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2017 DIGILAW 2305 (PNJ)

Suman v. Nafe Singh

2017-09-29

AMIT RAWAL

body2017
JUDGMENT : AMIT RAWAL J. 1. The appeal is for enhancement of compensation against the award passed by the Tribunal whereby it provided a sum of Rs.50,000/- as compensation under “no fault liability” for death of a male aged 32 years, who died in a motor accident occurred on 15.02.2000 whereas the claim petition was filed under Section 166 of the Motor Accident Claims Tribunal, on the premise that the claimants have not been able to prove the rashness and negligence of the driver of the tractor. The deceased was sitting on the mud guard of the ill-fated tractor bearing registration No.HR-31-B-0894 alleged to be driven by respondent No.4-Zora Singh rashly and negligently. The driver lost control over the tractor when 2-3 Neel Cows (Roz) suddenly jumped in front of the tractor and in an attempt to save them, the driver swerved the tractor to katcha burm of the road but it turned turtle. The deceased-Rajinder Singh, who was sitting on the mud guard of the tractor fell down and received multiple injuries. He was taken to the hospital but could not survive. 2. The Tribunal while dismissing the claim petition under Section 166 of the Motor Vehicles Act held that not even a single witness had been examined by the claimants to prove rash and negligent driving of respondent No.4-Zora Singh. The accident took place owing to coming of 2-3 Neel Cows in front of the tractor and in order to save them, the accident took place, resulting into death of deceased-Rajinder Singh. Though the Tribunal assessed a compensation of Rs.3,50,000/- but in the absence of proof of rashness and negligence of the driver granted Rs.50,000/- as compensation under “no fault liability”. 3. This Court reserved the case for judgment on 10.07.2017 but after perusing the case file, prima facie, found it to be a case of res ipsa loquitur and vide order dated 09.08.2017 called for the parties to address arguments on the principle of res ipsa loquitur. 4. Mr. S.K. Bhardwaj, learned counsel appearing on behalf of the appellants submits that the Tribunal has grossly erred in awarding a compensation of Rs.50,000/- only under 'no fault liability'. 4. Mr. S.K. Bhardwaj, learned counsel appearing on behalf of the appellants submits that the Tribunal has grossly erred in awarding a compensation of Rs.50,000/- only under 'no fault liability'. Respondent No.4 was driving the tractor at a very high speed and the accident took place due to his rash and negligent driving, therefore, the appellants are entitled to compensation under Section 166 and not under Section 140 of the Motor Vehicles Act, thus, urges this Court for modifying the award passed by the Tribunal. 5. Mr. Rathee, learned counsel appearing on behalf of respondent Nos.1 and 2 i.e. owners of the offending tractor submits that the accident took place in order to save the Neel Cows which suddenly appeared in front of the tractor, in essence, the circumstances were beyond the control of the driver of the offending tractor. There is not even an iota of evidence to prove that respondent No.4 was rash and negligent in his driving. Even no complaint was filed before the police. The onus was on the claimants to prove the rashness and negligence in which they miserably failed. In the absence of any proof of negligence, the Tribunal has rightly awarded a compensation of Rs.50,000/- under 'no fault liability', thus, urges this Court for dismissal of the appeal. 6. I have heard learned counsel for the parties and appraised the paper book. The case set up is that the accident took place in order to save the stray animal i.e. Neel Cows, which suddenly appeared before the tractor and despite best efforts the driver could not control the tractor. Consequently it capsized and the deceased who was sitting on the mudguard of the tractor received multiple grievous injuries, which proved fatal. 7. It is conceded position on record that the deceased-Rajinder Singh died in a motor accident. It is also conceded position on record that there was no independent eye witness present at the spot except the deceased and driver & owner of the offending tractor. Now the question arises whether in the facts and circumstances of the present case, principle of res ipsa loquitur can be applied or not? 8. It is also conceded position on record that there was no independent eye witness present at the spot except the deceased and driver & owner of the offending tractor. Now the question arises whether in the facts and circumstances of the present case, principle of res ipsa loquitur can be applied or not? 8. The normal rule is that it is for the plaintiff to prove negligence but as in some case considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. This maxim applies where it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. In such a situation, the accident speaks for itself or tells its own story and therefore, the claimant after proving the accident is not required to prove negligence and it is for the defendant to prove that the accident happened due to some other cause than his own negligence. The aforementioned view has been expressed by the Hon'ble Supreme Court in Pushpabai Purshottam Udeshi and others Vs. M/s Ranjit Ginning & Pressing Co. (P) Ltd. and another, (1977) 2 SCC 745 . 