Kerala High Court
Kerala State Road Transport ... vs Bhargavi Amma And Anr. on 31 October, 1989
Equivalent citations: I(1991)ACC157
JUDGMENT K.P. Radhakrishna Menon, J.
1. The second respondent in O.P. (M.V.) 584 of 1980 of Motor Accidents Claims Tribunal, Trivandrum, is the appellant.
2. The predecessor-in-interest of respondent Nos. 1 and 2, a doctor by profession, while proceeding to Amboori along the Pcrumkadavila-Ottasekharamangalam public road on his motor cycle on 22.10.1979 was knocked down by the bus owned by the appellant and sustained multiple injuries. He was hospitalised for some time. As a result of the accident he was completely disabled from practising his profession. Alleging that the accident was occasioned due to the negligence of the bus driver, he filed the petition for recovery of a sum of Rs, 2, 00, 000/- as compensation from Lie appellant and its driver. The appellant filed a written statement wherein he, inter alia, contended that the accident was due to the negligence of the claimant himself, that no negligence can be attributed to the bus driver and that the claim in any event is excessive.
3. The Tribunal, after considering the various aspects of the competing contentions, has found that the case of negligence against both drivers stands established and accordingly distributed the loss between them in the proportion made mention of in the judgment. The said finding reads:
... Taking into consideration all the facts and circumstances, it has to be held that for the accident the bus driver contributed 25 per cent negligence and the original petitioner who was riding his motor cycle contributed 75 per cent negligence.
The Tribunal accordingly fixed the compensation amount, the claimants arc entitled to get, at Rs. 50, 000/-. It is this award that is under challenge in this appeal.
4. That the appellant is only vicariously liable, is beyond challenge. Without proof negligence on the part of the driver of the appellant, no compensation making the appellant liable therefore, could be awarded. A reference in this connection to the well established principle, namely, "the concept of vicarious liability without any negligence is opposed to the basic principles of law" is profitable. [See the decision in Minu B. Mehta v. Bulkrishana Ramchandra Nayan 1977 ACJ 118 (SC)]. This principle therefore shall be kept in view while considering the competing contentions of the parties involved in this appeal.
5. The question thus arising for consideration is whether the driver of the appellant alone was negligent or could the victim also be said to have contributed to the causation. To get at the answer to this question, we have to consider the evidence adduced in the case. It has come out in evidence that the motor cycle, the respondent was riding, went to the wrong side and hit at the left side headlight of the bus. That means, the respondent has contributed to the causation. Has the driver of the appellant also contributed for the causation is the further aspect that requires to be considered? A reference in this connection to the evidence of the driver as DW 1 is relevant The driver has deposed that immediately after he negotiated the curve he saw the motor cycle coming from the opposite direction at a distance of 150 feet.
6. That the bus was negotiating an up gradient and it was not being driven at a high speed has been found by the Court below. That means, the driver who saw the motor cycle at a distance of 150 feet, the learned Counsel for respondent Nos. 1 and 2 contends, could have averted the accident by using ordinary care which is expected of any driver. The driver must, therefore, be made solely liable for the accident
7. The rule of last opportunity introduced by judicial pronouncements to the Law of Tom requires to be considered in this context. What then is this doctrine? This is a well recognised rule of law applicable over the whole field of contributory negligence. Applying this principle the sole liability can be imputed to one party even though there was a prima facie case of negligence against both parties. Fastening the liability solely on one in a case of contributory negligence, applying this principle, however, is difficult in modern times because it is rather difficult to draw a clear line between the faults (of the parties) which form part of the dispute that crops up as a result of collision between two fast moving vehicles. But in a case where it is possible to find 'a sufficient separation of time, place or circumstance' to enable 'a clear line to be drawn' between the 'faults of the two parties', the sole liability can be imputed to one party. This rule, provided the above requirements are satisfied, is a sound rule although it does no longer existing he country of its origin, England. It is pertinent in this context to note the observation of Lord Ellenborough, CJ, [See Butterfield v. Forrester, (1809) 11 East 60] namely, "one person being at fault does not dispense with another using ordinary care of himself. [Sec also Rehana Rahimbhai Kasambhai v. Municipal Transport Service Ahmedabad 1976 ACJ 156 (Gujarat). It should, in this connection, be remembered that in a case where negligence can be attributed to both parties, the normal rule is that the loss shall be distributed between the parties in some proportion taking into account the probative value of the evidence adduced in the case. The rule of last opportunity', however, would enable a victim to recover the full compensation notwithstanding the charge of contributory negligence against him.
8. Coming to the facts of the case: It can be said that the driver of the bus could have averted the accident But the evidence available on record would show that contributory negligence could be attributed to the victim also. If that be the case the sole liability cannot be imputed to the driver of the bus. This, therefore, is a case where loss requires to be distributed between the parties in some proportion. Now the further question that arises for consideration is, is the decision of the court below that the bus driver contributed 25 per cent negligence and the claimant contributed 75 per cent negligence is liable to be varied. The above finding cannot be said to be perverse. The claimant who was examined as PW 2 has conceded that his motor cycle hit against the left headlight of the bus. This can happen only if the claimant has been driving the vehicle on the wrong side. It is also relevant is this context to note yet another admission discernible from the evidence that the bus was negotiating up gradient at a slow speed. In these circumstances, we do not find our way to interfere with the said findings.
9. There is, therefore, little scope to interfere with the judgment under attack. The appeal fails. Accordingly the same is dismissed.
10. For the reason stated in this judgment, we arc of the view that the cross-appeal also should fail. Accordingly the cross-appeal is dismissed. No costs.