Karnataka High Court
Narasimhaiah vs The General Manager And Anr. on 9 June, 1997
Equivalent citations: 1998ACJ775, ILR1998KAR1934
ORDER M.F. Saldanha, J.
1. The short point that has been canvassed in this first appeal is that the learned Member of the Tribunal who has come to the conclusion that the appellant who himself was a driver was guilty of contributory negligence to the extent of 60% and would therefore be entitled to receive only 40% of the aggregate of Rs. 28,000/- is erroneous. The facts are undisputed in so far as the petitioner was crossing a busy road in Bangalore at a point other than on the pedestrian crossing and he came to be injured by a lorry belonging to the first respondent. The petitioner underwent treatment for about 10 days as he has sustained two minor fractures and the learned Member has very correctly computed the various computations under each of the heads. Though these were sought to be disputed, I see no reason to interfere with the manner in which the computation has been done because there was no additional material before the Tribunal to justify any higher computation. The aggregate came to Rs. 28,000/- and the learned Member held that the petitioner was virtually asking for trouble by seeking to cross a busy road and to this extent, he was liable to the extent of 60% by way of contributory negligence. The basic submission is that a degree of caution is required to be observed by drivers of heavy vehicles and that even if a pedestrian strays on to the road particularly in a crowded city like Bangalore, the vehicle driver is obliged to ensure that he does not injure the person and if he does so, that the negligence is absolute.
2. On the other hand, Mr. Mahesh, Learned Counsel who represents the Insurance Company put forward a strong submission that the negligence on the part of the pedestrain would be total if he so much as attempts to cross a busy road where vehicles are moving at any point other than the pedestrain crossing. He submits that in busy traffic it is virtually impossible for the driver of a heavy vehicle to avoid a pedestrain who suddenly tries to cross the road and that if the petitioner got injured in the process, that the respondents cannot be held liable to any extent whatsoever. Learned Counsel further pointed out that whereas the pedestrian has the right of way on the pedestrain crossing, that the opposite position obtains when it comes to the question of a pedestrain who seeks to cross a busy road at any other point particularly when the traffic is moving and that the vehicle has right of way in these circumstances. To this extent, he supported the decision of the lower Court and he submitted that where judicial discretion has been correctly exercised that it is not a case for any interference. Even as regards the quantum awarded under different heads, Learned Counsel submitted that it is on the higher side because no cogent material was produced before the Tribunal to justify an award of Rs. 28,000/-. He also submitted that one special circumstance which distinguishes this case is that the appellant himself is a driver and therefore, he is aware, of the rules of the road' and the hazards of crossing a busy road much more than other persons. Cumulatively, he submitted that the total amount of Rs. 28,000/- itself can hardly be justified and in any event, that the appellant should be more than satisfied with having been awarded 40% of that amount.
3. It is difficult to make a fine distinction in cases relating to contributory negligence. I find it impossible to dispute the submission canvassed by Mr. Mahesh that the appellant was guilty of contributory negligence by having attempted to cross a road at a point where he ought not to have done but the fact still remains, that such incidents are not uncommon and howsoever wrong the pedestrain may be, there is some expectation vis.a.vis, the driver of heavy vehicles that they must be extra cautions in ensuring that they do not injure the pedestrain who commits such errors. The culpability on the part of the driver of the offending vehicle is therefore slightly greater than that of the appellant and in my considered view, the ratio of 60:40 ought to be reversed in so far as the appellant can justifiably be held liable to the extent of 40% and that therefore be entitled to receive 60% of the amount of Rs. 28,000/- which was originally computed.
4. In my considered view, this is the only minor modification that is permissible in the present case. The appeal partially succeeds and stands disposed of. No order as to costs.
5. The Respondent-Insurance Company shall accordingly ensure that the additional amount which the appellant would be entitled to is deposited with the Tribunal within a period of eight weeks.
6. Before parting with this judgment, it is necessary for this Court to take judicial notice of the disturbing situation that prevails and to make certain observations in the confidence that those concerned will take heed. The vehicle involved in the present incident belongs to a public authority namely the Karnataka Dairy Development Corporation. The record indicates that the man driving this vehicle was doing so in a manner that betrays scant regard for human life. An analysis done recently if the manner in which vehicles belonging to the Govt. and public corporations in this state are drivers revealed the shocking fact that at no time in the course of their career have any of the individuals who operate them been given any instruction or training in safe operation nor have specific instructions been issued to them to observe rules of safety. These drivers have been functioning as though they are a law unto themselves and have no regard for safety regulations or for observance of any manner of discipline on the roads. The accident rate of this class of vehicle is abnormally high and the culprits feel immensely secured in the confidence that nobody can touch them because their jobs are secure and the unions will protect them. It is therefore in the public interest that necessary steps be taken, starting with personal disciplinary action against the errant driver in every instance of reckless driving, irrespective of whether it has resulted in an accident or not. In those of the cases where damage or injury has resulted, stringent action will have to follow as the present situation whereby the Govt. or a public authority or an Insurance Company pays for the injury and damage shall not come in the way of holding the offender individually liable. It shall also be the responsibility of the Corporation or the department concerned to ensure that there is regular training in safety procedures and that these are inculcated in the drivers and enforced on them. While doing this, it would not be out of place in the public interest if some effort is made to inculcate a modicum of good manners in this class of individuals. Unless that is done, the attitude of arrogance and callousness which is the background to rashness and negligence cannot be curbed.
