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2017 DIGILAW 1488 (ALL)

State of U. P. v. Shiv Bhadur Singh

2017-06-02

K.J.THAKER

body2017
JUDGMENT Kaushal Jayendra Thaker, J. 1. Both these appeals arise out of same accident involving husband and wife. Smt. Pramila Singh wife of Sri Shiv Bahadur Singh succumbed to the injuries in the accident which took place on the fateful date and her husband who was driver of the scooter sustained injuries. 2. The Tribunal by its judgment dated 03.08.1996 in both the claim petitions bearing Nos. 103 and 104 of 1992 passed the award as far as the injured is concerned Rs. 25,000/- with 12% interest where as for the death of Smt. Pramila Singh Rs. 2,00,000/- compensation with 12% interest. This has aggrieved the State who is owner of the vehicle in question. 3. The learned Standing Counsel submitted that the tribunal has erred in not considering contributory negligence of the driver of other vehicle. According to the State it was scooterist who was solely responsible for the accident having taken place. The accident in question occurred at signal when vehicles had stopped due to the red signal. As far as the case of Smt. Pramila Singh is concerned, it is a case of composite negligence as she was not driving the scooter. As far as case of Shiv Bahadur Singh is concerned, it would be case of contributory negligence if at all he is held negligent. 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. 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. Fletcher, (1868) 3 HL (LR) 330”. 8. 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. 8. 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. 9. 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. 10. 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. State of Punjab, 2005 ACJ (SC) 1840”. 11. The aforesaid decisions and on the touchstone of these principles, the negligence of the driver of the Truck and the driver of the Scooter will have to be looked into. 12. 11. The aforesaid decisions and on the touchstone of these principles, the negligence of the driver of the Truck and the driver of the Scooter will have to be looked into. 12. It is submitted by learned Counsel for the appellant that had the truck dashed from behind, at least this fact would be known to driver and the deceased would not have come under the rear portion of the wheel as against this the learned Counsel for the respondent submits that after the signal turned green the Truck dashed the scooterist resulting in falling down of pillion rider that she became unconscious. In her deposition it is stated that there was no negligence part of the scooter driver. These are two contrary versions, however, the facts that the deceased died on the spot speaks for itself. The factual scenario shows that the widows’ version is more trustworthy that had the truck driver been more vigilant while at driving the signal he could have avoided the accident. The tribunal has committed no error in holding the driver of the appellant to be solely negligent. These facts are proved and therefore I do not find any reason to interfere in the finding of fact on the question of negligence. 13. It is submitted that the photostat copy of the driving licence of Sri Shiv Babu Singh was produces, it goes to show that the vehicle was borrowed by him and hence liability cannot be fastened on the State. The ground that no independent witnesses were examined does not to apply Motor Vehicles cases, the claimant has been examined who is injured eye witness and the driver of the vehicle-truck was examined and there, accident was not in dispute. The quantum cannot be said to be higher side. The learned Tribunal on the contrary has been more conservative as future prospects are not considered. 14. These appeals fail and dismissed. 15. The interim relief stands vacated. The remaining amount if not deposited shall be deposited within eight weeks from today as per the direction of the tribunal.