Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., while addressing a case of negligent driving, expressed that,

“…if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable.”

An appeal was filed challenging the decision by Motor Accident Claims Tribunal.

It was submitted that the deceased was driving his car and when he reached Tehsil Aonla, the bus of U.P.S.R.T.C was being driven rashly and negligently by its driver dashed with the car which was being driven by the deceased.

His earning was Rs 95,960 per month and the legal heirs were dependent on him, therefore, they claimed a sum of Rs 1,80,00,000 with interest.

Negligence

The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not.

Negligence can be both intentional or accidental though it is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that either side is negligent.

Elaborating further, it was stated that if the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

Contributory Negligence

A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place and that amount will be decided from the compensation payable to him if he is injured and to legal representatives, if he dies in the accident.

Court’s opinion | Rash and Negligent Driving

Bench on noting the fact that the bus which was a bigger vehicle had to be more cautious, the instantaneous death of the driver of the car depicted that the vehicle driven by the respondent was being driven in rash and negligent manner, but the driver of the car was also considered negligent.

Lastly, the Court held that if U.P.S.R.T.C does not make payment within 30 days then only it will be liable for interest.

In view of the above, appeal was partly allowed. [U.P.S.R.T.C v. Anamika Deo, First Appeal from Order No. 1039 of 2021, decided on 14-2-2022]


Advocates before the Court:

Counsel for Appellant: Dharmendra Dhar Dubey, Awadhesh Kumar Saxena

Case BriefsHigh Courts

Rajasthan High Court: Birendra Kumar J. allowed the appeal and enhanced the award considering the settled guidelines in the subsequent judgments to reach at “just compensation”.

The instant appeal under Section 173 of the Motor Vehicles Act, 1988, was filed by the wife, minor daughter and parents of Late Ramavatar @ Ramgopal, a victim of motor vehicle accident happened due to rash and negligent driving of the driver of the offending vehicle. The appellants filed MAC Case No.134/2011 before the Motor Accident Claims Tribunal, Bharatpur. By the impugned judgment and award the Tribunal awarded Rs.3, 21,600/- against claim of Rs.80, 35,000/-. Being dissatisfied with the calculation and quantum of compensation decided by the appellants, instant appeal was filed.

Counsel for the appellants Ms. Chelsi Gangwal contends that there was overwhelming unrebutted evidence of the wife of the deceased AW-1 Asha, the father of the deceased AW-2 Pradhan Singh and a businessman dealing with AC etc. who was examined as AW-3 Lalit Kumar that the deceased had monthly earning of Rs.12,000/-. However, the learned Tribunal took a pedantic approach of the matter that since no documentary proof of income of the deceased was produced, the notional income of Rs.3, 000/- per month was taken as multiplicand.

Counsel for respondent 3 put a defense that the offending vehicle was being used in violation of the terms and conditions of the policy. It was a case of contributory negligence as has been held by the Tribunal.

The Court observed that In the present case, there is no photographs of the site plan nor the author who had prepared the site plan Ex.-2 appeared before the Court. In my view, the Tribunal has committed error of appreciation of evidence and in fact, it is not a case of contributory negligence. Therefore, only for the reason that a self-earning person could not produce the document of his income, the deposition of the witnesses conversant with the income of the deceased should not have been ignored.

The Court relied on National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, and observed “Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree or proximity to the arithmetical precision on the basis of material brought on the record in an individual case. In a case of death, the legal heirs of the deceased cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation.

