1. In a collision between two motor vehicles on a National Highway where each party blames the other of negligence and it is not possible to say that one account was more probably correct rather than the other, is the claim for damages by one against the other maintainable is the novel question that is raised in this motor accident case.
2. At about 12-30 P. M. the jeep APK 7145 belonging to the Government of Andhra Pradesh and driven by Ethirjulu, P. W. 3, collided with the motor car APP 9257 belonging to the first defendant and driven by the second defendant on the Vijayawada - Hyderabad National Highway near Gouravaram village. In the jeep P. W. 4 the Deputy Tahsildar, Jaggayyapet, P. W. 8, the Election U. D. Clerk, Jaggayyapet, two peons and one typist were travelling while in the motor taxi going in the opposite direction to wards Hyderabad, D. Ws. 3 and 4 and another person by name Hiladri Rao were travelling. As a result of the collision the jeep as well as the motor car sustained damages. All the occupants of the jeep as well as the driver of the car, D. W. 2 and the other occupants of the car received injuries. The driver of the motor car was prosecuted for rash and negligent driving before the Judicial First Class Magistrate, Nandigama, but he was acquitted on the ground that the accused was not guilty of rash and negligent driving. The state Government has then filed the suit before the Subordinate Judge, Vijayawada claiming a sum of Rs. 8,230-20 Ps. Towards damages caused to the jeep due to the rash and negligent driving of the motor car by the 2nd defendant. The third defendant alone viz., the New Premier Insurance Co., Kakinada, contested the suit and filed the written statement, while defendants 1 and 2 i.e., the owner and driver of the motor car respectively remained ex parte. A decree for Rs. 2000 against all the defendants and a decree for Rs. 6, 230 against defendants 1 and 2 was passed on 8-11-1973. Then the defendants 1 and 2 preferred an appeal A. S. No. 20 of 1974 to the District Judge, Krishna at Machilipatnam.
The learned Additional District Judge who heard the appeal confirmed the decree of Rs. 2,000 against defendants 1 to 3 and set aside the decree against the defendants 1 and 2 and remanded the suit for fresh disposal according to law. On remand, defendants 1 and 2 appeared in Court and filed a written statement and contested the suit. It was contended on behalf of defendants 1 and 2 that the car driven by the second defendant was proceeding on the left side of the road with normal speed from Vijayawada to Hyderabad, that the driver of the jeep came at high speed in a zig-zag manner on the left side of the road and dashed against the car and the car was heavily damaged. It was pleaded that the position of the jeep and the car at the place of accident and the damages suffered by each of the vehicles testify that it is the jeep that hit the car situate on the left side of the road. It was also pleaded that all the 3 passengers in the car D. Ws. 3 and 4 and Niladri Rao received serious injuries and that the damages caused to the car and the injuries suffered by the passengers would prove that the jeep alone came on the wrong side of the road and dashed against the car on its left side. Therefore , it was pleaded that the jeep driver was solely responsible for the accident and that the defendants were not liable to pay any damages to the plaintiff. The learned Subordinate Judge on a consideration of the evidence adduced in the case held that collision occurred due to the rash and negligent driving of the car APP 9257 by the 2nd defendant, that the evidence of P. Ws. 5 and 6 proved that the damages caused to the jeep were assessed at Rs. 8, 230 and accordingly decreed the suit against defendants 1 and 2 for Rs. 6,230 with subsequent interest at 6% per annum from the date of the suit since there was already a decree for Rs. 2,000 against all the three defendant.
