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Maya Mukherjee and ors. Vs. the Orissa Co-operative Insurance Society Ltd. (Now New India Assurance Co. Ltd.) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtOrissa High Court
Decided On
Case NumberA.H.O. Nos. 41 and 42 of 1975
Judge
Reported inAIR1976Ori224; 42(1976)CLT1129
ActsMotor Vehicles Act, 1939 - Sections 77 and 110B; Evidence Act, 1872 - Sections 114
AppellantMaya Mukherjee and ors.
RespondentThe Orissa Co-operative Insurance Society Ltd. (Now New India Assurance Co. Ltd.)
Appellant AdvocateR.C. Patnaik, Adv.
Respondent AdvocateG.B. Mohanty and ;S.K. Patnaik, Advs.
DispositionAppeals allowed
Cases ReferredSabita Pati v. Rameshwar Singh
Excerpt:
.....to place the best evidence before the tribunal to establish their respective stands. it is too well settled to be repeated at any length that parties owe an obligation to place the best evidence before the court and are not entitled to lie by relying upon the burden of proof. the intersection at the point of accident is of a narrow width corresponding to the width of the side road which does not seem to be more than 15 to 20 feet at the best. between the two, as we have already indicated, the motor driver had the last opportunity which he could have effectively exercised and in case he did, the accident could have been averted. at the intersection, the motor car had precedence of crossing, but then the motor-cyclist appeared too close, the motor car had the last opportunity of avoiding..........while proceeding on a motor cycle to office from his residence emerged from a side lane into the main road inunit no. iii of new capital area of bhubaneswar running by the side of the then chief minister's official residence and one raghu swain was being carried on the backside of the said motor cycle. at that time on the main road running from the railway station to the secretariat and passing in front of the then chief minister's official residence, an ambassador car bearing registration no. orp 2186 of m/s. indersons construction, bhubaneswar, was being driven by its driver in which o. p. w. 1 abhoy charan mohanty, an employee of the owner of the vehicle, was the sole occupant. at the intersection of the roads towards the extreme left, the motor cycle dashed against the right side.....
Judgment:

R.N. Misra, J.

1. At about 1.00 P. M. on 29-5-1970, one Asis Mukherjee, then employed as an Accountant of the United Bank of India, Bhubaneswar Branch, while proceeding on a motor cycle to office from his residence emerged from a side lane into the main road inUnit No. III of New Capital area of Bhubaneswar running by the side of the then Chief Minister's official residence and one Raghu Swain was being carried on the backside of the said motor cycle. At that time on the main road running from the railway station to the Secretariat and passing in front of the then Chief Minister's official residence, an ambassador car bearing registration No. ORP 2186 of M/s. Indersons Construction, Bhubaneswar, was being driven by its driver in which O. P. W. 1 Abhoy Charan Mohanty, an employee of the owner of the vehicle, was the sole occupant. At the intersection of the roads towards the extreme left, the motor cycle dashed against the right side of the motor car as a result of which Mukherjee sustained multiple injuries and ultimately succumbed and Swain suffered injuries but survived. The motor car had been insured with the Orissa Co-operative Insurance Society Limited as required by the Motor Vehicles Act.

Two independent claim cases were filed before the Motor Accident Claims Tribunal, Puri -- one by the widow and the major son of Mukherjee and the other by Raghu Swain. Raghu Swain's claim case has already become final and we shall not refer to it any more. In the claim case by Mukherjee's heirs, compensation of rupees one lakh was claimed, on the plea that the entire blame for the unfortunate event lay on the shoulders of the driver of the motor vehicle and the sudden death of Mukherjee had brought about loss to the family to that extent.

2. Both the owner of the motor car as also the insurer entered contest. The owner of the vehicle alleged that the car was being driven very cautiously and at a reasonable speed while the motor cycle was being driven in a rash way. The driver of the car took prompt steps for the treatment of the deceased and the other person and informed the police station with equal promptitude about the incident. As Mukherjee was solely responsible for his own death, his heirs are not entitled to lay any claim for compensation.

The insurer adopted the plea of the car owner in so far as the plea regarding rash and negligent driving of the motor cycle was concerned and pleaded that the motor car was being driven with due care and caution. It was further pleaded that nothing was due and if the claim was at all to succeed, the amount demanded was arbitrarily excessive. It was further pleaded that the accident was not coveredunder the terms of the policy and, therefore, the insurer had no liability.

