Smt. Shrimanti and Others vs Sri. Krishna Deva Madiwal and Others

S.R. Nayak, J.—The claimants in a death case, being aggrieved by the impugned Judgment and Award whereby their claim for compensation has been rejected, have preferred this appeal u/s 173(1) of the Motor Vehicles Act, 1988 (for short, the ''Act''). The Additional Motor Accidents Claims Tribunal, Chikodi (for short, MACT), by the impugned Judgment and Award, has held that no actionable negligence can be attributed to the driver of the bus involved in the accident. Quite curiously, the MACT did not award compensation even under the head ''no fault liability''.

We have heard the learned Counsel for the parties and perused the Judgment of the MACT. The learned Counsel for the Appellants would contend that the finding recorded on Issue Nos. 1 and 2 with regard to actionable negligence attributed to the driver of the bus is perverse and suffers from vice of non-consideration of evidence on record in a right perspective. According to the learned Counsel, the evidence adduced by the claimants to prove actionable negligence on the part of the driver of the bus remains unrebutted. The only contention of the learned Counsel for the Respondents 2 and 3 is that the finding recorded by the MACT on actionable negligence is based on evidence, and, therefore, the appeal does not deserve our acceptance.

The case of the claimants-Appellants, in brief, is as follows:

On 16.11.1991, the deceased was proceeding on his motorcycle bearing registration No. CRB 298 on Chikodi- Ichalakaranji road. At that time, a KSRTC bus bearing registration No. CAF 3548 was going ahead of the motorcycle driven by its driver in a high speed. The bus was suddenly stopped without giving any signal and as a consequence, the deceased could not control his vehicle and dashed against the bus from behind and due to the impact the deceased felldown and sustained grievous injuries and ultimately succumbed to those injuries on the spot itself. The claimants attributing actionable negligence to the driver of the bus and contending that the deceased was earning on annual income of Rs. 10,000/- from agriculture and a sum of Rs. 23,000/- from grocery business, claimed total compensation of Rs. 8,00,000/-.

The claim petition was opposed by Respondents 2 and 3 by filing statement of objections. The 1st Respondent who is the driver of the bus involved in the accident, though served with notice, did not contest the case by filing written statement. In the objections statement of the Respondents 2 and 3, except involvement of the vehicle in the accident, all other material allegations contained in the claim petition are denied. On the other hand, it was contended by Respondents 2 and 3 that the accident occurred due to rash and negligence driving of the driver of the motor cycle himself. In the premises of the facts so pleaded in the pleadings of the parties, the MACT framed the following Issues:

Do the Petitioners prove that the accident happened due to the rash and negligent driving of the bus by Respondent-1 ?

Do the Respondents prove that the accident happened due to the rash and negligent riding of the motor cycle by deceased Yallappa ?

Whether Petitioners 2 to 4 were dependents of deceased Yallappa and whether they are entitled to any share in the amount of compensation if any payable by the Respondents ?

Whether the Petitioners are entitled to the compensation over and above interim compensation of Rs. 25,000/- already awarded ? If so, how much ?

In support of the claim, Claimant No. 2 himself examined as P.W.1 and examined another by name Shekar Harigouda Patil as P.W.2 and marked 14 documents as Exhibits P.1 to P.14. On behalf of the Respondents none was examined nor was any document got marked.

The MACT, having appreciated both oral and documentary evidence, answered Issue No. 1 in the negative and Issue No. 2 in the positive. Consequently, the MACT did not find it necessary to decide the other issues framed by it. In the result, the claim petition was dismissed. Since the MACT has not determined the compensation in the event of the claimants establishing actionable negligence on the part of the driver of the bus, there is no necessity for the Court to undertake adjudication of those issues in the present appeal.

The only question that arises for decision of the Court is whether the findings recorded by the MACT on Issue Nos. 1 and 2 are based on substantive legal evidence as contended by the learned Counsel for the Respondents 2 and 3, or they suffer from perversity of reasoning and non-consideration of evidence on record, as contended by the learned Counsel for the Appellants.

After completion of the hearing of the case and in the process of decision-making, my Esteemed and Noble Brother, S.B. Majage, J., expressed opinion that contributory negligence could be attributed to the deceased also who was driving the motorcycle by drawing an inference from the facts of the case. When this was suggested to me, I deeply thought over it with utmost objectivity in the premise of the facts of the case as well as that of law governing the case, perused the lower Court records, but, unfortunately, I could not persuade myself to fall in line with the opinion of His Lordship S.B. Majage, J.,. I, therefore, with utmost humility and reluctance, and high regards to his Lordship''s scholarship and understanding of law and wishing that His Lordship is right and I am wrong, but, in order to honour the dictates of the judicious conscience within me and to uphold the solemnity of the oath of the Judge, I hereby deliver my separate opinion in the appeal.

