Full Judgment Text
FAO No. 33/2001 Page 1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 33/2001
st
% Date of Decision : 21 March, 2007
SMT. ANITA DEVI & ORS. .... Appellants
Through Mr. J.S. Kanwar, Advocate
VERSUS
SH. MOHINDER SINGH & ORS. ..... Respondents
Through : Mr. K.L. Nandwani, Advocate.
CORAM:
HON'BLE MR .JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
SANJIV KHANNA, J:
1. The appellants herein are wife, mother and children of late Mr.
Jai Kishan, the deceased. They have filed the present Appeal under
Section 173 of the Motor Vehicles' Act, 1988 (hereinafter referred to
st
as the Act, for short) against the impugned award dated 31 July,
1995 dismissing their claim petition on the ground that the appellants
had not been able to establish and prove that rash and negligent
driving by the driver of bus No. DL-1P-2754 had caused injuries
which resulted in the death of the deceased.
2. Learned Tribunal disregarded the statement of PW-3, Mr. Ved
FAO No. 33/2001 Page 2
Prakash Gupta-alleged eye witness, inter alia, holding that his name
did not figure in the FIR and in the list of witnesses filed by the police
in the criminal prosecution initiated against the driver of the aforesaid
bus viz. Mr. Raj Kumar. Learned Tribunal has held that as there was
no eye witness to the accident, it has not been proved and
established that late Mr. Jai Kishan had died in the accident due to
rash and negligent driving by Mr. Raj Kumar. The claim petition was
accordingly dismissed.
3. I have heard the learned counsel for the appellants and the
insurance company. The other respondents namely the owner and
the driver have failed to appear and have been proceeded ex parte.
They were proceeded ex parte even before the learned Tribunal. I
have also gone through the statements of the witnesses.
4. I agree with the findings of the learned Tribunal that statement
of PW-3, Mr. Ved Prakash Gupta, alleged eye witness is not reliable.
Police did not record statement of Mr. Ved Prakash Gupta and he
was not shown as a witness in the list filed before the criminal court.
As per the FIR and the charge-sheet no eye witness who had seen
the accident could be located. Therefore, Mr. Ved Prakash Gupta's
statement before the Tribunal that he was behind the bus in question
and saw the accident in which the deceased was injured has been
rightly disregarded. He claimed that he knew the deceased and his
FAO No. 33/2001 Page 3
family before the accident but there is no explanation and reason
why he did not tell the police about the accident.
5. However, there is evidence to show that the accident had taken
th
place on 24 April, 1995, when the deceased was going on a
scooter. There is also material and evidence to show that bus No.
DL-1P-2754 (red line bus) on route No. 1028 from Uttam Nagar to
Shahdara was involved in the said accident. The involvement of the
said bus is proved and established from the FIR, the charge sheet
and certified copies of papers filed before the criminal court. In the
claim petition the bus number and details of the FIR No. 267/1995
registered under Sections 279/337 and 304A of the Indian Penal
Code had been mentioned. The insurance company did not deny
the involvement of the said bus in the said accident. The registration
of the FIR was also not denied. Moreover, statement of Head
Constable Ranbir Singh, Police Station Seelampur, Record Clerk
was recorded. He duly proved the FIR i.e. FIR No. 267/1995. The
FIR states that at about 7.58 a.m., daily-diary entry report was
recorded in respect of the accident near ISBT. When the designated
police officer reached the spot, he found that a red line bus bearing
No. DL-1P-2754 and a scooter bearing No. DL-2SA-8908 had met
with an accident. The FIR further states that the scooter driver who
had been injured had been taken to GTB hospital in the PCR van.
FAO No. 33/2001 Page 4
The designated officer thereafter reached GTB hospital and he
obtained the medical legal report of the deceased. The deceased
was not in a fit condition to give statement and was declared unfit for
statement. The police officer did not find any eye witness in the
hospital. Thereafter, the police officer came back to the spot but
again did not find any eye witness. Thereafter, the FIR was
registered. In the criminal prosecution as there was no eye witness,
the accused, the driver Mr. Raj Kumar was acquitted. However, the
said acquittal by itself will not result in dismissal of the claim petition.
(See in this regard N.K.V. Bros.(P) Ltd. Versus M.Karumai Ammal
(1980) 3 SCC 457).
6. It may be relevant to state here that the owner of the bus had
th
initially appeared before the learned Trial Court on 8 April, 1996 but
thereafter had stopped appearing. The driver of the bus did not
appear and was served by publication and proceeded ex parte. The
FIR and the certified copy of the charge sheet as filed before the
Tribunal, show that there were no eye witnesses to the accident. It is
also admitted case that the deceased, i.e. Mr. Jai Kishan who was
driving the scooter has expired and therefore not available to give his
version of the accident.
