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2020 DIGILAW 3 (KER)

Balakrishnan Nair v. P. Vijayan

2020-01-06

ANIL K.NARENDRAN

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JUDGMENT : 1. The appellant is the claimant in O.P.(MV) No.1300 of 1996 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident which occurred on 13.05.1996. The accident occurred near the traffic island at Sasthamangalm in Thiruvananthapuram. At the place of the accident, the appellant, who was a pedestrian, was knocked down by an autorickshaw bearing Registration No.KL-01/3159, owned by the 1st respondent, 3rd driven by the 2nd respondent and insured with the respondent. Alleging that the accident occurred due to rash and negligent driving of autorickshaw by the 2nd respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/- under various heads. 2. Before the Tribunal, the 1st respondent filed written statement contending that the accident occurred due to the negligence of the appellant. The 1st respondent pointed out that the vehicle was covered by a valid insurance policy issued by the 3rd respondent insurer. 3. The 3rd respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the accident; however denying negligence alleged against the 2nd respondent driver. The insurer took a contention that the accident occurred due to the negligence of the appellant, who carelessly crossed the road. 4. Before the Tribunal Exts.A1 to A18 were marked on the side of the appellant/claimant and the appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 2nd respondent driver and also on account of contributory negligence on the part of the appellant. The Tribunal fixed 50% contributory negligence on the appellant. Based on that finding, the liability of the 3rd respondent insurer is limited to 50% of the total compensation amount of Rs.2,31,000/-. The Tribunal held that the appellant is entitled for a sum of Rs.1,15,500/-together with interest at the rate of 9% per annum from 15.11.1996 till the date of realisation and the 3rd respondent insurer was directed to satisfy the award. 6. The Tribunal held that the appellant is entitled for a sum of Rs.1,15,500/-together with interest at the rate of 9% per annum from 15.11.1996 till the date of realisation and the 3rd respondent insurer was directed to satisfy the award. 6. Challenging the finding of the Tribunal on contributory negligence and limiting the entitlement of the appellant to 50% of the amount of total compensation awarded, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3rd respondent insurer. 8. The only issue that arises for consideration in this appeal is as to whether the finding of the Tribunal as to contributory negligence on the part of the appellant can be sustained. 9. The reasoning of the Tribunal as contended in paragraph 7 of the award on the question of contributory negligence reads thus: “7. Issue No.1:-In view of the contentions between the parties, the cardinal aspect to be decided in this case is whether the accident happened due to the negligence of the 2nd respondent as contended by the petitioner. Negligence means the failure to use the amount of care which under the special circumstances of the case a reasonable man would use. It is significant to note that negligence has to be presumed from the facts and circumstances of each and every case. The facts of the instant case would show that on 13.5.1996 at about 11.30 am the petitioner was walking along the public road at Sasthamangalam while so an autorickshaw bearing Reg.No. KL.01/3159 driven by the 2nd respondent in a rash and negligent manner came from south to north and hit down the petitioner as a result of which he sustained very serious injuries. In order to substantiate the petitioners case reliance has been placed by the petitioner on the evidence of PW1 and exhibits A1 to A18. According to PW1 the accident happened due to the negligence of the 2nd respondent. Exhibit A1 is the copy of FIR which shows that a crime has been registered against the 2nd respondent for rash and negligent driving under Sections 279 and 337 of IPC. Exhibit A2 is the charge against 2nd respondent. The charge is under Sections 279 and 337 of IPC. Exhibit A1 is the copy of FIR which shows that a crime has been registered against the 2nd respondent for rash and negligent driving under Sections 279 and 337 of IPC. Exhibit A2 is the charge against 2nd respondent. The charge is under Sections 279 and 337 of IPC. Exhibit A3 is the scene mahazar which shows that the place of occurrence is 65cm west traffic Island situated on the middle of the road. So from the evidence of PW1 and exhibits A1 to A3 it is only to be found that the accident happened due to the contributory negligence of the petitioner also and as such the liability is limited to 50% only. So found.” 10. The document marked as Ext.A2 is the charge sheet in Crime No.901/1996 of City Traffic Police Station, Thiruvananthapuram, a crime registered in connection with the motor accident in question, which occurred on 13.05.1996, in which the 2nd respondent driver was charge sheeted by the Police under Sections 279 and 337 of the Indian Penal Code. As per Ext.A3 scene mahazar, the accident occurred 65cm west of the traffic island situated on the middle of the road. The said fact would show that the accident occurred while the appellant, who was then aged 66 years, was crossing the road at Sasthamangalam. 11. As held by the Apex Court in Ravi Kapur v. State of Rajasthan [ (2012) 9 SCC 284 ], rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 of the Indian Penal Code, 1860. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 of the Indian Penal Code, 1860. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 of the Indian Penal Code is attracted. 12. In Ravi Kapur, the Apex Court held that 'negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence. The court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 13. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 13. The doctrine of 'reasonable care' imposes an obligation or a duty upon the 2nd respondent driver to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years or a senior citizen like the appellant. Therefore, merely for the reason that the accident occurred near the traffic island situated on the middle of the public road, while the appellant was crossing the road, it cannot be concluded that the accident happened due to contributory negligence on the part of the appellant. Moreover, as evident from Ext.A2 charge sheet, the 2nd respondent driver was charge sheeted by the Police for rash and negligent driving of autorickshaw. 14. In New India Assurance Company Ltd. v. Pazhaniammal and others [ 2011 (3) KHC 595 ] a Division Bench of this Court held that as a general rule, production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If police charge sheet does not satisfy their judicial conscience, Tribunals can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence. Paragraphs 7 and 8 of the judgment read thus: “7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge–sheet by the police, such charge– sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge–sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge–sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge–sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge–sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge–sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge–sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge–sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge–sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge–sheet does not satisfy their judicial conscience, the Tribunals can record that the charge–sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. Wherever on the facts of a given case the Tribunals feel that the police charge–sheet does not satisfy their judicial conscience, the Tribunals can record that the charge–sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge– sheet.” 15. Therefore, the finding of the Tribunal that the accident occurred due to the rash and negligent driving of autorickshaw by the 2nd respondent and also on account of the contributory negligence on the part of the appellant cannot be sustained. The said finding is set aside, by holding that the 2nd accident occurred due to the sole negligence of the respondent driver of the autorickshaw, who has been charge sheeted by the Police in Ext.A2 charge sheet. 16. In the result, the appellant/claimant is entitled for the entire compensation of Rs.2,31,000/-awarded by the Tribunal in the impugned award dated 11.10.2001 in O.P. (MV)No.1300 of 1996, together with interest at the rate of 9% per annum from the date of petition, i.e., 15.11.1996, till realisation, with cost. The 3rd respondent insurer shall satisfy the balance 50% of the award together with proportionate interest and cost, within a period of two months from the date of receipt of a certified copy of this judgment. The disbursement of the compensation to the appellant/claimant shall be made, taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. All pending interlocutory applications in this appeal are closed.