Allahabad High Court
Smt. Manju Singh And Others vs Kunwar Pal Singh And Others on 15 February, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 26 Case :- FIRST APPEAL FROM ORDER No. - 254 of 2005 Appellant :- Smt. Manju Singh And Others Respondent :- Kunwar Pal Singh And Others Counsel for Appellant :- Ashok Kumar Pandey,B.B. Jauhari Counsel for Respondent :- M.P.S. Chauhan,Radhey Shyam Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This matter was heard on 11.2.2019 and was allowed. However, while going through the record it was not clear whether the deceased was a non tort feasor or was the driver of the jeep as the Tribunal had deducted 25% from the total awardable amount, therefore, matter was kept for today i.e. 15.2.2019 for further hearing.
2. Heard Sri Rishi Bhushan Jauhari, Advocate holding brief for Sri B.B.Jauhari, learned counsel for the appellant and Sri Radhey Shyam, learned counsel for the respondent. Sri M.P.S. Chauhan, learned counsel for the respondent has absented himself even today.
3. This appeal, at the behest of the claimants, has been preferred against the judgment and order dated 21.10.2004 passed by Additional District Judge/Motor Accident Claims Tribunal, Court No.6, Shahjahanpur (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 49 of 2004 awarding a sum of Rs.6,96,880/- with interest at rate of 6% as compensation in favour of the claimants. In fact the Tribunal had awarded a sum of Rs.9,15,840/- and has deducted 25% holding that the claimants would not be entitled to 25% of awarded amount from the total compensation. The reasoned assigned is that the driver of the jeep according to the Tribunal contributed to the tune of 25% as there was head on collision. However, the said finding is not recorded in the issue where negligence has been decided but is reflected in the issue where compensation is fixed. This is also a ground of challenge.
4. Detailed facts are not narrated as the matter can be disposed of as the issue regarding negligence and the justness of compensation granted by the Tribunal is under challenge and the request is that the issue of negligence be reevaluated and the compensation awarded be enhanced as per the prevailing judgments of the Apex Court for motor accident claims cases pertaining to death of a person namely Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050,.
5. As against this Sri Radhey Shyam, counsel for the respondent-Insurance Company has submitted that the matter does not require reconsideration as the driver of the jeep has been found to be negligent and he has not been made a party. The compensation awarded is just and proper. The rate of interest is also just and proper. On a query by this Court as to how the Tribunal could deduct the amount of 25% , it is submitted by Sri Radhey Shyam that 25% can be ordered to be recovered from the owner.
6. Learned counsel for the respondent-Insurance Company could not point out that this was a case of contributory negligence but it was pointed out to him that it was a case of composite negligence qua the deceased and, therefore, this Court can order recovery from it but as the issue of negligence is a ground raised in the memo of appeal and argued, this Court in view of the decisions of the Apex Court in Sudarsan Puhan Versus Jayanta Ku Mohanty and Another Etc. AIR 2018 SC 4662 and U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948, wherein it has been held that that all the issues raised will have to be decided and hence, a fresh question is formulated as till date there are no decision on the said point namely at the outset, whether the appellate court in a appeal preferred by the heirs of the claimant can decide on the issue of negligence, even if it is a case of composite negligence, if the finding of fact is not supported by reasons in the judgment of the Tribunal, this Court can and this issue arose because of the ground taken by the appellant in appeal and the driver of the jeep in which the deceased Army men was travelling has deposed on oath as P.W.2
7. The subject of negligence will have to be dealt with as according to this Court as far as the deceased is concerned, the Insurance Company will have to be given recovery rights from the owner and the Insurance Company of the other tort feasor though the other vehicle owner has been impleaded as party, even if it is considered that the driver of the jeep who has deposed as P.W.-2 has been considered to be 25% negligent. This finding will also have to be re-assessed as a ground in the appeal is taken that the driver of the jeep was not negligent and the finding is bad.
8. The term negligence, contributory negligence and composite negligence has been time and again discussed by various Courts.
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 which 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 concept/term contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows:
"7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:
"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 wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer 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 wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer 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 on 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 stand 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."
emphasis added
11. The appeal being continuation of the proceedings, the principles governing the contributory negligence will also have to be looked into. The record will have to be scanned again as the Tribunal has not given any absolute reasons for holding the driver of the jeep to have contributed to the accident having taken place.