7. Unlike Sections 140 and 163A of the Act, a petition under
Section 166 of the Act, requires proof of negligence for
FAO No. 33/2001 Page 5
compensation to be awarded. A petition under Section 166 of the
Act can be dismissed if it is found as a fact that the deceased or the
victim was himself responsible for the accident. Specific exceptions
have been carved out under sub sections 3 and 4 of Section 140
and sub section 2 of Section 163A of the Act to the above rule.
Section 166 of the Act, does not have any statutory exceptions to
this general rule for awarding compensation under Law of Torts. In
Minu B. Mehta and another versus Balkrishna, AIR 1977 SC 1248, it
was held by the Supreme Court that proof of negligence is necessary
before compensation can be awarded under section 110 A of the
Motor Vehicles Act, 1939. It was observed that under the Law of
Torts mere involvement of a motor vehicle in an accident does not
make the owner or the driver of the motor vehicle liable. Liability
arises under the Law of Torts when the motor vehicle is used
negligently or rashly. Section 166 of the Act or Section 110 of the
Motor Vehicles Act, 1939 does not fasten no fault liability or absolute
liability on the owner or driver. Proof of negligence as prescribed
under the Law of Torts continues to remain the lynch pin for claiming
damages under Section 110 A of the Motor Vehicles Act,1939. The
ratio of the said decision shall equally apply to a petition filed under
Section 166 of the Act. This decision of the Supreme Court was
clarified in Gujarat State Transport Corporation versus Ramanbhai,
FAO No. 33/2001 Page 6
AIR 1987 SC 1690. In the said case, the Supreme Court had
examined Sections 92A to 92E that were introduced in the Motor
Vehicles Act, 1939. It was held that the said part of the Motor
Vehicles Act, 1939 was clearly a departure from the common law
principle that negligence must be established for claiming
compensation from the owner and the driver of the motor vehicle.
Thus, unless statutory departure has been made under the
provisions of the Act, negligence must be established before
compensation can be awarded.
8. Negligence is not taking care, where there is duty to take care.
It is contrary to diligence. To find out whether there was lack of care
and diligence test of reasonable man is applied. Negligence means
breach of provisions of law as also breach of duties caused by
omission to do something which a prudent and reasonable man
guided by considerations ordinarily regulating human conduct would
do; or would not do. Standard of care under the given circumstances
expected of a reasonable man is the bench mark.
9. Negligence is not a question of evidence, but an inference
derived from facts. To establish negligence wrongful intention is not
required to be proved. A person may be negligent even if he has no
mens rea or wrongful intention and or desired to cause the accident.
Negligence is failure to take proper care as a reasonable man would
FAO No. 33/2001 Page 7
have done under the circumstances. Requirement of culpable mind
is not a valid defence to a claim under the Act based upon
negligence. Wrongful intent is not required to be proved. Wrongful
intention therefore is not an essential pre-condition for allowing a
claim under the Act.
10. In civil proceedings or proceedings under the Act, the question
of negligence is decided on the basis of preponderance of
probabilities. Burden of proof is a matter of law and pleadings.
However, onus and discharge of the same is a matter relating to
adducing of evidence. Normally, onus to prove negligence in a claim
under Section 166 of the Act is upon the claimant. But in some
cases this normal rule can cause considerable hardship. This can
happen when the reason and true cause of the accident are only
within the knowledge of the respondent. In such cases, it is
impossible for the claimant to establish negligence on the part of the
respondent. Inference as to negligence may be drawn by courts and
tribunals from proved circumstances by applying Rule of Res Ipsa
Loquitor. In Black's law dictionary the said rule has been described
as under:
“It is said that res ipsa loquitur does not apply
if the cause of the harm is known. This is a
dark saying. The application of the principle
nearly always presupposes that some part of
the causal process is known, but what is
lacking is evidence of its connection with the
FAO No. 33/2001 Page 8
defendant's act or omission. When the fact of
control is used to justify the inference that
defendant's negligence was responsible it
must of course be shown that the thing in his
control infact caused the harm. In a sense,
therefore, the cause of the harm must be
known before the maxim can apply.” H.L.A
Hart & Tony Honore. Causation in the law
419-420 (2d ed 1985).
11. The aforesaid rule is based upon common sense. It enables
courts and tribunals to do justice when facts relating to cause of the
event (accident) are unknown to the claimant and ought to be in the
knowledge of the opposite side. It is for the opposite side to give
explanation for cause of the accident, which does not happen in
ordinary course and when due caution and care is taken. The event
or the accident itself is treated as an evidence of negligence as more
likely than not, the accident could not have happened, if reasonable
care and caution had been taken. Of course, it is open to the
respondent to show and establish that the accident was inevitable or
a result of negligence by the claimant, victim or the deceased.
