CHAPTER-I

INTRODUCTION

The first enactment relating to motor vehicles in India was the Indian Motor Vehicles Act, 1914, which was subsequently replaced by the Motor Vehicles Act, 1939. The Act of 1939 had been amended several times. In spite of several amendments it was felt necessary to bring out a comprehensive legislation keeping in view the changes in the transport technology, pattern of passenger and freight movements, development of the road network in the country and particularly the improved techniques in the motor vehicles management. Various Committees as well as the Law Commission had gone into different aspects of road transport. Several members of Parliament had also urged for comprehensive review of the Motor Vehicles Act, 1939. A Working Group was, therefore, constituted in January, 1984 to review all the provisions of the Act of 1939. This Working Group took into account the suggestions and recommendations earlier made by various bodies and institutions and made certain recommendations. On the recommendations of the Working Group State Government were asked to submit their comments. The recommendations made by the Working Group and comments received from the State Governments were discussed at a special meeting of Transport Ministers of all States and Union Territories. Based on the conclusion reached in the meeting of Transport Ministers and suggestions made by the Supreme Court in a case the Motor Vehicles Bill was introduced in the Parliament. Motor Vehicles Act, 19881: Motor Vehicles Act, 1988 consists of XIV Chapters with a total of 217 Sections. The present topic for study arises from section 168 of the Motor Vehicles Act, 1988. Section
1

Came into force on 1-7-1989. Vide S.O 368 (E), dated 22nd May, 1989, published in the Gazette of India., Pt. II, Sec. 3 (ii), dated 22nd May, 1989.

168 corresponds to section 110-B of the Motor Vehicles Act, 1939. The provisions under s.168 are as follows:
168. Award of the Claims Tribunal. - (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be : Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X. (2) The Claim Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award. (3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.

While passing an award by the Claims Tribunal it becomes essential to study the liability of the parties involved in accident so that a correct, equitable and fair award can be passed. In this regard, though a specific provision relating to 'negligence' is not provided in the Act, 'negligence' has been a subject for discussion by the Claims Tribunal before passing an award. Therefore Claims Tribunal based on merits of each case has delivered enough judgments to understand the term 'negligence' in Motor Vehicles Act, 1988, which is the subject matter for our discussion in this project report.

CHAPTER-II NEGLIGENCE
2.1 Negligence in law of torts: (1) Negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element. (2) Negligence is considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind. The House of Lords in Donoghue v. Stevenson,2 treats negligence, where there is duty of care, as specific tort in itself, and not simply as an element in some more complex relationship or in some specialized breach of duty. It is in second sense that has been discussed below: As stated in Heaven v. Pender,3 actionable consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property. 2.2 Negligence: In everyday usage, the word negligence denotes mere carelessness. Secondly, in legal usage it signifies failure to exercise the standard of care which the doer as a reasonable man should, by law, have exercised in the circumstances; if there is no legal duty to take care, lack of care has no legal consequences. In general, there is a legal duty to take care, where it was or should have been reasonably foreseeable that failure to do so was likely to cause injury. Negligence is, accordingly, a mode in which many kinds of harms may be caused, by not taking such adequate precautions as should have been taken in the circumstances to avoid or prevent that harm, as contrasted with causing such harm intentionally or deliberately. A man may, accordingly, cause harm negligently though he

2 3

(1932) A.C. 562 (1883) 11 QBD 503

was not careless but tried to be careful, if the care taken was such as the court deems inadequate in the circumstances. Thirdly, in English law, the name negligence is given to a specific kind of tort, the tort of failing in particular circumstances to exercise the care which should have been shown in these circumstances, the care of the reasonable man, and of thereby causing harm to another in person or property. It implies the existence of a legal duty to take care, owed to the complainer, which duty exists, in general, where there is such proximity between two persons that a want of care on the part of the one is likely to affect the other injuriously, a failure to exercise the standard of care deemed right in the circumstances, which is normally defined as reasonable care, but which may be higher in particular circumstances, e.g., the airline pilot, the surgeon operating, casual connection between the failure to take care and injury suffered, not interrupted by the intervention of some other casual factor, and not too remotely connected with the ultimate harm, and actual loss, injury or damage to the complainer. Negligence takes innumerable forms, but the commonest forms are negligence causing personal injuries or death, of which species are employers liability to an employee, the liability of occupiers of land to visitors thereon, the liability of suppliers to consumers, of person doing work to their clients, of persons handling vehicles to other road-users and so on. The categories of negligence are not closed and new varieties such as negligence causing economic loss may be recognized. The third sense of the term is derived from the second and developed probably from English laws continuing classification of torts by their origins as distinct forms of action. English law does not distinguish harms logically into harms caused intentionally and harms caused negligently but into trespass, conversion, slander, etc. so that physical harm caused negligently has been regarded as another nominate tort, negligence. In the context of contributory negligence, negligence has its everyday meaning, of ordinary carelessness. In criminal law, negligence bears its ordinary meaning and is not generally a ground of criminal liability but only in particular cases, such as the offence of driving a vehicle

