KOTHA LAXMIKANTHA Vs. KOTHA RAMAIAH

JUDGEMENT

(1.) Kotha Mallareddy, a Casual labourer working under a contractor (R.W. 3) died in an accident occurred on 8-8-1983. The first respondent was driving the vehicle APU 5875. His widow, the appellant herein, hn father and brothers laid the claim lor a sum of Rs. 75,000/-. The Tribunal below dismissed the petition holding that the first respondent who is examined as R.W. 4 did not drive the vehicle rashly and negligently and that the appellant herein is not entitled for the compensation. Thus, the appeal.

(2.) P.W.I is the father, R.W.I is the widow, R.W. 2 is a direct witness, R.W. 3 is the employer of the deceased and R.W. 4 is the driver. From the evidence of R.W. 2, it is seen that the deceased was working as a casual labourer to dig the earth in the pit. At about 1 P.M. on the fateful day, the jeep driven by the 1st respondent (R.W. 4) was coming from 1st incline side in a high speed. There was Office at 3rd incline. For the purpose of fencing, they found the labour digging the ground nearlby. The jeep driven by the first respondent was coming from 1st incline side in a high speed. As the driver of the jeep wanted to negotiate a curve, the jeep got down the road and landed into a ditch and hit against Kotha Mallareddy; as a result Mallareddy received injuries. When he was taken to the hospital, he succumbed to the injuries. In the cross-examination, the 1st respondent (R.W. 4) admitted that on the date of accident the deceased was digging pits five feet away the road point. The turning referred to in the chief-examination is 90 and 135 respectively. He admitted that he did not apply brakes initially at the turning point. He also admitted that though there was actual necessity, later he applied brakes. It is now an admitted fact that the vehicle was coming on the left side, turned to the right side, crossed the road, fell into the ditch, hit the deceased and caused injuries. From these facts, the question that emerges is, whether it is due to rash and negligent driving of the first respondent. His defence in the counter and also in the evidence is that one drunken man was coming on the road and that he was driving the vehicle i.e., jeep slowly and cautiously. He saw that man coming from the left side of the road and with a view to save him, he applied brakes and the brakes did not function. Thereby, the vehicle ran to right side and he could not control the vehicle due to failure of brakes. One of the labourers on seeing the vihicle coming ran away and the deceased tried to poke the jeep with the crow- bar, but the jeep ran over him and he sustained injuries. The question is whether it is on account of failure of brakes or on account of rash ard negligent driving of the first respondent who is Divisional Engineer in Singareni Colleries, Godavarikhani. The jeep belongs to Singareni Colleries and the first respondent is its employee. The liability of the owner of the jeep to compensate the victim in an accident due to the negligent driving of his servant is based on the law of tort. Regarding the negligence of the servant the owner is made liable on the basis" of vicarious liability. Before the master could be made liable it is necessary to prove that the servant was acting during the course of his employment and that he was negligent. The owners' liability arises out of his failure to discharge a duty cast on him by law. The right to receive compensation can only be against a person who is bound to compensate due to the failure to perform a legal obligation. If a person is not liable legally he is under no duty to compensate anyone else. The Claims Tribunal is a Tribunal constituted by the State Government for expeditious disposal of the motor claims. The general law applicable is only common law and the law of torts. If under the law a person becomes legally liable then the person suffering the injuries is entitled to be compensated and the Tribunal is authorised to determine the amount of compensation which appears to be just. A person is not liable unless he contravenes any of the duties imposed on. him by common law or by the statute. In the case of a motor accident the owner is only liable for negligence and on proof of vicarious liability for the acts of his servant. The necessity to provide effective means for compensating the victims in motor accidents should not blind me in determining the state of law as it exists today.

(3.) The first respondent raised the plea that it was due to failure of brakes, viz., mechanical defect. It is now settled by the decision of Supreme Court reported in Minu B. Mehta and another vs. Balakrishna Ramachandra Nayan and another, AIR 1977 Supreme Court 1248 wherein it was held: In order to sustain a plea that the accident was due to the mechanical defect the owners must raise a plea that the defect was latent and not discoverable by the use of reasonable care. The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. The burden of proving that the accident was due to a mechanical defect is on the owners and it is their duty to show that they had taken all reasonable care and that despite such care the defect remained hidden". Tn that case it was concurrently found by the Courts that the accident was occurred when the vehicle was crossing the road which hit the deceased. The Defence was that at the time of accident the axle brake ring of the motor lorry came out and the driver lost control over the motor lorry and the same was disbelieved and the Doctrine of 'res ipsa loquitur' was applied. Accordingly, the amount of compensation determined was upheld.