold that the evidence
was inadequate to bring home the guilt.

The Division Bench of the Supreme Court held that the manner in which the
accident took place will not shift the onus to the accused to prove that he was
innocent. The onus remained on the prosecution; it has to prove beyond
reasonable doubt that the accused was guilty of rash and negligent driving.
Prosecution left vital lacunae in the investigation of the case. The accused
was given the benefit of doubt and was acquitted. The Supreme Court further
observed that

“Justice would fail not only by unjust conviction of the innocent but also the
acquittal of the guilty for unjustified failure to produce available evidence”56.

IV. Rash and Negligent Driving

In case of Ratnam v. Emperor57 the court held that a person driving a motor
car is under a duty to control that car; he is prima facie guilty of negligence if
the car leaves the road and crashes headlong into a tree and it is for the
person driving the car to explain the circumstances under which the car came
to leave the road. Those circumstances may be beyond control, and may
exculpate him, but in the absence of such circumstances, the fact that the car
left the road is evidence of negligence on the part of the driver. The accused
was found guilty under section 304-A.

In this connection, the following observation regarding facts speaking for

themselves in Shakila Khader v. Nausher Gama58 are as follows:

56
Ibid. at 115.
57
Ratnam v. Emperor, AIR, 1935 Mad. 209
58
Shakila Khader v. Nausher Gama, 1975 ACJ. 363 S.C.
 340

“the facts in the case speak eloquently about what should have happened. The
main criterion for deciding whether the driving which led to the accident was
rash and negligent is not only the speed but the width of the road, the density
of the traffic and the attempt, as in this case, to overtake the other vehicle
resulting in going to the wrong side of the road and being responsible for the
accident.”

In Sajjan Singh v. State of Punjab59 petition was convicted by Judicial

Magistrate under section 304A Indian Penal Code on appeal, his conviction
and sentences were upheld by Additional Session Judge. He has challenged
his conviction sentence by way of this appeal. The facts of the case are that
an accident took place between a Matador van and tractor trolley coming
from opposite directions. The right side of the van was ripped apart resulting
in death of four passengers and injuries to many others. The petitioner, the
tractor driver was convicted of rash and negligent driving and sentenced.
The Matador driver ran away after the accident and the police were informed
by the petitioner.

The petitioner controverted the prosecution and stated that the tractor was on
the left side at slow speed and the van driver swerved the van to his wrong
side and struck against the trolley; that the van driver was in a drunken
condition and that the accident happened due to the rash and negligent
driving of the van. The Matador was found on the wrong side of the road and
its driver not produced to explain how the van went to the other side of the
road. It was held by the Appellate Court that the version of the tractor driver
more probable and that it is not safe to maintain the conviction of the
petitioner. He is given the benefit of doubt and acquitted.

59
Sajjan Singh v. State of Punjab, 1986 ACJ. 88 P & H.
 341

In Francis Xavier Rodrigues v. State60 case two labourers were traveling in

the body of the truck killed and three other labourers were injured two of
them seriously. The petitioner was negligently driving said truck on the
aforesaid day when the truck reached near the place of accident and dashed
against a telephone pole, situated on the right hand side of the road.
Thereafter, it went ahead and dashed against a mango tree which broke down
and then again hit a coconut tree which fell on the truck. Only thereafter the
truck came to half after traveling for a distance of 128 meters. The
prosecution charged under 279 and 304A.I.P.C. The lower court affirmed
that the driver was rash and negligent. The High Court of Bombay also
affirmed the sentence appreciating the evidence since the above facts were
not disputed by petitioner even by way of putting suggestions to the
witnesses, itself would speak volumes about the negligent act of the
petitioner. Court felt that it is a fit case where the principle of res ipsa
loquitur should be applied. The accident as mentioned above will speak for
itself for the rash and negligent act on the part of the accused.

In Golan Jilani Khan v. The State61, the petitioner a driver had been
convicted under section 304A and 337, Indian Penal Code and sentenced to
undergo rigorous imprisonment for 6 months under the former court without
any sentence being passed under the latter and the same has been confirmed
in first appeal. In this case the truck ran into a stationary bus. It knocked
down a pedestrian and injured several persons while negotiating a curve. The
High Court of Orissa held that the facts spoke for themselves and the doctrine
of res ipsa loquitur was applicable.

60
Francis Xavier Rodrigues v. State, 1997 Cri L.J., 1374 Bom.
61
Golan Jilani Khan v. The State, 1972, ACJ 431, Ori.
 342

In this case K.B.Pande, L observed that the evidence is that the accused did
not blow horn. The motor vehicle expert says that there was no mechanical
defect and that at the time he took trial the brake was not functioning. It is
also evident that the truck dashed against the body of the standing bus so
violently that the mud-guard of the truck got bent and touched the tyre. This
is only possible after the front bumper has got bent. A portion of the body of
the bus came out and some inmates of the bus sustained injuries. That apart,
Jateswar who was sitting on the carrier of the cycle fell down and was run
over where as the rider of the cycle Benudhar Das fell down and got certain
injuries.

It was contended that the vehicle in question was moving at a speed of 15

miles or so per hour. If that were so, by application of the brakes with the
load on, it would have stopped within 2 cubits and there could not have been
such an impact of the bus after running over the cyclist sitting on the carrier.
When the road was taking a curve and a bust was standing and a cyclist
passing, the petitioner should have been more cautious; but as the facts speak
for themselves, he was both rash and negligent; and the death of the man,
injuries to others and dashing against the bus are the direct result of his rash
and negligent conduct, in driving the truck. If the truck was all right and
there was no mechanical defect, the petitioner was obviously guilty of
rashness and negligence in not blowing the horn and not applying the brakes
at the right time. In the alternative, if the brakes were defective, he should
not have driven the truck with that load resulting in the death of one and
injuries to the other and damages to the bus. This is a case where the
principle of res ipsa loquitur, which means, “facts speaks for themselves”
applies. In support of the decision, Pitabas Panda v. State62 is mentioned.

62
Pitabas Panda v. State, 1972,ACJ. 432 Ori.
 343

V. Culpable Rashness

In Mohammed Aynuddin alias M alias Miyam v. State of Andhra

Pradesh63 the court held that “a rash act is primarily an over – hasty act. It is
opposed to a deliberate act. Still a rash act can be a deliberate act in the sense
that it was done without due care and caution. Culpable rashness lies in
running the risk of doing an act with recklessness and with indifference as to
the consequence. Criminal negligence is the failure to exercise duty with
reasonable and proper care and precaution guarding against injury to the
public generally or to any individual in particular. It is the imperative duty of
the driver of a vehicle to adopt such reasonable and proper care and
precaution.”

The facts in this case are that a passenger fell down while boarding a bus as
the driver moved the bus. She as crushed under rear wheel of the vehicle and
died. Neither the conductor nor any other witness deposed that the driver had
moved the vehicle before getting the signal to move forward. Evidence is too
scanty to fasten the driver with criminal negligence. Some evidence is
indispensably needed to presume that the passenger fell down due to
negligence of the driver. The Trial Court, the Session Court and the High
Court in revision convicted the driver and sentenced him to Imprisonment for
3 months. The Apex Court observed that it cannot be concluded that the
victim had fallen down only because of the negligent driving of the bus. The
conviction was set aside and the driver was acquitted.

K. T. Thomas J observed that:

“the principle of res ipsa loquitur is only a rule of evidence to determine the
onus of proof in actions, relating to negligence. The said principle has

63
Mohammed Aynuddin alias M alias Miyam v. State of Andhra Pradesh, 2001, ACJ 13 SC
 344

application only when the nature of the accident and the circumstances would
reasonably lead to the belief that in the absence of negligence the accident
would not have occurred and that the thing which caused injury is shown to
have been under the management and control of the alleged wrong
doer……….”

In the present case the possible explanation the driver is that he was unaware
of even the possibility of the accident that had happened. It could be so.
When he moved the vehicle forward his focus normally would have been
towards what was ahead of the vehicle. He is not expected to move the
vehicle forward when the passengers are in the process of boarding the
vehicle. But when he gets a signal from the conductor that the bus can
proceed he is expected to start moving the vehicle. Here no witness has said,
including the conductor that the driver moved the vehicle before getting
signal to move forward. The evidence in this case is too scanty to fasten him
with criminal negligence.

Some further evidence is indispensably needed to presume that the passenger

fell down due to the negligence of the driver of the bus. Such further
evidence is lacking in this case. Therefore, the Court is disabled from
concluding that the victim fell down only because of the negligent driving of
the bus. The corollary thereof is that the conviction of the Appellate of the
offence is unsustainable. In the result the Apex Court allowed these appeals
and set aside the conviction and sentence and he is acquitted”64.

64
Ibid. at 15.
 345

VI. Proof of Criminal Liability

In Penu v. State, S. Acharya65, J. observed that merely because the tractor’s

wheel ran over the Morrum heap it cannot be said that the petitioner was
recklessly driving the vehicle in a rash or negligent manner knowing that
injury was most likely to be occasioned thereby. Moreover, the deceased by
sitting on the tool box on the tractor in between the driver and the bonnet
without any firm protection except the mudguard of the vehicle, took upon
himself the risk and the consequences of his own act. As the deceased was
the immediate boss of the petitioner it was not excepted of the latter to ask
the deceased not to sit on the tractor in aforesaid manner, or that he would
not drive the vehicle with the deceased sitting on it in that manner. There is
no evidence of recklessness or indifference to the consequences on the part of
the petitioner in this case. Considering the facts and circumstances of the case
I am of the view that criminal rashness or negligence, which is required to
constitute an offence either under section 279 or under section 304A, Indian
Penal Code, cannot be attributed to the petitioner beyond reasonable doubt,
more so on the admitted prosecution evidence that he was, driving the vehicle
slowly and carefully, on the above considerations the conviction of the
petitioner under section 279 and 304A, Indian Penal Code, cannot be
maintained. Accordingly his conviction for the said offences and the
sentence paused against him there under are hereby set aside, and he is
acquitted of the same.

In this case it was held that criminal rashness or negligence cannot be

presumed merely on the application of the maxim res ipsa loquitur. Proof of
criminal liability is essential to constitute an offence.

65
Penu v. State, S. Acharya, 1980, ACJ.294 Ori.
 346

In Nand Lal v. State66, the petitioner was convicted of an offence under

section 304A by Metropolitan Magistrate. The Petitioner while driving the
motor cycle suddenly knocked against a mile stone resulting in death of
woman who was a pillion rider. The learned Additional Sessions Judge has
sustained the conviction of the Appellant for the said offence on the ground
that the very fact that motor cycle hit the milestone showed that the accused
was rash and negligent. It is pointed out that the milestone was evidently
beyond the kacka brim of the road and as such the motor cycle of the
petitioner could not have run into the mile stone unless he had lost complete
control over it. The principle of res ipsa loquitur was applied. But the
appellate Court was highly doubtful that the said principle would be attracted
to the facts of the instant case.

J. D. Jain, J. observed as follows:

‘It is well settled that in a criminal case the prosecution has to establish the
guilty of the accused beyond reasonable doubt and section 304A, Indian
Penal Code, cannot be held to be an exception to the rule. However, the onus
on the accused, if any, is discharged on the theory of balance of probabilities.
So from the mere fact that a motor vehicle leaves the road and meets with an
accident resulting in death, there can be no presumption that the accused was
driving the vehicle in rash or negligent manner and that he is bound to
explain how the vehicle left the road. Further the negligence of the accused
in a criminal case must be such that it goes beyond mere matter of
compensation and shows such disregard for life and safety of people as to the
commission of a crime. It must be of a high degree and not of the type which
gives rise to claim for compensation. In other words, simple lack of care
may give rise to a civil liability but without mens rea and such degree of

66
Nand Lal v. State, 1980, A.C.J. 423, Delhi
 347

culpability as amounts to gross negligence, there is no criminal

liability………….’

Hence the Court held that the mere fact that the motor cycle in this case left
the road and hit against milestone would not be presumptive proof of rash
and negligent driving requiring the petitioner to prove to the contrary. The
prosecution must stand on its own legs rather than take advantage of the
weakness of defence. At any rate, the explanation furnished by him in this
case in quite plausible and he is entitled to benefit of doubt.

Accordingly the Court affirmed this revision petition and set aside the
conviction as well as sentence of the petitioner’s for the aforesaid offence67”.
This judgement is given based upon Sarwar Khan v. State of Andhra
Pradesh68.

In Rattan Singh v. State of Punjab69 the Supreme Court refused to interfere

in the sentence imposed by the trial court. It is appropriate to extract here the
observation of Justice Krishna Iyear J. who delivered judgment.

“in our current conditions, the law under section 304A I.P.C. and under
rubric of negligence, must have due regard to the fatal frequency of rash
driving of heavy duty vehicle and of speeding menaces. Thus viewed, it is
fair to apply the rule of res ipsa loquitur, of course, with care conventional
defenses, except under compelling evidence, must break down before the
pragmatic court and must be given shift.”

The question of evidentiary value of judgements of criminal cases in civil

action torts:

67
Ibid. at 425.
68
Sarwar Khan v. State of Andhra Pradesh, AIR, 1968, AP 290
69
Rattan Singh v. State of Punjab, 1939 1 M.L.J. 660
 348

Chakka Jogga Rao J. has held whether the fact that the defendant has been
convicted or acquitted in a criminal case would be relevant as to the fact of
conviction or acquittal and it would be totally irrelevant on the question;
whether conjunction or acquittal was right. According to the learned judge,
if the conviction was held to be right, it would forever far an accused person
from defending an action in torts on the merit. One striking example would
be that a motor vehicle driver convicted of negligent driving in a criminal
case would be unable to deny that he was negligent in answer to the civil
court.

I. Review

Negligence is basic element in a claim for compensation for death, bodily injury
or damage to property of a third party caused by accident arising out of use of a
motor vehicle, but whereas death or bodily injury caused by rash or negligent
driving, and rash and negligent driving itself, are crimes defined and made
punishable under the Indian Penal Code, 1860, causing damage to property by
some negligent act has not been included in the catena of offences defined and
described under the said penal code. The following are the offences cognizable
under the Indian Penal Code as committed by or in relation to the use of Motor
Vehicle.

Section 279 I.P.C. states that whoever drives any vehicle or rides on any public
way in manner so rash and negligent as to endanger human life or to be likely to
cause hurt or injury to any other person shall be punished with imprisonment of
either description for a term which may extend to six months or with fine which
may extend to one thousand rupees or with both.

Section 304A I.P.C. dealing with causing death by negligence, and states that
whoever causes the death of any person by doing any rash or negligent act not
 349

amounting to culpable homicide shall be punished with imprisonment of either

description for a term which may extend to two years or with fine or both.

