Allahabad High Court
United India Insurance Co Ltd vs Smt. Nirmala Devi And Others on 9 September, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- FIRST APPEAL FROM ORDER No. - 2401 of 2004 Appellant :- United India Insurance Co Ltd Respondent :- Smt. Nirmala Devi And Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- G.C. Singh,Ram Singh,S.C. Kushwaha Hon'ble Vivek Agarwal,J.
1. Sri S.K. Mehrotra, learned counsel for the appellant. Sri Ram Singh, learned counsel for the claimants.
2. Heard on appeal as well as cross objection.
3. This appeal has been filed by the Insurance Company being aggrieved by award dated 4.8.2004 passed by the learned Motor Accident Claims Tribunal, Court No. 17, Allahabad (hereinafter referred to as learned Claims Tribunal) in M.A.C.P.No. 878 of 2001 (Smt. Nirmala Devi and others Vs. Ramswaroop Yadav and another) alleging that the deceased Umesh Chandra Kanojia was travelling in a Jeep on 10.9.2001 at about 9:00 pm from Allahabad to his village alongwith other companions, when 2 km east of Nari Bari road, close to a rice mill, it met with an accident with Tractor No. UP-70 S/9333, as result of which two passengers travelling in the Jeep died and some others sustained injuries.
4. Counsel for the Insurance Company submits that learned Claims Tribunal has awarded compensation against the insurer of the tractor treating that the accident took place due to negligence of the driver of the tractor whereas compensation should have been apportioned between owner of both the vehicles.
5. It is submitted that it is a case of composite negligence and, therefore, joint tortfeasors are jointly and severally liable. Therefore, a right should have been reserved in favour of the appellant to recover 50% of claim compensation either from the owner of the Jeep in which deceased was travelling or from the insurer of the Jeep. It is also submitted that owner and driver of the jeep were necessary parties and since they have not been impleaded, liability of the driver and owner of the Jeep cannot be over ruled.
6. It is submitted that the tractor was being used for purpose other than agriculture at the time of the accident and, therefore, Insurance Company is not liable to pay compensation and worst to worst Tribunal should have reserved a right infavour of the Insurance Company to pay to the claimants and recover from the owner of the tractor.
7. No other grounds as have been mentioned in the memo of appeal has been pressed.
8. Learned counsel for the claimants Sri Ram Singh in his turn submits that this theory of joint tortfeasor is not made out in asmuch as, to establish that theory, Insurance Company is required to point out that the accident took place due to mistake of both the parties i.e. Jeep driver in which deceased was travellking and tractor which is termed as an offending vehicle.
9. Learned counsel for respondent also submits that there is no iota of evidence on record to show that the tractor at the time of accident was being used in violation of terms and conditions of the insurance policy for purposes other than agricultural purpose. It is submitted that merely saying that accident took place on the road is not sufficient to attribute that the tractor was being used for purposes other than agricultural purpose.
10. After hearing counsel for the parties and going through the record, it is apparent that following two issues have been raised by the Insurance Company namely (i) liability should have been fixed on the owner driver of the Jeep alongwith that of the tractor and (ii) that tractor was being used for purposes other than agriculture use and, therefore, Insurance Company is not liable to pay the claim and worst to worst a right should be reserved in favour of the Insurance Company to pay and recover the compensation from owner of the tractor.
11. In the English Common Law, it is laid down that "when two or more persons join together for common action, then such of the persons are jointly and severally liable for any tort committed in the course of such action". Therefore, three principles with regard to the liability of joint tortfeasor can be enunciated namely, (i) the first principle is that the liability of wrong doers is joint and several i.e. each is liable for whole damages. The injured may sue them jointly or separately, (ii) the second principle is that in case judgment is obtained against one joint wrong doer it releases of the other even though it was not satisfied and (iii) third principle is that no action of or contribution could be sustained by one wrong doer against another, although one who sought a contribution might have been compelled to pay full damages. The reason behind this rule is that in any claim contribution must be based on implied contract between the tortfeasors.
12. It is evident that liability of joint tortfeasors arise when either there is authorization between one person in favour of another to do work on his behalf then the principal authorizing the agent will be jointly liable. Another circumstance is that when there are two or more persons join together for common action then all the persons are jointly and severally liable for the tort committed in the course of action.
13. In the present case, there is no evidence stated on record to show that there was any negligence or contribution on the part of the driver of the Jeep contributing towards the accident. In fact, learned Claims Tribunal has specifically noted that the Jeep was moving away from Allahabad on the Nari Bari Road when driver of the tractor insured with the appellant had hit the Jeep on the right side of the Jeep from behind. Therefore, this finding of fact based on the documentary evidence, like spot map etc, and corroborated through oral evidence could not be disputed by the insurer or the insured. In view of such facts, no indulgence can be shown to hold that the accident took place due to mistake of both the parties i.e driver of the Jeep and that of the tractor. Thus the theory of joint liability being not made out as Insurance Company has failed to make out a case of any negligence or contribution of the Jeep resulting in the accident, this court is of the opinion that the case of joint liability is not made out. The law laid down by the Supreme Court in case of Khenyei Vs. New India Assurance Company Ltd & others; (2015) 9 SCC 273.
14. In the case of Khenyei there as a finding that a bus which had met with an accident with a trailor truck was found to be involved in the accident due to negligence of the driver of the trailor truck and bus in the ratio of 1:3.
15. In the present case when the appellant has failed to make out a case of composite negligence of the driver of the jeep by leading any independent evidence either documentary or oral, present case cannot be placed within one fold of composite negligence in absence of any such evidence. Thus having failed to prove the composite negligence of the driver of the jeep, a vehicle which was hit through behind, first argument raised by the counsel for the appellant has no force and it deserves to be rejected and is rejected.
