SANKHADHAR SINGH Vs. KUNDANLAL

JUDGEMENT

(1.) THIS judgment shall also govern the disposal of M.A.No. 263/ 81 (Smt, SushilaDevi and Anr. v. kundanlal and Ors. Both these appeals concern an accident between car No. MPK 765 and truck No. MPJ 5425 on 26 -9 -78 at about 3 -00 P.M. on Satna -Rewa Road. Misc. Appeal No. 200/81 is by the owner of the car who was also driving the same and is confined to compensation for personal injuries to himself and damage to the car. Appeal No. 263/81 is by persons riding the said car and suffering personal injuries from the accident. Though two claim cases were filed, the Motor Accident Claims Tribunal Satna, by its award dated 2.3.81 has dealt with both of them together. Since facts of the case are similar, the 2 appeals are being dealt with together.

(2.) IT was alleged that the appellant, on 26.9.78 at about 3 -00 P.M. was driving his car on Satna -Rewa Road and going towards Rewa. At that time truck No. MPJ 5425, owned by respondent No. 1 and driven by respondent No. 2, came on the main road from the side lane in high speed and dashed against the left side of the car damaging it completely and causing personal injuries to inmates. It is also submitted that as a result of the aforesaid dash, the car was pushed to the right side of the road and dashed against one Pipal tree. After the accident the respondent No. 2 helped the inmates of the car in coming out of the same and reached appellants Sushila Devi and Usha Singh to the government hospital, Satna on a truck. There is no dispute between the parties that the truck was insured with respondent No. 3 and the liability of the respondent No. 3 was limited to Rs. 50,000/ - in case of personal injuries and Rs. 2000/ - in respect of damages to the property. It is also not in dispute that the car driven by appellant Shankhdhar singh was neither insured as required by the provisions of the Motor Vehicles Act, 1939 thereinafter referred to as 'the Act') nor was the road tax of the same paid. The respondent defended the claim by submitting that the accident was not caused due to rash or negligent driving of the truck. According to them the truck was being driven at a very slow speed and had, in fact, stopped at the crossing. It was also alleged that it was appellant Shankhdhar singh who got nervous after seeing the truck and drove the same in high speed resulting in the accident. The learned Tribunal held that the truck was being driven by respondent No. 2 Purshottam singh in a rash and negligent manner which caused the accident. It also held that since the truck was insured, the insurance company was liable to pay the compensation but their liability was restricted to a maximum sum of Rs. 50,000/ -. On these findings only an amount of Rs. 2420/ - being damage to the car was awarded in favour of appellant Shankhdhar Singh, a sum of Rs. 5850/ - in favour of appellant Sushiladevi and a sum of Rs. 300/ - in favour of Kumari Usha Singh. All the amounts carried interest 6% p.a. from the date of the claim i.e. 30 -1 -79. The appellants are aggrieved by the quantum awarded to them and have preferred these appeals for enhancement thereof.

(3.) THE English Common Law rule of Contributory Negligence which forms the basis of the law in India is best described by Lord Blackburn in Cayzer, Irvine and Co. Carron Co. (1). 'The rule of law,' said Lord Balckburn, 'is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss will lie where it falls.' Application of this rule denied compensation to a plaintiff if he could, notwithstanding the defendant's negligence, have avoided the accident by use of due care. Harshness of this rule was sought to be avoided by what is known as the rule of 'last opportunity' in the law of torts and is illustrated by the famous, English leading case of Davies v. Mann 2. In this case the plaintiff negligently left his donkey on the road with its leg tied. The defendant driving his wagon at an excessive speed caused the accident and killed the animal. Defence of contributory negligence was set -up to avoid the liability. It was held that although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway or even over the man lying asleep there or the purposely running against a carriage going on the wrong side of the road. Law on the subject has been best summarized in Salmond's Law of Torts, (18th ed.) at page (481) as under: Ex -hypothesi in all cases of contributory negligence the defendant has been guilty of negligence which caused the accident: therefore in all cases he could by exercise of reasonable care have avoided the accident; and therefore... he is liable notwithstanding the contributory negligence of the plaintiff. Clearly therefore something more than a mere opportunity of avoiding the accident by reasonable care is required in order to bring the rule in Davies v. Mann In operation.... Subject to certain qualifications it would seems that the true test is the existence of the last opportunity of avoiding the accident. This rule is also llustrated by the following observation of Ronan L. JU. In Neenan v. Hosford (3). What the defendant has to avoid is not the consequence of the plaintiffs negligence, but the accident, which is the consequence of the combined effect of his own and of the plaintiffs negligence and without both of which is would not have happened.'' (Quoted in Salmond's Law of Torts (18th ed.) at P.481, footnote (86). House of Lords, however, questioned the correctness of this innovation in Admirality Commissioner v. North of Scotland 4 but before it could add to the confusion, the Law Reform (Contributory Negligence) Act, 1945 was enacted by the British Parliament by providing that'' where any person suffers damage as the result partly of his own fault and partly the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damages'. (Section 1). Since then the old common law rule remains replaced by this Statute in England.