P.W. 2-Shekar Harigouda Patil, is an eye-witness to the accident. In his evidence recorded on 29.12.1999, he has stated thus:

...I was travelling in KSRTC bus from Chikodi to Ichalakaranji. When our bus was proceeding towards Ichalakaranji from Nej at a distance of 11/2 Kms it was around 12.15 noon. At that time the said bus in which I was travelling was moving in a high speed. At that time a motor cycle driven by the deceased was moving ahead of the bus. The bus over took the motor cycle driven by deceased and thereafter the bus suddenly stopped without giving any signal. On account of this sudden stopping of bus the motor cycle driven by the deceased came from hind side of the bus and dashed against the bus. Thereafter the bus was stopped. Myself and other passengers got down from the bus and thereafter when I went near the motor cycle it was found that the driver of the motor cycle viz., Sri Yallappa Mahadev Naik was no more and he had breathed his last on the spot itself. The bus was stopped in the middle of the road itself. The accident in question occurred due to the fault and due to rashness and negligence and due to non-following of the traffic rules by the driver of the KSRTC bus.

Though P.W.2 was cross-examined, nothing is elicited from him on the basis of which, the Court can discredit his testimony. It is also pertinent to notice that in the cross-examination of P.W.2 not even a suggestion with regard to contributory negligence on the part of the deceased was suggested to him. It is trite that the evidence of an independent witness like P.W.2 has evidentiary value. The question is whether any rebuttal evidence is adduced by the Respondents to destroy the credibility and acceptability of the evidence of P.W.2 who is the only eye-witness in the case. I find none. Respondents 2 and 3 for the reasons best known to them, did not bother to examine the driver of the bus who could have perhaps explained under what circumstance he had to stop the vehicle abruptly and suddenly and whether the deceased had reasonable time and pace to bring the motorcycle to a halt and thereby avoiding collision and guard himself by exercising necessary discretion in the unexpected situation. In the absence of any such rebuttal evidence, the MACT was not justified in doubting the integrity of the evidence of P.W.2 who is undoubtedly an independent witness.

There is absolutely no evidence on record on the basis of which we can infer "contributory negligence" on the part of the deceased. "contributory negligence" means that there is some act or omission on the part of the Plaintiff which is materially responsible for the damage caused to him. To be exact, it is the negligence on the part of the Plaintiff that caused damage to himself. It eventually means failure on the part of the Plaintiff to take reasonable care and caution for one''s own safety. He thereby becomes partly author of his own wrong caused to him due to the accident. The term "contributory negligence" squarely and solely applies to the conduct of the claimant alone. If the claimant is guilty of an act or omission which has materially contributed to the accident and resulted in injury and damages, the matter comes within the concept of "contributory negligence". Although, as a defence for actionable negligence, the defendent can always put forward an establish Plaintiff''s/deceased''s "contributory negligence", it is the burden of the Defendant to prove that there was "contributory negligence" on the part of the injured or deceased, as the case may be.

Very recently, this very Bench, in the case of M.N. Rajan and Ors. v. Konnali Khalid Haji and Anr. MFA No. 5637 of 2001, dated 7.8.2003, had to deal with the pleading requirement, on whom the burden of proof is placed and standard of proof required to establish "contributory negligence". The Bench, speaking through one of us (S.R. Nayak, J.,) held thus:

We also do not find any merit in the alternative contention of the learned Counsel for the owner and the insurer of the lorry that at the worst, it is a case of contributory negligence and therefore, the liability to pay the entire compensation cannot be fastened on the owner and the insurer of the lorry. In the first place, it needs to be noticed that the plea of contributory negligence is not taken in the written statement filed by the 2nd Respondent Insurance Company. The Respondents 1 and 3 did not file the written statements at all. In the case of Pandian Roadways Corporation, Madurai Vs. Karunanithi and Another, it is held that plea of contributory negligence should be taken in the written statement before the Tribunal. Furthermore, in the case of Yatayat Nigam, Udaipur Vs. Union of India (UOI), it is held that where the negligence of Plaintiff''s bus driver was not pleaded by the Defendant, no issue was framed by the trial Court covering contributory negligence and no evidence was led, the Rajasthan High Court took exception to the Judgment of the Appellate Court in making out a new case with regard to contributory negligence.

The existence of a duty of care is essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that the claimant should owe a duty to the Respondent. All that is required is that the claimant should have failed to take reasonable care for his own safety. In Winfield and Jolowioz on Tort (12th Edition), the learned authors speaking about "standard of care" stats thus:

The standard of care expected of the Plaintiff is in general the same as that in negligence itself and is in the same sense objective and impersonal, though some concession is made towards children and probably towards other persons suffering from some infirmity or disability rendering them unable to come up to the normal standard. Putting aside such exceptional cases, a "person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless." The degree of want of care which will constitute contributory negligence varies with the circumstances: The law certainly does not require the Plaintiff to proceed on his way like a timorous fugitive constantly looking over his shoulder for threats from others.

