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Indian Trade and General Insurance Co. Ltd. and ors. Vs. Madhukar Govind Rao Bhagade - Court Judgment

LegalCrystal Citation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 13 of 1964
Reported inAIR1967MP110; 1967CriLJ545
ActsMotor Vehicles Act - Sections 110D
AppellantIndian Trade and General Insurance Co. Ltd. and ors.
RespondentMadhukar Govind Rao Bhagade
Appellant AdvocateA.P. Sen, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionAppeal partly allowed
Cases ReferredRushton v. National Coal Board
- - hence, unless he succeeded in establishing all these matters, he must fail......he was injured, that his injury was due to the defendant's fault and the fact and extent of his loss and damages; hence, unless he succeeded in establishing all these matters, he must fail. in virtue however of the statute he need only establish the first and the third elements, i.e., that he was injured by the defendant and the extent of his damages: as to the second, the onus is removed from his shoulder and if he establishes the two matters in respect of which the onus still remains on him. he may close his case because it is then for the defendant to establish to the reasonable satisfaction of the jury, that the loss, damage or injury did not arise through the negligence or improper conduct of himself or his servants.' but the tribunal fell in error in overlooking the fart that.....

Shiv Dayal, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, is from the award of the Motor Accident Claims Tribunal (hereinafter called the Tribunal) whereby a sum of Rs. 8,600 has been allowed as compensation to the respondent against the three appellants. They have appealed. The claimant has filed cross objections.

2. The respondent was going in a rickthaw on the Mahatma Gandhi Road, Raipur, from Manohar Talkies side towards Sharda Chowk. In front of the Mahakoshal Press, the rickshaw was dashed against by a motor truck. No. M.P.R. 2656, belonging to the Lucky Bharat Garage, (appellant No. 2). Baldeoraj (appellant 3) was driving the truck. The respondent's case was that the truck was being driven at a very great speed. As a result of the above accident, he received serious personal injuries. He was admitted to the D. K. Hospital, Raipur, for treatment. His monthly income was about Rs. 260. He claimed Rs. 750 for the medical expenses incurred; Rs. 10,000 as general damages and Rs. 4,250 as exemplary damages for loss of employment and business; total Rs. 15,000.

3. The appellants resisted the claim contending that the truck had been parked on the katcha portion of the Mahatma Gandhi road on the left side, its face being towards Manohar Talkies side; that a rickshaw, which was running at a great speed, with its handle and body wavering, came from Manohar Talkies side, while another rickshaw, which was also coming from that very side and at a very great speed, was chasing the former and trying to overtake it, and a third rickshaw, running at a terrible speed came from the opposite direction; that all the three rickshaws simultaneously happened to reach a point, near which the truck had been parked; that the second rickshaw overtook the first, while the third rickshaw, in its endeavour to avoid collision with the second rickshaw, swerved towards its right hand side and dashed against the first rickshaw and then again swerved towards its left, and, in so doing, it caused two scratches on the body of the truck.

4. The Tribunal found that the accident did not take place in the manner contended by the truck driver; that the applicant suffered injuries as alleged; and that all the three non-applicants were liable to pay Rs. 8,600 to the applicant jointly and severally. The appellants are aggrieved by the award.

5. It is first contended that the Tribunal put the burden of proof on wrong shoulders inasmuch as it was for the claimant to prove negligence of the truck driver.

6. In our opinion, the appellants are right in their contention that the Tribunal erred in placing the burden of proof wrongly on their shoulders. The Tribunal, in framing issue No. 2-B:

'whether the accident took place in the manner contended by N. A. 2? If so, effect?'

placed the burden on the driver. It appears from paragraph 8 of its judgment that it relied on Winnipeg Electric Co. v. Jacob Geel, AIR 1932 PC 246 where it was laid down as follows:

'Apart from the section a plaintiff claiming damages for personal injury in a running-down case would have to prove that he was injured, that his injury was due to the defendant's fault and the fact and extent of his loss and damages; hence, unless he succeeded in establishing all these matters, he must fail.

