# UNION OF INDIA v. UNITED INDIA INSURANCE CO. LTD. AND ORS

- **Citation:** [1997] Supp. 4 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1997-10-22
- **Case number:** Civil Appeal No. 3033 of 1990
- **Bench:** S.B. Majmudar, M. Jagannadha Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-united-india-insurance-co-ltd-and-ors-15873
- **Pages:** 35

## Headnote

Motor Vehicles Act, 1939 : Ss. 110(1) & 110 B (1988 Act ss. 165 &
168 (1) r!w Rule JOO (j) of Rules made under 1939 Act, and ss. 13(c) &
A
B
J 3(d), Railways Act, 1890; Train-bus accident at unmanned level crossing- C
Majority of bus passengers and driver killed, others injuried-Bus driver not
familiar with territory-Train visible to him and passengers from a distanceNo caution board or indication to show that road was cutting across railway
line-No handrails, stiles, gates erected to alert passerby ; Claim against bus
owner, insurance company and railways : Held : Bus driver was negligent
• at common law in not stopping the vehicle to see, hear and find out if any D
train was coming-That his negligence does not vicariously attach to
passengers of that motor vehicle-That under the law of torts obligation of
railways run concurrently under statute and under common law-That
statutory duties under s. 13, Railways Act did not arise-That railways was
negligent ·at common law on the neighbourhood principle in not taking
cognizance of increased rail road traffic at that level crossing and not E
converting it into a manned one with gates-That railways was under a duty
of care-That its omission to provide appropriate safeguards at the level
crossing was irrational on the doctrine of general expectation of the
community-That there is a clear indication in ss. 13(c) and 13(d) of Railways
Act that affected parties are intended to be compensated-Thus creating a F
private law cause of action against railways for damages-And that Claims
Tribunal was competent to award damages against railways.
Motor Vehicles Act, 1939 : Ss. 110(1) & I JOB (1988 Act ss. 165 &
168(1)) rlw ss. J JOF & I JOE : Train-bus accident at unmanned level
crossing-Claim for damages : Held: Motor Accidents Claims Tribunal is an G
alternative forum in substitution of civil court-That it has jurisdiction to
entertain claims against another joint tort feasor connected with same
accident-And that it can pass award against railways for negligence in
relation to same accident. Further, where bus driver is not negligent or
vehicle had no defect the case goes out of s. I 10(1) and becomes one of H
•
643
644
SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.
A exclusive negligence of railways, and not maintainable before Tribunal.
Railways Act, 1890: Ss. 13(c) & 13(d) : Statutory interpretation of:
Held : There is clear indication in them,that affected parties ore intended to
be compensated
B
Section 13 of the Railways Act, 1890 empowers the Central Government
to require the railway administration, for the purpose of preventing danger
to passengers on the road, to erect, within a specified time (a) boundary marks
or fences, (b) screens, (c) suitable gates, chains, bars, stiles or handrails at
places where a railway line crosses a public road on the level, and (d) that
persons be employed to open and shut such gates, chains or bars. Section
C 110 (1) of the Motor Vehicles Act, 1939 provides for constituting the Claims
Tribunals for adjudicating upon claims for compensation in respect of
accidents, involving the death or bodily injury of persons, arising out of the
use of motor-vehicles or damage of any property of a third party so arising or
both. Section HOB of that Act empowers the Tribunal to determine the amount
D of compensation and specifying the person or persons to whom compensation
shall be paid, and also to 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. Clause (f) of Rule 100 of the Rules made by the
Central Government under the Motor Vechicles Act, 1939 required the
conductor of a stage carriage while crossing an unmanned railway level
E crossing with his vehicles to make the driver stop the vehicle on the road at
the place notified for such stoppage by appropriate sign board, to get down
from the vehicle and after making sure that no train is approaching the level
c

## Text

_Characters 0–39,820 of 89,484. This is a partial read: ask again with offset=39820 for what follows._

UNION OF INDIA
v.
UNITED INDIA INSURANCE CO. LTD. AND ORS.
OCTOBER 22, 1997
[S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.]
