# Smt. Sharda Yadav v. M. Shriniwas Rao & Ors

- **Citation:** (2020) 1 ILRA 285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** First Appeal From Order No. 1101 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sharda-yadav-v-m-shriniwas-rao-ors-45049
- **Pages:** 5

## Headnote

A. Motor Accident Act, 1988 - Negligence
committed by Driver - Principles of
contributory negligence - Burden of proof
- Negligence means failure to exercise
required degree of care and expected of a
prudent driver - Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person - The
degree of care required depends upon
facts in each case - Burden of proof for
contributory negligence on the part of
deceased has to be discharged by the
opponents - It is the duty of driver of the
offending vehicle to explain the accident.
(Para 6, 7 & 8)
Held -

## Text

1 All. Smt. Sharda Yadav Vs. M. Shriniwas Rao & Ors.
285
(2020)1ILR 285

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1101 of 2019

Smt. Sharda Yadav ...Appellant
Versus
M. Shriniwas Rao & Ors. ...Respondents

Counsel for the Appellant:
Sri A.K. Malviya, Sri Satya Prakash Shukla

Counsel for the Respondents:
Sri Rakesh Bahadur, Sri Rakesh Bahadur

A. Motor Accident Act, 1988 - Negligence
committed by Driver - Principles of
contributory negligence - Burden of proof
- Negligence means failure to exercise
required degree of care and expected of a
prudent driver - Where there is a duty to
exercise care, reasonable care must be
taken to avoid acts or omissions which
would be reasonably foreseen likely to
caused physical injury to person - The
degree of care required depends upon
facts in each case - Burden of proof for
contributory negligence on the part of
deceased has to be discharged by the
opponents - It is the duty of driver of the
offending vehicle to explain the accident.
(Para 6, 7 & 8)
Held -
10. In view of the fast and constantly
increasing volume of traffic, motor vehicles
upon roads may be regarded to some extent as
coming within the principle of liability defined in
Rylands V/s. Fletcher, (1868) 3 HL (LR) 330.
From the point of view of pedestrian, the roads
of this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit and
run' cases where drivers of motor vehicles who
have caused accidents, are unknown. In fact
such cases are increasing in number. Where a
pedestrian without negligence on his part is
injured or killed by a motorist, whether
negligently
or
not,
he
or
his
legal
representatives, as the case may be, should be
entitled to recover damages if principle of
social justice should have any meaning at all.

B. Interpretation of Statute - Motor
Accident Act, 1988 - Section 110-A and
110-B - Rule of Res Ipsa Loquitar - Scope
- Provisions are not merely procedural
provisions - It substantively affect the
rights of the parties - New situations and
new dangers require new strategies and
new remedies - It is possible to develop
the law - When a motor vehicle is being
driven with reasonable care, it would
ordinarily not meet with an accident and
therefore, rule of res-ipsa loquitar as a
rule of evidence may be invoked in motor
accident cases with greater frequency
than in ordinary civil suits. (Para 11 & 12)
First Appeal From Order partly allowed.
(E-1)

List of cases cited :-

1. Rylands V/s. Fletcher, (1868) 3 HL (LR) 330

2. Jacob Mathew V/s. State of Punjab, 2005
ACJ(SC) 1840).

3. (2013) 7 SCC 476 Vimal Kanwar & Ors. Vs.
Kishore Dan & Ors.

4. National Insurance Company Limited Vs.
Pranay Sethi and Others, 2017 0 Supreme (SC)
1050

5. Sarla Verma Vs. Delhi Transport Corporation,
(2009) 6 SCC 121

6. National Insurance Co. Ltd. Vs. Mannat Johal
and Others, 2019 (2) T.A.C. 705 (S.C.)

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Satya Prakash Shukla,
learned counsel for the appellant, Sri
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Rakesh
Bahadur
for
the
Insurance
company. None appears for the owner.

