Allahabad High Court
Regional Manager, U.P. State Road ... vs Smt.Nisha Dubey And 2 Others on 9 December, 2016
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on : 21.9.2016 Delivered On :9.12.2016 Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 3159 of 2013 Appellant :- Regional Manager, U.P. State Road Transport Corporation Respondent :- Smt.Nisha Dubey and 2 Others Counsel for Appellant :-Anuj Srivastava Counsel for Respondent :- V. Malik, J.P. Tripathi Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
(Delivered by Hon'ble Dr. Kaushal Jayendra Thaker,J.)
1. Heard Sri Anuj Srivastava, learned counsel for appellant and Sri V. Malik assisted by Sri J.P. Tripathi, learned counsel for claimants-respondents on first appeal from order as well as cross appeal filed by claimants. Despite specific orders, office has not corrected the names of respective counsels.
2. This First Appeal From Order No. 3159 of 2013 has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by Regional Manager, U.P. State Road Transport Corporation, being aggrieved by order dated 14.8.2013 passed by Motor Accident Claims Tribunal, Jhansi in Motor Accident Claims Case No. 92 of 2012( Smt. Nisha Dubey and others Vs. U.P. State Road Transport Corporation) whereas Cross Appeal No.344347 of 2015 has been preferred by heirs of deceased-claimants-respondents.
3. Parties are referred as appellant (Insurance Company) and respondent ( claimants). By consent of learned counsel for parties matters are finally decided.
4. On 24.12.2011 at 2.00 p.m. deceased Shiv Kumar was going on his motor-cycle bearing registration no. UP-39 U-3182 to the side at Village Hebatpur and as soon as he reached near Haansi on National Highway No. 76/339 at that time, driver of a roadways bus bearing registration no. UP93E 5510 coming from Panwadi side, drove his vehicle rashly and negligently without blowing horn, came from wrong side and hit vehicle driven by deceased, thus causing Shiv Kumar Dubey to fall off from motorcycle on the ground, resulting in his instantaneous death. This incident was witnessed by Raghuvir Singh S/o Telu Ram, and many other persons. Complaint with respect to accident was lodged at PS Kulpahad, District Mahoba vide Case Crime No. 1464/11 u/s 279, 304A and 427 of IPC against driver of roadways bus bearing registration no. UP-93 E-5510. At the time of accident, deceased was aged 46 years and was posted on the post of Junior Engineer with Public Works Department, Mahoba, drawing a salary of Rs. 25,142/-; per month and apart from this, he also had agricultural income to the tune of Rs.3,00,000/- per annum. Claimants had prayed for compensation to be awarded under different heads from opposite parties.
5. Opposite party, Regional Manager, UPSRTC, by way of filling written reply being paper no. 16B, has denied most of averments made in the petition and has in additional statements stated that the said petition has been filed by appellants on the basis of false, forged and fabricated facts. Appellants have not filed papers in regard to the accident, such as first information report, charge-sheet, post-mortem report etc. It is averred that claimants have not made the insuring company of the motor-cycle a party to the petition, hence, claim petition is not maintainable being bad for non-joinder of necessary parties. It is also contended that on 24.12.2011, the bus bearing registration no. UP93E 5510 of the Mahoba Depot of the Transport Corporation was being plied on Raath-Mahoba road and driven by the contractual driver Hargovind with Premchand Sharma being its contractual conductor. As soon as the bus had moved on from Panwadi to Mahoba and at around 14:15 hours when it reached near Haansi situated between Sugeera and Bharwaara, a motor-cyclist driving in a rash and negligent manner came over there and rammed into the bus. The information with respect to the accident in question was given on 24.12.2011 itself at Kotwali Kulpahad. It is averred that claimants are not entitled to any compensation and prayed that petition be dismissed.
6. Claimants examined two witnesses, PW-1 Smt. Neesha Dubey , widow of the deceased and PW-2 Gayanedra Kumar Tiwari, and produced documents vide Exhibit 7G, 8C and 26C (1) comprising of FIR, Panchanama, Post-mortem report and salary slip of deceased .Appellants filed documents vide Exhabit 29C(1) and examined driver Hargovind as DW-1 and conductor, Prem Chandra Shara as DW-2.
7. Learned counsel for appellant mainly contended that Tribunal has erred in not considering the fact that vehicle alleged to be involved was not involved in the accident. It is further contended that Tribunal has fallen in error in not considering contributory negligence of deceased. It is submitted that Tribunal has erred in discarding deposition of driver of bus who was an eye witness of accident. The submission is that as widow was getting family pension and was appointed on compassionate ground that amount should be deducted from total income of deceased. It is next contended that Tribunal has awarded quantum on higher side. Learned counsel relied on following decisions to substantiate submission of considering deceased to have contributed to accident New India Assurance Co. Ltd. Versus Dr. Sudhir Kumar Gupta and others, 2014(2) ACCD 1014 (All), Gujrat State Road Transport Corporation Vs. Vijayaben Hirjibhai Monpara and others, 2012(3) ACCD 1593 ( Guj) and Karan Singh and others Vs. Ashok Kumr and another, 2013(1) ACCD 58 ( All) .