A Division Bench of this Court in the case of General Manager, Bangalore Transport Service v. N. Narasimhaiah and Ors. 1976 A.C.J. 379 held as follows:

If it is found that the negligent act of omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident. In this case the evidence of the witness referred to above clearly establishes that Raju was riding the cycle along when the bus came from behind him and dashed against the cycle. The evidence of the driver of the bus, if scrutinized carefully, clearly goes to show that he did not see at all how the accident happened. It is only after he heard the sound he stopped the bus. Therefore, his story that it was due to the negligence of Raju the accident happened cannot be believed. A person driving a motor vehicle on a busy road like the one in question must drive the vehicle with reasonable care strictly observing the traffic regulations and the rules of the road so as not to imperil the safety of the other persons whether they are pedestrians or cyclists or others who have a similar right to use the highways on which he drives it.

It is well settled that the burden of establishing the defence of contributory negligence is on the Defendant who admits that on account of the conduct of the Plaintiff, his negligence had gone into the background and it was the conduct of the Plaintiff that resulted in the accident: it is not for the claimant to disprove it. In the case of Sharada Bai v. Karnataka State Road Transport Corporation ILR 1987 Kar. 273 (DB) speaking about the burden of proving contributory negligence, the Court held:

The burden of proving contributory negligence is on the cross-objectors in this case. It is not for the Appellant to disprove it. If the tort-feasor''s negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim''s contributory-negligence was a substantial or co-operating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and the conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributory negligence can be - and very often is - inferred from the evidence adduced already on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case.

The question whether an injured/a deceased also contributed negligence for causing accident is indisputably a question of fact, and, therefore, if a Defendant wants to take plea of contributory negligence as a defence, that plea should find a place in his pleading. In the present case, in the written statement filed by Respondents 2 and 3, "contributory negligence" on the part of the deceased is not pleaded. The stock defence of Respondents 2 and 3 as reflected in the written statement is that the deceased died on account of his own rash and negligent driving of the motorcycle. No issue with regard to "contributory negligence" is framed by the MACT nor the Respondents 2 and 3 adduced any evidence in support of the plea of "contributory negligence". Even before us, it is not the contention of the learned standing Counsel for Respondents 2 and 3 that the deceased also contributed negligence for causing accident. Generally speaking, "contributory negligence" on the part of the injured/deceased cannot be inferred on the basis of the evidence on record, if no such plea is taken in the pleading of the Defendant. A Constitution Bench of the Supreme Court in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, while disapproving a finding of ''a de facto agency'' recorded by the Allahabad High Court, which was neither setup nor was the subject matter of an issue, reiterated well- recognized principle that ''no amount of evidence could be looked into on a case not really setup''.

The MACT has referred to Regulations 23 and 24 of the Road Regulations, 1989, to record the finding that the deceased himself was negligent in driving the motorcycle. The reasoning of the MACT in recording that finding is perverse. Where is the evidence, to show that before the bus was suddenly and without signal stopped, the deceased did not keep sufficient distance from the bus? Secondly, it has come in the evidence of P.W-2 that the driver of the bus after overtaking the motorcycle abruptly and suddenly stopped the bus. It shows that the deceased was not given any opportunity to keep sufficient distance after his vehicle was overtaken by the bus. Similarly, reasoning of the MACT in applying Regulation 24 is ex facie perverse and misconceived. Where is the evidence to show that the driver of the bus stopped the vehicle abruptly ''for safety reasons''? The driver of the bus or any eye-witness to the accident, if any, is not examined on behalf of the Corporation to sustain the finding of the MACT. The finding of the MACT is rooted only in surmises and conjectures. The MACT has slipped into a gross error and its conclusion is indefensible.

In the case of Daryaobai and Others Vs. Madhya Pradesh State Road Transport Corporation and Others, a Division Bench of the Madhya Pradesh High Court while holding that if the driver of the vehicle involved in the accident is not examined in the case, an adverse inference can be drawn, was pleased to observe that -

The statement of Kanhaiya Lal as corroborated by the statement of Amol Das goes to prove that the accident had occurred due to rash and negligent driving of the vehicle by the driver of the jeep. It may also be observed here that if a party especially the owner of the vehicle fails to examine the driver of the vehicle involved in the accident, an adverse inference will have to be drawn. This is not the case of Respondent Union of India that the driver is not available or his attendance could not be procured despite efforts being made. Thus, it would be deemed that the driver of the jeep was purposely withheld and was not produced in the Court for examination and cross-examination. In such a satiation, we are inclined to believe Kanhaiya Lal and Amol Das that goes to prove that the accident occurred due to rash and negligent driving of the jeep owned by the Union of India. Even otherwise, it is the driver of the vehicle who is required to keep constant vigil on the road and vehicle coming from opposite direction including other vehicles overtaking the vehicle driven by him and, therefore, he is the best person to depose about the manner of accident. We are, therefore, not in agreement with the finding of the learned Tribunal and further hold that the accident occurred due to rash and negligent driving of the vehicle by the driver of the jeep of Narcotics Department.