2. This appeal has been filed by the
appellant Smt. Sharda Yadav, who is
widow of the deceased against the award
dated 21.11.2008 passed by learned Motor
Accident
Claim
Tribunal/
Additional
District Judge, Ghazipur wherein the
Tribunal has awarded Rs. 5,15,512/-as
compensation. The Insurance company has
filed the cross objection challenging the
compensation as well as the finding of
negligence by the Tribunal.

3. The brief facts leading to the
litigation on 9.12.2003 at about 11.40
when deceased was drawing his cycle, a
truck bearing No. AP 16 T 7899 came
from behind very rashly and negligently
dashed the deceased from behind. The
deceased succumbed to the injuries while
he was being taken to the hospital. The
deceased was serving in the education
department
and
was
earning
about
12,000/- per month. His age of retirement
was 62 years. The deceased was survived
by his widow who has filed the claim
petition. The respondent owner driver did
not appear before the Tribunal did they
appeared before this Court. The Tribunal
framed five issues and answered in favour
of the claimant appellant but the claimant
is not satisfied with the quantum of
compensation. The claimant appellant
examined four witnesses and filed several
documents namely FIR, Post mortem,
family register, Charge sheet by way of
certificate 37 G, salary certificated of the
deceased was filed. The insurance cover
note, permit of the truck, driving license of
the driver of the truck, the insurance
company vehemently contested the claim
and here the insurance has filed cross
objection recently contending that the
driver of the truck was not negligent and
that the claimant has not proved the
negligence. The compensation awarded is
on higher side. It is further contended that
the
claim
petition
deserves
to
be
dismissed.

4. Sri Satya Prakash Shukla, learned
counsel for the appellant has relied on the
followings decisions: 2009 (1) ACCD 187
(All) Smt. Kamla Devi and others Vs.
Chandra
Engineering
Corporation,
Faizabad and others; 2009 (1) ACCD 191
(All), Oriental Insurance Co. Ltd. Vs. Smt.
Manju and another; 2009 (3) ACCD 1441
(SC) National Insurance Co. Ltd. Vs. Smt.
Saroj and others; 2009 (3) ACCD 1445
(SC)
North
West
Karnataka
Road
Transport Corp. Vs. Gourabai and others;
2008 (1) ACCD 258 (SC) Oriental
Insurance Co. Ltd. Vs. Jashuben and
others; 2007 (2) ACCD 1138 (All)
National Insurance Company Ltd. Vs.
Smt. Indira Srivastava and others and 2007
(2) ACCD 1141 (All) National Insurance
Company Ltd. Vs. Rajendra Prasad and
others and contended that the amount
granted is not in consonance with these
judgments.

5. In reply Sri Rakesh Bahadur,
learned counsel for Insurance has relied on
the judgment of Apex Court reported in
(2013)9
Supreme
Court
Cases
65
Reshma Kumari and others Vs. Madan
Mohan and another and has contended that
the Tribunal has committed an error on
relying on the charge sheet filed in
absence of other reliable documents as the
so called witnesses had not seen the
accident and it was not proved that the
driver of the truck was negligent and has
submitted that cross objection under order
41 Rule 22 of the CPC 1908 requires to be
allowed.
1 All. Smt. Sharda Yadav Vs. M. Shriniwas Rao & Ors.
287

6. While dealing with the issue of
negligence, it would be relevant to discuss
the principles for deciding contributory
negligence and for that the principles for
considering negligence will also have to be
looked into.

7. Negligence means failure to
exercise required degree of care and
expected of a prudent driver. Negligence is
the omission to do something which a
reasonable
man,
guided
upon
the
considerations, which ordinarily regulate
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
would be reasonably foreseen likely to
caused physical injury to person. The
degree of care required, of course, depends
upon facts in each case. On these broad
principles, the negligence of drivers is
required to be assessed.

8. It would be seen that burden of
proof for contributory negligence on the part
of deceased has to be discharged by the
opponents. It is the duty of driver of the
offending vehicle to explain the accident. It
is well settled law that at intersection where
two roads cross each other, it is the duty of a
fast moving vehicle to slow down and if
driver did not slow down at intersection, but
continued to proceed at a high speed without
caring to notice that another vehicle was
crossing, then the conduct of driver
necessarily leads to conclusion that vehicle
was being driven by him rashly as well as
negligently.

