Allahabad High Court
Dharam Veer And Others vs Kamal Singh And Others on 26 November, 2020
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. 1194 0f 2012 Appellant :- Dharam Veer and Others Respondent :- Kamal Singh and Otherrs Counsel for Appellant :- Mohan Srivastav Counsel for Respondent :- Rahul Sahai, K.K. D Hon'ble Dr. Kaushal Jayendra Thaker,J.
Heard Sri Mohan Srivastav, learned counsel for the appellant and Sri Rahul Sahai assisted by Shri Parihar, learned counsel for the respondent- Insurance company Ltd. The owner and the driver have absented themselves though served.
This appeal, at the behest of the claimants has been preferred against the award and order dated 21.12.2011 passed by Motor Accident Claims Tribunal, Bulandshahr in M.A.C.P. No.274 of 2009 decided by Sri Vijay Kumar Agarwal, HJS. I normally do not subscribe to theory of the writing name of presiding officer but the facts in which and the manner in which the tribunal deal with the issues before it has prompted me to write his name.
The factual scenario relates to an accident having taken place on 26th of February 2009 at about 9.00 pm when the deceased along with her husband and other person namely Harendra Singh and others were travelling from village where they stayed to village Hissail in Maruti Van No.DL 1CC/2521 driven by her husband namely claimant No.1. When this maruti van reached G.T. Road near village Ranauli, a tanker coming from the opposite direction which was driven very negligently and carelessly in gig gag manner suddenly turned to its right side of the road and rammed into the maruti van caused the accident in which wife of Harendra Singh, wife of claimant No.1 and one another person namely child sustained multiple injuries. Wife of Harendra Singh died in the Government Hospital at Khurja on the very same day. The wife of the present claimant No.1 suffered the pain for almost about three months and was hospitalised. She died out of these injuries only and there is no evidence on record.
F.I.R. of the incident was lodged on 26.2.2009 at 11.15 at the police station Arania as Case Crime No. 48 of 2009 was registered against the driver of the tanker. The charge-sheet was laid against the driver of the tanker. The deceased was a household lady and along with it was engaged with animal husbandry and was earning Rs.3000/- per month. The opponent No.1 and 2 filed joint written statements denying the version of the claimants and brought on record that the vehicle was insured with Reliance General Insurance Co. which was valid from 16.12.2008 to 15.12.2009. Reliance General Insurance Co. denied the version of the claim petition. The Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant No.1 who was driving the vehicle was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants. No other facts are necessary as the accident has been admitted, the death occurring out of the injuries is admitted, the appellant being legal representative is not accepted.
In this background, the matter requires to be considered. The appellants herein examined claimant No.1 and P.W. 2 so as to bring home their claim. The driver and the owner did not appear before the tribunal in any of the matters. Unfortunately, this matter was subsequently conducted.
The appellants are the legal representatives rather heirs of the deceased. The appellants have felt aggrieved by the finding of tribunal on the issue of negligence and compensation as far as decision of the tribunal on other issues is concerned they have attained finality.
The accident having taken place and the involvement of car in which claimants were travelling and truck owned by respondent no 2 and insured by respondent no 3 herein is not in dispute. It is necessary to mention a fact here that MACP Case no.166 of 2010 concerning this very appellant who had claimed the compensation for death of his son the insurance company settled the dispute in Lok Adalat on 23.10.2011. One more aspect requires to be mentioned here that out of the said accident one other claim petition was preferred being MACP No.104 of 2009 preferred by Harinder Singh and others v. Kamal Singh and others under Section 166 of the Motor Vehicles Act1988. The matter was tried before another tribunal namely Anupam Goyal who decided the lis on 25.2.2011 holding the driver of the truck solely negligent and holding all the three respondents herein responsible to compensate the claimants. . A mention requires to be made here that this award was placed on the records of the tribunal whose award is impugned in this appeal by the claimants which finds a mention even in the award despite that without discussing the findings recorded by the coordinate tribunal and why the tribunal did not want to follow the same and decide the issue of negligence afresh the tribunal passed the impugned award The issue of negligence was decided in favour of the appellants herein in the earlier claim petition which arose out of the same accident and the Insurance Company has not challenged the liability imposed on them by the Tribunal nor they have challenged the decision holding the driver of the truck solely negligent in the earlier claim petition and they have as narrated hereinabove settled one another claim concerning the appellant no.1 herein.
