Karnataka High Court
Shrimanti And Ors. vs Krishna Deva Madiwal And Ors. on 4 June, 2004
Equivalent citations: 2005ACJ350
Bench: T.S. Thakur, S.B. Majage
JUDGMENT S.R. Nayak, J.
20.08.2003
1. The claimants in a death case, being aggrieved by the impugned judgment and award whereby their claim for compensation has been rejected, have preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (for short, 'the Act'). The Additional Motor Accidents Claims Tribunal, Chikodi (for short, 'M.A.C.T.'), by the impugned judgment and award, has held that no actionable negligence can be attributed to the driver of the bus involved in the accident. Quite curiously, the M.A.C.T. did not award compensation even under the head 'no fault liability'.
2. We have heard the learned counsel for the parties and perused the judgment of the M.A.C.T. The learned counsel for the appellants would contend that the finding recorded on issue Nos. 1 and 2 with regard to actionable negligence attributed to the driver of the bus is perverse and suffers from vice of non- consideration of evidence on record in a right perspective. According to learned counsel, the evidence adduced by claimants to prove actionable negligence on the part of the driver of the bus remains unrebutted. The only contention of learned counsel for the respondent Nos. 2 and 3 is that the finding recorded by the M.A.C.T. on actionable negligence is based on evidence and, therefore, the appeal does not deserve our acceptance.
3. The case of the claimants-appellants, in brief, is as follows:
On 16.11.1991, deceased was proceeding on his motor cycle bearing registration No. CRB 298 on Chikodi-Ichalakaranji Road. At that time, a K.S.R.T.C. bus bearing registration No. CAF 3548 was going ahead of the motor cycle driven by its driver in a high speed. The bus was suddenly stopped without giving any signal and as a consequence, the deceased could not control his vehicle and dashed against the bus from behind and due to the impact the deceased fell down and sustained grievous injuries and ultimately succumbed to those injuries on the spot itself. The claimants attributing actionable negligence to the driver of the bus and contending that the deceased was earning an annual income of Rs. 10,000 from agriculture and a sum of Rs. 23,000 from grocery business, claimed total compensation of Rs. 8,00,000.
4. The claim petition was opposed by respondent Nos. 2 and 3 by filing statement of objections. The respondent No. 1 who is the driver of the bus involved in the accident, though served with notice, did not contest the case by filing written statement. In the objections statement of the respondent Nos. 2 and 3, except involvement of the vehicle in the accident, all other material allegations contained in the claim petition are denied. On the other hand, it was contended by respondent Nos. 2 and 3 that the accident occurred due to rash and negligent driving of the driver of the motor cycle himself. In the premise of the facts so pleaded in the pleadings of the parties, M.A.C.T. framed the following issues:
"(1) Do the petitioners prove that the accident happened due to rash and negligent driving of the bus by respondent No. 1?
(2) Do the respondents prove that the accident happened due to rash and negligent riding of the motor cycle by the deceased Yallappa?
(3) Whether petitioner Nos. 2 to 4 were dependants of deceased Yallappa and whether they are entitled to any share in the amount of compensation, if any, payable by the respondents?
(4) Whether the petitioners are entitled to compensation over and above interim compensation of Rs. 25,000 already awarded? If so, how much?"
5. In support of the claim, claimant No. 2 examined himself as PW 1 and examined another by name Shekar Harigouda Patil as PW 2 and marked 14 documents as Exhs. P-l to P-I4. On behalf of the respondents none was examined nor was any document got marked.
6. The M.A.C.T. having appreciated both oral and documentary evidence, answered issue No. 1 in the negative and issue No. 2 in the positive. Consequently, the M.A.C.T. did not find it necessary to decide the other issues framed by it. In the result, the claim petition was dismissed. Since the M.A.C.T. has not determined the compensation in the event of the claimants establishing actionable negligence on the part of the driver of the bus, there is no necessity for the court to undertake adjudication of those issues in the present appeal.
7. The only question that arises for decision of the court is whether the findings recorded by the M.A.C.T. on issue Nos. 1 and 2 are based on substantive legal evidence as contended by learned counsel for the respondent Nos. 2 and 3, or they suffer from perversity of reasoning and non-consideration of evidence on record, as contended by the counsel for appellants.
8. After completion of the hearing of the case and in the process of decision making, my esteemed and noble brother, S.B, Majage, J., expressed opinion that contributory negligence could be attributed to the deceased also who was driving the motor cycle by drawing an inference from the facts of the case. When this was suggested to me, I deeply thought over it with utmost objectivity in the premise of the facts of the case as well as that of the law governing the case and perused the lower court records, but unfortunately, I could not persuade myself to fall in line with the opinion of his Lordship S.B. Majage, J. I, therefore, with utmost humility and reluctance and high regards to his Lordship's scholarship and understanding of law and wishing that his Lordship is right and I am wrong, but, in order to honour the dictates of the judicious conscience within me and to uphold the solemnity of the oath of the Judge, I hereby deliver my separate opinion in the appeal.