Motor Vehicles Act, 1939 : Ss. 110(1) & 110 B (1988 Act ss. 165 &
168 (1) r!w Rule JOO (j) of Rules made under 1939 Act, and ss. 13(c) &
A
B
J 3(d), Railways Act, 1890; Train-bus accident at unmanned level crossing- C
Majority of bus passengers and driver killed, others injuried-Bus driver not
familiar with territory-Train visible to him and passengers from a distanceNo caution board or indication to show that road was cutting across railway
line-No handrails, stiles, gates erected to alert passerby ; Claim against bus
owner, insurance company and railways : Held : Bus driver was negligent
• at common law in not stopping the vehicle to see, hear and find out if any D
train was coming-That his negligence does not vicariously attach to
passengers of that motor vehicle-That under the law of torts obligation of
railways run concurrently under statute and under common law-That
statutory duties under s. 13, Railways Act did not arise-That railways was
negligent ·at common law on the neighbourhood principle in not taking
cognizance of increased rail road traffic at that level crossing and not E
converting it into a manned one with gates-That railways was under a duty
of care-That its omission to provide appropriate safeguards at the level
crossing was irrational on the doctrine of general expectation of the
community-That there is a clear indication in ss. 13(c) and 13(d) of Railways
Act that affected parties are intended to be compensated-Thus creating a F
private law cause of action against railways for damages-And that Claims
Tribunal was competent to award damages against railways.
Motor Vehicles Act, 1939 : Ss. 110(1) & I JOB (1988 Act ss. 165 &
168(1)) rlw ss. J JOF & I JOE : Train-bus accident at unmanned level
crossing-Claim for damages : Held: Motor Accidents Claims Tribunal is an G
alternative forum in substitution of civil court-That it has jurisdiction to
entertain claims against another joint tort feasor connected with same
accident-And that it can pass award against railways for negligence in
relation to same accident. Further, where bus driver is not negligent or
vehicle had no defect the case goes out of s. I 10(1) and becomes one of H
•
643
644
SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.
A exclusive negligence of railways, and not maintainable before Tribunal.
Railways Act, 1890: Ss. 13(c) & 13(d) : Statutory interpretation of:
Held : There is clear indication in them,that affected parties ore intended to
be compensated
B
Section 13 of the Railways Act, 1890 empowers the Central Government
to require the railway administration, for the purpose of preventing danger
to passengers on the road, to erect, within a specified time (a) boundary marks
or fences, (b) screens, (c) suitable gates, chains, bars, stiles or handrails at
places where a railway line crosses a public road on the level, and (d) that
persons be employed to open and shut such gates, chains or bars. Section
C 110 (1) of the Motor Vehicles Act, 1939 provides for constituting the Claims
Tribunals for adjudicating upon claims for compensation in respect of
accidents, involving the death or bodily injury of persons, arising out of the
use of motor-vehicles or damage of any property of a third party so arising or
both. Section HOB of that Act empowers the Tribunal to determine the amount
D of compensation and specifying the person or persons to whom compensation
shall be paid, and also to 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. Clause (f) of Rule 100 of the Rules made by the
Central Government under the Motor Vechicles Act, 1939 required the
conductor of a stage carriage while crossing an unmanned railway level
E crossing with his vehicles to make the driver stop the vehicle on the road at
the place notified for such stoppage by appropriate sign board, to get down
from the vehicle 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.
F
A train-bus accident at an unmanned level crossing resulted in majority
of the bus passengers, including driver, being killed and others sustaining
injuries. The hired bus was on a tour of Kerala and the train was a superfast
one running at high speed. The train was visible to the driver and the
passengers at a distance of about 1 km. The road had no curve. The caution
G board at the entrance of the level crossing was moth eaten and the writing on
it difficult to decipher. There was no indication that the road was cutting
across railway line. The level crossing had no gates, stiles or handrails to
alert the passerby. The bus driver proceeded to cross the railway line, when
the vehicle somehow stopped and did not move, and the collision occurred.
H
In a batch of cases filed by dependents of deceased and injured persons,
U.0.l. v. UNITED INDIA INSURANCE CO. LTD.
645
the Motor Accidents Claims Tribunal held that the driver of the bus was . A
negligent, and passed awards against the owner of the bus and the insurance
company but dismissed the claim against the railways on the ground that there
was no negligence on the part of the driver of the railway engine concerned
or on the part of the railway administration. The High Court partly allowed
the appeals and cross objections, making the railways also liable. In two other B
cases, decided earlier, the said Tribunal had held the railway administration
also liable on account of its negligence in regard to the same accident. In
both the judgments the Tribunal had further held that under sections 110(1)
and llO(b) of the Motor Vehicles Act, 1939, an award could be passed against
the railways also, which view was upheld by the High Court.
