Rosammal and Others vs Ashok Kumar Sethi and Others

Swamikkannu, J.—Negligence is an aspect which has to be decided by the facts and circumstances that are available on record, both oral

and documentary by the Tribunal. Whatever may be the case of the claimants or the respondents or the owners of the vehicle or the companies

which own the vehicle that is alleged to have committed rashness and negligence resulting in the accident, it is for the Tribunal to decide as to who

was responsible for the accident. In other words, the element of rashness and negligence has to be gathered by scrutinising the evidence available

on record and carefully analysing the same so as to come to a proper decision, and if so to what percentage the victim as well as the driver of the

vehicle have contributed to the accident. Though it is a summary procedure contemplated by the Rules so far as the Tribunal is concerned while

dealing with the claim it is but necessary that the elementary principle of law, namely, the Indian Evidence Act has to be followed. Bearing this

principle in mind, the Tribunal has to take up the case, record evidence and discuss the evidence on the points framed by it and come to a definite

conclusion both with respect to rashness and negligence of the driver of the vehicle involved in the accident and/or the injured/deceased as a result

of the accident as well as the quantum of compensation that has to be determined together with the points of law raised by either side during the

course of trial before the Tribunal.

2 The learned Counsel for the appellants has, inter alia, contended that it is for the court to come to the conclusion as to which vehicle was at fault

especially when there is head-on collision and especially when the deceased had suffered injuries as a result of the accident to which he succumbed

and for which the appellants have claimed compensation. It is also the grievance of the learned Counsel for the appellants that though a sum of Rs

30 000/- has been asked for as compensation by the appellants, yet the Tribunal had fixed the compensation only at Rs. 15,800/- without

considering the evidence in proper perspective. In other words, according to the learned Counsel, the amount of compensation asked for should

have been awarded by the Tribunal.

3 In the circumstances, therefore, the point that arises for determination in this appeal in which lorry was at fault which resulted in the accident; in

other words, which lorry was driven in a rash and negligent manner so as to result in a collision; and what is the amount of compensation that is due

and payable to the appellants and by whom?

The learned Counsel for the appellants submits that it is not for the claimants/appellants to prove which lorry was at fault at the time of the

collision between both the vehicles-whether it was the lorry for the employer of the deceased or the other one. It is for the court to come to a

proper conclusion with the evidence available on record as to which vehicle was at fault and to observe that no adequate material had been

enlaced before it is not a sufficient ground to reject the claim of the appellants which has been legally made and especially when whatever that are

available with the appellants had been submitted by the parties before the Tribunal. In other words, according to the learned Counsel for the

appellants adequate materials have been placed before the Tribunal for coming to a determination as to which lorry was at fault.

Mr. K. Ranganathan, learned Counsel for the fourth respondent-Oriental Fire and General Insurance Company, submits that the arguments

advanced on behalf of the appellants now is contrary to the pleadings, since it is the case of the first appellant that the deceased was travelling in

the lorry Bearing registration No. TMC 6988 and that the said lorry TMC 6988 had been driven by its driver in accordance with the rules of the

road and that he was also going at a moderate speed. On the other hand, the owner of the other lorry i.e, MDS 8006 has not adduced any

evidence and he has avoided the witness-box and as such the evidence that had been adduced on behalf of the appellants has to be accepted on

scrutinizing the same, and on such scrutiny, the evidence of PW 1 has to be upheld. The evidence of PW 1 contains sufficient material so as to

decide that the lorry MDS 8006 was driven rashly and negligently by its driver, who has not gone into the witness-box before the Tribunal and the

owner thereof remained ex parte. The very fact that the husband of the first appellant died in the gruesome accident clearly shows that the lorry

MDS 8006 was at fault and it was only due to rash and negligent driving of the said lorry, the occurrence had happened in which the deceased met

with the instantaneous death. Ex. P-1 post-mortem certificate clearly shows the force with which the accident had taken place. Of course, it can be

argued that the lorry in which the deceased was travelling was also driven at the same speed; yet the evidence available on record, both oral and

documentary, clearly shows that the lorry MDS 8006 was at fault and on whose behalf no evidence had been let in, and therefore, this Court finds

that it is the driver of the lorry MDS 8006 was at fault and he had driven the said lorry rashly and negligently as a result of which it has collided

with the lorry TMC 6988 in which the deceased was travelling as a result of which the deceased sustained grievance evous multiple fatal injuries to

which he succumbed. In the instant case before us, it is the grievance of the third respondent-National Insurance Company that even PW 1 is not

an eyewitness for the occurrence and as such this Court cannot fasten the liability on the part of the driver of the lorry MDS 8006 belonging to the

first respondent-Ashok Kumar Sethi and insured with the third respondent-National Insurance Company Limited. Even at the outset the evidence

available on record clearly discloses that there had been no contributory negligence on the part of the driver of the lorry TMC 6988 in which the

deceased was travelling. Under the circumstances, therefore, the principle of res-ipsa loquitur is clearly applicable to the facts of the instant case

before us.

The general purport of the words res ipsa loquitur is that the accident ""speaks for itself"" or ""tells its own story"". Res ipsa loquitur thing speaks for

itself is a principle which in reality belongs to the law of tort and is not applicable to a criminal prosecution. The application of doctrine of res ipsa

loquitur depends upon the nature of the accident and the surrounding circumstances. Where there is evidence to show as to how the accident

happened, there the question of applying the rule of res ipsa loquitur does not arise.