9. PW 2 Shekar Harigouda Patil is an eyewitness to the accident. In his evidence recorded on 29.12.1999, he has stated thus:
"...I was travelling in K.S.R.T.C. bus from Chikodi to Ichalakaranji. When our bus was proceeding to Ichalakaranji from Nej at a distance of 1 1/2 km. it was around 12.15 noon. At that time the said bus in which I was travelling was moving in a high speed. At that time a motor cycle driven by the deceased was moving ahead of the bus. The bus overtook the motor cycle driven by deceased and thereafter the bus suddenly stopped without giving any signal. On account of this sudden stopping of bus the motor cycle driven by the deceased came from hind side of the bus and dashed against the bus. Thereafter the bus was stopped. Myself and other passengers got down from the bus and thereafter when I went near the motor cycle it was found that the driver of the motor cycle, viz., Yallappa Mahadev Naik was no more and he had breathed his last on the spot itself. The bus was stopped in the middle of the road itself. The accident in question occurred due to fault and due to rashness and negligence and due to non-following of the traffic rules by the driver of the K.S.R.T.C. bus."
Though PW 2 was cross-examined, nothing is elicited from him on the basis of which, the court can discredit his testimony. It is also pertinent to notice that in the cross-examination of PW 2 not even a suggestion with regard to contributory negligence on the part of the deceased was suggested to him. It is trite that the evidence of an independent witness like PW 2 has evidentiary value. The question is whether any rebuttal evidence is adduced by respondents to destroy the credibility and acceptability of the evidence of PW 2 who is the only eyewitness in the case. I find none. The respondent Nos. 2 and 3 for the reasons best known to them, did not bother to examine the driver of the bus who could have perhaps explained under what circumstance he had to stop the vehicle abruptly and suddenly and whether the deceased had reasonable time and pace to bring the motor cycle to a halt and thereby avoiding collision and guard himself by exercising necessary discretion in the unexpected situation. In the absence of any such rebuttal evidence, the M.A.C.T. was not justified in doubting the integrity of the evidence of PW 2 who is undoubtedly an independent witness.
10. There is absolutely no evidence on record on the basis of which we can infer 'contributory negligence' on the part of the deceased. 'Contributory negligence' means that there is some act or omission on the part of the plaintiff which is materially responsible for the damage caused to him. To be exact, it is the negligence on the part of the plaintiff that caused damage to himself. It eventually means failure on the part of the plaintiff to take reasonable care and caution for one's own safety. He thereby becomes partly author of his own wrong caused to him due to the accident. The term 'contributory negligence' squarely and solely applies to the conduct of the claimant alone. If the claimant is guilty of an act or omission which has materially contributed to the accident and resulted in the injury and damages, the matter comes within the concept of 'contributory negligence'. Although, as a defence for actionable negligence, the defendant can always put forward and establish the plaintiff's/ deceased's 'contributory negligence', it is the burden of the defendant to prove that there was 'contributory negligence' on the part of the injured or deceased, as the case may be.
11. Very recently, this very Bench in the case of M.N. Rajan v. Konnali Khalid Haji, 2004 ACJ 484 (Karnataka), had to deal with the pleading requirement, on whom the burden of proof is placed and standard of proof required to establish 'contributory negligence'. The Bench, speaking through one of us (S.R. Nayak, J.) held thus:
"(21) We also do not find any merit in the alternative contention of learned counsel for the owner and the insurer of the lorry that at the worst, it is a case of contributory negligence and, therefore, the liability to pay the entire compensation cannot be fastened on the owner and the insurer of the lorry. In the first place, it needs to be noticed that the plea of contributory negligence is not taken in the written statement filed by the respondent No. 2, insurance company. The respondent Nos. 1 and 3 did not file the written statements. In the case of Pandian Roadways Corporation v. Karunanithi, 1982 ACJ 186 (Madras), it is held that plea of contributory negligence should be taken in the written statement before the Tribunal. Furthermore, in the case of Yatayat Nigam, Udaipur v. Union of India, 1983 ACJ 312 (Rajasthan), it is held that where negligence of plaintiff's bus driver was not pleaded by defendant, no issue was framed by the trial court covering contributory negligence and no evidence was led, Rajasthan High Court took an exception to the judgment of the appellate court in making out a new case with regard to contributory negligence.