In virtue however of the statute he need only establish the first and the third elements, i.e., that he was injured by the defendant and the extent of his damages: as to the second, the onus is removed from his shoulder and if he establishes the two matters in respect of which the onus still remains on him. he may close his case because it is then for the defendant to establish to the reasonable satisfaction of the jury, that the loss, damage or injury did not arise through the negligence or improper conduct of himself or his servants.'

But the Tribunal fell in error in overlooking the fart that the Privy Council was dealing with a particular statute, namely, the Manitoba Motor Vehicles Act, Section 62 of which erected a special rule of evidence in placing onus on the driver to prove want, of negligence. Their Lordships made it clear that but for the statute the burden was on the claimant and the driver would be held liable if the evidence established the driver's negligence. In our opinion, the Tribunal was in error when it applied the Privy Council decision to this case.

7. It was then contended before us by the learned counsel for the appellants that the principle 'res ipsa loquitur' applied to this case. It is clear to us that that maxim (the thing speaks for itself) comes into play in rases where the exact cause of the accident is not known and the res can speak for itself so as to throw the inference of negligence or laches upon the defender. Facts and circumstances of an accident may by themselves lead to a reasonable inference of negligence, although there may not be direct proof of negligence. In an action based on negligence, the maxim is merely a rule of evidence affecting onus, but does not alter the general rule that the onus to prove negligence rests upon the claimant. The defender may rebut the inference by proving specific cause of the accident. When the claimant puts forward a definite cause of accident, the abstract doctrine of res ipsa loquitur may not be attracted. See Gwalior and Northern India Transport Co. Ltd. v. Dinkar Joshi, AIR 1956 Madh Pra 214; Nagamani v. Corporation of Madras, AIR 1956 Mad 59 and Kotah Transport Ltd. v. Jhalawar Transport Service Ltd., AIR I960 Raj 224. See also State of Punjab v. Modern Cultivators, AIR 1965 SC 17.

8. Although we have found that the burden of proof was wrongly placed on the appellants, evidence having been fully adduced by the contesting parties, the question of burden of proof became academic. The Tribunal has believed the respondent's case and has found it proved positively. It has relied on his evidence and of the rickshaw puller, Sukhchand (A W 3), and an eye witness, Arun Kumar (A W 4). The evidence of Baldeoraj, driver (N A W. 1) is different from his story as narrated in the written statement. The evidence of Kedarnath Jhawar (N W 2) also does not inspire confidence. Having carefully perused all the depositions, we are of the opinion that the conclusion reached by the Tribunal as regards the credibility of the witnesses, produced by both the parties, is right. It is a remarkable fact that there were scratches on the left mud-guard of the truck. which was not disputed before us and which is supported by the report of the Motor Vehicles Inspector. This supports the claimant's case and is inconsistent with the driver's story that the truck had been parked on the left side of the road, and it was one of the three rickshaws which came and collided against the standing truck.

9. As between a cyclist and the driver of a motor vehicle, undoubtedly, the letter's responsibility to use care and diligence is greater. The duty to use care increases proportionately to the danger involved in dealing with a vehicle. In the case of an accident when it is found that the negligent act or omission of the person causing it was proximate and efficient cause of the negligence, which resulted in the injury, it is no defence that the person injured was also negligent, unless it is shown that the person injured had made it extremely difficult, if not impossible, for the person responsible for the accident to avoid it. In our opinion, the law was correctly laid down in Provincial Automobile Co. v. Narayan Krishnarao. TLR (1943) Nag 577: (AIR 1943 Nag 252).

10. Before us it was contended for the appellant that this was a case of an inevitable accident. In an action based on negligence, when the plaintiff succeeds in proving prima facie the defendant's negligence, the burden is thrown upon the defendant to establish the facts negativing his liability. One of the ways in which he can do this is proving inevitable accident. It is an inevitable accident where a person in doing an act. which he may lawfully do, causes damage without either negligence or intention on his part. (See Charlesworth on Negligence, Third Edition, p. 547). In The Marpesia, (1872) LR 4 PC 212 (220). citing Dr. Lushington in The Virgil. (1848) 2 Wm Rob 201 (205) ). it was said:

'An inevitable accident in point of law is this: viz., that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill.'