In an action for negligence, the legal burden of proof rests on the claimants. But, barring exceptional cases, it may not be possible for the

claimant to know what precisely led to the accident. It may peculiarly be within the means of knowledge of the driver or the owner. This hardship

to the claimant can be avoided by the application of the maxim ""res ipsa loquitur"" which is not a principle of liability but a rule of evidence. The

principle is that there are certain happenings which do not occur normally, unless there is negligence. Therefore, in the case of such happenings, the

claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident. Having regard to the local conditions prevailing in

this country, when res ipsa loquitur is attracted, it should be given as wide an amplitude and as long a rope as possible in its application to the case

of a motor accident. The defendant cannot escape liability merely by preferring hypothetical explanations, however plausible of the accident.

Where the principle of res ipsa loquitur is attracted the burden shifts to the respondent and the initial onus has to be on the driver/owner to prove

that he had not been negligent. When a prima facie case of negligence of the driver has been established under the doctrine of res ipsa loquitur, it is

incumbent on the part of the driver of the offending vehicle not merely to say that he had acted carefully but to rebut that presumption by proving

that there was no negligence on his part, even though he could not prove how the accident happened.

In the instant case before us, though rough sketch of the place of accident nor particulars relating to the juxta position of the vehicles soon after

the collision were available, yet the doctrine of res ipsa loquitur is clearly applicable and the same is sufficient to establish the ingredients of

rashness and negligence on the part of the driver of the lorry MDS 8006. It is not even the case of the driver/owner of the lorry MDS 8006 or its

insurance company that there was any latent defect or mechanical defect in the vehicle in question. So, there is no scope to consider that aspect.

Under these circumstances this Court holds that the lorry MDS 8006 belonging to the first respondent and insured with the third respondent herein

was at fault and the driver of the said lorry drove the same rashly and negligently at the time of the accident as a result of which the deceased

sustained fatal injuries to which he succumbed. The finding of the Tribunal on this point of rashness and negligence is hereby set aside holding that

the lorry MDS 8006 was driven rashly and negligently and caused the accident.

Now, let us decide the quantum of compensation payable by the person concerned to the appellants herein. The appellants have alleged that the

deceased was employed as a cleaner-cum-mechanic under the second respondent who has examined himself as RW 1 before the Tribunal. PW 1

the first appellant herein has stated that the deceased was employed as a mechanic and was getting a monthly salary of more than Rs. 250/-, the

evidence of PW 1 cannot be rejected. RW 1 has stated that he was paying the deceased only Rs. 3/- per day. Even for a cleaner, during the time

of occurrence, the paltry sum of Rs. 3/- per day would not be a daily wage. Therefore, the normal income of the deceased-cleaner-cum-mechanic

would be Rs. 7-50 per diem. I do not find any valid ground to disbelieve the evidence of PW 1. The Tribunal wrongly came to that conclusion,

and this Court accepting the evidence of PW 1-the first appellant herein, holds that the deceased was earning a sum of Rs. 7-50 per day. The

deceased would have been contributing Rs. 5/- per day to the family after taking Rs. 2-50 per day for his personal expenses. The monthly

dependency comes to Rs. 150/-(Rs. 5 x 30). The annual dependency comes to Rs. 1,800/- (Rs. 150 x 12).

PW 1 the first appellant has deposed that the deceased was aged 40 at the time of his death PW 2 the doctor who conducted autopsy on the

body of the deceased has assessed the age at 45 years from the physical appearance. The deceased was found to be a well nourished person. He

was thus a healthy person and he would have lived for another 20 years. The first appellant is aged 30 and the others are minors. Considering the

uncertainties of life and the circumstances mentioned supra, 15 (fifteen) years'' purchase can be taken as the basis for fixing the compensation.

Multiplying by 15, the compensation for loss of pecuniary benefit to the dependents of the deceased works out to Rs. 27,000/- (Rs. 1,800/- x

15=Rs. 27,000/-). The appellants'' claim for mental agony is not legally permissible.

The appellants claimed compensation for loss of expectation of life. The deceased was employed, who had a family and he was also healthy

person. All these circumstances show that the appellants would have had a predominantly happy life, and the loss of prospects of such

predominantly happy life can be fixed at Rs. 5,001/-. Therefore, the total compensation that would be payable to the appellants herein comes to

Rs. 32,000/-. But the appellants herein have claimed a compensation of Rs. 30,000/- for the death of the deceased. Hence, the appellants are

entitled to a compensation of Rs. 30,000/- for the death of the deceased as prayed for by them.

Under the circumstances, this appeal is allowed and an award for a sum of Rs. 30,000/- is passed in favour of the appellants and against

respondents 1 and 4. The award amount would carry interest at 6% per annum from the date of filing of the claim petition. The appellants herein

are directed to share the award amount in equal proportion. The third respondent-National Insurance Company Limited with whom the lorry MDS

8006 which caused the accident was insured by its owner is directed to deposit the award amount together with interest at 6% per annum from the

date of the petition within two months from today. Appellants 2 and 3 being minors, their share amounts is directed to be invested in any

nationalised bank till they attain majority and their mother and next friend Rosammal first appellant herein is permitted to withdraw the interest that

would accrue on the fixed deposit amounts for the benefit and maintenance of the minor appellants 2 and 3. The award of the Tribunal is hereby

set aside. Under the circumstances, there is no order as to costs.