It was contended for the Union of India that as a matter of common law
duty, at the level crossing, the driver of a motor vrhicle was obliged to stop,
see, listen and get down and proceed. Rule 100 of the Rules made under the
Motor Vehicles Act, 1939 was referred to. It was also contended that there
was no pleading in regard to the negligence of the railways, and that because
c
of the specific reference in section 110-B of the Motor Vehicles Act, 1939 to D
the insurer, owner and driver, an award cannot be passed by the Claims
Tribunal against anybody else.
For the respondents it was contended that under the common law the
railways, as an occupier of the level crossing for the purpose of running
railway trains which is inherently dangerous to those who us.: the public road E
at that point, has special responsibilities as a responsible body to see that
accidents are kept to the minimum.
Dismissing the appeals, the Court
HELD: I. Clause (f) of Rule 100 of the Motor Vehicles Rules postulates F
the existence of a sign board requiring the vehicle to stop and the conductor
to get down. Since in the instant case, admittedly, the writing on the signboard
at the level crossing was moth eaten, and no writing was visible, it cannot be
said that the special obligations created by the said rule, which were in addition
tojhe common law requirements, were applicable. There was no notice board G
as contemplated by the rule. There was, therefore, 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. If that was not done, there would
clearly be negligence on the part of the driver. Inasmuch as in the instant
case, the driver did not stop the vehicle at the level crossing, even though
there was no curve or obstruction at the point, the Tribunal and the High Court H
646
SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.
A were justified in finding negligence on the part of the driver. The High Court
was also right in its view 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, and that the case might be one where the drive
took a risk which ought not to have been taken, and the engine of the bus for
B some unknown reasons, might have failed while it was on the track. This
finding of negligence of the bus driver does not call for interference.
[656-B-E; 657-A-B; G]
Baltimore & O.R. Co. v. Goodman, (1927) 275 US 66 (72 L. ed. 167, 48
S. Ct. 24) and Pokora v. Wabash Rly. Co., (1934) 292 US 98 (78 Led. 1149,
C 54 S. Ct. 580) referred to.
S.N. Hussain v. Stale of A.P., AIR (1972) SC 685, referred to.
2. It cannot, however, be said that the driver's negligence in any manner
vicariously attaches to the passengers of the motor vehicle of which he was
D the driver. The principle in the law of torts called the 'doctrine of
identification' or 'imputation', is to the effect that the defendant can plead
contributory negligence of the plaintiff or of an employee of the plaintiff where
the employee is acting in the course of employment. This 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 or
E 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
F passenger is not treated as a back-seat driver. Therefore, even ifthe 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. Thus, 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. [657-H; 658-A-B; E-G]
G
Mills v. Armstrong, (1988) 13 A.C. 1 HL; Halsbury's Laws of England
4th Ed., (1984) Vol. 34, p. 74 referred to.
Ratanlal & Dhirajlal, Law o/Torls, 23rd Ed. (1997) p. 511; Ramaswamy
Iyer, Law of Torts, 7th Ed. p. 447 and Prosser & Keeton on Torts, 5th Ed. 1984
H pp. 521-522, referred to.
U.0.1. v. UNITED INDIA INSURANCE CO. LTD.
647
3.1. It cannot be said that there was no pleading in regard to the A
negligence of 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.
In the instant case the trial court had framed an issue on the negligence of B
all or any of the respondents, and the parties had led evidence on that issue.
[658-H; 659-B-C]
3.2. Under section 13 of the Railways Act, 1890 no duties are imposed
directly on the railway administration by the statute in regard to erection of
gates and employment of watchmen etc. at the level crossings if the railways C
was cutting across a public road. The section only confers a power on the
Central Government to issue a requisition to the railway administration to
take steps as per section 13. Obviously, if the Central Government 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. The statutory duties of the railway D
administration under section 13, therefore, do not arise unless a requisition
is made by the Central Government. (659-E-G; 660-D)
B.N. Rly Co. v. Tara Prasad, AIR (1928) Cal. 504) and Henry Condon v.
Balhaprasad Bhagwan, (1895) Un P. J. Bombay High Court 91, referred to.
