Allahabad High Court
Uttar Pradesh Rajya Sadak Parivahan ... vs Smt Anamika Deo (Died) And 2 Others on 14 February, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1039 of 2021 Appellant :- Uttar Pradesh Rajya Sadak Parivahan Nigam Respondent :- Smt Anamika Deo (Died) And 2 Others Counsel for Appellant :- Dharmendra Dhar Dubey,Awadhesh Kumar Saxena Counsel for Respondent :- Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral : Hon'ble Dr. Kaushal Jayendra Thaker,J.)
1. Heard Sri Awadhesh Kumar Saxena, learned counsel for the appellant and perused the record. None is present for the respondents who are deemed to be served.
2. This appeal, at the behest of Uttar Pradesh Rajya Sadak Parivahan Nigam, challenges the judgment and award dated 16.01.2021 passed by Motor Accident Claims Tribunal, Bareilly (hereinafter referred to as 'Tribunal') in M.A.C. P. No. 776 of 2014.
3. Claimants are the legal heirs of the deceased-Brahmdev Gupta. He was driving his Car from Bareilly to Badaun and when he reached village-Kheda, Tehshil Aonla, the bus of U.P.S.R.T.C. bearing No. U.P. 25 AT/1037, which was being driven rashly and negligently by its driver, dashed with the car which was being driven by deceased-Brahmdev Gupta, though the deceased tried to save himself and bring the car to its left side namely on pathway. Before the deceased could be taken to the hospital, he breathed his last. He was 56 years of age, was working in Jila Yuva Samanwaya Nehru Yuva Kendra Sangthan, U.P. and Uttrakhand and was earning Rs.95,960/- per month. The legal heirs were dependent on him and, therefore, have claimed sum of Rs.1,80,00,000/- with interest.
4. The U.P.S.R.T.C. filed its reply which was one of denial. It has denied the fact that the bus was being driven against the Traffic Rules. The driver of bus has contended that it was the driver of the Maruti Car namely deceased who came on the wrong side and dashed with the bus. It is submitted that the First Information Report was filed against the driver of said bus but the facts narrated are far from truth. The driver of bus has also filed his reply of denial.
5. The claimants examined Shreey Dev and P.W.1, Sukhchain who was the eye witness as P.W.2. P.W.3, Dinesh Yadav and P.W.4, Dev Dhwani Gupta has also been examined on oath. The claimants filed documentary evidence so as to bring home the case that the accident caused the death of the deceased.
6. The appellant herein examined D.W.1, Jay Prakash and D.W.2, Sushil Kumar and D.W. 3, Rajesh Kumar. All of them have supported the case of U.P.S.R.T.C. The main grounds urged before this Court by U.P.S.R.T.C. through its counsel are that the accident occurred due to negligence of the deceased, the award is bad in the eye of law as the amount awarded is arbitrary and on the higher side. It is submitted by learned counsel for the appellant that the presence of the witnesses relied by claimants at place of incident is highly doubtful and the evidence of the driver of the bus has been wrongly disbelieved by the Tribunal.
7. The Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.
8. 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 the either side is negligent. 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.
9. The principle of contributory negligence has been discussed time and again. 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 deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.
10. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added
11. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
12. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care.
13. The factual scenario goes to show that the respondent examined D.W.1 to D.W.3. We have perused the oral testimony of the driver. The driver of the bus has categorically mentioned that the deceased was also driving the car in rash and negligent manner. The bus was being plied from Agra to Bareilly. The incident occurred at about 1.30 in the afternoon when the bus was at Village Kheda. It is also the case of the respondent that the Maruti car was being driven rashly and negligently and the Maruti car driver hit the bus on the side of the driver. The driver was all alone in the car. It was also mentioned by the driver of the bus that he had seen the care from about 200-300 meters. Looking to the facts that the bus which is a bigger vehicle had to be more cautious. The instantaneous death of the driver of the car goes to show that the vehicle driven by the respondent was being driven in rash and negligent manner but the driver of the car is also considered to be negligent. The driver of the Maruti Car died on the spot. In our case, looking to the judgments on which reliance was placed by the learned Trial Judge more particularly decision in Regional Manager U.P. State Road Transport Corporation v. Smt. Nisha Dubey and others, 2017 (2008) AICC 1056, the charge-sheet which was laid against the driver of the bus and the site plan, we hold the driver of the Maruti Car 25% negligent. The decision in Khenyei (Supra), will not apply to the facts of this case.
14. As far as compensation is concerned, there is no cross objection and none has appeared for the claimant-respondents though notice has been served at this juncture. We hold that that the computation of the amount is in consonance with the judgment of the Apex Court. We do not disturb the finding of the Tribunal. However, the finding that if the U.P.S.R.T.C. does not make payment within 30 days then only it will be liable for interest. Such an order could not have been passed. We retain the interest of 7% from the date of filing of the claim petition till the amount is deposited. If the amount has already been deposited, the same may be disbursed to the claimants. On recalculation, if the amount is on lower side, the same shall be refunded to U.P.S.R.T.C.
15. In view of the above, this appeal is partly allowed. The Tribunal to recalculate the amount and return the excess amount to the appellant. Record and proceedings be sent back to the Tribunal forthwith.
Order Date :- 14.2.2022 DKS