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Judgment
Ram Mohan Reddy, J.—1. Claimants in MVC 5810/11 on the file of the Motor Accident Claims Tribunal & Addl. Judge, Small Causes Court, Bangalore (SCCH-19), for short ''MACT'', aggrieved by the common Judgment and award dated 10.8.2002 attributing 50% contributory negligence to the rider of the motorcycle, since deceased and award of less compensation towards loss of consortium, care and guidance for the minor children and funeral expenses, have presented this appeal.
In the accident that occurred on 15.5.2011 at about 6.45 p.m., the 1st claimant was the pillion while her husband since deceased was riding the motorcycle on Bangalore-Kolar N.H. 4 road and when the motorcycle reached Arbikothanur, the bus bearing certificate of registration No. KA-04-40-F-264 belonging to the Karnataka State Road Transport Corporation (KSRTC) when parked on the road without indicators and parking lights switched on, the rider of the motorcycle dashed against the KSRTC bus on the rear right side, due to which the rider fell down and succumbed to grievous injuries, while the pillion, the 1st claimant suffered grievous injuries. Before the MACT, the petition was opposed by filing statement of objections inter alia contending that it was the rider of the motorcycle who dashed the bus on the rear side when parked on the left side of the road since it had broken down despite day light at 6.45 p.m. on the said date and the parking of the bus was visible even though it had no lights on and it was the driver of the bus who shifted the deceased and injured to the hospital.
In the premise of the pleadings of the parties, the MACT framed the following three issues:
"1. Whether the Petitioners prove that they are the legal heirs of deceased Nagesha.G?
Whether the Petitioners prove that the accident arose on 15.5.2011 at about 6.45 p.m. near Arabikothnur NH-4 Kolar, Bangalore Highway road due to rash and actionable negligence on the part if the driver of KSRTC bus bearing Reg. No. KA-40-F-264 and caused the death of Sri. Nagesha.G?
Whether the Petitioners are entitled for compensation? If so, how much and form whom?
What award/order?"
MACT clubbed MVC 3972/2011 filed by the wife of the deceased and held a common trial. Before the MACT, 1st claimant was examined as PW-1 and another witness by name C. Manjunath as PW-2 and 29 documents marked as Exs. P1 to P29, while for the respondent-Corporation, its driver was examined as RW-1 and copy of the notarized complaint marked as Ex. R1.
MACT having regard to the material on record and evidence, both oral and documentary held that the driver of the bus, as well as rider of the motorcycle contributed equally to the negligence, the cause of the accident and answered the first issue. As to the answer to issue No. 2 recorded findings that the claimant/appellants were the legal heirs of the deceased, rider of the motorcycle to award the following compensation:
with interest at 6% p.a. and directing that only 50% of the above compensation be paid in view of the contributory negligence.
Having heard the learned counsel for the parties, perused pleadings and examined the Judgment and award impugned, the following two questions arise for decision making:
"i) whether MACT, in the facts, circumstances and evidence on record, was justified in attributing 50% contributory negligence to the rider of the motorcycle and 50% on the driver of the KSRTC bus?
ii) whether in the facts, circumstances and evidence on record, the MACT was justified in awarding compensation of Rs. 10,000/- towards loss of consortium and Rs. 10,000/- towards loss of love and affection?"
There is no dispute that the bus in question was parked on the national highway on the relevant date and time. There is also no dispute that the parking lights were not switched on. It is a matter of fact that the portion of the bus was on the tar portion of the highway. It is also not in dispute that parking of the bus was not at a notified parking place. This aspect of the matter is admitted by RW-1 in his cross-examination. PW-1, the pillion rider of the motorcycle who suffered grievous injuries testified to the aforesaid facts. Nothing incriminating is elicited in the cross examination of PW-1 to disbelieve her testimony.
The question whether the driver of the offending bus could have parked the bus on the left side of the national highway without switching on the parking lights requires extraction of Section 117 and 122 of the Motor Vehicles Act, 1988 which read thus:
"117. Parking places and halting stations. - The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
Leaving vehicle in dangerous position-- No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers."
Rule 109 of the Central Motor Vehicle Rules, 1989 provides for ''parking light'' and reads thus:
"109. Parking light. Every construction equipment vehicle and every motor vehicle other than motor cycles and three wheeled invalid carriages shall be provided with one white or amber parking light on each side in the front. In addition to the front lights, two red parking lights one on each side in the front. In addition to the front lights, two red parking lights one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road:
Provided that these rear lamps can be the same as the rear lamps referred to in the rule 105 sub-rule (2):
Provided also that construction equipment vehicles, which are installed with flood light lamps or sport lights at the front, rear or side of the vehicle for their off-highway or construction operations, shall have separate control for such lamps or lights and these shall be permanently switched-off when the vehicle is travelling on the road."
