Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 915 of 1990 Appellant :- Gulab Kali & Others Respondent :- U.P.S.R.T.C.
Counsel for Appellant :- A.L.Jaiswal,Sharve Singh Counsel for Respondent :- H.K.Shrama,S.K.Misra,Sameer Sharma
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This First Appeal From Order has been filed under section 110-D of Motor Vehicle Act, 1939 (hereinafter referred to 'Act, 1939') by appellant, being aggrieved by order dated 10.1.1986 passed by the Motor Accident Claims Tribunal/IInd Additional District Judge, Allahabad in MACT No.92 of 1981.
2. The claimants who are the heirs of the deceased Kesho Prasad Misra who admittedly died at the prime age of 25 years in the vehicular accident having been not suited by the learned Tribunal by non reasoned judgment. As far as issue no. 1 is raised, I would like to reproduce the same herein:
"Whether the accident resulting in the death of Kesho Prasad Misra was caused due to rash and negligent driving of heavy transport bus no. UTB-2725"
3. The reasoning while deciding the aforesaid issue no. 1 shows that Tribunal even did not feel it appropriate to invoke the principle of res ipsa loquitor and hold that the death of the cyclist occurred because of negligence of the driver of UPSRTC bus who has even accepted in the written statement that the accident occurred with his bus. The Tribunal did not feel it appropriate to hold the UPSRTC liable, though they failed to lead any evidence. The driver of UPSRTC did not step into witness box. The Tribunal very strangely held that as the issue of negligence was not proved, the claim petition should be dismissed.
4. The FIR and Panchnama was before the Tribunal and if the Tribunal had perused the same it would go to show that the accident occurred because of negligence of the bus driver. It is now establish principle of law that in Motor Accident Claims strict principles of proof as required in criminal case or civil are not necessarily applicable but case of motor vehicle Act the trapping of Civil Court are not to be adhered strictly.
5. It is true that Gulab Kali was not an eye witness but the Tribunal could have perused the FIR and charge-sheet which shows that the bus driven by the driver of UPSRTC was negligent. Charge sheet was laid against him.
6. While going through the facts, it is proved that the Tribunal has non suited the claimants on hyper technical grounds and over technical view and approach in dealing with Act, the Tribunal was not right in holding that the accident though proved does not prove negligence. As thirty years have elapsed from the date of accident as I had called for the record, it would be necessary for this Court to even decide the quantum as held in the judgment of Supreme Court wherein it is held that the High Court can decide quantum also if the record is with the High Court.
7. It would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will have to be looked into.
8. The term negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, negligence of drivers is required to be assessed.
9. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
10. 10th Schedule appended to Motor Vehicle Act, 1988 contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle should slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. This is termed negligence. .
11. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 from the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
12. In light of the above discussion, I am of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, Courts cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits.
13. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle.
14. I am unable to accept the submission of Sri S.K. Mishra, learned counsel for UPSRTC that the accident is of the year 1979, the claim was filed belatedly and only Gulab Kali was examined and that the Tribunal has rightly rejected the claim petition as negligence was not proved. As per the finding herein above the charge - sheet was laid against the driver of the UPSRTC bus. The cyclist died on the spot, all this is held against the UPSRTC.
15. The deceased was an employee in UP State Road Transport Corporation and was drawing salary of Rs.500/- per month and having been survived with three people, 1/3rd has to be deducted. Hence, Rs.500/- x 12 = Rs 6000 - Rs.2000= Rs.4,000/-x 18 = Rs. 72,000/- plus Rs.2,000 x 18 = Rs.36,000/-
would be the amount available under the head of actual loss to the family. To which as the accident is of the year 1979, Rs.25,000/- under the head of non pecuniary loss to the family is awarded. This amount will carry 9% rate of interest from the date of claim petition till the award and 4% thereafter.
16. Appeal is partly allowed. The judgment and decree is set aside. The respondent to deposit the amount within 12 weeks from today.
Order Date :- 22.2.2018/Mukesh