PART – I
1. Title
‘Case Analysis and Case Comment on Kavita V. Deepak and Others’.
2. Introduction
The most common cases in courts at present have relation to the tort of “negligence” whether directly or indirectly. This research paper is going to deal with the same but most commonly the topic of “rash and negligent driving”, “adequate compensation” which come under the act of the “Motor Vehicles Act”. This is well known that the Law of Torts in India is based on the English Common Law. The Law of Tort is a division of Civil Law. The word “Tort” is acquired from the Latin word tortum which signifies deviant or malformed or illegal and is in contradistinction to the word rectum which signifies “straight”[1]. Correspondingly, the law relating to “negligence” is accepted and amended by the courts of India on the principles of good justice, conscience, and equity. The inference of the term negligence is from the Latin word “Negligentia”, which signifies “failing to pick up”[2]. Negligence is a non-success to use such prudent care as a reasonable, and careful person would use, under similar circumstances and it also includes acts and omissions involving unreasonable risk of having harmed another[3] . In simple words, negligence refers to the nature of being negligent towards the law established in the society for the protection of people. Legal clarification of the word “Negligence” conveys two senses in the law of torts. It may signify either a mental element which is to be concluded from one of the procedures in which some tort may be perpetrated, or it may signify an independent tort which consists of a violation of the legal duty to take care which results in damage displeasing the defendant, to the applicant. There must be a men's rea i.e., “a wrongful intention” in criminal negligence. The simple absence of care will comprise civil liability and would not include criminal liability and thus bring the present case analyzed within the scope and ambit of Section 304-A of the Indian Penal Code[4]. There are three essential elements for negligence to materialize i.e. presence of duty to look after, failure to attain that quality of care, and damage undergo on account of violation of duty at present. Section 166 of Motor Vehicles Act, 1988 and section 110 A of the Motor Vehicles Act, 1939 defines the criteria to be followed in the present topic in regards to compensation to be sanctioned to the applicant. Any injury which results in impairment of the physical and/or mental or psychological ability of any normal person to discharge or carry out his/ her normal work or routine work or occupational activities or tasks probably for the rest of his/her life. In case of injuries emerging out in the form of permanent disability, two criteria of assessment of compensation for permanent disability are defined and it covers the loss of future earning capacity and loss of amenities. To award remove amount for loss of earning capacity from date of accident till the day of trial can be called pecuniary damages[5]. The Case Laws referred, to reach the aspects and to analyze the fact of the present case are-
· Raj Kumar v. Ajay Kumar: This case is taken as the base to decide the compensation awarded lowermost of the heads in the present topic and makes the jurists of the current topic conclude the present case as it also deals with the same legal infringement and physical loss occurred or suffered to/by the plaintiff (Raj Kumar) till a much extent and covers the same sections of “Motor Vehicles Act” and also the plaintiff of this case faced permanent disability [6].
· Sri Ramchandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.: The case explained the term “Disability”, which is needed to conduct the conclusion that how compensation will be sufficient and just in eyes of law to the mislaying suffered by the plaintiff either substantially or mentally and consequently relates the current case so, that the appellant in the current topic must be secured and awarded with just fair and adequate compensation[7] .
Through this research paper, we aim to approach the efficacy of judgments and pronouncements declared by various jurists for negligence and to evaluate the criteria for adequate compensation in various cases and judgments.
3. Research Questions
The study largely took into consideration six key questions which are as follows:
3.1 What is Negligence?
3.2 To recognize the comprehensive theory of adequate compensation as pronounced in the case.
3.3 To define the sections 279,337,338 of IPC required as per the case.
3.4 To elaborate the concept of adequate compensation concerning disability occurred to the plaintiff as per the present case.
3.5 To elucidate criteria required to be followed under Motor Vehicles Act, 1939 and 1988 as per the case.
3.6 Impact of negligence on the victim or plaintiff.
4. Literature Review
The researcher, with his prior research, conclude that there are no existing sources for the case of “KAVITA V. DEEPAK AND OTHERS” and its analysis, during the time of research and started anew by collecting facts, relevant articles, case laws, proceedings of the high court and the supreme court wherever required. The present case deals with negligence due to rash and negligent driving resulting in the disability of the appellant. To acquire a clear insight and understanding of the same, the researcher refers to The Law of Torts[8]by Ratanlal & Dhirajlal which is an extensive book of torts law & other book referred is Supreme Court Yearly Digest 2014[9]by Surendra Malik, Sumeet Malik, and Sudeep Malik. The book provides a detailed description of the tort of Negligence concerning both English cases, Indian cases, and most information regarding the Motor Vehicles Act.
To enhance the competency and usefulness of the research, the researcher relied on to article Criminal Negligence and the Standard of Care[10]on negligence. Law of Insurance by Avtar Singh is one more book referred by a researcher that enhances value to the present analysis of the case.
There are many case laws and judgments relevant to the tort of negligence that subsist. However, the researcher referred to the ones that magnify and strengthen the understanding of the specific tort. Raj Kumar vs. Ajay Kumar [11]is an Indian case in which the court granted adequate compensation under the MV Act, 1988 because of the accident with the survivor because of the accident which arises in permanent partial disability. Puttama and Ors. vs. K.L. Narayana Reddy and Another in which the main Ss. 166 and 173 of MV Act,1988 has been discussed which is the basis for the case as the accident was occurred due to rash and negligent driving of the driver in the current case. Another case is Nizam Institute of Medical Sciences vs. Prasanth S. Dhanaka which is based on deciding adequate compensation for the survivor of medical negligence.
Similarly, other cases are mentioned in the current topic analysis about the present case in order to contrast and have better conclusions regarding the topic of the present case. Such resemblance would intensify the quality of the current topic analysis.
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[1] P.S.A Pillai, LAW OF TORT (9th ed.2020). [2]Oxford Living Dictionaries. "Negligence". Oxford University Press. Retrieved (July 24, 2017), https://www.lexico.com/definition/negligence. [3] Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552 (1997) 2 GCD 72(India). [4] B.M. Gandhi, LAW OF TORTS (4th ed.2017, Reprinted 2020). [5] Cholan Roadways Corporation Ltd. v. Ahmed Thambi, 2006 (4) CTC 433(India). [6] Raj Kumar v. Ajay Kumar (MANU/SC/1018/2010), (2011) 1 SCC 343(India). [7] Sri Ramchandrappa v. The Manager, Royal Sundaram Alliance Insurance CO.LTD (MANU/SC/0926/2011), (2011) 13 SCC 236(India). [8] RATAN LAL & DHIRAJLAL, THE LAW OF TORTS (Lexis Nexis, 26th ed., 2019). [9] Surendra Malik & Sumeet Malik & Sudeep Malik, Supreme Court Yearly Digest 1268(2014). [10] Ramraj & Victor V., Criminal Negligence and the Standard of Care, 69 Sing. J. Legal Stud. 678 (1999). [11] supra note 6.
Writer:
Name: Divya Soni
College: Symbiosis Law School, Hyderabad
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