Y.R. Shanbhag vs Mohammed Gouse and Others

B.N. Krishnan, J.—The appellant was first respondent in M.V.C. No. 30 of 1976 before the Motor Accidents Claims Tribunal, Uttar

Kannada, Karwar and being aggrieved by the award passed in the said case to pay compensation of Rs. 21,552/- to the claimant therein, has filed

this appeal.

The claim petition itself has been presented in somewhat unusual circumstances. The very case put forward by the claimant is that he was driving

the vehicle bearing registration No. MEW 5144 belonging to the appellant herein on 10.1.1976 (incorrectly mentioned in the course of the petition

and judgment as 11.1.1976) and that it met with an accident in between milestone No. 36/4 and 36/5 at Subguli and Sunkasal, Ankola Taluk and

that the petitioner-claimant was driving the truck at that time in the employment of the owner. Nowhere in the course of the petition, claimant has

stated that the vehicle was being driven by anyone else and much less that it was being driven rashly or negligently. Even in the course of his

examination before the Tribunal he has put forward the case that he was driving the vehicle at the time of the accident. After the parties went to

trial, the Tribunal has recorded its finding that the petitioner-claimant was driving the vehicle at the time of the accident. No attempt could be made

by anyone before us also, to dislodge this finding of the Tribunal.

In view of these undisputed facts, it appears to us that it is quite unnecessary to refer to any other facts mentioned in the petition and in the

objection statement and also dealt extensively by the Tribunal.

It appears to us that none of the parties including the Tribunal was aware of the real position in law for instituting a case u/s 110-A of the Motor

Vehicles Act (for short ''the Act''). It may be remembered that Section 110-A of the Act does not create an independent right for any person to

claim compensation before the Tribunal. It creates only a special forum and a cheaper and expeditious remedy for a victim of motor vehicle

accident to pursue a remedy available to him under common law and the law of Torts. Therefore, the claimant in a case of this kind has to allege

and establish actionable negligence on the part of the driver of the vehicle and only in that event he could hold the owner of the vehicle vicariously

responsible for the actionable negligence on the part of his driver. This position in law is too well settled to require any citation of any authority. But

anyway, as even the Tribunal has proceeded in utter ignorance of this aspect of the law, we may make useful reference to a few decisions in this

regard.

In the decision of the Supreme Court in Minu B. Mehta v. Balkrishna Ramachandra Nayan, 1977 ACJ 118 it has been observed as follows (at

p. 127):

The Claims Tribunal is a tribunal constituted by the State Government for expeditious disposal of the motor accident claims. The general law

applicable is only common law and the law of Torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled

to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. The plea that the Claims

Tribunal is entitled to award compensation which appears to be just when it is satisfied on proof of injury to a third party arising out of the use of a

vehicle on a public place without proof of negligence if accepted would lead to strange results.

This court has also consistently been taking the view that establishment of actionable negligence on the part of the driver of the vehicle is the very

foundation for maintaining an action u/s 110-A of the Act. In Seethamma v. Benedict D''sa 1966 ACJ 178 (Mysore), it has been pointed out that

actionable negligence on the part of the driver of the motor vehicle must be established and the proposition that the burden of proof to establish the

same is entirely upon the claimants is unexceptionable. Even in the latest decision of this court in M/s. United India Insurance Company, Bangalore

Vs. Imman Aminasab Nadaf and others, a Full Bench of this court while dealing with liability of insurance company u/s 92-A of the Act has

pointed out under the scheme of the several provisions of the Act, that compensation could be claimed on the ground that the accident was result

of rash and negligent driving of the vehicle by its driver. Therefore, the basis for a claim to be made u/s 110-A is the rash or negligent driving of the

driver. Without it nobody can maintain a claim under the said section except under no fault liability. When the very action of the driver himself is the

basis for a claim under this section, it is needless for us to point out that the driver himself cannot sustain an action u/s 110-A of the Act against his

owner and insurer arising out of his own action.

It may be also noticed that it is not the case of driver-claimant that there was any latent defect in the vehicle and that it was within the knowledge

of the owner and despite the same, he entrusted the vehicle to him (claimant) or that amounted to negligence on the part of the owner and that

accident was occasioned on account of such latent defect or that therefore owner was liable to answer the claim.

Therefore, it is clear that the claim made before the Tribunal is wholly ex facie misconceived and it is surprising that the Tribunal has thought fit to

award compensation in a case of this kind solely basing on the provisions of the Workmen''s Compensation Act. It may be that the claimant could

successfully maintain the action against his owner and insurer before the Commissioner under the Workmen''s Compensation Act and if so advised

the claimant could file a petition under the said Act also filing an application for condonation of delay in presenting the petition on the ground that he

has been prosecuting his remedy under the bona fide belief in a wrong forum. Under these circumstances it is clear that the award made by the

Tribunal cannot be sustained.

In the result, the award passed by the Tribunal is set aside and the appeal is allowed. In the circumstances of the case, we direct the parties to

bear their own costs throughout.