12. 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
13. 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 which 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
14. Normally as per the principle laid herein-above negligence can be attributed to a person if because of his breach the accident has occurred. In this case if this Court peruses the judgment of the Tribunal while holding the driver negligent to the effect of 25%, no reasons have been assigned except that there was head on collision even if it was head on collision, the evidence of P.W.2 who was the driver of the jeep has categorically mentioned that the truck was being driven in reckless manner. The speed of the truck was such that though the driver of the jeep tried to save the accident, the truck came on the side of the jeep and dashed with the jeep whereby two persons died on the spot and some other officials were injured in the said accident. The owner and the driver of the truck have not stepped into the witness box. The charge-sheet was laid against the driver of the offending vehicle. All these cumulative facts will permit this Court to upturn the finding of negligence recorded by the Tribunal which is erroneous and cannot sustained as the impact was so grave that the jeep was flunged far away and two persons died on the spot.
Compensation:
15. The Tribunal has awarded a sum of Rs 9,15,840/-but directed payment of Rs.6,96,880/- as compensation with interest at the rate of 6%.
16 While going through the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, this Court feels that looking to the age of the deceased which was 35 at the time of death and he was having a permanent job and at the time of accident his salary was Rs.7156/- per month which has been proved by his widow, out of which the Tribunal deducted 1/3rd for personal expenses and granted the multiplier of 16. The Tribunal has held that the multiplier applicable would be 16 and the loss of dependency would work out as Rs.57,240 x 16 = 9,15,840/- plus Rs.5000/- each under the head of non pecuniary benefits like funeral charges and consortium.
17. This amount requires to be recalculated and 50% will have to be added as he was having permanent job and was below the age of 40, hence, as per the decision of Pranay Sethi (Supra)will make the additional amount at Rs.9,15,840/2 =4,57,920/- which is rounded up to Rs. 4,58,000/- and to which the amount of Rs.70,000/- as directed by the Apex Court in Pranay Sethi (Supra) under non pecuniary heads plus Rs. 1,00,000/- to the widow under filial consortium. Hence, the total amount now payable would be Rs.9,15,840 + 4,58,000 + 70,000 + 1,00,000 = 15,43,840/-. It has not been argued and I have not disturbed the monthly income, the dependency value nor the multiplier as decided by the Tribunal.
18. It is submitted by Sri Rishi Bhushan Jauhari that the deceased was not driving the vehicle rather he cannot be held to be negligent. Qua him the deduction of 25% is bad in eye of law as qua him it was a case of composite negligence and not contributory negligence and he has relied on the judgment of Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 and the decision of this Court in FIRST APPEAL FROM ORDER No. - 1948 of 2005 (Smt. Sarla Tripathi And Others.Vs. M/S Arnija Road Lines And Another) decided on 15.2.2019 and has requested this Court to restore the amount of 25% of the awarded amount and in the alternative has submitted that in fact the jeep driver who has deposed on oath was not at all negligent and, therefore, this Court is requested to reconsider the issue of negligence as it has not been properly decided by the Tribunal and no reasons are assigned by the Tribunal.
Interest:
19. As far as issue of interest is concerned, the Tribunal has awarded interest at the rate of 6% which according to the learned counsel for the claimants is on the lower side. The decisions on awarding rate of interest will have to be perused which are as follows:
20. A Division Bench of this Court in FIRST APPEAL FROM ORDER No.-1011 of 2012 (Ramesh Kumar Soni Vs. Shriram General Insurance Co.Ltd. Thr.Manager & Another) decided on 3.3.2017, while dealing with the issue of interest, has held as under:
"14. Tribunal has awarded interest at the rate of 6% per annum on the amount of compensation from the date of filing of claim petition. It is contended that interest at the rate of 6 % is on much lower side and it should be 9 %.
15. We find in recent authorities, Courts have held that appropriate rate of interest should be 9%.
16. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8 % per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
17. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9 % interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.
18. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9 % per annum which was challenged that it is on higher side. Court upheld said rate of interest.
19. In Shashikala and Others Vs Gangalakshmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9 % rate of interest from the date of claim petition till the date of realization.
20. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8 % . Accident took place on 27.11.2016. It was held that 8 % interest is on lower side and it should be 9 %.
21. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6 %. Court held that it is on lower side and it should be 9 %.
22. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9 % interest.
23. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15 % interest which was reduced to 12% by Gujrat High Court. Court held that it is on higher side and awarded 9 % interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
24. In view of above, the rate of interest in the present case, 6 % awarded by Tribunal also cannot be justified and in our view interest should be paid at 9 % per annum."
21. Hence, the rate of interest in this case also, would be 9% from the date of the claim petition till the deposit of the amount. However, the amount already deposited will be readjusted and recalculated by the Insurance Company.
22. Appeal is partly allowed. Judgment and decree passed by the Tribunal shall be modified to the extent that the Insurance Company will now have to pay a total sum or Rs.15,43,840/- with 9% rate of interest, however, if the awarded amount by the Tribunal namely Rs.6,96,880/- with 6% interest if deposited, it will be given set off. The amount be deposited within 12 weeks from today by the Insurance Company before the Tribunal.
Order Date :- 15.2.2019 DKS