without due care and attention, or where the negligence is serious, such as to amount to recklessness or indifference to consequences. 2.3 Essential elements of Negligence: In an action of negligence the plaintiff has to prove the following essentials: 1. That the defendant owed duty of care to the plaintiff: 2. The defendant made a breach of that duty: 3. The plaintiff suffered damage as a consequence there of. 2.4 Negligence-Presumption as to negligence drawn-Driver to prove how accident occured: Here is a car proceeding from Bangalore to Shimoga. At the place concerned, there are no other vehicles on road. There is no obstruction. The road is of a width of 19ft. of cement and tar road, with 6 ft. kacha road on either side. Still the vehicle hits a roadside tree. Added to that, there is a report of IMV inspector to the effect that the accident in not due to any mechanical defect in the vehicle. In such a situation, an accident of this nature would prima facie show that the same could not be accounted to anything other than the negligence of the driver of the vehicle i.e., the petitioner. A presumption in that regard thus arises. In such a case, as pointed out by the Supreme Court, it was for the petitioner driver to explain how the accident occurred without the negligence on his part.- Keshav Murthy v. State of Karnataka.4 2.5 Negligence-Award of Tribunal based on facts No-arbitrariness in findings: The judge noticed the material facts in addition to Mahazar. He considered the evidence of driver and ultimately have a finding that rash and negligent driving is proved. The order is based on facts and held that there is no arbitrariness in the finding with regard to the claim to the claim which reqiore interference by the High Court.- North West Karnataka Road Transport Corporation v. R.Kariappa & Anr.5
4 5

2002 (1) ACC 427 at page 429 (Karn.) 2003 (3) ACC 739 at page 740 (Karn.)

2.6 Accident due to Rash and Negligent Driving: The deceased who was aged 6 years and 9 months on the day of accident, was studying in the second standard. No doubt, he was studying in an English Medium School and the parents of the deceased are educated lessons on road sense in nor part of the school curriculum in the second standard. The third respondent had driven the vehicle in a rash manner as the vehicle could be bought to a stop 45 feet after the impact. The road was straight and the third respondent should have had a full view of the deceased and his sister getting down from the cart. He should have anticipated the possibility of the two children crossing the road after getting down the cart. In such circumstances, High Court held that the deceased was culpable and had contributed to the accident.- Muthasamy v. SAR Annamalai.6 Where the vehicle was driven rashly and negligently and caused the death of deceased, the claimants were entitled to compensation as contemplated under Section 110-A of the Act and the award passed by the tribunal in the regard under section 110-B(new Section 168) was not without jurisdiction.- Union of India v. Vijay Sundari.7 A boy of 8 years was knocked down by the tractor, while he was playing on the road in front of his house. Driver of tractor denied his involvement in the accident but eye witnesses deposed that the tractor killed the boy and he informed the incident to the father of the deceased. The Head constable noted the number of tractor and noticed blood on the tires of the tractor. This fact was not denied by driver. The drive rof tractor was held negligent.- Bhagwati Prasad v. Teermal Bole.8 There was a collision between two trucks A and B at the crossing of the roads none of which were designated as main road. The accident resulted in death of seventeen and injuries to twenty persons. A was proceeding from north to south and B from west to east. The front side of B truck was completely destroyed and the front side of A truck was intact. B truck had left break marks of thirty four feet and even after the accident it had proceeded further and was found on the wrong side of the road. Truck B dashed truck A
6 7