The Court thus held “Thus, under the conventional head, the appellants would be entitled for Rs.1,50,000/-, the total payable compensation comes to Rs.26,71,600/- (Rupees Twenty Six lacs Seventy One Thousand and Six Hundred) The aforesaid amount minus already paid would be payable by the Insurer within three months to the claimants along with interest of 9% per annum, failing which the aforesaid interest would be payable till the realization of the whole due amount. The 1/3rd share of the minor daughter shall be deposited in some Fixed Deposit Scheme and shall be spent for education and betterment of the minor as and when occasion arises on the order of the Court only.”[Asha v. Naresh Kumar, 2022 SCC OnLine Raj 262, decided on 03-02-2022]


Appearances:

For Appellant(s) : Ms. Chelsi Gangwal for Mr. Prateek Sharma

For Respondent(s) : Mr. Ritesh Jain


Arunima Bose, Editorial Assistant has reported this brief.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: The 7-Judges Bench comprising of Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer, JJ., clarified the law related to limitation. The Bench, while addressing the standard to be applied in determining whether and when a plaintiff has the requisite degree of knowledge to discover a claim, thereby triggering the limitation period, stated,

“A claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. This approach remains faithful to the common law rule of discoverability, which recognizes that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists.” 

Background

In 2008, a New Brunswick-based company sought loans from a bank, but it needed loan guarantees from the province. The province agreed to $50 million in loan guarantees, conditional upon the company subjecting itself to an external review of its assets by its auditor. Consequently, the province agreed to take the guarantee of loan for the company. When the company ran out of working capital four months after receiving the loan guarantees from the province, the bank called on the province to pay out the loan guarantees, which it did on March 18, 2010.

It was only when the province retained another accounting and auditing firm to review the company’s financial position, it came to know that the company’s financial statements had not been prepared in conformity with generally accepted accounting principles and that the other firm had overstated the company’s assets and net earnings by a material amount.

Findings of Lower Courts

 On 23-06-2014, the province commenced a claim against the auditor, alleging negligence. The auditor moved for summary judgment to have the claim dismissed as statute-barred by virtue of the limitation period under Section 5(1)(a) of the provincial Limitation of Actions Act, which provides that no claim shall be brought after two years from the day on which the claim was discovered. The Motion Court struck the province’s action, finding that the province had the requisite knowledge by 18-03-2010, more than two years before it commenced its claim.

On appeal, the Court of Appeal allowed the province’s appeal and set aside the motion judge’s judgment stating that the governing standard was whether a plaintiff knows or ought reasonably to have known facts that confer a legally enforceable right to a remedy, which the Appellate Court found can only exist if the plaintiff had knowledge of each constituent element of the claim. Applying that standard, it found that the limitation period had not been triggered because the province had not yet discovered its claim.

Issues before the Court

  1. The first question before the Bench was what is the standard to be applied in determining whether a plaintiff has the requisite degree of knowledge to discover a claim under s. 5(2), so as to trigger the limitation period in Section5(1)(a)?
  2. The second question related to the particular degree of knowledge required to discover a claim.

Observation and Analysis

  • The Requisite Degree of Knowledge

 Answering the first question, the Supreme Court stated that the standard to be applied in determining whether a plaintiff had the requisite degree of knowledge to discover a claim under Section 5(2) of the LAA, thereby triggering the two-year limitation period in Section 5(1)(a), is whether the plaintiff had knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part could be drawn.

The Court opined that in a negligence claim, a plaintiff does not need knowledge that the defendant owed it a duty of care or that the defendant’s act or omission breached the applicable standard of care. All that is required is actual or constructive knowledge of the material facts from which a plausible inference can be made that the defendant acted negligently. Noticing that the province had actual or constructive knowledge of the material facts — namely, that a loss occurred and that the loss was caused or contributed to by an act or omission of the auditor — when it received the draft report from the other firm on 04-02-2011, and that the said act or omission caused or contributed to the province’s loss, the Bench stated that nothing more was needed to draw a plausible inference of negligence. Ensuring that the standard does not rise so high as to require certainty of liability or perfect knowledge, the Bench held,

“A plausible inference of liability is enough; it strikes the equitable balance of interests that the common law rule of discoverability seeks to achieve.”