The appellants are the legal representatives rather heirs of the deceased. The appellants have felt aggrieved as the tribunal where the claim for accidental death of wife of appellant number one and mother of other appellants was filed decided the issue of negligence once again without following the decision of the coordinate tribunal, The tribunal decided the lis without appreciating that the appellant number one had not come before it to claim damages for injuries incurred by him in the accident. In the alternative it is submitted that even if the issue of negligence was decided again the tribunal has lost sight of the fact that the driver of the truck did not step in the witness box nor did the owner examine any witness to hold the driver of the car to be partly negligent when admittedly the driver of the truck was charge-sheeted.
It is a fact brought on record that and proved by oral testimony that the truck rammed into the car causing 3 casualties of persons travelling in the maruti van and caused injuries to other inmates of the car . The fact that the claimant number one was the driver of the car could not be the ground for halving the compensation as he and other claimants had claimed as legal representative of the deceased and qua the legal heirs it was a case of composite negligence reliance is placed on the decision of Apex Court in Khenyei v. New India Assurance Co. Ltd. & others (infra) and Civil Appeal No.4244 of 2015 decided on 07.5.2015 and decision of this High Court titled UPSRTC Vs Sri Ram Lakhan Singh and 2 others, decided in FAFO No.881 of 2015 dated 8.4.2015 D to bring home his submission that that the tribunal could not have re-evaluated the facts and was bound by principles of res judicata propounded by the High Court and the Apex Court and even if the tribunal wanted to decide the issue of negligence afresh it should have given its reasons for taking a different view which has not been done which makes the judgment vulnerable and requires to be set aside as far as it decide against the appellant no 1 on the issue of negligence. It is further submitted that the compensation awarded is also not in consonance with principles enunciated with this high court and the Apex Court. It is further contended that the rate of interest granted by the tribunal is also not in consonance with the principles laid down by this Court and the Apex Court.
Per Contra Shri Rahul Sahai assisted by Shri Parihar ld advocate for the insurance company has submitted that the tribunal has not committed any error in deciding the issue of negligence as the driver of the car was before it, he has relied on two decisions of the Gujarat high court titled in G.S.R.T.C. Vs. Rajeshbhai Shankarlal Patel in First Appeal no. 3068 of 2013 and allied matters decided on 5.2.2014 (Coram Justice Mr. Shah and R.P. Dholaria) and in case of United India Insurance Company Limited v. Kiritikumar Tulsibhai Patel and 2 others, FA No.1450 of 2016, dated 1.9.2016 (Coram justice M R Shah and Jst AS Supehia) and has contended that as the accident occurred in the middle of road the tribunal was justified in not following the decision rendered by coordinate tribunal as before the earlier tribunal it was case of composite negligence whereas in this case the driver was before it .The insurance company was justified in raising this issue before the tribunal. It is further submitted that the compensation has be halved as driver of the car was the owner of the car and even if it was case of composite negligence the tribunal has taken a absolute practical approach as the insurance company would have to recover from the driver and owner of car namely the claimant number one. It is further pleaded that there was contributory negligence of the driver of car namely appellant no 1and the amount does not require to be enhanced.
Heard the learned Advocates for the parties.
Recently, the Apex Court in Sudarsan Puhan Vs.Jayanta Ku. Mohanty and another etc., AIR 2018 SC4662, and in the case of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, has held that appeal is continuation of the earlier proceedings, and High Court is under legal obligation to decide all the issues of lis and decide it by giving reasons.
In view of the rival contentions raised this court is called upon to decide (a) whether the issue of negligence was rightly decided by the tribunal again on the same set of facts or was it bound by principles of res judicata, (b) whether the court in this appeal will also have to decide whether claimant no1 was negligent in driving the car or otherwise , (c) whether it is a case of composite negligence qua claimant no I/ appellant no 1 though he was the driver and the deduction from his entitlement is just and proper or otherwise, (d) The question is whether claimant no1 is legal representative and hence entitle to sue if yes whether the deduction by tribunal was justified. The claimants have even challenged adequacy of the compensation awarded and interest awarded thereon.
