Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 838 of 1999 Appellant :- M/S. Oriental Insurance Co. Thr. Its Branch Manager Rampur.
Respondent :- Mohd. Hanif And Others Counsel for Appellant :- A.A. Khan Counsel for Respondent :- K.K. Arora
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri A.A. Khan, learned counsel for appellant and perused the material brought on record.
This appeal, preferred by the appellant challenges the judgment and award dated 15.05.1999 passed by Motor Accident Claims Tribunal/Ist Additional District Judge, Rampur (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 66 of 1999 awarding a sum of Rs.60,000/- with interest at the rate of 12% per annum.
Moreover, while dealing with the issue of negligence, 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.
Negligence means failure to exercise required degree of care and 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.
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.
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.
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.
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.
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).
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 the other side.
As far as negligence issue is concerned, no fault can be found that the driver of the horse-cart which was going in front of the vehicle.
This takes this Court to the issue whether it was Sher Singh who was the driver or Amar Singh just because the surveyor had been examined. Can it be said that the insurance company has discharged its burden. The finding of fact is not perverse for this ground and for that the vehicle was being insured. The driver of the said vehicle has to be held negligent. The reports by the insurance company that the tractor was being driven by one Amar Singh has been proved before the tribunal. The opposite party examined, the D.W.2 in his oral report which came that Sher singh, one who gave the licence to him and, therefore, now to say that it was Amar Singh also fails the ground even on the testimony of this witness even if we consider Sher Singh to be driver it has been proved that he had driving licence which was given to the concerned person.
In that view of the matter, the appeal fails and is dismissed.
Interim relief, if any, shall stand vacated.
Order Date :- 25.07.2019 Shubhankar