Rule 15 of the Rules of Road Regulations, 1989 reads thus:
"15. Parking of the vehicle.--(1) Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.
(2) A driver of a motor vehicle shall not park his vehicle:--
(i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge;
(ii) on a foot-path;
(iii) near a traffic light or pedestrian crossing;
(iv) in a main road or one carrying fast traffic;
(v) opposite another parked vehicle or as obstruction to other vehicle;
(vi) alongside another parked vehicle;
(vii) on roads or at places or roads where there is a continuous white line with or without a broken line;
(viii) near a bus stop, school or hospital entrance or blocking a traffic sign or entrance to a premises or a fire hydrant;
(ix) on the wrong side of the road;
(x) where parking is prohibited;
(xi) away from the edge of the footpath."
In the light of the aforesaid statutory provisions, the offending bus when not parked at a notified parking place or halting station, and the driver having left the vehicle in a dangerous position likely to cause danger or undue inconvenience to other users of the public place, coupled with the fact, that parking lights were not lit when the vehicle was kept stationary on the road; a mandate of Rule 109 of the Rules, coupled with the fact that Rule 15 of the Road Regulations specifically points out that the driver of the motor vehicle shall not park his vehicle on a foot-path, in a main road or one carrying fast traffic, there can be no more doubt that the driver of the offending vehicle i.e., bus was negligent in parking the same on the road put to use by other motor vehicles, the cause of accident.
The principle of contributory negligence is that plaintiffs negligence is attracted in part to his own harm and would thus reduce the damages payable to him and as such, it affects the measure of damages. In the present case, contributory negligence of the rider of the motor cycle was not pleaded by the insurer. No issue was framed by the MACT covering contributory negligence and no evidence was led and therefore, a new case in regard to contributory negligence cannot be made out.
A Division Bench of this Court in M.N. Rajan and others v. Konnali Khalid Haji and another MFA No. 5673/2001 DD 07.08.2003, considering the pleading, on whom the burden of proof is placed and standard of proof expected to establish "contributory negligence", the Bench of which RMRJ is one of the companion judge observed thus:
"We also do not find any merit in the alternate contention of the learned counsel for the owner and the insurer of the lorry that, at the worst, it is a case of contributory negligence and, therefore, the liability to pay the entire compensation cannot be fastened on the owner and the insurer of the lorry. In the first place, it needs to be noticed that the plea of contributory negligence is not taken in the written statement filed by the respondent No. 2/Insurance Company. Respondent Nos. 1 and 3 did not file the written statement at all. In the case of Pandian Roadways Corporation, Madurai v. Karunanithi and another(, air 1982 Mad 104: 1982 ACJ 186: 1982 TAC 356), it is held that plea of contributory negligence should be taken in the written statement before the Claims Tribunal. Further more, in the case of M/s. Yatayat Nigam, Udaipur v. Union off India (, AIR 1983 Rj 17: 1983 ACJ 312; 1983 TAC 480), it is held that where negligence of plaintiffs bus driver was not pleaded by the defendant, no issue was framed by the trial Court covering contributory negligence and no evidence was led, Rajasthan High Court took an exception to the judgment of the Appellate Court in making out a new case with regard to contributory negligence."
In General Manager, Bangalore Transport Service v. N. Narasimhiah and others , 1976 ACJ 379, a co-ordinate Division Bench observed thus:
"If it is found that the negligent act or omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident".
In Sharada Bai v. Karnataka State Road Transport Corporation , ILR 1987 KAR 2730, another co-ordinate Division Bench observed thus:
"If the tortfeasor''s negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim''s contributory-negligence was a substantial or cooperating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributory negligence can be - and very often is - inferred from the evidence already adduced on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case."
In Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others , (2002)6 SCC 455, the Apex Court, having regard to contributory negligence observed thus:
"10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper 1931 AC 1 AC at p.9 Lord Hailsham said: (All ER p.260 D-E)
"Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence. The plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances."
In Municipal Corporation of Greater Bombay v. Laxman Iyer and another , (2003)8 SCC 731, the Apex Court observed thus:
"6. The plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance "negligence" is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree or care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The Omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence, and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on negligence, 3rd Edn., para 328.) It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of the combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn., p. 361.)
At this juncture, it is necessary to refer to the "doctrine of last opportunity". The said doctrine is said to have emanated from the principle enunciated in Davies v. Mann [(1842) 10 M&W 546] which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other''s carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. [See Davies v. Swan Motor Co. (Swansea) Ltd. (1949) 2 KB 291)] Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lord in Volute [(1922) 1 AC 129)] and Swadling v. Cooper, [(1931 AC 1)] it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party''s negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence."
