Mahboob Ali and Others vs Indrawati and Others

Alok K. Singh, J.—This first appeal has been preferred against the judgment and order dated 14.3.1986, passed by the then Presiding Officer of the Motor Accidents Claims Tribunal (Mr. O.N. Khandelwal as he then was, subsequently elevated to the Bench of this Court and since retired) whereby the claim petition was rejected.

Briefly stated the facts are that the claim petition u/s 110-A of the Motor Vehicles Act was filed by father, brother and sister of the deceased against vehicle owner Lalta Prasad Pandey and National Insurance Co. Ltd. Subsequently on account of death of Pandey, his four daughters and widow were substituted. According to claimants deceased Mohd. Ali aged about 14 years was a motor mechanic and whose monthly income was Rs. 480. On 7.8.1982 at about 6 p.m. on Faizabad-Ayodhaya Road near eye hospital he was going on his bicycle on roadside. Suddenly Tempo No. UTZ 1552 which was being driven carelessly, did not blow any horn and crushed the deceased. He was taken immediately to District Hospital, Faizabad but before he could reach there, he succumbed to his injuries. The vehicle is said to be insured with National Insurance Co. Ltd. On the basis of his aforesaid monthly income after deducting 1/3rd for his own expenses an amount of Rs. 1,72,000 was demanded on the expectancy of life up to the age of 50 years further.

The owner of the vehicle Lalta Prasad Pandey did not file any written statement during his lifetime. After his death his daughter Indrawati Pandey pleaded ignoranee regarding alleged incident. But she disclosed that late Lalta Prasad Pandey had executed a mukhtarnama in her husband''s favour for plying Tempo. In September 1981, late Lalta Prasad had sold this Tempo to one Mahendra Singh on the condition that Mahendra Singh shall henceforth continue to deposit any dues in respect of Tempo and the said Mahendra Singh had engaged a driver for Tempo. But when it came to the notice that Tempo has been detained at Kotwali, it was got released by late Lalta Prasad Pandey. It was also said that the deceased was going very fast on his bicycle on the main road and when the horn was blown he tried to come on the roadside but could not keep balance and suddenly fell and received injuries. Some persons gathered on the place and were under the impression that probably Tempo has caused accident, therefore, they got Tempo stopped. But the driver fled away from there due to fear. It was also said that the amount of claim sought is excessive. From the side of National Insurance Co. Ltd. it was said that all the circumstances leading to the accident have not been disclosed. The insurance of the vehicle was also denied and challenged.

The following issues were framed by the court below:

(i) Whether the accident was caused on account of rash and negligent driving of Tempo driver?

(ii) Whether the vehicle, Tempo No. UTZ 1552, was insured by the opposite party No. 2 on the date of accident?

(iii) As to what amount of claim the applicants are entitled?

While discussing the issue No. 1 the court below observed that in respect of alleged accident PW 1, Mahboob Ali; PW 2, Irshad Ali and PW 3, Qumruddin have been examined. Besides a carbon copy of the F.I.R. has also been filed, according to which the incident took place on 7.8.1982 at about 6 p.m. and report was lodged by one Qumruddin at about 7.25 p.m. saying that Tempo in question was being driven rashly and negligently without blowing any horn due to which Mohd. Ali was hit and while taking to hospital he died. It was also mentioned in the report that Ranveer Singh and Irshad Ali had chased Tempo but Tempo driver fled away from the spot. That the public has pushed Tempo and the cycle is also lying on the spot. Out of the three witnesses PW 1, Mahboob Ali and PW 3, Qumruddin did not see the occurrence while PW 2, Irshad is said to be an eyewitness. According to him he was going from the side of Umar Engineering Works, Khwapura, towards his house in Ayodhya at about 7.30/8 p.m. When he reached near eye hospital he saw the occurrence and gave information to Qumruddin with whom the boy was working. In cross-examination he clarified that he used to close his shop at about 7-8 p.m. and that day also he was going after closing his shop. He took Mohd. Ali to hospital with the help of 4-5 unknown persons. Since they were in a hurry they did not lodge any report at Kotwali Police Station which was in the way. He informed Qumruddin about the accident and remained in the hospital for about one and half an hour. From hospital he and Qumruddin came up to Chowk together and from there Qumruddin went towards Kotwali and he returned to his house. The court below observed that the time told by this eyewitness is not the same as mentioned in the F.I.R. Further, according to the lower court Irshad did not lodge any report at Kotwali Police Station which was in the way which indicates that he neither saw any occurrence nor accompanied the deceased up to the hospital. Qumruddin, PW 3, told that at 5 p.m. some boy had come to his shop to inform about the accident but when he went to the spot he could not find anybody and then he reached the hospital around 5-5.15 p.m. He remained there for about half an hour and then went to Kotwali to lodge report. When he came out of the police station after lodging of the report he met Irshad Ali who was walking there and told about the accident. Prior to it he was told about the accident by some person on the spot. According to him, Irshad had told him that he was travelling in the same Tempo which has caused accident. Witness Ranveer Singh is named in the F.I.R. as an eyewitness and he has been examined as DW 1. According to him, Tempo was going from Chowk towards Sahabganj and when the horn was blown by Tempo the boy was going on bicycle. The boy suddenly got surprised and fell upon the road itself. But Tempo passed by the side without touching the boy. Considering all the aforesaid evidence the court below reached to the conclusion that it has not been proved that due to rash and negligent driving of Tempo the accident was caused. The court below further observed that there is also no admissible evidence on record that Mohd. Ali died due to injuries sustained by him on the spot. In the absence of any documentary evidence it was observed that it cannot be presumed that on the date of accident the vehicle was insured by opposite party No. 2. Accordingly, the issues were decided in negative and finally the claim was rejected.

