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Krishan Dayal Alias Keshavdayal and anr. Vs. Vishnu Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1(1984)ACC142
AppellantKrishan Dayal Alias Keshavdayal and anr.
RespondentVishnu Prasad and anr.
Cases Referred and Bhagwati v. Chandramaul
Excerpt:
.....mental agony suffered by him - it further held that as the driver had failed to explain the manner in which the accident had taken place, it has to be accepted that the accident took place in the manner as alleged by the claimants and that bhagwandas, his mare and calf died due to the accident on account of rash and negligent driving of the driver. p-1 of the place of incident showing the position of the bus and the deceased as well as his horse and calf. it may be pointed out that the conductor nandram singh (pw 7), in his report, clearly stated that the bus was in speed and that the driver could not control the bus, a result of which the bus toppled down. there person in control of a vehicle must keep a good look out in all directions of the road and when he notices another user..........act, 1939, (hereinafter referred to as the act) against the award dated 27-8-77 made by the motor vehicle accident claims tribunal, sagar, in motor vehicle case no. 27-b/76, awarding a total sum of rs. 9500/- to the claimants-respondents as compensation for the death of their father resulting from the accident.2. on 25-11-76 at about 5.00 p.m. the deceased bhagwandas, father of the claimants-respondents was returning to his village raikheda on horseback from rahli along with onkar (p.w. 3), who was driving on another horse. a calf belonging to bhagwandas also accompanying them. on the aforesaid date at about the same time, the bus no. m.p.k.. 3994 belonging to the appellant no. 1, driven by the driver, appellant no. 2, come from rehli sideheanding towards deori. the bus first hit the.....
Judgment:

Faizan Uddin, J.

1. This is an appeal by the owner of the bus and driver Under Section 110(D)of the Motor Vehicles Act, 1939, (hereinafter referred to as the Act) against the award dated 27-8-77 made by the Motor Vehicle Accident Claims Tribunal, Sagar, in Motor Vehicle Case No. 27-B/76, awarding a total sum of Rs. 9500/- to the claimants-respondents as compensation for the death of their father resulting from the accident.

2. On 25-11-76 at about 5.00 P.M. the deceased Bhagwandas, father of the claimants-respondents was returning to his village Raikheda on horseback from Rahli along with Onkar (P.W. 3), who was driving on another horse. A calf belonging to Bhagwandas also accompanying them. On the aforesaid date at about the same time, the bus No. M.P.K.. 3994 belonging to the appellant No. 1, driven by the driver, appellant No. 2, come from Rehli sideheanding towards Deori. The bus first hit the calf, as a result of which the calf fell on the ground and then the bus toppled down crushing the horse and the deceased Bhagwandas, who were on the left side of the road, as a result of which the horse died on the spot. Bhagwandas and the calf died later in the hospital. The respondents claimed compensation of Rs. 95500/-for the loss of their father and also for loss of the horse and calf contending that the accident had resulted due to rash and negligent driving on the part of the driver, the appellant No. 2.

3. The defendants-appellants contested the claim by contending that the driver of the bus was not rash or negligent but the accident had taken place because the calf suddenly came in front of the bus and dashed against it and when the driver swerved the bus to save the calf, it slipped and turned down, as a result of which the deceased and his horse were injured. It was also contended that the deceased Bhagwandas and his horse had not died as a result of the impact of the bus but due to fall on the ground and, therefore, defendants were not liable for any compensation. It was further contended that in any event the claim was highly inflated.

4. After recording the evidence, the learned trial Judge of the Tribunal held that the doctrine of res-ipsa-loquitur applied to the facts and circumstances of the case, and, therefore, burden was on the driver, the appellant No. 2, to show that he was not driving the vehicle rashly and negligently because at the relevant time the bus was under his control and he alone could explain as to how the accident happened. It further held that as the driver had failed to explain the manner in which the accident had taken place, it has to be accepted that the accident took place in the manner as alleged by the claimants and that Bhagwandas, his mare and calf died due to the accident on account of rash and negligent driving of the driver. The Tribunal, therefore, awarded a sum of Rs. 1000/- for loss of mare, Rs. 200/-as loss of calf, Rs. 100/- as expenses incurred for taking the dead-body of Bhagwandas in a jeep from the Rehli to Village Raikheda, Rs. 1000/- as funeral expenses and sum of 7200/- as pecuniary loss resulting from death of Bhagwandas (total Rs. 9500/-). This appeal, at the instance of the owner of the vehicle and its driver, has been directed against the said award.

