Mohammed, J. 1. This batch of Civil Revision Petitions are coming before us on a reference made by the learned single Judge as per order dated 18-9-1998. According to the learned Judge, a considered opinion of a Division Bench is required in this case in view of the nature of the questions involved. The main question that arises for decision is whether the suits claiming damages filed before the Court below are maintainable on the facts of these cases.
2. Learned counsel for the revision petitioners contended before the learned single Judge that after the decision of the Supreme Court in Shivaji Dayanu Patil v. Vatschala Uttam More, (1991) 3 SCC 530 : (AIR 1991 SC 1769) it was no longer res integra that compensation for any accident occurring as a result of the use of a motor vehicle was to be claimed before the Motor Accidents Claims Tribunal as per Section 165 read with Section 175 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'). What was pleaded before the learned Judge was that in view of the averments contained in the plaint the immediate cause for the accident was the rash and negligent driving of the lorry. Repudiating the above contentions counsel for the plaintiffs urged before the learned Judge that it should be interpreted that the compensation claimed by the plaintiffs was the direct result of the accident. In support of the said contention counsel has relied on the decisions of this Court in General Manager, Kerala State Road Transport Corporation v. Saradamma, 1987 Ace CJ 926 : (AIR 1989 Ker 23) and K.S.R.T.C. v. E. Bhaskaran, (1991) 2 Ker LJ 704. Therefore it was argued that the suits filed by the plaintiffs were maintainable. Counsel for the other respondents also supported the plea taken by the counsel for the plaintiffs.
3. Before answering the question referred to us it is essential to understand the pleadings of the plaintiffs contained in the suit. In order to have a clear picture of the pleadings the following paragraphs in the suit O.S. No. 1148 of 1997 are extracted hereunder:
"1. The plaintiff is a resident of Kombazha, a tiny hamlet situated in the eastern side of the Kuthiran Hills, adjoining National Highway 47. This place, which is water-fed by the catchment area of Peechi Dam, is well reputed for agriculture. The plaintiff is having a small parcel of land, wherein he is dwelling with his family. His physical fitness to engage in manual labour has retarded considerably, making him a sick person, by the occurrence of phenol tragedy, which rendered Kombazha a hazardous place for living and offered inexplicable ordeals to the inhabitants, including the plaintiff.
2. The cause for phenol tragedy, the name by which, the incident is commonly referred, occurred by a road accident, near Kombazha bus stop, an area prone for high rate of accidents. The mishap occurred on 24-6-1993, at about 8.30 a.m. by a tanker lorry proceeding to Palakkad direction, having a full load of hazardous industrial chemical, phenol, driven by the authorised person of the first defendant, lorry owner, which got capsized while giving way to another lorry coming in the opposite direction. The impact of the fall made some breaches in the tank, which resulted in the escape of phenol into the water drains adjoining the highway. The rain water, which ultimately carried phenol to Peechi Dam, allowed its seepage in full extent, contaminating the whole area. The spread of poison into the wet soil, caused the pollution of surface and subterranean water, making the well water in the locality, unfit for human consumption. Apart from this, the vapours emanated from the poison, polluted the atmosphere. Unaware of the imminent danger, the plaintiff continued to stay there and consumed well water, consequent to that he has fallen sick.
3. With the appearance of phenol-poisoning syndroms, afflicting the functioning of chest, abdomen and head, the plaintiff was taken to Thrissur Medical College Hospital and admitted there as inpatient from 5-7-1993 to 10-7-1993. The doctors who are ill equipped for want of previous experience in handling this sort of cases, could not suggest any effective antedote. Thereafter, he continued the treatment with the Mobile medical team, camped at Kombazha. Even after the passage of time, the ill effects of the phenol poisoning has not subsided, compelling him to continuance of treatment. It has made him a psychological wreck. The poisoning has depleted his stamina for doing manual work. As the damage done to his body, could not be gauged by any standards, he is living in the constant apprehension of its unknown adverse effects.
4. Soon after the mishap, the matter was informed to the various agencies of the 6th defendant. The concerned officials lethargic handling of the problem, resulted in the hospitalisation of large number of people. Had the 6th defendant taken prompt preventive steps like evacuating people, providing clean water for drinking etc. much of the after effects of the phenol poisoning should have adverted. It has failed miserably, in protecting the life and property of the residents of Kombazha, including the plaintiff. For the culpable omissions on the part of the 6th defendant, it is squarely liable to compensate the plaintiff.
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8. The accident changed the fertile land of Kombazha into a poison-soaked waste land. The contamination of the well water in that area is the immediate adverse effect noticed in the nature. By the pollution of the plaintiff's well water, his valuable right and benefit of using his well is deprived. For fetching some potable water, he has to trudge, for distances. The lack of water supply schemes in that area, added the agony of the plaintiff. Apart from this, none are showing any interest to purchase land from the Kombazha. As a direct consequence of the accident, the value of the property of the plaintiff has diminished considerably.
Identical pleadings are urged in other suits involved in these cases.