7. The appellant in this case was a pedestrain who virtually walked into the path of the vehicle and got injured. There is a wrong notion which prevails that pedestrains have the birth-right to wander around the stroll on the roads according to their whims and fancies and that even if they make every effort to get run over, that the vehicle drivers are supposed to still try and save them. It has been pointed out in this judgment that the rules of the road require pedestrains to avoid strolling on to the road and that the roads can be crossed only at designated places. A breach of these rules immediately holds the pedestrain liable for negligence and if it is demonstrated that the injury of death occurred due to the negligence of the pedestrain, the driver of the vehicle, the owner and the insurer would then be entitled to disclaim their liability. This is an aspect of the law that has been grossly overlooked and which requires to be very clearly restated and specifically brought to the notice of the public. The present accident took place on one of the busy roads in the city of Bangalore and the evidence indicates that people were indiscriminately walking about on the road virtually between the vehicles that were moving regardless of any concern for safety. Where a pedestrain demonstrates suicidal tendencies by behaving in this manner, he will be precluded from then holding others liable if he gets injured or killed and it is very necessary that this message goes out loud and clear. In the present instance where the driver of the vehicle and the injured appellant are both demonstrated to have been negligent, the first one for the manner in which the truck was being driven and the second one for having crossed the road at a point where he should not have done, this Court has had to evaluate the degrees of negligence for purposes of deciding whether the injured should be entitled to compensation and if so, how much. The degree of negligence on the part of the pedestrain having been of a relatively lower order, the Court has limited the compensation payable to the extent of GO of the amount computed. In cases of proven negligence however, the compensation awarded could be much lower or even nothing at all. It is pathetic that there is virtually zero level of traffic management in this city but it is not too late for the department to make a beginning. The first step would necessarily be through a virtually educative process whereby all persons using the roads from the drivers down to pedestrians are informed through a sustained media campaign as to what are the rules of the road, what is the discipline that is required to be observed and above all, the penalises for breaching these which could end up in not only the payment of heavy fines but the forfeiture of compensation in cases of damage or injury. It is unfortunate to say the least that this indiscipline has been permitted to grow to a level of uncontrollable chaos. If the Union territory of Delhi and the State of Maharastra, to name just two, have been able to bring about a semblance of order on their roads, there is no reason why it cannot be done in this state. The authorities will have to first shed their indolence, learn what their duties are and start doing them for a change.
8. As far as the filed of traffic control and traffic management is concerned, the situation today presents a difficult case because of over two decades of negligence that has bred a culture of total indiscipline and chaos on the roads. Reversing this trend will require a conscious, determined and intelligent effort which inevitably would involve action against the law breakers. Recent enquiries with the staff of the Traffic Control Dept. have revealed the disturbing fact that there is no upto date scientific training imparted to them nor is there any monitoring of any type. An added complaint is that whenever action is taken even against a drunken driver, there is interference from politicians at different levels or that the hierarchy of the department itself takes action against the officer concerned. The most glaring example in recent times is that of a Sub Inspector of the Cubbon Park Police Station who has been suspended for doing his duty only because the accused could use some influence with the top officer in the Police department. Nothing could be more demoralising to an enforcement agency than this form of sabotage of the law and of legal processes. This is a matter of some seriousness and the Courts will, in such instances have to order porsecution against whosoever interferes with the public servant in the discharge of his official functions if there is to be any improvement in the situation. While considering remedial measures, the Home Department and the police authorities shall consider taking stringent action against companies, corporations and departments to whom the vehicles belong by way of exemplary fines on the ground of vicarious liability in all cases where the employees are involved in rash and negligent driving.
9. In the course of the hearing of this case the issue repeatedly came up with regard pedestrain crossings that are earmarked for purposes of used to transit from one side of the road to the other. The consensus of opinion at the Bar was that the traffic police themselves do not take even the elementary care to ensure that all vehicles come to a standstill when pedestrians are crossing. It has been pointed out to the Court that pedestrains, particularly elderly and handicapped persons run the greatest risk to their lives because drivers of all types of vehicles come at full speed and even accelerate in order to frighten pedestrains who are crossing. The rules of the road require that pedestrains be given right of way at all pedestrain crossings and it is an offence for any vehicle to so much as transgress the pedestrain crossing before the pedestrains have got away from it. It is a fact that this rule is being observed in the breach and it is also a fact that the traffic police who are paid out of the tax payers' money stand like zombies and watch the fun. It was pointed out to me in the course of the arguments that this is the reasons why people indiscriminately cross the road at other points because it is safer for them.
10. The rules of the road shall hereinafter be enforced and the traffic police shall ensure that every driver who fails to stop while pedestrians are crossing and in particular, those who intimidate the pedestrains are booked on the spot and that exemplary fines are levied on them. This is absolutely essential from the point of view of ensuring the safety of this class of citizens.
11. A copy of this judgment shall be forwarded to the Inspector General of Police. Karnataka State with the request that appropriate corrective steps be undertaken.