LAWS(ORI)-1995-7-53

SAMBHU PRASAD PANDA Vs. CH BAPANA AMMA

Decided On July 31, 1995
Sambhu Prasad Panda Appellant
V/S
Ch Bapana Amma Respondents

JUDGEMENT

(1.) These two appeals under Section 173 of the Motor Vehicles Act, 1988 (in short, 'the Act'), are interlinked as they are' directed against the same judgment passed by the Second Motor Accidents Claims Tribunal, Southern Division, Berhampur (in short, 'the Tribunal') disposing of an application for compensation filed by Ch. Bapana Amma (hereinafter referred to as 'the claimant') claiming compensation for the death of her son Ch. Ballabh Rao alias Ch. Ballav Reddy (hereinafter referred to as 'the deceased') in an automobile accident.

(2.) THE claimant's version as reflected in the claim petition is essentially as follows: On 14.4.1990 at about 1 p.m. the deceased was travelling in a passenger bus bearing registration No. CSG 9175 belonging to Sambhu Prasad Panda (hereinafter referred to as 'the owner') from Golanthara to Kutharsinghi when the bus stopped at Kutharsinghi, he got down and went to roof of the bus to bring his luggage after intimating the driver and cleaner of the bus While he was coining down with his luggage the driver of the bus suddenly started it as a result of which he fell down and sustained severe bodily injuries. He was removed to M.K.C.G. Medical College Hospital, Berhampur for treatment, but succumbed to the injuries on the next day A claim of Rs. 1 lakh was lodged. On consideration of materials on record brought by the claimant, owner of the vehicle and the New India Assurance Co. Ltd. (hereinafter referred to as 'the insurer'),the Tribunal quantified the compensation at Rs. 36,000/ -but fixed liability on the owner on the ground that the materials on record established that the deceased was travelling on the roof of the vehicles, and therefore, was not entitled to compensation.

(3.) THESE two appeals raise a point of law of some consequence having regard to the unusual circumstances of the case. The main issue involved is whether on the fact situation as indicated above, it can be held that the owner is liable to pay compensation and consequentially the insurer is to indemnify it. As indicated in Chapter IX of Salmod's Law of Torts. 18th Edition, quite apart from situations where wrongful intent is required by law as a condition of liability, the concept of negligence essentially involves mental attitude of the defendant towards the consequence of his act. It may be a positive act or it may be the evidence of doing something which the law expects of that person. Merely because the wrongdoer was not conscious of his duty would not to any extent reduce his liability. It is true that a distinction has to be drawn between inadvertence and recklessness but the position in law has been settled by the decision of the House of Lords in Donochue v. Stevenson : (1932) AC 562 wherein it was held that negligence, where there is a duty to take care is a specific tort in itself.