3.3. The law is, however, well settled that the claimants can at their choice
sue the railways to enforce either or both types of duties, i.e., under common
law as well as under statute. The claimants can, therefore, sue the railways
concurrently for breach of the common law or statutory duties or for breach
of either of the duties. [660-G; 661-A)
Commissiner for Railways v. McDermott, (1966) 2 All ER 162 PC,
re (erred to.
3.4. The.railways' duty of care at common law is based on the principle
E
F
of neighbourhood due to the inherently dangerous or perilous nature of the
operations of the railways. They are, thus, at common law, to take reasonable G
and necessary care 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. In that view of the matter, the railways are bound to take steps
from time to time by considering the increase in the rail and road traffic at
the level crossings to prevent accidents, like putting up gates. Increased traffic
require a reappraisal of the measures previously taken. Greater the H
648
SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.
A thoroughfare over any part of the line, the greater care and vigilance that
ought to be exercised by the railways. If there is increase in the number of
local inhabitants using the level crossing, then reasonable additional
precautions should be taken. Even if the road users know that there is a
crossing, they should be alerted at the proper moment by the boards since it
B is not a case of remote knowledge but one of immediate alertness.
(661-B-C; 662-B-E; 663-D]
Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1 and
Union of India v. La Iman Slo, Badri Prasad, AIR (1934) V.F. 17, referred to.
Commisioner for Railways v. McDermott, (1966) 2 All ER 162 PC;
C Donoghue v. Stevenson, (1932) AC 562; London Passenger Transport Board
v. Upson, (1949) AC 155 HL; Smith v. London Midland & Scottish Railway
Co. (1948) SC 125; Lloyds Bank Ltd. v. Railway Executive, (1952) 1 All ER
1248 CA) and Cliff v. Midland Railway Co., (1870) LR 5 QB 258, referred
to.
D
Halsbury's Laws of England, Vol. 39 4th Edn. para 868, referred to.
3.5. The High Court noticed that 300 vehicles pass through the said
level crossing and six express trains cut across that public road every day,
and that there must be other non-express or passenger trains and goods trains,
apd that the population is dense in that part of Kerala. It further found that
E the bus driver was from Tamil Nadu, he was not familiar with that place in
Kerala where the accident occurred, there was no caution board or indication
to show that the road was cutting across a railway line, and there were no
gates or handrails to alert the passerby. It took the view that if the railways
had taken adequate precautionary measures, such as e~ecting handrails or
gates, a severe accident like that would not have taken place. In the absence
F of gates and caution board, the said level crossing was of the nature of a trap.
In that view of the matter, the High Court rightly held that applying the
common law principles, the railway must also be deemetl to be negligent in
not converting the unmanned level crossing into a manned one with-gates
having regard to the volume of rail and road traffic at the said level crossing.
G
(664-D-G]
4.1. Private law rights under common law can arise in two distinct type
of cases : One where there is omission on the part of the public authority to
perform an alleged statutory, mandatory or discretionary duty, and another
where there is omission to exercise such statutory powers or rather not
H deciding whether to exercise such statutory power or not. Section 13 of the
U 0.1. v. UNITED INDIA INSURANCE CO. LTD.
649
Ra.ilways Act 1890 enables the Central Government to send a requisition to A
the railway administration to take certain steps in regard to level crossings.
In the case of the said level crossing it was never done. The case thus belongs
to the second category. (666-B-C]
4.2. 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 B
by the statutory powers and duties. The same is 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 law duty to care. But it is not as if a statutory 'may' can never
give rise to a common law duty of care. There are exceptions in which a C
statutory 'may' could create a common law 'ought'. These exceptions require
two conditions to be proved to postulate a duty to perform a common law
obligation within the statutory framework of a discretionary power: firstly,
that it should have been irrational not to have exercised the power, and secondly
that the policy of the statute requires compensation to be paid to persons who
would suffer damage because the power conferred was not exercised at all or D
not exercised when it was generally expected to be exercised.
(666-G-H; 668-B-F)
4.3. If the particular reliance of the plaintiff in respect of an expectation
of exercise of statutory power by the authority was belied, then a conclusion E
can be drawn that the non-exercise was irrational Alternatively, if the plaintiff
had no idea of particularly relying upon the exercise of power by the authority
in his favour but if as a matter of general reliance a society could by previous
experience expect the exercise of such a power and if such an expectatidn
stood belied, then also a conclusion could be drawn that the non-exercise of
power by the authority was irrational. This doctrine of general expectation is F
based upon the general expectation of the community. It is clearly applicable
in the instant case. In view of this general expectation of the community that
appropriate safeguards will be taken by the railways at level crossing, the
first precondition is clearly satisfied. (669-D-F; 670-E)
4.4. A policy to pay compensation could be inferred from the statute if G
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.
