Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1375 of 2003
Appellant :- Smt. Kamla Devi Bajpai And Others Respondent :- Rajendra Kumar And Others Counsel for Appellant :- Pooja Agarwal Counsel for Respondent :- Anuj Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for appellant, Sri Anuj Srivastava, learned counsel for respondents and perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment and order dated 13.02.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.11, Kanpur Nagar (hereinafter referred to as 'Tribunal') in Claim Petition No.388 of 1995 awarding a sum of Rs.55,000/- with interest at the rate of 9%.
3. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.
4. 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 caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
5. 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.
6. 10th Schedule appended to Motor Vehicle Act 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 to 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.
7. 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.
8. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
9. In the light of the above discussion, we are 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, court 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 (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
10. 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.
11. The principle for considering the negligence has to be viewed. The Tribunal while granting no fault liability held the deceased to be negligent. The fact is that Krishna Shankar Vajpai on 7.7.95 was going on a cycle the roadways bus came rashly and negligently and dashed with the cyclist. The Tribunal rejected the claim petition on the ground that Kamla Devi was not an eye witness. P.W.1 and Krishna Kumar were also disbelieved. The fact that the S.T. Bus dashed the cyclist from behind goes to show that the driver of the bus was driving the bus rashly and negligently. Just because Rajesh Kumar Morya, P.W.1 was slighly behind he has been disbelieved and because he has son of the deceased the Tribunal has disbelieved. The bus driver and the conductor have been examined as that there was bullcart which was going and the said bullacart and the bullcart went while and that is how the cyclist came under the bus. Just because the deceased was taken to the hospital by the driver of the bus can it be said that driver of the bus was not negligent. Had he maintained sufficient distance he would not have dashed with the cyclist who was on the left side. The judgment of of Apex Court in Sunita & others Vs. Rajasthan State Road Transport Corporation and Another, Civil Appeal No. 1665 of 2019 (arising out of SLP (Civil) No. 33757 of 2018) and has contended that there was no negligence of the deceased. As against this Sri Anuj Srivastava, learned counsel for respondents has contended that there is no fault in finding of the Tribunal. The judgment according to Sri Anuj Srivastava, learned counsel for respondents has call for interference. The finding of the tribunal is absolutely perverse. The accident is occurred due to negligence of driver of the bus who did not taken proper caution. However 20% negligence is attributed to the deceased. Hence the finding as per as negligence is concerned, is answered likewise.
12. The Tribunal is awarded Rs.15,000 with 9% rate of interest the deceased was railway driver was 45 years of age his income was 8219 per month to which 30% will have to be added which would be Rs.10,609/- the deceased was survived by six dependence hence 1/5th will have to be deducted. Hence the figure which is rounded up to Rs.8,500 per month x 12, the deceased was 45 years of age hence multiplier of 14, Rs.8500 x 12 x 14 = Rs.14,28,000/- + 40,000 (under non pecuniary damages) = Rs.14,68,000/-out of which 20% should be deducted. Hence the appellants would be entitled to the said amount with 9% rate of interest till the date of judgment of the Tribunal and 4% thereafter.
13. The appeal is partly allowed. The amount be deposited by the insurance within 12 weeks from today. The amount already paid be deducted by the same. The cross objection filed by U.P. State Road Transport Corporation is also considered. The appointment on compassionate basis cannot be taken into consideration as per the judgments of the Apex Court. The cross objection is allowed as rate of interest has to be 9% and not 12%. Record and proceeding be sent back to the Tribunal.
Order Date :- 31.05.2019 Shubhankar