(22) The existence of a duty of care is essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that the claimant should owe a duty to the respondent. All that is required is that the claimant should have failed to take reasonable care for his own safety. In Winfield and Jolowicz on Tort, 12th Edn., the learned authors speaking about 'Standard of care' state thus:
'The standard of care expected of the plaintiff is in general the same as that in negligence itself and is in the same sense objective and impersonal, though some concession is made towards children and probably towards other persons suffering from some infirmity or disability rendering them unable to come up to the normal standard. Putting aside such exceptional cases, a 'person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless'. The degree of want of care which will constitute contributory negligence varies with the circumstances: the law certainly does not require the plaintiff to proceed on his way like a timorous fugitive constantly looking over his shoulder for threats from others.' (23) A Division Bench of this court in the case of General Manager, Bangalore Transport Service v. N. Narasimhiah, 1976 ACJ 379 (Karnataka), held as follows:
'If it is found that the negligent act or omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident. In this case the evidence of the witness referred to above clearly establishes that Raju was riding the cycle alone when the offending bus came from behind him and dashed against the cycle. The evidence of the driver of the bus, if scrutinized carefully, clearly goes to show that he did not see at all how the accident happened. It is only after he heard the sound he stopped the bus. Therefore, his story that it was due to negligence of Raju the accident happened cannot be believed. A person driving a motor vehicle on a busy road like the one in question must drive the vehicle with reasonable care strictly observing the traffic regulations and the rules of the road so as not to imperil the safety of the other persons whether they are pedestrians or cyclists or others who have a similar right to use the highway on which he drives it.' (24) It is well settled that the burden of establishing the defence of contributory negligence is on the defendant who admits that on account of the conduct of the plaintiff, his negligence had gone into the background and it was the conduct of the plaintiff that resulted in the accident; it is not for the claimant to disprove it. In the case of Sharada Bai v. Karnataka State Road Trans. Corporation, 1988 ACJ 490 (Karnataka), speaking about the burden of proving contributory negligence, the court held:
'The burden of proving contributory negligence is on the cross-objectors in this case. It is not for the appellant to disprove it. If tortfeasor's negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim's contributory negligence was a substantial or co-operating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of "himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory cause of the accident. The amount of care which a person could reasonably be expected to take, must vary with the circumstances and the conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributory negligence can be and very often is inferred from the evidence adduced on the claimants' behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case'."
12. The question whether an injured/ deceased also contributed negligence for causing accident is indisputably a question of fact and, therefore, if a defendant wants to take plea of contributory negligence as a defence, that plea should find a place in his pleading. In the present case, in the written statement filed by respondent Nos. 2 and 3, 'contributory negligence' on the part of the deceased is not pleaded. The stock defence of respondent Nos. 2 and 3 as reflected in the written statement is that the deceased died on account of his own rash and negligent driving of the motor cycle. No issue with regard to 'contributory negligence' is framed by the M.A.C.T. nor the respondent Nos. 2 and 3 adduced any evidence in support of the plea of 'contributory negligence'. Even before us, it is not the contention of the learned Standing Counsel for respondent Nos. 2 and 3 that the deceased also contributed negligence for causing accident. Generally speaking, 'contributory negligence' on the part of the injured/deceased cannot be inferred on the basis of the evidence on record, if no such plea is taken in the pleading of the defendant. A Constitution Bench of the Supreme Court in Indira Nehru Gandhi v. Raj Narain, , while disapproving a finding of 'a de facto agency' recorded by the Allahabad High Court, which was neither set-up nor was the subject-matter of an issue, reiterated well recognized principle that 'no amount of evidence could be looked into on a case not really set-up'.
13. The M.A.C.T. has referred to regulations 23 and 24 of the Rules of the Road Regulations, 1989, to record the finding that the deceased himself was negligent in driving the motor cycle. The reasoning of the M.A.C.T. in recording that finding is perverse. Where is the evidence to show that before the bus was suddenly and without signal stopped, deceased did not keep sufficient distance from the bus? Secondly, it has come in the evidence of PW 2 that the driver of the bus after overtaking the motor cycle abruptly and suddenly stopped the bus. It shows that the deceased was not given any opportunity to keep sufficient distance after his vehicle was overtaken by the bus. Similarly, reasoning of the M.A.C.T. in applying Regulation 24 is ex facie perverse and misconceived. Where is the evidence to show that the driver of the bus stopped the vehicle abruptly 'for safety reasons'? The driver of the bus or any eyewitness to the accident, if any, is not examined on behalf of the Corporation to sustain the finding of the M.A.C.T. The finding of the M.A.C.T. is rooted only in surmises and conjectures. The M.A.C.T. has slipped into a gross error and its conclusion is indefensible.
14. In the case of Daryaobai v. Madhya Pradesh State Road Trans. Corporation, 1996 ACJ 1233 (MP), a Division Bench of Madhya Pradesh High Court while holding that if the driver of the vehicle involved in the accident is not examined in the case, an adverse inference can be drawn, was pleased to observe that-
"The statement of Kanhaiya Lal as corroborated by the statement of Amol Das goes to prove that the accident had occurred due to rash and negligent driving of the vehicle by the driver of the jeep. It may also be observed here that if a party specially the owner of the vehicle fails to examine the driver of vehicle involved in the accident, an adverse inference will have to be drawn. This is not the case of respondent Union of India that the driver is not available or his attendance could not be procured despite efforts being made. Thus, it would be deemed that the driver of the jeep was purposely withheld and was not produced in the court for examination and cross-examination. In such a situation, we are inclined to believe Kanhaiya Lal and Amol Das that goes to prove that the accident occurred due to rash and negligent driving of the jeep owned by Union of India. Even otherwise, it is the driver of the vehicle who is required to keep constant vigil on the road and vehicle coming from opposite direction including other vehicles overtaking the vehicle driven by him and, therefore, he is the best person to depose about the manner of accident. We are, therefore, not in agreement with the finding of the Tribunal and further hold that accident occurred due to rash and negligent driving of the vehicle by the driver of jeep of Narcotics Department."