When a person drives a motor vehicle he acts at his peril. He is
aware that accidents can happen, cause injury and harm to a third
person. If injury is caused, he is answerable (not per-se liable) to the
claimant suo pericelo -without further proof by the claimant of his
negligence. Lord Normand in Barkway versus South Wales
Transport Co. Ltd (1950) 1 392 explained it as under:-
FAO No. 33/2001 Page 9
“ It can rarely happen when a road
accident occurs that there is no other
evidence, and if the cause of the accident is
proved, the maxim res ipsa loquitur is of little
moment. The question then comes to be
whether the owner has performed duty of care
incumbent upon him, or whether he is by
reason of his negligence responsible for the
injury. The maxim is no more than a rule of
evidence affecting onus. It is based on
common sense and its purpose is to enable
justice to be done when the facts bearing on
causation and the case exercised by the
defendant are at the outset unknown to the
plaintiff and are ought to be within the
knowledge of the defendant.”
12. The above principle was applied by the Supreme Court in the
case of Pushpa Bai Purshottam versus Ranjit Ginning and Pressing
Company Private Limited, (1977) 2 SCC 745, wherein it was
observed as under:
“6. The normal rule is that it is for the plaintiff
to prove negligence but as in some cases
considerable hardship is caused to the
plaintiff as the true cause of the accident is
not known to him but is solely within the
knowledge of the defendant who caused it,
the plaintiff can prove the accident but cannot
prove how it happened to establish
negligence on the part of the defendant. This
hardship is sought to be avoided by applying
the principle of res ipsa loquitur. The general
purport of the words res ipsa loquitur is that
the accident “speaks for itself” or tells its own
story. There are cases in which the accident
speaks for itself so that it is sufficient for the
plaintiff to prove the accident and nothing
more. It will then be for the defendant to
establish that the accident happened due to
some other cause than his own negligence.
Salmond on the Law of Torts (15th Edn.) at p.
FAO No. 33/2001 Page 10
306 states: The maxim res ipsa loquitur
applies whenever it is so improbable that
such an accident would have happened
without the negligence of the defendant that a
reasonable jury could find without further
evidence that it was so caused. In Halsbury's
Laws of England , 3rd Edn., Vol. 28, at p. 77,
the position is stated thus: An exception to
the general rule that the burden of proof of
the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts
already established are such that the proper
and natural inference arising from them is that
the injury complained of was caused by the
defendant's negligence, or where the event
charged a; negligence “tells it own story” of
negligence on the part of the defendant, the
story so told being clear and unambiguous.
Where the maxim is applied the burden is on
the defendant to show either that in fact he
was not negligent or that the accident might
more probably have happened in a manner
which did not connote negligence on his part.
For the application of the principle it must be
shown that the car was under the
management of the defendant and that the
accident is such as in ordinary course of
things does not happen if those who had the
management used proper care. “
13. In Syad Akbar versus State of Karnataka, (1980) 1 SCC 30,
the Supreme Court however observed that some caution needs to be
exercised for applying the said principle. It was accordingly held that
the circumstances constituting the event or the accident should
proclaim in a concordant, clear and unambiguous voice towards
negligence by the respondent. In such cases, the said rule of
evidence can be applied if the court or the tribunal is satisfied that
FAO No. 33/2001 Page 11
the event that caused the accident was within the respondent's
control.
14. In Kaushnuma Begum and Others versus New India
Assurance Company Limited and others, 2001 ACJ 428, the
Supreme Court applied this principle after referring to decision in the
case of Rylands versus Fletcher, 1861-73 ALL ER 1. While referring
to this principle it was held that it presumes that a person is prima
facie answerable for all damage caused as a result of mischief or
mishap, which takes place due to mischief or mishap that could be
perceived. In such circumstances, the onus is upon the respondent.
He can escape his liability by showing that the mischief or mishap
was caused due to act of God, fault of the victim or the deceased or
for some other justifiable and legally acceptable reason. This rule is
based upon the principle that a person is supposed to know the
consequences and problems that could result, when he deals with or
does any act which is capable of causing damage or harm to third
parties.
15. The principle of Res Ipsa Loquitur was applied in Cholan
Roadways Ltd. versus G. Thirugnanasambandam, (2005) 3 SCC
241. It was held that once the doctrine is found to be applicable, the
burden of proof would shift on the respondent and the respondent
has to prove that the vehicle was not being driven by him rashly and
FAO No. 33/2001 Page 12
negligently.