This principle extends to operations which are inherently dangerous or H
650
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A complex against which members of the public cannot protect themselves. The
running of trains by the railways has been recognised as inherently perilous
and certainly creates in the minds of the public a general expectation that
safety measures, which the public cannot otherwise afford, have been taken
by the railway administration. The steps mentioned by the legislature in the
B various clauses of section 13 of the Railways Act, 1890 are steps which, even
according to the legislature, individual members of society cannot 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, there is a clear indication
in section 13(c) and (d) of the Railways Act itself that the affected parties are
C 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.(670-F-G; 671-E; 672-C-F]
4.5. The case thus falls within the exception where a statutory 'may'
gives rise to a common law 'ought'. That being so, it can be said that the nonD 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.
(672-H]
Rajkot Municipal Corporation v. Manjulaben Jayantilal Nakum, (1997)
9 SCC 552 and MC. Mehta & Anr. v. Union of India & Ors., (1987) 1 SCC
E 393, referred to.
Donoghue v. Stevenson, (1932) AC 562; Anns v. Merton London
Borough, (1978) AC 728; Murphy v. Brentswood District Council, (1991) 1
AC 398; Stovin v. Wise, (1996) 3 WLR 388; East Suffolk Rivers Catchment
F Board v. Kent, (1941) AC 74; Sutneland Snire Council Co. v. Heyman,
(1985)157 CLR 424 and 483; lnvercargill v. Hamelin, (1994) 3 NZLR 513
(526); lnvercargill v. Hamelin, (1996) 2 WLR 367 PC; Swanson Estate v.
Canada,(1991) 80 D.L.R. (4th) 741; Commissioner for Railways v. McDermott,
(1966) 2 All ER 162 PC; Craig, (1978) 94 LQR 428 and Bowman & Bailey,
[1984) P.L. 27, referred to.
G
H
Jackson & Powell on Professional Negligence, (1997) 4th Ed., p. 2641; Modern Law Review, (1997) Vol. 60. p. 559 and Law Quarterly Review,
(1997) Vol. 113, p. 398; Halsbury 's La.ws of England, Vol. 34, Negligence,
4th Edn. para 73 and Aronson & Whitemore-Public Torts & Contracts,
Australia, (1982), referred to.
U.0.1. v. UNITED INDIA INSURANCE CO. LTD.
651
5.1. Under s. 110(1) of the Motor Vehicles Act, 1939 Claims Tribunals A
have been constituted for adjudicating upon claims for compensation in respect
of accidents involving the death or bodily injury of persons, arising out of the
use of motor vehicles or damages to any property of a third party so arising
or both. Section 110(1) thus deals with jurisdiction of the Tribunal. Section
110-B, on the other hand, is procedural and is in two parts. The first part B
states that after following certain procedures, the Claims Tribunal Shall make
an award determing 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 110B is referable to the Compensation to be decided by the Tribunal under Section
110(1). The second part of s.110-B is purely procedural when it refers to C
specification of the amounts payable by the insurer or owner or driver and
has no bearing on the scope of the jurisdiction conferred by s.110(1) upon
the Tribunal That question has to be decided by interpreting the plain words
"arising out of the use of the vehicle" occurring in s.110(1) and is not any
manner controlled by s.110-B. The scope of the jurisdiction is clear.
(673-B-C; D-F; 674-A-B] D
5.2. The Claims Tribunal is an alternative forum in substitution for the
Civil Court for adjudicating upon claims for compensation arising out of the
use of motor vehicles. Section 110-F of the Act, which states that no Civil
Court shall entertain any question relating to any claims for compensation E
which may be adjudicated upon by Claims Tribunal, makes it further Clear.