15. In Beeravu v. K.K. Damodaran, 1994 ACJ 1297. (Kerala), respondent No. 1 therein, in his written statement, did not raise any plea of 'contributory negligence'. However, while PW 1 was being cross- examined, he was asked by learned counsel for respondent No. 1 whether it was not correct to say that the accident happened since the petitioner placed his hand outside the bus. The petitioner denied that suggestion. In that fact situation, the insurance company, i.e., respondent No. 3 had raised a contention that the injuries were caused due to carelessness of the petitioner. The court, while holding that such a contention was not available to respondent No. 3 in view of Section 96 (2) (now Section 149) of the Motor Vehicles Act, held that there was no contention or evidence on the side of respondent No. 1 regarding question of 'contributory negligence'.
16. In Vijay Chopra v. Udham Singh, 1989 ACJ 589 (P&H), where respondent Nos. 1 and 2 therein did not take the plea of 'contributory negligence' in the written statement, Punjab & Haryana High Court held that in the absence of any plea, it will not be permissible for the counsel to argue on the plea of 'contributory negligence' at the appellate stage.
17. In this case, the evidence of PW 2 who is an independent witness, satisfactorily proves that accident had occurred due to rash and negligent driving of the bus by its driver. Quite curiously, the driver of the bus was not examined by respondent Nos. 2 and 3. Therefore, an adverse inference can be drawn against them. Therefore, it is not permissible for the court to suo motu examine the aspect of 'contributory negligence' on the part of the deceased in driving the motor cycle at the appellate stage for the first time, in the absence of plea and issue in that regard.
18. Alternatively, even accepting that in an appropriate case the Tribunal or the appellate court, on the basis of proved facts could infer 'contributory negligence' on the part of the deceased/injured, in the instant case, there is absolutely no evidence on record on the basis of which such an inference could be drawn. The evidence of PW 2 remains unchallenged. If respondent Nos. 2 and 3 were to examine the driver of the bus, he could have been the right person to speak on the question whether the deceased had taken due and expected care to avoid accident after the driver of the bus stopped the vehicle suddenly without any signal. The standard of care expected of a person in such circumstance is what a reasonable man would have done. Just as 'actionable negligence' requires foresee- ability of harm to others, so also 'contributory negligence' requires foresee- ability of harm to oneself. The respondent Nos. 2 and 3 have utterly failed to discharge the burden that after the bus was stopped by its driver suddenly and without signal, the deceased failed to exercise his faculty of foresee- ability of a reasonable, prudent man and if he were to exercise the required standard of foresee- ability, he could have prevented the accident. At the cost of repetition, I state, it is the burden of the defendant to prove 'contributory negligence' and not the burden of the plaintiff. Strictly speaking, the plea of 'contributory negligence' on the part of the deceased does not arise for decision-making in this case, particularly at the appellate stage, that too, suo motu. Alternatively, there is absolutely no evidence on record on the basis of which this court could record a finding of 'contributory negligence' on the part of the deceased and deny a part of the compensation to his dependants.
19. In that view of the matter, the findings recorded by M.A.C.T. on issue Nos. 1 and 2 cannot be sustained. Accordingly, I answer issue No. 1 in the positive and issue No. 2 in the negative. The resultant position is that the appellants-claimants are entitled to compensation in terms of the Motor Vehicles Act, 1988.
20. In the result and for the foregoing reasons, I allow the appeal in part and set aside the judgment and award of the M.A.C.T. and remand the proceedings to the M.A.C.T. with a direction to decide the remaining issues on merit and pass appropriate award for compensation expeditiously, preferably within 3 months from date of receipt of the records. The M.A.C.T. is well advised to keep in mind that the accident took place as far back as on 16.11.1991 and the dependants of the deceased are not awarded even compensation under 'no fault liability'. Involvement of the bus in the accident is not denied though 'actionable negligence' on the part of its driver is denied by the Corporation. Alas Pathetic indeed. A case for introspection for the court!!! S.B. Majage, J.
21. Though I entirely agree with my learned senior brother that the impugned judgment and award cannot be sustained and matter requires to be remitted to the Tribunal to determine the amount of compensation payable to the claimants, I respectfully disagree with the finding recorded by him that the death of Yallappa was due to actionable negligence of bus driver alone since, in my humble opinion, for the reasons to be given below, the deceased also contributed for his death.
22. It is the case of claimants-appellants only that when the bus, going in speed ahead to the motor cycle driven by the deceased, stopped suddenly without giving any signal, the deceased motorcyclist, who was behind the bus, though tried to apply brake, could not control it and thereby dashed against the hind portion of bus, fell down sustaining injuries and the result was his death at the spot itself. To prove this case, PW 2 has been examined as an eyewitness, though he is not the complainant nor his name finds place in the F.I.R. as an eyewitness. The Corporation denied his travelling in the bus. In fact, it is not known whether charge-sheet has been filed and, if so, against whom, etc. So, it cannot be said whether or not said PW 2 has been cited as an eyewitness to the accident. Still if considered as an eyewitness, according to him, he was sitting on the back seat near window on the left side in the bus. If so, he seeing motor cycle going ahead to the bus and bus overtaking it cannot be believed, more so, when that is not even the case of claimants nor found either in the claim petition or complaint/F.I.R. lodged after enquiry with the passengers in the bus or even in the evidence of PW 1. If really it was so, it would have found somewhere. So, as rightly observed by the Tribunal, the said improvement made by PW 2, not supported by any material or circumstance, cannot be accepted. Whatever it may be, it is not in dispute that the accident occurred, when the motor cycle dashed against the hind portion of the bus.