3. On the side of the claimants, four witnesses in all were examined while the insurer and the car owner examined one witness each. The Motor Accident Claims Tribunal came to hold that (i) the accident took place on account of negligence of both the motor-cyclist and the car driver and, therefore, the doctrine of contributory negligence was applicable; (ii) there was no acceptable evidence that the motor car was being driven rashly and negligently at the time of the accident; (iii) the claimants were entitled to compensation of Rupees 35,000/- and (iv) the claimants were entitled to interest at six per cent on the said amount from the date of decision till the date of recovery and liability of the insurer was limited to the extent provided under Section 95 (2) of the Motor Vehicles Act.

4. Two appeals (Miscellaneous Appeal No. 31 of 1973 by the insurer and Miscellaneous Appeal No. 37 of 1973 by the car owner) were carried to this Court under Section 110-D of the Motor Vehicles Act (hereinafter referred to as the 'Act') and both these appeals along with two other appeals relating to the claim of Raghu Swain and others were disposed of by a common judgment dated 18th of July, 1975 by our learned brother Panda, J. The learned Judge came to the conclusion that the admitted facts indicated rashness and negligence on the part of the motor-cyclist. The theory of contributory negligence was wrongly applied by the Tribunal to the facts of the case. Regulations 6 and 7 of the Tenth Schedule of the Act were misinterpreted and mis-applied to the facts of the case, as found by the learned Judge. On the said analysis, it was concluded that the claim for compensation was not maintainable and, therefore, the claim case was liable to be dismissed. He accordingly allowed the appeals and directed dismissal of the claim case. Cross-Appeals filed by the claimants against the quantum of compensation naturally were also dismissed.

5. These two appeals have been carried by the claimants against the aforesaid decision of our learned brother and Miscellaneous Appeal No. 41 of 1975 is directed against the insurer while Miscellaneous Appeal No. 42 of 1975 is against the owner of the motor car. Both the appeals have been heard together andshall now be disposed of by a commonjudgment.

6. Mr. R. C. Patnaik for the appellants argues:-- (1) The conclusion of the learned single Judge that the motor cycle was being driven rashly and negligently is contrary to the evidence on record and if a sum total view has been taken of both the documentary and oral evidence, such a conclusion could not have been readied.

(2) Regulations 6 and 7 of the Tenth Schedule of the Act have no applicability at all and confusion has been introduced into the decision by applying the same for reaching a decision in the case.

(3) The legal principles applicable to the facts of a case of this type would clearly lead to the conclusion that there was contributory negligence on the part of both sides as found by the Tribunal; The car driver was a person who had the last opportunity to avoid the accident and that in causing of the accident, the car driver had greater responsibility than the motor-cyclist.

7. Before we examine these contentions, it may be clarified that the accident did not take place on the Rajpath. On verification of records and other Government publications, we are satisfied that Rajpath is the name of the road which originates from the Fire Station of Bhubaneswar and runs upto the Raj Bhavan, The road on which the accident took place, as already indicated, runs from the new Bhubaneswar Railway Station to the Secretariat and is known as the Sachivalaya Marg. There is no dispute that the Sachivalaya Marg at the place of the accident was about 42 feet in width. At the intersection the entire road was pitched while ordinarily it had a 10 feet margin on both sides of Morrum and the in-between portion was pitch. We may further point out at this stage that the Regulations in the Tenth Schedule have no direct application, inasmuch as Section 77 prescribes that

'a State Government or any authority authorised in this behalf by the State Government may, by notification in the Official Gazette or by the erection at suitable places of the appropriate traffic sign referred to in Part A of the Ninth Schedule, designate certain roads as main roads for the purposes of the regulations contained in the Tenth Schedule.'

No notification has been placed on the record nor is there any evidence to show that by erection of appropriate trafficsigns at suitable places the Sachivalaya Marg had been designated as a main road. Yet, indisputably, the Sachivalaya Marg was a wider road than the side road from which the motor-cyclist emerged at the time of accident. There is clear evidence that at the time when the accident took place, the road was if free and apart from the two vehicles which collided there was no other vehicle within the intersection or within the range of vision. The road was also not crowded and, therefore, it must be assumed that the driver of each of the vehicles was able to see the other approaching the intersection.

Though the Tenth Schedule as such does not apply, undoubtedly the Regulations incorporated therein are of general character and are usually adopted by users of the road and, therefore, the provisions can be taken into consideration for determining the respective liabilities of the parties.