Before I proceed to decide this appeal from the facts and law as is all the questions will have to be answered in favour of the appellants herein for the reasons mentioned herein below at the outset it is noticed that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law as would be demonstrated hereinafter I would deal with each issue separately under separate heads namely negligence applicability of doctrine of res judicata the compensation to be awarded and entitlement of the claimants. The doctrine of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment also this doctrine would apply.
In the aforesaid background this Court feels that it would be necessary to show that the thinking of the tribunal is bad but perverse therefore though I am convinced that principles of res judicata apply. I have ventured to discuss the finding of negligence which is supported by learned counsel for insurance company so as to contend that drivers of both the vehicles were negligent.
ISSUE OF NEGLIGENCE EVEN IN ABSENCE OF APPLICABILITY OF DOCTRINE OF RES JUDICATA AND WHETHER THE SAME IS RIGHTLY DECIDED BY THE TRIBUNAL:
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. The term 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.
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."
The negligent act must contribute to the accident having taken place. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Antother Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143.
The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 wherein the Apex Court while considering the question of joint and several liability held as under:
"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."
Thus, it can be seen that 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.
The Apex Court in T.O. Anthony v. Karvarnan & Ors. 2008 (3) SCC 748 has held that in case of composite 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."
Emphasis added.
In this case it is seen that the driver and the owner of truck have though appeared before the tribunal have not examined themselves on oath. The claimant no. 1 examined himself and was at length cross examined by the advocate of the insurance company. The claimants examined Hari Om sharma as p,w.2. The respondents have not examined any witness on oath. The insurance company having not proved fact of negligence on the part of the driver of the car, the insurance company cannot be benefitted. Considering the submission of Sri Sahai that the tribunal has rightly decided the issue of negligence while examining the facts no doubt there is head on collision between the car and tanker No.UP 18 AD 9820 at 9 pm at night which caused the death of three people, the reply filed by the driver and the owner was one of denial and had contended that it was the fault of Dharamveeer, driver of the maruti car no. DL 01 CC2521, Tribunal first narrates its feeling that as there was no mention of Dharveer nor he had filed any claim petition for claiming compensation for his injury he may or may not have been travelling in the vehicle however, the tribunal believes his oral testimony he has in his ocular version stated that the driver of the truck came on the wrong side and dashed with the maruti car causing severe injuries to his son Narendra and his wife Raj Kumari, the FIR was lodged by brother in law of Harendra ,basis of the charge-sheet the tribunal notes that one another claim petition was already decided and the judgment was placed before him as exb 52 C2. The tribunal goes on the assumption on whether Dharamveer was traveling in the vehicle or not. The tribunal thereafter discusses that FirR is not a encyclopaedia of the incident accepts that chargesheet was laid against the driver of the tanker/truck . It was argued before the tribunal by insurance company that it was case of equal negligence of drivers of the both the vehicles. The tribunal goes on to take different view on two counts it relied on the site plan and the fact that there was decision in Bijoy Kumar Dugar v. Vidhyadhar Datta and others, 2006 (1) TAC 969 SC and Gurmeet Kaur and others v. Mohinder Singh and others, 2006 (3) TAC 958 SC and came to the conclusion that the driver of the vehicle namely car was equally negligent unfortunately the tribunal missed out the following aspects (i) the claimants/ appellants were the heirs of the deceased and they were not claiming for injuries caused to them this aspect has been missed by the tribunal the second aspect of holding the driver of the car negligent also is against the principles of deciding contributory negligence recently the principles for holding drivers negligent or rather holding a driver of one vehicle to have contributed was considered contributory negligence has to be proved and to be shown and demonstrated that the person who has to be held to have contributed to the accident having taken place was co-author of the accident in this case just because the tribunal has come to the conclusion that the driver of the car was negligence only on the basis of the site plan which was not even proved before it. In this case the tribunal was having the evidence of eye witnesses recently the Apex Court in the case of Archit Saini (supra) has laid down the guidelines as far as what would amount to contributory negligence.