23. So, what is pleaded and brought on record for the claimants is considered, it is to the effect that, the bus going at high speed stopped suddenly and the deceased motorcyclist, who was riding motor cycle behind the bus, could not control his motor cycle, though tried to apply brakes and thereby, accident took place. To believe it, certainly, there should have been skid marks on the road. However, skid marks do not find place in spot mahazar, Exh. P-5. So, absence of skid marks of the bus is a strong circumstance against the claimants' case that the bus, while going at high speed, stopped suddenly. So also absence of skid marks of the motor cycle near or behind the place of accident comes against the case of claimants that the deceased motorcyclist, though applied brakes, could not control it. That apart, if the bus was going at high speed and the motorcyclist was riding the motor cycle in its normal speed (not in high speed), then the distance between the two moving vehicles would have been more and as such, there would not have been any chance of accident even if the bus had stopped suddenly. Further, the fact that the bus was standing at a distance of 6 ft. ahead whereas, the motor cycle was found lying at a distance of about 8 ft. behind the place of accident (as mentioned in Exh. P-5 mahazar), also suggests that accident might not have taken place as is being contended for the claimants. At any rate, if assumed that the bus was at high speed, then, to dash against the hind portion of the bus, the motor cycle also must have come at the same (high) speed, otherwise there would not have been any accident. So, even if the case of claimants with the evidence adduced by them is accepted as it is (without scrutiny), then also, it unhesitatingly shows that the deceased was driving motor cycle either at great speed or, at any rate, without having control over it otherwise, there would not have been the accident because, it is the case of claimants that the motor cycle came from behind the bus and dashed against the hind portion of the bus when the bus going at high speed stopped suddenly as alleged.
24. In this case, there is nothing on record to show the distance between the bus and the motor cycle, when the bus stopped suddenly allegedly. It need not be said that when a man drives a motor vehicle on the road, he is required to keep some distance between his vehicle and another vehicle, when another vehicle is found going ahead to his vehicle. Having regard to the admitted case of claimants and materials on record, it appears to me that the deceased, who was driving motor cycle, had not kept the required minimum distance between his motor cycle and the bus. Had he kept or maintained such distance between his motor cycle and bus, probably, the accident would have been averted.
25. At this juncture!; it may be noted that the general rule is, vehicle should be driven at a speed, which enables a driver to stop within the limits of his vision, particularly having regard to the weather and state of road and if the driver does not exercise these precautions while driving the vehicle, his failure to do so will very likely result in the driver being held in whole or in part, responsible for the collision. In fact, in Rider v. Rider, (1973) QB 505, their Lordships have held that while driving the motor vehicles on highways, it is folly not to anticipate folly in others. Same has been even reiterated in Rae v. Dumbarton Council, 1973 SLT (Notes) 23.
26. It need not be said that the test of negligence lies in default to exercise the ordinary care and caution, which is expected of a prudent man in the circumstances of a given case. The duty to exercise such a care and caution including reasonable use of his faculties of sight and intelligence to observe and appreciate danger or threatened danger of injury is undoubtedly on the driver of an automobile. If he fails to do so and such failure is the proximate cause of the injury or death, he is guilty of negligence. In other words, the test is, whether the driver could, by exercising normal diligence and caution, avert the accident.
27. So far as contributory negligence is concerned, all that is required is, claimant should have failed to take reasonable care for his own safety. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself and in his reckonings he must take into account the possibility of others being careless. A responsible careful driver does not always assume that other users of the road, whether drivers or others, will behave with reasonable care and he guards against the negligence of others when experience shows such negligence should be common.
28. In the present case, the event that the bus suddenly stopped without giving any signal (as alleged), might be an unexpected event for the deceased riding motor cycle behind the bus, but that circumstance itself did not absolve the deceased from exercising due care and caution to avert the accident. The question is, whether after seeing the unexpected event ahead of him, the deceased motorcyclist had taken reasonable care expected of him to avert the accident? For that, in the facts and circumstances, the answer is in negative.
29. So, whatever has been pleaded and brought on record by the claimants only is considered along with the attending circumstances, the deceased motorcyclist cannot be completely exonerated and held that he did not contribute for the accident in any manner or, that bus driver alone was responsible for the accident.
30. It is true that the Corporation has not taken the plea of contributory negligence, but, that does not prevent the court or the Tribunal to hold so, when things speak for themselves, leading to an inference about it. In the case of Sharada Bai v. Karnataka State Road Trans. Corporation, 1988 ACJ 490 (Karnataka), a coordinate Bench of this court has also held that the contributory negligence can be-and very often is-inferred from the evidence adduced already on the claimants' behalf or from the perspective facts, either admitted or found established, on a balance of probabilities in the case.