  • The Common Law Rule of Discoverability

 Rejecting the contention of the province that the Common Law rule of Discoverability is not applicable on Canadian Law, the Bench stated that as evidenced by the words of the provision, there is no clear legislative language ousting or limiting the common law rule; in fact, quite the opposite. The event triggering the limitation period in s. 5(1)(a) is linked to the state of the plaintiff’s knowledge in the same manner as the common law rule. The Bench expressed,

“Section 5(1) (a) and (2) of the LAA does not contain any language ousting or limiting the common law rule; rather, it codifies it.”

 As per Sections 5(2)(a) to (c) of LAA, a claim is discovered when the plaintiff has actual or constructive knowledge that:

(a) the injury, loss or damage occurred;

(b) the injury loss or damage was caused by or contributed to by an act or omission; and

(c) the act or omission was that of the defendant.

Thus, as established by the rule of discoverability and the LAA, the limitation period is triggered when the plaintiff discovers or ought to have discovered, through the exercise of reasonable diligence, the material facts on which the claim is based. The Bench explained, a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn and this approach remains faithful to the common law rule of discoverability and accords with Section 5 of the LAA.

Findings of the Court

Opining that endorsing the Court of Appeal’s approach that to discover a claim, a plaintiff needs knowledge of facts that confer a legally enforceable right to a judicial remedy, including knowledge of the constituent elements of a claim, would move the needle too close to certainty, the Bench opined that in a claim alleging negligence, a plaintiff does not need knowledge that the defendant owed it a duty of care or that the defendant’s act or omission breached the applicable standard of care.

“The standard cannot be so high as to make it possible for a plaintiff to acquire the requisite knowledge only through discovery or experts.”

Hence, considering that the Province discovered its claim on 04-02-2011, when it received the draft Richter Report (second auditor) and that at that point, the Province had actual or constructive knowledge of the material facts — namely, that a loss occurred and that the loss was caused or contributed to by an act or omission of Grant Thornton, the Bench opined that nothing more was needed to draw a plausible inference of negligence.

Verdict          

In conclusion, considering that the Province discovered its claim on 04-02-2011, more than two years before commencing it on 23-06-2014 and had sufficient knowledge to draw a plausible inference that Grant Thornton had been negligent, the Bench held that its claim was statute-barred by Section 5(1)(a) of the LAA.

Accordingly, the judgment of the Court of Appeal was set aside and the decision of the motions judge was restored.

[Grant Thornton LLP v. Province of New Brunswick, 2021 SCC OnLine Can SC 23, decided on 29-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

UPDATE: Appeal preferred by the respondent against this decision before the UKSC has been unanimously dismissed.[Khan v. meadows, [2021] UKSC 21, decided on 18-06-2021]


Court of Appeal (Civil Division): The Division Bench of Lord Justice Hickinbottom and Lady Justice Nicola Davies DBE decided that the appellant doctor was not liable for the development of a “coincidental injury” in the newborn child, which was not within the scope of his duty to diagnose when the mother of the child consulted her before pregnancy.

Factual Matrix

The appellant was the mother of a child with haemophilia and autism. Before her pregnancy, she asked Dr Khan to establish whether she carried the haemophilia gene. Following blood tests, the mother was wrongly led to believe that any child she had would not have haemophilia. Had she known that she carried the haemophilia gene, she would have undergone foetal testing for haemophilia when she was pregnant. This would have revealed the foetus was affected. Appellant would then have chosen to terminate her pregnancy, and her child would not have been born.

Appellant sought damages from Dr Khan based on wrongful birth.

Further, she argued that Dr Khan was liable for all the consequences of the pregnancy. Dr Khan admitted liability for the consequences of the child’s haemophilia but denied liability in relation to the autism.

Issue for Consideration

If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?

Court’s Discussion

Bench stated that the scope of duty test identified by Lord Hoffman in South Australian Asset Management Corporation v. York Montague Ltd (“SAAMCO”) [1997] AC 191 is determinative of the issues which have to be addressed by a court.