Aggrieved by the aforesaid judgment and order of the Tribunal this first appeal has been preferred.

Heard Mr. M.A. Siddiqui, learned Counsel for the appellants and carefully perused the entire record. Despite service upon all the respondents including the insurance company, opposite party No. 2, none appeared on their behalf.

At the outset some important facts may be mentioned which are relevant for the final decision of this appeal.

This accident claim was filed by the father, brothers and sisters of the deceased boy aged 14 years 4 months under the old Motor Vehicles Act against owner of the vehicle (Tempo) and National Insurance Co. Ltd. The owner of the vehicle did not file any written statement during his lifetime. After his death his legal heirs were substituted who filed written statement denying the rash and negligent driving by the driver and saying that on the horn being blown by Tempo driver the deceased got surprised and fell down and received injuries, but Tempo did not touch him. Thus the sustaining of injuries by the deceased on the spot and the death on the same day has not been denied. The contention of the claimants that the vehicle was insured was also accepted by the heirs of the owner. But it has been denied and challenged by the insurance company in its written statement. No evidence has been brought on record to prove insurance of the vehicle. Similarly any injury report or post-mortem report have also not been brought on the record.

Learned Counsel for the appellants placed reliance on the following case-laws which are being discussed hereunder along with relevant facts and circumstances of the case in hand.

In the case of Qamrun Nisan v. Vijai Maurya F.A.O. No. 99 of 1993; decided by Pradeep Kant and D.P. Singh, JJ. on 10.2.2004 attention of this Court was drawn towards paras 19, 20 and 35 of the judgment which are as under:

(19) The incident in which Khursheed Ahmad Khan died was not because of sole incident of jumping out from the vehicle but it is coupled with breakage of axle also. In case the axle would have not broken, there was no occasion for late Khursheed Ahmad Khan to jump outside the vehicle. While deciding the dispute as to whether the incident in which Khursheed Ahmad Khan died can be termed as an accident, both the factors, i.e., breakage of axle as well as jumping out of vehicle by Khursheed Ahmad Khan should be taken into consideration simultaneously. Under the dictionary meaning as well as the judgment of the Apex Court where incident has been defined it can be safely said that on account of unexpected event, i.e., on account of the breakage of axle Khursheed Ahmad Khan had jumped out from the bus and succumbed to injuries though it may be a miscalculation on his part. In such situation when the axle was broken and the movement of bus was disbalanced it cannot be ruled out that a person of normal prudence may jump out to save his life. The event was not a voluntary act done in the normal course. The breakage of axle was unexpected one resulting in unfortunate incident in which the deceased died.

(20) The learned Tribunal while considering the present controversy had segregated the incident of breakage of axle from the jumping out of bus by Khursheed Ahmad Khan. The decision taken by the Tribunal on this count was on account of an incorrect approach. Under the facts and circumstances of the case when the breakage of axle as well as jumping out of the bus is considered simultaneously then the collective incident may fairly be termed as an ''accident''. Under the definition referred hereinabove it can be said that it was an unforeseen act and startles a common man of prudence. It was an unexpected event as person of common prudence will never expect that the axle of moving bus will break down. In normal course of life the breaking of axle is ordinarily not expected. Hence fairly it can be said that the incident in which Khursheed Ahmad Khan died was an ''accident''.

(35) In the case of Pushpabai Pur-shottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 , it has been observed that:

(6) The normal rule is that 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. The general purport of the words res ipsa loquitur is that the accident ''speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on Law of Torts, 15th Edn., at p. 306, states: "The maxim res ipsa loquitur applies whenever 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". In Halsbury''s Laws of England, 3rd Edn., Vol. 28, p. 77, the position is stated thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wfierever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant''s negligence, or where the event charged as negligence ''tells its own story'' of negligence on part of the defendant, the story so told being clear and unambiguous". 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. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. Applying the principles stated above we have to see whether the requirements of the principal have been satisfied.