16. In the present case, involvement of red line bus No. DL-1P-
2754 is not in doubt. The fact that the said bus was involved in the
accident with the two wheeler scooter that was being driven by the
th
deceased-late Mr. Jai Kishan on 24 April, 1995 at 7.40 a.m. is
proved beyond doubt. This is an admitted fact. Certified copies of
the FIR, DD entries, post mortem report and medical records have
been filed on record. The medical records also show that the
deceased was admitted to the hospital at 8.40 a.m., but succumbed
to his injuries at 11 a.m. on the same day. It is also on record that
the scooter and the bus in question were found at the spot by the
police officer deputed to investigate the case. Unfortunately, no eye
witness was available and could be located. The insurance
certificate of the vehicle was also brought on record. As already
stated above, the insurance company in the reply did not deny
involvement of red line bus No. DL-1P-2754 in the accident and even
the time of the accident i.e. 7.40 a.m. in the morning. The site plan
prepared by the police shows that the accident had taken place at
the extreme left hand side of the road. The site plan also shows that
the scooter was hit from the back side and the road in question is
fairly broad with the divider in between. Unfortunately, the site plan
was not proved in evidence and certified copy was not filed before
FAO No. 33/2001 Page 13
the learned Tribunal. However, evidence of PW-1, Head Constable
Ranbir Singh, PS Seelampur was lead to prove charge sheet, FIR
etc. It is admitted fact that the deceased was driving a scooter on a
main road. The year was 1995. The time of the accident was early
morning, when the roads are empty (this is also why there were no
eye witnesses). In the claim petition it is specifically mentioned that
the deceased was knocked down by the bus. The nature of injuries
suffered by the deceased as per medical reports show that the bus
had run over the deceased and his skull was crushed. These facts
indicate unequivocally that the bus in question at the morning hours
was being driven at a reasonably fast speed and had hit the scooter
from the back side crushing the skull of the deceased. Admittedly,
as per the respondent insurance company and the police there was
no eye witness to the accident. The victim has expired. In these
circumstances, I feel principles of res ipsa loquitur should be applied.
Both the driver and the owner of the bus have failed to enter
appearance. The respondents have failed to lead evidence to rebut
and establish the cause of the accident. Accordingly, the
respondents are held liable to pay compensation to the appellants in
the claim petition filed under Section 166 of the Act.
17. On the question of the compensation payable to the
appellants, it was stated in the claim petition that the deceased was
FAO No. 33/2001 Page 14
40 years old. He had left behind a mother, wife and six children
including five minor children. The age of the deceased has been
mentioned as 40 years in the post mortem report. On the question
of income, it was stated in the claim petition that the deceased was
earning Rs. 5000/- per month as commission from selling yarn.
Evidence in form of certificate issued by Delhi Yarn Brokers'
Association was produced. The said certificate states that the
deceased was earning about Rs.5000/- per month. It is, however,
not stated in the certificate how the said association was aware of
the income of the deceased. The appellants did not produce copy of
the bank account and other material to support and show the income
that the deceased was earning. However, there is evidence in form
of the FIR and the charge sheet which shows that the deceased at
the time of the accident had two cheques of Rs.60,000/- and Rs. 1
lac. The cheques were for payment to third parties. He was driving a
scooter. In addition, he also had Rs.255/- in his pocket. Keeping
these aspects in mind, I feel that minimum wages payable to a semi
skilled worker on the date of the accident can be taken as the basis
for computing loss of dependency. Three children of the deceased
were very young and aged between 7 to 11 years. The deceased
was 40 years old and in normal course would have worked for
another 20 years. There has been inflation and general increase in
FAO No. 33/2001 Page 15
income levels during the last 12 years. Keeping in view the rate of
inflation and general increase in income, I feel partial benefit of
future prospects should be awarded to the appellants. In view of the
age of the deceased and the appellants, I feel multiplier of 12 should
be applied to compute loss of dependency.
18. Accordingly, the loss of dependency is computed as under:
(a) Monthly income at the time of death: Rs.1661/-
(b) Annual income at the time of death:Rs.
19,932/-
(c) Annual income on the basis of partial future
prospects (Increase in income by 50% instead of
100% increase) : Rs. 29,898/-
(d) Average annual income: (19,932 + 29,898) / 2
= Rs. 24,915/-
rd
(e) Annual loss of dependency after deducting 1/3
towards personal expenses:[Rs.24,915/- less]=Rs.
16,610/-
(f) Loss of dependency by applying multiplier of 12:
Rs.1,99,320/-.
19. In addition to the above compensation the appellants should
also be awarded Non-pecuniary compensation as follows:
i. Rs. 10,000/- towards loss of love and affection, the
same being not for the loss of future pecuniary
prospects but for loss of life and prospective happiness
that results in pain and suffering.
ii. Loss of consortium to the spouse : Rs.5000/-.
FAO No. 33/2001 Page 16
iii. Rs.2000/- towards funeral expenses.
iv. Rs.2500/- towards loss of estate.
20. In view of the findings given above, I allow the present Appeal.
The appellants are awarded total compensation of Rs. 2,18,820/-
along with interest @ 6% per annum from the date of filing of the
claim petition till payment. The mother will be entitled to 10% of the
total compensation and the wife will be entitled to 25% of the total
compensation. This includes Rs.5000/- payable to her for loss of
consortium. The children of the deceased will be entitled to the
balance amount in equal share. Compensation payable to the
mother will be paid to her without lock in period. 50% of the
compensation payable to the wife and children will be paid, and the
balance amount of the 50% will be kept in post office or in a fixed
deposit in a bank for a period of five years. The concerned
appellants will be entitled to interest on the said deposit but will not
be entitled to create any charge or encumbrance on the same.
