Chinta Lava Kumar vs G. Visweswara Rao

This Civil Miscellaneous Appeal was filed against the judgment and decree dated 17-1-1990 passed in OP No.45 of 1986 by the Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Krishna at Vijayawada, for not granting the relief prayed for in the petition, on the ground that the driver of the vehicle involved in the accident was not rash and negligent in driving the vehicle at the time of accident.

The learned Counsel for the appellant-petitioner submitted that the finding of the Tribunal that the second respondent has not driven the vehicle in a rash and negligent manner is contrary to the evidence on record and probabilities of the case. He further contends that it is clear from Ex.A3, wound certificate that the petitioner-appellant has received the injuries in a motor vehicle accident and therefore, the Tribunal should have awarded compensation as claimed by the petitioner. He also contends that the Tribunal should have appreciated the fact that the motorcycle was ran over by the lorry, therefore, there is rashness and negligence on the part of driver of the lorry and should have awarded the compensation as claimed by the petitioner. He further submitted that the petitioner has proved the accident and it is for the driver to prove that the accident was not caused due to the rashness and negligent driving of the lorry by him.

To appreciate the contentions raised by the learned Counsel for the appellant in this appeal, it is necessary to state few facts of the case. That on 8-9-1985 the petitioner and his friend were proceeding on Hero Majestic Moped on Machilipatnam-Vijayawada Road and when they reached Poranki on the way, the lorry bearing No.ATT-4466 driven by the second respondent came from their behind in a rash and negligent manner and dashed against the moped, as a result of which the petitioner received injuries on his right ear, on face, there was disfigurement and burn injuries on his left thigh and the right eye was affected due to the injuries and he is not able to see with his right eye. The petitioner was aged about 23 years at the time of accident and he was earning Rs.650/- per month as salary by working as a Composer in Samatha Printers, Governorpeta, Vijayawada, and therefore he claimed Rs.50,000/- as compensation.

Ex.A1 is the FIR registered by Police on the complaint given by friend of the petitioner, which was very much harped upon by the respondent. According to Ex.A1, when the lorry came from behind, the petitioner took his moped to further left and the moped got over some heap on the left side of the road margin and lost balance and fell down, therefore, the petitioner received injuries and his moped was run over by the lorry, hence, the lorry dashed against the petitioner resulting in the accident. The Tribunal accepted the above contents in the FIR and held that the accident did not occur due to the rash and negligent driving of the driver of the Lorry. But the Tribunal did not notice that toddy is not a alcohol. However, the Tribunal calculated the damages payable to the petitioner an amount of Rs.67,405/-under various heads, but ultimately refused to grant the relief on the ground that the accident did not occur due to the rash and negligent driving of the driver of the lorry.

I have gone through the entire evidence recorded by the Tribunal and the judgment and I noticed the fact that the moped on which the petitioner and his friend were travelling was run over by the lorry and it was damaged. Therefore, there was rashness and negligence on the part of the driver. The Tribunal should have held that the accident was occurred due to the rash and negligent driving of the lorry by the driver and should have granted some relief to the petitioner, atleast under no fault liability u/s 92-A of the Motor Vehicles Act. The fact that the Hero Majestic Moped was run over by the lorry establishes that the driver of the lorry was negligent in driving it. Had the lorry driver been deligent and had he taken the minimum care of a prudent man, the accident could have been averted. As such, I would like to conclude that the driver of the lorry was negligent in driving the lorry at the time of occurrence of the accident.

That apart, unfortunately, in this case, the driver of the lorry was not examined. He is the best person to disclose as to how the accident was occurred. In the absence of his evidence, the only alternative available to the Court is to accept the petitioner''s case, applying the principle of "Res Ipsa Loquitur". In similar circumstances, while applying the above said principle, the Supreme Court of India in Basith Kasim Saheb (Dead) by LRs. v. The Mysore State Road Transport Corporation and others, : AIR1991SC487 , observed as under:

"...... In the absence of any unexpected development it was for the driver to have explained how this happened and there is no such explanation forthcoming. In such a situation, the principle of res ipsa loquitur applies. The claimant, in the circumstances, could not have proved the actual cause of the accident and on the face of it was so improbable that such an accident could have happened without the negligence of the driver, therefore, the Court should presume such negligence without further evidence. The burden in such a situation is on the defendant to show that the driver was not negligent and that the accident might, more probably, have happened in a manner which did not connote negligence on his part, but the defence has failed to produce any evidence to support such a possibility. Therefore, it could be said that the accident took place on account of rash and negligent act of driver and the claimant would be entitled to compensation."

