Union of India Vs. United India Insurance Co. Ltd. & Ors [1997] INSC
791 (22 October 1997)
S. B.
MAJMUDAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
Present:
Hon'ble
Mr. Justice S.B.Majmudar Hon'ble Mr. Justice Jagannadha Rao N.N. Goswami, K.L. Shukla,
H.L. Agrawal, M.L. Jain, Sr.
Advs.,
Praveen Swarup, Satpal Singh, S. Wasim A. Qadri, P. Parmeswaran, Rajiv Sharma,
K.K. Dhawan, K.S. Rana, Hemant Sharma, Y.P. Mahajan, A.D.N. Rao, A.K. Sharma, Rajiv
Nanda, Fizani Husain, Ravindra Kumar, Rajiv Mehta Yatendra Sharma, Ms. Manupriya
Mittal, Ms. Indira Swawhney, Ms. Indu Goswami MS. Kamakshi, S. Mehlwal, Ms. Smitha
Inna, Ms. Sushma Suri, K.N. Bhargava, Ms. Beena Prakash, G. Prakash, K.M.K.
Nair, S. Srinivasan, Dr. K.S. Chauhan, M.K. Diwakaran Nambordiri, Advs. with
them for the appearing parties.
The
following Judgment of the Court was delivered:
WITH
(CA
Nos. 3034, 3035, 3036, 3037, 3038, 3039, 3040, 3041, 3042, 3043, 3044, 3045,
3046, 3047, 3048, 3050, 3051, 3052, 3053, 3054, 3055, 3056, 3057, 3058, 3059,
3060, 3061, 3062, 3063, 3064, 3065, 3066/1990 & C.A. Nos. 7418-19/97
(Arising out of S.L.P. (C) Nos. 17291/97 & 2918/89)
M.
JAGANNADHA RAO, J.
Leave
granted in the SLPS.
Several
important issues whether omission to perform public law statutory duties can or
cannot give rise to action at private law (Point 4) and liability of public
bodies in tort while performing inherently dangerous operations (Point 3) etc.
arise for consideration in this batch of cases.
This
is a batch of appeals preferred by the Union of India represented by the
General Manager, Southern Railway.
The
accident occurred on 9.5.1979 at an unmanned level crossing at Akaparampa (near
Kalady) in Kerala when a hired passenger-bus was hit, by the Jayanthi Janatha
Express at about 3 P.M., and 40 passengers in the bus and the driver thereof
were killed while same other passengers sustained injuries. Two judgments of
the Motor Accidents Claims Tribunal, Ernakulam in regard to the same accident
are under appeal before us. In one batch of cases filed by dependents of
deceased and injured persons, the Motor Accidents Claims Tribunal, Ernakulam by
judgment dated 28.2.1986 held that the driver of the bus was negligent and
passed awards against the owner of the bus and the insurance Company but
dismissed the claim against the Railway on the ground that there was no
negligence on the part of the driver of the railway-engine concerned or on part
of the Railway Administration. The liability of the Insurance Company was
restricted to a maximum of Rs. 500/- per passenger as per the statutory
provisions then in force. On appeals by the Insurance company, cross objections
were preferred by claimants (in some cases). The appeals and cross objections
filed were partly allowed by the High Court, making the Railways also liable.
In two other cases which were decided in an earlier judgment dated 27.9.1984,
the same Tribunal at Ernakulam had held the Railways Administration also liable
on account of its negligence in regard to the same accident. However, in both
judgments, it was held that under Section 110 (1) and 110B of the Motor
Vehicles Act, 1939 an award could be passed against the railway also which view
was accepted by the High Court.
Against
all these judgments, the Union of India has preferred these Civil Appeals. Stay
of operation of the judgments was refused by the Court, pending these appeals.
The fact
of the case are as follows:
The
motor vehicle in question belonged to one K. Arumugham of Arni, Tamilnadu and
hired by employees of the Survey and Land Records Dept. of the Tamilnadu State for a trip to Trivandrum, Cochin, Kalady, Guruvayoor, etc. in Kerala.
One Rajan was the Manager of the tour. On 7.5.1979, the Bus started at Trivandrum for Cochin. There was some delay on the way and the passengers were
finding fault with the driver in regard to the said delay. It appears that the
driver was angry with some of the passengers who found fault with him for delay
and he told them that he would abandon the bus and reached Cochin and proceeded to Kaady via Angamali.
The bus was to cross an unmarried level crossing at Akaparamba at about 3 P.M. The said railway crossing had no gates or stiles. It is now
found on evidence that the caution board' at the entrance of the level crossing
was moth eaten and the writings thereon could not be deciphered by any one even
if one was inclined to read. The train was visible to the driver and passengers
at a distance of 1 K.M. The driver drove the vehicle and was crossing the
railway line when the vehicle stopped on the track and did not move. The passengers
cried and shouted in panic but the bus remained there and was pushed upto a
distance of 500 meters by the locomotive. In that process forty passengers and
the driver died while some other passengers were injured.
We
have heard the counsel on both sides. From the submissions the following points
arise for consideration:
(1)
What are the common law duties of a motor vehicle driver at a railway level
crossing? Whether, on facts, the bus driver was negligent? (2) Whether, under
the doctrine of imputation the negligence of the driver in which the passengers
travelled could be imputed to the passengers by the railways as part of the defence
for the purpose of raising a plea of contributory negligence of the passengers?
(3) Whether under the law of torts the claimants in rail- motor collisions can
claim that the obligations of the Railway under statute as well as under common
law will run concurrently? What are the common law duties of the railways at
level crossings and whether the Railway is bound to take cognizance of the
increase in the volume of traffic and ought to have installed gates and kept a
watchman at the level crossing? (4) Whether a public authority upon whom powers
are conferred by statute to exercise discretion for benefit of the public can be
said to be under a duty of care so that omission to exercise that power could
be treated as negligence at common law giving a right to compensation? If not,
whether there are any exceptions to the rule that a statutory may can never
give rise to a common law `ought'? What is the effect of the omission of the
Railways to exercise power under Section 13(c) and (d)? (5) Whether the Motor
Accidents Claims Tribunal has jurisdiction under Section 110(1) of the Motor
Vehicles Act, 1939 read with Section 110(B) thereof (corresponding to Section
165 and 168 (1) respectively of the Motor Vehicles Act, 1988) to adjudicate a
claim against the Railway Administration when a motor vehicle is hit by a
railway train and whether the Tribunal can pass an award under Section 110 (B)
against the Railways also, in addition to an award against the owner of the
vehicle, driver and the insurer? Point 1: The facts of the case before us
reveal that the driver as well as the passengers in the bus saw the train at a
distance of one kilometer from the level crossing. But the driver of the bus
proceeded forward. The train which was a Super fast one, was running at a speed
of 75 K.M. per hour.