31. Further, in my opinion, in the present case, the maxim 'res ipsa loquitur' can be applied because it is admitted by the claimants-appellants themselves that when the bus has suddenly stopped, the motorcyclist, who was coming behind the bus could not control the vehicle and thereby dashed against the bus. So, according to me, to some extent at least, motorcyclist has also attributed for the accident and as such, I respectfully disagree with the view expressed by my learned senior brother that the fault for the accident entirely lies with the driver of the bus alone as, in my opinion, the deceased and the driver of the bus have attributed to the extent of 25 per cent and 75 per cent respectively for the accident. Therefore, my finding on issue Nos. 1 and 2 framed by the Tribunal are recorded accordingly.
32. Since in view of its findings recorded on issue Nos. 1 and 2, M.A.C.T. has not determined the amount of compensation, it is but necessary now that the Tribunal should determine the quantum of compensation payable to the claimants in accordance with the ratio of the negligence, as has been held by me above and for that, matter requires to be remitted back to the Tribunal.
33. Since there is divergence in our opinion, office is directed to place the matter before the Hon'ble Chief Justice and obtain appropriate orders to post the appeal before the third Judge for opinion.
T.S. Thakur, J.
29.04.2004
34. Motor Accidents Claims Tribunal, Chikodi, dismissed M.V.C. No. 1694 of 1991 for payment of compensation on the ground that deceased was himself responsible for the accident and the fatal injuries sustained by him in the same. Aggrieved by the said order, the claimants appealed to this court. The appeal came up for hearing before a Division Bench comprising S.R. Nayak, S.B. Majage, JJ. While my esteemed brother S.R. Nayak, J., was of the opinion that the claimants had made out a case for award of compensation against the respondent Corporation, S.B. Majage, J., expressed a different opinion holding that even the deceased had contributed to the accident to the extent of 25 per cent. The appeal has in that view been referred to me as a third Judge to resolve the divergence. The facts leading to the making of the claim and the filing of this appeal are few and may be recalled at the outset.
35. The deceased was on 16.11.1991 riding a motorbike on what is known as Chikodi-Ichalakaranji Road. A bus owned by the respondent Corporation bearing the registration No. CAF 3548 was it appears going ahead of the motorcyclist. Somewhere along the way the bus driver appears to have stopped the bus according to the claimants so suddenly that the deceased who was following on the motorbike was taken unaware. Unable to control the bike he crashed into the bus from behind, fell down and succumbed to injuries on the spot. A claim petition was in due course filed by the claimants for payment of compensation against the Corporation and its driver, inter alia, alleging that the accident in question had taken place entirely due to rash and negligent driving of the bus by its driver. The claim was opposed by the Corporation primarily on the ground that the accident in question had taken place not because of rashness or negligence of the driver of the bus, but because of the rash and negligent act of the deceased himself. It was stated that since the claimants had themselves admitted that the accident in question had taken place on account of the failure of the deceased to control the speed of the motorcycle he was riding, there was no room for awarding any compensation against the Corporation. The allegation that the bus was stopped suddenly without any signal was also denied. It was stated that the vehicle in question had been stopped by the driver near Sadalaga Cross and that since the brake lighfs were in working condition on the date of the accident, the same was a sufficient signal to any vehicle coming from behind, that the bus going ahead was about to stop.
36. On the above pleadings, the Tribunal framed the following four issues:
"(1) Do the petitioners prove that accident happened due to rash and negligent driving of the bus by respondent No. 1?
(2) Do the respondents prove that accident happened due to rash and negligent riding of the motor cycle by deceased Yallappa?
(3) Whether petitioner Nos. 2 to 4 were dependants of deceased Yallappa and whether they are entitled to any share in the amount of compensation, if any, payable by the respondents?
(4) Whether the petitioners are entitled to the compensation over and above the interim compensation of Rs. 25,000 already awarded? If so, how much?"
37. In support of the claim petition, while claimant No. 2 appeared as PW 1, Shekar Harigouda Patil was examined as PW 2. The respondents did not lead any evidence in rebuttal.
38. The Tribunal upon appreciation of the above evidence answered issue No. 1 in the negative holding that the driver of the bus was not responsible for causing the accident. Issue No. 2 was on the contrary answered in the affirmative. The Tribunal held that the accident in question had occurred entirely due to rash and negligent driving of the motor cycle by the deceased Yellappa. The claim petition was on those findings dismissed by the order impugned in this appeal.
39. Learned counsel for the claimants- appellants argued that the Tribunal was in error in holding that the accident in question had taken place on account of the rash and negligent driving of the motor cycle by the deceased. The Tribunal had according to the appellants failed to appreciate that the accident had occurred entirely due to the sudden application of brakes by the driver of the bus in the middle of the road without giving any signal to the motor cycle coming behind the bus. It was further contended that the plea of contributory negligence sought to be raised by the Corporation at the appellate stage was futile in the absence of any such plea having been raised in the objections filed on behalf of the Corporation. It was urged that since the bus was going at a high speed, the deceased motorcyclist driving behind it reasonably expected that in the event of driver intending to stop the bus, he would give a signal to that effect so that the motorcyclist would take proper evasive action to prevent crashing into the bus. No such signal having been given and the expectation of the motorcyclist about what the driver would do in the normal course having been belied, the resultant accident could not be attributed to the deceased. The non-examination of the driver of the bus as a witness was also according to the appellants a significant circumstance which would show that the sudden stoppage of the bus in middle of the road was wholly unjustified.
