Sankhadhar Singh vs Kundanlal and Others

Gulab C. Gupta, J.

1 This judgment shall also govern the disposal of M.A.No. 263/ 81 (Smt, SushilaDevi and Anr. v. kundanlal and Ors. Both these appeals concern an accident between car No. MPK 765 and truck No. MPJ 5425 on 26-9-78 at about 3-00 P.M. on Satna-Rewa Road. Misc. Appeal No. 200/81 is by the owner of the car who was also driving the same and is confined to compensation for personal injuries to himself and damage to the car. Appeal No. 263/81 is by persons riding the said car and suffering personal injuries from the accident. Though two claim cases were filed, the Motor Accident Claims Tribunal Satna, by its award dated 2.3.81 has dealt with both of them together. Since facts of the case are similar, the 2 appeals are being dealt with together.

It was alleged that the appellant, on 26.9.78 at about 3-00 P.M. was driving his car on Satna-Rewa Road and going towards Rewa. At that time truck No. MPJ 5425, owned by respondent No. 1 and driven by respondent No. 2, came on the main road from the side lane in high speed and dashed against the left side of the car damaging it completely and causing personal injuries to inmates. It is also submitted that as a result of the aforesaid dash, the car was pushed to the right side of the road and dashed against one Pipal tree. After the accident the respondent No. 2 helped the inmates of the car in coming out of the same and reached appellants Sushila Devi and Usha Singh to the government hospital, Satna on a truck. There is no dispute between the parties that the truck was insured with respondent No. 3 and the liability of the respondent No. 3 was limited to Rs. 50,000/- in case of personal injuries and Rs. 2000/- in respect of damages to the property. It is also not in dispute that the car driven by appellant Shankhdhar singh was neither insured as required by the provisions of the Motor Vehicles Act, 1939 thereinafter referred to as ''the Act'') nor was the road tax of the same paid. The respondent defended the claim by submitting that the accident was not caused due to rash or negligent driving of the truck. According to them the truck was being driven at a very slow speed and had, in fact, stopped at the crossing. It was also alleged that it was appellant Shankhdhar singh who got nervous after seeing the truck and drove the same in high speed resulting in the accident. The learned Tribunal held that the truck was being driven by respondent No. 2 Purshottam singh in a rash and negligent manner which caused the accident. It also held that since the truck was insured, the insurance company was liable to pay the compensation but their liability was restricted to a maximum sum of Rs. 50,000/-. On these findings only an amount of Rs. 2420/- being damage to the car was awarded in favour of appellant Shankhdhar Singh, a sum of Rs. 5850/- in favour of appellant Sushiladevi and a sum of Rs. 300/- in favour of Kumari Usha Singh. All the amounts carried interest� 6% p.a. from the date of the claim i.e. 30-1-79. The appellants are aggrieved by the quantum awarded to them and have preferred these appeals for enhancement thereof.

Since the award has not been challenged by the owner and driver of the truck, the finding of the tribunal that the truck was being driven in a rash and negligent manner has become final. The tribunal found the appellant Shankhdhar Singh guilty of violation of Regulation 6 of the Driving Regulation contained in 10th Schedule to the Act and therefore held that the appellant was guilty of "contributory negligence" and not entitled to full amount of compensation. The submission of the learned Counsel for the appellant, Shankhdhar Singh is mat the learned tribunal has not properly appreciated the defence of contributory negligence and has wrongly held that the claim of the appellant can be reduced on that account. In any case, it is submitted that in the context of facts and circumstances of the case and the further fact that the appellant was driving on the main road, the liability could not be reduced to half, as has been done As to the quantum of compensation, it is submitted that the tribunal has apparently judged the case by applying standards of criminal jurisprudence and has therefore illegally rejected acceptable evidence of Sanlhahadur (P.W.13.). It is also submitted that pecuniary damages as awarded, are in fact illusory and the claim of the appellant for loss on account of agriculture operations should not have been refused. As regards appellants in M.A. No. 263/81, it is submitted that there was no negligence on their part and hence the entire amount should have been awarded against the respondents. It is also submitted, that interest @ 6% p,a. is so low that it encourages non- implementation of the award rather than compensate the appellants.

