JUDGMENT
Dinesh Maheshwari, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been preferred by the claimant Ali Khan against the award dated 2.1.1996 passed in Motor Accident Claim Case No. 41 of 1993 by the Motor Accidents Claims Tribunal, Barmer whereby the claim application has been rejected.
2. Brief facts leading to and relevant for this appeal are that the claimant-appellant Ali Khan submitted a claim application on 10.5.1993 seeking compensation of Rs. 4,78,900 under Section 166 of the Act and Rs. 25,000 for no fault liability under Section 140 of the Act arraying Chandra Singh, Chhug Singh and Lun Singh as non-applicant Nos. 1 to 3. The claimant averred that on 10.11.1992 his father Hazi Khan was sitting near a cabin at Bhadkha Bus Stand on Barmer-Jaisalmer Road at about 12 noon when Lun Singh, non-applicant No. 3, brought driving rashly and negligently a Jonga bearing the registration No. RNJ 8841 and suddenly the left side tyre of the vehicle came off and hit the deceased Hazi Khan on his temple and he fell down unconscious. Although no apparent injury was seen but blood started oozing out of his mouth. Gul Mohammad and other persons took Hazi to the Government Hospital, Barmer and he was referred to Jodhpur for further treatment where he died on 23.12.1992 due to grievous head injury. It was alleged that accident would not have occurred if the said vehicle was driven carefully by the non-applicant No. 3 at a public place like bus stand and if he had taken care of the tyres before driving the vehicle.
3. For quantification of the amount of compensation, the claimant averred that the deceased Hazi Khan was a skilled mason earning Rs. 60 per day and was 45 years of age, hence he would have contributed Rs. 4,32,000 to the claimant till the age of 65 years. Further amount of Rs. 20,000 was claimed towards loss of love and affection, Rs. 20,000 towards the treatment of the deceased and Rs. 3,900 for the attendants and Rs. 3,000 towards transportation charges.
4. The record shows that non-applicant Nos. 1 and 2 as originally impleaded, namely, Chandra Singh and Chhug Singh pointed out before the Tribunal that they were not the owners of the vehicle in question and thereupon by the order dated 5.7.1994 the Tribunal on the request of the claimant permitted deleting the names of non-applicant Nos. 1 and 2 and at the same time permitted impleading of the present non-applicant No. 1, Vijay Singh who was shown to be the owner of the vehicle in question and an amended claim application was submitted. The other non-applicant Lun Singh, driver of the offending vehicle remained ex parte.
5. A reply to the claim application was submitted by Vijay Singh, non-applicant No. 1, with the averments that the vehicle bearing registration No. RNJ 8841 was not involved in the alleged accident and no accident was caused by the driver of the said vehicle and the claim was entirely false. It was also submitted that the vehicle in question was never seized nor any case was ever registered.
6. On the pleadings of the parties, the learned Judge of the Tribunal framed two contentious issues: first, on the question as to whether the non-applicant No. 2 drove the vehicle No. RNJ 8841 on 10.11.1992 rashly and negligently and so the vehicle was involved in the accident when its left side front tyre came off and Hazi Khan died due to the injuries sustained from the said tyre; and second, on the question as to whether the applicant was entitled for the amount of compensation of Rs. 4,78,000 and from whom? In oral evidence, AH Khan, claimant examined himself as AW 1, Ishaq as AW 2 and Gul Mohammad as AW 3; whereas Vijay Singh, non-applicant No. 1, examined himself as NAW 1. In documentary evidence, the claimant produced a copy of roznamcha prepared by the police as Exh. 1.
7. The learned Judge of the Tribunal took up for consideration issue No. 1 with reference to the evidence of the parties and analysed the evidence of eyewitnesses to the accident, Ishaq, AW 2 and Gul Mohammad, AW 3 and found that admittedly the deceased was not hit by the vehicle but the front tyre of the running vehicle came off suddenly and from the said tyre the deceased Hazi Khan received injury and as a result thereof he died and in these circumstances, according to learned Judge, it could not be accepted that Lun Singh, non-applicant No. 3, was driving the vehicle rashly because of which the accident was caused. The learned Judge was of opinion that sudden severing of the tyre could only be treated as an ‘act of God’ and not due to rash and negligent driving of the vehicle. The decisions cited before learned Judge were distinguished on facts and it was found that in those cases, the negligence of the driver was established but in the present case, the tyre of the running vehicle suddenly came off which cannot be treated as an accident but could only be vis major. Therefore, issue No. 1 was decided against the applicant and in that view of the matter, the quantum of compensation was not determined and the claim application was rejected by the award dated 2.1.1996 which has been assailed in the present appeal.