On the strength of the aforesaid case-law the learned Counsel for the appellants submitted that in the case in hand it is proved that alleged accident was caused due to rash and negligent driving and even if rash and negligent driving of the vehicle in question is not proved, the principle of res ipsa loquitur as contained in the Law of Torts, 15th Edn. (accident speaks for itself or tells its own story), is applicable. The burden was upon the respondent to establish that the accident happened due to some other cause than his own negligence. But in the present case the driver of the vehicle who would have been the best witness has not been produced. It is true that one witness Ranveer Singh mentioned in the F.I.R. has been produced from the side of the respondents who has said that Tempo did not even touch the body of the deceased and that he himself got suddenly surprised and fell upon the road sustaining injuries. The learned Counsel further added that even if it is taken to be true then also it was not a voluntary act done in normal course. When a teenaged boy was seen going on his bicycle ahead of Tempo, as has come in the evidence of this witness, the driver of Tempo should have taken more precaution and should have blown the horn from a considerable distance. Had it been so there was no occasion for the child to have taken aback (bhauchaka) so as to loose balance on his bicycle and fell upon the road sustaining injuries. I find substance in these arguments. The finding of the Tribunal on this point is not found to be convincing. If we accept even the evidence given by none other than the witness of the respondents themselves, i.e., Ranveer Singh, DW 1, then it comes out that Tempo was definitely being driven rashly and negligently due to which the horn was blown not from a considerable distance. It was suddenly blown from a short distance due to which the teenaged boy was naturally taken aback and lost his balance and fell down on the road. The principle of res ipsa loquitur has also direct application in the present case and it was incumbent upon the respondents to establish that the accident happened due to some other cause, i.e., own negligence of the boy.

The case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, was also cited. In this case-law, certain new principles have been enunciated. The facts of the case were that the husband of the appellant had suffered from fatal injuries while walking on the road when a jeep capsized due to bursting of front tyre of jeep. Rashness and negligence of driver was not established and, therefore, the Tribunal dismissed the claim for compensation but directed the insurance company to pay Rs. 50,000 only u/s 140. Hon''ble the Apex Court held that the rule of strict liability enunciated in Rylands v. Fletcher 1873 AllER 1, can of course be followed until a new principle is evolved or different satisfaction is created by legislation. Finally, finding no fault liability u/s 140 to be distinguishable from the strict liability rule an amount of Rs. 1,80,000 with interest at the rate of 9 per cent from the date of claim was awarded in favour of the appellant on structured formula basis as set out in the Second Schedule even though the accident had taken place in 1986 when old Motor Vehicles Act, 1939 was applicable.

It may not be out of place to mention here that normally there are seven defences recognised in common law in respect of ''strict liability''. These exceptions are as under:

(i) Consent of the plaintiff (volenti non fit injuria).

(ii) Common benefit.

(iii) Act of stranger.

(iv) Exercise of statutory authority.

(v) An act of God or vis major.

(vi) Default of the plaintiff.

(vii) Remoteness of consequences.

In the present case, I do not find any of the aforesaid exceptions existing.

The learned Counsel placed reliance on yet another case-law of The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, In this case a claim petition was filed against the appellant Municipal Corporation by the parents of the deceased aged about 18 years. The Claims Tribunal awarded Rs. 4,01,250 as compensation with interest at the rate of 15 per cent per annum from the date of application. It was a case under old Motor Vehicles Act and, therefore, some relevant factors for consideration while deciding quantification were given out, i.e., (1) The age of the deceased; (2) Age of the claimant; (3) Marital status of the deceased; (4) Separate income of the claimants and their education; (5) Loss of pecuniary benefit. On that basis the multiplier of 15 adopted by the Tribunal and affirmed by the High Court was found to be on higher side and considering the factor of contributory negligence a multiplier of 10 was adopted in this case. In this case it was alleged that the deceased had suddenly come from the left side of the bus at a very high speed and instead of taking the left turn, took the right turn in contravention of the traffic regulations. When the driver saw the cyclist coming from the wrong side he immediately applied the brakes and halted the bus. But the cyclist dashed against the front side of the bus and sustained injuries which proved fatal. The Hon''ble Supreme Court partly allowed the appeal and held that the negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand. Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term, but is a relative one and rather a comparative term. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. In the present case in hand it cannot be said that the deceased boy had foreseen that any of his act may cause his own accident. It was a simple case of carelessly sudden blowing of horn of the vehicle in question by its driver from a close distance due to which the teenaged boy of 14 years was taken aback and in the process lost balance of his cycle, fell down and sustained injuries and succumbed to injuries while being taken to hospital. Therefore from any angle it cannot be said that it is a case of contributory negligence. In my opinion learned Tribunal has adopted a rather pedantic approach in coming to an otherwise conclusion, without considering the aforesaid points and particularly the principle of res ipsa loquitur and absence of contributory negligence as discussed hereinabove. The learned Tribunal also wrongfully discarded the entire facts and circumstances merely saying that witness Irshad produced by the claimants cannot be believed because he did not reach on the spot at the alleged date and time. This conclusion has been drawn mainly because of some discrepancy in respect of timing. There is slight difference of 1-2 hours and this witness does not appear to be very educated person. Even if his evidence is discarded then also the accident and the factum of sustaining injuries and consequential death of the deceased are duly proved on the basis of the evidence of Ranveer Singh, DW 1 and other evidence as also some admissions on record as has already been discussed.