AIR 1991 Mad. 201 AIR 1991 MP 328 (DB) 8 1994 ACJ 700(MP)

at its back side. Truck A entered intersection prior to truck B. Truck B applied breaks but its marks are seen for thirty four feet. The Appellate Court held driver of truck B to be solely negligent in causing accident and denied responsibility of truck A to give way to vehicle on its right side.- New India Assurance Co. Ltd. v. Dhanesh Kumar.9 Even if the truck was not being driven at a high speed even then the driver of the truck was negligent in causing that accident as he could have anticipated while approaching the road having a blinking light that there was every possibility of persons crossing the road from that place, so it could not be said this accident is not as a result of negligent driving by the driver.- Municipal Corporation of Delhi v. Nandrani.10 The evidence of the various eye witnesses the sight plan and the photographs it is apparent that the motorcyclist had crossed the centre of the crossing when he was hit by the bus and dragged. The bus stopped after moving about 25 feet from the place of the accident while the body was lying in front of the bus. It is admitted at the bar that the length of the bus in question is 30 feet and the width is 8 feet. Thus it must be held that the deceased was dragged for a distance of 55 feet from the point of accident. The skid marks on the road for a distance of 50 feet suggest that the bus was going at an excessive speed. The width of the road was 30 feet. The driver applied the breaks but still the bus ran about 25 feet knocked down the motorcyclist and dragged him 55 feet on the road. These facts suggest that the bus driver was unmindful of the crossing when he saw the motorcyclist, he applied breaks but he could not stop the bus. In other words the bus was not in the complete control of the driver while approaching the crossing. He could not stop the bus within a distance of 20 feet to avoid the accident.- Nirmala Sharma v. Raja Ram.11 Accident occurred on a curve when a bus was coming downhill and deceased was going on a motorcycle uphill. Traffic rules requiring precedence to be given to the traffic moving uphill, the duty of bus driver coming downhill was even greater on a curve distance of pushing and falling motorcycle indicate that the bus was being driven at a
9

1993 ACJ 1122(Delhi) 1994 ACJ 321(Delhi) 11 AIR 1982 Delhi 233
10

high speed even when bus driver stopped traffic moving uphill on a curve. Tribunal held the driver of bus negligent in causing accident, High Court on appeal holding negligence of bus driver not proved therefore bus driver was rash and negligent in causing the fatal accident. Finding of High Court was set aside and finding of Tribunal restored.- Bimlesh & Ors v. H.P.R.T.C & Anr.12 2.7 Duty of Driver: It was the duty of the driver of the bus in question to look ahead particularly at the crossing and to stop the bus well in time so as to avoid the accident.- Delhi transport Corporation v. Veena Rani Sethi.13 It is expected of a driver while approaching the village on the highway to be more careful and cautious while crossing such villages and more so when he had already seen the two youngster cyclists on the road. It is not the case of the respondents that the speed of the bus was slowed down with a view to avoid any accidents.- Shabbir Ahmad v. M.P.S.R.T.C, Bhopal.14 The fundamental duty of both the driver as well as the conductor is to verify specifically whether any passenger is getting into the bus or getting down the bus before actually the bus is moved from the bus stop where it is stopped irrespective of the fact whether that place of stopping is a bus stop or not.- Venkata Swami Motor Service v. C K Chennaswamy. 15 A duty is cast upon a driver of the vehicle to be cautious while driving a vehicle particularly when school children are crossing the road.- Aarti v. Pritam Singh.16 The driver of the bus ignoring the warning administered about heavy rain and gale had been bold to take the bus across the narrow bridge over which water was flowing. In doing so the driver ignored the duty cast on him for the care and safety of the passengers. It is common knowledge that it is dangerous to cross a bridge or a causeway which is
12 13

1999 (8) SCC 686 1989 ACJ 790( Delhi) 14 AIR 1984 MP 173 at page 176 15 1989 ACJ 371(Mad) 16 1994 ACJ 186(P&H)

submerged. When water was flowing over the bridge by about two feet or so and the water was also rising to have driven the bus over the bridge was an extremely dangerous and hazardous operation on the part of the driver. Even before approaching the bridge, the driver having regard to what he observed on the way i.e heavy rain, gale and fallen trees and also the over flow of water on the bridge, he ought to have stopped before entering the bridge. There was thus a breach of duty with the driver of the bus owed to the passengers.- M.D. Thanthai Periyar Transport Corporation Limited v. Sellamuthi.17 2.8 Composite Negligence: When death of or injury to a person results from collision of two vehicles due to negligence of both the drivers it is called composite negligence. Where negligent act of two more independent persons have between caused damages to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course within the limits set by the general rules as to remoteness of damage to sue all or any of the negligent persons. It is concerns of his whether there is any duty of contribution on indemnity as between those persons though in any case he can not recover in the whole more than is whole damage. The phrase contributory negligence of a third person which has sometimes been used must therefore be rejected as misleading.18