8. Learned counsel for claimants / respondents submitted that death occurred due to sole negligence of driver of bus bearing Bus No. UP 93 E-5510, which was involved in accident belonging to Uttar Pradesh State Transport Corporation (hereinafter refereed to as "UPSRTC"). He relied on Dulcina Fernandes & Ors Vs. Joaquim Xavier Cruz & Another, AIR 2014 SC 58, Puttamma and others Vs. K.L. Narayana Reddy and another , AIR 2014 SC 706, Vimal Kanwar and others Vs. Kishore Dan and Others, 2013 (3) T.A.C. 6 (S.C.), 2013(3) T.A.C. 6(S.C.) to contend that quantum is on lower side and requires to be enhanced. Learned counsel for respondents has submitted that prospective promotional benefits are not awarded as per decisions cited herein above. It is contended that no compensation is awarded for damage caused to motorcycle. Income is considered on lower side, though deceased was a permanent employee by applying principles enunciated in Sarla Verma Vs. DTC ( supra) compensation being awarded in this case is bad. It is contended by learned counsel for respondents that vide Government Order of 2008 and 2014 career pay scales were amended by adding 3rd A.C.P. Deceased had long service left. It is submitted that Tribunal has not considered the income with increment which could not be less than Rs.50,000/- per month when he would reach the age of superannuation, on date of accident he had completed about 16 years in Government service It is next contended that Rs.1,00,000/- has to be granted under the head of loss of love and affection. It is submitted that as per judgment in Sarla Verma Vs. DTC ( supra) multiplier should be 13 and not 12 as awarded by Tribunal as deceased was 46 years of age at time of accident.
9. It would be relevant to discuss the principles for deciding negligence and for that the principles for considering negligence will also have to be looked into.
10. Term 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 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 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, negligence of drivers is required to be assessed.
11. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by opponents. It is duty of driver of offending vehicle to explain accident. It is well settled law that at intersection where two roads cross each other, it is 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.
12. 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 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 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 Truck was driving vehicle on 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 car over which deceased was riding, was approaching intersection.
13. 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 point of view of pedestrian, roads of this country have been rendered by 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.
14. In the light of 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 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).
15. By the above process, burden of proof may ordinarily be cast on 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 of driver of another vehicle.
16. In light of above,we will have to consider evidence in this case. FIR was lodged against driver of bus and he was arrayed as accused. Charge sheet was laid against driver of bus. Driver of bus namely, Hargovind has denied accident having taken place at all. In reply, appellant also denied factum of accident by relying on written statement but it is proved by evidence that conductor had conveyed about accident to appellant. F.I.R and charge sheet are filed which is evident from averments made in written statement filed by appellant and, therefore, finding of fact that vehicle was involved in accident cannot be found fault with.
17. Accident occurred in brought day light. Driver of bus who was driving a bigger vehicle ought to have been more cautious, it is proved by evidence of PW-2 that the driver of bus in rash and negligent manner without following traffic rules, without blowing horn dashed with vehicle driven by deceased. Tribunal has believed evidence of PW-2 who was an eye witness, as he was working in his farm and according to him bus driver drove his bus on wrong side and dashed on wrong side of motorcycle. Driver of bus, Hargovind has in his evidence stated that driver of the motorcycle drove his motorcycle in rash and negligent manner while talking on mobile phone though he tried to avoid accident due to negligent driving of deceased the accident occurred. We are not persuaded to take a different view then that taken by Tribunal as far as issue of negligence is concerned. It is finding of fact that driver of bus was driving his bus in a rash and negligent manner. Decision in Karan Singh (supra) will not apply to the facts of this case as there is a clear finding of fact that bus came on wrong side and dashed with the driver of scooter which caused his instantaneous death. In Karan Singh case there was a head on collusion in middle of road. Decision of Gujrat High Court in Gujarat State Road Transport Corporation Vs. Vijayben Hirjibhai Monpara and others, 2012 (3) ACCD 1593, will not help appellants as it was proved by Panchnama that accident took place due to negligence of deceased which in our case is not proved either before Tribunal or before us. Decision of this High Court in New India Assurance Company Ltd. Vs. Dr. Sudhir Kumar Gupta and others, 2014(2) ACCD 1014 wherein High Court has not help the car driver to be negligent as he has not contributed to accident and, therefore, this judgment will on the contrary help respondents. Charge sheet is filed against driver of bus. Oral testimony of conductor of bus also will not permit us to take a different view then that taken by Tribunal.
