|By Sri Y. SRINIVASA RAO, Principal Assistant Sessions Judge, Tirupati|
TABLE OF CONTENTS:-
- Rashness and criminal negligence
- Negligence – Its manifestations
- ‘Negligence’ in civil law
- Negligence and Contributory Negligence
- Negligence and Reckless
Introduction:- The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law, Jacob Mathew v. State of Punjab, (2005) 6 SCC 1: 2005 SCC (Cri) 1369. In a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to the consequences. In the case of “negligence” the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something 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 person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection. Negligence signifies the breach of a duty to do something which a reasonably prudent man would under the circumstances have done or doing something which when judged from reasonably prudent standards should not have been done. The essence of negligence whether arising from an act of commission or omission lies in neglect of care towards a person to whom the defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the property or the person of the victim, Sushil Ansal v. State, (2014) 6 SCC 173. It implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted, Sushil Ansal v. State, (2014) 6 SCC 173: (2014) 3 SCC (Civ) 343: (2014) 2 SCC (Cri) 717: 2014 SCC OnLine SC 206, Para 58.
Section 304-A of Indian Penal Code,1860:-
A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution, Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72: 2000 SCC (Cri) 1281.
Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence means breach of duty imposed by law. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. Criminal negligence: Failure to exercise reasonable and proper care. Extent of reasonableness would depend on circumstances of each case, Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474: (2007) 2 SCC (Cri) 84.
Rashness and criminal negligence :— Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted, S.N. Hussain v. State of A.P., (1972) 3 SCC 18, 20: 1972 SCC (Cri) 254.
Negligence – Its manifestations:-
it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se. Negligence per se is defined in Black’s Law Dictionary relied upon by Supreme Court viz.: “Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”, Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332, 348 (Para 42). Negligence in performance of duty is only a step to determine if action of Government resulting in loss or injury to common man should not go uncompensated, Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him, Consumer Unity & Trust Society v. Bank of Baroda, (1995) 2 SCC 150.
Negligence in common parlance means and implies “failure to exercise due care, expected of a reasonable prudent person”. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do. Though sometimes the word “inadvertence” stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, is much more serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions — whereas inadvertence is a milder form of negligence, “negligence” by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow, M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151: 2001 SCC (Cri) 1426. Negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent man would not do. Negligence would include both acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of the damage to be compensated by the defendant should be attributed to his wilful conduct and how much to his wilful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plaintiff or the class of persons to which the plaintiff belongs are important components in tort of negligence. Negligence would, therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence, Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552.
‘Negligence’ in civil law:- A suit for damages arises out of a tortious action. For the purpose of such an action, although, there is no statutory definition of negligence, ordinarily, it would mean omission of duty caused either by omission to do something which a reasonable man guided upon those considerations, ordinarily by reason of conduct of human affairs would do or be obligated to or by doing something which a reasonable or prudent man would not do, Machindranath Kernath Kasar v. D.S. Mylarappa, (2008) 13 SCC 198: (2009) 3 SCC (Cri) 519. Negligence is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Negligence means either subjectively a careless state of mind or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account. Negligence is strictly nonfeasance and not malfeasance. It is omission to do what the law requires or failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to dictates of ordinary prudence, Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221: (2010) 2 SCC (Cri) 299.
Acting carelessly. There are generally considered to be three degrees of negligence:
(1) ordinary, which is the want of ordinary diligence;
(2) slight, the want of slight diligence; and
(3) gross, the want of great diligence. But ‘gross negligence’ has been defined to be ‘only ordinary negligence with a vituperative epithet’. The term negligence in civil law is used for the purpose of fastening defendant with liability of the amount of damages.
To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law, Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330: (2009) 3 SCC (Cri) 399. Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do. The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages, Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
“Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence, Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284: (2012) 3 SCC (Cri) 1107: (2012) 4 SCC (Civ) 660.
Negligence and Contributory Negligence:— Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning, Municipal Corpn. of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731.
The question of contributory negligence arises when there has been some act or omission on the claimant’s part, which has materially contributed to the damage caused and is of such a nature that it may properly be described as “negligence”. Negligence ordinarily means breach of a legal duty to care, but when used in the expression “contributory negligence” it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”,’ Raj Rani v. Oriental Insurance Co. Ltd., (2009) 13 SCC 654: (2010) 1 SCC (Cri) 1171.
Negligence and Reckless :— Negligence is conduct which falls below the standard established for the protection of others against unreasonable risk of harm, this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In order to objectify the law’s abstractions like “care”, “reasonableness” or “foreseeability” the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform. “Reckless” means “careless”, regardless or heedless of the possible harmful consequences of one’s acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it, Naresh Giri v. State of M.P., (2008) 1 SCC 791: (2008) 1 SCC (Cri) 324.