2.9 Contributory Negligence: A person is guilty of contributory negligence if he ought reasonably to have foreseen, if he did not act as reasonably prudent man, he might hurt himself. The plaintiff is usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable.19
17 18

1994 ACJ 118(Mad) Pollock on Torts, Page 361,362 19 Halsburys Laws of England, 3rd Edition, Vol.28(1959)-Page 90.

A case of contributory negligence arises when an accident occurs not only owing to a negligence on the part of the driver of the concerned vehicle, the owner and the insurer in respect whereof become liable for payment of compensation, but also owing to acts of negligence on the part of the victims thereof meaning thereby if the deceased or the driver of the vehicle wherein he was travelling was also negligent to a certain extent as a result whereof the accident occurred.- Oriental Fire Insurance Co. Ltd. V. Sudha Devi.20 No contributory negligence can be fastened upon a passenger travelling on the roof of a bus, who sustains injuries on account of the negligent driving of the bus driver, merely on the ground that he had been travelling on the roof of the bus and not inside it. - Vijay Singh v. Haryana Roadways.21 The deceased drove a motorcycle in the middle of the road whereas the bus had also dragged it on one side after the accident. The plea of the bus driver that he had brought the bus to a standstill did not appear to be correct the commit observed that under this the bus being a heavy vehicle was required to take some extra care to avoid the accident on its highway. This does not mean to say the driver of smaller vehicle.does not have to observe the rules of the road. In these circumstances, after considering the whole case we are of the view that the accident was the result of contributory negligence on the loss of the deceased to the extent of 3 of.- Mathu Shegal v. H.P.RTC.22 As regards contributory negligence in case of pedestrian the Karnataka High Court in Narasimhaiah v. General Manager, Karnataka Dairy Development Corporation23 has held that there is some expectation vis--vis in the driver of heavy vehicles that they must be extra caution in insuring that they do not inquire the pedestrian who cross a road at a permit where he ought not to have done. The culpability on the part of the driver of the offending vehicle is therefore, slightly that that of the pedestrian. The Court held that the negligence of the driver for the accident is 60% and that of the pedestrian 40%.

20 21

1991 ACJ 4 (Pat.) 1990 ACJ 18 (P&H) 22 1998 ACJ 127 (HP) 23 1998 ACJ 775 (Karnt.)

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At Tribunal stage no issue was framed on contributory Negligence of motor cyclist and no evidence was adduced for it. Tribunal found that accident due to rash and negligent driving of bus driver. (i) The plea of contributory negligence cannot be taken at appellate stage when it was not pleaded at Tribunal stage. (ii) Appellants are not entitled to adduce evidence beyond their pleadings.- General Manager, M.P.State Road Transport Corporation Bhopal & Ors. v. Smt. Vimla & Ors.24 Three persons riding motor cycle was not within permissible limit under Motor Vehicles Act. Tribunal considered other evidence also to arrive at a finding that there was some contributory negligence on part of driver of motor cycle.- Ved Kumari &Anr. v. Shri Krishan Lal & Ors.25 The respondent cannot afford to challenge negligence in some cases and keep quit in some cases. When there is a common judgment, the respondent ought to have filed appeal against the award passed. Hence, the contention of the Counsel for the respondent that there was contributory negligence on the part of the driver of the scooter also, cannot be accepted.- Kumari Sandhya & Anr. V. Karnataka State Road Transport Corporation.26

Collision of scooter with bus resulting into death of scooterist. Tribunal concluded that accident was caused due to wrong parking of bus and failure of driver to take adequate measures to give indication about parked bus. However, Tribunal also found scooterist guilty of contributory negligence to the extent of 1/4th single Judge reversed the finding of Tribunal and absolved the bus driver of his responsibility to take care vis--vis users of the road. Impugned judgment of Single Judge suffers from patent illegality and deserves

24 25

1999 (1) TAC 306 (Raj.) 1999 (1) TAC 367 (Del.) 26 1999 (1) AJR 629 (Kant)

