Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 91 of 1997 Appellant :- U.P.S.R.T.C.
Respondent :- Jaiveer Singh & Others Counsel for Appellant :- Samir Sharma,Awadhesh Kumar Saxena Counsel for Respondent :- B.Kumar
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This appeal, at the behest of the U.P.S.R.T.C. has been preferred against the judgment and award dated 8.10.1996 passed by the Motor Accident Claims Tribunal/VII Additional District Judge, Aligarh (hereinafter referred to as 'Tribunal') in Motor Accident Claim Case No.93 of 1994.
2. In light of the judgment in U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948, all the issues raised are heard and taken up for final disposal.
3. As far as the contention that it was a case of vis majore as tyre of the bus owned by the appellant had bursted, it cannot be said that driver of the appellant was negligent. The statement that the bus was being plied at the speed of 40-50 km/hrs. The evidence of the witness for the claimant has been wrongly believed.
4. The contention that the driver of the other vehicle was also equally negligent will have to be decided on the touch stone of the principle enunciated for deciding negligence are as follows :
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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).
12. 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.
13. While going through the record it is very clear that accident occurred on 15.3.12993 at 9.45 a.m. involving bus UP-80/E9298 in which Ram Kishor was travelling. At that time a bus belonging to the roadways bearing 40E 6942 came rashly and negligently.
14. The F.I.R. which was lodged its maker though though was examined was not the eye witness and, therefore, the question of inevitable accident pales into insignificance. Damodar Prasad was not an eye witness. DW2 was the conductor of the bus but he has only opined that the tyre of the bus had busted. In that view of the matter, the said aspect which has been very well dealt with by the learned Tribunal and has come to the correct conclusion. I do not think any case is made out for interference on this aspect.
15. It is submitted that the son of deceased Rakesh Kumar was given employment hence the amount of compensation should be scaled down. Grant of appointment on compassionate ground cannot be considered for deduction.
16. The heirs of the deceased have been awarded compensation of Rs.1,60,000/-. The Tribunal and on the awarded amount, the submission that the rate of interest was 12%, is exorbitant is correct as normally the rate of interest should be 9% but while going through the factual scenario, the deceased was earning Rs.36,000/- per year and the family was held to be entitled to Rs.24,000/-. Once again the Tribunal deducted a further sum of Rs. 16,000/- and considered the figure to be 16,000/- only and give multiplier of 10 only without granting any amount for future income and has been given meaning thereby Rs.1,60,000/- as compensation. Nothing has been awarded towards any other heads and, therefore, grant of 3% interest more than 9% would suffice for other claim also.
17. In that view of the matter, I do not find any reason to interfere with the well reasoned judgment of the Tribunal. Hence, the appeal fails and is dismissed. The Tribunal to release all the amounts which is laying and interest which is accrued on those fixed deposits for 20 years. Interim relief shall stand vacated.
Order Date :- 28.2.2018 DKS