21. No order as to costs.
(SANJIV KHANNA)
JUDGE
MARCH 21, 2007
VKR/P
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 33/2001
st
% Date of Decision : 21 March, 2007
SMT. ANITA DEVI & ORS. .... Appellants
Through Mr. J.S. Kanwar, Advocate
VERSUS
SH. MOHINDER SINGH & ORS. ..... Respondents
Through : Mr. K.L. Nandwani, Advocate.
CORAM:
HON'BLE MR .JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?
SANJIV KHANNA, J:
1. The appellants herein are wife, mother and children of late Mr.
Jai Kishan, the deceased. They have filed the present Appeal under
Section 173 of the Motor Vehicles' Act, 1988 (hereinafter referred to
st
as the Act, for short) against the impugned award dated 31 July,
1995 dismissing their claim petition on the ground that the appellants
had not been able to establish and prove that rash and negligent
driving by the driver of bus No. DL-1P-2754 had caused injuries
which resulted in the death of the deceased.
2. Learned Tribunal disregarded the statement of PW-3, Mr. Ved
FAO No. 33/2001 Page 2
Prakash Gupta-alleged eye witness, inter alia, holding that his name
did not figure in the FIR and in the list of witnesses filed by the police
in the criminal prosecution initiated against the driver of the aforesaid
bus viz. Mr. Raj Kumar. Learned Tribunal has held that as there was
no eye witness to the accident, it has not been proved and
established that late Mr. Jai Kishan had died in the accident due to
rash and negligent driving by Mr. Raj Kumar. The claim petition was
accordingly dismissed.
3. I have heard the learned counsel for the appellants and the
insurance company. The other respondents namely the owner and
the driver have failed to appear and have been proceeded ex parte.
They were proceeded ex parte even before the learned Tribunal. I
have also gone through the statements of the witnesses.
4. I agree with the findings of the learned Tribunal that statement
of PW-3, Mr. Ved Prakash Gupta, alleged eye witness is not reliable.
Police did not record statement of Mr. Ved Prakash Gupta and he
was not shown as a witness in the list filed before the criminal court.
As per the FIR and the charge-sheet no eye witness who had seen
the accident could be located. Therefore, Mr. Ved Prakash Gupta's
statement before the Tribunal that he was behind the bus in question
and saw the accident in which the deceased was injured has been
rightly disregarded. He claimed that he knew the deceased and his
FAO No. 33/2001 Page 3
family before the accident but there is no explanation and reason
why he did not tell the police about the accident.
5. However, there is evidence to show that the accident had taken
th
place on 24 April, 1995, when the deceased was going on a
scooter. There is also material and evidence to show that bus No.
DL-1P-2754 (red line bus) on route No. 1028 from Uttam Nagar to
Shahdara was involved in the said accident. The involvement of the
said bus is proved and established from the FIR, the charge sheet
and certified copies of papers filed before the criminal court. In the
claim petition the bus number and details of the FIR No. 267/1995
registered under Sections 279/337 and 304A of the Indian Penal
Code had been mentioned. The insurance company did not deny
the involvement of the said bus in the said accident. The registration
of the FIR was also not denied. Moreover, statement of Head
Constable Ranbir Singh, Police Station Seelampur, Record Clerk
was recorded. He duly proved the FIR i.e. FIR No. 267/1995. The
FIR states that at about 7.58 a.m., daily-diary entry report was
recorded in respect of the accident near ISBT. When the designated
police officer reached the spot, he found that a red line bus bearing
No. DL-1P-2754 and a scooter bearing No. DL-2SA-8908 had met
with an accident. The FIR further states that the scooter driver who
had been injured had been taken to GTB hospital in the PCR van.
FAO No. 33/2001 Page 4
The designated officer thereafter reached GTB hospital and he
obtained the medical legal report of the deceased. The deceased
was not in a fit condition to give statement and was declared unfit for
statement. The police officer did not find any eye witness in the
hospital. Thereafter, the police officer came back to the spot but
again did not find any eye witness. Thereafter, the FIR was
registered. In the criminal prosecution as there was no eye witness,
the accused, the driver Mr. Raj Kumar was acquitted. However, the
said acquittal by itself will not result in dismissal of the claim petition.
(See in this regard N.K.V. Bros.(P) Ltd. Versus M.Karumai Ammal
(1980) 3 SCC 457).
6. It may be relevant to state here that the owner of the bus had
th
initially appeared before the learned Trial Court on 8 April, 1996 but
thereafter had stopped appearing. The driver of the bus did not
appear and was served by publication and proceeded ex parte. The
FIR and the certified copy of the charge sheet as filed before the
Tribunal, show that there were no eye witnesses to the accident. It is
also admitted case that the deceased, i.e. Mr. Jai Kishan who was
driving the scooter has expired and therefore not available to give his
version of the accident.