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to be set aside. Award of Tribunal upheld. Gurdial Singh v. Pepsu Road Transport Corporation, Patiala.27 In front of the bus, the motor cycle was going; it was the bus which hit the motor cycle with its front portion. Since it was at fast speed it could not be controlled hence the bus swerved towards the wrong side of the road and hit the cyclist. After hitting the cyclist the bus turned to its correct side. In spite of being subjected to lengthy cross-examination testimonies of these witnesses could not be discredited. From their lengthy crossexamination it could not be proved that there was any negligence on the art of the motorcyclist. No material contradiction could be extracted from their cross-examination. They withstood the test and could not be dislodged. They appear to be truthful and straight forward witness. Being eye-witness they narrated the facts as they saw. Therefore, their testimonies were rightly relied by the Tribunal. No contributory negligence was proved.State of Haryana v. Pasricha & Ors.28 2.10 Rule of Last Opportunity in the field of contributory negligence: The rule of last opportunity introduced by judicial pronouncements to the law of Torts is a well recognized rule of law applicable over the whole field of contributory negligence. Applying this principle the sole liability can be imputed to one party even though there was a prima facie of negligence against both parties. Fastening the liability solely on one in a case of contributory negligence, applying this principle, however, is difficult in modern times because it is rather difficult to draw a clear line between the faults (of the parties) from part of the dispute that crops up as a result of collision between two time place or circumstances to enable a clear line to be drawn between the faults of the two parties the sole liability can be imputed to one party. This rule provided the above requirements are satisfied, is a sound rule although it does no longer exist in the country of its origin, England. It is pertinent in this context to note the observation of Lord Ellenborough, C.J. in Butterfield v. Forrester29, one person being at fault does not dispense with another using ordinary care of himself.
27 28

1999 (3) TAC 292 (P&H) I (2000) ACC 354 (Del.) 29 1809 (11) East 60

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It should, in this connection, be remembered that in a case where negligence can be attributed to both parties the normal rule is that the loss shall be distributed between the parties in some proportion taking into account the probative value of the evidence adduced in the case. The rule of last opportunity however, would enable a victim to recover the full compensation notwithstanding the charge of contributory negligence against him.- Kerala SRTC v. Bhargavi Amma30. The rule of last opportunity assumes if the accident could be avoided by the other party and the sole liability can be imputed to the party who could have avoided the accident through originally there was negligence on the part of the victim of accident. - Anotinio Milagres Famades v. Promod Vijayan31. 2.11 Composite Negligence and Contributory negligence: The term contributory negligence applies solely to the conduct of a plaintiff. It means that there has been act or omission on his part which materially contributed to the damage. But in the case of composite negligence both the parties can be held liable for compensation.- Rehana v. Abdul Majeed.32 A person is guilty of contributory negligence if he reasonable prudent man, he might hurt himself, the plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable. The standard of care expected of a person in such circumstances is what a reasonable man would have done. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeabilty of harm to oneself. A person of contributory negligence is he ought reasonably to have foreseen that if he did not act as a reasonable prudent man, he might hurt himself in doing a particular act.- Nirmal Singh v. Haryana Roadways.33
30 31

1990 ACJ 618 1990 ACJ 411 32 1985 ACJ 193 33 I (1999)ACC 342

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CHAPTER-III DOCTRINE OF RES IPSA LOQUITUR

3.1 Doctrine of res ipsa loquitur: In an action for negligence, no doubt, the onus lies on the claimant to show that the driver of the offending vehicle was responsible for the accident in question. However, there may 14

be certain circumstances or exceptional cases, wherein the claimant may not be able to know that 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, upon the mere happening of such accident. Once this doctrine is invoked in a given set of facts, it becomes necessary for the opponent to show that he was not negligent. The true ambit of the doctrine res ipsa loquitur has been elucidated in Colvilles Ltd. v. Devine34 and Ludgate v. Lovett35 it may be mentioned that the test, in ascertaining whether the doctrine applies, is also very well laid down in the well known passage in the judgment of Erle, CJ. In Scott v. Landon and St. Katherine Docks Co.,36 this reads as under There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those, who have the management, use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. The doctrine of res ipsa loquitur can be successfully invoked where the facts proved before the Court admit an incident or accident which ordinarily does not happen in the usual affairs or management of the vehicle driven.- A.S.Sharma v. Union of India37 An exception to the general rule that the burden of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendants negligence, or where the event charged as negligence tells its own story of negligence on the part of the defendants, the story so told being clear and unambiguous. To these cases the maxim res ispa loquitur applies.
34 35

1969 (2) All ER 53 1969 (2) All ER 1257. 36 (1861-73) All ER Rep. 246 37 1995 ACJ 493 (Guj.)

