Bombay High Court
Antonio Milagres Fernandes (Dead) ... vs Pramod Vijayan And Anr. on 13 January, 1989
Equivalent citations: 1990ACJ411
JUDGMENT G.F. Couto, J.
1. This appeal is directed against the judgment dated 3rd May, 1985, whereby the learned Presiding Officer of the Motor Accidents Claims Tribunal, Margao, dismissed an application for compensation filed under Section 110-A of the Motor Vehicles Act by the original appellant Antonio Milagres Fernandes.
2. The said application was filed pursuant to an accident that occurred on 17th April, 1982 at Navelim and as a result of which the original appellant sustained serious injuries which made him unconscious for a long period of time. The case of the original appellant was that he was standing with his cycle by the roadside at Navelim when a motor cycle driven by the first respondent came to the place with two pillion riders and dashed against the appellant who, as a result, was thrown in a ditch and became unconscious. On the basis of these facts, the original appellant claimed a compensation of Rs. 27,000/-.
3. The learned Presiding Officer of the Claims Tribunal after discussing the evidence adduced by the parties, arrived at a finding that the accident had occurred due to the negligence of the victim of the accident himself and therefore, he dismissed the petition.
4. Being aggrieved the original appellant filed the present appeal on the ground that the trial court has erred in dismissing the petition on the ground that the rash and negligent driving of the motor cycle by the first respondent has not been proved. Mr. Kantak, the learned counsel appearing for the original appellant, elaborating the above grounds of the appeal and after taking me through the evidence in detail, submitted that there is no doubt that the appellant ought to have been more careful while crossing the road with his cycle to proceed to Sirvodem. The road leading to Sirvodem was on the right side of the appellant and the motor cycle was coming towards Margao on its own side. Therefore, undoubtedly, it was the duty of the appellant to be careful but the place where the accident occurred has a clear visibility for a long distance since the road in that place is straight. Therefore, the respondent No. 1 had the last opportunity of avoiding the accident since admittedly there was a street light in the place and consequently, the original appellant must have been seen by the motor-cyclist. There was no other traffic at the time and as such, the first respondent could have avoided the accident either by reducing the speed of his motor cycle or by taking his vehicle to his right side and avoiding the collision with the cycle. The learned counsel further brought to my notice that the panchanama of the scene of the offence shows that the impact of the motor cycle was with the rear wheel of the cycle, a circumstance that impliedly shows that the cycle was already about to enter the side road leading to Sirvodem. In these circumstances, according to Mr. Kantak, the doctrine of last opportunity was attracted and consequently, the learned Judge ought not to have dismissed the petition. Reliance was placed in support of this submission on Jang Bahadur Singh v. Sunder Lai Mandal, 1958-65 ACJ 154 (Patna) and Municipal Corporation of Greater Bombay v. Govind V. Pethe, 1985 ACJ 51 (Bombay).
5. Mr. Bruto D'Costa, the learned counsel appearing for the first respondent, however, joined issue and submitted that there is no reason whatsoever for interference with the impugned judgment, He submitted that the very admission of the learned counsel appearing for the appellant that he was negligent in crossing the road to enter the Sirvodem road is sufficient to destroy the case of the appellant. According to Mr. Bruto D'Costa, the theory of last opportunity, instead of favouring the case of the appellant, runs counter to him since, admittedly, the motor cycle was being driven with some speed and had lights on. This being so, the original appellant ought not to have taken the risk of crossing the road at that particular moment. The last opportunity to avoid the accident was, therefore, lying with the original applicant.