8. The oral evidence in regard to the accident comes from P. W. 2 R. N. Chatterjee and P. W. 3 Raghu Swain on the side of the claimants and O. P. W. 1 Abhoy Charan Mohanty examined by the car owner. P. W. 2 was an employee of the Text Book Press and his duty hours were from 2 P. M. to 10 P. M. Between 12 noon and 1 P. M. he was proceeding on the side road on a cycle up to the market building to fetch his watch. In his own evidence he has stated:--

'............ The accident took placenear the official residence of the Chief Minister. The deceased and another old man came in the motor cycle to the main road from the by-lane from the north side and the car came on the main road from the eastern side. The breadth of the road was 40 feet. The deceased and another were crossing the main road and by the time it reached the southern side, the accident took place. The motor-cyclist slowed down the speed and crossed the road. I did not hear the horn of the car. The accident took place at about noon. The road was not congested then. The front part of the car dashed against the middle part of the motor cycle. The motor cyclist Asis Mukherjee and another were injured badly. The motor cycle gave signal to cross the road............

... ... ... ... The car dashed against themotor cycle on the pitch portion of the road...... ... ...'

P. W. 3, the surviving victim of the accident has stated:--

'............ We were coming from aby-lane to the main road. The accidenttook place on the main road on its southem side. The speed of the motor cycle was slowed down when we entered into the main road, Asis Babu moved his right hand in a straightway which touched my thing ......... .. I did not hear thehorn of the ear ... ... ...... The car dashedagainst the motor cycle at its middle ... ... ...

As I was sitting behind Asis Babu, I could not see when the Ambassador car approached us. I also cannot say as to what wag speed of the motor car when it approached us, but it came very suddenly and our vehicle got dashed by that car from behind ... ... ... ...

............. At the tune of the accident, there were no other persons present on the road ...... ... ...'

O. P.W. 1, as already noticed, was an occupant of the unfortunate car. He has stated:--

'On the main road we were coining from the west to east (it seems to be a mistake. The vehicle was proceeding from east to west). At the place of the accident, the width of the road is about 40 feet. I have no idea about the mechanism of the car or technical rules of car driving ......... ... As I was sitting on theback seat, I was not able to see as to how the drives was handling. At the place of accident, the road was straight and it is more than one furlong away from the station square. The distance of the Assembly House from station square is about three furlongs.

At the time of accident, the road was free and accept the two vehicles, there were no other vehicles. I do not know as to whether we blew the horn at the sight of the motor cycle or prior to that. I first noticed the motor cycle after it had dashed our car. I have not marked the indicator of the speedometer of our car ... ......

The driver who was driving the car Is alive and he is now in our service ... ... ...'

As between the two sets of witnesses, the evidence of O. P. W. 1 does not appear to be at all useful on the material point. On his own admission, he is not able to give the speed of the car. He was not alive to the surrounding and after the accident took place he became aware of the motor cycle having entered into the intersection. He is also not sure about the blowing of the horn. The driver of the car admittedly would have been the most competentwitness to offer an account of the entire incident Mr. S. Patnaik for the owner of the vehicle contended that when an occupant of the vehicle had been examined, there was little need for examining the driver. A similar contention had been advanced by counsel for the insurer. As we have pointed out, O. P. W. 1 was not a competent witness and has feigned knowledge on all material aspects. Therefore, examination of such a witness and withholding of the driver of the motor car is not at all a justiciable stand. The Tribunal was called upon to find out whether the car or the motor cycle was being driven rashly and negligently and parties had joined issue on the point. When such was the question to be determined by the Tribunal, it certainly was the duty of both parties to place the best evidence before the Tribunal to establish their respective stands. It is too well settled to be repeated at any length that parties owe an obligation to place the best evidence before the Court and are not entitled to lie by relying upon the burden of proof. See Murugesam Pillai v. Gnana Sambandha, AIR 1917 PC 6 and Hiralal v. Badkulal, AIR 1953 SC 225. To determine the question as to who contributed to the happening of the accident, it became relevant to ascertain who was driving his vehicle negligently and rashly and in case both were, who was more responsible for the position and who of the two had the last opportunity to avoid the incident For a determination of these questions, as to when the respective drivers saw each other for the first time as they were heading to the intersection; the speed of the respective vehicles; the blowing of the horn; steps taken to control the respective vehicles; care and caution exercised for avoiding the collision et cetera are material features. The mortor-cyclist on account of death is not available. The motor car driver though available has been withheld. In these circumstances, the explanation offered by Mr. S. Patnaik for the owner of the motor car is not at all appropriate and for withholding of the driver of the motor car, adverse inference is drawable and should have been drawn by the Tribunal as also the learned single Judge while proceeding to determine mutual responsibility for the incident

