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Madhya Pradesh High Court
S. M. N. RAINA,N. C. DWIVEDI
State of U. P. - Appellant
Versus
Dayali Mardan - Respondent
Decided On : 07/14/1971
It is well settled that the initial burden of proof of negligence is on the claimant. 1970 JLJ 142 (FB) relied on. [Para 9]
(2) Tort – negligence - duty of driver of motor vehicles.
The driver must keep a proper look-out for pedestrians or other users of the road. He must whenever expedient give warning of his approach as at cross-roads. Even if another user of the road is negligent, he must exercise due skill in trying to avoid the consequences of that negligence. 1963 JLJ 336, AIR 1967 Mysore 11 & AIR 1966 Mad. 466 referred to. [Para 22]
(3) Motor Vehicles Act, 1939 - S. 110-D, Proviso - sufficient cause fur delay in filing appeal - fraud of agent - sufficient cause.
Where the agent of the appellant practiced deception on him by keeping him in dark about the correct position, the agent committed fraud by representing that the appeal has been filed and misappropriated the money given for filing the appeal, there was sufficient cause for the delay. [Paras 26 & 27]
(4) Motor Vehicles Act, 1939 - S. 110-A (3) - period of limitation - extension of -sufficient cause.
The Motor Vehicles Act is a special law and since a different limitation is prescribed under it for application for compensation, the question would be purely governed by the provisions of this Act. The extension of period of 60 days would be granted only if the Tribunal is satisfied that the applicant had sufficient cause for the delay. The words 'sufficient cause' used in the proviso should receive a liberal construction so as to advance substantial justice, if no neglience or inaction or want of bona fides is imputed to the claimant. AIR 1954 SC 411 & AIR 1964 Punj. 235 relied on.
While giving a liberal interpretation to the words 'sufficient cause', the Court's interpretation must be in accordance with judicial principles and the Court must guard itself against the danger of being led away by sympathy. [Para 30]
Where there is only a defect of misdescription of the respondent, and the defect is later cured, there is sufficient cause for condoning the delay. AIR 1962 Punj. 425 & ILR 1962 (2) Punj. 212 referred to. [Para 30]
(5) Motor Vehicles Act, 1939 - S.110-D - quantum of damages – interference when may be made in appeal.
Appeal for quantum of damages should not be allowed unless the Tribunal has applied wrong principles of law or misdirected itself or the amount awarded is inordinately so low or high that it must be held erroneous. Where after the scrutiny of the evidence in the light of comparable cases, it is found that the amount of compensation fixed was erroneously high, it needs interference in appeal. 1969 JLJ 274 AIR 1966 Mad. 466 relied on. [Para 41]
(6) Civil P.C., 1908 - O.41, R. 33 - one of the defendants not filing appeal against amount of compensation under the Motor Vehicles Act – in appeal by the other defendant the amount may be reduced to the benefit of the non-appealing defendant.
Under Order 41, Rule 33 of the Code of Civil Procedure, the appellate Court can pass an order as may be necessary for the ends of justice benefiting a party who has not appealed. 1968 JLJ 972 relied on. [Para 43]
DWIVEDI, J.:- This is an appeal by the unsuccessful respondent No.4 (State of Uttar Pradesh through Officer-in-charge of the case. Assistant General Manager, U.P. Government Roadways. Agra) against the award of Rs.7,500/-(Rs.7.000/- for general damages and Rs.500/- for expenses of treatment) of the Claims Tribunal, Gwalior.
2. The petitioner Dayali was working as a permanent employee of the folding department of J. C. Mills. Ltd., Birlanagar, Gwalior, drawing pay of Rs.150/- per month He owned agricultural field near Moti Jhil on the Agra-Bombay Road. The respondent No.1 Babulal was the driver of the bus No. U.P.A. 8105 belonging to the respondent No.4. On the relevant date, 11-2-1967, at 4 p. m., the petitioner Davali was going to his field on a cycle. The respondent No.1 was driving the aforesaid bus from Gwalior towards Agra on the Agra-Bombay road which dashed against the petitioner. The petitioner remained in the J. A. Hospital as an indoor patient from 11-02-1967 to 16-3-1967. Dr. S.S. Sharma (P.W. 6) examined the petitioner on 11-02-1967 and found as many as eighteen injuries on various parts of his body.
3. The petitioner's case is this. He was going on a cycle on the left side of the road, 15 paces ahead of the bus. The respondent No.1 was driving the bus rashly and negligently. He did not blow the horn. Because of the accident, he had become absolutely incapacitated and was unable to attend to his work and to earn his livelihood. The serious injuries sustained by him had resulted in permanent disablement. At the time of the accident, he was fourty-seven years of age and had good health and in the normal course, would have worked up to the age of fifty-eight, but he has been deprived of his earning capacity for next eleven years. He had to undergo mental loss and suffering. He, therefore, claimed Rs.15,000/- (for being incapacitated to earn in future) and Rs.500/- (for expenses of treatment) total Rs.15,500/- against the respondents.
4. The respondents 1, 2 and 3 filed separate written statements but raised similar pleas. They denied that the respondent No.1 was driving the bus rashly or negligently. They asserted that the driver had blown the horn. They contended that there is a railway crossing and a petrol pump at the Moti Jhil. Near the petrol Dump, a cart was proceeding towards Gwalior. When the bus and the cart crossed each other, the petitioner, at this juncture, at once moved towards his right side and did not heed to the horn of the bus. He did not give signal for crossing tile road. The driver moved towards his right to avoid the accident and went to the extreme of the footpath but the petitioner struck against the rear wheel of the bus and fell down. They urged that the accident occurred due to the negligence and absent mindedness of the petitioner himself and that there was no fault of the driver.
5. The petition was filed on 10-4-1967 against three respondents Babulal. U.P. Government Roadways. Lucknow, through General Manager and U.P. Government Roadways through Branch Manager Agra Depot. The respondents 2 and 3 filed their written statements on 7-8-1967. The respondent No.1 Babulal filed his written statement on 8-9-1967. These respondents urged that the U.P. Government Roadways was neither a Corporate body nor a legal entity and as such the U.P. Government Roadways could not be sued. The claim should have been preferred against the State of Uttar Pradesh.
6. In view of the above objection, the petitioner filed an application dated 19-9-1967 for joinder of State of Uttar Pradesh as a party. It was stated that the respondents mentioned that the U.P. Government Roadways was owned by the State of Uttar Pradesh and, therefore, in the interest of Justice, the State of Uttar Pradesh deserves to be impleaded as a party. It was also mentioned that the application was bona fide. After the amendment, the State of Uttar Pradesh was noticed which filed its written statement on 27-11-1967. It raised similar plea
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