8. Learned Counsel for the appellant submitted that the learned Judge of the Tribunal was in error in rejecting the claim application in toto by assuming that the accident in question was only a result of vis major and in not considering the principles of strict liability propounded in the case of Rylands v. Fletcher (1861-73) All ER 1, which have been recognised and applied by the courts in India in motor accident cases also. The learned counsel submitted that the tyre is equally a part of the vehicle and flying out of the same from the vehicle and thereby causing injuries to a third person is directly covered under the principles of strict liability and cannot be excepted as vis major. Learned Counsel referred to and relied upon the decision of the Hon’ble Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. . Learned Counsel also pointed that from the facts of the present case, it is apparent that the non-applicant permitted the vehicle to be plied without even taking an insurance and without getting its fitness certified and it shows that the vehicle was permitted to be used by its owner in an entirely irresponsible manner contrary to his obligations. The learned counsel for the respondents, on the other hand, contended that there was no cross-examination of the owner with the question that the vehicle was not maintained properly and applicant has failed to prove any negligence on the part of the driver and the incident could only be referred as an act of God and, therefore, there is no liability of the respondents for any compensation. Learned Counsel also submitted that the applicant was a major son of the deceased and not solely dependent on his father and nothing has been proved on record towards the treatment expenditure or any other loss and, therefore, also he is not entitled for any amount towards compensation.
9. Having given a thoughtful consideration to the rival submissions and having examined the record of the case, this Court is clearly of opinion that the impugned award dated 2.1.1996 remains entirely erroneous on facts as well as in law and cannot be sustained.
10. From the rival submissions, first point calling for determination is as to whether the respondents are not liable for compensation in this case?
11. The fact that the deceased Hazi Khan was sitting at Bhadkha Bus Stand on 10.11.1992 at about 12 noon and he was hit by the tyre which came off suddenly from the running vehicle No. RNJ 8841 and that the said tyre hit Hazi on his temple are the facts which remain undeniable and are established from the evidence on record. The entire details of the incident have been given out by the eyewitnesses Ishaq and Gul Mohammad. Ishaq, AW 2, has deposed that he along with Hazi, Sam-dha, Gul Mohammad and 10-12 other persons was sitting on the bus stand at about 12 noon when a Jonga came rushing from the side of Jaisalmer and its driver side tyre came off which hit Hazi on his temple. The vehicle stopped and the driver gave out his name as Lun Singh. He being illiterate did not know the number of the vehicle but the vehicle was said to be of Vijay Singh. Hazi was taken to Government Hospital, Barmer and thereafter to Jodhpur where he died in the hospital. A suggestion has been put in cross-examination that accident was not caused by the vehicle in question but by some LP van which was of a Mohammadan and in order to save him, false statements were being given. This suggestion has been denied.
12. Gul Mohammad, AW 3, is another person who was sitting on the bus stand with deceased Hazi Khan at the relevant time and he has also deposed that the vehicle came from Jaisalmer side in a high speed, its driver side tyre came off, hit Hazi on his temple who was swept off and fell down unconscious and blood started oozing from his mouth. They brought Hazi in a jeep to the Sadar Police Station and filed the report Exh. 1 and thereafter admitted Hazi in the hospital and thereafter took him to Jodhpur where he remained under treatment for about a month and a quarter and died. The offending vehicle halted at the site only and its driver Lun Singh ran away in a bus. This witness has been thoroughly cross-examined and has deposed that he was not aware whether the police filed a final report or presented a challan. He has specifically pointed out that the incident occurred at Jaisalmer-Barmer Road and the place where they were sitting was on the right hand side while going from Barmer to Jaisalmer and on the left side while coming from Jaisalmer to Barmer. He has also admitted that the tyre which came off was of the right hand side and it was not of that side at which they were sitting. He has categorically denied the suggestion that the accident was caused by some other vehicle and has stated registration number of the vehicle as RNJ 8841.