4. The cause of action for the suit as contained in paragraph 12 of the plaint in the above suit is reproduced hereunder.
"The cause of action for the suit arose on 24-6-1993, whereon the phenol carrying tanker lorry met with the accident resulting in the personal injury as well as loss to the property of the plaintiff, and also on 3-2-1996, whereon, the 6th defendant was served with the notice under S. 80 of the C. P. C., and, thereafter continuously, at Peechi village, which is falling within the jurisdiction of this Hon'ble Court."
Basing on the above pleadings and cause of action damages have been claimed for the personal injuries caused arising out of the damage occurred to the property.
5. The Divisional Manager of M/s. United India Insurance Company Limited filed written statement denying the allegations contained in the suit. His case is that the suit is not maintainable inasmuch as the Court has no jurisdiction to entertain it. It is further pointed out that the damage was not caused as a direct result of the motor accident and it was caused due to the leakage of the tanker. It is further contended that the authority under the Act has to determine the question of damages since it is a self-contained Act. Thus the insurer has denied its liability to pay the damages inasmuch as the owner of the lorry has violated the conditions of policy.
6. What is required to be considered is whether in view of the above pleadings the Courts below have jurisdiction to decide the claim for damages put forth by the plaintiffs or whether the said claim for damages shall be adjudicated by the M.A.C. Tribunal under Section 165 of the Act as contended by the counsel for the revision petitioners. In fact the insurer raised a question that the suit was not maintainable and the proper forum was the M.A.C. Tribunal. The Court below tried this issue as a preliminary point and by a common order dated 10-3-1998 it held that there was no direct connection between the accident and illness of the plaintiffs even though the accident and consequent spreading of phenol contaminated their well water. It was against the said common order on the preliminary issue these revision petitions were filed by the insurer before this Court.
7. 'Ubi jus ibi remedium'. This expression means where there is a right there is a remedy and this is a fundamental principle of law. Section 9 of the Code of Civil Procedure, 1908 provides, that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. That means a person having a grievance of a civil nature has a right to institute a suit in some Court or other and what is required in this context is to examine whether its cognizance is either expressly or impliedly barred. Section 175 of the Act expressly creates a bar on jurisdiction of Civil Courts to try a claim for compensation which may be adjudicated upon by the Claims Tribunal for that area. Therefore the question is whether the claim for compensation in these cases is a matter to be adjudicated upon by the Claims Tribunal as provided in Section 165 of the Act. The said Section provides that the constitution of the Claims Tribunal shall be for the purpose of adjudicating upon claims for compensation in respect of the accidents involving the death of or bodily injury to persons arising out of the use of the motor vehicles or damages to any property of a third party so arising or both. What is required in the present context is an examination whether the damages to any property of a third party is involved in these cases so as to enable the Tribunal to entertain the claim petitions for adjudication.
8. What is 'damage to any property' of a third party arising out of the use of the motor vehicle as contemplated under Section 165? Whether it is a direct damage arising out of the accident or whether it takes in indirect or remote damage within its compass. In this context it is apt to refer Section 166 of the Act which specifies the persons who are entitled to file the application for compensation. It provides that an application for compensation arising out of the accident of the nature specified in Sub-section (1) of Section 165 may be made among others (a) by the person who has sustained the injury and (b) by the person (sic) of the property. Therefore the person of the property is competent to file the application under Section 166 before the Tribunal provided direct damage is caused to any property arising out of the accident. The question whether the damage claimed is direct or indirect is often dependent on the facts of the individual case.
9. A Division Bench of this Court in General Manager, K.S.R.T.C. v. Saradamma, 1987 Acc CJ 926 : (AIR 1989 Ker 23) while dealing with a claim for damages caused to one of the buses involved in an accident observed to the effect that direct damage to property alone was taken by the words "damage to the property". We respectively agree with the view taken by the Division Bench. The 'damage to any property of a third party' as contemplated under Section 165 would therefore mean the direct damage caused to the property of the third party. Though the Division Bench was considering a case coming under Section 110 of the Motor Vehicles Act, 1939, the following observation is very relevant in the present context (at p. 28 of AIR).
"Obviously, the intention of the legislature was to provide for quick disposal of motor accidents claims by the Tribunals. If large amounts are claimed as damage to property such claims may have to be tried in detail. Provision to refer such cases to Civil Courts is made for this reason. If this is the case in respect of claim for 'damage to property' itself, it is only reasonable to hold that claim for damages which may result from the accident, even though it cannot be termed as 'damage to property' have to be decided only by a Civil Court and not by the Tribunal. Such an interpretation is in accordance with the general tenor of the provisions of the Motor Vehicles Act as well as the principle that the phrases and sentences in a statute are to be construed literally and in accordance with the rules of grammar."
Another Division Bench of this Court in K.S.R.T.C. v. E. Baskaran, (1991) 2 Ker LJ 704 while dealing with the claims for basic 'pecuniary loss' like loss of revenue, observed :
"We therefore are inclined to take the view that by enacting Section 110 the Parliament never intended to confer jurisdiction on the Claims Tribunal to determine the damages falling under the head 'consequent pecuniary losses' suffered by a person in relation to torts concerning property."