In Beeravu Vs. K.K. Damodaran and Others, , the 1st Respondent therein, in his written statement, did not raise any plea of "contributory negligence". However, while P.W.1 was being cross-examined, he was asked by the learned Counsel for the 1st Respondent whether it was not correct to say that the accident happened since the Petitioner placed his hand outside the bus. The Petitioner-denied that suggestion. In that fact situation, the Insurance Company i.e., 3rd Respondent had raised a contention that the injuries were caused due to carelessness of the Petitioner. The Court, while holding that such a contention was not available to the 3rd Respondent in view of Section 96(2) (now Section 149) of the Motor Vehicles Act, held that there was no contention or evidence on the side of the 1st Respondent regarding question of "contributory negligence".

In G.R. Chopra and Ors. v. Udham Singh and Ors. 1989 ACJ 589 where Respondents 1 and 2 therein did not take the plea of "contributory negligence" in the written statement, the Punjab and Haryana High Court held that in the absence of any plea, it will not be permissible for the Counsel to argue on the plea of "contributory negligence" at the appellate stage.

In this case, the evidence of P.W.2 who is an independent witness, satisfactorily proves that the accident had occurred due to rash and negligent driving of the bus by its driver. Quite curiously, the driver of the bus was not examined by Respondents 2 and 3. Therefore, an adverse inference can be drawn against them. Therefore, it is not permissible for the Court to suo motu examine the aspect of "contributory negligence" on the part of the deceased in driving the motorcycle at the appellate stage for the first time, in the absence of plea and issue in that regard.

Alternatively, even accepting that in an appropriate case the Tribunal or the Appellate Court, on the basis of proved facts could infer "contributory negligence" on the part of the deceased/injured, in the instant case, there is absolutely no evidence on record on the basis of which such an inference could be drawn. The evidence of P.W.2 remains unchallenged. If Respondents 2 and 3 were to examine the driver of the bus, he could have been he right person to speak on the question whether the deceased had taken due and expected care to avoid accident after the driver of the bus stopped the vehicle suddenly without any signal. The standard of care expected of a person in such circumstance is what a reasonable man would have done, just as ''actionable negligence'' requires the foreseeability of harm to others, so also "contributory negligence" requires foreseeability of harm to oneself. The Respondents 2 and 3 have utterly failed to discharge the burden that after the bus was stopped by its driver suddenly and without signal, the deceased failed to exercise his faculty of foreseeability of a reasonable, prudent man and if he were to exercise the required standard of foreseeability, he could have prevented the accident. At the cost of repetition, I state, it is the burden of the Defendant to prove "contributory negligence" and not the burden of the Plaintiff. Strictly speaking, the plea of "contributory negligence" on the part of the deceased does not arise for decision-making in this case, particularly at the appellate stage, that too, suo motu. Alternatively, there is absolutely no evidence on record on the basis of which this Court could record a finding of ''contributory negligence'' on the part of the deceased and deny a part of the compensation to his dependents.

In that view of the matter, the findings recorded by the MACT on Issue Nos. 1 and 2 cannot be sustained. Accordingly, I answer Issue No. 1 in the positive and Issue No. 2 in the negative. The resultant position is that the Appellants-claimants are entitled to compensation in terms of the Motor Vehicles Act, 1988.

In the result and for the foregoing reasons, I allow the appeal in part and set aside the Judgment and Award of the MACT and remand the proceedings to the MACT with a direction to decide the remaining issues on merit and pass appropriate award for compensation expeditiously, preferably within there months from date of receipt of the records. The MACT is well advised to keep in mind that the accident took place as far back as on 16.11.1991 and the dependents of the deceased are not awarded even compensation under ''no-fault liability''. Involvement of the bus in the accident is not denied though ''actionable negligence'' on the part of its driver is denied by the Corporation. Alas! Pathetic indeed "A case for introspection for the Court"

S.B. Majage, J.—Though I entirely agree with my learned senior brother that the impugned Judgment and award cannot be sustained and matter requires to be remitted to the Tribunal to determine the amount of compensation payable to the claimants, I respectfully disagree with the finding recorded by him that the death of Yallappa was due to the actionable negligence of bus driver alone since, in my humble opinion, for the reasons to be given below, the deceased also contributed for his death.

It is the case of claimants - Appellants only that when the bus, going in speed ahead to the motorcycle driven by the deceased, stopped suddenly without giving any signal, the deceased - motorcyclist, who was behind the bus, though tried to apply brake, could not control it and thereby dashed against the hind portion of bus, fell down sustaining injuries and the result was his death at the spot itself. To prove this case, P.W.2 has been examined as an eyewitness, though he is not the complainant nor his name finds place in the F.I.R. as an eyewitness. The Corporation denied his travelling in the bus. In fact, it is not known whether charge-sheet has been filed and, if so, against whom etc. So, it cannot be said whether or not said P.W.2 has been cited as an eyewitness to the accident. Still if considered him as an eyewitness, according to him, he was sitting on the back seat near window on the left side in the bus. If so, he seeing motorcycle going ahead to the bus and overtaking it cannot be believed, more so, when that is not even the case of claimants nor found either in the claim petition or complaint/F.I.R. lodged after enquiry with the passengers in the bus or even in the evidence of P.W.1. If really it was so, it would have found somewhere. So, as rightly observed by the Tribunal, the said improvement made by P.W.2, not supported by any material or circumstance, cannot be accepted. Whatever it may be, it is not in dispute that the accident was, when the motorcycle dashed against the hind portion of the bus.