16. As far as issue of involvement of the tractor and it being used for purposes than agriculture is concerned, there is no iota of evidence on record to show that merely movement of the tractor on road will amount to construing such movement as use of tractor for non-agricultural purpose.
17. This aspect has been discussed by this court in case of FAFO (Defective) No. 283 of 2020; Mohan Singh and another Vs. Rajendri and 4 others decided on 7.7.2020 and that being the settled law, appellant having failed to substantiate their argument that tractor was being used for purpose other than agriculture being not made out, this ground is also not sustainable.
18. The third argument which has been raised in regard to right of recovery to be given to the Insurance Company would have been sustainable only if this court would have found that tractor was being used in violation of the policy of insurance, but the fact is that when there is no such evidence to substantiate that tractor was being used for purpose other than agriculture then even such right cannot be extended in favour of the appellant. Thus this appeal being devoid of merit deserves to be dismissed and is dismissed.
19. In this case cross objection / cross appeal has been filed by the claimants.
20. Counsel for the appellant-Insurance Company submits that objections have been filed after almost 10 years of filing of the appeal, therefore, such cross objections are not maintainable.
21. Sri Ram Singh, learned counsel for claimants in his turn submits that a coordinate bench of this court vide order dated 7.10.2019, relying on the judgment of Supreme Court in case of Wadhyamal Vs. Prem Chand Jain and another (1981) 3 SCC 122 has condoned the delay. Therefore, it is no more open to the appellants to use objections on the maintainability of the cross objection on the ground of limitation.
22. Sri Ram Singh while pressing cross objection submits that the deceased Umesh Chandra Kanojia was admittedly engaged in business of his own. It is submitted that learned Claims Tribunal has construed the income of the deceased at Rs. 90/- per day for accident which took place on 10.9.2001. it is submitted that for an accident which took place in 2001, the Supreme Court in case of Chameli Devi and another Vs. Jiverail Mian and others decided on 4.9.2019 has construed the income of a carpenter at Rs. 200/- per day and treating it to be a six days week, Rs. 5000/- per month. It is submitted that even 40% future prospects has not been added nor a sum of Rs. 70000/- has been added towards other non-conventional heads in the light of law laid down in National Insurance Company Limited Vs. Pranay Sethi and others as reported in (2017) 16 Supreme Court Cases 680.
23. It is submitted that the deceased was 42 years of age, therefore, the income should be construed at Rs. 5000/- per month. It is admitted that deceased is survived by 5 dependents and, therefore, in place of 1/3rd deduction 1/4th deduction should have been made on personal expenses. It is also submitted that learned Claims Tribunal has awarded interest at the rate of 8% from the date of filing of the claim petition in case insurer fails to discharge its burden within 30 days of passing of the award. It is submitted that interest is to be paid from the date of filing of the claim petition irrespective of the fact whether compensation is deposited within 30 days or not.
24. As far as first argument of counsel for the claimant treating income of the deceased at Rs. 5000/- per month is concerned, in case before the Supreme Court, the deceased was a carpenter, a skilled labourer, whereas in the present case there is no such evidence and therefore when there is no challenge to the quantum of income by the appellant i.e. Insurance Company, this Court would not like to tamper with the quantum of income but looking to the facts that case is still pending and law laid down in case of Pranay Sethi will be applicable to the pending cases therefore, as the deceased was 42 years, self employed, there will be addition of 25% to the expected income of the deceased towards future prospects.
25. As far as issue of deduction is concerned, law laid down in case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another as reported in (2009) 6 SCC 121, it has been held that if the deceased was married, deduction towards personal expenses of the deceased should be 1/3rd where the number of dependency of family members is 2 to 3, 1/4th ; where the number of dependent family member is 4 to 6 and 1/5th and where the number of dependent of family members exceeds 6, similarly for a person in the age of group of 41 to 45, multiplier of 14 is applicable. Accordingly I proceed to make calculations for compensation which will be payable to the claimants, who have filed this cross objection / cross appeal.
26. Income of the deceased has been taken at Rs. 2700/= per month or 32400/- per annum. When 1/4th is deducted towards the amount spend by the deceased on self as he is admittedly survived by 4 legal heirs, then the total annual dependency of the family comes to Rs. 24300/-. Claimants are entitled to add 25% amount towards future prospects taking annual dependency to Rs. 30375/- per annum. When multiplier of 14 is applied then total quantum of pecuniary compensation will come to Rs. 4,25,250/-. When a sum of Rs. 70000/- towards conventional head are added, then total compensation comes out to Rs. 4.95,250/- against Rs. 3,31,000/- awarded by the learned Claims Tribunal. Therefore, there will be an enhancement of Rs. 1,64,250/- to which claimants will be entitled in addition to what has been awarded by the learned Claims Tribunal.
27. Admittedly, though delay has been condoned but cross objection / cross appeal was filed on 10.10.2014, therefore, the claimants will not be entitled to any interest on the enhanced amount for a period of 10-years i.e. up to 10/.10.2014. After 10.10.2014 the enhanced amount will carry interest at the rate of 6%.
28. As far as rate of interest is concerned, it is true that it has to relate back to the date of the filing of the claim and therefore this argument of the claimants is accepted. This argument finds support from the judgment of the Supreme Court of India in case of Tahazhathe Purayil Sarabi and Ors Vs. Union of India (UOI) and Ors as reported in (2009) ACJ 2444 SC wherein it has been held that normally interest would be payable from the date of the institution of the suit or proceeding.
29. Accordingly award is further modified to the extent that interest will be payable from the date of filing of the claim petition on the original amount awarded by the learned Claims Tibunal and w.e.f. 11.10.2014 on the enhanced amount.
30. In terms of above the appeal is disposed of.
Order Date :- 9.9.2020 S.K.S.