9. In view of the ratio decidendi culled out by the Hon'ble Supreme Court in Pushpabai Purshottam Udeshi's case (supra), the burden is on the owner and driver to prove that the accident happened due to some other cause than his own negligence. Mere statement of the owner and driver that in the process of saving the stray animal the accident took place could not come to their rescue. The accident took place on Bhiwani-Jind Road, not on a narrow passage or in fields that despite due care and caution, the driver could not anticipate the presence of the stray animals. Mere statement of the owner and driver that in the process of saving the stray animal the accident took place could not come to their rescue. The accident took place on Bhiwani-Jind Road, not on a narrow passage or in fields that despite due care and caution, the driver could not anticipate the presence of the stray animals. In a normal course also, if there are stray animals hovering around the road, a prudent person immediately slows down the speed of the vehicle so that any sudden movement of the animal can be handled properly. After all, the due care and caution can be expected from the human being and not from the animal. An animal cannot be negligent. Had the driver of the offending tractor being careful in driving, the accident could have been avoided easily. 10. The similar issue came before the Division Bench of Madhya Pradesh High Court in Shivlal and others Vs. Smt. Sukmabai and others, AIR 1986 MP 228 wherein the accident took place when the driver Shivlal lost control over the tractor owing to facing with a cow on road, resulting into death of a person, who was an agriculturist and milk vendor by profession. 11. The Division Bench after considering all the facts and circumstances held that in the instant case, heavy vehicle like the tractor had turned turtle and normally such a thing does not happen with a careful driving. The applicability of the maxim res ipsa loquitur is clearly, therefore, attracted in this case and there is no credible material to rebut the presumption of negligence. 12. A Coordinate Bench of this Court also applied the principle of res ipsa loquitur in a case in Rajesh Kumar (R.K. Bhanot) Advocate Vs. Raminder Jain and others in FAO No.935 of 1990 decided on 17.01.2011 and connected case where a car driver in order to avoid hitting against a cyclist, steered the vehicle to one side and ultimately dashed against a neem tree. In the aforementioned case, the plea of non-registration of complaint by police on which the Tribunal relied upon was also discarded. 13. In view of what is noticed above, I am of the view that the principle of res ipsa loquitur is attracted to the facts and circumstances of the present case as well. The owner and driver did not place any material to rebut the presumption of negligence. 13. In view of what is noticed above, I am of the view that the principle of res ipsa loquitur is attracted to the facts and circumstances of the present case as well. The owner and driver did not place any material to rebut the presumption of negligence. Therefore, the finding of the Tribunal on issue No.1 is set aside and the driver of the offending tractor is held negligent. 14. The Tribunal has already assessed the compensation of Rs.3,50,000/-. I will retain the same. Therefore, the claimants shall be entitled to a compensation of Rs.3 lacs after reducing the amount of Rs.50,000/- as has already been provided by the Tribunal under no fault liability. This amount of Rs.3 lacs shall also attract interest @6% per annum from the date of filing of the appeal till its realization. 15. The deceased was sitting on the mudguard of the tractor. The seating capacity of the tractor is of only person i.e. the driver. The driver and owner of the tractor allowed the deceased to sit on the mudguard of the tractor in breach of terms and conditions of the insurance policy. As per Rule 28 of the Rules of Road Regulations of 1989 a driver when driving a tractor shall not carry or allow any person to be carried on the tractor, therefore, the insurance company cannot be held to be liable to indemnify the insured. Even pay and recover principle is also not applicable. The pay and recovery principle apply only to situations where the claim is by a third party/workman and it is fully covered by the requirements of compulsory insurance under Section 147. If the Act does not require a policy to be taken for a traveller other than a driver of a tractor or to cover 3rd party risk, it means that there is no requirement of insurance at all and the question of making liable the insurer to pay and recover under section 149(4) proviso or under section 149(5) of the MV Act does not arise. There are catena of judgments to that effect which I will not cite for the sake of brevity. 16. There are catena of judgments to that effect which I will not cite for the sake of brevity. 16. Keeping in view the observations made above, the owners and driver i.e. respondent Nos.1 to 4 shall be liable to pay the compensation of Rs.3 lacs with interest as mentioned above and the amount of Rs.50,000/- with interest as assessed by the Tribunal, if not already paid, jointly and severally. The award passed by the Tribunal is modified and the appeal is allowed.