[674-D-E]
New India Insurance Co. Ltd v. Shanti Mishra, (1975] 2 SCC 840 and
Gujarat State RTC v. Ramanbhai Prabhatbhai, [1987] 3 SCC 234, referred
~
F
5.3. When s.110-B does not and cannot control s.110(1), a Claim is
entertainable by the Tribunal, if it arises out of the use of a motor vehicle and
it is claimed against persons or agencies other than the driver, owner or
insurer of the vehicle provided in tort, such other persons or agencies are
also claimed to be liable as joint tort-feasors. Prior to the constitution of the G
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. [674-E-G]
Shivaji Dayanu Patil v. Vatschala Uttam More, (1991] 3 SCC 530,
H
652
SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.
A referred to.
Government Insurance Office ofNSW v. R.J. Green & Lloyds Pvt. Ltd.,
(196S) 114 CLR 437, referred to.
S.4. Further s.110-E of the Act provides for recovery of the
B compensation "from any person" as arrears of land revenue and recovery
under that sections is not restricted to the owner/driver or insurer specified
in the second part of s. 110-8. Obviously, the words " from any person" are
referable to persons other than the driver/owner or insurer of the motor
vehicle. (675-8-C]
C
S.S. A claim for compensation, thus, lies before the Tribunal against
other persons or agencies which are held to be· guilty of composite negligence
or are joint tort feasors, and if arising out of the use of the motor vehicle.
The Tribunal and the High Court were therefore, right in holding that an
award could be passed against the Railways if its negligence in relation to
D the same accident was also proved. [67S-D]
Union of India v. Bhagwati Prasad, AILR (1982) All 310; Rajpa/ Singh
v. Union of India, (1986) ACJ 344 P&H; Gujarat SRTC v. Union of India,
AIR (1988) Guj. 13; United India Insurance Co. v. Premakumaran, (1988)
ACJ S97 (Ker) and Union of India v. Dr. Sewak Ram, (1993) ACJ 366 Raj.,
E approved.
Oriental Fire & General Insurance Co. v. Union of India, (197S) ACJ
33 AP, AIR (197S) AP 222 and Union of India v. Bhimeswara Reddy, (1988)
ACJ 660 AP, distinguished.
F
Swarnalata Dutta v. National Transport India (Pvt.) Ltd., AIR (1974)
Gau. 31; Orissa RTC ltd. v. Umakanta Singh, AIR (1987) Orissa 110 and
Union of India v. Kailasan, (1974) ACJ 488 Mad, overruled.
S.6. 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
G 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 cases, if it is
ultimately found that 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
H the claim would go out of s.110(1) of the Act because the case would then
U.0.1. v. UNITED INDIA INSURANCE CO. LTD. [M. JAGANNADHA RAO,!.)
653
become one of exclusive negligence of railways. Again, if the accident had A
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. [676-E-GJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3033 of 1990.
From the Judgment and Order dated 14.10.87 of the Kerala High Court B
In M.F.A. No 726 of 1986.
WITH
C.A.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, c:
3059, 3060, 3061, 3062, 3063, 3064, 3065, 3066/1990 and C.A. Nos. 7418-19/97.
N.N. Goswami K.N. Shukla, H.L. Agrawal, M.L. Jain, 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 Ravidra Kumar, Rajiv Mehta, Yatendra Shrama, Ms. D
Manupriya Mittal, Ms. Indira Swawhney, Ms. Indu Goswami Ms. Kamkshi, 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 and M.K.
Diwakaran Namordiri for the appearing parties.
The Judgement of the Court was delivered by
M. JAGANNADHA RAO, J. Leave granted in the SLPs.
Several importa.,t 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.
.1
This is a batch of appeals preferred by the Union of India represented
by the General Manager, Southern Railways. The accident occurred on 9.5.1979
at an unmanned level crossing at Akaparemoa (near Kalady) in Kerala when
E
F
a hired passengers bus was hit of the Jayanthi Janatha Express at about 3
P.M\ and 40 passengers in the bus and the driver there of were killed while G
some other passengers sustained injuries. Two judgments of the Motor
Accidents Claims Tribunal, Emakulam 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, Emakulam 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 H
654
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A 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. 5000 Per passengers as per the statutory
provisions then in force. On appeals by the Insurance company, cross
B 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 Emakulam had held the
Railways Administration also liable on account of its negligence in regard to
the same accidents. However, in both judgments, it was held that under
C Section 110(1) and 110-B of the Motor Vehicles Act, 1939 an award could be
passed against the railway also which view was accepted by the High Court.