Section 336 I.P.C. deals with Act Endangering Life or Personal Safety of Others.
It is provided in the act that whoever does any act so rashly or negligently as to
endanger human life of the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to three months,
or with fine which may extend to Rs. 250/-, or with both.

Section 337 deals with cases causing hurt by acts endangering life or personal
safety of others and states that whoever causes hurt to any person by doing any
act so rashly or negligently as to endanger human life, or the personal safety of
others, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine which may extend to one thousand
rupees, or with both.

Section 338 deals with cases causing grievous hurt by acts endangering life or
personal safety of others and states that whoever causes grievous hurt to any
person by doing any act so rashly or negligently as to endanger human life, or
the personal safety of others, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine which may
extend to one thousand rupees, or with both.
 350

CHAPTER – VII

CONCLUSIONS AND SUGGESTIONS

 351

CHAPTER – VII

CONCLUSIONS AND SUGGESTIONS

A. General

Right to life and safety is the fundamental right of any citizen. This is guaranteed
under the constitution of every country in the world including India. However,
more people die every year from road accidents all over the world than the
number killed during the whole of the Second World War. Studies by World
Bank have estimated that about 5, 00,000 people lose their life each year as a
result of road accidents and over 15 million suffer injuries. About 70 percent of
these occur in developing countries, particularly in African and Asian countries1.

Road fatalities are due to a number of reasons, primary among them are bad
condition of roads and traffic violations, poor implementation of various laws
governing road traffic and safety issues, and last but not the least, the faulty
engineering of road mechanics, may it be road design or traffic lighting etc.
Furthermore, lack of awareness of road safety issues amongst the masses and
apathy of the policy makers and implementers add to the increasing problem of
road safety2.

More than 1.2 million people die in road accidents world over while 50 million
are injured every year. But more alarming is the fact that the tally is on the rise
as motorized transport becomes increasingly the choice of millions especially in
the third world. The figures are projected to rise by as much as 65% by 2020.

1
Accessed on Website, www.indiandrivingschool.com on 18.10.2010 at 2.35 p.m
2
Ibid.
 352

There has been 170-fold increase in the number of motor vehicles (from
300,000) on Indian roads in the past 50 years whereas the road network has
expanded only nine folds. Though the latter situation heads for marked
improvement with ambitious expressways and other road networks now making
significant strides, measures taken to ensure road safety for commuters in India
have been far from the minimum by any standard3.

B. Conclusion

On the basis of the study made in this work some conclusions have been
drawn. These are discussed, in brief as under:

I. Dubious Distinction.

India has the dubious distinction of being one of the countries with the
highest number of road accidents and the longest response time in securing
first aid and medical treatment. The terrible figures of road accidents yield a
cart-load of case law, which, of course, is not an elegy on the dead but real
tribute on this threatening piece of legislation. Each case however, bears its
own imprint which cannot be universalized. The paradoxes involved in each
individual motor accident case had posed four confounding situations,
namely:

1. A section of accident victims doubly unfortunate, first in getting

involved in an accident yet not getting compensation.

2. Widespread practice of using goods vehicles for passenger traffic.

3. Procedural delays in settlement of claims

3
Ibid.
 353

4. Duty of courts to award compensation and secure it to the advantage

of those for whom it was meant4.

II. Accident: Pre-Condition in MACT Cases

Accident is an event happening without concurrence of will of the person by

whose agency it was caused. The term ‘accident’ for the purpose of law
relating to compensation includes any injury not designed by the injured
himself, and it is of consequence that the injury was designed and intended
by the person inflicting the same5.

For acceptance of an application for compensation in Motor Accident Claims

Tribunal, it is necessary to prove that the injury or death has been occurred in
an accident and also the fact that the said accident has arisen out of the use of
the motor vehicle6.

III. Accident Arising Out of Motor Vehicle

The expression ‘an accident arising out of the use of a motor vehicle’ is the
foundation of a claim for compensation and is, therefore, of vital
significance. In construing the scope of the expression ‘ accident arising out
of the use of a motor vehicle’, it can be said that the word ‘use’ is used in the
Act in a wide sense so as to cover all employments of a motor vehicle, so that
whichever the vehicle is put into action or service, there is ‘user’ of the
vehicle within the meaning of the Act, whether the vehicle was being driven
or repaired or simply parked or kept stationary or left unattended and in that
sense, the vehicle is used, whenever the vehicle is driven out for any purpose,
whatsoever. This, without anything more, is sufficient to attract the
provisions of the Act. Thus, whenever any accident occurs causing death of

4
Supra, Chapter I n. 6.
5
Supra, Chapter II nn. 24, 26, 27 and 28
6
Supra, Chapter II, nn.39, 40 and 41
 354

or bodily injury to persons because of the vehicle or in the course of its use,
the jurisdiction of the Claims Tribunal arises7.

IV. Status of Gratuitous Passenger

A gratuitous or fare paying passenger in a goods vehicle or fare paying

passenger in private vehicle has been proved to be a good defence. In the
Motor Vehicle Act 1939 the gratuitous passenger was not covered under the
insurance policy but a fare passenger in a goods vehicle was considered to be
covered by 5 Judges Bench judgment of Rajasthan High Court. However,
under the new Motor Vehicle Act, a Division Bench of Supreme Court held
that Insurance Company is liable for a passenger in goods vehicle. But, in
another judgment of 3 Judges Bench of Supreme Court, it was held that the
Insurance Company is not liable for the gratuitous passenger traveling in the
goods vehicle. In number of other cases, this judgment has been reiterated
with a direction that the Insurance Company shall first make payment of the
compensation to the claimant and then recover it from the owner8.

V. Claims in Hit and Run Cases

A Scheme under section 163 in the name of Solatium Scheme, 1989 has been
framed and Rule 20 of that Scheme makes it clear, that an application for
compensation thereunder has to be filed in Form 1 before the Claims Enquiry
Officer of the Sub-Division in which the accident has taken place and not
before the Motor Accidents Claims Tribunal9. The applications for
compensation under that Scheme have to be decided expeditiously. Where an
application for compensation in a hit and run accident had been kept pending

7
Supra, Chapter II nn. 42, 43 and 44
8
Supra, Chapter II nn. 91,92,93,94 and 95
9
Supra, Chapter II nn.114 and 115.
 355

for more than four years, direction was issued, in writ jurisdiction, to decide
the application within three months10.

VI. Payment of Compensation on Structured Formula Basis

Section 163A of the Act provides for special provisions as to payment of

compensation on structured formula basis11. It provides that notwithstanding
anything contained in this Act or in any other law for the time being in force
or instrument having the force of law, the owner of the motor vehicle or the
authorised insurer shall be liable to pay in the case of death or permanent
disablement due to accident arising out of the use of motor vehicle
compensation, as indicated in the Second Schedule, to the legal heirs or the
victim, as the case may be12.

VII. MACT is a Tribunal

A new forum, i.e. Motor Accidents Claims Tribunals, which substitutes Civil
Courts has been created by the Motor Vehicles Act, for cheaper and speedier
remedy to the victims of accident of motor vehicles13. Prior to the Motor
Vehicles Act, a suit for damages had to be filed with civil court, on payment
of ad valorem court fee14. Under these provisions an application claiming
compensation can be made to the Claim Tribunal without payment of ad
valorem fee. The Claims Tribunal, though not a Civil Court, in the strict
sense of that expression, Section 3 of the Civil Procedure Code, relating to
the subordination of courts, may not have application qua a Claims Tribunal.
As a court of District Judge designated as a Claims Tribunal, will be

10
Supra, Chapter II nn.106 and 109.
11
Supra, Chapter II nn.116 and 117.
12
Supra, Chapter II nn. 118, 119 and 120.
13
Supra, Chapter III n.1.
14
Supra, Chapter III n.2.
 356

subordinate to the High Court for the purpose only of the Civil Procedure
Code, but not for the purpose of the Motor Vehicles Act, except Section 173
of the Motor Vehicle Act, whereunder the High Court sits as court of appeal
against award passed by Claims Tribunal15.

VIII. Tribunal to be Deemed as Civil Court

Technically and grammatically speaking, Tribunal may not be a civil court,

but it has all the trapping of court since it passes an award which has all the
ingredients of a judgement as known under civil jurisprudence. The Claims
Tribunal is a deemed Civil Court for all purposes of Section 195 of Cr. P.C.
1973, read with the provisions of Chapter XXVI of that Code16.

To say that Claims Tribunal is a Court is entirely different from saying that a
Claims tribunal is a Civil Court. It is a civil court for all intents and purposes
of adjudication of claims for compensation in motor accident cases. From the
scheme of the Motor vehicles Act and the Rules framed thereunder, it is clear
that a Claims tribunal is constituted for a specific area, which is specified in
the notification for adjudication of such claim17.

IX. Application for Compensation Must be Complete and Proper

The institution of the proceedings is by an application for compensation. The

tribunal disposes such application by giving the parties an opportunity of
being heard and holding an inquiry in to the claim and it has to make an
award determining the amount of compensation to be paid and the amount
which is to be paid by the insurer18.

15
Supra, Chapter III n. 19.
16
Supra, Chapter III nn. 20 and 21.
17
Supra, Chapter III n.23.
18
Supra, Chapter III nn. 26, 27, 28 and 29.
 357

An application for compensation arising out of an accident of the nature

specified in Section 165(1) of the Motor Vehicles Act, may be made by the
person who has sustained the injury or by the owner of the property or where
death has resulted from the accident, by all or any of the legal representatives
of the deceased or by any agent duly authorised by the person injured or all
or any of the legal representatives of the deceased, as the case may be19.

Claim application should contain all the necessary information like name,
age, address and occupation of victim and also applicant if different from
victim along with name and addresses of defendants. Further, the claim
application should be accompanied with all the necessary documents like
FIR, Panchnama, Medical Report or Post Mortem Report, Identity proof of
the claimants, original expenses bill etc., and it should be complete in all
respect20.

In the cases, where a person comes up with a prayer that he may be permitted
to file Claim Application or Appeal as an indigent person, by permitting him
to file such application as indigent person, payment of court fee is only being
deferred to advance the cause of justice to poor persons21.

Tribunal has no jurisdiction to accept an application for compensation where

death occurred due to Heart Attack22. Claim application for compensation
can be made on behalf of Minor Person by his guardian or parents.

X. Amendment in Claim Application

An amendment in claim petition may be allowed by the claims tribunal at any

time before it passes its final judgement. Amendment in claim application

19
Supra, Chapter III n.33
20
Supra, Chapter III n.34
21
Supra, Chapter III nn. 55 and 56
22
Supra, Chapter III n.58.
 358

may be of enhancement of Compensation amount, adding of defendants or

any other kind23. An amendment in claim petition for enhancement of amount
of compensation can be sought before the Tribunal but not before the
appellate court24.

XI. Jurisdiction of Claims Tribunal

The pecuniary jurisdiction of the Claims Tribunal has a double implication

i.e. compensation in case of death or bodily injury and in respect of damage
caused to any property25. Where any Claims Tribunal has been constituted for
any area, no Civil Court shall have jurisdiction to entertain any question
relating to any claim for compensation which may be adjudicated upon by
the Claim Tribunal for that area26.

Claims for compensation arising out of use of motor vehicles cannot be

adjudicated by any of the Consumer Disputes Redressal Forums
contemplated and created under Consumer Protection Act, 1986. Consumer
Disputes Redressal Forums has no jurisdiction whatsoever to entertain claim
application and award compensation27.

The claimant can file an application within the jurisdiction of claims tribunal
(1) where the accident occurred, or (2) before the tribunal within local limits
of whose jurisdiction, claimant resides or carries on his business, or (3)
within local limits of whose jurisdiction, the defendant resides or carries on
his business28.

23
Supra, Chapter III nn. 76 and 78.
24
Supra, Chapter III n. 79.
25
Supra, Chapter III n. 38.
26
Supra, Chapter III nn. 39, 42, 43 and 44.
27
Supra, Chapter III n. 46.
28
Supra, Chapter III nn. 50 and 51.
 359

XII. Claimant can Withdraw Applications and file it at Appropriate

Place

Where the claim was filed in a tribunal having Jurisdiction over the area in
which the accident occurred or defendant resides, but the claimant having
become totally crippled and unable to prosecute his claim there, he may be
allowed to withdraw his claim and file it afresh at a place where he usually
resides29.

XIII. Award of Claim Tribunal and Appeal

On receipt of an application for compensation made under Section 166 of the

Motor Vehicles Act, the Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the parties (including the insurer)
an opportunity of being heard, hold an inquiry into the claim or, as the case
may be, each of the claims and, subject to the provisions of section 162 may
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 and in 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 be30.

The assessment of compensation is to be guided by way of applying

precedents on the facts and circumstances of a particular case. It should not
be misunderstood that injured himself or legal representatives of the deceased
should be given exorbitant claim, but the law restricts them for "just and fair

29
Supra, Chapter III nn. 60, 61 and 62.
30
Supra, Chapter III nn. 71 and 72.
 360

compensation" so as to save the injured or legal representatives of deceased

from possible pecuniary and non-pecuniary losses guided by the judgments31.

Where any Claims Tribunal allows a claim for compensation made under this
Act, such Tribunal may direct that in addition to the amount of compensation
simple interest32 shall also be paid. The Claims Tribunals may also award
special compensatory costs33 in certain cases, where it is found that there has
been mis-representation of case or vexatious to claims or defence34.

An aggrieved party may file an appeal to High Court against the orders of
Claim Tribunal and where the person aggrieved is the person who has to pay
the compensation such person shall deposit 50 percent of the amount
awarded or Rs. 25,000.0035 whichever is less, as directed by the High Court.
Such appeal should be filed within 90 days36 from the date of the award.

XIV. Execution of Award and Recovery of Amount as Land

Revenue.

Executing court is not empowered to reconsider any aspect of award afresh

but is required to execute it as passed by trial court37. The executing court
while enforcing the award cannot travel beyond the main award. Execution
of award if taken out after twelve years is not permissible. The award if not
executed within twelve years becomes inoperative and unenforceable38. The
tribunal possesses inherent jurisdiction to enforce its own award in

31
Supra, Chapter III nn. 102 and 103.
32
Supra, Chapter III n. 108.
33
Supra, Chapter III nn. 109 and 110.
34
Supra, Chapter III nn. 111 and 112.
35
Supra, Chapter III n. 118.
36
Supra, Chapter III n. 117.
37
Supra, Chapter III n.99.
38
Supra, Chapter III n. 101.
 361

accordance with the provisions of the Code of Civil Procedure as applicable

to execution of orders and decrees passed by a civil court39.

Where any amount is due from any person under an award, the Claim
Tribunal may, on an application made to it by the person entitled to the
amount, issue a certificate for the amount to the Collector and the Collector
shall proceed to recover the same in the same manner as an arrear of land
revenue40.

