1993 Supreme(Guj) 103

Gujarat High Court
Judgename :J.N.Bhatt, V.H.BHAIRAVIA
UNION OF INDIA - Appellant
Versus
ASHWATHANARAYAN S.SHARMA - Respondent
CRIMINAL APPEAL1311 of 1992
Decided On : 03/10/1993

Headnote:Negligence - What it is and burden of proof - Indicated.

       Negligence is required to be established by the claimant so as to succeed in a petition under the Act for compensation. What is negligence ? Negligence means, failure to exercise the required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence ; it is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one ; it is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which could be resonably foreseen to be likely to cause physical injury to persons. The degree of care required, of course, depends upon the facts in each case. What is negligence depends upon determination of various factors. There are three basic elements of tort (1) an act or omission on the part of the defendant ; (2) intention or negligence or the breach of a strict duty on the part of the defendant; and (3) damage, resulting to plaintiff (claimant) from the wrongful act of the defendant, which is not too remote. In every case, it will be the duty of the plaintiff (claimant) to connect the wrongful act with the damages accruing and show that the defendant was negligent. Needless to mention that the rashness or negligence does not depend only on the speed of the vehicle. Though the speed is one of the elements, that itself is not the decisive factor. The driver is required to drive the vehicle with such a speed and in such a way so that he could in an event of emergency or unforeseen contingency, control his vehicle and avoid the dashing or the accident. So what is emphasised is not the speed of the vehicle but the degree of the care and caution to be applied for better judgment so that in a given situation, the driver of the vehicle can control the vehicle and avert unfortunate road accident.

       [Para 11]

       Doctrine of res lpsa loquitur - Means that things speak for themselves - Doctrine being obvious history, purpose and philosophy behind need not be gone into - Applicability of doctrine explained.

       It may happen that the claimants or the victims of the unfortunate road accident or their legal representatives or the dependents are unable to prove the element of rashness and negligence on the part of the driver of the offending vehicle for many reasons can also succeed if the circumstances emerging from the accident show other than direct rashase or negligence on the part of the driver of the offending vehicle. Therefore, in such a situation, in absence of any other evidence the Tribunal can also apply the doctrine of "res- ipsa-loquitur" and can decide the merits of the compensation. The doctrine of "res-ipsa-loquitur" means "the things speak for themselves". Even in absence of any direct evidence with regard to unfortunate road accident, the Tribunal, with the application of the doctrine of "res-ipsa-loquitur", can fix up the liability of the driver of the offending vehicle. History, purpose and philosophy behind this doctrine being obvious, need not be gone into in greater details at this stage.

       There may be certain circumstances or exceptional cases, wherein, the claimant may not be able to know what precisely led to the unfortunate road mishap. This hardship to the claimant can be avoided by the application of the doctrine of "res-ipsa- loquitur", which is not a principle of law, but a rule of evidence. This doctrine is founded upon the theory that there are certain happenings which do not occur, normally, unless there is negligence. Therefore, in the case of such happenings, the claimant is entitled to rely, as evidence of negligence, upon the mere happening of such accident. Once this doctrine is invoked in a given set of facts, it becames necessary for the opponents to show that he was not negligent.

       [Para 18]

       Negligence - Contributory negligence - Finding of - Inference of contributory negligence can not be made merely because Scooterist either had no licence or because more persons than permissible were sitting on scooter - In the fact of the case doctrine of res Ipsa Loquitur applies - Manner, mode and management with which offending jeep car was drivern clearly establish that it was not merely negligent but rash too.

       The facts and circumstances emerging from the record of the present case, undoubtedly, go to show that the manner and mode and the management with which the offending jeep car was driven at the relevant time was not only negligent but was rash, too. The conclusion of the Tribunal with regard to the happening of the unfortunate road accident is justified and is required to be affirmed. The question of contributory negligence on the part of the scooterist also does not find place in the set of proved circumstances emerging from the record of the present case.

       [Para 18]

       In Court opinion, the driver of the offending jeep car failed to exercise due care and caution expected of a prudent driver and he was, fully, responsible for the happening of the road accident in question. Therefore, the finding of the Tribunal on this the scare is required to be confirmed. It may be mentioned that the contributory negligence is not to be inferred not merely because the scooterist either had no license or because more persons than the permissible were sitting on the scooter or the two wheeler.

       [Para 19]

       Compensation - Adequacy of - One should understand that amount of compensation is an award and not a reward - Endeavour only to restore as far as possible, the loss occasioned in terms of money - But than damages must be full & adequate.

       The amount of compensation is an award not a reward. It should not be taken as a wind fall or bonaza out of calamity arising in such a situation but should be taken as a measure to recompensate the victims. Damages, no doubt, must be full and adequate. It is, rightly, said that we think of the traditional picture of justice, holding a pair of scales. Into one scale goes the harm or loss sustained; into the other goes the compensation; and the aim of the law is to make the two balance. It must be noted that damages are awarded in such road accident cases for the purpose of compensation and the rule that compensation is measured by the cost of repair, or restoring the original position restitution in integrum is a derivative or secondary rule, which applies only if and so far as the original position can be restored. The law must endeavour to give a fair equivalent in money, so far as money can be equivalent, and in that way make good the damage.

       [Para 21]

       Compensation - Assessment in case of personal injuries - Procedure & factors required to be taken into consideration - Explained.

       The assessment or compensation in a given case like the one on hand of personal injuries should be considered in the following reads :

       A. Pecuniary loss :

       1.

       expenses caused by the injuries:

       2.

       loss of earning or profits-

       (a)

       form the date of accident till the date of trial

       (b)

       prospective loss.

       (c)

       incidental expenses

       B. Non-pecuniary loss:

       1.

       pain and sufferings:

       2.

       lose of the amenities of life;

       3.

       loss of expectation of life.

       Pecuniary loss may also be categorised as negative pecuniary loss and positive pecuniary loss. In the first category would fall deprivation of earnings or other items which would have been received but, for the accident, have, now, been taken away. In the second category is comprised the new positive burden of expenses, required to be incurred as a result of the accident.

       [Para 24]

       Compensation - Injury causing permanent partial disablement of 50 percent - Quantum - Injured 43 years old - Considering entire conspectus of the testimonials and the documentary evidence emerging from record claimant was likely to suffer prospective economic loss of Rs. 4000 P.M. - Applying multiplier of 13 court awarded a total of Rs. 6,92,040 with interest at the rate of 15 percent p.a. from date of application till date of realisation.

       Having regard to the entire conspectus of the testimonial collections and the documentary evidence emerging from the record of the present case, in our opinion, the claimant is found entitled to, in aggregate, an amount of Rs. 6,92,040 instead of Rs. 9,94,040, with interest at the rate of 15% per annum from the date of the application till the date of realisation, the break up of which is as follows : -

       The amount , The head

       Rs. 6,24,000, For future loss of income

       Rs. 3,000 , For gratuitous service of attendant

       Rs. 1,440, For expenditure of attendants

       Rs. 30,000, For medical treatment,, etc.

       Rs. 30,000 , For Pain,, Shock and Sufferings.

       Rs. 3,600, For damage caused to scooter

       Rs. 6,92,040,

        [Para 46]