There is no distinction as regards inevitable accidents, between cases which occur on land and those which occur at sea. This was observed by Lopes, L. J., in The Schwan, 1892-P 419. The burden of proof of inevitable accident in upon the person setting it up. See The Merchant Prince, 1892-P 179 and Esso Petroleum Co Ltd. v. Southport Corporation, 1966-2 WLR 81. In order to sustain that plea, the party setting it up must show what the cause of the accident was and further that the result of that cause was inevitable, or must show all the possible causes, one or the other of which produced the effect, and must further show with regard to every one of those possible causes that the result would not have been avoided. In the present case the appellants could not make out any such case.

11. The applicant sustained the following injuries on his person:

(1) Lacerated wound 1' x 1/2' on the left side of the face 1/2' below the margin of the lower lid of the eye with a swelling on an area of 2' x 2'

(ii) Abrasion 1' x 1/2' on the front of the middle of the left shoulder.

(iii) Simple fracture of the left clavicle.

(iv) Abrasion 1/2' x 1/2' on the outer side of the right elbow.

(v) Abrasion 1' x 3/4' on the outer side of the right hip.

(vi) Compound fracture of the frontal and left parietal bone of the head. Clots of blood were present in the wound which was lacerated extending from the bridge of the nose upwards and to the left 6' x 1/2' and through which the fractured frontal bone and left parietal bone could be seen exposing the duramater which appeared to be intact. All the injuries were caused by hard and blunt object.

This has been fully established by the evidence of Dr. Mehta (A. W 1). Assistant Civil Surgeon, Raipur. There is nothing to disbelieve that part of the case.

12. This brings us to the question of the quantum of damages. As regards the pecuniary loss suffered by the respondent, he claimed Rs. 750 as costs of medical aid and treatment. In our opinion, it is clear law that reasonable costs of cure may be recovered Expenses of medical treatment, of attendance of doctors and nurses, of medicine and appliances, of hospital fees, of transportation to hospital, of nursing attendance between the place of injury and the plaintiff's home, are all recoverable. (See Mayne and M.C. Gregar on Damages, 12th Edition, at page 759). Where damages are claimed for pecuniary loss, the Court has to form an opinion from the evidence and probabilities in the case and the nature and extent of the loss. As regards medical and nursing expenses, the Court must find as a fact what expenses were really incurred. It is contended for the appellants that the claimant did not adduce any evidence to prove the expenses of Rs. 750. In our opinion, this contention must be given effect to. The Tribunal has merely relied on the statement of the applicant that he was first treated In the D.K. Hospital, Raipur from 5-6-1961 to 20-6-1961, as per certificate (Ex. A-2); he then went to the Medical College Hospital, Nagpur, for further treatment in support of which he produced Exs. A-8, A-4 and A-6, and from Nagpur, he went to the hospital at Yeotmal for treatment, in support of which he produced Exs. A-6 to A-10. He further said that his relations had attended on him during all the period while he remained under treatment at various hospitals. The Tribunal observed:

'Looking to different types of treatment given to the applicant at various places and the nature of injuries sustained by him and the period of treatment, the amount of Rs. 750 shown as costs of medical charge and treatment seems to be reasonable.'

in our opinion, the Tribunal fell in error in not appreciating the fact that the only items proved by the applicant were a receipt from the D.K. hospital, Raipur. (Ex. A-11) for Rs. 110 on account of room rent from 9-6-1961 to 20-6-1961, and another receipt for Rs. 10 for dialhemy (Ex. A-4). The other documents were neither proved, nor do they indicate what expenses were actually incurred. Learned counsel for the respondent was unable to place before us any other Hems as proved by the applicant. Thus, the claimant was entitled only to Rs. 120 on account of medical expenses.

13. As regards loss of earning, the Tribunal has found that the respondent remained out of employment from the date of the accident, namely, 5 June, 1901 upto the end of 1962. Calculating at Rs. 150 per month a sum of Rs. 2850 has been awarded under this head. Nothing has been shown to us to disturb that finding. Accordingly, we uphold it.