10. In the present case what is claimed is not damages to personal injury directly arising out of the accident. It is a claim for personal injury caused to the plaintiffs as a result of the damage occurred to the property. What is claimed is not direct or proximate damage. No doubt, it is indirect. This is sufficiently clear from the pleadings of the plaintiffs extensively quoted hereinabove. In this proceeding this Court is not concerned with the question whether the plaintiffs are entitled to the compensation for the personal injury suffered by them as a result of the damage caused to the property. We refrain from expressing any opinion on this question. The finding of the Courts below that there is no direct connection between the accident and illness of the plaintiffs cannot be said to be illegal in view of the facts and circumstances of these cases.
11. Counsel for petitioners placed reliance on the decision of the Supreme Court in Shivaji Dayanu Patil's case, (1991) 3 SCC 530 : (AIR 1991 SC 1769). There compensation was claimed under Section 92-A( 1) of the Motor Vehicles Act, 1939 for the death resulting from the accident arising out of 'use of a motor vehicle'. The basic facts involved in that case are thus: A collision between a petrol tanker and a truck took place on a national highway at about 3 a.m. as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the highway. Due to overturning of the tanker, the petrol contained in it leaked out and collected nearby. At about 7.15 a.m. an explosion took place in the tanker causing burn injuries to those assembled near it including the deceased. In the above factual premise the Supreme Court however observed (at p. 1779 at AIR) :
"In our opinion, the word 'use' has a wider connotation to cover the period when the vehicle is not moving and is stationary and the use of a vehicle does not cease on account of the vehicle having been rendered immobile on account of a breakdown or mechanical defect or accident. In the circumstances, it cannot be said that the petrol tanker was not in the use at the time when it was lying on its side after the collision with the truck."
The facts in the above case are totally dissimilar to the facts involved in the present cases.
12. The personal injury has been suffered by the plaintiffs in the present cases not as a direct result of the use of the tanker lorry carrying phenol. The said vehicle capsized on 24-6-1993 as a result of which it had some breaches which resulted in the escape of phenol in the water drains adjoining the highway. The plaintiffs' well water was polluted as a result of phenol in the water drains and therefore their valuable right to enjoy the unpolluted water was deprived, which resulted in personal injury as well as loss to the property. The personal injury claimed here has no direct or proximate connection with the use of tanker lorry in which case the jurisdiction of the Claims Tribunal under Section 165 will not be attracted for adjudication.
13. The question still remains as to how a claim for indirect damage allegedly arising out of the use of the motor vehicles can be adjudicated. In a suit for damages in a tort case, the Court has power to award pecuniary compensation to the plaintiff for the injury or damage caused to him out of the wrongful act of the defendant. The test employed for determining whether the defendant is liable for damages is the test of directness, that is to say the defendant is liable for all direct consequences of the tortuous acts suffered by the plaintiff whether or not a reasonable man would have foreseen them. The Court of Appeal in Re Polemis and Furness, Withy and Co. Ltd., (1921) 3 KB 560 held that once the tortuous act is established the defendant is to be held liable for all the damages which "is in fact directly traceable to the negligent act, and not due to independent causes having no connection with the negligent act". Foreseeability of some damage is relevant to decide whether the act complained of was negligent or not but the liability for damages is not restricted to foreseeable damage but extends to all the damage directly traceable to the negligent act. This view was adopted by the Privy Council in Overseas Tankship (U. K.) Ltd. v. Morts Dock and Engineering Co. Ltd., (1961) 1 All ER 404 (PC). In holding foreseeability to be the correct test, the judicial committee observed that Polemis's case (supra) should not be regarded as a good law. Lord Viscount Simonds observed :
"For it does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be "direct". It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act."
His Lordship further said :
"But, with great respect to the full Court, this is surely irrelevant, or, if it is relevant, only serves to show that the Polemis rule works in a very strange way. After the event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight of the reasonable man which alone can determine responsibility. The Polemis rule, by substituting "direct" for "reasonably foreseeable" consequence, leads to a conclusion equally illogical and unjust."
The above test of foreseeability was affirmed in The Wagon Mound (No. 2) (1966) 2 All ER 709 and Hughes v. Lord Advocate, (1963) 1 All ER 705. While adjudicating the claims for compensation by the Tribunal under Section 165 of the Act the foreseeability test has no application. It is for the Civil Court to apply this test while assessing the damages in accordance with the facts and circumstances of each case.
14. In view of what is said above the Civil Court alone has jurisdiction to decide the claims for damages in the facts of the present cases. That being the position, the impugned finding passed by the Court below on the preliminary issue does not call for any interference. The revision petitioners can urge all the contentions taken by them except the question covered by the preliminary issue decided herein, before the Courts below when they come up for hearing. The Civil Revision Petitions are accordingly dismissed. No order as to costs.