So, what is pleaded and brought on record for the claimants is considered, it is to the effect that, the bus going at high speed stopped suddenly and the deceased motorcyclist, who was riding motorcycle behind the bus, could not control his motorcycle, though tried to apply brake and thereby, accident took place. To believe it, certainly, there should have been skid marks on the road. However skid marks do not find place in spot mahazar Ex.P.5. So, absence of skid marks of the bus is a strong circumstance against the claimants'' case that the bus, while going at high speed, stopped suddenly. So also absence of skid marks of the motorcycle near or behind the place of accident comes against the case of claimants that the deceased motorcyclist, though applied brake, could not control it. That apart, if the bus was going at high speed and the motorcyclist was riding the motorcycle in its normal speed (not in high speed), then the distance between the two moving vehicles would have been more and as such, there would not have been any chance of accident even if the bus had stopped suddenly. Further, the fact that the bus was standing at a distance of 6 feet ahead whereas, the motorcycle was found lying at a distance of about 8 feet behind the place of accident (as mentioned in Ex.P.5 mahazar), also suggests that the accident might not have taken place as it being contended for the claimants. At any rate, if assumed that the bus was at high speed, then, to dash against the hind portion of the bus, the motorcycle also must have come at the same (high) speed, otherwise there would not have been any accident. So, even if the case of claimants with the evidence adduced by them is accepted as it is (without scrutiny), then also, it unhesitatingly shows that the deceased was driving motorcycle either at great speed or, at any rate, without having control over it otherwise, there would not have been the accident because, it is the case of claimants that the motorcycle came from behind the bus and dashed against the hind portion of the bus when the bus going at high speed stopped suddenly as alleged.

In this case, there is nothing on record to show the distance between the bus and the motorcycle, when the bus stopped suddenly allegedly. It need not be said that when a man drives a motor vehicle on the road, he is required to keep some distance between his vehicle and another vehicle, when another vehicle is found going ahead to his vehicle. Having regard to the admitted case of claimants and materials on record, it appears to me that the deceased, who was driving motorcycle, had not kept the required minimum distance between the motorcycle and the bus. Had he kept or maintained such distance between his motorcycle and bus, probably, the accident would have been averted.

At this juncture, it may be noted that general rule is, vehicle should be driven at a speed, which enables a driver to stop within the limits of his vision, particularly having regard to the weather and state of road and if the driver does not exercise these precautions while driving the vehicle, his failure to do so will very likely result in the driver being held in whole or in part, responsible for the collision. In fact, in Rider v. Rider and Anr. 1973 Q.B. 505, their Lordships have held that while driving the motor vehicles on highways, it is folly not to anticipate folly in others. Same has been even reiterated in Rae v. Dumbarton Council 1973 S.L.T. 23.

It need not be said that the test of negligence lies in default to exercise the ordinary care and caution, which is expected of a prudent man in the circumstances of a given case. The duty to exercise such a care and caution including reasonable use of his faculties of sight and intelligence to observe and appreciate danger or threatened danger of injury is undoubtedly on the driver of an automobile. If he fails to do so and such failure is the proximate cause of the injury or death, he is guilty of negligence. In other words, the test is, whether the driver could, by exercising normal diligence and caution, avert the accident.

So far as contributory negligence is concerned, all that is required is, the claimant should have failed to take reasonable care for his own safety. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself and in his reckonings he must take into account the possibility of others being careless. A responsible careful driver does not always assume that other users of the road, whether drivers or others, will behave with reasonable care and he guards against the negligence of others when experience shows such negligence should be common.

In the present case, the event that the bus suddenly stopped without giving any signal (as alleged), might be an unexpected event for the deceased riding motorcycle behind the bus, but that circumstance itself did not absolve the deceased from exercising due care and caution to avert the accident. The question is, whether after seeing the unexpected event ahead of him, the deceased motorcyclist had taken reasonable care expected of him to avert the accident ? For that, in the facts and circumstances, the answer is in negative.

So, whatever has been pleaded and brought on record by the claimants only is considered along with the attending circumstances, the deceased motorcyclist cannot be completely exonerated and held that he did not contribute for the accident in any manner or, that bus driver alone was responsible for the accident.

It is true that the Corporation has not taken the plea of contributory negligence, but, that does not prevent the Court or the Tribunal to hold so, when things speak for themselves, leading to an inference about it. In the case of Sharada Bai Vs. Karnataka State Road Transport Corporation, , a coordinate Bench of this Court has also held that, contributory negligence can be - and very often is - inferred from the evidence adduced already on the claimants behalf or from the perspective facts, either admitted or found established, on a balance of probabilities in the case.