5. Learned Counsel for the appellant contended that both the parties produced evidence as to how the accident took place therefore, the question of burden of proof negligence is irrelevant. He, therefore, contended that the Tribunal had placed the burden of proof on the driver by applying the doctrine of res ipsa loquitur. In support of his contention he cited several decisions. But, I do not feel it necessary to refer to those decisions as there is no dispute regarding the application of the rule of res-ipsa-loquitur. As a normal rule it is the duty of the claimants to prove the negligence on the part of the driver of any vehicle. But, there may be cases in which the claimants may not be knowing the cause of the accident, which may be known exclusively to the person who caused the accident and in such a situation the claimant cannot lead evidence as to how it happened so as to prove the negligence of the driver. It is in such cases that the principle of res-ipsa-loquitur is applied to relieve the claimants from the hardship with which they are confornted. The main object of the maxim 'res ipsa loquitur' is that the accident 'speaks for itself' or tells its own story. In the cases, therefore, where the cause of accident is not known to the claimants, it is sufficient for them to prove the accident and nothing more. In the principle of res-ipsa-loquitur, it would be the duty of the driver to explain that the accident did not happen due to his own negligence. But as would be clear from hereinafter discussion, there was evidence to show as to how the accident happened and as such there was no question of applying the rule of res-ipsa-loquitur. In these circumstances, the learned Counsel for the appellants was right in submitting that the burden was wrongly placed on the defendants-appellants. But even otherwise, on perusal of evidence it is clear that even placing the burden on the claimants, they had fully discharged the same.

6. I will now advert to the evidence on record as to the manner in which the accident had occurred. Onkar Prasad (PW 3), Harigovind (PW 4) and Nandramsingh (PW 7) were the eye-witnesses of the accident. Onkar (PW 3) was accompanying the deceased Bhagwandas when they were returning on their respective horse-backs from Rehli. He deposed that they were on their horses on the left side of the road while the calf was accompanying them. The bus came from behind on right side of the pattri. On approaching the bus, the calf ran form right side and was hit by the bus as a result of which the calf fell down. He further deposed that the bus also toppled down and fell down on Bhagwandas and his horse, as a result of which the horse died then and there. He went on to state that the whole body of horse and half lower part of Bhagwandas came under the bus and Bhagwandas was pulled out and taken to the hospital where he died. Harigovind (PW 4) was a passenger in the bus. He stated that the bus was in speed and when the horn of the bus was blown, the calf ran and hit by the bus. The bus also toppled down and that Bhagwandas and horse came under the bus. The horse was completely under the bus, and, therefore, it died then and there. The body of Bhagwandas below the waist came under the bus. He reported the incident to the police soon after the accident, Ex. P. 2 is a copy of that report. He also got prepared a map Ex. P-1 of the place of incident showing the position of the bus and the deceased as well as his horse and calf. Nandram Singh deposed that there was a ghati where the accident took place and there was sufficient slope. He further deposed as the driver blew the horn, the calf got scared, the driver tried to save the calf and took the bus on the other side but the bus turned down hitting the horse and its rider and both fell down. It may be pointed out that the conductor Nandram Singh (PW 7), in his report, clearly stated that the bus was in speed and that the driver could not control the bus, a result of which the bus toppled down.

7. Bashir Mohammad (PW 6) was the Patwari who prepared the map Ex. P 1, according to which the road at the place of incident was 12 feet wide and on each side of the road there was 10 feet wide Patri (sidings) and there was no bridge. Rampadarth (P.W. 8) is the head constable who inspected the bus and gave his report Ex. P. 3. According to Rampadarth, there were marks of brake up to 21 paces, which according to him indicated that the bus was in a speed of about 50 Kms. when the accident occurred on the highway going from Rahli towards Chandpur.

