The driver of a vehicle owes a duty of care to other users of the road and must take reasonable care to avoid acts or omissions which can be reasonably foreseen and which will be likely to injure other persons on the road.

JUDGMENT :

Mukhi, J.

1. It is unfortunate that this appeal from a decision of the Civil Judge, Senior Division, Poona, in Special Civil Suit No. 32 of 1963 in a running-down action is being heard ten years after it was admitted and as much as thirteen years since the date of the accident in which the deceased Shridhar Bapu Shetty lost his life.

2. Special Civil Suit No. 32 of 1963 has been filed by the wife and children of the deceased and is a claim u/s 1A of the Indian Fatal Accidents Act, 1855. The learned Civil Judge raised the necessary issues, including an issue on the question of alleged negligence and the quantum of damages as claimed by the plaintiffs. He also raised the issue as to the maintainability of the suit against defendant No. 2, the Dairy Development Officer of Maharashtra State and a further issue, being issue No. 3, which is in the following words:

Do plaintiffs prove that the deceased was following the rules of the road as alleged by, them?

It is significant that the learned Civil Judge decided this issue in the affirmative and thereby held that so far as the deceased was concerned he was riding his bicycle and going on the left, i.e. the proper side, and was observing the rules of the road. Notwithstanding this finding, which would exclude any question of contributory negligence, the learned Civil Judge went on to hold that the plaintiffs had not proved that defendant No. 3 who was driving the jeep was; negligent when it collided with the cycle and, therefore, dismissed the suit. In this view, the learned Civil Judge did not decide the issue as to the quantum of damages.

3. The relevant facts and the manner in which the accident took place may now be mentioned. The deceased Shridhar Bapu Shetty, it would appear, was a hotel keeper and had a Udipi hotel at Poona. On February 14, 1961 at about 6 a.m. i.e. in the early morning the deceased was riding a cycle on Jangali Maharaj Road and he was going in the direction of the Deccan Gymkhana. It would appear that near the gates of the Sambhaji Park on Jangali Maharaj Road jeep driven by defendant No. 3 Sharad Prabhakar Vaidya came from ? behind, that is to say, the same direction from North to South and hit the cycle which the deceased was driving, with the result that the deceased and the cycle were thrown at a distance. The deceased fell down and was severely inured, and although he was removed to the hospital promptly enough he died by reason of his injuries so sustained four days after the accident, i.e. to say, on February 18, 1961.

4. It is necessary to mention that the usual investigation was made by the police which resulted in the prosecution of defendant No. 3 and in fact defendant No. 3 was convicted and sentenced u/s 304A of the Indian Penal Code. It would appear that the State filed a revision application to the High Court for enhancement of the sentence and in those proceedings defendant No. 3 was fortuitously given the benefit of doubt and his conviction was set aside.

5. As regards the damages alleged to have been suffered by the plaintiffs, it is stated in the plaint that the deceased at the time of his death was forty-two years of age and had a reasonable expectation of life. The deceased was also providing pecuniary support to the plaintiffs. Plaintiff No. 6, Applied Shridhar Shetty is the widow, plaintiffs Nos. 1, 2, 3 and 4 are daughters of the deceased and were, at the time of the filing of the suit in 1963, all minors. The contention of the plaintiffs, as set out in the plaint, is that they suffered heavy loss by reason of the untimely death of the only earning member of the family. They, therefore, claimed a sum of Rs. 50,000 by way of compensation.

6. A perusal of the plaint clearly shows that the claim is u/s 1A of the Fatal Accidents Act, 1855, and that although Section 2 of the said Act provides that a claim for loss to the estate of the deceased can be inserted, such a claim has in fact not been made. We find-it as a matter of regret that th