Delhi High Court
Delhi Transport Corporation And ... vs Smt. Kamla And Ors. [Along With ... on 20 December, 2007
Author: K Gambhir
Bench: K Gambhir
JUDGMENT
Kailash Gambhir, J.
1. This order shall dispose of MAC. App. Nos.437-38/2006 and 495- 96/2006. Both appeals arise out of a common award dated 22.12.2005. In MAC. App. No. 437-38/2006, the respondent/Manoj Kumar has received the injuries while MAC. App.495-96/2006 concerns the death case.
2. The factual scenario in nutshell is as under:
On 18.1.1998 at about 7.00 a.m., deceased Sh.Nathu Ram was driving his two wheeler scooter bearing registration No. DL 1S G 3973 along with his son, Master Manoj Kumar, who was pillion rider of the said two wheeler scooter, to drop him at his school at Punjabi Bagh via Rohtak Road. On their reaching near Inder Enclave, a DTC bus came from opposite direction at a very fast speed and the front right wheel of the bus dashed against the scooter after crossing divider on the road, as a result, both of them fell on the road. Sh.Nathu Ram became unconscious and his son received injuries. They were shifted to Jia Lal Hospital from the site of accident, where Sh. Nathu Ram was declared 'brought dead in the hospital'.
3. I have heard learned Counsel for the parties and have perused the records.
4. The sole contention of counsel for the appellant is that there was no rash and negligent driving by the driver of the bus owned by the appellant/DTC and the accident had occurred due to the act of God and also on account of the deceased Nathu Ram being totally unmindful on the road while driving his two wheeler scooter. Counsel for the appellant has placed reliance on the English decision of Rylands v. Fletcher 1968 LR 3 HL 330 especially in Para No. 4 of the said judgment to contend that the case in hand is covered under the said exceptional clause.
5. Counsel appearing for the respondent, on the other hand, contended that the accident in question had occurred due to the rash and negligent act on the part of the appellant and the same cannot be termed as an act of God. Counsel for the respondent has relied upon the judgment of the Supreme Court Divisional Controller, Karnataka State Road Transport Corporation v. Mahadeva Shetty and Anr.
6. In the present case, accident had occurred resulting into death of one, Mr. Nathu Ram who was driving two wheeler scooter and Manoj Kumar who was a pillion rider when the right wheel of the offending vehicle with its drums and hub all of a sudden came out and hit the scooterist coming from the opposite direction of the other road and due to the impact of the said wheel, both the victims fell down on the road and received serious injuries. Mr. Manoj Kumar who received injuries gave his deposition as PW1 and narrated the sequence of events which led to causing the said accident. It may be true that the driver of the offening vehicle might not have been rash and negligent in driving the bus but the prime question would be whether the accident had occurred due to the rash and 'negligent act' of the appellant in driving the offending vehicle. I do not find any justification in the argument of counsel for the appellant that since there was no evidence on record to prove rash and negligent driving on the part of the driver of the DTC bus, therefore, the appellant cannot be held liable for compensation. Such an argument would mean that the owner or driver of the vehicle did not owe any duty to the public and they are free to bring the vehicle on road in whatever condition the same may be. Any vehicle on the road has to be in a prefect and sound condition so that under no circumstance such a vehicle can become a cause of hitting or hurting others on the road to endanger the precious lives of the people. There is certainly a great lapse and negligence on the part of the appellant in not properly ensuring the worthiness of the offending vehicle and had such care and caution been taken, then, the said accident would not have happened. The Tribunal has rightly discussed the principle of strict liability as propounded in the case of Kaushnuma Begum and Ors. v. New India Assurance Co. Ltd. 2001 AD (SC) 5, and the well settled rules laid down in the authoritative case of Rylands v. Fletcher. The mechanical failure or defect in the bus which, led to the front right wheel with its drum and hub coming out from the running bus cannot be referred to as an act of God or vis majure. It would be relevant to refer to Para 9 of the Apex Court judgment reported in Mahadeva Shetty's case (supra) which is reproduced as under:
9. The expression "act of God" signifies the operation of natural forces free from human intervention, such as lightning, storm etc. It may include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones, tidal waves and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing. For instance, where by experience of a number of years, preventive action can be taken, Lord Westbury defined the act of God (damnum fatale in Scotch Laws) as an occurrence which no human foresight can provide against and of which human prudence is not bound to recognize the possibility. This appears to be the nearest approach to the true meaning of an act of God. Lord Blancaburgh spoke of it as "an irresistible and unsearchable providence nullifying our human effort".
7. In the light of the above discussion, I do not find any infirmity in the impugned award passed by the Tribunal. The appellant is liable to compensate the respondents under the rule of strict liability for their negligent act. The amount of award, if not released in favor of the respondents/claimants shall be released forthwith in both the appeals.
8. Dismissed.