XV. Principle of Tortious Liability and Motor Accident Cases

The case law relating to Motor Vehicle Accident Cases, which have been
judicially determined in High Courts and the Supreme Court in India, are
having application of the principles of tortious liability such as, No Fault
Liability, Contributory Negligence, res ipsa loquitur in negligence cases, Act
of God, Absolute and Vicarious Liability etc., in other cases41.

(a.) No Fault Liability

Where the death or permanent disablement of any person had resulted due
to an accident, the owner of the vehicle shall be liable to pay compensation
in respect of such death or disablement to pay a fixed amount for such
liability on the basis of no fault liability. The claimant is not required to
plead or establish that the death or permanent disablement in respect of
which the claim had been filed was the result of the wrongful act, neglect or
fault of the owner of the vehicle42. Amount of compensation is a fixed

39
Supra, Chapter III n.100.
40
Supra, Chapter III n. 125.
41
Supra, Chapter IV n.1.
42
Supra, Chapter IV n.3.
 362

amount of Rs. 50,000/- in case of death and Rs. 25,000/- in case of

permanent disablement43.

Compensation awarded under no fault liability does not bar the victim to
claim compensation under any other law for the time being in force, though
the amount of such compensation to be given under any other law shall be
reduced by the amount of compensation payable under no fault liability44.

(b.) Act of God

In Hindu Religion, it is considered that whatever happens in the world is

Act of God, yet in legal parlance, the expression Act of God is a mere short
way of expressing the proposition that a common carrier is not liable for
any accident as to which he can show that it is due to natural causes,
directly and exclusively, without human intervention and that it could not
have been prevented by any amount of foresight and pains and care
reasonably to be expected of him45.

The expression Act of God signifies operation of natural forces free from
human intervention, such as lightning or severe gale, snow storming,
hurricanes, cyclones and tidal waves and the like, though every non-
expected wind or storm cannot operate as excuse from liability if there is
reasonable possibility of anticipating their happening e.g. the possibility of
extraordinary floods in particular region being within competence of
authorities to take precautionary steps46.

(c.) Vicarious Liability

43
Supra, Chapter IV n.6.
44
Supra, Chapter IV n.7.
45
Supra, Chapter IV n.19.
46
Supra, Chapter IV n.22.
 363

Normally no person is held responsible for the wrongs done by someone

else. However, there are few instances wherein a person can be held liable
for the conduct of another person47. This liability is known as Vicarious
Liability. For example, liability of the Principal for the act of his Agent,
liability of the Partners for the tort committed by a partner of a firm, and
liability of the Master for the act of his Servant48.

(d.) Strict and Absolute Liability

Rules of Strict and Absolute Liability are based on the concept of ‘No fault
liability’. At times a person may be held responsible for some wrong
though there was no negligence or intention on his part to do such wrong.
This rule was laid down by the House of Lords in Rylands v Fletcher49
and hence it is also commonly termed as the Rule in Rylands v Fletcher.
In India, this rule was formulated in the case of M.C. Mehta v Union of
India, wherein the Supreme Court termed it as ‘Absolute Liability’.

Where an enterprise is engaged in a hazardous or inherently dangerous

activity, the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident, and such liability is not subject to
any of the exceptions which operate vis a vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher50.

(e.) Negligence and Contributory Negligence

What constitutes negligence varies under different conditions and in

determining whether negligence exist in a particular case, or whether a
mere act or course of conduct amounts to negligence, all the attending and

47
Supra, Chapter IV nn.39 and 40.
48
Supra, Chapter IV n. 41, 42 and 43.
49
Supra, Chapter IV n.45.
50
Supra, Chapter IV nn.44, 47, 49, 50 and 53.
 364

surrounding facts and circumstances have to be taken into account51. To

determine whether an act would be or would not be negligent, it is relevant
to determine, if any reasonable man would foresee that the act would cause
damage or not52.

Contributory negligence has been defined as “a plaintiff’s own negligence

that played a part in causing the plaintiff’s injury and that is significant
enough to bar the plaintiff from recovering damages. Where contributory
negligence on the part of plaintiff is proved then the Tribunal may award
lesser amount as compensation, and the compensation amount may be
reduced to the extent of contributory negligence of the plaintiff himself53.

(f.) Res Ispa Loquitur

Res Ispa Loquitur54 is a rule of evidence coming into play when

circumstances suggest negligence of driver of the vehicle, but in some cases
considerable hardship is caused to the plaintiff as the true cause of the
accident is not known to him, but is solely within the knowledge of the
defendant who caused it55. The plaintiff can prove the accident but cannot
prove how it happened to establish negligence. This hardship is to be
avoided by applying the principle of res ispa loquitur56.

The general import of the words res ispa loquitur is that the accident speaks
for itself. There are cases in which the accident speaks for itself so that it is
sufficient for the plaintiff to prove the accident and nothing more57. The
maxim applies whenever it is so improbable that such an accident would

51
Supra, Chapter IV n. 73.
52
Supra, Chapter IV nn. 74 and 75.
53
Supra, Chapter IV nn. 79 and 80.
54
Supra, Chapter IV n.88.
55
Supra, Chapter IV n.89.
56
Supra, Chapter IV n.90.
57
Supra, Chapter IV n.92.
 365

have happened without the negligence of the defendant that a reasonable

jury could find without further evidence that it was so caused58.

XVI. Treatment and Disbursement of Compensation Amount.

While making its award for compensation, the Claims Tribunal also
determine the part of the compensation amount each claimant will receive
and how the amount of compensation awarded to minor, uneducated,
ignorant, or not worldly-wise59. Compensation amount awarded invariably be
invested in long term fixed deposits and in case of minor till the date of the
minor attaining majority60. However, amount of compensation may be
allowed to be withdrawn for the expenses incurred for filing of claim, to meet
expenses of treatment of Personal Injury and in case of Emergency. Bank
should not grant loan or advance against the fixed deposit of amount of
compensation and also to affix note on fixed deposit receipt that no loan or
advance should be granted61.

XVII. Liability of Insurance Company

The insured bonafidely believing in the validity of a forged driving licence

employing the holder of a fake driving licence renewed by a competent
authority would not amount to violation of the conditions of contract or of the
insurance policy62. It would not be violating either conditions of indemnity or
the insurance policy or the contract or violation of any statutory provisions.
Under these circumstances, merely employing a driver with a forged driving
licence would not absolve the insurer of its liability63.

58
Supra, Chapter IV n.93.
59
Supra, Chapter IV nn. 319 and 320.
60
Supra, Chapter IV n. 322 and 323.
61
Supra, Chapter IV nn. 326 and 327.
62
Supra, Chapter IV nn. 330 and 331.
63
Supra, Chapter IV nn. 332 and 333.
 366

When a valid insurance policy has been issued in respect of a vehicle as

evidenced by a certificate of insurance, the burden is on the insurer to pay the
third parties, whether or not there has been any breach or violation of the
policy conditions. But the amount so paid by the insurer to third parties can
be allowed to be recovered from the insured if as per the policy conditions,
the insurer had no liability to pay such sum to the insured64.

The insurance company cannot refuse to meet its liability qua third party for
any act or omission bonafidely or otherwise committed by the insured or its
liability in as much as third party for whose benefit the insurance has been
provided, is not a privity to any breach as being not in control of the act or
conduct of the insured or its employee or insurer. Thus, the insurance
company cannot refuse to meet its liability qua third party65.

XVIII. Lok Adalat and Motor Accident Cases.

The idea behind formation of Lok Adalats is no doubt to expeditiously settle

the claims and disputes between the parties. But at the same time the court
should not forget its obligation under law to protect the interest of the parties,
specially the claims of minors and persons of unsound mind66.

The Lok Adalat has no jurisdiction to decide matters without the consent of
parties to the matters67. Lok Adalats have jurisdiction to decide matter
relating to accident claims in which insurer disputed the claim68. In a claim
petition on behalf of Unsound Person and Minor, no settlement or

64
Supra, Chapter IV nn. 334 and 335.
65
Supra, Chapter IV nn 337 and 338..
66
Supra, Chapter V n. 13.
67
Supra, Chapter V n. 11.
68
Supra, Chapter V n. 12.
 367

compromise could be arrived at without the permission of the court as

required under Rules 6 and 7 of Order 32 of Civil Procedure Code69.

Where the Court refers the parties to the suit to any one of the mode of
settlement of dispute referred to in Section 89 of the Code of Civil Procedure,
1908 (5 of 1908) the plaintiff shall be entitled to a certificate from the Court
authorizing him to receive back from the collector, the full amount of the fee
paid in respect of such plaint70.

In case of absence of claimant or for any other reasons, the Lok Adalats
cannot dismiss the claims of the claimants on the basis of default of claimant.
The Lok Adalats must return the records of the matter to the concerned Court
or Tribunal by making a noting that compromise or settlement failed71.

It is settled law that no appeal lies against the award of a Lok Adalat as Lok
Adalat’s award is always based on consent decree72. Every award of Lok
Adalat is deemed to be decree of civil court as per section 21 of Legal
Services Authorities Act. Hence, every award made by Lok Adalat is final
and binding on all the parties to the dispute73.

XIX. Motor Accident as Crime: Liability to Pay Compensation

The principles of liability governing civil actions and criminal prosecutions

based on negligence differ. Criminal Law both in England and in India
recognizes degree of negligence. The negligence which would justify
conviction must be culpable or of gross degree and not negligence founded
on a mere error of judgment or defect of intelligence. One of the grey areas of
the law is relating to the legal consequences of accidents and the action to be

69
Supra, Chapter V n.14.
70
Supra, Chapter V n. 10.
71
Supra, Chapter V n.20.
72
Supra, Chapter V n.21.
73
Supra, Chapter V n.33.
 368

taken after a victim injured, particularly in an accident caused by motor

vehicles74. The Indian Criminal System is characterized by an accelerated
rate of acquittals. Besides the issues of the improper collection of evidence
and a lack of witnesses for the trial, the legal system is severely crippled by
the issue of burden of proof75.

In criminal cases there must be mens rea or guilty mind i.e. rashness or guilty
mind of a degree which can be described as criminal negligence. The
principle of avoidance of liability, when in contributory negligence by the
injured person is no defense in criminal law76.

When a court imposes a sentence, of which fine does not form a part, the
court may, when passing judgement, order the accused person to pay, by way
of compensation, such amount as may be specified in the order to the person
who has suffered any loss or injury by reason of the act for which the accused
person has been so sentenced77.

Sections 27978 and 280 to 289, Sections 304A79, 33680, 33781 and 33882 of
Indian Penal code deal with the accused’s rash and negligent conduct
endangering the safety of others. All these sections cover the possibility or
likelihood of injury as a result of the accused’s conduct. Under all these
sections, there is a rash and negligent act involved as one of the ingredients
of the offence and that rash or negligent driving or riding on a public road is
therefore, be covered by all these sections. But, sections 304A, 337 and 338
are specific provisions relating to cases in which rash and negligent driving

74
Supra, Chapter VI n.2.
75
Supra, Chapter VI n. 4 and 5.
76
Supra, Chapter VI nn. 6.
77
Supra, Chapter VI n. 7.
78
Supra, Chapter VI n. 12 and 13.
79
Supra, Chapter VI n.14.
80
Supra, Chapter VI n.15.
81
Supra, Chapter VI n. 16.
82
Supra, Chapter VI nn.17 and 18.
 369

or riding result in the death of another person or in hurt or grievous hurt

caused to another person.

XX. Felonious Tort

Where the same wrong is both a crime and tort e.g. assault, its two aspects
are not identical, its definition as a crime and a tort may differ, what is a
defence to the tort may not be so in crime and the object and result of a
prosecution and of an action in tort are different. The wrongdoer may be
ordered in a civil action to make compensation to the injured party and be
also punished criminally by imprisonment or fine. There was a common law
rule that when a tort was also a felony, the offender could not be sued in tort
until he had been prosecuted for the felony or a reasonable excuse had been
shown for his non-prosecution.

For instance, manslaughter is the supreme crime, punishable under section

302 of the Indian Penal Code, if murder, or under section 304 of that code, if
amounting only to culpable homicide, but from the mere fact of its
culpability it does not follow that the parents, or widow or the children of the
deceased may not sue the wrongdoer for compensation reasonably equivalent
to the contribution the deceased made for and towards their maintenance83.

C. Suggestions

Motor vehicle accidents affect the people of all walk of life. The Motor Vehicle
Act has been amended several times to keep it up to date. The need was felt that
the Act should now inter alia take into consideration also the changes in the road
transport technology, pattern of passengers and freight movement, development

83
Supra, Chapter VI n. 10.
 370

of the road net work in the country particularly the improved technology of the
motor vehicle management84.

Every year the legislature comes up with amendments and judiciary with
enlightened judgments. Hence, the need for frequent revisions of the codified
law. Some of the important suggestions are as follows:

I. Grant of Compensation and Treatment Thereof

(a) Ensuring that all accident victims get compensation

To ensure that all accident victims get compensation, it is necessary to

formulate a more comprehensive scheme for payment of compensation to
victims of road accidents, in place of the present system of third party
insurance. For example, in South Africa and some other African countries,
Road Accident Funds have been created, managed by Road Accident Fund
Commissions, thereby eliminating the need for third party insurance. A fuel
levy/surcharge is collected on the sale of petrol and diesel and credited to
such fund. All accident victims, without exception, are paid compensation
from out of the said fund by the Commission.

(b) Payment of Compensation Without Delay

The procedural delays in adjudication/settlement of claims by Motor

Accidents Claims Tribunals results in consequential hardship to the victims
and their families. In cases where the accident victim dies, the family -
usually the widow and children - loses its sole bread winner and are
virtually driven to the streets. Many a time, the widow and children are
forced to take up unaccustomed manual labour for their survival, the
children foregoing their education. Payment of compensation without delay

84
Supra, Chapter VI nn. 8 and 9.
 371

will help them to sustain themselves and pick up the threads to live with
dignity.

(c) Securing compensation to all victims of accidents involving

uninsured vehicles

Where there is no insurance cover for a vehicle, the owner should be

directed to offer security or deposit an amount, adequate to satisfy the
award that may be ultimately passed, as a condition precedent for release of
the seized vehicle involved in the accident. If, such security or cash deposit
is not made, within a period of three months, appropriate steps may be
taken for disposal of the vehicle and hold the sale proceeds in deposit until
the claim case is disposed of.

(d) Disbursement of Compensation

It is necessary that the full compensation amount should not reach and
benefit the victims and their families, particularly those who are minor,
uneducated, ignorant, or not worldly-wise. Unless, there are built-in
safeguards they may be deprived of the benefit of compensation which may
be the sole source of their future sustenance. There should be some
measures to ensure that the compensation amount is appropriately invested
and protected and not frittered away owing to ignorance, illiteracy and
susceptibility to exploitation. Hence, the amount of compensation must be
disbursed to these claimants with care and as under:

(i) Minors

The Claims Tribunal should, in the case of minors, invariably order the
amount of compensation awarded to the minor to be invested in long
term fixed deposits at least till the date of the minor attaining majority.
 372

The expenses incurred by the guardian or next friend may, however, be

allowed to be withdrawn.

