Chathu v. P R Narayanan Nair — 1985 DIGILAW 156 (KER)

JUDGMENT K. Sukumaran, J. 1. Prakasan, aged 18, and employed in a cycle repairing shop, was fatally run over at about noon on 27th September, 1971 at the National Highway near Vilangan Kunnu, Trichur His parents instituted the suit. They alleged rash and negligent driving against the defendant, the owner and driver of the taxi car K. L. E. 7056. The father, 1st plaintiff died during the pendency of the suit; the 2nd plaintiff and the 2nd respondent are his legal representatives. The suit suffered a dismissal before the court below. The decree has been appealed against. 2. On some facts, there is no controversy: and they are; The accident occurred near the Vilangan Kunnu in Trichur-Guruvayoor road. The place of occurrence is about 35 metres away from a three road junction where Parappur Mullur Kayal road branches off from the National Highway. The road there has a width of 1509 centi metres, the tarred portion being 634 centi metres. Prakasan was proceeding on a bicycle towards the South, and the car, in the opposite direction. The boy got injured when there was a collision between the two vehicles. The defendant took the injured boy in his car to the hospital. The car developed mechanical trouble on the way and the injured had there fore to be taken to the hospital in a bus. He was dead before he reached the hospital. 3. Johny, residing in the neighbourhood of the place where the accident occurred gave the first information report Ext. A3 to the police. P. W. 3, Venugopalan is an attestor to the scene mahazar Ext. A4. The deposition of Johny given on 27-7-1972 in that case is Ext. B1. The criminal case registered against the defendant ended in an acquittal. 4. The plaintiffs sent a lawyer's notice Ext. Al on 23-12-1972, demanding compensation. That was replied by defendant's lawyer on 21-1-1973, repudiating liability. 5. The written statement raised all conceivable contentions. Even the connection of the plaintiffs with the deceased was not admitted. So too was his age and his employment. The defendant denied the allegation about his being the owner and the driver of the car. He stated that one Bhaskaran Kartha was driving the car, and driving carefully, and without negligence at the time of the accident. According to him, Mr. Prakasan, peddling the cycle rashly and negligently, had 'come and hit the car'. 6. The defendant denied the allegation about his being the owner and the driver of the car. He stated that one Bhaskaran Kartha was driving the car, and driving carefully, and without negligence at the time of the accident. According to him, Mr. Prakasan, peddling the cycle rashly and negligently, had 'come and hit the car'. 6. In Para.12 of the written statement, the defendant had contended that the liability, if any, should be directed to be settled by the State Insurance Department and prayed that notice under S.96 of the Motor Vehicles Act, 1939 should be issued to the State Insurance Officer 7. The State Insurance Officer filed a statement, in the Court, casting on the other parties to the ease the burden of proving that the vehicle was insured. Other contentions were also taken therein. 8. P. Ws. 2 and 3 gave evidence regarding the incident. P. W. 1 was the mother of the deceased. The defendant examined himself as P. W. 1 and produced Ext. B1, the certified copy of the deposition which P W. 2 gave before the Magistrate Court, apparently in an attempt to show the divergence in the evidence as given by him before the criminal and civil courts, 9. The court below disbelieved the evidence of P. W. 2 for the reason that his version before the two courts was discrepant. The evidence of P. W. 3 was discarded on the ground that he had not stated to the police of having seen the incident. The court felt that if he had witnessed the incident, he would have stated so to the Police and in that event, the police would have cited him as an eyewitness. 10. Apart from the views so expressed on the evidence, the court below propounded two propositions. It observed: "The court can take judicial notice of the fact that at the place of accident the road in question was fairly wide enough and straight. A vehicle proceeding from Trichur to Guruvayoor can have a minimum speed of 60 miles at that place. Apart from the views so expressed on the evidence, the court below propounded two propositions. It observed: "The court can take judicial notice of the fact that at the place of accident the road in question was fairly wide enough and straight. A vehicle proceeding from Trichur to Guruvayoor can have a minimum speed of 60 miles at that place. Even a speed of 60 miles per hour at the place of accident will not be a rash and negligent driving according to me." (emphasis supplied) And later it stated: ''It is a cardinal principle in a suit to recover damages due to motor accident, it is the duty of the plaintiff to prove that the defendant was driving the vehicle rashly and negligently." 