Kotha Laxmikantha vs Kotha Ramaiah and Others

K. Ramaswamy, J.—Kotha Mallareddy, a casual labourer working under a contractor, RW 3, died in an accident which occurred on 8.8.1983. The first respondent was driving the vehicle APU 5875. His widow, the appellant herein, his father and brothers laid the claim for a sum of Rs. 75,000/-. The Tribunal below dismissed the petition holding that the first respondent who is examined as RW 4 did not drive the vehicle rashly and negligently and that the appellant herein is not entitled for the compensation. Thus, the appeal.

PW 1 is the father, RW 1 is the widow, RW 2 is a direct witness, RW 3 is the employer of the deceased and RW 4 is the driver. From the evidence of RW 2, it is seen that the deceased was working as a casual labourer to dig the earth in the pit. At about 1 p.m. on the fateful day, the jeep driven by the first respondent, RW 4, was coming from 1st incline side in a high speed. There was office at 3rd incline. For the purpose of fencing, they found the labourers digging the ground nearby. The jeep driven by the first respondent was coming from 1st incline side in a high speed. As the driver of the jeep wanted to negotiate a curve, the jeep got down the road and landed into a ditch and hit against Kotha Mallareddy; as a result Mallareddy received injuries. When he was taken to the hospital, he succumbed to the injuries. In the cross-examination, the first respondent, RW 4, admitted that on the date of accident the deceased was digging pits five feet away from the road point. The turning referred to in the chief-examination is 90� and 135� respectively. He admitted that he did not apply brakes initially at the turning point. He also admitted that though there was actual necessity, later he applied brakes. It is now an admitted fact that the vehicle was coming on the left side, turned to the right side, crossed the road, fell into the ditch, hit the deceased and caused injuries. From these facts, the question that emerges is, whether it is due to rash and negligent driving of the first respondent. His defence in the counter and also in the evidence is that one drunken man was coming on the road and that he was driving the vehicle, i.e., jeep slowly and cautiously. He saw that man coming from the left side of the road and with a view to save him, he applied brakes and the brakes did not function. Thereby, the vehicle ran to right side and he could not control the vehicle due to failure of brakes. One of the labourers on seeing the vehicle coming ran away and the deceased tried to poke the jeep with the crow-bar, but the jeep ran over him and he sustained injuries. The question is whether it is on account of failure of brakes or on account of rash and negligent driving of the first respondent who is a Divisional Engineer in Singareni Collieries, Godavarikhani. The jeep belongs to Singareni Collieries and the first respondent is its employee. The liability of the owner of the jeep to compensate the victim in an accident due to the negligent driving of his servant is based on the law of Torts. Regarding the negligence of the servant the owner is made liable on the basis of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. The owner''s liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of Torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. A person is not liable unless he contravenes any of the duties imposed on him by common law or by the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. The necessity to provide effective means for compensating the victims in motor accidents should not blind me in determining the state of law as it exists today.

The first respondent raised the plea that it was due to failure of brakes, viz., mechanical defect. It is now settled by the decision of Supreme Court reported in Minu B. Mehta v. Balkrishna Ramchandra Nayan 1997 ACJ 118 , wherein it was held:

In order to sustain a plea that the accident was due to the mechanical defect the owner must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remained hidden.

In that case it was concurrently found by the courts that the accident had occurred when the vehicle hit the deceased who was crossing the road. The defence was that at the time of accident the axle brake ring of the motor lorry came out and the driver lost control over the motor lorry and the same was disbelieved and the doctrine of res ipsa loquitur was applied.

Accordingly, the amount of compensation determined was upheld.

In Lakshmiammal and Others Vs. State of Tamil Nadu, , Kailasam, J. (as he then was) and Ramaswami, J. have held:

The fact of sudden failure of the brakes is not by itself sufficient to hold that the accident was not due to negligence. The fact that the driver of the bus could not have anticipated such failure of the brakes also does not alter the position. In all cases of such latent defects the defendant can get over the liability only if it is further shown that latent defect was not discoverable in spite of reasonable care.

In that case it was held that there was no evidence of periodical checking of the brake system and that therefore, there is no evidence of latent defect. Accordingly, it was held that it was due to rash and negligent driving. The doctrine of res ipsa loquitur would apply to a case where the facts themselves speak of the situation. In this case, it is seen that though the plea that the brake system had failed was raised, due to latent defect, it has not been either stated or proved. The burden is on the respondent to establish that there is periodical check-up of the brakes by the concerned Checking Inspectors. He has taken the vehicle after due check-up of the brakes and had taken all reasonable care to see that there is no latent defect and then only he drove the vehicle.

In a case of motor accident due to failure of brakes, it is but necessary that not only they should plead but also prove by acceptable evidence that there is periodical inspection of the brakes and other mechanical devices and in its absence, the driver and the owner are liable for their failure to take the reasonable care of inspection and for causing injuries due to their rash and negligent driving of the vehicle.

In this case we have seen from the evidence of RW 2, the direct witness, that the first respondent, RW 4, was coming at a high speed and took a curve at 1st incline and he could not control the vehicle and the vehicle went to the roadside and fell into a ditch. The first respondent, RW 4, made an admission in this regard. The distance between the road and the ditch is five feet. The deceased was working five feet away from the road. Under those circumstances, the accident occurred. Therefore, the doctrine of res ipsa loquitur applies and it must be considered that it was due to rash and negligent driving of the first respondent. He admitted at the first instance that he did not apply brakes and thereafter he applied brakes by which time the vehicle went to the roadside and fell into a ditch. Therefore, the plea of mechanical defect is only a device adopted to avoid the blame of rash and negligent driving by the first respondent. Accordingly, I hold that the first respondent drove the vehicle rashly and negligently, as a result of which he caused injuries to the deceased due to which he died.

According to the appellant the age of the deceased was 25 years. Admittedly, the deceased was working as a casual labourer under RW 3 and he was paying Rs. 20/- per day. Therefore, his monthly payment was Rs. 600/-. Excluding 1/3rd of it towards his personal expenses, the dependency is Rs. 400/-. The annual dependency is Rs. 4,800/-. If 16 years'' multiplier is applied, it comes to Rs. 76,800/- which is ultimately rounded off to Rs. 75,000/-. The appellant had already received a sum of Rs. 15,000/- which has to be deducted. After deducting the said amount, the total amount comes to Rs. 60,000/-.

The C.M.A. is accordingly allowed and respondent Nos. 3 to 5 (respondent Nos. 1, 2 and 4 in O.P. No. 5 of 1984) are jointly and severally liable for the payment of the amount. There shall be a decree accordingly with interest at 12 per cent per annum from the date of the original petition till the date of its realisation. No costs.