Further, in my opinion, in the present case, the maxim ''res ipsa loquitur'' can be applied because it is admitted by the claimants-Appellants themselves that when the bus has suddenly stopped, the motorcyclist, who was coming behind the bus could not control the vehicle and thereby dashed against the bus. So, according to me, to some extent atleast, the motorcyclist has also attributed for the accident and as such, I respectfully disagree with the view expressed by my learned Senior Brother that the fault for the accident entirely lies with the driver of the bus alone as, in my opinion, the deceased and the driver of the bus have attributed to the extent of 25% and 75% respectively for the accident. Therefore, my finding on Issue Nos. 1 and 2 framed by the Tribunal are recorded accordingly.

Since in view of its findings recorded on Issue Nos. 1 and 2, the MACT has not determined the amount of compensation, it is but necessary now that the Tribunal should determine the quantum of compensation payable to the claimants in accordance with the ratio of the negligence, as has been held by me above and for that, matter requires to be remitted to the Tribunal.

Since there is divergence in our opinion, office is directed to place the matter before the Hon''ble Chief Justice and obtain appropriate orders to post the appeal before the Third Judge for opinion.

Miscellaneous First Appeal No. 2703 of 2000 (MV),decided on 29.4.2004

OPINION

Tirath S. Thakur, J.

Motor Accident Claims Tribunal, Chikodi dismissed MVC No. 1694 of 1991 for payment of compensation on the ground that the deceased was himself responsible for the accident and the fatal injuries sustained by him in the same. Aggrieved by the said order, the claimants appealed to this Court. The appeal came up for hearing before a Division Bench comprising S.R. Nayak, S.B. Majage, JJ.,. While my esteemed brother S.R. Nayak, J., was of the opinion that the claimants had made out a case for award of compensation against the Respondent-Corporation, S.B. Majage, J., expressed a different opinion holding that even the deceased had contributed to the accident to the extent of 25%. The appeal has in that view been referred to me as a third Judge to resolve the divergence. The facts leading to the making of the claim and the filing of this appeal are few and may be recalled at the outset.

The deceased was on 16.11.1991 riding a motorbike on what is known as Chikodi-Ichalakaranji Road. A bus owned by the Respondent-Corporation bearing registration No. CAF-3548 was it appears going ahead of the motor cyclist. Somewhere along the way the bus driver appears to have stopped the bus according to the claimants so suddenly that the deceased who was following on the motorbike was taken unaware. Unable to control the bike he crashed into the bus from behind, fell down and succumbed to injuries on the spot. A claim petition was in due course filed by the claimants for payment of compensation against the Corporation and its driver inter alia alleging that the accident in question had taken place due entirely to the rash and negligent driving of the bus by its driver. The claim was opposed by the Corporation primarily on the ground that the accident in question had taken place not because of the rashness or negligence of the driver of the bus, but because of the rash and negligent act of the deceased himself. It was stated that since the claimants had themselves admitted that the accident in question had taken place on account of the failure of the deceased to control the speed of his motor cycle he was riding, there was no room for awarding compensation against the Corporation. The allegation that the bus was stopped suddenly without any signal was also denied. It was stated that the vehicle in question had been stopped by the driver near Sadalaga Cross and that since the brake lights were in working condition on the date of the accident, the same was a sufficient signal to any vehicle coming from behind, that the bus going ahead was about to stop.

On the above pleadings, the Tribunal framed the following four issues:

Do the Petitioners prove that the accident happened due to the rash and negligent driving of the bus by Respondent-1 ?

Do the Respondents prove that the accident happened due to the rash and negligent riding of the motor cycle by deceased Yallappa ?

Whether Petitioners 2 to 4 were dependents of deceased Yallappa and whether they are entitled to any share in the amount of compensation if any payable by the Respondents ?

Whether the Petitioners are entitled to the compensation over and above interim compensation of Rs. 25,000/- already awarded ? If so, how much ?

In support of the claim petition, while Claimant No. 2 appeared as P.W.1, Sri Shekar Harigouda Patil was examined as P.W.2. The Respondents did not lead any evidence in rebuttal.

The Tribunal upon appreciation of the above evidence answered issue No. 1 in the negative holding that the driver on the bus was not responsible for causing the accident. Issue No. 2 was on the contrary answered in the affirmative. The Tribunal held that the accident in question had occurred due entirely to the rash and negligent driving of the motor cycle by the deceased Sri Yellappa. The claim petition was on those findings dismissed by the order impugned in this appeal.

Learned Counsel for the claimant-Appellants argued that the Tribunal was in error in holding that the accident in question had taken place on account of the rash and negligent driving of the motor cycle by the deceased. The Tribunal had according to the Appellants failed to appreciate that the accident had occurred due entirely to the sudden application of brakes by the driver of the bus in the middle of the road without giving any signal to the motor cycle coming behind the bus. It was further contended that the plea of contributory negligence sought to be raised by the Corporation at the appellate stage was futile in the absence of any such plea having been raised in the objections filed on behalf of the Corporation. It was urged that since the bus was going at a high speed, the deceased motor cyclist driving behind it reasonably expected that in the event of driver intending to stop the bus, he would give a signal to that effect so that the motor cyclist would take proper evasive action to prevent crashing into the bus. No such signal having been given and the expectation of the motor cyclist about what the driver would do in the normal course having been belied, the resultant accident could not be attributed to the deceased. The non-examination of the driver of the bus as a witness was also according to the Appellants a significant circumstance which would show that the sudden stoppage of the bus in the middle of the road was wholly unjustified.