11. We shall first deal with the second of the two propositions. We are constrained to observe that the court below erred, and grievously erred in not bearing in mind the correct legal principles. The Supreme Court has spoken, and spoken authoritatively, exhaustively, and repeatedly on the question. There was no justification for that court to overlook the principles laid down in the year 1976 in the decision in Krishna Bus Service Ltd v. Mangli, AIR 1976 SC 700 . The later decision of the Supreme Court in Syad Akbar v. State of Karnataka, 1980 A. C. J. 38 make reference to leading text-books and judicial decisions all over the world. This latter decision also examined how the maxim Res Ipsa locquitor fitted in with the conceptual pattern of the Indian Evidence Act. The Supreme Court pointed out that in criminal cases a different approach is posited in relation to the maxim. As for a civil suit, the principles as laid down in AIR 1976 SC. 700 supra are applicable. The Karnataka High Court, v. Narayana Reddy v. Syad Axgar Bareed, 1981 A. C. J. 307 had emphasised the difference in the approach to the civil actions, after adverting to the decision of the Supreme Court in 1980 A. C. J. 38 supra, (See Para.14 of the judgment) 12. 700 supra are applicable. The Karnataka High Court, v. Narayana Reddy v. Syad Axgar Bareed, 1981 A. C. J. 307 had emphasised the difference in the approach to the civil actions, after adverting to the decision of the Supreme Court in 1980 A. C. J. 38 supra, (See Para.14 of the judgment) 12. A Division Bench of the Allahabad High Court after adverting to the Supreme Court decisions, summarised the principles as follows; ''Generally the burden to prove rash and negligent driving of a vehicle is on the claimants, but where the circumstances are established to show that the road was clear and there was no impediment and traffic, and yet the accident occurred, the burden lies on the driver or the owner to prove reason for the accident. The reason as to why the accident occurred was within the special knowledge of the driver." (See Vinod Kumar v. Urmila Devi and others, 1983 A. C. J. 354) As observed by Cross, there may be "situations in which it is sociologically desirable to hold the defendants liable for an unexplained accident." (See Cross on Evidence, 5th Edition (1979) page 151 ) 13. Applying the above principles to the facts of the case, and having regard to the admitted and proved circumstances, we have no doubt that the burden had shifted to the defendant. The deceased was riding on a bicycle. He was not on the wrong side. The car was approaching a junction. It was clear day light of the noon time. The evidence shows that he was keeping his side and that, on being hit by the car, he was thrown off towards the middle of the road. The nature of the accident is such that its happening is evidence of negligence on the part of the driver, in the absence of cogent and acceptable explanation. 14. In furnishing such an explanation, the defendant signally failed. The defendant took the stand that the car was actually driven by one Bhaskaran Kartha. That would imply that the only person who could authoritatively explain the facts is the driver Bhaskaran Kartha. To a specific question put to him, the defendant admitted that Bhaskaran Kartha is still alive; he was therefore available for examination. Yet, he was not examined as a witness in the case. The observations made by the Bombay High Court in a similar situation are apposite in this context. To a specific question put to him, the defendant admitted that Bhaskaran Kartha is still alive; he was therefore available for examination. Yet, he was not examined as a witness in the case. The observations made by the Bombay High Court in a similar situation are apposite in this context. The court observed that an adverse inference could be drawn against a party who does not examine his driver when there is no evidence to show that the driver was not in the service of the employer or that inspite of due diligence the driver could not be made available for giving evidence. (See Ramsumer Haba lades v. State of Maharashtra 1981 A. C. J. 460), 15. The omission of the defendant to give satisfactory and convincing evidence expiating negligence on the part of the driver, recoils on the defendant. In such circumstances, the maxim fully applies and the defendant's failure leads to an irresistible inference of negligence on the part of the driver of the vehicle. 16. We may also point out that the defendant had not indicated the name of the driver in his reply notice Ext A2. The first information report given by P. W. 2 to the police - the first official record relating to the incident had clearly implicated the defendant, and only the defendant, as the driver of the vehicle. There are, therefore, indications that the story about the car having been driven by driver Baskaran Kartha is baseless and without bona fides. 17. We are also not impressed by the reasoning of the court below for discarding the evidence of P. W. 3. He resides in his house close by. He has figured as an attestor to the mahazar in the criminal case. According to him. he was in the shop of one Viswambaran situate on the eastern side of the road and facing west. The mere fact that he has not been interrogated by the police nor cited as a witness in the criminal case, is no good ground for rejecting his testimony. 18. On a consideration of all relevant aspects and evidence in the case, we have therefore no hesitation to vacate the finding of the court below exonerating the defendant from his liability for the negligence in rashly driving the car. 19. The general observation of the court below about 'speed' is also erroneous. 