Against ~II these Judgement, the Union of India has preferred these Civil
Appeals, Stay of operation of the judgments was refused by this Court
pending these appeals.
D
The facts of the case are as follows :
The motor vehicle in question belonged to one K. Arumughan of
Ami,Tamilnadu and was 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
E 7.5.1979, the bus started at Trivandrum or 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 leave the passengers in a forest. By noon, the bus reached
F Cochin and proceeded to Kalady via Angamali. The Bus was to cross an
unmanned level crossing at Akaparmba 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 I k.m. The
G driver drove the vehicle and was crossing the railway line when the vehicle
stooped on the track and did not move. The passengers cried and shouted
in panic but the bus remained there and was pushed up to a distance of 500
meters by the locomotive. In that process forty passengers and the driver
died while some other passengers were injured.
H
We ~ave heared the counsel on both sides. From the submissions the
U.O.l. v. UNITED INDIA INSURANCE CO. LTD. [M. JAGANNADHA RAO, J.l
655
following points arise for considerations:
A
(I) What are the common law duties qf a motor vehicles driver at a
railway level crossing? Whether, on facts, tlie bus driver was negligents?
(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 B
contributory negligence of the passengers?
(3) Whether under the law of torts the claimants in rail-motor collisions
can that the obligations of the Railways under statute as well as under
commom law will run concurrently? What are the common law duties of the
railways at level crossings and whether the Railways is bound to the cognizance C
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 D
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 E
under Section 110(1) of the Motor Vehicles Act, 1939 read with Section 110(8)
thereof (corresponding to Section 165 and 168( I) respectively of the Motor
Vehicles Act, 1988) to adjudicate a claim against the Railways Administration
when a motor vehicle is hit by a railway train and whether the Tribunal can
pass an award under Section 11 O(B) against the Railways also, in addition to F
an award against the owner of the vehicle, driver and the insurer?
Point I: 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 G
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 far 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 meters. There is no evidence that the engine
driver was negligent. In fact if he had applied the brakes when he saw the H
656
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A 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 far the Union of India that as a matter of common law
duty, at the level crossing, the driver of motor vehicle was obliged to stop,
B see, listen and get down and proceed. Rule I 00 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.
I. 7.1965) states that the Conductor of a stage carriage while on duty, shall.
c
" .... while crossing an unmanned railway level crossing with his vehicle,
require the driver to stop the vehicle on the read at the place 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
D
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
E 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 as extra obligation
on the conductor to get down from the vehicle as stated in clause (f) of Rule
100.
In our opinion, in the absence of a board statutorily requiring the
F 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
G the vehicle in addition to stopping looking and hearing was laid down at one
time by Justice Holmes in Baltimore & O.R. Co. v. Goodmen, (1927) 275 US
(72 L.Ed. 167, 48 S.Ct.24) but such a principle of special caution which was
under adverse criticism was rejected by Cardoza, J. in Pokora v. Wabash Rly.,
Co. (1934) 292 US 98 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
H an obstruction or such like situation but not when the line was straight and
-
U.O.I. v. UNITED INDIA INSURANCE CO. LTD. [M. JAGANNADHA RAO, J.]
657
the train was visible. The 'get out of the car requirement was, in the absence A
of special circumstances, an uncommon precaution, likely to be futile and
sometimes even dangerous', said Cardoza, 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 done, there would clearly be
negligence on the part of the driver. In fact, it has been so held by this Court, B
in case under Section 304 A, !PC 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 v. 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 C
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 "Yas 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 out the gate inviting the vehicle to pass, it will be too much
to expect of any reachable 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
D
E
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 F
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 G
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 motorvehicle. We have accepted that the driver of the said motor vehicle was
Negligent. The question is "whether the driver's negligence in any manner H
658
SUPREME COURT REPOL (199~ SUPP. 4 S.C.R
A vicariously attaches lo the passenger 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 dependent can
plead the contributor/negligence of the plaintiff or of an employee of the
B plaintiff where the employee is acting in the course of employment. But it has
been also held in Mills v. Armstrong, (1988) 13 A.C. I HL (also called The
Berrina case) that the principle is not applicable to a passenger in a vehicle
in the sense that the negligence of the driver of the vehicles in which the
passenger in travelling, cannot be imputed to the passenger. (Halsbury' s laws
C 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
Bernina case in which this principle was laid in 1888 related to passengers
in a steamship.