On behalf of the Respondent-Corporation, it was on the other hand argued that the deceased who was following the bus on the motor cycle was under an obligation to maintain a safe distance from the bus going ahead of him to ensure that in the event of the bus being stopped suddenly the motor cyclist does not crash into it. That was according to the Respondent-Corporation even otherwise a well recognised rule applicable to vehicular traffic on the roads. In as much as the accident had occurred on account of the failure on the part of the motor cyclist to maintain a safe distance from the bus and his inability to control the motor cycle when the bus driver applied the brakes, the accident could not be said to have been caused by any rash and negligent act of the driver. It was submitted that even when a plea of contributory negligence had not been taken in the objections filed on behalf of the Corporation, the tribunal could upon proper appreciation of the evidence adduced by the parties record a finding whether or not and if so to what extent had the drivers of the two vehicles contributed to the occurrence of the accident. The fact that the motor cyclist coming from behind had failed to maintain a safe distance and had thereby failed to act as a prudent man placed in his position would have acted necessarily implied that the motor cyclist had also contributed to the occurrence of the accident in an equal measure.

The core issue that arises for consideration is whether the deceased motor cyclist had caused or could be said to have contributed to the occurrence of the accident. Before dealing with that aspect, it is necessary to advert to another argument that was advanced on behalf of the claimants. It was contended that the absence of a specific plea in the objections to the effect that the deceased had himself contributed to the occurrence of the accident ought to prevent the Respondent-Corporation from contending that he indeed had so contributed. It is common ground that the objections filed by the Respondent-Corporation did not raise a plea of contributory negligence of the deceased. What the Corporation had alleged was that the accident in question had taken place due entirely to the negligence of the deceased motor cyclist. That plea was in my opinion sufficient to entitle the Corporation to argue that the accident had occurred, if not wholly, at least in part on account of the negligence of the deceased himself. The fact that the objections did not in specific terms attribute ''contributory negligence'' to the deceased did not make any material difference. The defence taken by the Corporation being wider in scope, any plea of contributory negligence sought to be urged on its behalf, was implicit and therefore open to it at any stage.

That apart, the question which the Tribunal was called upon to answer and which arises even for the consideration of this Court is whether the accident had taken place on account of the fault of the driver of the bus as alleged by the claimants or on account of the fault of the motorcyclist as stated by the Respondent-Corporation. While examining the said question, the Court could in my opinion legitimately come to the conclusion that the accident had taken place neither on account of the fault of the driver of the bus nor that of the deceased motorcyclist but on account of the contributory negligence of both the drivers involved in the accident. The absence of a specific defence based on contributory negligence could not preclude the Court from finding the driver of the bus guilty of negligence and the deceased having contributed to the occurrence of the accident to the extent the evidence on record established the same. It is trite that an argument based on contributory negligence has to be substantiated by the party who advances that argument, but it is equally true that for discharging that burden, the party concerned need not lead evidence. As observed by the Division Bench of this Court in Sharada Bai Vs. Karnataka State Road Transport Corporation, , contributory negligence can be - and very often is - inferred from the evidence adduced on the claimants'' behalf or from the perceptive facts either admitted or found established, on a balance of probabilities in the case. The absence of a specific plea may not therefore be conclusive of the matter nor can the argument that the deceased motor cyclist had contributed to the occurrence of the accident be rejected summarily only because a specific plea in that regard, was not raised in the Objections.

What then is contributory negligence and how far can it be attributed to the deceased-motor cyclist in the instant case has to be answered. Lord Denning, L.J., as he then was in Jones v. Livox Quarries Limited 1952 (2) QB 608 explained ''contributory negligence'' thus:

Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself, and in his reckonings he must take into account the possibility of others being careless.

The above statement of law was approved by the House of Lords in West Wood and Anr. v. The Post Office 1973 (3) AER 184. The legal connotation of the expression ''contributory negligence'' is the Plaintiff''s failure to meet the standard of care to which he is required to conform for his own protection and which is a contributing cause, together with the Defendant''s default, in bringing about his injury. Stated differently, it means nothing more than the failure of the claimant to avoid getting hurt by the Defendant.

Coming then to the facts of the instant case, the deceased was riding his motor cycle behind the Corporation bus which according to the claimant''s version was going at a high speed. That version if accepted as correct given the testimony of Sri Shekar Harigouda Patil, P.W.2, cannot but suggest that even the motor cyclist was driving in pursuit at an equally high speed. An inference to that effect is inevitable in the light of the admitted fact that when the bus stopped, the motor cyclist could not do so and crashed into the former. For the driver of the bus driving the vehicle at a speed which is safe for not only the passengers travelling in the same but also pedestrians on the road including other motorists was an obligation that could not be denied. That he stopped the bus according to the version of P.W.2 in the middle of the road without any signal even if taken at its face value would only mean that there was a failure on the part of the driver to adhere to the rules of safe driving which enjoined upon him to drive at a reasonable speed having due regard for the requirements and rights of other road users like the deceased motor cyclist. Rules of the Road Regulations, 1989 framed by the Central Government u/s 118 of the Motor Vehicles Act, 1988 prescribe the rules which the drivers of motor vehicles have to observe while driving on the road. Regulation 13 of the said Regulations stipulates the signals to be given by drivers of all motor vehicles. Regulation 13 to the extent the same is relevant for our purpose reads thus:

Signals to be given by drivers: The following signals shall be used by the drivers of all motor vehicles, namely:

(a) When about to slow down, a driver shall extend his right arm with the palm downward and to the right of the vehicle and shall move the arm so extended up and down several times in such a manner that the signal can be seen by the driver of any vehicle who may be behind him.