That
would mean that it would have taken about 40-50 seconds to reach the level
crossing. It is not clear to us as to how for the bus was at that time from the
level crossing but the evidence reveals that the bus proceeded to cross the
railway line and thereafter did not move from the track and was then hit by the
train and dragged upto 500 metres. There is no evidence that the engine driver
was negligent. In fact if he had applied the brakes when the saw the bus about
100 feet away while the train was running at a speed of 75 K.M. per hour, there
would have been a derailment of several compartments of the train itself.
It was
argued for the Unions of India that as a matter of common lam duty, at the
level crossing, the driver of a motor vehicle was obliged to stop, sea, listen
and get down and proceed. Rule 100 of the Rules made by the Central Government
under the Motor Vehicles Act, 1939 which refers to the duties of Conductors was
referred to. Clause (f) of Rule 100 (introduced w.e.f. 1.7.1965) states that
the Conductor of a stage carriage while on duty, shall, "....while
crossing an unmanned railway level crossing with his vehicle, require the
driver to stop the vehicle on the road at the places notified for such stoppage
by appropriate sign board as set out in the Third Schedule to these Rules and
on stopping, shall get down and after making sure that no train is approaching
the level crossing from either side, walk ahead of the vehicle until it has
safely crossed the level crossing".
The
Rule therefore postulates the existence of a sign board as mentioned therein,
requiring the conductor to get down. Now admittedly the writing on the sign
board at the level crossing was moth eaten and no writing was visible.
Hence
in our view no special obligations created by the rule, which were in addition
to the common law requirements, can be said to apply. There was no notice as
contemplated by the rule which laid down an extra obligations on the conductor
to get down from the vehicle as stared in clause (f) of Rule 100.
In our
opinion, in the absence of a board statutory requiring the vehicle to
"stop" and the conductor to "get down", there was only an
ordinary common law duty as applicable to prudent persons. This was a duty to
"stop" "see and hear" and find out if any train was coming.
It has been held by the U.S. Courts that there is no absolute duty at common
law to get down from the vehicle invariably. In fact a rigid rule of getting
down from the vehicle in addition to stooping down from the vehicle in addition
to stooping locking and hearing was laid down at one time by 275 US 66 (72 L.Ed.
167, 48 S.Ct. 24) but such a principle of special caution which was under
adverse criticism was 292 US (78 L.Ed. 1149, 54 S.Ct.580) stating that the
requirement of getting down from the motor vehicle was good if there was a
curve or an obstruction or such like situation but not when the line was
straight and the train was visible. The get out of the car requirement was in
the absence of special requirement, an uncommon precaution, likely to be futile
and sometimes even dangerous', said Cardozo J. In our opinion, there was no
duty - in the absence of a board directing the driver or conductor - to get out
of the vehicle, but there was certainly a duty to stop, see and hear, at the
unmanned level crossing. If that was not more, there would clearly be
negligence on the part of the driver. In fact, it has been so held by this
Court, in a case under Section 304 A, IPC that the driver must be deemed to be
rash and negligent if he did not stop the vehicle and then see and hear, (S.N. Hussain
vs. State of A.P.) (AIR 1972 S.C.685). It was there observed:
"Where
a level crossing is unmanned. It may be right to insist that the driver of the
vehicle should stop the vehicle, look both ways to see if a train is
approaching and thereafter only drive his vehicle after satisfying himself that
there was no danger in crossing the railway track." It was also pointed
out:
"But
where a level crossing is protected by a gateman and the gateman opens that the
gate inviting the vehicle to pass, it will be too much to expect of any
reasonable and prudent driver to stop his vehicle and look out for any
approaching train".
Inasmuch
as in this case, the driver did not stop the vehicle at the unmanned crossing,
it must in our view be held that he was guilty of negligence even though there
was no curve or obstruction at the point. The Tribunal and the High Court were.
In our opinion, justified in finding negligence on the part of the driver. Of
course, the High Court felt that the driver who must be deemed to be conscious
that his own life was at stake could not be accused of criminal negligence in
wanting to kill the passengers even if he was angry with their complaint of
delay. The High Court thought that the case might be one where the driver took
a risk which ought not to have been taken and the engine of the bus, for some
unknown reasons, might have failed, while it was on the track. In any event,
the finding of negligence of the bus driver does not call for interference.
Point
2: The claimants are either the injured passengers or the dependents of the
deceased passengers travelling in the ill-fated motor-vehicle. We have accepted
that the driver of the said motor vehicle was negligent. The question is
whether the driver's negligence in any manner vicariously attaches to the
passengers of the motor-vehicle of which he was the driver? There is a
well-known principle in the law of torts, called the doctrine of identification
or `imputation'. It is to the effect that the defendant can plead the
contributory negligence of the plaintiff or of an employee of the plaintiff
where the employee is acting in the course of employment. But, it has been also
held in Mills vs.
