Allahabad High Court
U.P.State Road Transport ... vs Smt. Munesh on 9 July, 2019
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 1060 of 1988
Appellant :- U.P.State Road Transport Corporation
Respondent :- Smt. Munesh
Counsel for Appellant :- S.K.Sharma,Sameer Sharma,Sunil Kumar Misra
Counsel for Respondent :- H.N.Sharma
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This appeal under section 110-D of Motor Vehicle Act, 1939 (hereinafter referred to as the " Act, 1939") is preferred by U.P. State Road Transport Corporation (hereinafter referred to as "appellant") against judgment and decree dated 16.8.1988 passed by Special Judge ( Additional District & Sessions Judge), Saharanpur /Motor Accident Claims Tribunal in MACP No. 80 of 1988.
2. The concept of negligence will have to be visulised in view of the factual scenario as it appears that challenge in appeal is to the fact that the judgment holds the driver of the bus was sole author of the accident and has held his negligence to be hundred percent.
3. While going through the record, it appears that the bullock cart attached with thresher was being plied in middle of the road and was going in front of bus without any lights at the time when the accident occurred i.e. at night. The evidence of driver of the bus has been not believed that he tired his best to avoid the accident by blowing the horn so that the Bullock cart may be moved from its middle path to the correct side . However, the driver of the bus though tried to see that the bullock cart moved to its correct side. the bullock cart moved to is correct side only after a considerable period of time and that is how the accident occurred and the deceased died.
4. On these facts and if on only fact that the driver of the bus run away can it be said and he was the sole author of the accident. The answer would be no.
5. This takes this Court as to what negligence can be attributed to the vehicle going in front of the bus namely the bullock cart. The principles for deciding the negligence are enunciated by the Court below which are as follows :
" 5. It would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.
6. 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.
7. 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.
8. 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.
9. 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."
6. Thus looking to these principles the bullock cart driver having driven his vehicle in middle of the road can be said to be negligent of and being a co author of the accident. However, it appears that the bus must to be driven at a high speed and, therefore, could not control itself and the accident occurred. The driver of the bus therefore can be said to have been negligent to the extent of 90%.
7. It is an admitted position of fact that the deceased was in the bracket of 22 years to 30 years. The Tribunal has awarded a sum of Rs.3,72,000/-. Considering the judgements of Supreme Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(2) TAC 677 (SC) and National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017(0) Supreme (SC) 1050 , I do not think that the amount given in those days requires any interference as the Tribunal has though granted the multiplier of 13 and nothing has been added for future loss of income. Hence, even if we take conservative view. The compensation awarded is just compensation which has been given by the Tribunal. The rate of interest granted is 9% which also does not require any interference by this Court.
8. In that view of the matter this appeal is partly allowed. The record and proceedings be sent back to the Tribunal forthwith. The amount of 10% be re-paid to the appellant herein from the fixed deposit kept and the UPSRTC shall be entitled to recover the said amount from the owner driver of the other vehicle.
9. This Court is thankful to Sri Sunil Kumar Misra-Advocate for getting the old matter disposed of.
Order Date :- 9.7.2019
Mukesh
