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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: UNITED INDIA INSURANCE CO. LTD. & ORS.

DATE OF JUDGMENT:       22/10/1997

BENCH: S. B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: 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.                       J U D G M E N T      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)                       J U D G M E N T 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

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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

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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,

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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 Justice Holmes  in Baltimore  & O.R.  Co. Vs. Goodman 91927) 275 US  66 (72  L.Ed. 167, 48 S.Ct. 24) but such a principle of special  caution which  was under  adverse criticism  was rejected by  Cardozc, J. in Pokora Vs. Mabash Rly.Co. (1934) 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

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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

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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 High Court in Henry Condor Vs. Ballaprasad Bhagwan in (1895) in P.J.  of Bombay  High Court  91 by Sir Charles Sargent CJ quoted in  B.N. Ply Co. Vs. Tara Prasad) (AIR 1928 Cal 504], 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;

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    (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 by the  Privy Council  in Commissioner  for Railways  Vs. Mr 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 for Railways Vs. McDermott [1966 (2)) All E.R. 162 (PC)], it has been  stated that  the Railway’s  duty of care at common law is  based on the principle of neighbourhood laid down by Lord Atkin in Donaghue Vs. Stevenson [1932 AC 5621] inasmuch 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      after Donaghue  Vs. Stevenson  1932      A.C.   562    would    be    called      ‘proximity’     or     ‘neighbourly      relation   between    the   railway      operator and  a substantial  number

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    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 (London Passenger  Transport Board  Vs. Udson [1949 A.C. 155 (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 law. In  Smith Vs.  London Midland  & Scottian  Railway  Co. (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 Lloyds Bank  Ltd. Vs.  Railway Executive  1952 (1) All E. R. 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.

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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 volume of  traffic. In  Cliff Vs. Midland Railway Co. (1870) 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

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    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

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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 crossings. The House of Lords in a recent case in Stoyin Vs. 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

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work: Stovin Vs. Wise vs. Wise in the House of Lorde by Jane Convery. See  also: (1997) Vol. 113 Law Quartersly Review p. 398. Powers and Duties - A small breach in East Suffolk Wall by M.C. Harris where Stovin Vs. Wise was commented upon. ------------------------------------------------------------ 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 argument  therein - Stovin Vs. Wise was that the duty of 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 Catchment Board Vs. Kent 1941 Ac 74, Lord Romer had stated:      "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

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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’ but that  was before  Stovin Vs.  Wise came to be decided by 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

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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

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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      Sheppard  Vs.  Glossop  Corporation      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) in Stovin  Vs. Wise.  That passage  refers  to  the  special 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

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    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 Estate Vs.  Canada (1991) 80 D.L.R. (4th) 741 by Linden J.A. 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 liable for  negligence. In  last Vs. British Columbia (1990) 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 Commissioner for  Railways Vs.  Mc Dermott  1966(2) All E.R. 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.      We make it however clear that Stovin Vs. Wise is not to 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

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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 ------------------------------------------------------------ (3) For  discussion on  Stovin Vs.  Wise and recent views in 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

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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

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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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