Judgment:
M.F. Saldanha, J.
1. The short point involved in this appeal is the question as to whether the compensation of Rs. 47,600 which was computed in the present case was adequate. The allied issue that was canvassed centered around the question as to whether the Tribunal was justified in having held the appellant guilty of contributory negligence and to have consequently reduced the compensation payable to him by 50 per cent.
2. The appellant's learned advocate has concentrated on the first aspect of the matter. He points out that the appellant who was riding a scooter had stated on oath before the Tribunal that he came out of the cross road to the junction and stopped there because the truck was approaching from his right side. This statement of the appellant has been disbelieved by the learned Member who has analysed the material before him and principally on the basis of the point of impact, has come to the conclusion that it is impossible to accept that the appellant had stopped when he approached the cross roads and that it is very clear that he proceeded into the path of the truck which was why the impact took place. The learned Member has recorded the finding that it is obvious that the appellant was in a hurry or in other words that he took the risk of trying to rush through and met with the impact in the process. The appellant's learned advocate has first advanced the submission that it was not permissible for the learned Member to have arrived at this conclusion because there was nothing in the evidence of the appellant to doubt his credibility whereas, on the other hand it was obligatory on the part of the truck driver who was on the other side and who has chosen not to contest to have produced evidence to the contrary in which case alone, the learned Member could have concluded that the appellant was negligent. As far as this submission is concerned, I need to record that undoubtedly the Tribunal would have been better equipped if the driver had given evidence and that in the absence thereof, it is the appellant's evidence alone that was before the forum. It does not however ipso facto follow that this evidence is the gospel truth and that it has to be accepted in toto. Inevitably, the claimant who is the injured person is bound to guard himself against anything that would expose his negligence and that he would therefore seek to project a picture whereby the entire fault lies with the opposite party. Even if there is no contrary evidence, it is the function of the Tribunal to test and scrutinise the evidence that is before it and it is all the more necessary in cases where there is no evidence to the contrary. The learned Member in this instance has followed the right procedure by evaluating the case on the basis of the totality of the material before him and by taking judicial notice of what the obligation on the part of the appellant was and to my mind, has rightly come to the conclusion that the appellant was also a contributory to what happened.
3. At this stage I need to advert to a very significant and substantial aspect of the legal position which has been very strongly projected by Mr. Shankar who represents the insurance company. Starting from the maxim of res ipsa loquitur, he submits that the legal obligation on the part of a party approaching a cross-road or a junction has been defined in regulation 9 of the Rules of the Road Regulations, 1989, which casts a duty on the party approaching the junction to stop and to ascertain whether there are other vehicles approaching that junction and if so to give way to the vehicles approaching from the right. Learned counsel is justified when he points out to the court that this is the obligation which was cast on the appellant when he approached the junction particularly since he was coming out of the smaller street and that there can be no dispute about the fact that he did not give way to the lorry which was approaching from his right. I have no hesitation in upholding this submission because this is again completely in consonance with the finding recorded by the learned Member.
4. On the question of apportionment of blame, I need to observe that the alternate submission advanced by the appellant's learned advocate was that even assuming that it is held that the appellant was to some extent a contributory that the truck driver has not produced any evidence in support of his side and furthermore, that on the facts of the present case the greater liability must be foisted on the truck driver. In support of this contention one of the arguments that was advanced was that the truck was obviously the slower of the two vehicles and that even assuming the appellant wrongly tried to slip through, that the truck driver was under an equal obligation to ensure that he did not collide with the wrongdoer. As far as this aspect of the matter goes, Mr. Shankar did try to strongly defend the position that if the appellant has contributed wantonly to what happened, that merely because he has sustained injuries he cannot seek to re-transfer the blame to the truck driver. He has also referred to the fact that in case after case it is the unfortunate experience of the legal forums before which these matters come to note that the manner in which these two-wheelers are being ridden gives cause for serious concern and also leads to the inevitable conclusion that if the rider insists on being wantonly reckless then he will have to take the consequences thereof and cannot then expect either sympathy or compensation if the tragedy that follows is self-inflicted.
5. I need to observe here that undoubtedly the sympathies are sought to be heavily pleaded on the side of the injured irrespective of whether the manner in which the two-wheeler was being ridden has virtually asked for the incident. In the present instance I have held that it is established that the appellant has been guilty of contributory negligence but I do not share the view that the blame should be apportioned half and half. The appellant's learned advocate is fully justified when he points out that if there was anything to be pointed out on behalf of the lorry driver that this ought to have been done and in the absence thereof, the adverse presumptions would arise. I also find that on the facts of the present case one cannot attract the high degree of negligence which would come in the category of recklessness because there is nothing on record to justify that gravity and going by what the learned Member has pointed out, it would ultimately boil down to a situation whereby the appellant failed to stop and obviously due to an error of judgment assumed that he could take the risk of passing through and paid the price for his mistake. Having regard to this situation to my mind, the apportionment of the negligence as far as the present appellant is concerned, should be reduced to 25 per cent.