18. On a consideration of all relevant aspects and evidence in the case, we have therefore no hesitation to vacate the finding of the court below exonerating the defendant from his liability for the negligence in rashly driving the car. 19. The general observation of the court below about 'speed' is also erroneous. The court below assumes that 60 miles per hour could be the minimum speed for a car at this place in National Highway. A minimum sped would imply a prohibition in driving at any a lesser speed; This is a baseless assumption. This observation is the result of a confused notion regarding the plying of vehicles in some of the Highways in some advanced countries. 20. The roads here are comparatively narrow, with frequent curves and turns, and unguarded humps. Sometimes they are in a state of disrepair with deep ruts and pot holes. It would therefore be rash to import notions relevant in advanced countries into our local situations ignoring the vital deferences. There is also the unregulated use of the roads by people of all ages, animals of diverse breeds, carts and carriages of different speed and specifications, Thickly populated habitations and places of employment abut such roads in many places. 21. It needs no reiteration that 'speed' is a relative term, dependant upon the circumstances of the moment and the location of driving. That was emphasised many years back, in London Passenger Transport Board v. Ubson 1949 A. C. 155. Venkatarama Iyer J. lucidly explained the aspects respecting speed in Gobald Motor Services Ltd. v. Veeraswamy Chettiar. AIR 1953 Mad. 981 . The following passage pithily explains the position: "A speed which would be reasonable on a fine concrete road would be excessive on a road which is full of ruts and in a state of repair. What might be regarded as a safe speed in an uninhabited area might become dangerous in a congested one. A speed which might be harmless during the restful hours of the night might be reckless during the business hours of the day. Whether in a given case the speed was excessive or not must be determined on a consideration of all the circumstances." These principles have been recapitulated in a recent Bench decision of the Karnataka High Court in Sundara Shetty v. Sanjeeva Rao and others, 1982 A. C. J 129. 22. Whether in a given case the speed was excessive or not must be determined on a consideration of all the circumstances." These principles have been recapitulated in a recent Bench decision of the Karnataka High Court in Sundara Shetty v. Sanjeeva Rao and others, 1982 A. C. J 129. 22. We are clear in our mind that the learned Subordinate Judge missed the correct legal principles and misappreciated the evidence in the case. This has resulted in a miscarriage of justice. Such a miscarriage of justice has necessarily to be remedied 23. The deceased boy was only aged 19 years at that time. He had been in employment for a considerable period. The place of employment was close to his residence. The monthly emoluments came to about Rs. 200/-. Having regard to these factors, the amount claimed in the suit is indeed reasonable. 24. In the light of the above discussion, we allow the appeal and set aside the decree of the court below. There will be decree for the plaint amount of Rs. 11,000/- as prayed for, together with costs here and in the court below, in favour of the 2nd appellant and the 2nd respondent in the case. 25. We feel that it is necessary to give some further directions as regards the realisation of the decree amount from the Insurance Department. It is unfortunate that though notified about the accident and about this case, the State Insurance Department had not chosen to state specifically and clearly anything about its liability under S.96 of the Motor Vehicles Act, 1939. A Department under the State Government, with an establishment of its own and personnel permanently working therein, cannot with any sense of justification, cast the burden of establishing the existence of the policy and the availability of indemnification to the owner of the vehicle, on the unfortunate victims of the accident, or the helpless relatives suffering the trauma of the tragedy. We cannot adopt an indifferent attitude at the delay in the disbursement of actual compensation by the Insurance Agencies. It would be the height of cruelty if the parties are compelled to knock at different doors, and for further periods, to actually receive the money in terms of the decree. We cannot adopt an indifferent attitude at the delay in the disbursement of actual compensation by the Insurance Agencies. It would be the height of cruelty if the parties are compelled to knock at different doors, and for further periods, to actually receive the money in terms of the decree. We would therefore direct that a copy of the judgment be forwarded to the State Insurance Department with a direction that the existence and extent of its liability for indemnification are examined and settled within a period of three months from the date of receipt of this judgment. This will be without prejudice to the rights of the decree holders to execute the decree in other modes also, if they so choose. 26. The appeal is allowed as indicated above.