Following were the questions:

i) What was the purpose of the procedure/information/advice which is alleged to have been negligent;

ii) What was the appropriate apportionment of risk-taking account of the nature of the advice, procedure, information;

iii) What losses would, in any event, have occurred if the defendant’s advice/information was correct or the procedure had been performed?

Court found that:

i) The purpose of the consultation was to put the respondent in a position to enable her to make an informed decision in respect of any child which she conceived who was subsequently discovered to be carrying the haemophilia gene. Given the specific enquiry of the respondent’s mother, it would be inappropriate and unnecessary for a doctor at such consultation to volunteer to the person seeking specific information any information about other risks of pregnancy including the risk that the child might suffer from autism. In giving such information it would be incumbent on a doctor, consistent with her/his own professional obligations, to take account of a variety of factors which on the facts of this case the appellant was unaware of.

ii) As to the apportionment of risk, the doctor would be liable for the risk of a mother giving birth to a child with haemophilia because there had been no foetal testing and consequent upon it no termination of the pregnancy. The mother would take the risks of all other potential difficulties of the pregnancy and birth both as to herself and to her child.

iii) loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism.

It was held that the appellant had no duty to prevent the birth of Adejuwon. The purpose and scope of the appellant’s duty were to advise and investigate in relation to haemophilia in order to provide the respondent with an opportunity to avoid the risk of a child being born with haemophilia.

Conclusion 

Bench expressed that the development of autism was a coincidental injury and not one within the scope of the appellant’s duty.

In view of the above discussion, the appeal was allowed. [Dr Hafshah Khan v. Ms Omodele Meadows, [2019] EWCA Civ 152, Hearing date: 17 October 2018]

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., decided an appeal wherein the claim petition was rejected by the Motor Accident Tribunal on certain grounds.

FACTS

Deceased Baby was traveling in a jeep owned by respondent 1. It has been stated that the vehicles’ driver was driving at a high speed and in a negligent manner resulting in a violent dash to a tree.

In view of the above incident, the husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act claiming Rs 5,00,000 towards compensation.

Insurance Company |Breach of Condition of Insurance Policy

Respondent 2 i.e the Insurance Company resisted the claim by filing a written statement on the grounds that the driver of the offending vehicle was not holding a valid motor driving license on the date of the accident and the jeep was insured for private use but it was used for commercial purpose in breach of a condition of the Insurance policy.

Since the claim petition was rejected by the tribunal, the present appeal was filed.

Counsel for the appellants, P.R. Agrawal; K.B Zinjarde, Counsel for the legal representatives of respondent 1 owner of the offending vehicle and S.K. Pardhy, Counsel for the Insurance Company.

Analysis and Decision

Bench on perusal of the grounds of rejection by the tribunal examined the correctness and legality of the same.

Ground 1:

Claim is based on falsity

Registration of births, those who born in remote areas like the deceased Baby or the appellant 1, have a lesser likelihood of registration of their birth and possessing a birth certificate.

In absence of schools in remote tribal areas till the recent past, it was not possible to take education for many. Hence no school record in respect of date of birth is also available.

Therefore, there is a practice of mentioning the approximate age.

The Court found no ill-intention of the claimants in mentioning the age of the deceased as 38 years.

Hence, the rejection of the claim petition by the Tribunal on the ground that the case of the claimant is based on falsity is erroneous.

Ground 2:

Husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident

The deceased was a housewife, therefore, claimants have lost personal care and attention given by the deceased.

A housewife holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbor for the family’s elderly.

In regard to the importance of the role of a housewife, High Court referred to the decision of the Supreme Court in Arun Kumar Agrawal v. National Insurance Company Ltd., (2010) 9 SCC 218.

Further, the Court stated that,

“…the loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife and further for loss of gratuitous and the multifarious services rendered by the housewives for managing the entire family.”

Hence, the claim of the claimants on the ground that the husband and the major sons are not entitled to claim compensation on the death of the wife or mother, appears to be in ignorance of the well-established principals of law.