The English Common Law rule of Contributory Negligence which forms the basis of the law in India is best described by Lord Blackburn in Cayzer, Irvine & Co. Carron Co. (1). "The rule of law," said Lord Balckburn, "is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss will lie where it falls." Application of this rule denied compensation to a plaintiff if he could, notwithstanding the defendant''s negligence, have avoided the accident by use of due care. Harshness of this rule was sought to be avoided by what is known as the rule of "last opportunity'' in the law of torts and is illustrated by the famous, English leading case of Davies v. Mann 2. In this case the plaintiff negligently left his donkey on the road with its leg tied. The defendant driving his wagon at an excessive speed caused the accident and killed the animal. Defence of contributory negligence was set-up to avoid the liability. It was held that although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway or even over the man lying asleep there or the purposely running against a carriage going on the wrong side of the road. Law on the subject has been best summarized in Salmond''s Law of Torts, (18th ed.) at page (481) as under:

Ex-hypothesi in all cases of contributory negligence the defendant has been guilty of negligence which caused the accident: therefore in all cases he could by exercise of reasonable care have avoided the accident; and therefore... he is liable notwithstanding the contributory negligence of the plaintiff. Clearly therefore something more than a mere opportunity of avoiding the accident by reasonable care is required in order to bring the rule in Davies v. Mann In operation.... Subject to certain qualifications it would seems that the true test is the existence of the last opportunity of avoiding the accident.

This rule is also llustrated by the following observation of Ronan L. JU. In Neenan v. Hosford (3).

What the defendant has to avoid is not the consequence of the plaintiffs negligence, but the accident, which is the consequence of the combined effect of his own and of the plaintiffs negligence and without both of which is would not have happened.'''' (Quoted in Salmond''s Law of Torts (18th ed.) at P.481, footnote (86).

House of Lords, however, questioned the correctness of this innovation in Admirality Commissioner v. North of Scotland 4 but before it could add to the confusion, the Law Reform (Contributory Negligence) Act, 1945 was enacted by the British Parliament by providing that'''' where any person suffers damage as the result partly of his own fault and partly the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the plaintiff''s share in the responsibility for the damages". (Section 1). Since then the old common law rule remains replaced by this Statute in England.

Indian courts have found the wordings of Section 110-B of the Act to be somewhat similar to English Law as contained in the Law Reform (Contributory Negligence) Act, 1945 and have applied the same. State v. Lalman Badriprasad 5 YoginderPaul v. Durga Das 6 Punjab State v. Jaswant Kaur, (7), Sindhu v. Gaur Krishna (8), Municipal Corporation, Bombay v. Akatai Tataba Hankare (9), and Prabal Singh Nathubhai v. Shantilal Negjibhai (10) are some of the cases applying this rule in motor accident claim cases. A division bench of this Court in Vidya Devi v. M.P.S.R.T.C. (11) considered the doctrine in all its details and held that the rule as contained in the English Act of 1945 was the governing rule in India. Since then this Court has consistentlly followed the rule as would be clear from Badribai and anrs. Onkar Lal and Ors. (12) and M.P.S.R.T.C. v. Benibai, (13).

What is then the law relating to contributory negligence Salmond in his Law of torts (18th ed.) has summarized the same into the following broad propositions viz:

(i) Contributory negligence does not depend upon any breach of duty as between the plaintiff and the defendant.

(ii) Negligence of both parties, by itself, is not sufficient, but the negligence of each of them must be the contributory cause of the accident

(iii) There is no general duty to anticipate that the other will be negligent and to avoid the effect of that negligence by anticipation;

(iv) The courts demand the plaintiff the care of a man of ordinary nerve and presence of mind and hence what is done or omitted to be done in "the agony of the moment" cannot fairly be treated as negligence.

(v) Any judgment on contributory negligence of children and persons under disability must take into account the deficiencies or idiosyncrasies of the plaintiff;

(vi) In cases where accidents happen because of flagrant and continuous breach of statutory rules and regulations, the courts must be ''''careful not to emesculate that regulation by the side-wind of apportionment."