Armstrong
[1988] 13 A.C. 1 (HL) (also called The Bernina case) that principle is not
applicable to a passenger in a vehicle in the sense that the negligence of the
driver of the vehicle in which the passenger is travelling, cannot be imputed
to passenger. (Halsbury's laws of England 4th Ed., 1984 Vol. 34, page 74) (Ratanlal
and Dhirajlal, Law of Torts (23rd Ed. 1997 p.511) (Ramaswamy Iyer, Law of
Torts, 7th Ed., p. 447). The Barnina case in which the principle was laid in
1888 related to passengers in a steamship. In that case a member of the crew
and a passenger in the ship Bushire were drowned on account of its collision
with another ship Bernina. It was held that even if the navigators of the ship Bushire
were negligent, the navigators' negligence could not be imputed to the deceased
who were travelling in that ship. This principle has been applied, in latter
cases, no passengers travelling in a motor-vehicle whose driver is found guilty
of contributory negligence. In other words, the principle of contributory
negligence is confined to the actual negligence of the plaintiff or of his
agents. There is no rule that the driver of an omnibus or a coach of a cab or
the engine driver of a train, or the captain of a ship on the one hand and the
passengers on the other hand are to be `identified' so as to fasten the latter
with any liability for the former's contributory negligence. There cannot be a
fiction of the passenger sharing a `right of control' of the operation of the
vehicle nor is there a fiction that the driver is an agent of the passenger. A
passenger is not treated as a backseat driver. (Prosser and Keeton on Torts,
5th Ed., (984 p.521 522). It is therefore clear that even if the driver of the
passenger vehicle was negligent, the Railways, if its negligence was otherwise
proved - could not plead contributory negligence on the part of the passengers
of the vehicle. What is clear is that qua the passengers of the bus who were
innocent, - the driver and owner of the bus and, if proved, the railways - can
all be joint tort-feasors. Point
3.
This point deals with the common law duty of railways at level crossings. A
contention was raised for the Union of India that there was no pleading in
regard to the negligence of the Railways. This contention was rightly rejected
by the High Court. In our view, the issue framed by the Tribunal was broad
based. It read as follows:
"Whether
the accident was caused due to the negligence of all or any of the respondents
or of the bus driver?" The claimants and the bus owner led evidence and
were elaborately cross examined by the Railways. The Railways examined the
engine driver and filed the report of the Commissioner of Railways who inquired
into the cause of the accident. No other evidence was adduced by the railways.
It is well settled that when the issue framed by the trial court is wide and
parties understood the scope thereof and adduced such evidence as they wanted
to, then there can be no prejudice and a contention regarding absence of a
detailed pleading cannot be countenanced.
We
shall now deal with the main point. At the out set it is necessary to notice
the difference between the statutes in England and in India. In England as shown below, duties are statutorily imposed under two
statutes of 1845 and 1863 directly on the Railways to erect gates and employ
watchmen, etc. at the level crossings if the Railway was cutting across a
public road. But the position in our country is somewhat different. As pointed
out by the Bombay in P.J. of Bombay High Court 91 by
Sir Charles Sargent CJ the direct obligation cast on the Railway by Section 21
of the Act 18 of 1954 was repealed later by Act 25 of 1871. To this extent, the
Indian statute therefore differs from the English statute. Under Section 13 of
the Railways Act, 1890 no such duties are imposed directly on the Railway
Administration by the Statute. The section on the other hand only confers a
power on the Central Government to issue a requisition to the Railway
administration, i.e. the General Managers or the Railway Companies (if any) to
take steps as per section 13. Obviously, if the Central Government does not
think fit to exercise that power and does not think fit to exercise that power
and does not issue any such requisition, the occasion for the Railway
Administration to take steps under section 13, as per the statutory mandate,
will not arise. (As to what can be the effect of an omission to exercise this
statutory power to issue a requisition, will be dealt with separately under
Point 4). Section 13 of the Indian Act may be noticed:
"Section
13: Fences, screens, gates and bars: The Central Government may require that,
within a time to be specified in the requisition or within such further time as
it may support in this behalf- (a) boundary-marks or fence be provided or
renewed by a railway administration for a railway or any part thereof and for
roads constructed in connection therewith;
(b)
any works in the nature of a screen near to or adjoining the side of any public
road constructed before the making of a railway be provided or renewed by a
railway administration for the purpose of preventing danger to passengers on
the road by reason of horses or other animals being frightened by the sight or
noise of the rolling- stock moving on the railway;
(c) suitable
gates, chains, bars, stiles or hand-rails to erected or renewed by a railway
administration at places where a railway crosses a public road on the level;
(d) persons
be employed by a railway administration to open and shut such gates, chains or
bars." In view of the above provision, which does not cast a direct
obligation on the railway administration, several High Courts have taken the
view, and in our opinion, rightly that the statutory duties of the Railway
Administration under Section 13, do not arise unless a requisition is made by
the Central Government. The above anomaly has naturally compelled the Courts to
fall back upon the common law duties resting on the Railways. It has been
contended for the claimants that under the common law, the Railways, as an
occupier of the level crossing for the purpose of running railway trains which
are inherently dangerous to those who use the public road at that point, has
special responsibilities as a responsible body to see that accidents are kept
at the minimum. Question then arises whether the common law duties are
concurrently enforceable alongwith or independently of the statutory duties
under section 13.
The
law in this behalf is again well settled that the claimants can at their choice
sue the railways to enforce either or both types of these duties, i.e. under
common law as well as under statute. These aspects have been summarised Dermott
[1966 (2) ALl E.R. 162 (PCO)]. That was a case which arose from the judgment of
the High Court of Australia. In that case, Lord Gardinar L.C. stated:
"Theoretically,
in such a situation, there are two duties of care existing concurrently,
neither displacing each other. A plaintiff could successfully sue for breaches
of either or both of the duties........" It must, therefore, be accepted
that the claimants can sue the Railways concurrently for breach of the common
law or statutory duties or for breach of either of the duties.
The
next question is as to what are the common law duties of the Railways at level
crossings from time to time? In the same decision of the Privy Council in
Commissioner has been stated that the Railway's duty of care at common law is
based on the principle of neighbourhood laid down by as the Railway "was
carrying an inherently dangerous activity of running express trains through a
level crossing which was lawfully and necessarily used by local inhabitant and
their guests and persons visiting them on business.
Such
an activity was likely to cause accidents, unless it was carried with all
reasonable care........ In principle, the liabilities is not based, however on
matters of title but on the perilous nature of the operation and the defects
relationship which A.C. 562 would be called `proximity' or `neighbourly
relation between the railway operator and a substantial number of persons
lawfully using the level crossing".
The
duty to care at common law is therefore based upon the dangerous or perilous
nature of the operations of the railways.
In Donoghue
vs. Stevenson [1932 AC 562] a manufacturer was held liable to the ultimate
consumer at common law on the principle of duty to care. Lord Atkin said
"you must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. He asked:
"who, then, in law is my neighbour? The answer seems to be, persons who
are closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am directing my mind to the
acts or omissions which are called in question".