In Smt. Indira Nehru Gandhi v. Shri Raj Narain , AIR 1975 SC 2299, the Constitution Bench of the Supreme Court, while disapproving A finding of ''a defacto agency'' recorded by the Allahabad High Court, which was neither set up nor was subject matter of an issue, reiterated well recognized principle that ''no amount of evidence could be looked into on a case not really set up''.
In Winfield and Jolowicz on Tort (18th edition), learned author''s speaking about ''Duty of Care'' and ''Standard of Care'' states thus:
"Duty of Care
"The existence of a duty of care is, of course, essential to a cause of action for negligence, but for contributory negligence it is quite unnecessary that that the claimant should owe a duty of the defendant. All that is required is that the claimant should have failed to take reasonable care for his own safety. One sometimes comes across references to the claimant owing himself a duty to take care of his own safety, but strictly speaking this, like the "duty" to mitigate, is a contradiction in terms. The fact that the defendant is under a duty of care to guide and supervise the claimant does not necessarily exclude contributory negligence if the claimant fails to warn the defendant that he is "getting out of his depth"."
Standard of Care
"If what is alleged is negligence by the claimant, the standard of care expected of him for his own safety is in general the same as that in negligence itself and is in the same sense objective and impersonal, though, as there, some concession is made towards children and probably towards other persons suffering from some infirmity of disability rendering them unable to come up to the normal standard. Putting aside such exceptional cases, a:
"[P]erson is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself and in his reckonings he must take into account the possibility of other being careless.
The degree of want of care which will constitute contributory negligence varies with the circumstances: the law certainly does not require the claimant to proceed on his way like a timorous fugitive constantly looking over his shoulder for threats from others. For example, it is not the law that a pedestrian is guilty of contributory negligence if he crosses the road without using an "authorised" crossing.
As with any other aspect of the law of negligence the standard of care demanded may be adjusted to meet changing conditions; for example, in Froom v Butcher the Court of Appeal held that non-use of car seat belt generally constituted contributory negligence some seven years before Parliament mad the wearing of belts compulsory. Now that there is legislation requiring belts to be worn the correctness of this decision becomes even more obvious, though the incidence of criminal liability and contributory negligence may not be entirely coterminous. For many years there has been increasing public awareness of the dangers of smoking and a reduction was made under the Act for the claimant''s failure to give up where this had made a material contribution to his lung cancer, which was also cause by the defendants'' exposure of him to asbestos. However, although public attitudes towards drinking and driving have become more severe in recent years, a person who accepts a lift from a person whom he has not seen consuming large quantities of alcohol is no obliged to interrogate him on his consumption."
In the facts noticed supra, the question as to whether the deceased, rider of the motorcycle also contributed negligence for causing the accident being indisputably a question of fact, ought to have emanated from a plea of contributory negligence as a defence by the insurer of the offending bus and having not done so in the written statement, coupled with the fact that no issue with respect to contributory negligence is framed by the MACT nor any evidence was adduced in support of such a claim, the submission of the learned counsel for the respondent-KSRTC that the MACT was fully justified in recording the finding attributing 50% contributory negligence, on the rider of the motorcycle is unacceptable. MACT was not justified in attributing 50% of contributory negligence to the rider of the motorcycle, who is since deceased. The driver of the bus belonging to the KSRTC is fully and solely responsible for the cause of the accident.
It is an admitted fact that RW-1 the driver of the offending bus is chargesheeted for cognizable offence under IPC and the same is said to be pending.
Regard being had to the decision of the Apex Court in Munna Lal Jain & Another v. Vipin Kumar Sharma & Others , (2015) 6 SCC 347, the widow is entitled to, in the least to Rs. 1,00,000/- since in the present case, the widow is a young lady, aged 26, having lost her husband, is entitled to the balance of Rs. 90,000/- since Rs. 10000/- is awarded by the MACT. Two children are minors, aged 6 and 4, respectively, having lost the care and guidance of their father-deceased, rider of the motorcycle are entitled to Rs. 1,00,000/- as against Rs. 10,000/- awarded by the MACT. The award of Rs. 6,000/- towards funeral and obsequies ceremonies, in the circumstances, is not only frugal but is on the lower side calling for interference and enhancing it to Rs. 25,000/- entitles the appellants to balance Rs. 19,000/-.
In the result, this appeal is allowed in part. The Judgment and award impugned is modified, by which the finding on the liability by the MACT and the actionable negligence is attributed to the driver of the offending bus and the KSRTC is liable to make the payment of compensation, while appellants-claimants are entitled to Rs. 1,99,000/- with interest at 6% p.a. in addition to what is awarded by the MACT and in all other respects remains unaltered.