(vii) The rule that the negligence of a servant in the course of his employment is imputed to his master is applicable when the master is a plaintiff no less than when he is a defendant;

These principles have been culled out from various decisions of English law courts and have been dealt with in detail in the book at pages 485-490 and may be accepted as detailing the law on the subject. Can we accept this to be the law in India? As far as this court is concerned, the division bench decision in Vidyadevi leaves no option that to accept it as such and apply it to determine the liability in the in stant case. Judicial decisions are however uniform and leave no doubt that these principles would govern our legal process.

Has the appellant Shankhdhar Singh contributed to the accident by his rash and negligent driving? The only fault found in his driving by the Tribunal is that he did not slow down while approaching the inter-Section as required by driving regulation No. 6 and thereby contributed to the accident. This regulation reads as under:

The driver on a motor vehicle shall slow down when approaching the road inters., a road junction or a corner and shall not enter any such inter-Section or junction until he has become aware that he may do so without endangering the safety of persons thereon.

This regulation, as its plain reading suggests, is in two parts. The first part requires the driver of the vehicle nearing inter-Section or crossing to slow down and the second part requires the driver of the vehicle desiring to enter into the road not to do so unless he becomes sure of safe entry without endangering others on the road. The words slow down appearing in the first part of this regulation, read in the context of object caught to be achieved by it, mean, to bring the vehicle down to a speed where it may remain under control and ensure accident free passage. It can not be read us ''further slow down'' as addition of ''further'' is not permissible unless the provision as it stands is meaningless, which it is not. In British India General Insurance Co. Ltd. v. Captain Itbar Singh (14) the Supreme Court refused to add the word ''also'' in Section 96(2) of the Act, as it was not permissible by rules of interpretation. Similarly, the Supreme Court refused to add the words ''to him'' in Section 42(1) of the Act in K.M. Vishwanatha Pillai v. K.M.S. Pillai (15) as it was unnecessary. Under the circumstances, this regulation will have to read as it is and without adding any word to it. So read, the provision can not be read a requiring the vehicle to further slow down if it is already slow. What would be the slow speed of the vehicle would depend on various factors and its requirement may differ from case to case. In some conceivable cases it may even mean to stop, if it was necessary to avoid the accident. Under the circumstances, this Court is not able to agree with the Tribunal that by not slowing down the vehicle, the appellant contravened the regulation and there by rendered himself liable to ''negligent driving. Negligence only means the failure to do some act which a reasonable man in the circumstance would do, or doing some act which a reasonable man in the circumstances would not do. So understood, negligence is nothing but a breach of duty to take care and the requirement of the care is that of a man of ordinary prudence. Clear, therefore, no finding of negligence of the appellant could have been reached without a finding that the omitted to ''slow down'' when the circumstances required him to do so. In case it be held that his vehicle was already slow, there would be no duty to further slow down and hence no question of negligent driving would arise.

Was the appellant really guilty of negligent driving? He as P.W. 1 has deposed that he was driving his car at a speed of 15-20 miles per hour (Para 4). In cross examination, he boldly admitted that he maintained the same speed and did not slow before approaching the crossing. Can a speed of 15-20 miles an hour be termed as ''high speed'' on the highway? The answer must be in the negative. Indeed in some of the western countries the appellant may not be permitted to drive on a public highway at this speed as he would surely cause a traffic jam. It has also come in his evidence that there was no traffic on the highway at that time. Map, Ex/P-1 would show that the road on which the appellant was driving was Slate Highway No. 6 and was Wide enough to let two vehicles pass. Photographs of the accident on record indicate that the appellant''s car had entered into the crossing and was almost half way when the accident happened. These photographs also show that there was enough space on the left side of the car to permit the truck to pass into the highway. These circumstances would clearly show that there was no necessity for the appellant to further slow down his vehicle. It is therefore difficult to infer any rash or negligent driving on the part of the appellant only because he did not slow down before approaching the crossing. Once the driver of the vehicle on the main road has already entered into the inter-s. or crossing, the second part of the rule become more important and the driver of the vehicle wanting to enter into the highway must not do so unless he is fully satisfied of a safe and accident-free entry. Damage to the left front door of the car would indicate that it was not a head-long collision and the car had crossed the major part of the inter- Section. In such a situation, his not slowing down his car before approaching the inter- Section would at the most, amount to ''inoperative negligence'' and would not be contributory factor to the accident. It must therefore be held that facts and circumstances of the case do not leave any scope for applying the rule of ''contributory negligence'' in the instant case.