14. We would now advert to the head of non-pecuniary damages, which the Tribunal has assessed at Rs. 5,000 as against Rs. 10,000 claimed by the respondent. While considering the question of general damages, the items of loss and injury for which compensation is claimed have to he ascertained and then the Court has to see how those items are to be quantified or reduced to terms of money. Considerations relevant to these questions have been recapitulated in Kumari Deepti v. Seth Banwarilal, Misc. First Appeal No. 51 of 1963, dated 23-12-1965: (ATR 1966 Madh Pra 239). In that case we have referred to certain cases. Here, we would refer to one more case. In British Transport Commission v. Gourley. 1955-3 All ER 796, the respondent was a passenger in a train which became derailed. As a result of this accident, which was caused by the negligence of the appellant's servants or agents, the respondent suffered severe personal injuries. He was 65 and was physically fit and young for his age. He was an eminent Civil Engineer. From the date of the accident (21 September 1959) until some lime in 1952, he was disabled by his injuries from taking any effective part in his business and though he returned to work during 1952, his earning capacity and consequently, his income, was much reduced. The trial Judge entered judgment for a total of 47,720 pounds as damages, made up of 9,000 pounds for pain and suffering and loss of amenities, 1,000 pounds for out of pocket expenses, and 37,720 pounds. in respect of loss of earning actual and prospective. The House of Lords reduced the amount of damages in respect of loss of earning to 6,695 pounds maintaining the other two items of damages, (for pain and suffering, and loss of amenities) and in the result the sum of 16,695 pounds was substituted for 47,720 pounds.

15. In the present case it is not disputed before us that the applicant sustained a simple fracture of the left clavicle and compound fracture of the frontal and left parietal bones of the head, besides other simple injuries on his person. He cannot raise his left arm properly and has also suffered permanent disfiguration. His vision has also been impaired. Our attention was invited to the respondent's statement that there was no pain after a month. But in our opinion, even pain for one month must be compensated. What is more, and is significant in this ease, is that there is permanent disfiguration and that is a matter for constant menial distress to the respondent.

16. As pointed out in Kumari Deepti, Misc. First Appeal No. 51 of 1963, dated 23-12-1965: (AIR 1966 Madh Pra 239) (supra), the matter was to be decided in the discretion of the Tribunal. And, where the Tribunal has exercised its discretion and it is not shown by the appellant to be arbitrary, and the amount awarded does not appear to be so excessive as to demand interference, the discretion of the trial Court should be maintained. Merely because, left to us or sitting as a Tribunal, we would have allowed Rs. 3,000 or Rs. 4,000, does not justify interference in appeal. This is not to say that we have no jurisdiction to alter the amount of general damages. This Court undoubtedly can, and in a suitable case will, enhance or reduce the amount awarded by the Tribunal. The Court of Appeal interferes when the trial Court's estimate of the damage is 'wholly erroneous' (see Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601); or the amount awarded is either 'so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage' (Nance v. British Columbia Electric Rly., 1951 AC 601); or when it is 'so excessive as to be unreasonable' (Greenfield v. London and North Eastern Rly., 1944-2 All ER 438 at p. 440). Referring to these cases in Rushton v. National Coal Board, 1953-1 QB 495 al pp. 500-501, Lord Birkell L. I. said, how those actual tests are to be applied is always a mailer of some difficulty'.

17. Cross-objections have been filed by the respondent claiming enhancement of the amount awarded by the Tribunal to Rs. 15,000. It may be recalled that for allowing general damages, there is no yard-stick, which would determine the quantum of damages with any exactitude. The matter is discretionary and unless it is shown that the Tribunal proceeded on a wholly erroneous estimate, the amount awarded by the Tribunal will not ordinarily be interfered with. The respondent has not been able to place before us anything to warrant an enhancement of the amount of damages.

18. For all these reasons we maintain the amount of non-pecuniary loss. Rs. 5,000 as awarded by the Tribunal.

19. In the result, this appeal is partly allowed. The amount of Rs. 8,600 allowed by the Tribunal is reduced by Rs. 630, so that the respondent is held entitled only Rs. 7,970 (Seven Thousand nine hundred seventy) The rest of the appeal is dismissed. The cross-objections are dismissed. We leave the parties to bear their own costs as incurred in this Court and in the Tribunal,

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