9. 10th Schedule appended to Motor
Vehicle Act contain statutory regulations
for driving of motor vehicles which also
form part of every Driving License.
Clause-6 of such Regulation clearly directs
that the driver of every motor vehicle to
slow down vehicle at every intersection or
junction of roads or at a turning of the
road. It is also provided that driver of the
vehicle should not enter intersection or
junction of roads unless he makes sure that
he would not thereby endanger any other
person. Merely, because driver of the
Truck was driving vehicle on the left side
of road would not absolve him from his
responsibility to slow down vehicle as he
approaches
intersection
of
roads,
particularly when he could have easily
seen, that the car over which deceased was
riding, was approaching intersection.

10. In view of the fast and constantly
increasing
volume
of
traffic,
motor
vehicles upon roads may be regarded to
some extent as coming within the principle
of liability defined in Rylands V/s.
Fletcher, (1868) 3 HL (LR) 330. From the
point of view of pedestrian, the roads of
this country have been rendered by the use
of motor vehicles, highly dangerous. 'Hit
and run' cases where drivers of motor
vehicles who have caused accidents, are
unknown. In fact such cases are increasing
in number. Where a pedestrian without
negligence on his part is injured or killed
by a motorist, whether negligently or not,
he or his legal representatives, as the case
may be, should be entitled to recover
damages if principle of social justice
should have any meaning at all.
288 INDIAN LAW REPORTS ALLAHABAD SERIES

11. These provisions (sec.110-A and
sec.110-B of Motor Act, 1988) are not
merely
procedural
provisions.
They
substantively affect the rights of the
parties. The right of action created by Fatal
Accidents Act, 1855 was 'new in its
species, new in its quality, new in its
principles. In every way it was new. The
right given to legal representatives under
Act, 1988 to file an application for
compensation for death due to a motor
vehicle accident is an enlarged one. This
right cannot be hedged in by limitations of
an action under Fatal Accidents Act, 1855.
New situations and new dangers require
new strategies and new remedies.

12. In the light of the above
discussion, even if courts may not by
interpretation displace the principles of
law which are considered to be well settled
and, therefore, court cannot dispense with
proof of negligence altogether in all cases
of motor vehicle accidents, it is possible to
develop the law further on the following
lines; when a motor vehicle is being driven
with reasonable care, it would ordinarily
not meet with an accident and, therefore,
rule of res-ipsa loquitar as a rule of
evidence may be invoked in motor
accident cases with greater frequency than
in ordinary civil suits (per three-Judge
Bench in Jacob Mathew V/s. State of
Punjab, 2005 ACJ(SC) 1840).

13. By the above process, the burden
of proof may ordinarily be cast on the
defendants in a motor accident claim petition
to prove that motor vehicle was being driven
with reasonable care or that there is equal
negligence on the part the other side.

14. While going through the record,
it is clear that the cyclist was on his correct
side and the truck driver came from behind
did not blow any horn and the injuries
which the deceased suffered go to show
that the driver against whom the charge
sheet is filed and the version in FIR is
proved by the testimony of the witnesses.
The principles of the res ipsa loquitar will
apply in the facts of this case and the
judgment of Reshma Kumari (Supra) and
the judgment of this High Court relied by
Sri Rakesh Bahadur namely 2013 (1)
T.A.C. 606 (All.) Smt. Gaura Devi and
others (Supra). Hence the factum of
accident has been proved and the driver or
the owner have not appeared before the
Tribunal, the Tribunal has drawn the
adverse inference and not only on the basis
of charge sheet but as the FIR had
mentioned the number of the truck, the
Tribunal held the driver of the truck to be
negligent. The injuries on the deceased
also proved the rashness with which the
driver of the truck drove the vehicle, hence
the submission of counsel for respondent
can not succeed. The cross objection also
fails. The judgement of the Gaura Devi
(Supra) is eclipsed by the judgment of the
Apex Court in Vimla Devi and others Vs.
National InsuranceCompany and others
and by the judgment reported in 2019 (2)
SCC 186 and the judgment of Apex Court
in Sunita and another Vs. Rajsthan State
Road Transport Corporation AIR 2019 SC
994. The injuries which have been cused
go to show that it was the act of negligent
driving by the driver of the truck reference
of the judgment of Apex Court in S.
Kumar
Vs.
United
India
Insurance
company Limited AIR 2019 SC 3235,
hence the deceased died due to the
negligence of the driver of the truck. This
finding of fact by the tribunal is not
demonstrated to be bad or perverse. And in
that view of the matter the cross objection
as far as proving negligence is concerned
fails.
1 All. National Insurance Co. Ltd. Vs. Subhawati Devi & Ors.
289