18. It is admitted position of fact that deceased was aged 46 years at the time of accident. He was having a permanent job. He was working as an employee with Public Works Department and his salary was Rs.25,142/- per month and certain deductions were made from his income. Considering the fact that he had two children and wife Tribunal deducted 1/3rd from his wages and calculated that amount of Rs.16,762/- would be admissible to Estate to which Tribunal added Rs.7,500/- per month as per judgment of Sarla Verma Vs. DTC ( supra) and calculated it as Rs.2,91,144/- per annum. Tribunal has deducted Rs.11,000/- as tax payable by deceased. In light of decision of Apex Court in Sunil Sharma & Others Vs. Bachitar Singh & Others, 2011 (3) T.A.C. 629 and Manasvi Jain Vs. Delhi Transport Corporation and others, 2014 ACJ 1416 Tribunal could not have deducted any amount from Rs.25,142/- once it deducted Rs.11,000/- as tax payable by deceased per year. The other amount cannot be deducted as per ratio laid down by Apex Court in Sunil Sharma & Others Vs. Bachitar Singh & Others (supra), wherein it has been held that deduction of House Rent, Allowance, Medical Allowance, Dearness Allowance, Dearness Pay, Employees Provident Fund, Government Insurance Scheme, General Provident Fund, C.C.A. is not permitted.
19. The admissible deduction is that of income tax from salary, therefore, amount of Rs.23,342/- allowed to family is bad but will have to Rs.25,142/- which is rounded off to Rs.24,000/- ( as Rs.1,000/- per month was income tax deductible as worked out by Tribunal) out of which 1/3rd will have to be deducted which comes to Rs.8,000/-. Amount of Rs.16,000/- per month is allowable to Estate. Multiplier as applied by Tribunal was 12 but as per Sarla Verma Vs. DTC ( supra), multiplier to be applied would be 13 and not 12, hence we hold that claimants would be entitled to Rs.16,000/- x 12 = Rs.1,92,000/- add 30% to income (Rs.16,000 + Rs.8,000/- = Rs. 24,000/-). Hence, family would be entitled to a sum of Rs.24,000/- x 12 = Rs.2,88,000/- (multiplier would be 13) which comes to Rs.37,44,000/-. As per decision of Apex Court amount under conventional head is enhanced to Rs.1,00,000/- ( One Lac ) as accident took place in the year 2012.
20. We hold that rate of interest would be 9%, looking to the repo rate and looking to the facts of this case, we are unable to accept the submission to award 12% interest in the facts of this case. The motorcycle which the deceased was driving was two years old, therefore, in absence of any evidence to the contrary led by claimants that claimants had obtained any compensation from the Insurance Company of the Motorcycle, we cannot award any amount under the head of damage to motorcycle and no such pleadings were there before Tribunal and the said submission is rejected.
21. Hence, the appeal filed by Insurance Company is dismissed. Cross appeal for enhancing compensation is partly allowed the claimants are entitled to a sum of Rs. Rs.37,44,000/- + Rs.1,00,000/- + Rs.15,000/- towards funeral expenses along with 9% interest . The additional amount be deposited within four weeks from the date of production of a certified copy of this order before the concerned Tribunal. Decree and award is modified.
Order Date :-9.12.2016 Mukesh Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 3159 of 2013 Appellant :- Regional Manager, U.P. State Road Transport Corporation Respondent :- Smt.Nisha Dubey and 2 Others Counsel for Appellant :-Anuj Srivastava Counsel for Respondent :- V. Malik, J.P. Tripathi Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Ref: Order on Cross Appeal
1. Partly allowed.
2. For details, see order of date passed in First Appeal From Order No.- 3159 of 2013 (Regional Manager, U.P. State Road Transport Corporation Vs. Smt.Nisha Dubey and 2 Others).
Order Date :-9.12.2016/Mukesh Court No. - 34 Civil Misc. Delay Condonation Application No. 344347 of 2015 IN Cross Appeal IN Case :- FIRST APPEAL FROM ORDER No. - 3159 of 2013 Appellant :- Regional Manager, U.P. State Road Transport Corporation Respondent :- Smt.Nisha Dubey and 2 Others Counsel for Appellant :-Anuj Srivastava Counsel for Respondent :- V. Malik, J.P. Tripathi Hon'ble Sudhir Agarwal,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This is an application seeking condonation of delay in filing Cross Appeal.
2. Heard.
3. Cause shown for delay in filing cross appeal is sufficient.
4. Condoned.
5. This application, accordingly, stands allowed.
Order Date :-9.12.2016 Mukesh