Can it be said that driving the uninsured car without payment of road tax amounts to ''contributory negligence'' of the appellant? The submission of the learned Counsel for the appellant is that it may expose the appellant to a prosecution and penalty, but it is, in no way, connected with the accident and hence cannot be accepted as amounting to ''contributory negligence''. Section 94 of the Act prohibits every person from using a motor vehicle in a public place, unless there is in force a policy of insurance in relation to the use of the said vehicle. Since the fact that the car was not insured as required by this provision is admitted, it may be held that driving the car on the highway was in violation of this provision. As a necessary consequence, it must also be held that the appellant is liable to punished with imprisonment or fine u/s 125 of the Act. This however, does not, without anything more, make him liable for the accident. An uninsured vehicle may or may not meet with an accident and the changes of such a vehicle meeting an account are as good or bad as in case of an insured vehicle. There is thus no direct relationship between the insurance and the accident. In case it was suggested that if the car was not brought on the road in obedience of this provision, accident would not have happened, the relationship between the insurance and accident would be rather remote and the negligence in bringing the vehicle on the road would not be contributory to the accident. Even if it was assumed that the appellant was negligent in bringing the car on the road without a valid insurance policy, his this negligence would have nothing to do with the accident, if the accident was caused because of rash and negligent driving of the respondent driver. In other words, unless the negligence of the appellant was an operative cause of the accident, no question of contributory negligence can arise. In such a case, negligence of the appellant did no more than account for his being in the place where the negligence of the respondent driver operated. The governing principle in this regard is laid down in Jones v. Livox Quarries Ltd. 16 and is that "the plaintiffs failure to exercise reasonable care for his own protection does not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him''''. Under the circumstances the second principle stated in Para 6 above would operate and non-insurance of the car, by itself would not be sufficient to infer contributory negligence. There is enough judicial opinion in favour of this view, Gobald Motor Service v. Veluswami 17 Dharamchand v. Shiv Pat and Ors. 18 and Mohinder Singh v. Ramesh Kumar 19 are some of the decided cases on the point and support the conclusion that contributory negligence is not to be presumed merely because the claimant drove the vehicle in violation of some rule or regulation. Then if the claim was being dealt with under equity by an Equity-Court, this may have effected the conclusion, but it can not so effect the conclusion where the court is dealing with a statutory provision and is determining the liability for ''just compensation''. The word ''just'' as appearing in Section 110-B of the Act must not only have a rational relationship with the compensation, but also with the cause which results in compensation. Under the circumstances, though this Court is notable to appreciate the attitude and conduct of the appellant in driving the uninsured car without payment of taxes, it is not able to hold him guilty of contributory negligence.

The up-shot of the discussion aforesaid is that the accident occurred due to rash and negligent driving by the respondent driver and the appellant has not, in any manner, contributed to the said accident by his negligent act. Under the circumstances, the respondents alone are jointly and severally liable to pay the compensation.

