Sri Chimnaswami And Another v. M. Viiayal And Others

This appeal arises out of proceedings before the Motor Accidents Claims Tribunal, (District Judge), Tiruchirapalli. The Tribunal awarded compensation in a sum of Rs. 7,000 to the widow and minor daughter of one R. Muthu, who died in a motor accident at Pudukottai on 10th September 1962, caused by the first appellant Chinnaswami, whose car was insured with the second appellant-insurance company. The Tribunal held that the accident took place only due to the negligence and rashness on the part of the owner of the car. Taking into account the status and age of the deceased, it awarded Rs. 7,000 as compensation which amount was payable by the insurer. The owner of the car and the insurance company have now preferred this appeal.

Learned Counsel for the appellants contended before me that there was no evidence to show that the owner of the car was driving at a terrific speed or that he was responsible for causing the death of the deceased. It is true that there is no direct evidence as to how the accident happened. P.Ws 1 and 2 speak to their hearing of a noise and to the dragging of the deceased by the oar. Many attempts have been made by the Judges and others to define negligence legally. For the first time, is the year 1956, negligence was defined in Blyth v. Birmingham Waterworks(1):

Negligence is the ommission to do someing which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do”.

Negligence may be said to consist in the failure to exercise due care in a case in which a duty to take care exists. To constitute negligence, two things are necessary, one is careless act and the other is the duty to the person injured. There is a duty on the part of the driver to observe ordinary care or skill towards persons using the highway whom he could reasonably foresee or likely to be affected, It is sufficient that the vehicle was being driven in such a way as to constitute potential danger. A driver has no right to assume that a particular pedestrian is possessed of the powers of agility of the more fit. No concession is made to the frailties of driver on the road. The standard of care is an objective one and the driver must observe it or suffer the consequences. In order to establish a coherent chain or causation, it is not necessary that the precise details leading up to the Eccident should have been reasonably foreseeable; it is sufficient if the accident which occurred is a type which should have been forseeable by a reasonably careful person. Even a momentary act of negligence may amount to dangerous driving. What we have to consider in a given case is whether the car was being driven without due care and attention and whether the driver was exercising the degree of care and attention which a prudent driver would exercise in the circumstances. The test, as I said, is objective, and if there has been a failure on his part to exercise such a degree of care and attention, he is equally guilty whether the failure was deliberate or whether it arose from an error of judgment. The question for the Judge as posed by Lord Goddard, C.J, in Simpson v. Peat(2):

Was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. If he was not, they should convict. If, on the other hand, the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver, the case has not been proved;.”

At that same time, the driver is not bound to foresee every extremity of folly that occurs on the road. Equally he is certainly not entitled to drive upon the footing that other users of the road, either drivers or pedestrians will exercise reasonable care. He is bound to anticipate any act which is reasonably foreseeable which the experience of the road teaches the people albeit negligently. Taking a comprehensive view of the principles laid down in decided cases, I am of the opinion that it was due to the negligence of the driver of that car that the accident happened. He has not pleaded that it is an inevitable accident. Even if it is an inevitable accident, it is for him to prove it by going into the box. He must explain that was the cause of the accident and must show that the result of that cause was the inevitable accident. He must also show all the possible causes, the one or the other of which produced the effect. He must also show with regard to every one of the possible causes that the result could not have been avoided. Unfortunately the driver has not proved that it is an inevitable accident. In those circumstances, I am convinced that it is an accident caused by the rashness and negligence of the driver of the car. The quantum of compensation awarded is reasonable.

The appeal is dismissed, There will be no order as to costs.

V.C.S