S.V. Subbarao Vs. State - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - negligence for the purposes of a criminal liability has been clearly stated by lord atkin in-andrews v.orderjaganmohan reddy, j.1. this is a revision petition filed against the judgment of the sessions judge, secunderabad, convicting the accused of rash and negligent driving under section 304a, penal code, and imposing a fine of rs. 125/- it also appears that a revision petition for enhancing the fine was filed before the district magistrate of hyderabad city district by the prosecution and a reference has been made by the said district magistrate for enhancing the sentence. this judgment will govern both these petitions.2. it appears that on the date of the incident, i.e., on the 24th may, 1950, the accused was driving a road transport bus at about 5 p.m. in the afzalgunj area. it was a rainy day and it is stated that the bus driver by his rash or negligent driving knocked down a cyclist coming in the opposite direction as a result of which the 'cyclist received injuries and ultimately died. the defence is that there was a rickshaw coming in the opposite direction and the cyclist tried to overtake the rickshaw and in doing so, hit against the right side of the mud-guard of the bus, fell down on the road and was injured. the defence witnesses had given their statements to the road transport authorities immediately after the accident and since they have not been produced on behalf of the prosecution their evidence was adduced on behalf of the defence the learned fifth city magistrate who tried this case, after discussing the entire evidence of the defence witnesses does not give a finding as to whether he believes or disbelieves their evidence but merely states that what they say-has not been borne out by the prosecution witnesses; as such the presence of the rickshaw at the time of the accident becomes doubtful. later in the judgment however he admits the presence not only of the rickshaw, but the fact that the cyclist over-took the rickshaw. the learned sessions judge has not, in my opinion, directed his mind to this fact the vital question in this case is as to what constitutes negligence for the purpose of conviction under section 304a of the indian penal code. negligence for the purposes of a criminal liability has been clearly stated by lord atkin in-andrews v. director of public prosecutions (1937) ac 576 at p. 583 where he observed:simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. probably of all the epithets that can be applied 'reckless' most nearly covers the case. it is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.this dictum has been cited with approval in several cases in india viz. in-emperor v w.s. priestley air 1944 sind 124 and-tika ram v. rex : air1950 all300 . in both these cases, a similar view has been adopted citing with approval the dictum of mukherjee, j. in-h.w. smith v. emperor air 1926 cal 300, where he laid down that the question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. this then is the test of a rash or negligent act for the purposes of section 304a.3. in view of the fact that both the lower courts have not properly directed their minds to the facts of the case from this aspect of law, relating to the act of the accused being rash or negligent, the evidence in the case has got to be looked into for the purposes of assessing liability, if any, of the accused.4. from a perusal of the evidence of defence witnesses there can be no doubt (and even the learned magistrate was compelled to admit it in his judgment later) that there was rickshaw coming from the opposite direction which the deceased cyclist tried to overtake and in trying to do so, he dashed against the mudguard of the bus. it is also further established from the evidence that the bus driver had to bring his bus to a stand-still 150 yards before the accident took place because there was a cart obstructing his way. after the obstruction had cleared, he again set his bus in motion, and after proceeding 100 yards or so this other accident took place. this fact by itself would establish (and there does not seem to be any reason why this testimony should be doubted) that the bus was not travelling at a high speed but at a reasonable speed, which one of the defence witnesses puts it at 7 miles an hour.5. no reasons have been shown why the eye-witnesses produced on behalf of the defence should not be believed. one of them was a passenger in the bus who had a clear view of the accident. the prosecution witnesses also have testified to the fact that the cyclist struck the mud-guard and fell down. the question is whether it was the bus that struck the cyclist or the cyclist that struck the bus. this is important for the purposes of assessing the liability of the driver. in such cases as observed by mukherjee, j. in-h.w. smith v. emperor air 1926 cal 300, already referred to, it is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so dominant a factor in accident cases. having regard to all these facts, it is not possible for me to hold that the accused was driving his bus in such a rash or negligent way as would bring him within the ambit of section 304a. on the other hand it appears to me and is clear from the defence evidence which i believe, that there has been negligence on the1 part of the cyclist who in attempting to overtake a rickshaw dashed against the mudguard of the bus. the learned government advocate also was unable to satisfactorily support the judgments of the lower courts except to say that' there were concurrent findings of fact. when the lower courts have not considered the evidence from the aspect of rashness or negligence as set out above, the concurrent findings have no particular significance. i therefore allow the revision petition, set aside the conviction and sentence of the accused. if any fine has been paid, it shall be returned.6. in view of this, the reference made by the district magistrate for enhancing the sentence does not arise and consequently it is not necessary to answer it. a copy of this order may be affixed in the reference filed.