13. The statement of Vijay Singh, NAW 1 recorded on 9.11.1995 is of total denial of any accident having been caused by his vehicle and he has also denied any person by the name of Lun Singh to be a driver of his vehicle. According to Vijay Singh, his vehicle was never seized nor the police made any inquiry from him. He did not know Hazi Khan, son of Nihal Khan. This claim was earlier filed in the name of Chhug Singh which might have been filed due to some enmity. He was not aware if there was any vehicle in the name of Chhug Singh and he was brother-in-law of Chhug Singh and, therefore, his vehicle number has been falsely given. He has denied in his cross-examination having sold his vehicle to Chhug Singh and has stated that he had purchased the vehicle from Chanana Ram. He has denied that tyre of his vehicle came off 2-3 years back near Barmer and further stated that his vehicle was used only for domestic purposes. He admitted the registration number of his vehicle to be RNJ 8841 but did not remember if he was owner of the vehicle or not on 10.11.1992 and he was not aware of the report made by Gul Mohammad.
14. A perusal of the report, Exh. 1, shows that the information given by Gul Mohammad has been recorded by the Police Station Sadar, Barmer in which the description of the vehicle as Jonga and its registration number as RNJ 8841 has been given with other details of the incident as noticed above. The noting on this report shows that it was further given out that about 10-15 persons were sitting and all other persons ran away when they saw the tyre approaching them but Hazi remained sitting. It has also been given out that Hazi came after getting dressed a blister on his leg. It has also been remarked that Jonga was standing at the site and that it was a sudden coming out of the tyre which had happened unfortunately and nothing of the negligence was seen.
15. It needs to be clarified that so far the vehicle involved in the incident is concerned, the facts have been established on record beyond a pale of doubt that it was a Jonga bearing registration No. RNJ 8841 belonging to non-applicant Vijay Singh. The proceedings in the report, Exh. 1, have although been drawn in the manner as if the incident being on account of vis major was a conclusion foregone but coming to this aspect of vis major later, significant it is to notice that the tyre coming off from vehicle bearing registration No. RNJ 8841 and hitting Hazi are the facts which are conclusively and undeniably established on record. The defence theory as put in cross-examination to Ishaq and Gul Mohammad and so also as asserted by NAW 1 that the occurrence was the result of the use of some other vehicle falls to the ground and is required to be rejected altogether. The learned Judge of the Tribunal has also not accepted this theory of involvement of other vehicle, although its rejection has not been stated in explicit terms. So far the fact that Hazi Khan died because of the injuries sustained by him in the said incident is concerned, although no documentary evidence has been exhibited on record but in view of the uncontroverted testimony of the claimant and his witnesses, there is no reason to disbelieve the fact that Hazi Khan died because of the injuries so sustained by him in the accident. A true copy issued by the Medical Jurist of his post-mortem report dated 23.12.1992 has been produced on record and is available at pages C4/3 to C4/5. Although it has not been formally exhibited in evidence but from the overall evidence on record, it remains undeniable that Hazi Khan died because of the injury received in the questioned incident.
16. On the issue of liability of respondents, the only question now is as to whether a tyre from the running vehicle severing itself from the vehicle and running freely on the road and hitting a person resulting in grievous injuries could be dubbed as vis major and the injured is only to rue his own misfortune for which the vehicle owner is not responsible? The learned Judge of the Tribunal has accepted the theory of this being an act of God and hence exonerated the non-applicants altogether. This Court is of opinion that the learned Judge of the Tribunal was in absolute error.
17. A cause to maintain a claim for compensation arises not merely for rash and negligent driving of a motor vehicle but it arises out of the ‘use’ of motor vehicle. Driving is one of the uses of motor vehicle and even if the act of driving itself is performed by the driver with all skill and caution, yet if the use of the vehicle causes injury to a person or damage to a property, it cannot be said that merely because there was no fault in driving, no cause for compensation arises.
18. The Supreme Court in Kaushnuma Begum’s case 2001 ACJ 428 (SC), has summed up the principle governing such cases thus:
(10) It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.
