Katakam Lakshminarayana and Another vs J. Munnaswamy and Others

K. Ramaswamy, J.—The Appellant laid the claim u/s 110-A of the Motor Vehicles Act, 1939, for short ''the Act'' for a sum of Rs. 32,000/- against the Respondents on the ground that the Appellant sustained grievous injury as a result of the rash and negligent driving of Respondent No. 2 in an accident that occurred on 3.10.1976 at about 5.00 p.m. near Saraswathi Talkies, Hindupur. It is his case that when he was going on the road, the lorry APA 5663 driven by the 2nd Respondent rashly and negligently came from behind without blowing horn and hit on his back. Then he fell down on a heap of stones nearby and sustained grievous injury on the parietal region since a stone entered into the brain portion.

The Tribunal found that the accident did not occur as a result of the rash and negligent driving of the driver. It also held that the Appellant is not entitled to any compensation but if at all he is entitled, only to the medical expenses namely, a sum of Rs. 4,500/-. But the first finding knocks his claim to bottom and so the petition entailed with dismissal, as against which this appeal has been filed.

Mr. Subba Rao, his learned Counsel contended that the occurrence has taken place as a result of the rash and negligent driving is fully established from the direct evidence of P Ws 1 and 4, and the doctor PW 6 who stated the nature of injuries sustained. The accident resulted in the injury to the Appellant and there is direct nexus between the accident and the injury. Therefore, the Appellant is entitled to the compensation claimed.

The claim is resisted by the owner as well as the insurance company contending that the Appellant is the best person to speak of the occurrence. He did not choose to examine himself as a witness. Therefore, there is no acceptable evidence to differ from the conclusion reached by the Tribunal that the occurrence has not taken place as a result of the rash and negligent driving. There is no connection between the accident and the injury sustained. Therefore neither the owner nor the insurance company is liable to pay the compensation.

In view of these contentions, the first question is whether the accident occurred on the fateful day viz., October 3, 1976 at 5 p.m. due to rash and negligent driving of the driver. Admittedly the Appellant did not examine himself as a witness. The Appellant was produced before the Tribunal stating that the Appellant was mentally incapacitated due to the injury received in the accident and is not in a position to understand and give proper answers and therefore the advocate requested permission not to examine him. The advocate for the insurance company disputed the correctness of the statement. Therefore, the Tribunal has noted in the case diary and put some questions to the Appellant for some of which the Appellant gave answers. Therefore, the Tribunal observed that it was left to the advocate to examine or not to examine the Appellant. It is also in the evidence that the Appellant examined himself as a witness in criminal proceeding. Normally the best person to speak of the injury is the victim. The manner of occurrence and how he sustained the injuries could also be explained by the injured. When he examined himself as a witness in the criminal court and when he is aware that onus lay on him to establish that he sustained injuries as a result of the rash and negligent driving of the driver more particularly when the driver is acquitted by the criminal court, ho claimant could shirk to come into the box to establish those facts, nor keep himself back. It is also seen that he was willing to come into the box to tender evidence but his mental faculties were stated to be affected and therefore he was unable to give cogent answers for the questions to be put. No doubt, the doctor PW 6 did not expressly state that the Appellant was not capable of giving evidence for the reason that, after the Appellant was discharged from his hospital, he did not examine him again. In those circumstances, unless there is a strong ground to withhold his evidence, it is normally expected of him to avail himself of being examined as a witness to tender his evidence. The way in which the answers were given before the learned Judge when he was examined is not noted in the proceedings. From this perspective, it is legitimate to find that the Appellant was mentally incapable of giving evidence. Therefore, he did not examine himself. The question is whether that omission itself is sufficient to throw the evidence overboard. If the evidence on record could enable the court to come to a conclusion either way, it is but the duty of the court to consider the same and record the necessary findings.

Here we have the direct evidence of P Ws 1 and 4. Except suggesting to PW 1 that he was not present nor witnessed the occurrence which he has denied, there are no compelling reasons brought out in the cross-examination to discredit the evidence of PW 1. PW 1 has stated that on the fateful day when the Appellant was going to the temple near Saraswathi Talkies, when he was walking on the left side road margin, the lorry came from behind and dashed against the Appellant and PW 1 was behind him. He reiterated in the cross-examination that the lorry dashed against the buttocks of the Appellant. The lorry did not stop after the accident but sped away. This evidence gets corroboration from the evidence of PW 4. PW 4 has stated that the lorry came from behind without blowing horn and dashed against the Appellant. Except the bald suggestion which the witness denied that he did not witness the occurrence and that he is giving false evidence, nothing has been brought out to discredit his testimony. Normally the finding of the Tribunal on fact would not be disturbed by the appellate court, but it is not an inexorable rule. It is to be considered on the facts of each case. The Tribunal found that if the lorry hit the Appellant on his buttocks, it is improbable that he would have fallen on his back. He would have sustained external injuries as a result of the impact and since no external injuries were there, the lower court concluded that the accident did not occur as a result of the rash and negligent driving. Absence of injury is not the sole test though a relevant one. It is already seen that the evidence of the witnesses is consistent. The finding in the criminal court is not conclusive nor binding on the civil court. The Tribunal can de novo go into the question. The direct witnesses are independent and disinterested witnesses and I believe there evidence as trustworthy. Considering from the legal point of view and the factual situation, I have no hesitation to hold that the accident has taken place as a result of the rash and negligent driving of the driver.

