Drivers Required To Slow Down At Zebra Crossing, Outlandish To Accuse Pedestrians Of Negligence Without Proof: Kerala High Court

Slamming State Insurance Department for its argument that a person crossing the road using 'zebra crossing' is required to be extra careful, the Kerala High Court held that unless it is specifically pleaded and proved that there was a clear case of negligence on part of pedestrian, such an inference cannot be made. 

The department had challenged Motor Accidents Claims Tribunal's award of Rs Rs.48,32,140 in favour of the kin of a 50 year-old woman who was hit by a police vehicle when she was crossing the roading using the 'Zebra Crossing'. Doreena Rola Mendenza, the victim, was headmistress of St.Joseph L.P. School, and died as a result of the accident.

Justice Devan Ramachandran said no evidence has been led by the department to prove that the victim was careless in crossing the road, a national highway in Cherukunnu.

"That apart, it is baffling for this Court that an argument is made out by the appellant that, when a pedestrian crosses the road at the earmarked place for such purpose - which is commonly known as ‘zebra crossing’ - the rash conduct of a vehicle, in hitting him/her, should be justified on the ground that liability of care is more on the said person," said the court.

The court further said that it is internationally accepted that Pedestrian Crossings/Zebra Crossing are meant to offer priority to pedestrians and that it becomes their right to use the same, as and when they require it, especially when there are no traffic lights controlling movement through it.

The court further said that there is no allegation that the victim had crossed the road in any area other than which was marked for such purpose. It noted that the Tribunal on the basis of the FIR has recorded that the the vehicle was being driven in a rash and negligent manner.

It was earlier contended by the Senior Government Pleader S. Gopinadhan that the deceased had been careless and negligent while crossing the road, and that she ought to have been more circumspect and aware of the surroundings and circumstances, particularly of the heavy traffic in the area.

It was argued that in such circumstances, when the deceased herself was negligent, the Tribunal ought not to have awarded a sum as large as Rs.48,32,140/-, but should have found contributory negligence on her side and to have reduced it substantially. He had prayed that the impugned Award of the Tribunal be set aside, at least to the extent to which it had refused to take into account the contributory negligence on the part of the deceased.

On the other hand, it was argued by the counsels for the respondents that the Tribunal had assessed the amount in a reasonable manner, taking into account the fact that at the time of the accident, the deceased was only 50 years in age and was working as the Headmistress of a Lower Primary School, drawing a monthly salary of Rs.51,704. It was argued that as against the claim of Rs.85,95,000, which in itself was very reasonable, an amount of Rs.48,32,133/- had been awarded.

Observing that Rules of the Road Regulations, 1989, require the driver of a Motor Vehicle to slow down at a road intersection, a road junction, pedestrian crossing or a road corner, the court said it is admitted without any dispute that the offending vehicle neither stopped or slowed down when the victim was crossing the road.

"This is an uncondonable conduct from a Police Driver, whose liability to follow the law is much more imperative than any other," said the bench.

The court further said that when pedestrians have priority on the ‘Zebra Crossing’ and merely because the drivers of vehicles do not understand this, it would be egregiously outlandish to even suggest that one who is killed or sustains injury solely because he or she took the liberty of making the crossing through such designated area, should nevertheless be held guilty of contributory negligence.

"This is contrary to the established road norms and the internationally accepted canons of road safety; and this becomes much more pronounced when one hears that the accident was caused by a Police Jeep, driven by a Police Driver. The standard of care in such cases must be much more on the owner and driver of the vehicle; and therefore, one cannot find any fault with the Tribunal in having concluded that no amount of negligence – even whisperingly – can be attributed to the deceased."

The court further observed that the family of the victim had also lost their loved one merely because she had chosen to abide by the law, and cross at the designated area. 

"Any interference with the Award of the Tribunal, therefore, would be an anathema to the principles of justice and fair play; and am fully of the view that it would be impermissible for this Court, in any manner, to accede to any of the grounds pleaded in this appeal. In the afore circumstances, I dismiss this appeal with costs, confirming the findings and conclusions of the Tribunal; with liberty being reserved to the respondents to approach the Tribunal for payment of any amount that has already been deposited by the appellant and to execute the Award in every manner, as is available to them in law," it said

The Court also refused to accept the contention of the Senior Government Pleader that the Tribunal had erred in deciding the ‘Loss of Dependency’, since the sons of the deceased are now major and were not dependent on her.

It noted that the Tribunal had specifically recorded that there had not been any dispute regarding dependency.

"That apart, the question of dependency is a matter of fact and if it has to be rebutted, then the respondents ought to have pleaded so and proved it. No such having been done, these arguments, therefore, at the best, is an attempt at brinkmanship; and therefore, are repelled," it added. 

ALSO READ: Pedestrian Crossings Must Be Marked & Enforced On All Main Roads: Kerala High Court Orders State Govt, NHAI To Take Necessary Action

Advocates Srinath Girish P., M.K. Sumod Mundachalil Kottieth, Nirmal S., P. Jeril Babu, K.R. Avinash, Abdul Raoof Pallipath, and Vidya M.K. appeared on behalf of the various respondents. 

Case Title: Kerala State Insurance Department v. Joy Wilson M.V. & Ors.

Citation: 2023 LiveLaw (Ker) 65

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