The
test of breach of common law duty is again the test of a reasonable or prudent
person in the particular fact situation, of course the amount of care, skill,
diligence or the like, varying according to the circumstances of the particular
case. The standard of foresight is again that of a resonable person. Such a
person is also expected to take into account common negligence in human behaviour.
Of course, he need not anticipate folly in all its forms (HL)]. That if there
is omission to exercise such a common law duty of care, an action at common law
can be filed for non-feasance is also clear from a judgment of this Court in
Jay Laxmi Salt Works (P) Ltd. vs. State of Gujarat 1994 (4) SCC 1. In our view,
therefore, because the Railways are involved in what is recognised as dangerous
or perilous operations, they are at common law, to take reasonable and
necessary care on the `neighbourhood' principle - even if the provisions in
Section 13(c) and (d) of the Railways Act, 1890 are not attracted for want of
requisition by the Central Government.
The
next important question is whether there can be any breach or a common law duty
on the part of the Railway if it does not take notice of the increase in the
volume of rail and motor traffic at the unmanned level crossing and if it does
not take adequate steps such as putting up gates with a Watchman so as to
prevent accidents at such a point? What is the extent of care required at common
law has also been decided.
In
several cases the need to have a constant appraisal of increase in volume of
rail and road traffic at level crossings has been treated as a requirement of
the common (1949 S.C. 125), Lord Cooper emphasised that the railway should take
all precautions which will Reduce the danger to the minimum and should take
into account the nature and volume of such traffic reasonably to be
anticipated'. In 1248 (CA), Denning and Romer, L.JJ had occasion to say that
the railway authorities were bound to take steps from time to time by
considering the increase in he rail and rod traffic at the level crossing. On
facts in Lloyds Bank case it was found that 75 to 100 vehicles crossed the
level crossing per day and it was held that the railway company could not say.
"--this
increased traffic on the road is no concern of ours.
It was
their concern".
The
duties of the railways treating the railway line as an accommodation line at a
private road and alternatively as one cutting across a public road were
separately considered.
It was
held that treating it as a private road, the railway authorities ought to have
taken steps to have warnings or whistles given. Alternatively, treating it as a
public road the railways ought to have put up pates as per the Railway Clauses
Consolidation Act, 1845 and a lodge as per the Railway Clauses Act, 1863. Under
both alternatives, the increased traffic required a re-appraisal of the
measures previously taken by the railway to prevent accidents.
In an
earlier case Lush, J. also had occasion to emphasis the need to take into
account the increase in the L.R. 5 Q.B. 258, he stated that the greater the
thoroughfare over any part of the line, the greater care and vigilance that
ought to be exercised by those who have the charge of the trains. Whatever the
degree of traffic may be, be it more or less, a corresponding degree of care
was required on the part of the company.
In Halstury's
laws of England Railways Vol. 39. 4th Edn. 1984 para 868), it is stated that if
there is increase in the number local inhabitants using the level crossing,
then reasonable additional precautions must be taken.
In
regard to the absence of a proper notice board, we may also refer to what
Krishnan, Judicial Commissioner, said in Union of India vs. Lalman S/o Badri
Prasad [AIR 1954 V.P. 173. He said: "even if the car driver knew that
there was a crossing, the road users should be altered at the proper
moment" by the boards and it is not a case for remote knowledge but
"one for immediate alertness".
Further
in our view, the following passage in the judgment of the aforesaid learned
Judicial Commissioner correctly represents the position at common law:
"A
level crossing is on the one hand a danger spot in view of the possible
movement of trains, and on the other is an invitation to the passerby. This is
a public crossing and not merely one by private accommodation. Therefore it is
the legal duty of the railway to assure reasonable safety. The most obvious way
of doing it is to provide gates or chain barriers and to post a watchman who
should close them shortly before the trains pass.
But
failure to do so is not by itself an act of negligence provided that the
railway had taken other steps sufficient in those circumstances to caution
effectively a passerby of average alertness and prudence. At a reasonable
distance on either side, prominently written boards can be affixed, asking the
road-users to beware of trains. If the track on either side is visible from
near the caution board or within a short distance from the crossing, this would
be sufficient because a diligent road-user could look round and see the train.
On the other hand, if there is a bend on the track or there are trees or bush
in between, or the road on either side of the crossing is very far below the
level of the railway track, or for any other similar reasons the track is not
visible beyond a short distance, then even the caution boards are useless. In
that case gates are indicated. Similarly boards may be affixed along the
railway, say half to
three-fourth of a mile
in either direction ceiling upon the engine driver to whistle. A whistle by the
driver can supplement, but cannot replace gates or caution boards as a device
to protect the users of a crossing." In the case before us the Railways have
led no independent evidence of any application of mind to these issues.
Obviously, the railways presumed that the negligence of the driver of the bus
could be imputed to the passengers but this, as stated by us under Point 2 is
legally untenable. The High Court has noticed that 300 vehicles pass through
this point and six express trains cut across this public road every day
(obviously there must be other non- express or passenger trains and goods
trains every day). The population in dense in Kerala and more so near Kalady,
the pilgrimage centre connected with Sri Jagadguru Adi Sankaracharya. In
Lloyd's case 1932 (1) All E.R. 1248 (CA), the Court of Appeal though that even
when the road traffic reached a level of 75 to 100 vehicles, the railways ought
to have, if it was a public road, put gates and a watchman, as required by
statute. The High Court, in our view, rightly observed that the bus driver was
from Tamil Nadu, he was not familiar with this place in Kerala State where the
accident occurred, there was no caution board or other indication to show that
the road was cutting across a railway line, and there were no gates or
hand-rails to alert the passer-by. It was held that if the Railway had taken
adequate precautionary measures such as, erecting hand rails or gates, a severe
accident like this would not have taken place. In the absence of gates and
caution board, the level crossing was held to be in the nature of a trap.
For
the aforesaid reasons, no case is made out by the appellant for disturbing the
finding of the High Court that applying common law principles, the Railway must
also be deemed to be negligent is not converting the unmanned level crossing
into a manner one with gates, - having regard to the volume of rail and road
traffic at this point.