8. From the evidence discussed above, it is clear that it was the State highway and there was ghati and down gradients where the accident took place. The evidence further shows that the bus was in speed and the driver did not slow down the vehicle even while negotiating ghati and that too in down gradients and the bus could be stopped only after 20 paces after the brakes were applied. There is also nothing to indicate that the driver slowed down the bus even on witnessing the horses with riders thereon and a calf going on the road. The driver of the Vehicle should know that the behaviour of the animals on the highway is always unpredictable and on hounding the horn, they are likely to run and even cross the sides, and therefore, the driver has to be cautious enough to meet the situation and, more so while driving the vehicle on a highway. There person in control of a vehicle must keep a good look out in all directions of the road and when he notices another user of the road it becomes its bounded duty to so adjust the speed that in case of necessity he can stop the vehicle instantaneously before any accident happens. But, it appears that the driver was not careful and cautious enough to meet the situation even after witnessing that here were other users of the road going ahead. In these circumstances, I find that the driver himself was responsible for the unhappy incident in which a man and two animals loat their lives.

9. The learned Counsel for the appellants then contended that the plea of inevitable accident can be raised as a plea of defence even though it is not specifically pleaded if the facts and circumstances of the case show that such a plea was available. In support of this contention he relied upon two decisions Shakuntla Shridhar Shatty v. State of Maharashtra 1976 A.C.J. 368 Para 3 and Bhagwati v. Chandramaul : [1966]2SCR286 . There is no dispute as regards the preposition that the defence of inevitable accident may be taken if it is so made out from the material on record. But in that event the burden would be on the defendant to show that it was an inevitable accident. The facts and circumstances of the present case do not show that it was an inevitable accident for the reason that the defendant-driver had witnessed that there were other persons and animals going shead on the highway and that too there was ghati and down gradients and there was every possibility unpredictable behaviour of the animals, yet he took no precaution in slowing down the vehicle. The accident could have been very well avoided if the defendant-driver had taken a little care. In these circumstances, the decisions relied on do not help the appellants.

10. The learned Counsel for the appellants then contended that the compensation awarded was excessive and that no circumstance funeral expenses should have been awarded. The argument appears to be partly correct. As regards the compensation except the compensation for funeral expenses, I do not find any error in the Award given by the Tribunal. The age of the deceased was 50 years at the time of his death, which has not been seriously disputed. The longevity of the deceased would have been in all probabilities extended upto 60 years, i.e. he would have survived for another 10 years and according to the finding of the Tribunal he would have contributed at least Rs. 60/- P.M. to the family. The family was thus deprived of the said benefit for period of 10 years. There is thus no mistake or any error in awarding the pecuniary damages to the tune of Rs. 7200/-. Similarly, the evidence shows that the respondents had incurred the expenses in taking the body from Rehli to Raikheda in a jeep. The evidence of the bus owner could not be accepted in this behalf, as no evidence was led in rebuttal except his own bald statement. From the evidence the loss of mare and calf worth Rs. 1200/- has been further proved satisfactorily. I, therefore, confirm those findings.

11. In so far as the award of Rs. 1000/- as funeral expenses is concerned, in my opinion the same could not be sustained. For the reason that it was not a loss resulting from the accident. After all the deceased Bhagwandas, in any event, was certain and the funeral expenses would have been borne by his family members even if he had died a natural death. That being so, the award so far as it relates to the funeral expenses has to be set aside.

12. In the result, the appeal partly succeeds and is hereby allowed. The award of the tribunal is modified only to the extent that the claimants respondents are entitled to get a sum of Rs. 8,500/- instead of Rs. 9,500/-with interest as directed by the Tribunal. As the respondents have not come forward to defend this appeal, it is directed that the parties shall bear their respective costs of the appeal.


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