19. The Apex Court after referring to the rule in Rylands v. Fletcher (1861-73) All ER 1, has also observed thus:
(18) Like any other common law principle, which is acceptable to our jurisprudence, the rule in Rylands v. Fletcher (1861-73) All ER 1, can be followed at least until any other new principle which excels the former can be evolved, or until the legislation provides differently. Hence, we are disposed to adopt the rule in claims for compensation made in respect of motor accidents.
20. The strict liability rule which has been approved by the Hon’ble Apex Court to be adopted in the claims for compensation arising out of the use of the motor vehicle could be usefully reproduced, as quoted by the Hon’ble Apex Court from the dictum of the House of Lords while approving the ratio thus:
We think that the true rule of law is . that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.
21. Seven defences against this strict liability rule have also been recognised by the Hon’ble Supreme Court, as stated by Winfield on Tort thus:
(1) Consent of the plaintiff, i.e., volenti non fit injuria;
(2) Common benefit, i.e., where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape;
(3) Act of stranger, i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply;
(4) Exercise of statutory authority, i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise;
(5) Act of God or vis major, i.e., circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility;
(6) Default of the plaintiff, i.e., if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply;
(7) Remoteness of consequences, i.e., the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage ‘which is the natural consequence of its escape’.
22. In the said case of Kaushnuma Begum, , the Hon’ble Apex Court applied the rule of Rylands v. Fletcher (1861-73) All ER 1 and quantified the compensation in a case where the vehicle involved in the case, a jeep, capsized because of burst of its front tyre but in the process of capsizing it hit against one Haji Mohammad Hanif walking on the road and that pedestrian was crushed and subsequently succumbed to the injuries sustained in that accident.
23. It is, therefore, apparent that the principles emanating from the case of Rylands v. Fletcher (1861-73) All ER 1, of strict liability of the person using anything which could be classified as dangerous thing have been adopted to consider liability in torts if an injury is caused because of such use. The motor vehicles, vis-a-vis the human beings and their property, obviously answer to the description of ‘dangerous thing’ for the purpose of strict liability rule. Once the strict liability rule is applied, the other species of liability, i.e., negligence, ceases to be the prime basis of cause of action and, instead, a person is responsible even for accidental harm even though he is not guilty of either wrongful intent or negligence. These are the cases where the defendant has a duty of ‘ensuring safety’ to the others.
24. Principle of strict liability as developed from Rylands v. Fletcher (1861-73) All ER 1, has its origin in the fundamental principle that anybody who keep a thing for his own use, must keep it at his own peril and if the thing is of such a nature which is likely to do mischief if it escapes he remains answerable for the damage which is the natural consequence of its escape.
25. Escapement of a ‘thing’ is directly an act for which the owner alone is answerable and every escapement of or from a dangerous article or thing cannot be presumed to be vis major, if any presumption is available, the same is squarely to the opposite. Prima facie it is the owner who stands answerable and it is for him to establish that such an act happened which neither could have been provided against nor could be foreseen.
26. The question is, could a tyre fleeing off a running vehicle be deemed as purely an act of God, i.e., because of the circumstances for which no human foresight can provide against and of which the human prudence is not bound to recognise as a possibility? The answer is in the negative. Learned police officer preparing the report has remarked that the accident occurred ‘unfortunately’. Learned Tribunal has also taken it to be simply an act of God. The approach of the learned Tribunal to say the least, is not compatible with the ingredients of vis major. Taken to philosophical principle, every accident for that matter is unfortunate in itself and is unfortunate to the core for the victim and the human philosophy would behave the accidental happening, its causes and effects to the dictum or destiny. But for liability of a person towards others, every accident cannot be simply dubbed as unfortunate and forgotten. Escapement of a tyre from the running vehicle cannot be presumed to be vis major.
27. Vis major or an act of God as presumed by the learned Judge of the Tribunal to be the cause of accident has no application to the facts of the present case. An act of God is an event which results directly from the forces of nature without human intervention. It necessarily means an operation of natural forces so unexpected that no human foresight could have visualized nor any skill could possibly have prevented the happening. A tyre or a wheel flying off running vehicle could hardly be taken to be an act of God, i.e., a circumstance which no human foresight can provide against and of which human prudence is not bound to recognise the possibility.
