M/S Oriental Insurance Co. Ltd. ... vs Usha Pandey And Others
2019 Latest Caselaw 5854 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33
 

 
Case :- FIRST APPEAL FROM ORDER No. - 305 of 2000
 

 
Appellant :- M/S Oriental Insurance Co. Ltd. Gorakhpur
 
Respondent :- Usha Pandey And Others
 
Counsel for Appellant :- Aijaz Ahmad Khan
 
Counsel for Respondent :- Vashistha Tiwari,Dinkar Mani Tripathi
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1.     This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant-M/S Oriental Insurance Co. Ltd. Gorakhpur, being aggrieved by award of compensation dated 2.12.199 passed by the Motor Accident Claims Tribunal/IVth Additional District Judge, Deoria in MACT No. 317 of 1997.

2.     It is submitted by Sri Aijaz Ahmad Khan, counsel for the appellant that the accident in question occurred at 5:40 in the morning and the driver of the bus was also negligent. However, the Tribunal wrongly held that driver of the truck to be the sole author of the accident. He further submitted that the vehicles were of equally magnitude and the death of the passengers in UP Roadways bus No. UP-65 B-5352 and, therefore,  Tribunal should have held the driver of the bus solely negligent.  The driver of the truck did not have proper valid driving licence and therefore there is breach of statutory provision of Section 47 of the Motor Vehicle Act.

3.     It is submitted that the quantum awarded for the death of a head constable is on higher side. As against this Sri Vashistha Tiwari appearing on behalf of claimant and Sri Dinkar Mani Tripathi appearing on behalf of UPSRTC have contended that the judgment does not require to be interfered rather the quantum in on the lower side.

4. Having perused the entire judgment, the learned Tribunal has held that the driver of truck was driving the vehicle rashly and negligently whereby the deceased out of the vehicular accident. FIR was lodged against the truck driver. Because of the accident and impact of the accident the bus dashed with a tree. The FIR, charge sheet and non appearance of the driver of truck will not permit this Court to accept the submission of learned counsel for appellant.

5. As far as the licnece is concerned the insurance company has not proved that the driver did not have proper driving licence. The owner has stated in his written statement showed his knowledge that the driver had proper driving licnece.

6. In that view of the matter, the submission that the driver of the truck did not have proper driving licence cannot be accepted and is rejected.

7. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 ( Bajaj Allianz General Insurance Company Limited Versus Smt. Renu Singh and others) decided on 19.7.2016 has held as under: -

"16. The term negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed  without caring to notice that  another vehicle was crossing, then the conduct of driver necessarily leads to  conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act, 1988 contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle should slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck  was driving vehicle on the left side of road would not absolve him from his responsibility to slow down  vehicle as he approaches  intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection. This is termed negligence.

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 from the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. In light of the above discussion, I am of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, Courts cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits.

21. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle."

8. This takes this Court to the issue of quantum, the Tribunal has not granted any amount under the head of future loss of income though the deceased was a Government employee. The rate of interest which is 12% should have been between 7.5% to 9% and therefore these 3% would meet the end of justice.

9. The appeal sans merit and is dismissed.

Order Date :- 9.7.2019/Mukesh