3. Aggrieved against the said decision , the defendants 1 and 2 have preferred this appeal.
4. The learned counsel for the appellant submits that in view of the evidence of the Motor vehicles Inspector , P. W. 1 and the damages suffered by each of the vehicles , and also the position of the jeep and the car at the place of the accident as spoken to by the Motor Vehicles Inspector, it has to be concluded on the applicability of Res Ipsa Loquitur (i. e. the thing speaks for itself) that the collision occurred on the right side of the road in the running direction towards Vijayawada and that the driver of the jeep was alone negligent in driving. Neither the evidence of P. Ws. 3, 4 and 8 who disposed that the car was driven by the second defendant at high speed on the wrong side nor the evidence of D. Ws. 2, 3 and 4 who swear that the jeep was driven by P. W. 2 at high speed can be accepted as more probably correct. It is natural in collision case for each party to blame the other of rashness and negligence. The Motor Vehicles Inspector, P. W. 1 stated in his evidence that from the damages caused to the vehicles he was of the opinion that both the vehicles were going on wrong side. He further stated that he found on the site of the accident, the jeep towards Vijayawada side on the right side road margin in the running direction towards Vijayawada. The taxi cab was found roughly at the centre of the load in a diagonal position facing towards Hyderabad side. He examined the two vehicles and the damages sustained by both the vehicles were quite serious. He noticed the following damages on the jeep:
'Front bumper front left portion was damaged. Steering drag link near centre tie rod broken; the front left shock absorber was damaged; front left spring centre bolts and clamps were broken , front left head light glass was broken; left head light glass was broken; front left mudguard was badly damaged; the bonnet and radiator were damaged; blades of the fan were damaged; hosepipe was broken; top road frames were damaged'.
He also inspected the taxi and the damages noticed were these:
'Bonnet was completely damaged. Raditor was broken. Fan blades were shell was badly damaged; front bumper was damaged; head lights were damaged; chassis front portion was bending; suspension left side front portion was damaged. Front left door was damaged. Left side top portion of the body and the steering wheel were damaged with wind screen glass was broken. Dash board was damaged; front right side door was also damaged, cylinder was damaged'.
According to him, the impact was on the left side portion of the body of the car and the jeep was also damaged on the left side. It is thus clear from the evidence of the Motor Vehicles Inspector that both the vehicles were damaged only on the left side and after the accident he found the jeep on the right side road margin and the taxi cab at the centre of the road in a diagonal position facing towards Hyderabad side. It is impossible to imagine the damages being caused to both the vehicles on the left side if any one of them was going on the right side. If only one of the vehicles was going on the wrong side and the other was coming on the right side, the damages should have been on the left side to one vehicle and on the right side to the other vehicle. The doctrine of Res Ipsa Loquitur (the thing speaks for it self) is undoubtedly attracted to the facts of this case. On the basis of the evidence of the Motor vehicles Inspector and the doctrine of Res Ipsa Loquitur the only conclusion that can be drawn in this case is that both the vehicles were going on the wrong side at the time of the collision. Therefore, the drivers of both the vehicles were guilty of rash and negligent acts. In view of the evidence of the Motor Vehicles Inspector, P. W. 1, the damages caused to the vehicles and the position of the two vehicles at the place of accident, the evidence of persons travelling in the jeep P. Ws. 3, 4 and 8 as well as the evidence of the persons travelling in the car viz., D. Ws. 3 and 4 each blaming the other of gross negligence has to be rejected.
5. Charlesworth on Negligence VI Edition, has the following passage at page 527 in Chapter 12 dealing with the Highway and Transport:
'When there is a collision in the highway between two motor-vehicles and there is no evidence pointing to one driver being more to blame than the other, the proper inference is that they are both to blame.'
6. In Baker v. Market Harborough Industrial Co-operative Society, (1953) 1 WLR 1472 Denning Lord Justice observed:
'Where the evidence established that a collision between two motor vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness, when both drivers were killed, the inference, in the absence of any other evidence enabling the court to draw a distinction between them was that each driver was committing almost the same acts of neglingence- failing to keep a proper look-out and to drive his vehicle on the correct side of the road and accordingly both were equally to blame'.
7. In that case, two vehicles were descending the slope in the opposite direction and the collision happened at the bottom of the slope. Conflicting evidence was given as to the position of the two vehicles. After the accident there were no tracks on the road showing the course of either vehicle immediately preceding the collision. It was held;
'It seems to me that they both hugging the centre of the road and failing to give way to the other. In those circumstances, I would hold and I do hold , that the responsibility for this accident lies with the drivers of both the vehicles equality, they having , by proper inference, committed the same negligent acts of driving'.