(b) When about to stop, a driver shall raise his right forearm vertically outside of and to the right of the vehicle, palm to the right.

The driver of the bus did not according to Sri Shekar Harigouda Patil - P.W.2, give any signal before stopping the bus, as was expected of him in terms of the above regulation. This version coming from a witness who was seated in the last row, on the left of the bus, may sound unworthy of credence, but, since the driver of the bus did not appear to controvert that version and no other evidence to the contrary was adduced by the Corporation, one could accept as true the version of the witness. Reference may also be made to Regulation 24 of the Regulations which forbids sudden application of brakes except when it is necessary to do so far safety reasons. The driver of the bus has not appeared to explain why it became necessary to suddenly stop the bus, and in particular whether there was any safety reason for doing so. The bus driver was therefore on both counts guilty of negligence, resulting in the accident. That is not however the end of the matter. The motor cyclist who was following the bus was in the very nature of things under an obligation to maintain a safe distance from the bus. That was all the more so in situations where the bus and the motor cyclist were both going at high speed. The Motor cyclist ought to know as a reasonable and prudent person placed in his position that unless he maintained a safe distance from the bus commensurate with the speed at which the two are driving, he was taking a grave risk of crashing into the bus should the bus driver suddenly apply the brakes either out of necessity or even carelessly. The standard of care which the motor cyclist was required to take in such a situation ought to be much higher to be determined by his ability to stop the motor cycle without crashing into the bus should the contingency to do so arise. Demands of prudence apart one of the well recognized traffic rules applicable to vehicular traffic is that a vehicle at the rear ought to maintain a safe distance from the vehicle in front all the time keeping a margin for the possibility of the driver in front committing a mistake or an at of carelessness. Regulation 23 of the Regulations mentioned above gives statutory recognition to what is a rule of prudence that plays a significant role in the maintenance of safety on the roads. It reads thus:

Distance from vehicle in front-The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop.

The deceased had in the instant case obviously failed to maintain a safe distance. The result was that when the bus driver applied its brakes, he was unable to control the motor cycle with the result that he crashed into the bus from rear and paid a heavy price for the same. It is true that the crash was not entirely because of the fault of the motorcyclist, for the bus driver too had committed a violation of the regulations by applying the brakes suddenly but that is far from saying that the accident occurred due entirely to the fault of the bus driver. The contributory negligence of the deceased in driving too close to a speeding bus cannot be ignored while determining the amount of compensation payable to the claimants.

There was yet another angle which the claimants sought to highlight in an attempt to show that the accident had occurred due entirely to the negligence of the driver of the bus. It was argued on the strength of the deposition of Sri Shekar Harigouda Patil - P.W.2, that the bus had overtaken the motor cycle and was then suddenly stopped without giving an opportunity to the motor cyclist to maintain what could be said to be a safe distance. The deposition of Sri Shekar Harigouda Patil P.W.2, no doubt suggests that the motor cyclist was going ahead of the bus and that the bus overtook the same and then suddenly stopped without giving any signal. This version is not however in tune with the case set up by the claimants in the claim petition. The version given in the claim petition on the contrary was that the bus was going ahead of the motor cycle but when the same was suddenly stopped in the middle of the road, the motor cyclist could not apply the brakes or control the motor cycle with the result that he crashed into the bus from behind fatally injuring himself. There is no indication in the claim petition that the accident had occurred on account of the bus overtaking the motorcycle and suddenly stopping without any signal. The version given by Sri Shekar Harigouda Patil P.W.2, is therefore an obvious improvement which the Court shall have to ignore while recording a finding as to the contributory negligence of the two vehicles.

I am for what is stated above inclined to agree with the view expressed by S.B. Majage, J., that the deceased motor cyclist was also responsible to the extent of 25% in the occurrence of the accident. The appeal could therefore be allowed, the order passed by the Tribunal set aside and the matter remitted back to the Tribunal for being disposed of afresh in accordance with law.

Miscellaneous First Appeal No. 2703 of 2000 (MV),decided on 4.6.2004

ORDER

In view of the opinion of the majority, we allow the appeal in part, set aside the impugned award passed by the MACT and remand the proceedings to the MACT with a direction to dispose of the claim petition afresh in accordance with law and in the light of the opinion of the majority. In the facts and circumstances of the case, the parties are directed to bear their respective costs.