28. It cannot be denied that the tyre in question which hit Hazi Khan was an essential part of the vehicle in question and rather the vehicle was running on it. The tyre of a vehicle is required to be joined to the body of the vehicle with appropriate mechanism and because of their rotational use, for a vehicle to be roadworthy, it has to be ensured by the owner of the vehicle that the tyres and for that matter every part of the vehicle, remains in proper repair and does not go off from the vehicle. Generally, a tyre is fixed on the rim which is appropriately attached to the drum and it cannot sever itself from the running vehicle and go off and out of the vehicle but for some loopholes in the maintenance of the vehicle.
29. In the facts of the present case it is very difficult to appreciate the approach of learned Tribunal to believe that escaping of the tyre from the vehicle and its hitting the deceased Hazi Khan was simply an act of the God. The respondent has not been able to bring the case in any of the recognised exceptions to strict liability rule as the respondent remained rest contended with a flat denial of the involvement of the vehicle at all; and such denial has been proved to be incorrect as noticed supra.
30. The decision on issue No. 1 by the learned Tribunal is reversed and it is held that respondents are liable for compensation in this case on account of death of Hazi Khan.
31. With the reversal of finding on issue No. 1, the appellant becomes entitled to receive reasonable compensation in this case from respondents. The fact remains that the accident in question occurred on 10.11.1992 and the matter is about 13 years old. Although, the Tribunal has not quantified the amount payable on compensation but remanding the matter only for the purpose of quantification of the compensation would result in further elongation of the life of this litigation and the evidence on record being available, it is considered appropriate to dispose of the claim application on merits at this stage itself.
32. The deceased Hazi Khan has been alleged to be 45 years of age at the time of his death but his age has been given out as 50 years by Gul Mohammad. The applicant Ali Khan has been shown to be the only son of the deceased with no other dependent on the deceased as it has been given out that the mother of Ali Khan had expired earlier and he was the only son of Hazi Khan. There had been some discrepancy in claimant’s age, it was stated 45 years in the title of the claim application although he has stated his age to be 25 years in the affidavit filed along with the claim application and has given out his age as 20 years on 6.7.1995 in his statement. The age as stated in the title of the claim application is obviously incorrect because the age of his deceased father was also stated as 45 years. For the purpose of this claim application, applicant’s age could be reasonably taken as 25 years. With the nature of family of the deceased Hazi Khan and his son Ali Khan, and the deceased having been shown to be a skilled mason earning Rs. 60 per day, it could, on a conservative premise be taken that the deceased was at least contributing half of his income for the claimant and has contribution at the rate of Rs. 900 per month could reasonably be assumed. Even if the age of the deceased is taken to be above 45 years and nearing 50 years, a reasonable multiplier of 13 could definitely be provided to the multiplicand of Rs. 10,800 and, therefore, an amount of Rs. 1,40,400 could reasonably be taken as the pecuniary loss.
33. The deceased remained hospitalised for about a month and quarter at Barmer and Jodhpur and the expenditure on treatment as well as on the attendants cannot be ruled out. Although, no bills have been produced and the deceased remained in government hospitals only, therefore, it is considered appropriate to provide for an amount of Rs. 5,000 lump sum towards transportation, treatment and attendance. Further, the appellant has lost his father, the only other member of the family and an amount of Rs. 5,000 for loss of love and affection is also considered appropriate. Therefore, in all, a compensation to the tune of Rs. 1,50,400 deserves to be allowed to the claimant and deducting Rs. 25,000 awarded to him under Section 140 of the Motor Vehicles Act, the claimant is held entitled to get an amount of Rs. 1,25,400. Claimant would also be entitled to interest at the rate of 7.5 per cent per annum on this amount of Rs. 1,25,400 from 20.10.1994, the date of filing of the amended claim application.
34. As a result of the aforesaid, this appeal succeeds and is allowed; the impugned award dated 2.1.1996 is set aside and the claim application is partly allowed. Claimant-appellant is awarded compensation of Rs. 1,25,400 against the respondents over and above the amount awarded towards no fault liability and he shall also be entitled to interest at the rate of 7.5 per cent per annum from 20.10.1994. The amount payable shall be deposited with the Tribunal by the respondents within 30 days. From out of the amount under this award, Rs. 10,000 be paid in cash to the appellant and the remaining amount be placed in a monthly income scheme of the post-office for six years with the appellant being entitled to periodically receive the recurring amount of interest thereupon. There shall be no order as to costs.