Point
4: Point is whether omission to perform public law statutory duties can or
cannot give rise to actions at private law and if they cannot, ordinarily, -
whether there are any exceptions? We are here concerned with the question as to
whether omission on the part of the Central Government to take a decision
whether or not to exercise powers under Section 13 of the Railway Act, 1890 _
in particular under clause (c) and (d) of Section 13 - amounted to a breach of
a statutory duty giving rise to a cause of action for damaged based on
negligence.
Recently
this court had occasion in Rajkat Municipal Corporation vs. Manjulaben Jayantilal
Nakum 1997(9) SCC 562 to consider an analogous problem. There the issue was
regarding the omission on the part of the local authority to remove a tree from
a public road The tree later fell on the plaintiff's husband who was passing by
the road resulting in his death. The High Court had decreed compensation but
this court allowed the appeal and dismissed the claim holding that no breach of
statutory duty was involved. In that context, this court had occasion to refer
to the principles laid down by Lord Atkin in Donoghue vs. Stevenson [1932 AC
562] as regards `proximity' and `neighbourhood', and to the extension of these
principles by Lord Wilberforce in Anns vs. Merton London Borough 1978 AC 728 to
cases of omission on the part of local authorities to properly scrutinise
building plans where such omissions resulted in the cracking of walls of the
buildings constructed, thereby causing `economic losses'. This court also
referred to Murphy vs.
Brent
- wood District Council 1991 (1) AC 398 which overrules Anns. Whether Anns was
rightly overruled in Murphy in regard to economic losses. It is not necessary
for us to decide. We shall assume Murphy is tight. We are referring to this
aspect because the extent to which private law rights under common law can
arise on account of non-performance of statutory, mandatory or discretionary
duties or omission to exercise such statutory powers can differ from country to
country. In several common law countries, it is seen that Anns might still be
pressed into service. (See the Canadian view of 1992 of McLachlin, L'Haureax - Dube
& Cory, JJ the Australian view of 1995 (in fact Brennanm J., whose opinion
as to incremental development of common law was the basis for Murphy, soon
found himself in a minority in later cases in Australia); and the 1994
deviation from Murphy in New Zealand (which was approved with special
appreciation by the Privy Council in 1996 in a case noted below) (See Jackson
and Poweli on Professional Negligence, 1997 4th Ed., p. 36- 40). In fact Bhagwati,
CJ stated in M.C.Mehta & Another vs. Union of India & Others [1987 (1)
SCC 395] that the common law in our country is to keep pace with socio-economic
norms of our country.
We may
state that there are two distinct types of cases. One relates to the omission
on the part of the public authority to perform an alleged statutory duty - as
in the Rajkot case. Another relates to omission to exercise a power or rather
not deciding whether to exercise statutory power or not. The case before us
belongs to the latter category.
Section
13 of the Railways Act, 1850 enables the Central Government to send a
regulation to the railway administration to take certain steps in regard to
level Wise: 1996 (3) W.L.R 388 was directly concerned with this second type of
cases - omission to take a decision with regard to exercise of statutory power
under Section 79 of the Highway Act. That case, we consider is more directly in
point. In that case, an earthen mound in the land of the defendant was causing obstructor
to the vision of the drives of vehicles passing on the road at a junction and
on that account the plaintiff met with an accident and was injured.
The
local authority had no power to enter on the land of the owner and remove the
mound, but had power under Section 79 to issue a requisition to the land power
to remove the mound. In fact, a requisition was sent a few days before the
accident and the land-owner was yet to respond. The claim was based on the
delay in the exercise of powre by the loc authority, that is to say, at an
earlier point of time which according to the plaintiff, was the cause for the
accident.
Lord
Hoffman, speaking for the majority (it is not necessary here for us to decide
whether the minority view
------------------------------------------------------------ (1) See among
others, (1997) Vol. 60. Modern Law Review p. 559 `Public or Private': Duty of
care in a statutory frame Convery. See also: (1997) Vol. 113 Law Quartersly
Review p. 398. Powers and Duties - A small breach in East Suffolk Wall
------------------------------------------------------------ of Lord Nicholas
is not correct. We shall assume that the majority view of Lord Hoffman is
correct stated that in the case of positive acts, the liability of a public
authority in tort is in principle the same as that of a private person but may
be restricted by its statutory powers and duties.
the
highway authority was enlarged because of the statutory powers and they created
a proximity between the authority and the road-user (p.409). But in East Buffolk
Rivers "Where a statutory authority is entrusted with a mere power it
cannot be made liable for any damage sustained by a member of the public by
reason of its failure to exercise that power".
In Anns,
this principle was somewhat deviated from. As stated earlier the plaintiff in Anns
had sued for losses to flats in a new block which had been damaged by
subsidence caused by inedequate foundations. The contention that the Council
was negligent in the exercise of statutory powers to inspect foundations of new
buildings givingrise to a claim for economic damage suffered was upheld. This
principle was however not accepted in Murphy to the extent economic losses were
concerned. According to Lord Hoffman, Anns was not overruled in Murphy so far
as physical injury resulting from omission to exercise statutory powers was
concerned (p 410).
A duty
of care at common law can be derived from the authority's duty in public law to
"give proper consideration to the question" whether to exercise power
or not (p. 411).
This
public law duty cannot by itself give rise to a duty of care. A public body
almost always has a duty in public law to consider whether it should exercise
its powers but that did not mean that it necessarily owed a duty of care which
might require that the power should be actually exercised. A mandamus could
require future consideration of the exercise of a power. But an action for
negligence looked back at what the authority ought to have done. Question is as
to when a public law duty to consider exercise of power vested by statute would
create a private law duty to act, giving rise to a claim too compensation
against public funds (p. 412).
One
simply cannot derive a common law "ought" from a statutory "may".
The distinction made by Lord Wilberforce in Anna between `policy' and
`operations' is an inadequate tool with which to discover whether it was
appropriate to impose a duty of care or not. But leaving that distinction, it
does not always follow that the law should superimpose a common law duty of
care upon a discretionary statutory power (p. 413). Apart from exceptions
relating to individual or societal reliance on exerciwe of statutory power, -
it is not reasonable to expect a service to be provided at public exepnse and
also a duty to pay compensation for loss occasion by failure to provide the
service. An absolute rule to provide compensation would increase the burden on
public funds.
