Allahabad High Court
Smt. Usha Tiwari vs Jagdamba Prasad Trivedi And Others on 31 March, 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. - 992 of 2001 Appellant :- Smt. Usha Tiwari Respondent :- Jagdamba Prasad Trivedi And Others Counsel for Appellant :- R.K.Porwal Counsel for Respondent :- A.C. Nigam Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral Judgment Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)
1. Heard Sri R.K. Porwal, learned counsel for the appellant, Sri Satyam Jaiswal, learned Advocate, appearing for Sri A.C. Nigam, learned counsel for the respondent-National Insurance Company and perused the record.
2. This appeal, at the behest of the appellant-claimant, challenges the judgment and order dated 30.3.2001 passed by the Motor Accident Claims Tribunal/11th Additional District Judge, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C. No.333 of 1992 rejecting the claim petition which was preferred by the appellant-claimant.
3. The facts as culled out from the record are that on 21.8.1992 at about 5.20 p.m., driver of a bus bearing No. UP 78 V1259 drove the bus rashly and negligently and when he reached the place near Vijay Nagar Crossroad, the bus ran over Anand Tiwari who died instantaneously. The deceased was 27 years of age at the time of accident. The deceased was conductor of vehicle bearing No. UP77/1912 owned by Jasveer Singh and was earning Rs.2,000/- per month and Rs.8,000/- was his income by selling milk. The deceased left behind him his parents, younger brother, his widow and three children. He was the sole bread earning person of his family. Respondent No.1 filed his reply which was one of denial and hold that the driver of the bus was not negligent. The Tribunal raised five issues but answer the same in the negative holding that the claimants did no prove that the driver of the bus was negligent.
4. At the outset, it is to be noted that the driver of the bus did not even step into the witness box. The Tribunal took a stand that it was not proved that the vehicle ran over the deceased. While relying on the decision of the Apex Court in State of Karnataka v. Satish, 2000 C.A.C. 408 SC, the Tribunal held that it was necessary for the claimants to prove the negligence of the driver. The Tribunal held that the witnesses did not narrate the correct story. The Tribunal has relied on the decision in United Insurance Co. Ltd. v. Anwari and others, 2000 (2) TAC 789 SC and has rejected the claim petition.
5. As far as issue of driving license is concerned, from the record which we have perused, it is clear that the driving license was filed which was the valid driving license but the Tribunal has held that the driving license was a xerox copy which cannot be accepted in evidence. While deciding the issue no.4, the Tribunal held that the matter is dismissed and, therefore, no amount can be paid.
6. Learned counsel for the appellant has submitted that the Tribunal has rejected the claim petition stating that the the claimant had failed to prove her case, and held that the accident occurred due to sole negligence of the deceased, this finding of the Tribunal is bad on the facts and law and requires to be upturned by this Court.
7. As against this, learned counsel for the respondent has submitted that the Tribunal has rightly dismissed the claim petition as there are contradictions in the statements of P.W.2 and P.W.3 and, therefore, they have been rightly not believed by the Tribunal. It is also submitted that the deceased was solely negligent for commission of accident and, therefore, the Tribunal has rightly rejected the claim petition.
8. Issues which are required to be adjudicated by us are (a) whether the Tribunal has rightly held the deceased to be solely negligent & whether the Tribunal can dismiss the claim petition on the basis that the scribe of F.I.R. was not examined on oath and that there are minor contradictions in testimony of P.W.2 & P.W.3; (b) if the dismissal is bad whether the matter be relegated to the Tribunal or compensation can be granted here.
9. 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.
10. 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.
11. 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.
12. 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
13. The F.I.R. categorically goes to show that the vehicle dashed with the deceased who was on his feet, causing instantaneous death. The scribe of F.I.R. was a police officer. We are placing reliance on the decisions in (a) Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9., (b) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; (c) Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171 and on the decision of Madras High Court. The decision in Madras High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others, passed in C.MA. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] and the decision referred in the said case namely Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC), would be applicable in such matters where Tribunal takes hyper technical stand in dismissing the claim petition which is filed under the beneficial piece of legislation. Despite the fact that judgment of Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9 was very much in vogue, the Tribunal has dismissed the claim petition holding that there are minor discrepancies in the statements of P.W.2 and P.W.3.