9. On the oral evidence of both sides, it can safely be concluded that the main road was free and visibility was not impaired in any manner. The main road is a straight one as would appear from the evidence. Therefore, as soon as themotor-cyclist entered into the intersection, he must have attracted the attention of the motor car driver. Similarly, no sooner the motor cyclist emerged into the main road, he must have been cognisant of the approaching car. P. W. 2 is a disinterested witness. He has categorically stated that as Mukherjee entered into the main road, he signified his intention of crossing the road. If the driver of the motor car had appeared to deny this fact, the position may have been different. In view of the evidence of P. W. 2 corroborated by P. W. 3 who admittedly was on the back side of the motor cycle, the fact that Mukherjee had signalled must be taken to have been proved. In view of our finding that visibility was clear, it must also be assumed that the driver had been aware of Mukherjee's intention of crossing the road. Mukherjee had slowed down the motor cycle when it entered into the intersection as per the evidence of P. Ws. 2 and 3. There is no clear evidence as to what was the speed of the motor cycle when it dashed against the car nor is there also any direct evidence to show the speed of the motor car at that point of time. There is evidence, however, that the motor vehicle stopped within a few feet after the accident From that fact it can be assumed that the motor car was also not at any unusual speed.

What would really be rashness would depend upon varying circumstances. An open straight road and a narrow crowded street would require different standards. While on a narrow, congested road, walking speed for an automobile may even be objectionable speed, on an open and free road, a cruising speed of 40 miles per hour may even be permissible. An open road near a school where children are likely to cross would require greater attention and care on the part of the driver while driving. The possibility of approach of a vehicle at a blind turning would require exercise of caution and an intersection by its very nature would put a driver to notice that from the cross-road a vehicle may suddenly appear. Regulation 6 of the Tenth Schedule of the Act, therefore, provides that

'The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon.'

The effect of this Regulation is that the driver of the vehicle on the main road as also the side road at the intersection is required to exercise due care and is enjoined upon not entering into the intersection until he has been able to take stock of the situation. When a vehicle on the main road and another from a side road have appeared in the intersection; and have taken due care and caution as required under Regulation 6, Regulation 7 provides that the vehicle on the main road will have precedence. When both the roads are main roads, the traffic approaching the intersection on the right of the person driving on the main road has precedence. As we have already observed, the Regulations strictly do not apply, but the principles can be adopted.

On the evidence, as it appears, it would follow that the car and the motor cycle were not being driven at any high speed at the material point of time. In view of the clear evidence that the road was free, we would assume that both the drivers of the respective vehicles had seen each other at the intersection before the collision took place. Between a motor cycle and a car, indisputably the car is a steadier vehicle and can be brought to a halt in a more effective way with sudden brakes than a motor cycle. When the driver of the car must have seen that the motor-cyclist was proceeding to cross the road in its entire width and was not prepared to give preference to the motor car, he should have applied his brakes and brought his vehicle to a sudden stop before it really entered into the intersection. The intersection at the point of accident is of a narrow width corresponding to the width of the side road which does not seem to be more than 15 to 20 feet at the best. The rule of precedence provided in Regulation 7 cannot be invoked in its strict sense when the motor Car driver finds a motor-cyclist trying to cross the intersection without accommodating the car to pass. It is here that the doctrine of 'last opportunity' arises. Between the two, as we have already indicated, the motor driver had the last opportunity which he could have effectively exercised and in case he did, the accident could have been averted.

10. Series of authorities were cited by learned counsel for both sides. See Kasturi Lal v. Prabhakar, 1970 ACJ 1 = (AIR 1971 Madh Pra 145); Oli Mohamed v. Keith Murphy, 1970 ACJ 141 (Singapur); Hussein v. Maiden, 1970 ACJ 157 (Malaysia);State of Kerala v. Damodaran, 1970 ACJ 411 (Ker); Jaswant Kaur v. Ratti Ram, 1971 ACJ 31 (Punj); Duli Chand v. Delhi Administration, AIR 1975 SC 1960 and Delhi Transport Corporation v. Shabir Ahmed, 1972 ACJ 465 (Delhi). It is unnecessary to refer to these decisions at length. In fact, what we have said above is by more or less adopting the principles indicated in those decisions. We will accordingly conclude by saying that both the motor cycle and the motor car were being driven at reasonable speed; at the intersection, the motor car had precedence of crossing, but then the motor-cyclist appeared too close, the motor car had the last opportunity of avoiding the collision and the driver of the motor car failed to do so which led to the accident.