(ii) Illiterates

In the case of illiterate claimants also, the Claims Tribunal should

follow the procedures set out in case of minors above, but if lump sum
payment is required for effecting purchases of any movable or
immovable property, such as, agricultural implements, rickshaws, etc.,
to earn a living, the Tribunal may consider such a request after making
sure that the amount is actually spent for the purpose and the demand is
not a ruse to withdraw money.

(iii) Semi-Literates

In the case of semi-literate persons, the Tribunal should ordinarily resort

to the procedure set out in case of minors above unless it is satisfied, for
reasons to be stated in writing, that the whole or part of the amount is
required for expanding any existing business or for purchasing some
property as mentioned in case of illiterate claimants above for earning
his livelihood, in which case the Tribunal will ensure that the amount is
invested for the purpose for which it is demanded and paid.

(iv) Literates

In the case of literate persons also, the Tribunal may resort to the
procedure indicated in case of Minor Claimant above, subject to the
relaxation set out in case of Illiterate and Semi-literate claimants above,
if having regard to the age, fiscal background and strata of society to
which the claimant belongs and such other consideration, the Tribunal
in the larger interest of the claimant and with a view to ensuring the
 373

safety of the compensation awarded to him thinks it necessary to so

order.

(v) Widows

In the case of widows the Claims Tribunal should invariably follow the
procedure set out in case of Minor Claimant above.

(e) Withdrawal of Amount of Compensation in Certain Cases

(i) Withdrawal in case of Personal Injury

In personal injury cases, if, further treatment is necessary, the Claims

Tribunal on being satisfied about the same, should permit withdrawal of
such amount as is necessary for incurring the expenses for such
treatment.

(ii) Withdrawal in Case of Emergency

In all cases, the Tribunal should grant to the claimants liberty to apply
for withdrawal in case of an emergency. To meet with such a
contingency, if the amount awarded is substantial, the Claims Tribunal
may invest it in more than one fixed deposit so that if need be one such
FDR can be liquidated.

(f) Disbursement of Compensation : Duties of Banks

(i) No Loan or Advance Against the Fixed Deposit of Amount

of Compensation

In all cases, in which amount of compensation is invested in long term

fixed deposits, it should be on condition that the bank will not permit
any loan or advance on the fixed deposit and interest on the amount
 374

invested, is paid monthly directly to the claimant or his guardian, as the

case may be.

(ii) Bank must Affix Note on Fixed Deposit Receipt

When the amount of compensation is invested in a fixed deposit, the

bank should invariably be directed to affix a note on the fixed deposit
receipt that no loan or advance should be granted on the strength of the
said FDR without the express permission of the court/Tribunal which
ordered the deposit. This will eliminate the practice of taking loans
which may be upto 80 percent of the amount invested and thereby
defeating the very purpose of the order. This will ensure the safety of
the amount so that the claimants do not become victims of unscrupulous
persons and unethical agreements or arrangements.

(g) To Ensure Just and Fair Compensation in cases of out of Court

Settlements

In many cases, the Claims Tribunal allows the parties to settle their claims
out of court or through Lok Adalats. In such cases tribunals should ensure
that just and fair compensation is provided to the victims.

(h) To Ensure the Application of Principle of Structural

Compensation Formula

Award of compensation must be determined by applying the principle of

structural compensation formula in motor accident cases like railways
(where a fixed compensation of Rs. 4.00 Lakhs is paid for loss of life)
irrespective of social status and earning capacity of the victim.

(i) Compensation in Hit and Run Cases

 375

In hit and run cases, the victim has no one from whom he can claim or get
compensation. It is estimated that around 20% of the victims of motor
accidents fall under the unfortunate categories who do not get any
compensation, except some who may get a token amount under Section 161
or 163 of the Motor Vehicles Act, 1988. A victim of hit and run accident,
feels frustrated, cheated and discriminated, when he does not get any
compensation, but sees another person hit by an insured and traceable
vehicle getting compensation. The victim does not choose the vehicle
which hits him, nor any role in causing the accident. But, a victim is denied
compensation, if the vehicle which hits him disappears without trace, or if
the vehicle is without insurance, while a similar victim hit by an insured
vehicle gets compensation.

In such cases, the State should by law provide for compulsory third party
insurance to protect such motor accident victims who do not get
compensation and provide with some effective remedy for them.

II. Functioning of Insurance Company

(a) Payment of Compensation as per Standard Formula

In cases of death, where the liability of the insurer is not disputed, the
insurance companies should, without waiting for the decision of the
Motor Accidents Claims Tribunal or a settlement before the Lok Adalat,
endeavour to pay to the family (Legal representatives) of the deceased,
compensation as per the standard formula determined by the decisions
of the Courts.

(b) Treatment of Injured of Motor Accident

 376

In cases of injuries to any accident victim, where the liability is not

disputed, the insurer should offer treatment at its cost to the injured,
without waiting for an award of the Tribunal. If, insurance companies
can meet the bills for treatment of those who have taken a medical
insurance policy, there should be no reason that the insurer cannot
extend a similar treatment to the accident victims of vehicles insured
with them.

(c) Lodging of Criminal Complaint for Fake / Forged Driving

Licence

Whenever, insurance companies found that the driver of the insured

vehicle possessed fake/forged driving license, they should lodge a
complaint with the concerned police for prosecution. This will reduce
the incidence of fake licences and increase the road travel safety.

(d) Mitigation of Fake Cases

Presently because of increasing scale of compensations almost 10 to

15% or even more cases presented to the Claim Tribunals are bogus or
the other accidents have been converted into road accidents with
connivance of the police authorities. It is necessary that while increasing
the burden of the Insurance Companies they must get a right of proper
contest to mitigate fake cases and also the quantum. A Scheme should
be formulated with the State Police Authorities and the Insurance
Companies by which the Insurance Company must be informed
immediately by the police, regarding the happening of accident, so that
necessary investigation can be made by the companies to find out the
genuineness or otherwise of the accident.

III. Lok Adalats

 377

In the Lok Adalats, it is found that the motor accident claims are disposed of
by the Lok Adalats without any recourse to the procedure and methods as
laid down by the Motor Vehicle Act, 1988 but a consented decree is passed.
It is also evident from the settlements arrived at by the parties under the
auspicious of Lok Adalats, that the parties are paid much less compensation
than their actual claims, generally on the basis of need and bargaining powers
of the parties. The insurance companies here tries to exploit the poor victims
because of their week financial position and their low bargaining power.
There is need to bring some mechanism to check that the compensation
awarded by Lok Adalats must be just and fair.

IV. To ensure effective functioning of Police Authorities in accident

cases

Police Authorities on receipt of information regarding accident must submit

the Accident Information Report in the prescribed format (Form No. 54 of
the Central Motor Vehicle Rules, 1989) to the concerned Claims Tribunal,
within 30 days of the registration of the FIR along with the information
regarding the age of the victims at the time of accident, the income of the
victim and the names and ages of the dependent family members. Police
report should be accompanied by the attested copies of the FIR, site
sketch/mahazar/photographs of the place of occurrence, driving licence of the
driver, insurance policy (and if necessary, fitness certificate) of the vehicle
and postmortem report (in case of death) or the Injury/Wound certificate (in
the case of injuries). The names/addresses of injured or dependant family
members of the deceased should also be furnished to the Tribunal. The police
shall notify the first date of hearing fixed by the Tribunal to the victim
(injured) or the family of the victim {in case of death) and the driver, owner
 378

and insurer. If, so directed by the Tribunal, the police may secure their
presence on the first date of hearing.

Police authorities should also furnish the copy of the above report along with
annexures to the concerned insurance company to enable the Insurer to
process the claim.

V. To ensure speedy and effective functioning of Claims Tribunal

For ensuring effective functioning of the Claims Tribunal, followings are the
suggestions:

(a) To Treat Reports of Accident as Application for Compensation

All Claims Tribunals must register the reports of accidents received under
Section 158(6) of the Act as applications for compensation under Section
166(4) of the Act and deal with them without waiting for the filing of claim
applications by the injured or by the family of the deceased.

(b) Determination of Compensation where no Dispute by Insurer

Wherever the insurer does not dispute the liability under the policy, the
Tribunal shall make an endeavour to determine the compensation amount
by a summary enquiry or refer the matter to the Lok Adalat for settlement,
for early disposal of claims petition and determination of compensation
accordingly.

(c) To Dispose of the Claim Application within a Time Frame

Claims Tribunal should make endeavour to dispose of the application for

compensation in a time frame which should not exceed six months from the
date of registration of the claim petition.
 379

(d) Not to treat Motor Accident Cases as Regular Civil Matters

Many Tribunals instead of holding an inquiry into the claim by following

suitable summary procedure, as mandated by Section 168 and 169 of the
Act, tend to conduct motor accident cases like regular civil suits. This
should be avoided. The Tribunal must play an active role in deciding and
expeditious disposal of the applications for compensation and determine the
just compensation.

VI. Amendment to Existing Law

No Proper laws have been devised, so far and those devised are not meant
and dealt properly in motor accidents. Just drive as you like and if you
happen to kill someone, just grease a few palms and walk into the sunset.
Such is the height of corruption in India.

Therefore, in place of the provisions relating to Accident tribunals and award

of compensation in the Motor Vehicles Act, 1988, and other statutes dealing
with accidents and compensation, enacting a comprehensive and unified
statute dealing with accidents may be enacted, like several other countries
already having comprehensive enactments exclusively dealing with
accidents.

VII. Rectification of Second Schedule to Motor Vehicles Act, 1988

Claim application can be filed under Section 163A for claim to be

determined on structural formula basis provided in Schedule-II. Schedule-II
has been adjudged as suffering from severe mistakes and the Supreme Court
in two cases namely U.P.State Road Transport Corporation v. Trilok
 380

Chandra85 and Sarla Verma v. Delhi Transport Corporation86 has held

that total reliance cannot be placed on this schedule. Further, the Schedule do
not provide any computation chart for the persons having more than
Rs.40,000/- annual income. Claim petition can also be filed under Section
166 of Motor Vehicle Act pleading negligence where the claim shall be
assessed by the Judge not on the basis of structural formula but on the basis
of evidence led. Hence, the central government may consider amendment of
the Second Schedule to the Act to rectify the several mistakes therein and
rationalize the compensation payable thereunder, repeatedly pointed out by
the Supreme Court.

VIII. Modification in Insurance Policies

Alternative schemes must be devised for the collection of a one time (life
time) third party insurance premium by a Central Insurance Agency in
respect of every vehicle sold (in a manner similar to the collection of life
time road tax). The fund created by collection of such third party insurance
can be augmented/supplemented by an appropriate road accident
cess/surcharge on the price of petrol/diesel sold across the country. Such a
hybrid model which involves collection of a fixed life time premium in
regard to each vehicle plus imposition of a road accident cess may provide a
more satisfactory solution in a vast country like India. This will also address
a major grievance of insurance companies that their outgoings by way of
compensation in motor accident claims is four times the amount received as
motor insurance premia. The general insurance companies may, however,
continue with optional insurance to provide cover against damage to the
vehicle and injury to the owner.

85
U.P.State Road Transport Corporation v. Trilok Chandra, 1996 (4) SCC 362
86
Sarla Verma v. Delhi Transport Corporation ,2009 (6) SCC 121
 381

IX. Limitation to File Claim for Compensation

The injured or the legal representatives of deceased can file claim application
in a prescribed format making driver, owner and insurer as party. However,
no limitation has been prescribed for filing of the claim application. Initially
when the law has come into force the limitation was 6 months which was
later increased to one year and ultimately in the garb of welfare legislation
the provision of limitation has been deleted. In my humble view when there
is limitation prescribed for all type of causes, some limitation of 2 or 3 years
must be prescribed for filing of claim application. It should not be made
indefinite, as it would cause serious problems to the defendant.

X. Drunken Driving: Prevention and Control

A drunken driver is a potential murderer as he cannot perform his tasks

without risks and endangering road safety. Drunken driving is an illegal act
and therefore, should be governed by stern laws which entail not only
levying hefty fines or revocation of license, but also prosecution, same as a
criminal offense. Usually, driver escapes from the scene as the public gets
involved in getting the injured hospitalized.

But, contrary to the practice, if we make a commitment to report the

incidence to the officials concerned and take a stand against drunk driving,
then we may get success in curbing the menace which has been since
centuries a major contributor to the traffic deaths. In any case, the co-relation
between alcohol and road safety still remains a matter of more research.

XI. Road Safety Policy : Planning and Execution

 382

For prevention and control of motor accidents, followings suggestions are

made:

(a) Regular Check up and Inspection of Vehicles

There should be a compulsory inspection of all the vehicles both public and
private for their road worthiness, upkeep and maintenance of the vehicle at
least twice a year.

(b) Strict Procedure for Allotment of Driving Licence

Strict Procedure should be envisaged in granting of driving licences and

periodical review should be made, taking the physical condition of the
driver into account.

(c) Prohibition of Entry of Animals on Public Road

Laws should be enacted to prohibit entry of animals on to the public roads

and the owners of the animals should be penalized for such violation.

(d) Supervision and Control of Speed of Vehicle

There is a need for strong mechanism to supervise and control the speed of
the vehicle plying on the public roads.

(e) Ban on Plying of Old Vehicles

Strict provisions must be made and enforced, regarding life of a vehicle for
plying on public road. Plying of vehicles after their nominated life must be
declared as illegal and authorities must impound such vehicles, if, found
plying on public roads.

(f) Road Safety Bureau

 383

One of the reasons for the increase of road accidents is the poor condition
of our roads in general. People are also not well informed with the
markings and signals. Line markings are not printed on all roads. Traffic
signals are used for spiting and littering. Road barriers and other
equipments are seen dwindling here and there on the roads. Therefore
improvement of the condition of roads in our country should be given top
priority to avoid accidents. There is therefore an urgent need for laying
down and enforcing Road safety measures. It is also necessary to consider
the establishment of a Road Safety Bureau to lay down Road Safety
Standards and norms, enforce Road safety measures, ensure maintenance of
Public Roads in general.

(g) Literacy Programs Regarding Rules of Road

Civilians, the main victims, who make a huge hue and cry about the road
safety issues are responsible for lagging behind in the safety measures as
these people do not follow the already devised rules. One can easily spot
people jumping traffic lights, driving while drunk, driving recklessly at
super sonic speeds. Wearing seat belts is assumed as, if, they have been tied
with the car seats. There is a need to understand that with such a vast
population, it is the civil society on the first hand that has to play a crucial
role in achieving success in this area.