Lord
Hoffman further observed that whether a statutory duty gave rise to a private
cause of action or not was a question of construction of the statute. It
required an examination of the policy of the statute to decide whether it was
intended to confer a right to compensation for breach. The question whether it
could be relied upon to support the existence of a common law duty of care was
not exactly a matter of construction because the cause of action did not arise
out of the statute itself. Whether there was a common law duty and if so what
was its ambit must be profoundly influenced by the statutory framework within
which the acts complained of were done. The same was true of omission to
perform a statutory duty. If the policy of the Act was not to create a
statutory liability to pay compensation, the same policy should certainly
exclude the existence of a common lae duty to care.
But it
is not as ig that a statutory `may' can never give rise to a common law duty of
care (p. 414). There was exceptions in which a statutory `may' could create a
common law `ought'.
The
exceptions according to Lord Hoffman require two conditions to be proved to
postulate a duty to perform a common law obligation within the statutory framewor
of a discretionary power. The two minimum pre-conditions for basing a duty of
care on the exercise of a statutory power were firstly, that it would have been
irrational not to have exercised the power so that there was a public duty to
act and secondly that there were exceptional grounds for holding that the
policy of the statute must have been to require compensation to be paid to
persons who woudl suffer damage because the power conferred was not exercised
at all or not exercised when it was generally expected to be exercised.
Lord
Hoffman's observations indicate that the agreed that Anns was overrules in
Murphy only in relation to the extension of the neighbourhood rule as laid down
in donoghue vs. Stevenson to economic losses and that the said judgment in Anns
was not overruled so far as compensation for physical injury (p 410). But on
facts in Stovin vs. Wise, though it was a case of personal injury, the claim
against the local authority for non-exercise of the power to direct the land
owner to remove the earthen mound was rejected by the House of Lords on the
ground that the above two preconditions were not fulfilled. Again, Lord Hoffman
stated that the distinction made by Lord Wilberforce in Anns between non-feasance
due to `policy' and `operations' was not a sound one.(2) Having referred to the
two preconditions. We shall
------------------------------------------------------------ (2) A view to the
contrary was expressed in De Smith. Woolf and Jowell in Judicial Review of
Administrative Law in 1995 that Anns still holds the field in regard to
`operations' the House of Lords in 1996.
------------------------------------------------------------
now refer to the more important part of the decision of the majority. This
concerns the manner in which one can show that the two preconditions are to be
satisfied in a given case of non-exercise of statutory powers.
So far
as the first conditions relating to irrationality is concerned, reference was
made by the House of Lords in the above case to the principle of
"particular reliance" laid down by Prennan J. of the Australian High
Court in Sutherland Shire Council vs. Heyman (1985) 157 CLR 424 (at 483) and
also to the other alternative principle of "general reliance" laid
down by Mason.J in the same case (p415). Lord Hoffman said that if the
particular reliance' of the plaintiff n respect of an expectation of exercise
of statutory power by the authority was belied, then a conclusion can be drawn
that the non-exercise was irrational. This form of liability based upon
representation and reliance would not depend upon the public nature of the
authority's power and would cause no probllem.
Alternatively,
if the plaintiff had no idea of particularly relying upon the exercise of power
by the authority in his favour but if a matter of general reliance society could
by previous experience expect the exercise of such a power and if such an expectstion
stood belied, then also a conclusion could be drawn that the non-exercise of
power by the authority was irrational. This doctrine of general reliance
according to the House of Lords had little in common with the ordinary doctrine
of reliance. Here so far as general reliance was concerned, the particular
plaintiff need not have expected that the power would be used or need not have
even known that such a power existed. This principle is based upon the general
expectation of the community - which the individual plaintiff may or may not
have shared. A widespread assumption would certainly affect the general pattern
of economic and social behaviour of the community.
It was
further stated by the majority that this doctrine required an injury into the
role of a given statutory power and its effect on the behaviour of the general
public. On this principle of general reliance'; their Lordships stated that an
outstanding example of its meaning was contained in the judgment of Richardson. J of Newzealand Appeal Court in
Invercargill vs. Hamelin 1994 (3) NZLR 513 (526) which was affirmed by the
Privy Council in INvercargill vs. Hamelin 1996 (2) WLR 367 (PC). As per this
principle of general reliance propounded by Mason.J, it appeared that the
benefit of service provided under statutory powers should be of a uniform and routins
nature, so that one could describe exactly what the public authority was
supposed to do. For example, a power of inspection for defects would clearly
fall into this category. Again if a particular service was being provided as a
matter of routine, it would be irrational for a public authority to provide it
in one case and withhold it in another. Obviously this was the main ground upon
which in Anns it was considered that the power of the local authority to
inspect foundations gave rise to a duty of cars.
We are
of the view that the principle and down by Mason, J. is clearly applicable
here. This general expectation of the community so far as the railways are
concerned can be summarised from the following passage in Helsbury's Laws of
England (Vol. 34, Negligence, 0th Ed. 1984, para 73). It is stated that "a
plaintiff is entitled to rely on reasonable care and proper precautions being
taken and, in places to which the pxblic has access, he is entitled to assume
the existence of such protection as the public has, through custom, become
justified in expecting" Halsbury then refers to a large number of cases of
railway accidents. In view of this general expectation of the community that
appropriate safeguards will be taken by the railways at level crossings, the
first precondition is, in our view, clearly satisfied.
As to
the second condition, namely, whether the statute can be takne to have intended
to provide compensation for the injury arising out of non-exercise of statutory
powers, Lord Hoffman again referred to Mason. J's Judgment where he said that
such a policy to pau compensation could be inferred if the power was intended
to protect members of the public, from risks against which they could not guard
themselves i.e. having regard to the expense involved or the highly technical
nature of safeguards needed to be taken or because the safeguards have to be
taken in the premises of the public authority. In the Invercargill case the Newzealand
Court of Appeal found it in the general pattern of socio-economic behaviour. A
careful analysis of community behavious was therefore warranted. It is
therefore necessary to know exactly what in the judgment of the Australian High
Court, Mason J stated. He observed as follows: (at p460 of 157 CLR) "But
an authority may by its conduct place itself in such a position that it
attracts a duty of care which calls for exercise of the power. A common
illustration is provided by the cases in which an authority in the exercise of
its functions has created a danger, thereby subjection itself to a duty of care
for the safety of others which must be discharged by an exercise of its
statutory powers or by giving a warning. That it is the conduct of the
authority in creating the danger that attracts the duty of care is demonstrated
by 1921 (2) K.B. 132 -----------------------------------
------------------------- There are situations in which the authority's
occupation of premises or its ownership or control of a structure in a highway
or public place attracts to it a duty of care.