14. The Tribunal has recorded contradictory findings, at one stage, the Tribunal holds that the place where the accident occurred was crowded place with human beings and, therefore, driver of the bus could not have driven the vehicle rashly and negligently and at the same time it holds that the accident is not proved and that the negligence of the deceased who was on feet and standing on road was attributed and claim petition was dismissed.
15. If we go by the finding of facts and the evidence on record and even if we hold deceased to be standing in the middle of the road, the fact that the accident occurred and the fatal injuries which the deceased had sustained and which proved fatal as per the postmortem report, it can be safely said that the driver of the vehicle could have been more cautious if it was thickly populated place. Hence, we are unable to concur with the judgment of the Tribunal. We hold that the deceased was also contributory to the accident having taken place but to the tune of 10%.
16. Decisions in Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9., Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171 will not permit the Court to concur with the finding of facts of the Tribunal.
17. The next issue which arises is that as matter has remained pending for 21 years and the record and proceedings are before this Court, whether the matter be remanded to the Tribunal for deciding the quantum of compensation or the same be decided here as the Tribunal has decided all the issues also? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748 and of this Court in F.A.F.O. No. 1999 of 2007 (Oriental Insurance Company Limited vs. Smt. Ummida Begum and others) and in F.A.F.O. No. 1404 of 1999 (Smt. Ragini Devi and others Vs. United India Insurance Company Limited and another) decided on 17.4.2019 where in it has been held that if the record is with the appellate Court, it can decide compensation instead of relegating the parties to the Tribunal.
18. The deceased, according to learned counsel for the appellant, was serving as conductor in a private bus and it is stated was earning Rs.2,000/- per month. However, there is no record to prove the said fact. Therefore, we consider his income to be Rs.1250/- per month. To which, as the deceased was below 40 years, 40% be added towards future loss of income in view of the decision in National Insurance Co. Ltd. Vs. Pranay Sethi and others, 2017 LawSuit (SC) 1093. The deceased being in the age bracket of 26-30 years of age, the multiplier applicable would be 17 in view of the decision in Sarla Verma and others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC). The deduction towards personal expenses of the deceased would be 1/2 as the claim petition was filed only by the widow of the deceased. The submission of Sri Porwal that there are other dependents also and, therefore, deduction would be more than 1/2, cannot be countenanced. Further, as the accident occurred in the year 1992, Rs.40,000/- will be granted to the appellant-claimant under the head of non-pecuniary heads.
19. Hence, the total compensation payable to the appellant is computed herein below:
i. Monthly Income: Rs.1250/-
ii. Percentage towards future prospects : 40% namely Rs.500/-
iii. Total income : Rs.1250 +500 = Rs.1750/-
iv. Income after deduction of 1/2 towards personal expenses : Rs.875/-
v. Annual income : Rs.875 x 12 = Rs.10,500/-
vi. Multiplier applicable : 17 vii. Loss of dependency: Rs.10,500 x 17 = Rs.1,78,500/-
viii. Amount under non pecuniary heads : Rs40,000/-
ix. Total compensation : Rs.2,18,500/-
x. Total compensation payable to the claimants after apportionment of 10% negligence on the part of deceased : Rs.1,96,650/-
20. The above amount shall carry interest at the rate of 6% from the date of filing of the claim petition till the date of decision of the Tribunal as the appeal has remained pending for no fault of the Insurance Company. Though the Insurance Company appeared recently, for the remaining period, they would be liable to pay interest at the rate of 3%, reason being, the appellants' counsel also did not take care to see that the matter was heard expeditiously. It was only after the Court directed that all old matter be listed, the matter came to be listed and, therefore, the aforesaid direction is give.
21. In view of the above, the appeal is allowed. Judgment and order passed by the Tribunal is set aside. The Insurance Company shall deposit the amount within 12 weeks from today with interest as awarded herein above.
22. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment be passed by Tribunal..
23. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.
24. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
25. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 20 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R. Order Date :- 31.3.2022 DKS