15. After hearing the learned counsels for
the parties and perusing the judgment and
order impugned, this Court finds that the
income of the deceased Rs. 7,945/-per month
has been wrongly assessed by the Tribunal as
the Tribunal has deducted amounts which were
not supposed to be deducted from the salary of
the deceased namely the advantages which
were can not be deducted and as held by the
Hon. Supreme Court in the case of (2013) 7
SCC 476 Vimal Kanwar & Ors. Vs. Kishore
Dan & Ors. I am even fortified in my view by
the judgment of Apex Court reported in
National Insurance Company Limited VS.
Mannat Johal and another (Infra). The amount,
therefore, which would be entitled to the
family would to Rs. 12,000/- to which, as the
deceased was 54 years of age, 10% of the
income requires to be added in view of the
decision in National Insurance Company
Limited Vs. Pranay Sethi and Others, 2017
0 Supreme (SC) 1050. which would bring the
figure to Rs.1, 44, 000 + Rs.14,400
=Rs.1,58,400/-. Out of which 1/3th requires to
be deducted as personal expenses of the
deceased, hence after deduction of 1/3th means
Rs/ 52,800/- the amount available to the family
would be Rs.1, 05, 600/-. As the deceased was
in the age bracket of 51-55 years, the
applicable multiplier would be 11 in view of
the decision in Sarla Verma Vs. Delhi
Transport Corporation, (2009) 6 SCC 121.
In addition to that, Rs.70,000/- is granted
towards conventional heads as it is matter of
2004. Hence, the claimants are entitled to a
total sum of Rs. 1, 05, 600/- x 11) + 70,000
=Rs. 12, 31, 600/-.

16. As far as issue of rate of interest
is concerned, the interest should be 7.5%
in view of the latest decision of the Apex
Court in National Insurance Co. Ltd. Vs.
Mannat Johal and Others, 2019 (2)
T.A.C. 705 (S.C.) wherein the Apex Court
has held as under :

"13. The aforesaid features equally
apply to the contentions urged on behalf of the
claimants as regards the rate of interest. The
Tribunal had awarded interest at the rate of 12%
p.a. but the same had been too high a rate in
comparison to what is ordinarily envisaged in
these matters. The High Court, after making a
substantial enhancement in the award amount,
modified the interest component at a reasonable
rate of 7.5% p.a. and we find no reason to allow
the interest in this matter at any rate higher than
that allowed by High Court."

17. In view of the above, the appeal
is partly allowed. Judgment and decree
passed by the Tribunal shall stand
modified to the aforesaid extent. The
amount be deposited with interest at the
rate of 7.5% from the date of filing of the
claim petition till the amount is deposited.
The amount be deposited within a period
of 12 weeks from today. The amount
already deposited be deducted from the
amount to be deposited.

18. This Court is thankful to both the
counsels to get this very old matter
disposed of.

19. The cross objection is dismissed.
Record be send back to the tribunal forthwith.
----------
(2020)1ILR 289

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

First Appeal From Order No. 1718 of 2011

National Insurance Co. Ltd. ...Appellant
Versus
Subhawati Devi & Ors. ...Respondents