Central Government as well as State Government should run literacy

programs to educate people about the Rules of Roads and Traffic Signals
etc. Government should give wide publicity through newspapers,
television, radio etc. of road safety measures. Government should start
celebrating Road Safety Weeks etc. and arrange educative lectures in
school and colleges to make the students aware regarding traffic rules and
road safety.
 384

(h) Reduction of Number of Vehicles on Road

The Government should devise some mechanism to reduce the number of

vehicles from the roads. For this, following measures may be adopted:

(i) To encourage Public Transport system

Government should endeavors to encourage use of public transport. For this

government has to increase the number of public buses, trains etc. and also
ensure cleanliness and proper maintenance of these vehicles.

(j) To encourage pooling

Government as well as private sector employers should encourage their

employees, who are coming from same place to same office or offices in
the same area to use one vehicle instead of individual vehicle, it will not
only reduce the number of vehicles on road but would also save fuel and
money.

(k) Permits to Taxis or Autos should be Allotted to Ply the same on

Alternate Days

Government, to reduce number of vehicles from the road should allot

permits to autos and taxis to ply on alternate days. It may be based on the
formula that Registration Number of the vehicle ending with even number
will ply on road on even dates of the month and Registration Number of the
vehicle ending with odd number will ply on road on odd dates of the
month.
 385

(l) To Discover Alternate of Road Transport

Government should discover alternate mode of travelling to reduce number

of vehicles from road, like Metro Rail in Delhi.

(m) To Establish Trauma Centres and First Aid Centres for

Accident Victims

India has the dubious distinction of being one of the countries with the
highest number of road accidents and the longest response time in securing
first aid and medical treatment. There is, therefore, an urgent need for
establishment of large number of Trauma Centres and first aid centres. It is
also necessary to consider the establishment of and running of First Aid
Centres in Petrol Stations for immediate help to motor accident victims.

(n) Tracking Down Traffic Offenders

There is need for effective way of tracking down traffic offenders

especially drivers who never take care of the injured person involved in the
accident nor come to the witness box to adduce evidence in the Court of
Law.

(o) Deterrent Punishment

There must be more deterrent punishments i.e. not less than 5 years
imprisonment or with fine or both to the offenders culpable of rash and
negligent driving causing number of deaths or severe injuries to the people.

(p) Inference of Negligence by applying principle of Res Ispa

Loquitur
 386

In criminal cases relating to Section 304 A of the Indian Penal Code, the
general principle in criminal law that the case must be proved beyond
reasonable doubt by the prosecution should be waived to facilitate the
courts to draw inference of negligence by applying the principle of res ipsa
loquitur in rash and negligent cases specially by taking into consideration
the circumstances of the scene of offence that speaks for itself. This will
help to punish the drivers who are rash and negligent as the existing
procedure gives scope to the drivers to escape punishment.

(q) Strict Application of Section 196 of Motor Vehicles Act, 1988

Section 196 of the Act provides that whoever drives a motor vehicle or
causes or allows a motor vehicle to be driven in contravention of the
provisions of Section 146 shall be punishable with imprisonment which
may be extended to three months, or with fine which may extend to Rs.
1000/-, or with both. Though the statute requires prosecution of the driver
and owner of uninsured vehicles, this is seldom done, thereby, a valuable
deterrent is ignored. The Director Generals of Police must therefore,
ensure the prosecution of the drivers and owners of uninsured vehicles
under Section 196 of the Act.

The Constitution of India declares India as a social welfare state and it is the
duty of the State under Article 41 of the Constitution of India, to make effective
provision, for securing the right to work, to education and to public assistance in
cases of unemployment, old age, sickness and disablement, and in other cases of
undeserved want”. The Motor Vehicle Act is a Social Welfare Legislation under
which the Compensation is granted to the people who sustain bodily injuries or
get killed in the vehicular accidents. Those people who sustain bodily injuries or
whose kith and kins are killed, are necessarily to be provided with such relief in
a short span of time and the procedural technicalities cannot be allowed to defeat
the just purpose of the Act.
 COMPENSATION IN MOTOR ACCIDENT CLAIMS: A
STUDY OF EMERGING TRENDS

CONTENTS
Page Nos.
Acknowledgement i - iii
Abbrevations i - iv

Contents i -xvii

Table of Cases i - xxvii

CHAPTER I: Introductory 1-22

A. General 2
B. Statement of Problem 4
C. Aims and Objectives of the Study 13
D. Overview of the Existing Literature 14
E. Research Methodology 19-21
I. Coverage and Sample 20
II. Selection of Cases 20
F. Chapter Scheme 21

CHAPTER II: The Motor Vehicles Act, 1988: 23 - 97

History, Object, Scope
and Salient Features

A. Introduction 24
 B. History 26 - 34
I. Pre – 1988 Position 26
II. The Motor Vehicles Act, 1988 27
III. The Motor Vehicles (Amendment) Act, 1994 29
IV. Law Commission’s 119th Report 31
V. The Motor Vehicles (Amendment) Act, 2000 32
VI. The Motor Vehicles (Amendment) Act, 2001 33
C. Objects and Scope 34
D. Definitions – The Genus and Species of Motor Vehicles 37 - 45
I. Area 38
II. Articulated Vehicle 38
III. Axle Weight 38
IV. Certificate of Registration 38
V. Conductor 38
VI. Conductor’s Licence 38
VII. Contract Carriage 38
VIII. Dealer 39
IX. Driver 39
X. Driving Licence 39
XI. Educational Institution Bus 39
XII. Fare 40
XIII. Goods 40
XIV. Goods Carriage 40
XV. Gross Vehicle Weight 40
XVI. Heavy Goods Vehicle 40
XVII. Heavy Passenger Motor Vehicle 40
XVIII. Invalid Carriage 40
XIX. Learner’s Licence 41
XX. Licensing Authority 41
 XXI. Light Motor Vehicle 41
XXII. Manufacturer 41
XXIII. Maxi Cab 41
XXIV. Medium Goods Vehicle 41
XXV. Medium Passenger Motor Vehicle 41
XXVI. Motor Cab 41
XXVII. Motor Car 41
XXVIII. Motor Cycle 42
XXIX. Motor Vehicle or Vehicle 42
XXX. Tractor-Trailer 42
XXXI. Omnibus 42
XXXII. Owner 42
XXXIII. Permit 43
XXXIV. Prescribed 43
XXXV. Private Service Vehicle 43
XXXVI. Public Place 43
XXXVII. Public Service Vehicle 43
XXXVIII. Registered Axle Weight 43
XXXIX. Registering Authority 43
XL. Route 43
XLI. Semi-Trailer 44
XLII. Stage Carriage 44
XLIII. State Government 44
XLIV. State Transport Undertaking 44
XLV. Tourist Vehicle 45
XLVI. Tractor 45
XLVII. Traffic Signs 45
XLVIII. Trailer 45
XLIX. Transport Vehicle 45
 L. Unladen Weight 45
LI. Weight 45

E. Concept and Meaning of Accident 46 – 51

I. Accident and Other Allied Expressions Like 47

Act of God, Inevitable Accident, Latent Defect, etc.

II. Defence of Act of God, or of Latent Defect Feeble under 48

Compensation Laws

III. An Accident Arising Out of the Use of a Motor Vehicle 49

F. Salient Features of Motor Vehicles Act, 1988 52 - 94

Relating to Awarding of Compensation in Motor
Accident Cases.

I. Liability to Pay Compensation in Certain Cases 52

on the Principle of No Fault.
II. Necessity of Insurance Against Third Party Risk. 58
(a) Authorized Insurer 58
(b) Certificate of Insurance 58
(c) Liability 59
(d) Policy of Insurance 59
(e) Property 59
(f) Goods 59
(g) Reciprocating Country 60
(h) Third Party 60
III. Requirement of Insurance Policy and Limits of 63
Liability Under Such Policy.
IV. Validity of Polices of Insurance Issued in 67
Reciprocating Countries.
 V. Liability of Insurer and Defence Available To Insurer. 67
VI. Third Party Insurance : Defence Available to the 72
Insurance Companies
VII. Right of Recovery from Owner to Insurance Company 73
VIII. Insolvency of Insured : Rights of Third Party Against Insurers 73
IX. Duty to Give Information as to Insurance. 75
X. Effect of Settlement Between Insure and Insured. 76
XI. Driving License 77
XII. Gratuitous Passenger 78
XIII. Effect of Dishonour of Cheque of Insurance Premium 80
XIV. Effect of Transfer of Vehicle 80
XV. Saving Clause. 80
XVI. Effect of Insolvency of Insured. 81
XVII. Effect of Death on Certain Causes of Action. 81
XVIII. Effect of Certificate of Insurance. 81
XIX. Effect of Transfer of Certificate of Insurance. 82
XX. Production of Certain Certificates, Licence and Permits etc. 83
XXI. Application for Authority to Use Vehicle: Production 85
of Certificate of Insurance
XXII. Duty to Furnish Particulars of Vehicle Involved in Accident. 86
XXIII. Special Provisions as to Compensation in Case of 86
Hit and Run Motor Accident.
XXIV. Refund of Compensation Paid Under Section 161. 88
XXV. Scheme for Payment of Compensation in Case of 89
Hit and Run Motor Accidents.
XXVI. Special Provisions as to Payment of Compensation 91
on Structured Formula Basis.
XXVII. Power of Central Government to Make Rules. 94
G. Review 95
CHAPTER III: Claims Tribunal Under Motor 98 - 156
Vehicles Act, 1988

A. Introduction 99
B. Establishment and Composition of Claims Tribunal 100 - 109
I. Setting up of Claims Tribunal. 101
II. Appointment of Member. 102
III. Appointment of Member by Name not Necessary 103
(a) Notification of Appointment is Necessary 103
(b) Transfer of Claim Application from District Judge to 104
Claims Tribunal
(c) General Notification designating all the District 104
Judges as Claims Tribunal
(d) Not to Confuse Powers of One Office With Other Office. 105

IV. Qualification for Appointment as Member of Claims Tribunal 105

V. Other Staff of Claims Tribunal. 106
VI. Claims Tribunal: Powers of Civil Courts. 106
VII. Claims Tribunal: A Substitute of Civil Courts for 108
the purpose of Compensation Claims.
C. Application for Compensation. 109 - 115
I. Who can File Claim. 113
II. Who Can Report to Claims Tribunal in Case of Accident. 113
III. Essential Documents Required to File Claim. 113
IV. Court Fees to be Deposited at the Time of Filling Claim. 115
D. Jurisdiction of Claims Tribunals 115 - 129
I. Pecuniary Jurisdiction 116
 II. Exclusion of Civil Court’s Jurisdiction not Readily Inferred 116
III. Jurisdiction in Respect of Cases Where Accidents 118
Occurred Prior to Establishment of Tribunal
IV. Bar on Jurisdiction of Civil Courts 119
V. Bar on Jurisdiction of Consumer Dispute Redressal Forum 120
VI. Jurisdiction of Tribunal, Where Collision Between Trains 122
And Motor Vehicle Occurred
VII. Claimant to Choose Place of Jurisdiction 123
VIII. Jurisdiction of Tribunal in India, where Accident occurred 124
in Foreign Country
IX. Jurisdiction to Entertain Claim by Indigent Person 124
X. Death Occurred Due to Heart Attack: No Jurisdiction 126
XI. Transfer of Claims from One Tribunal to Another Tribunal 126
XII. Claimant can Withdraw Applications and File it at 127
Appropriate Place
XIII. Tribunal Cannot Entertain Application in case of 128
Hit and Run Accident
E. Options Regarding Claims for Compensation in Certain 129
Cases to Claim Compensation in Other Acts.
F. Award of Claims Tribunal. 130
G. Procedure and Power of Claims Tribunals. 131 - 140
I. Application for Compensation 132
II. Amendment of Pleadings: Amendment for Enhancement of 132
Claim Amount
III. Notices, Summons, Processes and Service 133
IV. Written Statement 134
V. Summary Procedure for Holding Enquiry 135
VI. Powers of Court in Respect of Taking Evidence on Oath, 135
Enforcing Attendance of Witness etc.
VII. Taking of Assistance of Persons Possessing Special 135
Knowledge
VIII. Framing of Issues 135
IX. Ex Parte Proceedings – Dismissal in Default, Restoration etc. 136
X. Judgement – Finding on all Issues Necessary 137
XI. Delivery of Copies of Award to Parties within 15 Days 138
XII. Person Required to Pay Compensation in Terms of Award 138
to Deposit the Entire Amount within 30 Days.
XIII. Execution of Award of Claims Tribunal 139
H. Assessment of Claim. 140
I. Impleadation of Insurer in Certain Cases. 142
J. Award of Interest Where Any Claim is Allowed. 143
K. Award of Compensatory Costs in Certain Cases 144
L. Tribunal’s Jurisdiction to Set Aside Award Procured By Fraud 145
M. Appeal against Decisions of Claims Tribunal. 146
N. Recovery of Money from Insurer as Arrears of Land Revenue. 149
O. Power of State Government to Make Rules. 150
P. Insurer and No Fault Liability. 150
Q. No Fault Claim can be Proved at Appellate Stage also. 151
R. Ignoring Multiplier in Second Schedule. 151
S. Duty of Claimant to Choose Claim under Sections 163A or 166. 153
T. Review 154