40. On behalf of respondent Corporation, it was on the other hand argued that deceased who was following the bus on the motor cycle was under an obligation to maintain a safe distance from the bus going ahead of him to ensure that in the event of the bus being stopped suddenly the motorcyclist does not crash into it. That was according to respondent Corporation even otherwise a well recognised rule applicable to vehicular traffic on the roads. Inasmuch as the accident had occurred on account of the failure on the part of the motorcyclist to maintain a safe distance from the bus and his inability to control the motor cycle when the bus driver applied the brakes, the accident could not be said to have been caused by any rash and negligent act of the driver. It was submitted that even when a plea of contributory negligence had not been taken in the objections filed on behalf of the Corporation, the Tribunal could upon proper appreciation of the evidence adduced by the parties record a finding whether or not and if so to what extent had the drivers of the two vehicles contributed to the occurrence of the accident. The fact that the motorcyclist coming from behind had failed to maintain a safe distance and had thereby failed to act as a prudent man placed in his position would have acted necessarily implied that the motorcyclist had also contributed to the occurrence of the accident in an equal measure.
41. The core issue that arises for consideration is whether the deceased motorcyclist had caused or could be said to have contributed to the occurrence of accident. Before dealing with that aspect it is necessary to advert to another argument that was advanced on behalf of the claimants. It was contended that the absence of a specific plea in the objections to the effect that the deceased had himself contributed to the occurrence of the accident ought to prevent the respondent Corporation from contending that he indeed had so contributed. It is common ground that objections filed by the respondent Corporation did not raise a plea of contributory negligence of the deceased. What the Corporation had alleged was that the accident in question had taken place entirely due to negligence of the deceased motorcyclist. That plea was in my opinion sufficient to entitle the Corporation to argue that the accident had occurred, if not wholly, at least in part on account of the negligence of the deceased himself. The fact that the objections did not in specific terms attribute 'contributory negligence' to the deceased did not make any material difference. The defence taken by the Corporation being wider in scope, any plea of contributory negligence sought to be urged on its behalf, was implicit and, therefore, open to it at any stage.
42. That apart, the question which the Tribunal was called upon to answer and which arises even for the consideration of this court is whether the accident had taken place on account of the fault of the driver of the bus as alleged by the claimants or on account of the fault of the motorcyclist as stated by the respondent Corporation. While examining the said question, the court could in my opinion legitimately come to the conclusion that the accident had taken place neither on account of the fault of the driver of the bus nor that of the deceased motorcyclist but on account of the contributory negligence of both the drivers involved in the accident. The absence of a specific defence based on contributory negligence could not preclude the court from finding the driver of the bus guilty of negligence and the deceased having contributed to the occurrence of the accident to the extent the evidence on record established the same. It is trite that an argument based on contributory negligence has to be substantiated by the party who advances that argument, but it is equally true that for discharging that burden, the party concerned need not lead evidence. As observed by the Division Bench of this court in Sharada Bai v. Karnataka State Road Transport Corporation, 1988 ACJ 490 (Karnataka), contributory negligence can be-and very often is- inferred from the evidence adduced on the claimants' behalf or from the perceptive facts either admitted or found established, on a balance of probabilities in the case. The absence of a specific plea may not therefore be conclusive of the matter nor can the argument that the deceased motorcyclist had contributed to the occurrence of the accident be rejected summarily only because a specific plea in that regard, was not raised in the objections.
43. What then is contributory negligence and how far can it be attributed to the deceased motorcyclist in the instant case has to be answered. Lord Denning, L.J., as he then was, in Jones v. Livox Quarries Ltd., (1952) 2 QB 608, explained 'contributory negligence' thus:
"Although contributory negligence does not depend on a duty of care, it does depend on foresee- ability. Just as actionable negligence requires the foresee- ability of harm to others, so contributory negligence requires the foresee- ability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless."
44. The above statement of law was approved by the House of Lords in West Wood v. Post Office, (1973) 3 All ER 184. The legal connotation of the expression 'contributory negligence' is the plaintiffs failure to meet with the standard of care to which he is required to conform for his own protection and which is a contributing cause, together with the defendant's default; in bringing about his injury. Stated differently, it means nothing more than the failure of the claimant to avoid getting hurt by the defendant.