And
then there are situations in which a public authority not otherwise under a
relevant duty may place itself in such a position that others rely on it to
take care for their safety so that the authority comes under a duty of care
calling for positive action ....... Marcer vs. South Eastern & Chetham
Railway (1922 (2) KB, 549)".
Thereafter
Justice Mason touched the crucial aspect in this branch of law which was quoted
by the House of Lords) duties of public authorities recognised by the
legislature to cover situations in which it is necessary to presume the
inability of the public to protect themselves against certain serious and
complex risks. That passage reads as follows:- (6464) "Reliance or dependance
in this case is in general the product of the grant (and exercise) of powers
designed to prevent or minimise a risk of personal injury of disability
recognized by the legislature as being of such magnitude or complexity that
individuals cannot, or may not, take adequate steps for their own protection.
This situation generates on one side (the individual) a general expectation
that the power will be exercised and on the other side (the authority) a realisation
that there is a general reliance or dependance on its exercise of power to act
..... The control of air traffic, the safety inspection of air craft and the
fighting of a fire in a building by a fire authority may well be examples of
this type of function." The reference here to air traffic and fire
fighting department, in our view,mis illustrative but important and in our
opinion the principle laid down by Mason, J. clearly extends to other
operations which are inherently dangerous or complex against which members of
the public cannot protect themselves. In Canada, it has been held in Swanson
that the special protection in favour of the Government "must be limited
only to those functions of Government that are considered to be `governing' and
that the decision of the regional director of a licencing body to allow an
airline to continue unsafe flying practices was not part of a governmental
function and the transport regulator was 64 D.L.R (4th) 689 it was held that
reduction in budgetary allotment for road inspection to prevent accidents could
be a protected policy decision only if it constituted a reasonable exercise of
funds. The running of trains by the railways, as pointed out by the Privy
Council in 162 (PC) has been recognised as inherently preilous and, in our
view, certainly creates, in the minds of the public a general expectation that
safety measures _ whcih the public canot otherwise afford, have been taken by
the railway administration. In our opinion, the steps mentioned by the
legislature in the various clauses of Section 13 of the Railways Act, 1890 are
in the words of Mason, J. steps which, even according to the legislature,
individual members of society can not afford to take and are not capable of
taking, having regard to the expense or expertise involved or for the reason
that these steps have to be taken in or in respect of the property of the
railways. Applying the principle laid down by Lord Hoffman, in Stovin vs. Wise,
there is, in our opinion a clear indication in section 13(c) and (d) of the
Railways Act itself that the affected parties are intended to be compensated
because of the non-exercise of the aforesaid statutory powers by the railways.
Thus the second condition as to a statutory intent of providing compensation is
also satisfied.
Once
the two preconditions laid in Stovin vs. Wisa are satisfied both as to
non-exercise of statutory powers which was irrational and as to the statutory
intent of payment of compensation for injury or death due to running inherently
dangerous services in respect of which individuals cannot afford to protect
themselves the conclusion is irresistible that the non-exercise of public law
or statutory powers under Section 13(c) and (d) did create a private law cause
of action for damages for breach of a statutory duty. The case falls within the
exception where a statutory `may' gives rise to a `common law' ought.
be eadily
invoked in every case of non-exercise of statutory powers unless the two
pre-conditions laid down in the judgment of the majority in Stovin vs. Wise are
satisfied.(3) We should not also be understood as saying that all unmanned
level crossings should have gates with watchman. It all depends on the volume
of traffic at the point and the applicability of the principles stated above in
Points 3 & 4.
Point
5: Under Section 110(1) of the Motor Vehicles Act, 1939 (corresponding to
Section 165 of the 1988 Act) Claims Tribunals have been constitured for
adjudicating ------------------------------------------------------------ Newzealand,
Canada & Australia - See Jackon & Powell on Professional Negligence
(4th Edn., 1997 pp. 26 to 41), Aronson and Whitemore, Public Torts and
Contracts Australia, 1982); Craig (1978) 94 L.W.R 428; Bowman & Bailey:
1984 P.L. 27.
------------------------------------------------------------
upon claims for compensation in respect of accidents involving the death or
bodily injury of persons, "arising byt of the sue of motorvehicles or
damage to any property of a third party "so arising" or both. Section
110 (1) in out view deals with the jurisdiction of the Tribunal. On the other
hand, Section 110-B (corresponding to Section 168(1) of the new Act of 1988) is
procedural and is in two parts.
The
first part states that after following certain procedure, the Claims Tribunal
shall "make an award determining the amount of compensation which appears
to it to be just and specifying the person or persons to whom compensation
shall be paid". Obviously, the word `compensation' here in the first part
of Section 110(B) is referable to the compensation to be decided by the
Tribunal under Section 110 (1). But it is the second part of Section 100 B on
which the appellant (Union of India) has relied and that part reads as follows:-
"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 be".
It is
stressed for the appellant that because of the specific reference here to the
insurer, owner and driver, an award cannot be passed by the Tribunal against
anybody else.
In our
view, the second part` of Section 110-P extracted above is purely procedural
when it refers to the specification of the amounts payable by the insurer or
owner driver and has no bearing on the scope of the jurisdiction red by Section
110(1) upon the Tribunals. That question has to be decided by interpreting the
plain words, "arising out of the use of the vehicle" occurring in
Section 110 (1) and is not in any manner controlled by Section 110 (B). The
scope of the jurisdiction is clear. In New India Insurance Co. Ltd. vs. Shanti Mishra
1975 (2) SCC 840, this court stated that the provisions in Chapter VIII of the
1939 Act contained a law "relating to change of forum". It was
specifically held that the "jurisdiction of the Civil Court is ousted as
soon as the Claims Tribunal is constituted and the filing of the application
before the Tribunal is the only remedy available for the claimant". It was
again held in Gujarat State RTC vs. Ramanbhai Prabhatbhai 1987 (3) SCC 234 that
Chapter VIII provided for an "alternative forum" to the one provided
under the Fatal Accidents Act for realisation of compensation payable on
account of motor vehicle accidents.