CHAPTER IV: Award of Compensation to the 157 - 288

Victims of Motor Accident
in India: Judicial Trends
A. Introduction 158
B. No Fault Liability. 159
C. Vis Major 165
D. Application of Principle of Vicarious and Absolute 169 - 185
Liability in Motor Accident Cases.
I. Vicarious Liability 170
II. Absolute Liability 172
III. Absolute Liability and State. 182
E. Negligence, Contributory Negligence and Application of 186 - 276
Doctrine of Res Ipsa Loquitur.
I. Contributory Negligence and Composite Negligence. 188
II. Rule of Last Opportunity 189
III. Contributory Negligence and Children 190
IV. Application of Doctrine of Res Ipsa Loquitur in 191
Collision Cases
(a) Light Motor Vehicles Colliding with Light Motor 193
Vehicles.
(b) Heavy Motor Vehicles Colliding with Light Motor 195
Vehicles.
(c) Heavy/ Light Motor Vehicles Colliding with Scooters/ 202
Motor Cycles.
(d) Heavy Motor Vehicles Colliding with Heavy Motor 212
Vehicles.
V. Application of Doctrine of Res Ipsa Loquitur in Non-Collision 220
Cases
(a) Motor Vehicles Hitting Pedestrians. 220
(b) Motor Vehicles Hitting Cyclist. 233
(c) Motor Vehicles Involved in Accident While Trying to 240
Save Cattle.
(d) Vehicles Falling in Ditches, Canals, Washed Away in 243
Floods, Hitting Culverts etc.
(e) Passengers Falling Down While Boarding/ Sitting on 248
the Vehicle.
(f) Motor Cycle/ Scooter Accident Involving Pillion Riders. 250
(g) Parking Vehicles on Public Places Living the key. 252
(h) Motor Vehicles Dashing Against Trees. 254
 (i) Accident Due to Explosion of Tankers/ Fire in Motor 258
Vehicles.
(j) Accident Due to Tyre Burst. 260
(k) Accidents Due to Mechanical Breakdown. 265
(l) Motor Vehicles Turned Turtle. 271
F. Treatment of Compensation Amount 276- 280
I. Award of Compensation in Favour of Minor Claimants 277
II. Compensation Awarded to Illiterate Claimants 277
III. Compensation to Semi-Literate Claimants 277
IV. Compensation Amount Awarded to Literate Claimants 278
V. Award of Compensation Widow Claimants 278
VI. Withdrawal of Amount in case of Personal Injury 278
VII. Withdrawal of Amount in Case of Emergency 279
VIII. No Loan or Advance Against the Fixed Deposit 279
Amount of Compensation
IX. Duty of Bank to Affix Note on Fixed Deposit Receipt. 279
X. Cases Settled Outside the Court. 280
G. Driving Licence and Liability of Insurance Company 280 - 282
I. Driving Licence 280
II. Forgery of Driving Licence 281
III. Liability of Insurance Company 281
IV. Amount paid by Insurance Company 281
V. Policy of Insurance 282
H. Third Party and Liability of Insurance Company 282 - 283
I. Insurance Company cannot Refuse to Meet its Liability 282
Qua Third Party
II. Fraud Committed by the Third Party 283
I. Grant of Compensation: Miscellaneous Trends. 283- 286
I. Ensuring Compensation to All Victims. 283
 II. Collection of One Time Life Time Third Party 284
Insurance Premium.
III. Alternative to Present System of Third Party Insurance. 284
IV. Establishment of Road Safety Bureau. 285
V. Unified and Comprehensive Law Required. 285
VI. Rectification of Second Schedule to Motor Vehicles 285
Act, 1988.
J. Review 286 - 288

CHAPTER V: Lok Adalats and Motor Accident 289 - 309

Claims
A. Introduction. 290
B. Establishment, Powers and Jurisdiction of Lok Adalats 292 - 296
I. Organization of Lok Adalats. 292
II. Cognizance of Cases by Lok Adalats. 293
III. Award of Lok Adalats 295
IV. Powers of Lok Adalat/ Permanent Lok Adalats. 295
C. Refund of Court Fee. 297
D. Jurisdiction of Lok Adalats. 297
E. Idea Behind Formation of Lok Adalats. 297
F. Compromise on Behalf of Unsound Mind and Minor Persons. 298
G. Reasonableness of Amount of Compromise Settlements 299
Arrived at Lok Adalats.
H. Validity of Compromise Settlements in Lok Adalats Signed 300
by Advocate on Behalf of Party.
I. Award of Lok Adalats Even Without Compromise. 300
J. Dismissal of Claims by Lok Adalats in Case of Default 301
by Parties.
K. Award of Lok Adalat and Appeal. 301
L. Award of Lok Adalat not Open to Interference Merely 304
Because Amount Awarded was not Adequate.
M. Exemption from Court Fee 304
N. Sanctity of Award of Lok Adalat and Appeal 305
O. Civil Procedure Code, 1908 Dealing With Settlement 306- 308
of Dispute Out of Court.
I. Settlement of Disputes Outside the Court. 306
II. Direction of the Court to Opt for Any One Mode of 307
Alternative Dispute Resolution.
III. Appearance Before the Conciliation Forum, or Authority. 307
IV. Appearance Before the Court Consequent to the 308
Failure of Efforts of Conciliation.
P. Review 308 - 309

CHAPTER VI: Criminal Liability in Motor 310 - 349

Accidents.

A. Introduction 311
B. Law of Crimes and Motor Accidents 313
C. Tort and Crime Constituted by the Same Set of 315
Circumstances
D. Offences in Relation to Use of Motor Vehicles 317 - 320
I. Rash Driving or Riding on Public Way 317
II. Causing Death by Negligence. 317
III. Act Endangering Life or Personal Safety of Others 318
IV. Causing Hurt by Act Endangering Life or Personal 319
Safety of Others.
 V. Causing Grievous Hurt by Act Endangering Life 319
or Personal Safety of Others.
E. Proof of Negligence. 320
F. Grant of Compensation – Hearing of Accused Necessary 322
G. Criminal Injury or Murder as Accident 324
H. Judicial Application of the Criminal Law in the Motor 326 - 348
Accident Cases
I. Res Ispa Loquitur: Not a Special Rule of 326
Substantive Law
II. Mere Careless Not Sufficient 333
III. Burden of Proof in Certain Cases 336
IV. Rash and Negligent Driving 339
V. Culpable Rashness 343
VI. Proof of Criminal Liability 345
I. Review 348 - 349

CHAPTER – VII : Conclusions and Suggestions 350 - 386

A. General 351
B. Conclusions 352 - 369
I. Dubious Distinction. 352
II. Accident: Pre- Condition in MACT Cases 353
III. Accident Arising Out of Motor Vehicle 353
IV. Status of Gratuitous Passenger 354
V. Claims in Hit and Run Cases 354
VI. Payment of Compensation on Structured Formula Basis 355
VII. MACT is a Tribunal 355
VIII. Tribunal to be Deemed as Civil Court 356
IX. Application for Compensation Must be Complete 356
 and Proper
X. Amendment in Claim Application 357
XI. Jurisdiction of Claims Tribunal 358
XII. Claimant can Withdraw Applications and file it at 359
Appropriate Place
XIII. Award of Claim Tribunal and Appeal 359
XIV. Execution of Award and Recovery of Amount as 360
Land Revenue.
XV. Principle of Tortious Liability and Motor Accident 361 - 364
Cases
(a) No Fault Liability 361

(b) Act of God 362

(c) Vicarious Liability 362

(d) Strict and Absolute Liability 363

(e) Negligence and Contributory Negligence 363

(f) Res Ispa Loquitur 364

XVI. Treatment and Disbursement of Compensation Amount. 365

XVII. Liability of Insurance Company 365
XVIII. Lok Adalat and Motor Accident Cases. 366
XIX. Motor Accident as Crime: Liability to Pay Compensation 367
XX. Felonious Tort 369
C. Suggestions 369 - 386
I. Grant of Compensation and Treatment Thereof 370- 374
(a) Ensuring that all accident victims get compensation 370
(b) Payment of Compensation Without Delay 370
(c) Securing compensation to all victims 371
of accidents involving uninsured vehicles
 (d) Disbursement of Compensation 371
i. Minors 371
ii. Illiterates 372
iii. Semi-Literates 372
iv. Literates 372
v. Widows 373
(e) Withdrawal of Amount of Compensation in Certain Cases 373
i. Withdrawal in case of Personal Injury 373
ii. Withdrawal in Case of Emergency 373
(f) Disbursement of Compensation: Duties of Banks 373
i. No Loan or Advance Against the Fixed Deposit 373
of Amount of Compensation
ii. Bank must Affix Note on Fixed Deposit Receipt 374
(g) To Ensure Just and Fair Compensation in case of 374
out of Court Settlement
(h) To Ensure the Application of Principle of Structural 374
Compensation Formula
(i) Compensation in Hit and Run Cases 374
II. Functioning of Insurance Company 375
(a) Payment of Compensation as per Standard Formula 375
(b) Treatment of Injured of Motor Accident 375
(c) Lodging of Criminal Complaint for Fake / Forged 376
Driving Licence
(d) Mitigation of Fake Cases 376
III. Lok Adalats 376
IV. To Ensure Effective Functioning of Police Authorities 377
V. To Ensure Speedy and Effective Functioning of Claims 378
Tribunals
(a) To Treat Reports of Accident as Application for 378
 Compensation
(b) Determination of Compensation where no Dispute 378
by Insurer
(c) To Dispose of the Claim Application within a Time Frame 378
(d) Not to treat Motor Accident Cases as Regular Civil Matters 379
VI. Amendment to Existing Law 379
VII. Rectification of Second Schedule to Motor Vehicles 379
Act, 1988
VIII. Modification in Insurance Policies 380
IX. Limitation to File Claim for Compensation 381
X. Drunken Driving: Prevention and Control 381
XI. Road Safety Policy : Planning and Execution 381
(a) Regular Check up and Inspection of Vehicles 382
(b) Strict Procedure for Allotment of Driving Licence 382
(c) Prohibition of Entry of Animals on Public Road 382
(d) Supervision and Control of Speed of Vehicle 382
(e) Ban on Plying of Old Vehicles 382
(f) Road Safety Bureau 382
(g) Literacy Programs Regarding Rules of Road 383
(h) Reduction of Number of Vehicles on Road 384
(i) To encourage Public Transport system 384
(j) To encourage pooling 384
(k) Permits to Taxis or Autos should be Allotted to 384
Ply the same on Alternate Days
(l) To Discover Alternate of Road Transport 385
(m) To Establish Trauma and First Aid Centres 385
for Accident Victims
(n) Tracking Down Traffic Offenders 385
(o) Deterrent Punishment 385
 (p) Inference of Negligence by applying principle of 386
Res Ispa Loquitur
(q) Strict Application of Section 196 of Motor Vehicles 386
Act, 1988

Appendix – I Format of Application for Compensation 387 - 390

in Motor Accident
Appendix – II Glossary 391 - 398
Appendix –III Traffic Offences and Penalties in India 399 - 407

Appendix –IV Ten Tips for Road Safety 408 – 408

Appendix – V Traffic Police Signals 409 - 410

Bibliography 411 - 413

 1

COMPENSATION IN MOTOR ACCIDENT

CLAIMS: A STUDY OF EMERGING TRENDS

SUMMARY

Newspapers in every metro city in India give a daily report of people killed and injured in
traffic accidents. As a response to this heightened awareness, NGOs have come up in
many cities to deal with this increasing urban epidemic of death and destruction. Police
departments also hold road safety weeks, painting competitions, zero tolerance drives and
demand greater powers to fine and punish. This has gone on for the last two decades.
However, the killing and the maiming continue unabated.

A look at some of the statistics on road safety presents a very grim picture worldwide and
especially in developing countries like India. Road fatalities now leads the list of
accidental deaths in India much more than any other such as by drowning, fire, rail or air
mishaps. The magnitude of road accidents in India is increasing at an alarming rate.
About 60,000 people are killed every year in India and top the world in the number of
road fatalities. National level of fatalities per kilometer is 0.025.

For the purpose of systematic study, the present research work is divided into 7 chapters.
These are as under:

1. Introductory
2. The Motor Vehicles Act, 1988: History, Object, Scope and Salient Features.
3. Claims Tribunal under Motor Vehicles Act, 1988
4. Award of Compensation to the Victims of Motor Accidents in India: Judicial
Trends
5. Lok Adalat and Motor Accident Claims
6. Criminal Liability in Motor Accidents
7. Conclusions and Suggestions

The first chapter as usual is Introductory. This chapter covers statement of problems,
Aim and Objective of the present study, review of existing literature in the field of grant
of compensation and research methodology.

The second chapter deals with History, Object, Scope and Salient Features of the
Motor Vehicles Act, 1988. In this chapter history of the Motor Vehicles Act, 1988 and
 2

various definitions of the terms used in the Act have been discussed. Award of
compensation on no fault liability basis, requirement of insurance against third party risk,
liability of insurer and defence available to insurer, rights of third party against insurers
on insolvency of insured, duty to give information as to insurance, duty to furnish
particulars of vehicle involved in accident, special provisions as to compensation in case
of hit and run motor accident, special provisions as to payment of compensation on
structured formula basis and power of central government to make rules etc., are also
discussed in this chapter.

The Claims Tribunal, Its Establishment, Composition, Jurisdiction and Procedure

have been discussed in third Chapter. In this chapter, an attempt has also been made to
discuss the application for compensation, options regarding claims for compensation in
certain cases under other Acts, procedure and power of claim tribunals, award of claim
tribunal, appeal against decisions of claim tribunal, recovery of money from insurer as
arrears of land revenue, bar on jurisdiction of civil courts and consumer forums, etc.
Further, this chapter also covers, who can file claim, who can report to claim tribunal in
case of accident, essential documents required to file claim, court fees to be deposited at
the time of filling claim etc.

In the fourth chapter, Judicial Trends in Awarding Compensation to the Victims of

Motor Accident have been discussed. This chapter also throws light on the application of
various principles like, No Fault Liability, Act of God, Absolute and Vicarious Liability,
Negligence, Contributory Negligence and application of doctrine of res ipsa loquitur etc.
in the matters of grant of compensation.

The fifth chapter deals with role of the Lok Adalats in awarding compensation in motor
accident cases. In this chapter, relevant provisions of Legal Services Authority Act, 1987
and Civil Procedure Code, 1908, etc. are also examined. This chapter also throws light on
powers, jurisdiction and finality of the awards of Lok Adalats.

The sixth chapter deals with Criminal Liability in Motor Accidents. In this chapter an
attempt has been made to study the nature and scope of penal liability of owners, agents
and drivers of vehicles involved in accidents. This chapter also explains the relevant
provisions of Indian Penal Code, which have direct bearing with the cases involving
motor driven vehicles.