8. The more important question that then arises is: whether in a case of collision between two motor vehicles where the drivers of both the vehicles are guilty of rash and negligent acts, the claim for damages by one party or the other can be allowed.
9. When the blame for causing the damages is to be shared, then damages ought to be apportioned in proportion of blameworthiness. The weight of judicial authority is in favour of the basis of blameworthiness or division of responsibility.
10. In Stapley v. Gypsum Mines Ltd., (1953) AC 663, Lord Reid observed;
'The Court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but 'the claimant's share in the responsibility for the damage' cannot , I think be assessed without considering the relative importance of his acts in causing the damages apart from his blameworthiness'.
11. In that case, two miners of equal status s., a breaker, and D., a borer, worked in the respondent's gypsum mine and were employed by them, neither being in charge of the other. At their working place, they found indications that the roof was dangerous and might fall and told the foreman, who instructed them to fetch it down, which they understood as including the corollary that they were not to do ordinary work under the roof until it had been made safe. After he had left they tried unsuccessfully to get the roof down and then, by a joint decision, abandoned the effort and proceeded with their normal work. The roof fell and S. was killed. The widow of S. sued his employers for damages in respect of his death. The learned judge found that the actions of both men were causes of death through the joint decision to continue to work under the roof. He also held that the foreman was justified in leaving them to carry out the order, for which they were competent, and that there was no lack of proper supervision. Accordingly he gave judgment for the widow against the respondents as employers of d., for one half of the amount which he would have been awarded if S. had not been also responsible for his own death. The Court of Appeal reversed that decision holding that any negligence and breach of the regulations by D. did not cause or contribute to the death of S. the real Cause of which was his own negligence and breach of statutory duty. The House of Lords held that D.'s fault for which his employers were liable, was a contributory cause of the accident which resulted in the death of S. and that there should be apportionment of damages having regard to the blameworthiness of each party. Accordingly 20% of the damages were alone awarded to S.
12. It is thus clear that the damages are to apportioned in accordance with the proportion in which the respondent's fault caused the damages. IT is true that before apportionment can be thought of it must be found that the plaintiff's fault has been one of the causes of the damage and once that condition has been fulfilled the damages must be apportioned according to the party's share of the responsibility. If the negligence on the plaintiff's part has also contributed to the damage this cannot be ignored in assessing the damages. A person can only be found 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. Only where the sole cause of the damage is the plaintiffs own fault, the claim for damages has to be dismissed. But where the fault lies on both sides the damages are to be apportioned according to the degree of fault.
13. In Koth Hung Keng v. Low Pee Lorru Transport Co. Ltd., 1967 ACC CJ 303 (FC of |Malaysia) it was held that in cases of collision where the Court was unable to say which of two parties were more to blame, they must be held both to blame and equally to blame.
14. In Sushil Kumar v. Binodhini Rath, : AIR1977Ori112 , Acharya, J. observed as follows :
'As both the vehicles werenegotiating a blind curve, the drivers of both the vehicles should have exercised extreme care and caution to drive their vehicles in such a manner which would have enabled them to steer clear their vehicles from anything on the road ahead of them. But, lack of caution and watchfulness on the part of the jeep driver does not absolve the truck driver of his responsibility in negotiating the bend in an extremely careful manner.'
15. Therefore the plaintiff cannot be deprived of the damages if the defendant could have avoided the result of his negligence. But the degree of the plaintiff's fault, his moral responsibility for the accident were important considerations in awarding damages. It is proverbial that nobody is expected to take more care than the latter is expected to do about his own safety. I have already found in this case that both the parties are equally to be blamed both normally and physically., Therefore, the damages have to be apportioned equally between the plaintiff and defendants 1 and 2. Accordingly the damages of Rs. 6230/- shall be shared equally between the plaintiff and defendants 1 and s. Therefore, there shall be a decree against defendants 1 and 2, for a sum of Rs. 3,115/- with subsequent interest from the date of the petition.
16. The appeal is partly allowed with proportionate costs.
17. Appeal partly allowed.