11. We have already said that the Tenth Schedule of the Act does not apply in the strict sense but the principles thereof are available to be adopted for testing the correctness of the respective stands of the parties. It is unnecessary to delve into the matter any further.

12. Next comes the question of quantum of compensation. As already noticed, the Claims Tribunal had allowed Rs. 35,000/-. Aggrieved by the quantification, claimants had preferred cross-appeals in this Court. In the view the learned single Judge took of the matter there was no occasion to examine the tenability of the cross-appeals. Now that the claimants are in appeal, they reiterate their contention that the quantum of compensation is low.

At the time Mukherjee died, he was an Accountant drawing a salary of Rs. 661 per month. Mukherjee had fourteen and half years of service up to superannuation. There is evidence to show that Mukherjee would have soon been promoted to the higher rank with additional salary. The Claims Tribunal took a sum total view of the matter and was of the opinion that Mukherjee must have been contributing at that rate of Rs. 600/- per month to the family. It took into account that the period he was to be in service was fourteen and half years and by that process found that the total loss to the family would have been around eighty thousand rupees. The Tribunal slashed it down by Rs. 5,000/- and applying the principle of contributory negligence came to hold that the claimants were entitled to Rs. 37,500/-. Considering the other uncertainties which enter into the matter of determining a claim in futurity, the Tribuanl furtherslashed the amount by Rs. 2,500/- and gave an award for Rs. 35,000/-.

There may be some force in the contention of Mr. Patnaik for the claimants that the Tribunal has not worked in a very systematic manner and if principles had been properly applied as in the case of Sabita Pati v. Rameshwar Singh, 1973 ACJ 319 (Orissa), the quantum of compensation may have been more. We are not inclined to reject such a contention. Meticulously examined, the entire compensation may have had worked out at Rs. 85,000/- to Rs. 90,000/-. We have, however, already found that the driver of the motor car had the right of way and the motor-cyclist had a greater responsibility for the commission of the collision. Roads have been laid for use of all and in order that the right of use may be made available to all, priorities have been fixed so that there may be no collision while each one would exercise his right of way. The motor car is certainly a quicker vehicle and was passing on the main road.

The motor-cyclist should have waited to allow the motor car to pass. Mukherjee seems to have been an imprudent motor-cyclist: But, as we have already said, the motor car driver cannot stand on his right of way when he has the last opportunity of avoiding the accident. It is in these circumstances, that we have to apportion the responsibility for the accident, because the apportionment would ultimately reflect in the quantification of the compensation. We think it reasonable to hold that the motor-cyclist is more to blame than the motor car driver and the ratio of responsibility may appropriately be fixed at 60 per cent for the motor-cyclist and at 40 per cent for the car driver. On the basis that the entire compensation would be Rs. 75,000/- (we have not disturbed the amount) the compensation admissible to the motor-cyclist would be Rs. 30,000/-. Accordingly compensation payable to the heirs (claimants) of Mukherjee should be fixed at Thirty thousand rupees net.

The need for the car owner to have come in appeal, as Mr. S. Patnaik, his counsel, has told us was the Tribunal's confusion about the legal position regarding liability of the insurer. This is a private, car and there is no limit fixed for the insurer's liability under Section 95 (2) of the Act. The liability of the insurer arises out the provisions contained in Section 96 of the Act and in the instant case, the liability is to the tune of the entirecompensation. We would accordingly hold that the entire compensation of rupees thirty thousand has to be paid by the insurer.

13. The net result, therefore, is that both the appeals are allowed, the claimants-appellants are found entitled to compensation of rupees thirty thousand in all and the respondent-insurer is directed to satisfy the said claim within three months from today. The claimants shall be entitled to interest at the rate of six per cent per annum as awarded by the Tribunal on the sum of rupees thirty thousand from the date of Tribunal's decision till three months hence and in case the amount remains unsatisfied, further interest thereafter should accrue at nine per cent. The appellants shall be entitled to costs. Hearing fee is assessed at rupees three hundred to be borne by the insurer only.

Das, J.

I agree.


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