15

Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in the defence, must be over come by contrary evidence the burden. On the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore there is a duty on the defendant to exercise care and the circumstances in which the injury complained are such that with the exercise of the requisite care no risk would in the ordinary curse of events ensue the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendants control the interference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate.38 The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle or res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident speaks of itself or tells its own story. These are the cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim of res ipsa loquitur is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might probably have happened in a manner which did not cannot negligence on his part.Pashpabai v. Ranjit Co. and P.Co.,.39 In Thanthai Periya Transport Corporation Ltd. v. Meerabai Ammal40, the doctrine of res ipsa loquitur is that the accident speaks for itself or tells its own story res ipsa loquitur is a principle which is reality belongs to the Law of Tort and is not applicable to a criminal
38 39

Halsburys Laws of England Vol.23 p.671 1977 ACJ 343 40 1989 ACJ 139 (Mad.)

16

prosecution. The application of doctrine of res ipsa loquitur, depends upon the nature of the accident happened, there the question of applying the rule of res ipsa loquitur does not arise. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. It is principle which in reality belongs to the Law of Torts and is not applicable to a criminal orosecution. The application of doctrine for res ipsa loquitur depends upon the nature of the accident happened, there the question of applying the rule of res ipsa loquitur does not arise.-New Delhi Assurance C. Ltd. v. Ramchandra41. The doctrine of res ipsa loquitur does not apply and cannot be pressed into service if the cause of accident is known. This doctrine applies where the facts before the Court are not the whole facts and the cause of accident has not been explained by any of the parties.-Kamlesh v. Prahlad.42 The doctrine of res ipsa loquitur does not dispense with the need to prove a fact alleged by a person. It only affects the mode of proof. With a view to mitigating the regour of proof of negligence under certain circumstances, the common law invoked the aforesaid principle.-Sunjit Singh v. Santosh Kumari.43 In the case of negligence, if the doctrine of res ipsa loquitur applies, there would be a presumption of negligence, which presumption has to be raced by respondents.- Sunehri Devi v. Bal Kishan.44 In absence of any unexpected development it is for the driver to have explained how this happened and there is no such explanation for the coming. In such a situation the principle of res ipsa loquitur applies. The petition in the circumstances, could not have proved the actual cause of the accident, and on the face of it was so improbable that such an accident could have happened without the negligence of the driver that the Court should presume such negligence without further evidence, the burden in such a situation is on the defendant to show that the driver was not negligent and that the accident might,
41 42

1990 ACJ 206 (MP) 1985 RWL 49 (Raj.) 43 1989 ACJ 466 (P&H) 44 1989 ACJ 299 (P&H)

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more probably, have happened in a manner which did not amount to negligence on his part, but defense has failed to produce any evidence to support such a possibility.- Basthi Kasim Sahib Mysore SRTC.45 When a girl walking on left side of a road was knocked down by a bus coming from opposite direction and died. Held, circumstances spoke for themselves and the driver was held to be rash and negligent.- A.S.Manjunathaiah v. M.V.Nanjundaiah46. Where a car in speed swerved to extreme right side of the road and dashed a man standing near a panwala beyond the tar surface of the road. The doctrine res ipsa loquitur applied.- Gaurabai v. Jagdish PrasadPrasad.47 In the case of accident on the wrong side of a bus, the doctrine of res ipsa loquitur is attracted and the burden shifts to the opposite party to show that the accident has not happened due to rash and negligent driving of the bus.- Thanthai Periyar Transport Corporation Ltd. v. Meerabai Ammal.48 The doctrine of res ipsa loquitur is applicable to the case where the child playing on the road is killed by a tractor as the tractor is not a vehicle which cannot be stopped immediately and the child does not come on the road all of the sudden.- Bhagwati Prasad v. Teermal Borla.49 In Kartik Ram v. Chandra Gopal50 the doctrine of res ipsa loquitur was noticed as under:No evidence has been led by the owner and the insurer that connecting rod or its tie rod was not weak which was checked before the tractor trolley was put on road for transporting paddy. No mechanical expert was also examined that the connecting rod and its tie rod were good and roadworthy condition and were able to carry the load in the trolley. In the circumstances, when the accident is admitted and the defence taken by the owner of the vehicle that it was due to mechanical breakdown due to latent defect has not been established, even if the witness examined who were travelling in the trolley could
45 46