What then is the extent of liability ? As far as damage to the car is concerned, the whole ease of the appellant is based on the evidence of Santhahadur Singh (P.W.13) who was the person responsible for getting the same repaired. His evidence has not been believed because he has not produced necessary vouchers to support his claim for the amount spent in the repair. This witness had produced receipts Ex.P-10 to P-57. According to the tribunal the account was prepared by this witness and since everything was prepared at the same time, it could not be believed. The reasoning is rather surprising. Ex.P-58 is the summary of vouchers Exs.P-10 to P-57 and therefore it should not surprise anyone of it was prepared at one sitting. This cannot surprise anyone of it was prepared at one sitting. This cannot therefore be the ground for rejecting the evidence of Santbahadur Singh. As far as cash-memos and vouchers are concerned, they have been rejected because they do not mention the car number. Several vouchers however bear the car number. Though many of them do not bear the car number, this, by itself, cannot be the reason for holding that these articles were never used in the repair of the car. It is common knowledge that when extensive repairs to a car are required to be done, materials and parts have to be purchased from different places. Person purchasing the material does not go to the shop with the car, and therefore the seller does not note down the number of the car. In case the respondents felt that any of these vouchers do not relate to the appellant''s car, they should have required the witness to explain by cross-examining him. Under the circumstances there was no justification for rejecting this evidence and hence total claim of Rs.7405/- deserves to be awarded. The amount, considering the extent of damages, does not appear to be excessive. The appellant is therefore entitled to Rs.7405/- as cost of repairs to the car instead of Rs. 3250/-. Under the circumstances he is entitled to Rs. 8155/- on this count. Since the entire claim has to be awarded against the respondents, the appellant is awarded a sum of Rs.8155/- as compensation for damage to the car and Rs.770/- for the injuries suffered by him. The award to that extent is modified and appeal allowed.

The appeal of the inmates travelling in the car i.e. M.A.No. 263/81 may now be. considered. A perusal of the award would indicate that the tribunal has applied the correct law and has appreciated the facts of the case in proper perspective. Award of general damages of Rs. 10, 000/- and 1700/- cannot be held to be unreasonable so as to require reconsideration by this court. The learned Counsel for the respondents also gave this court the impression that these appellants would remain satisfied with the award in case the whole amount is awarded against the respondents. Since it has already been held that there is no contributory negligence on the part of the appellant Shankhdhar singh the entire amount of Rs. 11700/- in favour of Sushiladevi liability of the respondents.

The grievance of the appellants about the rate of interest may now be considered. The tribunal has awarded interest @ 6% from the date of this claim. This amount according to the appellants is so low that it encourages breach of the award, besides denying just compensation. The accident has taken place on 26.9.78 and hence it is clear that the appellants have been denied the benefit of the amount for a sufficiently long period. Section 110-CC has been inserted into the Act w.e.f. 2-3-70 with a view to clarify the authority and power of this court to award interest. The provision entitled this court to direct payment of simple interest at such rate and from such date not earlier than the date of making the claim. Clearly therefore the discretion is vested in this court to award interest while awarding the compensation. The discretion has however, to be exercised in a judicial manner and to promote the interest of justice. Award of interest @ 6% p.a. is really illusory. It is common knowledge that no money from any source is available to any one at this rate. Even the Government pays 11 -1/2% interest on term deposits. The bank loan rates are still higher and run upto 16%. One of the purpose of awarding the interest should be to see that the award is honored and implemented without any delay. In case non-payment of compensation is more profitable than payment thereof, the tendency to disobey the award would grow. Such a tendency cannot be encouraged by this court or by any judicial process. In this context, an interest of 6% p.a. must be held to be low and sufficient to tempt the respondents to delay payment of compensation and continue using the amount for their own business. In satya Wati v. Hariram 20 the court observed that interest 6% p.a. from the date of award was not reasonable and hence the court granted interest @ 9% p.a. In Channo Devi v. Het Ram 21 a Division Bench of Punjab and Haryana High Court held 12% as the proper rate of interest More recently in Chameli Wati v. Delhi Municipal Corporation 22 the Supreme Court awarded interest @ 12% per annum from the date of application. This would then establish that 12% per annum was the reasonable rate of interest, under the present circumstances. In this view of the matter award of interest @ 12% p.a. from the date of the claim would be just and proper and is accordingly ordered.

In view of the discussion aforesaid these appeals succeed and are allowed to the extent mentioned above. Since the liability of the respondent No. 3 in relation to damage to the car is limited to 2000/- only the extra awarded amount in M.A. No. 200/81 shall be paid by the other respondents who are jointly and severally responsible for the same. Appellants are also entitled to costs of this appeal. Counsel fee Rs. 250/- in each appeal.