7. Unlike Sections 140 and 163A of the Act, a petition under
Section 166 of the Act, requires proof of negligence for
FAO No. 33/2001 Page 5
compensation to be awarded. A petition under Section 166 of the
Act can be dismissed if it is found as a fact that the deceased or the
victim was himself responsible for the accident. Specific exceptions
have been carved out under sub sections 3 and 4 of Section 140
and sub section 2 of Section 163A of the Act to the above rule.
Section 166 of the Act, does not have any statutory exceptions to
this general rule for awarding compensation under Law of Torts. In
Minu B. Mehta and another versus Balkrishna, AIR 1977 SC 1248, it
was held by the Supreme Court that proof of negligence is necessary
before compensation can be awarded under section 110 A of the
Motor Vehicles Act, 1939. It was observed that under the Law of
Torts mere involvement of a motor vehicle in an accident does not
make the owner or the driver of the motor vehicle liable. Liability
arises under the Law of Torts when the motor vehicle is used
negligently or rashly. Section 166 of the Act or Section 110 of the
Motor Vehicles Act, 1939 does not fasten no fault liability or absolute
liability on the owner or driver. Proof of negligence as prescribed
under the Law of Torts continues to remain the lynch pin for claiming
damages under Section 110 A of the Motor Vehicles Act,1939. The
ratio of the said decision shall equally apply to a petition filed under
Section 166 of the Act. This decision of the Supreme Court was
clarified in Gujarat State Transport Corporation versus Ramanbhai,
FAO No. 33/2001 Page 6
AIR 1987 SC 1690. In the said case, the Supreme Court had
examined Sections 92A to 92E that were introduced in the Motor
Vehicles Act, 1939. It was held that the said part of the Motor
Vehicles Act, 1939 was clearly a departure from the common law
principle that negligence must be established for claiming
compensation from the owner and the driver of the motor vehicle.
Thus, unless statutory departure has been made under the
provisions of the Act, negligence must be established before
compensation can be awarded.
8. Negligence is not taking care, where there is duty to take care.
It is contrary to diligence. To find out whether there was lack of care
and diligence test of reasonable man is applied. Negligence means
breach of provisions of law as also breach of duties caused by
omission to do something which a prudent and reasonable man
guided by considerations ordinarily regulating human conduct would
do; or would not do. Standard of care under the given circumstances
expected of a reasonable man is the bench mark.
9. Negligence is not a question of evidence, but an inference
derived from facts. To establish negligence wrongful intention is not
required to be proved. A person may be negligent even if he has no
mens rea or wrongful intention and or desired to cause the accident.
Negligence is failure to take proper care as a reasonable man would
FAO No. 33/2001 Page 7
have done under the circumstances. Requirement of culpable mind
is not a valid defence to a claim under the Act based upon
negligence. Wrongful intent is not required to be proved. Wrongful
intention therefore is not an essential pre-condition for allowing a
claim under the Act.
10. In civil proceedings or proceedings under the Act, the question
of negligence is decided on the basis of preponderance of
probabilities. Burden of proof is a matter of law and pleadings.
However, onus and discharge of the same is a matter relating to
adducing of evidence. Normally, onus to prove negligence in a claim
under Section 166 of the Act is upon the claimant. But in some
cases this normal rule can cause considerable hardship. This can
happen when the reason and true cause of the accident are only
within the knowledge of the respondent. In such cases, it is
impossible for the claimant to establish negligence on the part of the
respondent. Inference as to negligence may be drawn by courts and
tribunals from proved circumstances by applying Rule of Res Ipsa
Loquitor. In Black's law dictionary the said rule has been described
as under:
“It is said that res ipsa loquitur does not apply
if the cause of the harm is known. This is a
dark saying. The application of the principle
nearly always presupposes that some part of
the causal process is known, but what is
lacking is evidence of its connection with the
FAO No. 33/2001 Page 8
defendant's act or omission. When the fact of
control is used to justify the inference that
defendant's negligence was responsible it
must of course be shown that the thing in his
control infact caused the harm. In a sense,
therefore, the cause of the harm must be
known before the maxim can apply.” H.L.A
Hart & Tony Honore. Causation in the law
419-420 (2d ed 1985).
11. The aforesaid rule is based upon common sense. It enables
courts and tribunals to do justice when facts relating to cause of the
event (accident) are unknown to the claimant and ought to be in the
knowledge of the opposite side. It is for the opposite side to give
explanation for cause of the accident, which does not happen in
ordinary course and when due caution and care is taken. The event
or the accident itself is treated as an evidence of negligence as more
likely than not, the accident could not have happened, if reasonable
care and caution had been taken. Of course, it is open to the
respondent to show and establish that the accident was inevitable or
a result of negligence by the claimant, victim or the deceased.