AIR 1991 SC 487 1985 ACJ 295 (Karn.) 47 1984 ACJ 360 (Bom.) 48 1989 ACJ 139 49 1994 ACJ 700 50 1998 ACJ 1118 (MP)

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not see the manner and the circumstances in which the accident occurred to remove hardship to claimants the principle of res ipsa loquitur could be safely applied, which is a rule of evidence departing from the rule that it is for the claimants to prove negligence, but in such cases considerable hardship is caused to claimants as the true cause of the accident is not known to them but it is solely within the knowledge of the person who caused it. The claimants can prove the accident but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the said principle of the words res ipsa loquitur is that the accident speaks for itself so that it is sufficient for the claimants to prove the accident and nothing more. The present case is like that where the accident speaks for itself. When this principle is applied the burden shifts upon the owner and driver to establish that the accident was not caused due to their negligence which is the case has not been discharged. The presumption of negligence is not rebutted by the mere fact that there was mechanical breakdown but the burden was further on them to prove that there was not want of reasonable care and the vehicle was kept in order. 3.2 Res ipsa loquitur negligence- when maxim applicable: With reference to the provisions of section 106 of Evidence Act, person like driver of a offending vehicle has been called out for having special knowledge of the occurrence, in such a view if he does not explain the same when he has been given a last opportunity while questioned under section 313 of the CrPC, after the prosecution has discharged its burden prima facie the courts are entitled to draw adverse inference against such accused. As noted earlier, in present case, except few futile suggestions by PW 5 and other eye witnesses, absolutely ground or explanation posed on the side of the accused of such explanation and on the basis of the material produced by the prosecution the Courts below have rightly invoked the doctrine of res ipsa loquitur which is found applicable at more people die of road accidents than by most diseases so much so the Indian highways are among the top killers of the country. Indian transport is acquiring a menacing reputation which makes travel a tryst with death, such rash and negligent drivers requires severe punishment especially when in the present case the petitioner is

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responsible for death of more than dozen people and grievous injuries to others. Ishwar Saddepa Nandennavar v. State of Karnataka.51 3.3 Res Ipsa Loquitur- when principle applies: There is positive evidence, both oral and documentary, to suggest that the bus in question and the time of accident was being driven by respondent No. 2 in a rash and negligent manner. Even if what he had pleaded regarding a truck having appeared from the opposite side to be correct, still looking to the geographical and topographical conditions of the road, it was expected of the driver of the bus that he should have been in a position to control his vehicle. This was only possible if the speed was not excessive. Case as admittedly set up by him before the learned Tribunal below was that a truck appeared from the opposite side and with a view to avert the collision, breaks were applied. Those did not work. This resulted in the collision. Impact of the collision must be such that as a result of it, bus rolled down. These facts, coupled with non appearance of the driver himself into the witness box, and/or any step having been initiated by the appellant to establish its case with a view to get a favorable finding that this is not a case of rash and negligent driving negatives the same. High Court has no hesitation in observing that in a properly maintained bus when driven with due care and caution as also keeping in view the road conditions where it is being driven, would ordinarily not roll down and get off the road causing accident leading to passengers being injured and/or losing their lives. In these circumstances, doctrine of res ipsa loquitur is clearly attracted to the facts of this case.- Himachal Road Transport Corporation v. Surjo Devi & Ors.52

51 52

2005 (1) ACC 193 at page 196 (Kar) 2004(3) ACC 798 at page 800-801(Him Prad.)

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CHAPTER-IV CONCLUSION
With a total of 70548kms53 National Highways in India it is unimaginable to calculate the number of motor vehicles plying on these highways at any given point of the time and calculating number of accidents occurring per hour is next to impossible. But the cases of accidents being reported is very low this helps in arriving at the approximate rate of accidents occurring per hour in India. India's record in road deaths has touched a new low, as toll rose to at least 14 deaths per hour in 2008 against 13 the previous year. The total annual deaths due to road accidents has crossed 1.18 lakh, according to the latest report of National Crime Records Bureau (NCRB). While trucks/lorries and two-wheelers were responsible for over 40% deaths, the rush during afternoon and evening hours were the most fatal phases. Traffic experts are alarmed over the shooting trend of fatalities on roads between 2003 and 2008, and
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Ministry of Road Transport and Highwayshttp://morth.nic.in/writereaddata/sublink2images/NH_wise_length514015210.htm- Last Visited 16-072010.