In our
view, the Tribunal is clearly an alternative forum in substitution for the
Civil Court for adjudicating upon claims for compensation arising out of the
"use of motor vehicles". This is further made clear from Section
110-F of the Act which states that no Civil Court shall entertain any question
"relating to any claims for compensation which may be adjudicated upon by
the Claims Tribunal". In our view, when we are concerned only with Section
110 (1) and when Section 110 B does not and cannot control Section 110 (1), a
claim is entertainable by the Tribunal, if it arises out of the use of the use
of a motor vehicle and if it is claimed against persons or agencies other than
the driver, owner or insurer of the vehicle provided in tort, such other
persons or agencies are also claimed to be liable as point tort-feasors. It is
obvious that prior to the constitution of the Tribunal, such compensation could
be decreed by the Civil Court not only against the owner\driver and insurer of
the motor vehicle but also against others who are found to be joint tort feasors.
The words "use of the motor vehicle" are also be construed in a wide
manner. The above words were interpreted by this Court in Shivaji Davanu Patil
vs. Vatschala Uttam More: 1991 (3) SCC 530, in the context of Section 92A. This
Court in that connection referred to the Australian case in Government
Insurance Office of N.S.W vs. R.J. Green & Lloyds Pvt. Ltd. (1965) 114
C.L.R 437 and to the observations of Barwick CJ that those words have to be
widely construed. We may also refer to the observations of Windeyer J. in same
case to the following effect:- "........ no sound reason was given for
restricting the phrase, "the use of a motor vehicle" in this way. The
only limitation upon its ........... that I can see is that the injury must be
one in sany way a consequence of a use of the vehicle as a motor vehicle".
Further,
Section 110-E of the Act provides of recovery of the compensation "from
any person" as arrears of land revenue and recovery under that Section is not
restricted to the owner/driver or insurer specified in the second part of
Section 110-B. Obviously the words from any person are referable to persons
other than the driver/owner or insurer of the motor vehicle.
For
all the above reasons, we hold that the claim for compensation is maintainable
before the Tribunal against other persons or agencies which are held to be
guilty of composites, negligence or are joint tort feasors, and if arising out
of use of the motor vehicle. We hold that an award could be passed against the
Railways if its negligence in relation to the same accident was also proved. We
find that there has been a conflict of judicial opinion among the High Courts
on the above aspect. The Andhra Pradesh High Court in Oriental Fire & General
Insurance Co. Ltd vs. Union of India 1975 ACC 33 (AP) AIR 1975 AP 222 took the
view that the claims before the Tribunal are restricted to those against the
driver, owner and insurer of the motor vehicles and not against the railways.
But on facts the decision is correct inasmuch as through it was an accident
between a lorry and a train at a railway crossing, it was a case where the
driver, cleaner etc, travelling in the lorry were injured and there was no
claim against the lorry owner. The suit was filed in 1967 in the Civil Court and was decreed against the
railway. A plea raised in the High Court that the Civil Court had no jurisdiction and only the
Tribunal had jurisdiction was negatived. In our view, on facts the decision is
correct because the plea was one of the exclusive negligence of the railway. In
Union of India vs. Bhimeswara Reddy [1988 ACT 660 (AP)], though the driver and owner
were parties, the ultimate finding was that the driver of the motor vehicle was
not negligent and the sale negligence was that of the railway. The case then at
that stage comes out of Section 110 (1). Here also the concluded on facts, in
our view, is correct. But certain general broad observations made in these two
cases that in no circumstances a claim can be tried by the Tribunal against the
persons/agencies not referred to in the second part of Section 110 B, are not
correct. Similarly the Gauhati High Court in Swarnalata Dutta vs. National
Transport India (Pvt.) Ltd.s [AIR 1974 Gav.31], by the Orissa High Court in Orissa
RTC Ltd. vs. Umakanta Singh (AIR 1987 Orissa 110) and the Madras High Court in
Union of India vs. Kailasan 1974 AC] 488 (Mad.) have held that no award can be
passed against others except the owner\driver or insurer of the motor vehicle.
On the other hand the Allahabad High Court in Union of India vs. Bhagwati
Prasad AIR 1982 (All) 310, the majority in the Full Bench of the Punjab & Haryana
High Court in Rajpal Singh vs. Union of India 1986 ACT 344 (P&H), the
Gujarat High Court in Gujarat SRTC vs. Union of India (AIR 1988 Guj.13), the Kerala
High Court in the Judgment under appeal and in United India Insurance Co. vs.
Premakumarar
[1988 ACT 597 (Ker)] and the Rajasthan High Court in Union of India vs. Dr. Sewak
Ram 1993 ACT 366
(Raj.)
have taken the view that a claim lies before the Tribunal even against another
joint tort-feasor connected with the same accident or against whom composite
negligence is alleged.
We are
of the opinion that the view taken by the Andhra Pradesh, by way of obiter and
the views of the Gauhati.
Orissa
and Madras High Court is not correct and that the view taken by the Allahabad. Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view.
Further,
as pointed by the Gujarat High Court, claims where it is alleged that the
driver\owner of the motor vehicle is solely responsible for the accident,
claims on the basis of the composite negligence of the driver of the motor
vehicle as well as driver or owner of any other vehicle or of any other outside
agency would be maintainable before the Tribunal but in the latter type of
case, if it is ultimately found that there is no negligence on the part of the
driver of the vehicle or there is no defect in the vehicle but the accident is
only due to the sole negligence of the other parties/agencies, then on that
finding, the claim would them become one of exclusive negligence of railways.
Again if the accident had arisen only on account of the negligence of persons
other than the driver/owner of the motor vehicle, the claim would not be
maintainable before the Tribunal.
We may
however add that if, as of today, any claims against persons other than the
driver\owner\insurer are pending in Civil Courts, but which as per the law
hereinabove stated ought to have been lodger before the Tribunal, then the
Civil Courts concerned shall return the plaints and the claimants could present
the same as a petition before the Tribunals. In that event, they shall be dealt
with as if they are claim petitions presented before the Tribunals on the date on
which the plaints were filed in the Civil Courts and shall be disposed of under
the provisions of the Motor Vehicles Act and in accordance with law.
For
all the aforesaid reasons, these appeals are dismissed but without costs.
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