When a person drives a motor vehicle he acts at his peril. He is
aware that accidents can happen, cause injury and harm to a third
person. If injury is caused, he is answerable (not per-se liable) to the
claimant suo pericelo -without further proof by the claimant of his
negligence. Lord Normand in Barkway versus South Wales
Transport Co. Ltd (1950) 1 392 explained it as under:-
FAO No. 33/2001 Page 9
“ It can rarely happen when a road
accident occurs that there is no other
evidence, and if the cause of the accident is
proved, the maxim res ipsa loquitur is of little
moment. The question then comes to be
whether the owner has performed duty of care
incumbent upon him, or whether he is by
reason of his negligence responsible for the
injury. The maxim is no more than a rule of
evidence affecting onus. It is based on
common sense and its purpose is to enable
justice to be done when the facts bearing on
causation and the case exercised by the
defendant are at the outset unknown to the
plaintiff and are ought to be within the
knowledge of the defendant.”
12. The above principle was applied by the Supreme Court in the
case of Pushpa Bai Purshottam versus Ranjit Ginning and Pressing
Company Private Limited, (1977) 2 SCC 745, wherein it was
observed as under:
“6. The normal rule is that it is for the plaintiff
to prove negligence but as in some cases
considerable hardship is caused to the
plaintiff as the true cause of the accident is
not known to him but is solely within the
knowledge of the defendant who caused it,
the plaintiff can prove the accident but cannot
prove how it happened to establish
negligence on the part of the defendant. This
hardship is sought to be avoided by applying
the principle of res ipsa loquitur. The general
purport of the words res ipsa loquitur is that
the accident “speaks for itself” or tells its own
story. There are cases in which the accident
speaks for itself so that it is sufficient for the
plaintiff to prove the accident and nothing
more. It will then be for the defendant to
establish that the accident happened due to
some other cause than his own negligence.
Salmond on the Law of Torts (15th Edn.) at p.
FAO No. 33/2001 Page 10
306 states: The maxim res ipsa loquitur
applies whenever it is so improbable that
such an accident would have happened
without the negligence of the defendant that a
reasonable jury could find without further
evidence that it was so caused. In Halsbury's
Laws of England , 3rd Edn., Vol. 28, at p. 77,
the position is stated thus: An exception to
the general rule that the burden of proof of
the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts
already established are such that the proper
and natural inference arising from them is that
the injury complained of was caused by the
defendant's negligence, or where the event
charged a; negligence “tells it own story” of
negligence on the part of the defendant, the
story so told being clear and unambiguous.
Where the maxim is applied the burden is on
the defendant to show either that in fact he
was not negligent or that the accident might
more probably have happened in a manner
which did not connote negligence on his part.
For the application of the principle it must be
shown that the car was under the
management of the defendant and that the
accident is such as in ordinary course of
things does not happen if those who had the
management used proper care. “
13. In Syad Akbar versus State of Karnataka, (1980) 1 SCC 30,
the Supreme Court however observed that some caution needs to be
exercised for applying the said principle. It was accordingly held that
the circumstances constituting the event or the accident should
proclaim in a concordant, clear and unambiguous voice towards
negligence by the respondent. In such cases, the said rule of
evidence can be applied if the court or the tribunal is satisfied that
FAO No. 33/2001 Page 11
the event that caused the accident was within the respondent's
control.
14. In Kaushnuma Begum and Others versus New India
Assurance Company Limited and others, 2001 ACJ 428, the
Supreme Court applied this principle after referring to decision in the
case of Rylands versus Fletcher, 1861-73 ALL ER 1. While referring
to this principle it was held that it presumes that a person is prima
facie answerable for all damage caused as a result of mischief or
mishap, which takes place due to mischief or mishap that could be
perceived. In such circumstances, the onus is upon the respondent.
He can escape his liability by showing that the mischief or mishap
was caused due to act of God, fault of the victim or the deceased or
for some other justifiable and legally acceptable reason. This rule is
based upon the principle that a person is supposed to know the
consequences and problems that could result, when he deals with or
does any act which is capable of causing damage or harm to third
parties.
15. The principle of Res Ipsa Loquitur was applied in Cholan
Roadways Ltd. versus G. Thirugnanasambandam, (2005) 3 SCC
241. It was held that once the doctrine is found to be applicable, the
burden of proof would shift on the respondent and the respondent
has to prove that the vehicle was not being driven by him rashly and
FAO No. 33/2001 Page 12
negligently.