The last chapter as usual is of Conclusion and Suggestions. Some conclusions based on
the study are drawn. At the end of this chapter, some useful and realistic suggestions have
been made. Some of the suggestions are as under:

1. It is to be ensured that all accident victims including victims of uninsured vehicles

get compensation.
 3

2. Payment of Compensation to accident victims should be without delay.

3. Full amount of compensation awarded should not go directly in the hands of the
victim, instead should be deposited in fixed deposits with banks.
4. Just and Fair Compensation, in cases of out of Court Settlement must be ensured.
5. Award of compensation must be determined by applying the principle of structural
compensation formula in motor accident cases like railways (where a fixed
compensation of Rs. 4.00 Lakhs is paid for loss of life) irrespective of social status
and earning capacity of the victim.
6. All types of Vehicles should be regularly checked up and inspected by authorised
mechanics like checking of air pollution.
7. Driving Licence should be allotted by following strict procedure and after
considering health and mental status of the person.
8. Entry of Animals on Public Roads should be prohibited
9. Supervision and Control of Speed of Vehicle should be ensured strictly.
10. There should be ban on plying of old vehicles.
11. Where the liability of the insurer is not disputed, the insurance companies should
pay compensation as per the standard formula developed by the decisions of the
Courts.
12. Insurance companies should provide for treatment of victims of motor accident in
the same manner as is provided to medi-claim policy holders.
13. There is need to bring some mechanism to ensure that the compensation awarded
by Lok Adalats is Just and Fair.
14. There is need to organise literacy programs regarding rules of road, traffic signals
etc., through mass media.
15. Road Safety Bureau must be established to lay down Road Safety Standards and
norms, enforce Road safety measures and ensure maintenance of Public Roads in
general.
16. Some effective mechanism must be devised to reduce number of vehicles on road,
including encouragement to travel by public transport system.
17. Ensuring effective functioning of Claims Tribunals, Police Authorities and
Insurance Companies.
18. Enacting a comprehensive and unified statute for dealing with motor accidents.
19. The central government may consider amendment of the Second Schedule to the
Act to rectify the several mistakes therein and rationalize the compensation
payable thereunder.
20. Trauma and First Aid Centres for Accident Victims must be established
immediately.
21. There should be deterrent punishment to traffic offenders.
22. There should be some limitation period to file claim for compensation.
23. Ensure strict punishment for drunken driving.
 411

BIBLIOGRAPHY
BOOKS

A.B.Majumder, Motor Accident Claims,

A.S.Bhatnagar, How to Claim, Contest and Assess Motor Accidents Compensation
(2001),
B.N.Chaudhuri’s Motor Vehicles Act, 1988, (1990)
B.L.Banasal, Digest of Accident Claims Compensation 1939 - 1996 (1997)
Bingham, “Motor Claims Cases” 6th, ed.
Butterworths, The Law of Motor Insurance, (1949)
C. Kamleshwara Rao, Law of Damages and Compensation, Vol. 1, (1992)
C. Kamleshwara Rao, Law of Negligence, (1991)
Dr. D.K.Gaur, A text Book on the Indian Penal Code,(2001)
Dr. Matadin Madholia, Compensation under the Motor Vehicles Act, 1988,
Dr. Matadin, State Monopoly Of Road Transport in India, (1984),
Dr. R.G.Chaturvedi, Law of Motor Accident Claims and Compensation, (2010)
Dr. R.K.Bangia, Law of Torts, (1997)
Dr. S.K.Kapoor Law of Torts, (2003)
G.Ison Terence, Accident Compensation: A Commentary on the New Zealand
Scheme,
G.P.Gupta, Compensation Claims, (1986)
G.P. Singh, Rattan Lal & Dhiraj Lal’s – The Law of Torts, (1992),
Halsbury “Laws of England” 2nd, ed. Vol. 23
J.P.Singhal, Law of Damages & Compensation, (2003)
Jaggi’s Motor Vehicles Laws & Rules, (1978)
Janak Raj Jai, Motor Accident Claims, Law & Procedure (2000)
 412

John G. Fleming’s “The Law of Torts”, 4th edition,

K.C.Dutt and Sunita Dadhich, Motor Accident Claims, (1988)
K.D.Gaur, “Criminal Law: Cases and Materials”,(1999)
M.B.Majumder, Law And Practice Of Motor Accidents Claims in India, (1986),
M.L.Chandak, Cases and Material on Motor Accident Claims and Compensation,
(1987),
Motor Vehicles Act, 1939 , Manav Law House, (1980)
Motor Vehicles Act, 1988, 4th Ed. (1993), Eastern Book Company
Motor Vehicles Manual, 1995, Universal Book Traders
Oxford University Press, Compensation for Personal Injuries, (2002),
P.K.Sarkar, The Motor Vehicles Act, 1988, (2004)
P.Leelakrishanan , Legal Aspects of State Carriage Licensing in India,
P.S. Atiyah, Accidents Compensation & the Law, (1980)
Palmer Geoffrey, Compensation For Incapacity – A Study of Law & Social Change
in Newzealand and Australia, Oxford University Press
R.L. Sarin, Motor Vehicles Act, 1988, (1989)
R.P.Kathuria, Law of Crimes and Criminology, (2000).
Ratan Lal & Dhiraj Lal, Law of Torts, (2000)
Rama Swami Iyer, Law of Torts, (1975)
Salmond, The Law of Torts, (1981)
Surendra Malik, Supreme Court on Law Relating To Motor Vehicles,
Vindeshwari Prasad’s Commentaries on the Motor Vehicles Act, 1939, Vol. 1 & 2,
(1979),
Winfiel & Jolowicz on Tort, (2002)

ARTICLES

Bakshi P.M’s, “ Accident Victims and the Criminal Law” Law 3 JILI, 1988 P-566
 413

P.M.Bakshi, Continental System of Criminal Justice, 36 JILI 1994 p. 425.

N. Kumar, “The Concept of Criminality in the Tort of Negligence”, 1998 Cri.L.J.136
K.Guptewar’s “Comparartive Negligence in Motor Accidents” 11 JILI (1969) 413
M.Stanley Feranandez’s “ Road Accidents” 1995 Cri.L.J. 49
Kunal Mehta’s “An Analyse of Law Relating to Accidents Claim in India”
Priyadarshini Narayan, “The Burden of Proof on the Prosecution: An Excuse for the
Acquittal”, 2001 XIV, C.I.L.Q 548.
Gooddheart A.L., “Foundations of Tortious Liability”, (1938) 2 Mod. L.R.1

WEBSITES

www.indiaconnect.com
www.aptransport.org/html/accidents.htm
www.indiabike.com
www.niacl.com
www.lawguru.com
www.bimaonline.com
www.in.insurance.yahoo.com
www.answers.com/mac%437legaldictionary
www.legalservicesindia.com
www.manupatra.com
www.cdjlawjournal.com
www. Legalhelpindia.com
www.legalindia.in
www.indiatogether.org/legislation
www.legal-articles.deysot.com
www.indiandrivingschool.com
 387

APPENDIX – I

FORMAT OF APPLICATION FOR

COMPENSATION IN MOTOR ACCIDENT

In the Court of the Motor Accident Claims Tribunal ….(Name of

Place)
Claim Petition No. _______
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________ … Petitioner

VERSUS

_________________________________
_________________________________
_________________________________
_________________________________
_________________________________ … Respondent

Application under the Section 166 & 140 of the

Motor Vehicle Act 1988 for grant of Compensation

1. Name & Father’s Name of the person

injured/dead (Husband’s Name in case
of married women & widow) :
 388

2. Full address of the person injured/dead :

3. Age of the person injured/dead. :

4. Occupation of the person injured/dead :

5. Name & address of the employer of

the injured / dead. :

6. Monthly income of the person injured/

dead. :

7. Does the person in respect of whom

compensation is claimed pay income
tax? If so state the amount of the
income tax (to be supported by document) :

8. Place, date and time of accident :

9. Name & Address of Police Station in

whose jurisdiction the accident took
place & FIR was registered. :

10. Was the person in respect of whom

compensation is claimed traveling by
the vehicle involved in the accident ?
If so, give the name & place of starting
the journey and destination. :
 389

11. Nature of the injuries sustained. :

12. Name & Address of the Medical

Officer/Practitioner, if any who
attended to the injuries. :

13. Period of treatment and expenditure. :

14. Registration No. & Type of vehicle

involved in accident. :

15. Name & address of the owner of

offending vehicle. :

16. Name & address of the driver of

offending vehicle. :

17. Name & address of the insurer of

the vehicle. :

18. Has any claim been lodged with

the owner/insurer, if so, with what
result. :

19. Name & address of the applicant. :

20. Relationship with the deceased /

injured. :
 390

21. Title of the property of the deceased/

injured. :

22. Amount of compensation claimed. :

23. Any other information that may be

necessary and helpful in the disposal
of the case. :

24. Prayer :

Petitioner

Verification:

Verified at Delhi on this the ________ day of _________ 200__ that the
contents of the above application are true and correct to my knowledge and
belief.

Petitioner
 391

APPENDIX - II

GLOSSARY

This glossary section is a compendium of imperative road safety/driving related

terms to enhance a better understanding and to implicate a healthier sense of safety
among road users. The terms accumulated here are constructed with the sole aim
of providing information and safety.

"A"

Accelerate To increase the speed of the vehicle.

Accident An "accident" can be defined as a collision of automobile
with anything (including human, vehicle or animal)
causing damage to anyone.
Aggressive "Aggressive Driving" is the act of driving the vehicle in a
Driving way to increase the risk of accident.
Airbags "Airbags" are safety devices bed in vehicles to reduce the
injuries risk in a certain collisions.
Armrest "Armrest" is a feature in the car interiors used to rest arms.
Automobile "Automobile" is a vehicle run by an engine.

"B"

Blind Spot "Blind Spot" is an area around a commercial vehicle, that

are not visible to the driver, either through the windshield,
side windows or mirrors.
Brake "Bumpers" are safety devices installed to allow the vehicle
to withstand the impact from collision.
Bumpers "Brake" is a device used to control the motion of the
 392

vehicle.
Bus Lane "Bus Lane" is a lane restricted to buses only.

"C"

Carpooling "Carpooling" or "Car Sharing" is practice of sharing a

common car by the commuters, who each have a car but,
commute together to save costs.
Car Safety "Car Safety" is practice to avoid car accidents.
Car Wash "Car Wash" is the act to clean the car exteriors.
Child Safety A "child safety lock" is a safety device installed in cars.
Lock
Crash Tests "Crash Tests" are test performed to ensure the safety design
standards for vehicles. The resultants of these crash tests
form the basis for the further development of the safety
process.
Crossroads "Crossroads" is a road junction where two or more roads
meet or cross.
Crosswalk "Crosswalk" is special points on road made to facilitate the
pedestrians.
Cyclist A "Cyclist" is a person engaged in cycling.

"D"

Defensive "Defensive Driving" or "Advanced Driving" aims to reduce

Driving the risk of driving by anticipating dangerous situations
despite the mistakes of others.
Driver's "Driver's Education is the program offered by independent
Education agencies where students are taught about driving and road
safety.
Driver's "Driver's License" is an official document which affirms
License that the person holding the license is a qualified individual
to drive.
Drunken "Drunken Driving" is the practice of driving after
Driving consuming alcohol or drugs, exceeding the permissible
 393

levels.

"E"

Engine "Engine" is the component of the car machinery which

propels and drives the car.

"F"

Fog Lights "Fog Lights" are two special lights designed for cutting
through foggy conditions along the road ahead.
Footpath "Footpath" is a path meant for pedestrians, situated along
the road.

"H"

Headlights "Headlight" is a light, attached to the front of the vehicle. It

is used to light the road ahead of a vehicle during the poor
visibility time periods including night time and bad
weather.
Head Rest "Head Rest" is a safety device mounted on the top of the
seat. It is used to give rest to head while driving.

Helmet "Helmet" is a safety device worn by the drivers while

driving to protect from head injuries in case of an accident.
Highway "Highway" is a common term used to designate major
roads connecting two states or two countries.
Hump "Hump" is a hill like protrusion coming out of road surface.

"I"
 394

Ice Srapper An "Ice Scrapper" is an hand held tool for removing ice on
automobiles.
Idle Speed Minimum speed when the engine is at neutral gear.

Intersection "Intersection" is a point of junction of two or more roads,

at a crossing.

"J"

Jams "Jam" is known as a time period when roads are loaded

with traffic congestion.
Jaywalking "Jaywalking" is the act of illegal walking on road
performed by a pedestrian.
J-Gate A metal plate with a J-shaped whole, used in gear shifting.

"K"

Kerb A "Kerb" is the border of the road where the two roads
meet.

"L"

Lane A "Lane" is a portion of the road anticipated for single

line of vehicles.
Learner's A "Learner's License" is an official document that
License confirms that the person holding the license is learning to
drive.

"M"
 395

M.V Act "Motor Vehicle Act" is an act for vehicles in India. It was
formulated in 1988 and sice then has been amended three
times. (1994, 2000, 2001).

"N"

Neckdown "Neckdown" are the curb extensions at the corner of the

intersections to slow motor vehicles and give pedestrians a
shorter distance to cross.

"O"

Overtaking "Overtaking" is the act of driving roughly around another

comparatively slow moving vehicle.

"P"

Parking "Parking" is the act of stopping a vehicle and leaving it

unoccupied for more than a brief time period.
Pedestrian A "pedestrian" is the person traveling by foot and sharing the
road with other vehicles.
Pedestrian "Pedestrian Crossing" is path on the road employed to assist
Crossing pedestrians while crossing.

"R"
 396

Road A "Road" is an identifiable path between any two places.

Road "Road Junction" is a point on the road where traffic changes its
Junction routes in the desired direction.

Road Rage "Road Rage" is violent incident caused by stress on roads.

Round About A "Round About" is a circular island erected in the centre of the
road crossing.

"S"

Seat Belts "Seat Belts" are safety devices meant to hold the occupants of
the car from hitting in case of an accident

Speed Limits “Speed Limits” are the maximum speeds allowed for the
vehicles running on road.
Stop Sign A "Stop Sign" is a traffic sign instructing the driver to stop at
that point.
Street Light "Street Light" is a source of light on roads.

"T"

Tailgater "Tailgater" is a person following the vehicle in front too closely.

Test Drive "Test Drive" is the act of taking a vehicle for driving to test its
drivability before buying.
T-Junction "T-junction" is a road junction where a minor road joins the
larger road at a blind end.
Toll Road "Toll Road" is a road where a toll authority collects a fee for
using road.
 397

Traffic "Traffic" is the movement of the vehicles and pedestrians on

road.
Traffic "Traffic Congestion" is the condition of the road typified by
Congestion slower speeds and increased traffic.
Traffic Light A "Traffic Light" is a signaling device, erected on intersections
to direct the drivers.

"U"

Utility Poles Poles mounted at the road side for a particular function. Ex:
Telephone poles, road traffic sign poles and lighting poles.

"V"

Vehicle "Vehicle" is a means of transportation. Ex: bicycle, car, truck,

van etc.
Vehicle "Vehicle Registration Plate" is a plate attached to the vehicle
Registration used for its identification.
Plate

"W"

Wheel "Wheel" is a circular object that rotates and drives the vehicle
forward.
Windscreen "Windscreen" is the front window of the vehicle. It protects the
occupants from wind.
Windscreen "Windscreen Wiper" is a device used for wiping rain or dirt
Wiper from the windscreen.

"X"
 398

X-Ray This is used by law enforcement agencies when searching for

Detection illegal materials concealed within the door panels.

"Y"

Y-Intersection "Y- Intersection" is a type of intersection containing 3 arms of

roads of equal sizes.

"Z"

Zebra "Zebra Crossing" is a type of crossing characterized by

Crossing longitudinal stripes on road. It used by pedestrians to cross the
road.
 399

APPENDIX –III
TRAFFIC OFFENCES AND PENALTIES IN INDIA

The Indian Road rules, titled "Rules of the Road Regulation", were brought into effect
since July, 1989. These rules are germane to the Indian drivers (all inclusive of two, three
and four wheelers), while on the road to ensure an orderly traffic and a safer journey.
Violation of these "Rules of Road Regulation" is a punishable transgression as per the
city specific traffic police rules and the "Motor Vehicle Act".