In Court’s opinion, the deceased being a woman and mother of two children would have also contributed her physical labour for the maintenance of the household and also taking care of her children. Therefore, being a labourer and maintaining her family, her daily income should be fixed at Rs 200 per day and Rs 6000 per month.

Ground 3:

The private vehicle was used for commercial purposes in breach of conditions of the Insurance Policy moreover the driver was not holding a valid licence.

In view of the Supreme Court decision in S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1 and this Court’s decision in Dnyaneshwar v. Raju, 2020(1) Mah. Law Journal 377, wherein it was held that it is the vicarious liability of the owner of the vehicle to pay compensation even if due to rash and negligent driving of the driver, the accident had occurred.

Thus, in view of the above-stated position, ground 3 was also rejected.

DECISION

High Court held that it is the statutory duty of the Insurance Company to pay the amount of compensation even in breach of a policy condition.

Court directed the Insurance Company to pay the compensation amount in three months.

In view of the aforesaid terms, the appeal was allowed. [Rambhau v. Shivlal, 2020 SCC OnLine Bom 935, decided on 17-09-2020]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Bibek Chaudhari and Soumen Sen, JJ., addressed a matter wherein a reporter published a story on witnessing the police personnel bribing a truck driver and further driving negligent get hold of the truck resulting in the death of a person.

Petitioner a reporter of ETV Bharat made a news report stating, inter alia that some police personnel was collecting bribe from a truck loaded with sand and while chasing the truck, the vehicle owned by the police department was being driven in a rash and negligent manner.

The result of the rash and negligent driving caused the death of a person.

Above was the prima facie reason for lodging a complaint against the petitioner.

Bench on perusal of the materials on record stated that, it is a fundamental right of a press reporter to publish any news, which may not be palatable to the administration.

In order to stifle and muzzle the voice of the reporter this case has been registered against the petitioner.

Court also noted the fact that the police have taken cognizance of the report which prima facie discloses the offences committed by its own personnel.

Hence, in view of the above, Police Superintendent of the District concerned has been directed to initiate enquiry regarding registration of the FIR against the ETV reporter and to investigate about the collection of money by the police personnel, the incident of which has been published by the reporter and to take appropriate action against the offenders.

Therefore, the petitioner shall be released on bail. [Avishek Dutta Roy, In Re., 2020 SCC OnLine Cal 1319, decided on 30-07-2020]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J.allowed a criminal revision petition filed against the judgment of the Appellate Court whereby it confirmed the order of conviction under Section 304-A and 279 IPC passed by the trial court against the petitioner while reducing the sentence therefor.

The petitioner was accused of causing death of the deceased due to his rash and negligent driving. On the fateful night, according to the witnesses, the petitioner was driving his vehicle at a high speed which hit the deceased who was crossing the road. As a consequence, the deceased succumbed to the injuries sustained. The petitioner was charged, tried and convicted by the trial court under the aforementioned sections. He challenged the said order before the Appellate Authority which, while reducing the sentence imposed, confirmed the order of conviction. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court, after perusal of the record, noted that the prosecution mainly relied on witness testimonies. referring to earlier decisions, the Court observed that the witnesses can no doubt depose as to the manner of driving or speed of the vehicle; however, they cannot render an opinion as to rashness and negligence. It was further noted that there was no evidence to prove whether the vehicle was being driven in a manner which may be construed as rash and negligent by the court. It was held that high speed, by itself, in every case, cannot be a sufficient criterion to bring home guilt of the driver for rash and negligent driving. There was no evidence as to skid marks, type of injuries sustainedly the deceased, etc. In such circumstances, the Court gave benefit of the doubt to the petitioner and acquitted him of all the charges. The petition was allowed and the order impugned was set aside. [Kishore Chand Joshi v. State,2018 SCC OnLine Del 12337, decided on 12-11-2018]