16. In the present case, involvement of red line bus No. DL-1P-
2754 is not in doubt. The fact that the said bus was involved in the
accident with the two wheeler scooter that was being driven by the
th
deceased-late Mr. Jai Kishan on 24 April, 1995 at 7.40 a.m. is
proved beyond doubt. This is an admitted fact. Certified copies of
the FIR, DD entries, post mortem report and medical records have
been filed on record. The medical records also show that the
deceased was admitted to the hospital at 8.40 a.m., but succumbed
to his injuries at 11 a.m. on the same day. It is also on record that
the scooter and the bus in question were found at the spot by the
police officer deputed to investigate the case. Unfortunately, no eye
witness was available and could be located. The insurance
certificate of the vehicle was also brought on record. As already
stated above, the insurance company in the reply did not deny
involvement of red line bus No. DL-1P-2754 in the accident and even
the time of the accident i.e. 7.40 a.m. in the morning. The site plan
prepared by the police shows that the accident had taken place at
the extreme left hand side of the road. The site plan also shows that
the scooter was hit from the back side and the road in question is
fairly broad with the divider in between. Unfortunately, the site plan
was not proved in evidence and certified copy was not filed before
FAO No. 33/2001 Page 13
the learned Tribunal. However, evidence of PW-1, Head Constable
Ranbir Singh, PS Seelampur was lead to prove charge sheet, FIR
etc. It is admitted fact that the deceased was driving a scooter on a
main road. The year was 1995. The time of the accident was early
morning, when the roads are empty (this is also why there were no
eye witnesses). In the claim petition it is specifically mentioned that
the deceased was knocked down by the bus. The nature of injuries
suffered by the deceased as per medical reports show that the bus
had run over the deceased and his skull was crushed. These facts
indicate unequivocally that the bus in question at the morning hours
was being driven at a reasonably fast speed and had hit the scooter
from the back side crushing the skull of the deceased. Admittedly,
as per the respondent insurance company and the police there was
no eye witness to the accident. The victim has expired. In these
circumstances, I feel principles of res ipsa loquitur should be applied.
Both the driver and the owner of the bus have failed to enter
appearance. The respondents have failed to lead evidence to rebut
and establish the cause of the accident. Accordingly, the
respondents are held liable to pay compensation to the appellants in
the claim petition filed under Section 166 of the Act.
17. On the question of the compensation payable to the
appellants, it was stated in the claim petition that the deceased was
FAO No. 33/2001 Page 14
40 years old. He had left behind a mother, wife and six children
including five minor children. The age of the deceased has been
mentioned as 40 years in the post mortem report. On the question
of income, it was stated in the claim petition that the deceased was
earning Rs. 5000/- per month as commission from selling yarn.
Evidence in form of certificate issued by Delhi Yarn Brokers'
Association was produced. The said certificate states that the
deceased was earning about Rs.5000/- per month. It is, however,
not stated in the certificate how the said association was aware of
the income of the deceased. The appellants did not produce copy of
the bank account and other material to support and show the income
that the deceased was earning. However, there is evidence in form
of the FIR and the charge sheet which shows that the deceased at
the time of the accident had two cheques of Rs.60,000/- and Rs. 1
lac. The cheques were for payment to third parties. He was driving a
scooter. In addition, he also had Rs.255/- in his pocket. Keeping
these aspects in mind, I feel that minimum wages payable to a semi
skilled worker on the date of the accident can be taken as the basis
for computing loss of dependency. Three children of the deceased
were very young and aged between 7 to 11 years. The deceased
was 40 years old and in normal course would have worked for
another 20 years. There has been inflation and general increase in
FAO No. 33/2001 Page 15
income levels during the last 12 years. Keeping in view the rate of
inflation and general increase in income, I feel partial benefit of
future prospects should be awarded to the appellants. In view of the
age of the deceased and the appellants, I feel multiplier of 12 should
be applied to compute loss of dependency.
18. Accordingly, the loss of dependency is computed as under:
(a) Monthly income at the time of death: Rs.1661/-
(b) Annual income at the time of death:Rs.
19,932/-
(c) Annual income on the basis of partial future
prospects (Increase in income by 50% instead of
100% increase) : Rs. 29,898/-
(d) Average annual income: (19,932 + 29,898) / 2
= Rs. 24,915/-
rd
(e) Annual loss of dependency after deducting 1/3
towards personal expenses:[Rs.24,915/- less]=Rs.
16,610/-
(f) Loss of dependency by applying multiplier of 12:
Rs.1,99,320/-.
19. In addition to the above compensation the appellants should
also be awarded Non-pecuniary compensation as follows:
i. Rs. 10,000/- towards loss of love and affection, the
same being not for the loss of future pecuniary
prospects but for loss of life and prospective happiness
that results in pain and suffering.
ii. Loss of consortium to the spouse : Rs.5000/-.
FAO No. 33/2001 Page 16
iii. Rs.2000/- towards funeral expenses.
iv. Rs.2500/- towards loss of estate.
20. In view of the findings given above, I allow the present Appeal.
The appellants are awarded total compensation of Rs. 2,18,820/-
along with interest @ 6% per annum from the date of filing of the
claim petition till payment. The mother will be entitled to 10% of the
total compensation and the wife will be entitled to 25% of the total
compensation. This includes Rs.5000/- payable to her for loss of
consortium. The children of the deceased will be entitled to the
balance amount in equal share. Compensation payable to the
mother will be paid to her without lock in period. 50% of the
compensation payable to the wife and children will be paid, and the
balance amount of the 50% will be kept in post office or in a fixed
deposit in a bank for a period of five years. The concerned
appellants will be entitled to interest on the said deposit but will not
be entitled to create any charge or encumbrance on the same.
21. No order as to costs.
(SANJIV KHANNA)
JUDGE
MARCH 21, 2007
VKR/P