6. As far as the various heads are concerned, the submission canvassed by the appellant's learned advocate that medical expenses of Rs. 18,800 ought to have been allowed in full is virtually indefensible and this head is modified from Rs. 10,000 to Rs. 18,800. Secondly, as far as the remaining heads are concerned, howsoever modestly one may view the case, the fact remains that the injuries were serious and the appellant was therefore required to undergo as many as 9 operations with the inevitable fall-out thereof and it has also been demonstrated that he was to a certain extent handicapped for well over one year. I do not therefore need to dissect these various heads but in my considered view an overall enhancement of Rs. 20,000 under these consolidated heads would be justified.
7. Before parting with this judgment, it is necessary, particularly having regard to the chaotic manner in which the vehicles are operated and the high degree of vulnerability to which the insurance companies are exposed as a direct result thereof, to make certain observations. Rule 9 of the Rules of the Road Regulations, 1989, reads as follows:
Giving way to traffic at road junction.- The driver of a motor vehicle shall, on entering a road intersection, at which traffic is not being regulated if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.
This rule is observed more in its breach and the truth of the matter is that having regard to the manner in which licences are issued and the laws are observed in breach, that in the majority of cases there is not even the awareness of the existence of this rule. The first fall out of the situation is that a large number of head-on collisions such as the present one take place. There is a lot of damage caused both to life and limb and at the same time, a lot of avoidable loss which ultimately has to come out of the public exchequer because the insurance companies are in the last analysis asked to compensate. It would be very necessary that the designated authorities of the State Government shall ensure through the media that the Rules of the Road Regulations are widely projected and secondly that it be made known that these will be strictly enforced. Halt and proceed boards shall be put up at all intersections. It shall also be brought specifically to the notice of the vehicle operators, particularly those operating two-wheelers, that in the event of breach of these rules irrespective of the nature of the damage that occur, that the party runs the risk of being disqualified from compensation. A lot can be said with regard to the reckless manner in which two-wheelers are being driven particularly in this city where it is found that there appears to be no limit on the number of persons who travel on a two-wheeler, and that a popular minister did away with the safety requirement of wearing the helmet; and where it is also demonstrated that these vehicles are driven in a manner which gives the impression that they are incapable of moving in straight lines and that they are driven at speeds that make them down unsafe. The authorities shall specifically bring it to the notice of persons operating two-wheelers that they have to pay the penalties which the law imposes, if the vehicles are operated in a manner that defies sanity and can only be rightly categorised as being suicidal; and that in the event of an accident they shall not be eligible either for any sympathetic consideration or for any monetary compensation from the courts. Basically these are functions which are cast on the law enforcement authorities but since they are oblivious of them, it is necessary for this Court to remind them and to ensure that the needful is done. The Registrar General shall send a copy of this judgment to the Secretary, Ministry of Transport, Government of Karnataka as also to the Director General of Police with the specific request that these two officers shall take the trouble to read the judgment in question and to issue appropriate directions thereafter.
8. The appeal therefore succeeds. The award is modified to the extent that it stands enhanced by Rs. 28,800. Also, as far as the apportionment is concerned since I have held that the appellant would be entitled to 75 per cent in place of 50 per cent awarded by the Tribunal, there would be a corresponding step up in the overall quantum of compensation payable to him. The insurance company is accordingly directed to deposit the balance amount with the Tribunal or in the alternative to pay the same directly to the appellant within an outer limit of twelve weeks from today.
9. It is most unfortunate that in callous disregard for safety the then minister, in defiance of advice from Police Department, withdrew the helmet requirement. Research has shown that the head is the most vulnerable part of the body in the case of a two-wheeler accident and that is why a helmet is compulsory safety gear all over the world. Howsoever inconvenient, it must be accepted, in the ultimate analysis, that life is precious and there can be no compromises in matters of safety. The insurance companies shall hereinafter prominently indicate in all policies that their liability shall be totally excluded if the driver and pillion rider do not wear helmets. It will be appreciated that since the helmet rule was relaxed this State has lost 21,486 precious lives of young men and women due to head injuries and another 1987 turned into cripples due to the same cause. These distressing figures alone must jolt the authorities into corrective action.
10. It is customary for stuntmen to demonstrate how many human beings can get on to a two-wheeler. One only needs to look at the Bangalore roads to marvel at the number of persons who are allowed to travel on two-wheelers. The law entitles only two persons, irrespective of the age to travel on a two-wheeler and the Delhi High Court has directed the police to enforce the rule in the paramount interests of the public safety. Nothing can be more dangerous than the practice of carrying infants and children on two-wheelers. A recent survey indicated that it is the order of the day for 3 adults to travel on a two-wheeler or for a whole family to get onto it. In Bangalore City alone, in the last two years over 400 infants and children have been killed or seriously injured in two-wheeler accidents. The Traffic Police who are blissfully ignorant of the law and are even less enthusiastic about enforcing it are obviously keen on reducing the population of this country. This cannot continue. Not only will there be no insurance cover whenever the law is breached but more importantly it will be necessary to inculcate the essential safety regulations through a sustained educative publicity campaign followed up by action against the law-breakers. The Hon'ble Minister for Transport will kindly take serious note of the observations of this Court and order corrective steps on a Statewide basis.
11. The appeal is accordingly allowed. No order as to costs.
12. The Registrar General to forward a copy of this judgment to the Minister for Transport, Government of Karnataka, also D.G. Police.