Allahabad High Court
U.P.S.R.T.C. vs Smt. Bhagwati And Others on 24 January, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- FIRST APPEAL FROM ORDER No. - 1001 of 1993 Appellant :- U.P.S.R.T.C. Respondent :- Smt. Bhagwati And Others Counsel for Appellant :- ,Sunil Kumar Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This appeal, at the behest of U.P.S.R.T.C. challenges the judgment and award dated 28.5.1993 passed by IXth Additional District Judge/ Motor Accident Claims Tribunal, Kanpur Nagar in Claim Petition No. 55 of 1990 whereby the learned Tribunal has awarded Rs. 1,65,000/- as compensation with interest at the rate of 12% per annum with a direction upon the appellant herein to pay the above.
2. Heard Sri Sunil Kumar, learned counsel for the appellant. For a period of from 1993 till today, steps have not been taken to see that notices be served to the respondents.
3. Be that as it may, as 20 years have elapsed, this Court deems it fit to decide this appeal where the Court had granted stay vide order dated 30.9.1993 which reads as follows :
"Issue notice.
Till further orders, operation of impugned award dated 28.5.1993 passed by Motor Accident Claims Tribunal, Kanpur Nagar, will remain stayed, subject to appellants' depositing Rs. 1,65,000/- minus the amount, which has already been deposited by the appellants in this Court.
Half of the amount may be withdrawn by the claimants without furnishing security and the balance may be withdrawn subject to the furnishing adequate security to the satisfaction of the Tribunal."
4. Brief facts as culled out from the record are that deceased-Nitin Kumar who was aged about 30 years and was working as a Clerk in U.P. Bidi Agency, met with an accident on 30.10.1989 at about 10.30 a.m. He was hit by Bus No. U.H.J. 8106 owned by U.P.S.R.T.C. while he was going on his scooter No. UMF-3643. He was with another employee namely Magal Bhai Patel who was pillion rider on the said scooter. The bus was being driven rashly and negligently. The deceased died out of said vehicular accident. The claimants are the legal heirs of the deceased. The claim petition filed by the claimants were contested by the defendant. The U.P.S.R.T.C. had filed its reply contending that its bus was not involved in the accident. The Tribunal had framed five issues and decided the same in favour of the claimants and against the appellant-herein.
5. The grounds urged are that the vehicle owned by U.P.S.R.T.C. was not involved in the accident and in the alternative, even if it was involved, it was the scooterist who was negligent and, therefore, no liability can be fastened on the U.P.S.R.T.C. In the other alternative argument, it is submitted that it is a case of contributory negligence and, therefore, holding that the driver of the bus was negligent is against the record.
6. It is further submitted by learned counsel for the appellant that the parents of the deceased do not come within the definition of family and, therefore, the claim was not maintainable. It is further submitted that the deceased was 30 years of age and was newly married and, therefore, multiplier of 15 have been illegally granted and it should have been 7 or 8. There should have been lump sum deduction to the tune of 1/3rd and not 1/6th, therefore, on that count also the impugned award is bad. The award of non pecuniary damages is also bad.
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 required to be addressed and decided by the first appellate court.
8. 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.
9. 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.
10. 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.
11. 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
12. The Tribunal while deciding the issue of negligence has held as under :
"I have also perused the panchayatnama and the map prepared by the I.O. and have gone through the files summoned. It has come in the evidence that although the driver applied breaks but could not succeed in averting the accident because the bus was running at a very fast speed. Since, there was a turn at a place of incident, it was the duty of the driver to take more care and remains slow. As indicated above, there were no horns and thus, considering all the facts and circumstances, I am of the opinion that the petitioners have successfully proved that the accident in question took place because of rash and negligent driving of bus No. UHJ 8106 and the driver (deceased) of Scooter of UMF 3634 was not guilty of any contributory negligence."
13. Looking to the factual averments, the principle for deciding negligence has been properly evaluated. The evidence adduced by the appellant did not show that the driver of the bus was driving the vehicle cautiously. The Tribunal while deciding the issue of negligence has held that as deceased was on his scooter and the bus driver was driving the bigger vehicle, the bus driver should have been more vigilant. The evidence of witnesses have also supported the case of claimants. While going through the judgment impugned, it is clear that the scooterist was riding the scooter on its correct side and the driver of the bus being the driver of bigger vehicle should have taken proper care which he had not done. Hence, the finding of the Tribunal as far as negligence is concerned cannot be interfered with.
14. This takes this Court to the other issues. As far as legal heirs are concerned, this issue is no longer res integra in view of the decision in Smt. Manjuri Bera Vs. Oriental Insurance Company, Limited, AIR 2007 SC 1474. The said decision has been relied upon by this Court in FIRST APPEAL FROM ORDER No. - 199 of 2017, National Insurance Company Limited, Lucknow Vs. Lavkush and another decided on 21.3.2017.
15. The Claim Petition was filed in the year 1990. The accident took place on 30.10.1989 namely after the new Act, of 1989 came into force, hence, the said submission that the claimants are not entitled for compensation, cannot be accepted as they are legal representatives of the deceased.
16. As far as compensation part is concerned, the Tribunal has considered the case of the deceased and has granted compensation of Rs.1,65,000/- with interest at the rate of 12%. The Tribunal while awarding the above compensation has considered the income of the deceased to be Rs. 10,800/- per month, applied multiplier of 15, deduction 1/6th for life uncertainties and granted Rs.30,000/- under non pecuniary heads. The Tribunal accepted that the deceased was 30 years of age and left behind him his young widow, parents and unmarried sister who were dependent on him. In the year of accident i.e. 1989, the multiplier would be 17. Rather the Tribunal has not added any amount towards future loss of income. In all, it can be said that the compensation awarded by the Tribunal is on the lower side. However, grant of 12% interest would be sufficient as it is submitted that only sum of Rs. 1,65,000/- without interest has been deposited. The U.P.S.R.T.C. to deposit the amount within 12 weeks from today. Interim relief stands vacated forthwith.
17. In view of the above, this appeal stands dismissed under Order 41 Rule 11 of the Code of Civil Procedure, 1908 as though notices were ordered, steps were not taken for more than 30 years.
18. This Court is thankful to Sri Sunil Kumar, learned counsel for the appellant for getting this old matter disposed of.
Order Date :- 24.1.2023 DKS