Enforcement of these traffic laws - rules, regulations and acts can bear out the road
accidents. These laws are enforced by issuing challans in the name of the offenders and
teaching them a lesson by making them pay penalties. An indicative list of the possible
offences and their respective penalties is formulated below:

1. OFFENCES RELATED TO DOCUMENTS

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
Rs. 500/- and /or
Driving without a Valid
1.1 imprisonment ( 3 3 r/w 181 MVA
License
months)
Allowing vehicle to be driven Rs. 1000/- and/or
1.2 by a person who does not imprisonment ( 3 5 r/w 180 MVA
possess a Valid License. months)
Not carrying documents as
1.3 Rs. 100/- 130(3) r/w 177 MVA
required.
Rs. 1000/- and/or
Driving without Valid
1.4 imprisonment ( 3 130 r/w 177 MVA
Insurance.
months)
Driving without Valid Rs. 5000/- ( not less
1.5 130 r/w 177 MVA
Permit. than Rs. 2000/-)
 400

Driving without Valid Rs. 5000/- ( not less

1.6 130 r/w 177 MVA
Fitness. than Rs. 2000/-)
1.7 Vehicle without R.C. Rs 2000/- 39 r/w192 MVA

2. OFFENCES RELATED TO DRIVING

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
2.1.1 Driving by Minor . Rs. 500/- 4 r/w 181 MVA
Allowing Unauthorized
2.1.2 Rs. 1000/- 5 r/w 180 MVA
person to drive .
2.1.3 Driving without Helmet. Rs. 100/- 129 r/w177 MVA
138(3) CMVR
2.1.4 Seat Belts not fastened. Rs. 100/-
177 MVA
Rough/Rash/Negligent
2.1.5 Rs. 1000/- 184 MVA
Driving .
Rs.1000/-
2.1.6 Dangerous or hasty Driving. and/or imprisonment 112-183 MVA
( 6 months)
2.1.7 Not Driving in Proper Lane. Court Challan 66 r/w 192 MVA
Driving in the center and not
2.1.8 Rs.100/- 2 RRR r/w 177 MVA
to left side.
2.1.9 Driving against One Way. Rs.100/- 17 (i) RRR 177 MVA
Reversing without due care MMVR 233
2.1.10 Rs. 100/-
and attention. 177 MVA
Taking “U” turn during 12 RRR
2.1.11 Rs.100/-
outlawed hours. 177 MVA
Failing to take precaution 3 RRR
2.1.12 Rs.100/-
while taking a “Turn”. 177 MVA
Failing to decelerate at 8 RRR
2.1.13 Rs.100/-
intersection. 177 MVA
Failing to carry on left of 2 RRR
2.1.14 Rs.100/-
traffic island. 177 MVA
Carrying persons on
2.1.15 Rs.100/- 123-177 MVA
Footboard.
2.1.16 Carrying persons causing Rs.100/- 125-177 MVA
 401

hindrance to the driver.

2.1.17 Trippling. Rs. 100/- 128/177 MVA
2.1.18 Driving on Footpath. Rs.100/- RRR 177 MVA
Stopping at pedestrian
2.1.19 crossing or crossing a Stop Rs.100/- RRR 177 MVA
Line.
2.2 Road Marking Related Offences
2.2.1 Violation of Yellow Line. Rs. 100/- 119/177 MVA
2.2.2 Violation of Stop Line. Rs. 100/- 113(1)/177 DMVR
Violation of Mandatory
2.2.3 Rs. 100/- 119/177 MVA
Signs .
2.3 Number Plate Related Offences
Use of Offensive Number
CMVR 105 (2) (ii)
2.3.1 Plate for vehicle used in Rs.100/-
177 MVA
driving.
2.3.2 Displaying 'Applied For'. Rs. 4500/- 39/192 MVA
2.4 Vehicle Light Related Offences
Improper use of
CMVR 105 (2) (ii)
2.4.1 headlights/tail light for Rs.100/-
177 MVA
vehicle used in driving.
Using High Beam where not 112(G) A DMVR
2.4.2 Rs. 100/-
required. 177 MVA
2.5 Horn Related Offences
2.5.1 Driving without Horn. Rs. 100/- 119(1)/177 CMVR
Improper horn usage while CMVR 105 (2) (ii)
2.5.2 Rs.100/-
driving. 177 MVA
2.6 Traffic Police Related Offences
119 MVA
Disobeying Traffic Police
2.6.1 Rs. 100/- 22(a) RRR
Officer in uniform.
177 MVA
Driving against Police
2.6.2 Rs. 100/- 119 r/w 177 MVA
Signal.
239 MMVR
Disobeying manual Traffic
2.6.3 Rs. 100/- 22(a) RRR
Signal.
177 MVA
 402

2.7 Traffic Signal Related Offences

22(b) RRR
Disobeying Traffic signal /
2.7.1 Rs. 100/- 239 MMVR
Sign Board.
177 MVA
121 RRR
2.7.2 Failing to give Signal. Rs. 100/-
177 MVA
2.7.3 Jumping Signal. Rs.100/- 119/177 MVA
2.8 Speed and Overtake Related Offences
Exceeding the prescribed
2.8.1 Up to Rs.1000/- 112-183 MVA
Speed Limits.
Abetment for Over Speeding
2.8.2 Rs.300/- 112/183(2) MVA
.
2.8.3 Overtaking perilously. Rs.100/- 6 (a) RRR r/w 177 MVA
Failing to confer way to 7 RRR
2.8.4 Rs.100/-
sanction Overtaking. 177 MVA
Overtaking from Wrong Side
2.8.5 Rs. 100/- RRR 6/1/177 MVA
.
2.9 Other Offences
Disobeying Lawful
2.9.1 Rs. 500/- 132/179 MVA
Directions.
Rs.2000/-
Driving under influence of
2.9.2 and/or imprisonment 185 MVA
Alcohol / Drugs.
( 6 months)
Using Mobile Phone while
2.9.3 Up to 1000/- 184 MVA
Driving.
Leaving vehicle in
2.9.4 Rs.100/- 126-177 MVA
unoccupied engine.
Leaving vehicle in unsafe
2.9.5 Rs.100/- 122 177 MVA
position.
2.9.6 In case of a minor Accident. Rs. 1000/- 184 MVA
2.9.7 Playing music while Driving. Rs. 100/- 102/177 MVA
2.9.8 Driving without Silencer. Rs. 100/- 120/190(2)/177CMVR
Driving when mentally or
2.9.9 Court Challan 186 MVA
physically unfit.
 403

3. OFFENCES RELATED TO TOWING OF VEHICLES

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
3.1 Two Wheeler. Rs.100/- RRR 177 MVA
Car , Jeep, Taxi, Auto
3.2 Rs.200/- RRR 177 MVA
Rickshaw.
3.3 Truck, Tanker, Trailor. Rs.600/- RRR 177 MVA

4. OFFENCES RELATED TO POLLUTION

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
Smoking in Public
4.1 Rs. 100/- 86(1)(5)/177 DMVR
Transport.
Pollution Not Under
4.2 Rs. 100/- 99(1)(a)/177 DMVR
Control.
Fixing multi-toned/shrill 119 CMVR
4.3 Rs.500/-
horn. 190(2) MVA
4.4 Blowing Pressure Horn. Rs. 100/- 96(1)/177 DMVR
Silencer/muffler making CMVR 120
4.5 Rs.500/-
noise. 190(2) MVA
115 CMVR
4.6 Smoky Exhaust. Rs.500/-
190(2) MVA
Using horn in Silence 21(ii) RRR
4.7 Rs.100/-
Zone. 177 MVA

5. OFFENCES RELATED TO MOTOR VEHICLES

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
Using Vehicle in Unsafe
5.1 Court Challan 192 MVA
Conditions.
When motor vehicle is out
5.2 of state for more than 12 Rs.100/- 47-177 MVA
months.
Particulars to be printed on
5.3 Rs.100/- 84(G)-177 MVA
transport vehicles.
 404

CMVR 101
5.4 Without Wiper Rs.100/-
5,12 177 MVA
5.4 Without Side Mirror. Rs.100/- 5, 7/177 MVA
5.5 Defective tyres. Rs.100/- CMVR 94
No indication board on left
5.6 Rs.100/- 120, 177 MVA
hand drive vehicle.
Sale of motor
vehicle/alteration of motor 52/191 MVA,
5.7 Rs.300/-
vehicle in contravention of 32/192.66/192 MV Act
Act.
Vehicles fitted with dark 100 CMVR
5.8 Rs.100/-
glasses/sun films. 177 MVA
Driving without proper
236 MMVR
5.9 number plate/ illuminating Rs.100/-
177 MVA
rear number plate.
Failing to display public 116 MMVR
5.10 Rs.100/-
carrier board. 177 MVA
Rs. 5000/-
Using private vehicle for
5.11 ( not less than Rs. 2000/- -
commercial purposes.
)
Any sort of misconduct
with passengers, not MMVR 21(18)
5.12 Rs.100/-
wearing uniform/not 177 MVA
displaying badge.
Rs. 2000/-plus Rs.
Overloading a goods MMVR 93(u)(i)
5.13 1000/- for every
vehicle. 177 MVA
additional ton.
Carrying goods in a
Imprisonment and/or 29 RRR
5.14 dangerous or hazardous
fine of Rs. 3000/- 177 MVA
manner.
Imprisonment and/or
Infringement of permit
5.15 fine of Rs. 5000/-( not -
conditions.
less than Rs. 2000/-)
Use of Colored light on
5.16 Rs. 100/- 97(2)/177 DMVR
Vehicle

6. OFFENCES RELATED TO COMMERCIAL VEHICLES

 405

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
Plying in 'NO ENTRY'
6.1 Upto 2000/- 115/194 MVA
Time
11/177, 2/177, 66/192
6. Violation of Time Table Court Challan
MVA
High and Long / Load in
6.2 Rs. 100/- 29 RRR/177 MVA
Vehicles
Carrying animals in goods
MMVR 83
6.3 vehicles in contravention of Rs.100/-
177 MVA
rules.
Carrying persons
MMVR 108
6.4 dangerously or carrying Rs.100/-
177 MVA
persons in goods vehicles.
Goods in Passenger
6.5 - -
Vehicles
229 MMVR
Dangerous projection of
6.6 Rs.100/- 29 RRR
goods.
177 MVA
MMVR 202
6.7 Carrying goods unsecured. Rs.100/-
177 MVA
Carrying goods more than MMVR 93(u) (i)
6. Rs.100/-
11 feet high. 177 MVA
Limit Of weight and
6. Court Challan 113/194(1) MVA
limitation on Use.
Driver refuses to weigh
6. Court Challan 114/194(2) MVA
vehicle.
MMVR 202
6.9 Load on Tail Board. Rs.100/-
177 MVA
Misbehavior by Taxi/TSR
6.10 Rs. 100/- 11(3)/177 DMVR
Driver.
Over Charging by
6.11 Rs. 100/- 11(8)/177 DMVR
Taxi/TSR Driver.
6.12 Charging without Meter. Rs. 100/- 11(8)/177 DMVR
Refusal by Taxi/TSR
6.13 Rs. 100/- 11(9)/177 DMVR
Driver.
 406

6.14 Driver without Uniform. Rs. 100/- 7/177 DMVR

6.14 Driver without Badge. Rs. 100/- 22(1)/177 DMVR
Conductor without
6.15 Rs. 100/- 23(1)/177 DMVR
Uniform.
6.16 Conductor without Badge. Rs. 100/- 22(1)/177 DMVR
6.17 Stopping without Bus stop Court Challan 66/192 MVA
Power to detain Vehicle
used in contravention of
6.18 Court Challan 207(1) MVA
section 3.4,39 or 66(1) MV
Act.

7. OFFENCES RELATED TO PARKING

MAXIMUM
S.NO OFFENCES SECTION
PENALTY
Parking in the direction of 22(a) RRR
7.1 Rs.100/-
flow of traffic. 177 MVA
Parking away from 15(2) RRR
7.2 Rs.100/-
footpath towards road. 177 MVA
Parking against flow of 15(2) RRR
7.3 Rs.100/-
traffic. 177 MVA
Parking causing 15(2) RRR
7.4 Rs. 100/-
Obstruction. 177 MVA
15(2) RRR
7.5 Parking on a Taxi Stand. Rs. 100/-
177 MVA
Parking in not any 15(1) RRR
7.6 Rs. 100/-
prescribed manner. 177 MVA
15(i) RRR
7.7 Parking at any Corner. Rs. 100/-
177 MVA
Parking within 15 meters 15(2) RRR
7.8 Rs. 100/-
on either side of Bus Stop. 177 MVA
15(2) (i) RRR
7.9 Parking on Bridge. Rs. 100/-
177 MVA
15(i) RRR
7.10 Parking at Traffic Island. Rs. 100/-
177 MVA
7.11 Parking in “No” Parking Rs. 100/- 15(2) RRR
 407

Area. 177 MVA

Parked on Pedestrian 15(2)(iii) RRR
7.12 Rs. 100/-
Crossing. 177 MVA
15(2)(ii) RRR
7.13 Parking on Footpath. Rs. 100/-
177 MVA
15(2)(viii) RRR
7.14 Parking in front of a gate. Rs. 100/-
177 MVA
Parking causing 15(1) RRR
7.15 Rs. 100/-
obstruction. 177 MVA

RRR: Rules of Road Regulations 1989

MVA: Motor Vehicles Act 1988

MMVR: Maharasthra Motor Vehicles Rules 1989

CMVR: Central Motor Vehicles Rules 1989

 408

APPENDIX –IV
TEN TIPS FOR ROAD SAFETY

Road safety is a result of contributing efforts from all the sectors of the society including
both civilians and Govt. officials. In addition to the human sufferings, the estimated costs
of the road injuries are a noticeable amount in GNP per annum. So, some tips can be
fruitful in this direction.

Few important Road Safety Tips are mentioned below :

1. Don't use your mobile phone whilst driving

2. Belt up in the back
3. Don't drink and drive
4. Always adhere to speed limits
5. Take special care about children, senior citizens and pedestrians.
6. Don't drive if tired.
7. Pedestrians should walk cautiously.
8. Always observe and anticipate other road users.
9. Keep your distances.
10. Always wear helmets and seat belts
 409

APPENDIX –V
TRAFFIC POLICE SIGNALS

To start one side vehicles To stop vehicles coming To stop vehicles approaching

from front from behind

To stop vehicles approaching To stop vehicles approaching To start vehicles approaching

Simultaneously from front and simultaneously from right and from left
 410

Back left

To start vehicles coming To change sign To start one side vehicles

From right

To start vehicles on To give VIP Salute To manage Vehicles on

T-Point T-Point