The next question is whether the injuries were sustained as a result of the accident. In this context, no doubt, the evidence of the Appellant plays a vital role and his non-explanation may be a factor to be taken into consideration in the absence of any other acceptable evidence on record. The question is whether there is any such evidence. I have seen the evidence of PW 1. He stated thus: "Due to the said impact he fell down on a heap of road-metal heaped on the side of the road." In the cross-examination he reiterated that " ...The stone got imbedded on the top back side of the head." PW 4 stated thus: ".....he fell on the road metal heaped on the side of the road. The stone heap was about 2 1/2 X 3 feet in height." The doctor PW 6 has stated thus: ...He had a rectangular piece of stone stuck in the left posterior parietal region measuring about 5 cm. x 3 cm. I operated on the patient. The stone was extracted. The wound underneath contain multiple fragments of bone which were also extracted. The covering of the brain was also damaged, with the brain matter coming out. The patient has a permanent bony defect in the left side of his head, through which he can feel the pulsation of the brain always which is of psychological value to the patient, because the underlying left parietal bone was damaged." The direct evidence gets corroboration from unimpeachable medical evidence. Except bringing on record that there is evidence of neurological deficits nothing substantial has been brought out to discredit the testimony of the doctor on the nature of the injury caused and the excessive damage done to the brain of the Appellant. The conclusion is that the Appellant sustained injuries to the left side of the parietal region as a result of the accident.

The core contention of the Respondents is that since the injury was not directly caused in the alleged accident, the Respondents are not liable to pay the compensation. The question therefore is, what is the meaning ascribable to the words "in respect of the accident involving ...bodily injury to persons arising out of the use of motor vehicles ...under Sub-section (1) of Section 110 and Sub-section (1) of Section 110-A, is the prime question.

Negligence is a specific tort. The driver is bound under law to blow horn and has the duty to exercise reasonable care to avoid injury to person of passerby or property. For failure thereof he can reasonably foresee that it would likely cause death of or physical injury to person or damage to property. The test of reasonable foreseeability of the risk must be based not only on the existing facts known to the driver but also upon those which he had opportunity to foresee. Foreseeability of particular risk renders the driver liable in negligence. Whether the driver could foresee that Appellant was likely to sustain injury due to hit given by him is the question at issue and whether the nexus between the injury and accident have been established.

In Donoghue v. Stevenson (1932) AC 562 at 580, Lord Atkin held that:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

In Bolton v. Stone (1951) AC 850 at 858, Lord Porter laid that:

It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence.

In Haneys v. Harwood (1934) All ER 103 at 107, Greer LJ. said that:

There can be no doubt in this case that the damage was the result of the wrongful act in the sense of being one of the natural and probable consequences of the wrongful act: it is not necessary to show that this particular accident and this particular damage were probable: it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act.

In Carmarthenshire C.C. v. Lewis (1955) AC 549, Lord Keith of Avonholm said that it is not necessary that 4he precise result should be foreseen. In Miller v. South of Scotland Electricity Board (1958) SC (HL) 20 at 34, the same learned Law Lord held that:

...it is not necessary in my opinion to postulate foreseeability of the precise chain of circumstances leading up to an accident.

In Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) (1961) AC 388, Viscount Simonds of House of Lords speaking for the Board held that the essential factor in determining liability for the consequences of a tortious act of negligence is whether the damage is of such a kind as the reasonable man should have foreseen. The learned Law Lords accepted Bowel, C.J.''s dictum in Sharp v. Powell (1872) LR 7 CP 253, which runs thus:

It was held that one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but, generally speaking he is not liable for damage which is not the natural or ordinary consequence of such an act unless it be shown that he knows or has reasonable means of knowing that consequences not usually resulting from the act are by reason of some existing cause likely to intervene so as to occasion damage to a third person.

Liability does not depend solely on the damage being the "direct'''' or "natural" consequence of the present act; but if a man should not be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural" equally he should not escape liability, however "indirect" the damage, if he foresaw or could reasonably have foreseen intervening events which led to its being done. Foreseeability is thus the test the "direct" consequences test leads to nowhere but the never ending and insoluble problems of causation.