45. Coming then to the facts of the instant case, the deceased was riding his motor cycle behind the Corporation bus which according to the claimants' version was going at a high speed. That version if accepted as correct given the testimony of Shekar Harigouda Patil, PW 2, cannot but suggest that even the motorcyclist was driving in pursuit at an equally high speed. An inference to that effect is inevitable in the light of the admitted facts that when the bus stopped, the motorcyclist could not do so and crashed into the former. For the driver of the bus driving the vehicle at a speed which is safe for not only the passengers travelling in the same but also pedestrians on the road including other motorists was an obligation that could not be denied. That he stopped the bus according to the version of PW 2 in the middle of the road without any signal, even if taken at its face value, would only mean that there was a failure on the part of the driver to adhere to the rules of safe driving which enjoined upon him to drive at a reasonable speed having due regard for the requirements and rights of other road users like the deceased motorcyclist. Rules of the Road Regulations, 1989, framed by the Central Government under Section 118 of the Motor Vehicles Act, 1988 prescribe the rules which the drivers of motor vehicles have to observe while driving on the road. Regulation 13 of the said Regulations stipulates the signals to be given by drivers of all motor vehicles. Regulation 13 to the extent the same is relevant for our purpose reads thus:
"13. Signals to be given by drivers.- The following signals shall be used by the drivers of all motor vehicles, namely:
(a) When about to slow down, a driver shall extend his right arm with the palm downward and to the right of the vehicle and shall move the arm so extended up and down several times in such a manner that the signal tan be seen by the driver of any vehicle which may be behind him.
(b) When about to stop, a driver shall raise his right forearm vertically outside of and to the right of the vehicle, palm to the right."
46. The driver of the bus did not according to Shekar Harigouda Patil, PW 2, give any signal before stopping the bus, as was expected of him in terms of the above regulation. This version coming from a witness who was seated in the last row, on the left of the bus, may sound unworthy of credence, but, since the driver of the bus did not appear to controvert that version and no other evidence to the contrary was adduced by the Corporation, one could accept as true the version of the witness. Reference may also be made to Regulation 24 of the Regulations which forbids sudden application of brakes except when it is necessary to do so for safety reasons. The driver of the bus has not appeared to explain why it became necessary to suddenly stop the bus and in particular whether there was any safety reason for doing so. The bus driver was therefore on both counts guilty of negligence, resulting in accident. That is not, however, the end of the matter. The motorcyclist who was following the bus was in the very nature of things under an obligation to maintain a safe distance from the bus. That was all the more so in situations where the bus and the motorcyclist were both going at high speed. The motorcyclist ought to know as a reasonable and prudent person placed in his position that unless he maintained a safe distance from the bus commensurate with the speed at which the two are driving, he was taking a grave risk of crashing into the bus should the bus driver suddenly apply the brakes either out of necessity or even carelessly. The standard of care which motorcyclist was required to take in such a situation ought to be much higher to be determined by his ability to stop motor cycle without crashing into the bus should the contingency to do so arise. Demands of prudence apart one of the well recognized traffic rules applicable to vehicular traffic is that a vehicle at the rear ought to maintain a safe distance from the vehicle in front all the time keeping a margin for the possibility of the driver in front committing a mistake or an act of carelessness. Regulation 23 of the Regulations mentioned above gives statutory recognition to what is a rule of prudence that plays a significant role in the maintenance of safety on the roads. It reads thus:
"23. Distance from vehicles in front.- The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."
47. The deceased had in the instant case obviously failed to maintain a safe distance. The result was that when the bus driver applied its brakes, he was unable to control the motor cycle with the result that he crashed into the bus from rear and paid a heavy price for the same. It is true that the crash was not entirely because of the fault of the motorcyclist, for the bus driver too had committed a violation of the regulations by applying the brakes suddenly but that is far from saying that the accident occurred entirely due to fault of the bus driver. The contributory negligence of the deceased in driving too close to a speeding bus cannot be ignored while determining the amount of compensation payable to the claimants.
48. There was yet another angle which the claimants sought to highlight in an attempt to show that accident had occurred entirely due to negligence of the driver of the bus. It was argued on the strength of the deposition of Shekar Harigouda Patil, PW 2, that the bus had overtaken the motor cycle and was then suddenly stopped without giving an opportunity to the motorcyclist to maintain what could be said to be a safe distance. The deposition of Shekar Harigouda Patil, PW 2, no doubt suggests that the motorcyclist was going ahead of the bus and that the bus overtook the same and then suddenly stopped without giving any signal. This version is not, however, in tune with the case set-up by the claimants in the claim petition. The version given in the claim petition on the contrary was that the bus was going ahead of the motor cycle but when the same was suddenly stopped in the middle of the road, the motorcyclist could not apply the brakes or control the motor cycle with the result that he crashed into the bus from behind fatally injuring himself. There is no indication in the claim petition that the accident had occurred on account of the bus overtaking the motor cycle and suddenly stopping without any signal. The version given by Shekar Harigouda Patil, PW 2, is therefore an obvious improvement which the court shall have to ignore while recording a finding as to contributory negligence of the two vehicles.
49. I am for what is stated above inclined to agree with the view expressed by S.B. Majage, J., that deceased motorcyclist was also responsible to the extent of 25 per cent in the occurrence of the accident. The appeal could, therefore, be allowed. Order passed by the Tribunal set aside and the matter remanded to the Tribunal for being disposed of afresh in accordance with law.
S.R. Nayak and S.B. Majage, JJ.
14.6.2004
50. In view of the opinion of the majority, we allow the appeal in part, set aside the impugned award passed by the M.A.C.T. and remand the proceedings to the M.A.C.T. with a direction to dispose of the claim petition afresh in accordance with law and in the light of the opinion of the majority. In the facts and circumstances of the case, the parties are directed to bear their respective costs.