It appears that Ranveer Singh, DW 1, has tried to shield Tempo driver by saying that Tempo did not touch the body of the deceased. But he admitted that Tempo was stopped by the crowd because according to him they had an impression that Tempo had struck the deceased. At the same time he admitted that the driver had fled away from the place of occurrence. But had Tempo driver been not at fault at all then why the public would have stopped Tempo and why the public had lost temper and pushed (dhakel) Tempo as mentioned in the F.I.R. and why the driver had fled away and did not even appear in the witness-box. Further, as said in the written statement itself Tempo was detained at police station Kotwali obviously because it was found to be at fault. The owner of Tempo late Lalta Prasad Pandey had to get it released. Even for a moment if it is admitted that Tempo did not touch the body of the deceased boy or the bicycle over which he was riding, it cannot be said that there was some contributory negligence on the part of the deceased. As Tempo was coming from behind, the boy had no occasion to see towards his back. The mere fact that he was taken aback after hearing the noise of horn as said by Ranveer Singh, DW 1, himself (ladka bhauchaka hokar dahine gir gaya) shows that the horn was blown suddenly and from a close distance. A sensible driver of common prudence would blow horn from a considerable distance particularly when a teenaged boy was going ahead on a cycle as Ranveer Singh, DW 1, himself had seen. It is needless to say that horn is an integral part of a Tempo (vehicle) and its driving includes blowing of horn. Therefore, it can be safely said that the deceased sustained injuries as a consequence of ''use of the vehicle'' and also due to rash and negligent driving of the vehicle by blowing horn suddenly from a close distance. Even if the vehicle did not touch the deceased its owner cannot escape from vicarious liability.

The learned Tribunal also wrongly disbelieved the presence of the witness Irshad because he did not lodge the report at earlier police station or chowki or did not take the boy for treatment in any of the nursing homes which were available on the roadside while he was taking the injured boy to the hospital. But post event conduct of a witness cannot be predicted and it varies from person to person as different persons react differently to what they witness as has been held in the case of Rammi @ Rameshwar etc. Vs. State of Madhya Pradesh,

Learned Counsel for appellants also pointed out that the respondents did not put their case of specific and total denial in the cross-examination to the witnesses and on account of that also the evidence tendered on the relevant issue deserves to be accepted under the Evidence Act as was held in the case of Sarwan Singh Vs. State of Punjab, I have perused the cross-examination of the witnesses and find some substance in this argument also.

I, therefore, find that the accident was caused due to ''use of vehicle'' in question and also on account of rash and negligent driving of Tempo driver in blowing horn suddenly from a close distance and, therefore, the appellants are entitled to get an appropriate compensation under the Motor Vehicles Act which is a beneficial legislation meant for citizens of a welfare State.

In respect of quantification I intend to apply the structured formula provided under the new Act of 1988 in view of the law laid down in the case of Qamrun Nisan F.A.O. No. 99 of 1993; decided on 10.2.2004. The appellants have claimed an amount of Rs. 1,72,000 as compensation. There does not appear to be any quarrel on the point that the age of the deceased was below 15 years. As per evidence on record his earning was Rs. 10 per day, i.e., Rs. 300 per month and keeping in view the multiplier applicable in respect of person up to 15 years and also after reducing it by 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive and considering other factors also, I come to the conclusion that the appellants are entitled to get a lump sum amount of Rs. 50,000 as compensation with a simple interest at the rate of 6 per cent per annum from the date of application, i.e., from 7.10.1982. This amount would be payable by the respondent Nos. 1/1 to 1/5 only. National Insurance Co. Ltd. is not liable to pay it because it could not be proved that the vehicle in question was insured.

In view of the discussion made hereinabove the appeal succeeds. The claim petition is allowed against the respondent Nos. 1/1 to 1/5 for Rs. 50,000 (rupees fifty thousand) along with simple interest at the rate of 6 per cent from the date of application, i.e., 7.10.1982.