In Hughes v. Lord Advocate 1958 65 ACJ 418 (HL, England), Lord Guest held at page 427:

In order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable; it is sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person.

The facts in that case are that the employees of the post-office, to attend to the cables, opened a manhole of nine-feet deep over which a shelter tent and four paraffin warning lamps were placed at its corners. But they left for tea-break, the Appellant and another boy took one of the paraffin lamps and the ladder into the tent to explore. The lamp accidentally tripped into the manhole and the Appellant was thrown into the manhole and suffered severe burns due to explosion. The question there was whether the Respondent could foresee the accident. In that context all the learned Law Lords decreed the suit for damages holding that it was foreseeable accident despite the expert''s opinion to the contra.

Munkman''s Damages for Personal Injuries and Death, Fifth Edition at page 29, relied on by Mr. Subba Rao, the principle has been stated thus:

It is of course plain that the damage must be the result or consequence of the tort, which is another way of saying that that the tort has caused it or brought it about. But one thing springs from another, and consequences spread out indefinitely like ripples from a pebble thrown into a lake. A line has to be drawn somewhere.

The resultant fruit of the above discussion is that in order to avoid damages for tortious act or omission, one must take reasonable care to avoid acts or omissions. He who commits wrongful acts is responsible for ordinary consequences flowing therefrom. The result of the wrongful acts is the natural or probable consequence of the act or omission. It is not necessary to prove that the particular accident or the resultant damages are probable. In order to sustain claim for damages the essential factor to be established is the foreseeability of the consequence. It is not necessary that the precise result should be foreseen nor is it necessary to postulate foreseeability of the precise chain of consequences leading upto an accident. It is sufficient if the accident that occurred is of a type which should have been foreseeable by a reasonable careful man. It is needless to go on connecting each link in the chain of causations since consequences may spread out indefinitely like ripples from a pebble thrown into a lake. In this case the driver, without blowing horn, hit on the back of the Appellant as a result of which he fell on the heap of metal stones resulting in the injuries. This chain of circumstances are within the risk created by the negligent act of hitting by the driver. Therefore, I have no hesitation to conclude that the Appellant has established the nexus between the accident and the injury sustained and the driver could have foreseen the result i.e., injury to the Appellant. The owner and the insurance company are, therefore, liable for the tortious acts of the driver.

The next question is what is the compensation to which the Appellant is entitled to? In the evidence it is brought out that PW 1 is his brother. He stated that the Appellant was earning Rs. 10/- to Rs. 12/- per day before the accident and as a result of the accident, he could not be able to earn his livelihood. PW 2 also stated that he was running the provisions store and was earning Rs. 10/- to Rs. 15/- per day and the shop was closed after the Appellant was involved in the accident.P Ws 3 and 5 also stated the same. The Appellant is aged about 35 years. The Tribunal held that the Appellant was not doing any business independently and he was not earning. He was depending upon his father and brother. It also held that he did not suffer any permanent disability. On those grounds the Tribunal disallowed the compensation. I am unable to agree with reasoning of the Tribunal.P Ws 1, 2, 3 and 5 have given evidence that the Appellant was earning Rs. 10/- to Rs. 12/- per day by running a provisions store. It is admitted that the father of the Appellant was having a provisions store. Under those circumstances, though he may not be independently having a provisions store by himself, if can be concluded that he is an unmarried man and that he was assisting his father in running the provisions store. Under those circumstances, it can be concluded that at least a sum of Rs. 5/- to Rs. 6/- would be earned by him in assisting his father. The doctor''s evidence clearly mentions that the damage done to the brain is permanent through which he always feels pulsations of the brain substance being visible from the side of the injury. Under those circumstances, his normal mental faculty can be affected. Therefore, it would be difficult for him to pursue his avocation independently to have a livelihood for himself. Therefore two consequences must follow, viz., (1) That there is permanent effect on his mental faculty; and (2) he is a dependant on third parties for his sustenance. Under those circumstances, what would be the reasonable compensation, is the question. In view of the finding that he gets a sum of Rs. 5/- to Rs. 6/- per day and the effect on his mental faculty is permanent, the compensation claimed in a sum of Rs. 32,000/- including medical expenses cannot be said to be exhorbitant. No doubt, it is in the realm of conjectures and a hazard. But, in the case of determination of the compensation, it would be inescapable. Under these circumstances, I have no hesitation to conclude that the Appellant would be entitled to a sum of Rs. 32,000/- as claimed with interest at 6% per annum from the date of the petition till date of realisation. The appeal is accordingly allowed with costs.

The lower court is directed to deposit this amount in an account to be opened by the Appellant in any nationalised bank or a Post Office Savings Bank convenient to him and the amount would be credited to that account and the costs may be paid as per the request of the party.