Judgment:
ORDER

Jaganmohan Reddy, J.

1. This is a revision petition filed against the judgment of the Sessions Judge, Secunderabad, convicting the accused of rash and negligent driving under Section 304A, Penal Code, and imposing a fine of Rs. 125/- It also appears that a revision petition for enhancing the fine was filed before the District Magistrate of Hyderabad City District by the prosecution and a reference has been made by the said District Magistrate for enhancing the sentence. This judgment will govern both these petitions.

2. It appears that on the date of the incident, i.e., on the 24th May, 1950, the accused was driving a Road Transport bus at about 5 p.m. in the Afzalgunj area. It was a rainy day and it is stated that the bus driver by his rash or negligent driving knocked down a cyclist coming in the opposite direction as a result of which the 'cyclist received injuries and ultimately died. The defence is that there was a rickshaw coming in the opposite direction and the cyclist tried to overtake the rickshaw and in doing so, hit against the right side of the mud-guard of the bus, fell down on the road and was injured. The defence witnesses had given their statements to the Road Transport authorities immediately after the accident and since they have not been produced on behalf of the prosecution their evidence was adduced on behalf of the defence The learned Fifth City Magistrate who tried this case, after discussing the entire evidence of the defence witnesses does not give a finding as to whether he believes or disbelieves their evidence but merely states that what they say-has not been borne out by the prosecution witnesses; as such the presence of the rickshaw at the time of the accident becomes doubtful. Later in the judgment however he admits the presence not only of the rickshaw, but the fact that the cyclist over-took the rickshaw. The learned Sessions Judge has not, in my opinion, directed his mind to this fact The vital question in this case is as to what constitutes negligence for the purpose of conviction under Section 304A of the Indian Penal Code. Negligence for the purposes of a criminal liability has been clearly stated by Lord Atkin in-Andrews v. Director of Public Prosecutions (1937) AC 576 at p. 583 where he observed:

Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.

This dictum has been cited with approval in several cases in India viz. in-Emperor v W.S. Priestley AIR 1944 Sind 124 and-Tika Ram v. Rex : AIR1950 All300 . In both these cases, a similar view has been adopted citing with approval the dictum of Mukherjee, J. in-H.W. Smith v. Emperor AIR 1926 Cal 300, where he laid down that the question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. This then is the test of a rash or negligent act for the purposes of Section 304A.

3. In view of the fact that both the lower Courts have not properly directed their minds to the facts of the case from this aspect of law, relating to the act of the accused being rash or negligent, the evidence in the case has got to be looked into for the purposes of assessing liability, if any, of the accused.

4. From a perusal of the evidence of defence witnesses there can be no doubt (and even the learned Magistrate was compelled to admit it in his judgment later) that there was rickshaw coming from the opposite direction which the deceased cyclist tried to overtake and in trying to do so, he dashed against the mudguard of the bus. It is also further established from the evidence that the bus driver had to bring his bus to a stand-still 150 yards before the accident took place because there was a cart obstructing his way. After the obstruction had cleared, he again set his bus in motion, and after proceeding 100 yards or so this other accident took place. This fact by itself would establish (and there does not seem to be any reason why this testimony should be doubted) that the bus was not travelling at a high speed but at a reasonable speed, which one of the defence witnesses puts it at 7 miles an hour.

5. No reasons have been shown why the eye-witnesses produced on behalf of the defence should not be believed. One of them was a passenger in the bus who had a clear view of the accident. The prosecution witnesses also have testified to the fact that the cyclist struck the mud-guard and fell down. The question is whether it was the bus that struck the cyclist or the cyclist that struck the bus. This is important for the purposes of assessing the liability of the driver. In such cases as observed by Mukherjee, J. in-H.W. Smith v. Emperor AIR 1926 Cal 300, already referred to, it is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so dominant a factor in accident cases. Having regard to all these facts, it is not possible for me to hold that the accused was driving his bus in such a rash or negligent way as would bring him within the ambit of Section 304A. On the other hand it appears to me and is clear from the defence evidence which I believe, that there has been negligence on the1 part of the cyclist who in attempting to overtake a rickshaw dashed against the mudguard of the bus. The learned Government Advocate also was unable to satisfactorily support the judgments of the lower Courts except to say that' there were concurrent findings of fact. When the lower Courts have not considered the evidence from the aspect of rashness or negligence as set out above, the concurrent findings have no particular significance. I therefore allow the revision petition, set aside the conviction and sentence of the accused. If any fine has been paid, it shall be returned.

6. In view of this, the reference made by the District Magistrate for enhancing the sentence does not arise and consequently it is not necessary to answer it. A copy of this order may be affixed in the reference filed.