The Supreme Court, while accepting the finding of the trial Court on that issue, in the above case, has set aside the judgment of the High Court. The facts of the case in the above referred judgment are that the accident took place on 2-7-1964 at about 12-15 p.m., on the road between Mangalore and Bhaikal and the appellant was travelling by bus belonging to the Mysore State Road Transport Corporation running on the route Bydnoor to Bhatkal and it was involved in an accident on reaching Suregahalla resulting in serious injuries to the appellant. It was contended on behalf of the respondent therein that the road while approaching Suregahalla was on a upgraident and on reaching Suregahalla it was down gradient and the driver of the bus, while reaching the top point, has observed a bullock cart standing unattended at some distance on the left side of the road and he had therefore, to take the bus towards right and accordingly when the wheels of the bus went beyond the metal portion of the road, they sank in the muddy soil due to the weight of the bus and the vehicle toppled on its right side, due to which the appellant therein received injuries. The learned Judges of the Supreme Court have taken notice that the bus was not slowed down when it reached Bullock cart and the bus was running in third gear, therefore, the driver of the bus has not taken any care to slow down the bus, in the result, the accident was occurred. Further the driver of the bus was not examined as witness to speak the reason for causing accident. Therefore, considering the facts and circumstances of the case, the Supreme Court held that the accident was occurred due to the rash and negligent driving of the driver of the bus and that the Mysore State Road Transport Corporation is liable to pay the compensation.

The Apex Court in yet another case, Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, , applying the principle of res ipsa loquitur, observed as under:

"...... Normally it is for the plaintiff to prove negligence but as in some cases 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."

Following the above judgments of the Supreme Court, a Divison Bench of this Court in a decision A.P. State Road Transport Corporation, Hyderabad v. Dodda Somayajulu Sitaramamurthy, 1982 ALT 207, has considered the element of negligence on the part of the drivers and the care the drivers have to take while driving the motor vehicles in public places. In this case also, the claimant who was seated in the rear seat of the bus to its extreme right when the bus reached Nagarjunasagar Darn by about 1-00 a.m. on 8-5-1979, at the check-post lorries were parked on either side of the road, the driver of the bus drove the bus in a rash and negligent manner in between the two rows of stationed lorries. As a result, the rear portion of the lorry hit the glass pans of the window frame at which the claimant was seated, the sliding glass of the window frame fell on his right hand and lost his hand upto elbow. Therefore, applying the principle of res ipsa loquitur, the Bench held that if the accident by its very nature is more consistent with its being caused by negligence of the driver, than by the other causes, then the mere fact of the accident is prima facie evidence of such negligent. In such a case it is on the driver of the vehicle to explain as to how the accident occurred without negligence on his part and he has to show any specific cause not connoting negligence on his part and that he has taken all reasonable care expected of him. In the circumstances of the said case, the Bench held that the A.P.S.R.T.C. is liable to pay the compensation to the victim-respondent.

Negligence, in sixth edition by Charlesworth, at 516 and about reasonable care of a driver of a motor vehicle driving on a high way is defined as under :

"....... The duty of a person who drives or rides a vehicle on the highway is to use reasonable care to avoid causing damage to persons, vehicles or property of any kind on or adjoining the highway. Reasonable care in this connection means the care which an ordinarily skilful driver or rider would have exercised under all the circumstances and connotes an ''avoidance of excessive speed, keeping a good look-out, observing traffic rules and signals and so on'' and must include keeping reasonable control over his passengers,"

The Tribunal applying the legal position discussed above to the facts of this case, but on the basis of the FIR, Ex.A1, has expressed doubt with regard to the occurrence of the accident due to the fault of the driver of the lorry. It has also presumed that the friend of the petitioner cannot give wrong report to the police. It appears that the Tribunal has failed to note the fact that the appellant was driving the moped and he knows how the accident was occurred and the occurrence of accident was proved by him. On the other hand, the driver of the lorry was not examined by the respondent, who is the best person to speak the reasons for the cause of accident. Applying the ratio that emerges from the above decisions of the Apex Court and the Division Bench of this Court, to the facts and circumstances of this case, in the absence of any rebuttal evidence by the respondents, the petitioner''s case has got to be accepted, who stated that the accident occurred due to the rash and negligent driving of the driver of the lorry and it ran over the moped. This unchallenged testimony of the petitioner suggests that the driver of the lorry has not taken proper care to stop the vehicle, even atleast after the impact with the moped. Therefore, I am of the firm view that driver of the lorry drove it in a rash and negligent manner and he was responsible for the accident and the respondents 1 and 2 are jointly and severally liable to pay the compensation of Rs.67,405/-with interest at 12% p.a., from the date of petition till the date of realisation, as determined by the Tribunal.

Accordingly, the appeal is allowed in part with costs.