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progressive states having a significant share of road fatalities. While the toll was only 84,430 in 2003, it crossed 1.18 lakh in 2008, an increase of nearly 40%. Andhra Pradesh, Maharashtra and Tamil Nadu reported 12%, 11% and 10.8% of total road accident deaths in the country. "The toll is on the rise and no one knows who is to be held responsible. Should central assistance for curbing accidents and fatalities be cut in case of states which are failing to reduce accidents and deaths? We must give a thought to the increasing tally of injured in road accidents. In fact, 4.69 lakh people were injured in road accidents in 2008, nearly four times the total death toll. As per the annual NCRB report, road accidents had the maximum (37.1%) share of unnatural causes of accidental deaths in the country. The report also defined the period between 3-6pm as the most accident prone phase during the day. Traffic experts said accident rates were high during this period as drivers felt stressed out and were often half-asleep while driving. "Early morning hours are also similarly critical," they added. According to the report, small states had a dubious record as far as the rate of accidentdeaths per thousand vehicles was concerned. It was highest in Arunachal Pradesh at 5.7, followed by 3.6 in the case of Sikkim. Similarly, the rate of deaths per 100 cases of road accidents was highest in Nagaland at 92.1 followed by Mizoram at 89.7, against the national level of 28.4.54 Considering the above facts, it can be assumed that there would be a significant number of accidents due to negligence, but still there is no specific provision relating to negligence available in the Motor Vehicles Act, 1988. After enough research done on this project we can safely state that if any accident occurs due to negligence, it is difficult to award a judgment based on a hard and fast rule. If done so, there are bright chances for the wrongdoer to escape his liability and the victim is left to suffer in silence. Therefore it becomes necessary to study each case based on its merits and circumstances
54

Times of India, Feb 24, 2010 - http://timesofindia.indiatimes.com/india/14-people-die-every-hour-inroad-accidents/articleshow/5609733.cms

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and take a decision which is fair and equitable. Moreover, Motor Vehicles Act, 1988 is a Benefit Legislation i.e., the benefit is given to the victim by compensating him with the required amount irrespective of his social strata.

BIBLIOGRAPHY
1. Winfield & Jolowicz, on Tort, Sweet & Maxwell, 15th Edition, London, 1998. 2. Salmond & Heuston on Law of Torts, Sweet & Maxwell, 20th Edition, 4th Indian Reprint, 1998. 3. Weir, A casebook on Tort, Sweet & Maxwell, Seventh Edition, London, 1992. 4. B.A. Heple & MH Matthews, Tort: Cases & Materials, ELBS, Fourth Edition, London, 1991. 5. WH Roger, The Law of Tort, Sweet & Maxwell, Second India Reprint, 1995. 6. David Green, Law of Torts, Cavendish Publishing Limited, Fifth Reprint, 1994. 7. Vivienne Hapwood, Law of Tort, Cavendish Publishing Limited, London, 1993. 8. RWM Dias & BS Markesinis, Tort Law, Clarendon Press, 1992. 9. Ratnalal & Dhirajlal, The Law of Torts, Wadhwa and Company, 1998. 10. BM Gandhi, Law of Tort, Eastern Book Company, Lucknow, 1990. 11. Ramaswamy Iyer, The Law of Torts, Butterworths, New Delhi, 2003. 12. S. Ramachandran, Hand Book of Transport Laws in A.P. 13. Ejazis, The MV Act and Rules. 14. Senguptas Commentry on MV Act & Rules. 15. Parmar & Sarkar, Liability of Motor Insurer, 2010 Edition. 23

16. Sarkars, Personal Injuries & Disability. 17. S.A Charis, Supreme Court on Accident Compensation. 18. R.B Singhs, Ready Reckoner of Accident Claims and Compensation. 19. Sarkars, Motor Accident Insurance Claims 20. Vasudevans, Supreme Court Judgments on Motor Accident Claims and Compensation. 21. Choudhary, Motor Accident Claims and Compensation.

JOURNALS
1. Accident Claims Journal (ACJ) 2. All India Reporter (AIR) 3. Transport Accident Cases Journal (TAC)

WEB REFERENCES
1. www.supremecourtcases.com 2. www.highcourtchd.gov.in 3. www.delhihighcourt.nic.in 4. www.karnatakajudiciary.kar.nic.in 5. www.judis.nic.in/andhra/chejudis.asp 6. www.highcourtchd.gov.in 7. www.manupatra.co.in 8. www.google.co.in

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