6. The learned Presiding Officer of the Claims Tribunal dismissed the application for compensation on the ground that the appellant has come out in his petition with a case that the accident occurred when he was standing with his cycle on the right side when he was dashed by the motor cycle driven by the first respondent. He observed that in substantial variance with this case, CLW 3 Camilo Barreto stated that the appellant was riding the cycle at the time of the accident and was crossing the road to go to Sirvodem. He further held the view that the only witness examined by the appellant to support his case is a false witness. This finding was arrived at by the Tribunal on the ground that admittedly the accident occurred when the motor cycle was coming from Canacona side and proceeding towards Margao, but the witness stated that the motor cycle was coming from the Margao side when the accident occurred. The learned Judge, however, failed to appreciate that when the accident actually took place the motor cycle driven by the first respondent was coming towards Margao and that the appellant was crossing the road to his right side to enter the Sirvodem road. There was an impact between the two vehicles and admittedly, the appellant was thrown into a ditch and became unconscious as a result of the injuries sustained by him in the accident. These facts are not denied by the first respondent, his defence being only that the original appellant had suddenly started crossing the main road to enter the Sirvodem road. Therefore, the question to be seen and to be determined was whether in fact the appellant had crossed the main road all of a sudden without giving any time to the first respondent to swerve his vehicle and avoid the accident or to apply the brakes and prevent the impact. It is the case of the first respondent that the original appellant crossed the road when the motor cycle was hardly at a distance of about one metre from him and therefore, he could not swerve the vehicle and the only thing that he could do was to apply the brakes, although unsuccessfully, in order to avoid the accident. This version of the accident given by the first respondent cannot be accepted in its totality. In fact, it is not in dispute that the accident occurred in a place where the visibility is extremely good since the road is straight, that there was a street tube light in the very place of the accident and that therefore, both the appellant and the first respondent could see each other from a considerably good distance; and that the panchanama recorded by the police shows that the impact of the motor cycle with the cycle was on the rear wheel of the latter vehicle. This being so, it becomes exceedingly clear that the cycle had already started crossing the main road and had covered a good portion of the said road when the collision took place. In fact, the respondent No. 1 himself stated that he was driving the motor cycle at a distance of about one metre from the edge of the road. If this is so, the cycle most probably had almost crossed the main road and this circumstance nullifies the story brought by the first respondent that the crossing of the road by the appellant took place when the motor cycle was about only one metre from the cycle. The facts show that the distance must have been considerably greater since the motor cycle was moving at a speed of more than 40 km. per hour. In these circumstances, although it is difficult to say that it would have been possible for the first respondent to avoid the accident, undoubtedly, there exists a case of contributory negligence since the appellant also should not have attempted to cross the road when the motor cycle was coming with some speed.
7. I have already mentioned that Mr. Kantak submitted that the doctrine of last opportunity is attracted in this case and in this regard he has placed reliance on the case of Jang Bahadur Singh v. Sunder Lai Mandal, 1958-65 ACJ 154 (Patna) andMunicipal Corporation of Greater Bombay v. Govind V. Pethe, 1985 ACJ 51 (Bombay). As observed in Jang Bahadur Singh's case:
The general rule, as such, is that the plaintiff must establish a breach of duty and its causal connection with his injury. If he fails to prove either of them, his action fails. The mere proof of some injury is not enough. He must, therefore, prove not only that the defendant was negligent but also that the defendant's negligence was the cause of the accident.
Therefore, if the accident could be avoided by the other party, the doctrine of last opportunity arises and the person who could have avoided the accident becomes liable in spite of the fact that originally there was negligence on the part of person who was victim of the accident. This doctrine was followed in Pethe's case, 1985 ACJ 51 (Bombay), where the learned single Judge of this court observed as under:
In matters of collision between motor vehicles, the common law rule which treated contributory negligence as a complete defenceas not only reducing the plaintiffs recovery but defeating it entirelyhad to be modified by the 'last opportunity' or the 'last clear chance' doctrine. It permitted full recovery to a plaintiff notwithstanding his own negligence if the defendant had the last opportunity of avoiding the accident but negligently failed to avail himself of it.
8. This doctrine of last opportunity or last chance is not, however, attracted in the facts and circumstances of the case where no factual foundation was laid down as to establish that the first respondent had any opportunity of avoiding the accident and negligently failed to avail himself of this opportunity. Therefore, this is a case where the classic doctrine of common law of contributory negligence applies. The learned Judge was as such in error in holding the view that the accident occurred due to the exclusive fault of the original appellant. The impugned judgment accordingly is liable to be set aside.
9. The learned Judge has arrived at the finding that had the accident occurred due to the negligence of the first respondent, the original appellant would have been entitled to a compensation of Rs. 20,000/-. I do not see any reason to interfere with this assessment of the compensation made by the learned Judge and therefore, I hold that the aforesaid compensation of Rs. 20,000/- is adequate and appropriate considering specially that as a result of the accident the original appellant sustained serious head injuries and that he was unconscious for a long period of time.
10. The motor cycle involved in the accident is insured with the second respondent and the liability of the latter appears to be unlimited.
11. The result, therefore, is that this appeal succeeds and consequently the impugned judgment dated 3rd May, 1985 is hereby quashed and set aside. The respondents to pay jointly and severally the compensation of Rs. 20,000/- plus interest thereon at the rate of 10 per cent per annum from the date of the filing of the petition till actual payment. Mr. Gude, the learned counsel appearing for the insurance company, in all fairness submitted that the company will deposit the amount of compensation within three weeks from today in this court. Once the said deposit is made, Rs. 20,000/- be invested in a fixed deposit in a nationalized bank for a period of five years in the names of the minors. The said fixed deposit should be renewed upto the time the minors, sons of the original appellant, attain majority. The widow of the original appellant is at liberty to withdraw the remainder of the compensation. The widow of the original appellant will also be at liberty to withdraw the amount of interest on the fixed deposit for the purposes of maintenance of the children. There will be no order as to costs in the circumstances of the case.