No witnesses has been examined who have deposed in favour of the driver of the truck as can be seen the driver of the truck was driving a heavier vehicle and was under a duty to slow down it is not brought on record whether he had slowed down the vehicle it is not always that vehicles which have had head on collision both the drivers would be or rather co authors of the accident the tribunal had the choice of referring to the findings of fact based on oral testimony of one another witnesses who was in the car but there is no discussion whatsoever by the tribunal. In that view of the matter the judgment of Gujarat High Court cited by the counsel for respondent will be of no aid as in the case on hand no other evidence was brought on record for differing as was the fact in the facts proved before the tribunal the decision of Gujarat High Court.
A reference to the decision of this High Court in FAFO No.2443 of 2013, Jai Devi alias Jaleba v. Vidup Agrahari and others decided on 9.10.2016 would be relevant for our purpose as the findings of fact in the holding the driver of motorcycle to be negligent had been upturned by the high court .Facts of Jai Devi (supra) were identical and the impact in this case also was such that there were three people who subsequently succumbed to the injures in that view of the matter and in absence of any proof to the contrary, the tribunal has fallen in great error in relying on the decisions f the Apex Court without considering facts of the case ratio of a decision cannot be applied without factual discussion the facts in the case relied by the tribunal were different there accident was between vehicles of equal magnitude namely trucks the finding based on para 5 of the decision of Gurmeet Kaur (Supra) cannot be sustained as the ld tribunal has not applied the ratio properly the Apex court was concerned with two fast moving heavy vehicles hence the finding of tribunal cannot be sustained. The decision in Vijaykumar also could not have been followed . There is no finding returned by the tribunal as to the facts the cryptic finding that in view of decision of Apex court both are held negligent this has gone to the root of the matter in causing miscarriage of justice.
Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competant Tribunal in Claim Arising Out Of The Same Accident :
Issue of applicability of Res Judicata falls in the category of mixed question of law and facts, and applicability depends on evidence led by parties. The doctrine applies even if the decision by earlier court is right or wrong but if it has attainted finality between parties the doctrine shall apply and the issues decided.
A vex question baffles tribunals so far the issue of negligence is concerned, where the claimant has produced a copy of decision of a tribunal where issue of negligence is decided earlier by the Motor Accident Claim Tribunal for the same accident wherein, the issue of negligence has been decided on merits and the Tribunal comes to the conclusion that, "...considering documentary evidence and also considering cited cases in respect of composite negligence, I come to the conclusion that impugned accident took place because of composite negligence on the part of the drivers of both the offending vehicle trucks, because on scrutiny of the documentary evidence produced on record, there is not found any negligence on the part of the injured person, and hence, I answer issue no.1 in the affirmative". Then in such situation what should it do? In such situation the issue of negligence decided by the tribunal having coordinate jurisdiction will operate as res judicta or rather collateral estoppel where the parties in two Petitions are same except the claimant or the claimants as the case may be and it is proved that, the accident arose out of same accident and all the ingredients of section 11 of the Code Of Civil Procedure 1908 are fulfilled and except the claimant, or claimants the decision by the Tribunal in Petition decided earlier, on merits where all the parties are before it would operate as 'res-judicata' as far as issue which has been decided for example negligence in subsequent petition. In light of the decision of the High Court of Gujarat in " United India Insurance Co. Ltd. v/s. Laljibhia Hamirbhai & Ors.,(INFRA) the issue of negligence will operate as resjudicta. It is held in the said case that where the parties in two Petitions are same, except the claimant, the decision by the Tribunal in Petition decided earlier, would operate as 'res-judicata' as fas as issue of negligence is concerned in subsequent petition. It can be seen that High Court of Gujarat in United India Insurance Co. Ltd. v/s. Laljibhia Hamirbhai & Ors2007 (1) G.L.R. 633 has elaborately discussed the applicability as well as non applicability of the said doctrine to claims arising out of same accident but being tried by different tribunals. Recently, similar question arose before this High Court in the litigation titled New India Assurance Co. Ltd. Vs. Vikas Sethi 2020SCC OnLine ALL 921 has delved again on the principles applicable for applying the doctrine where a particular issue being already dealt with and decided on merits could be revisited by subsequent tribunal or whether principle of res judicata in a subsequent claim would apply on an issue of fact which in the former proceedings was decided by a forum of competent jurisdiction between same parties. The Court referred to Section 169 of Motor Vehicle Act, 1988 and Rules 209, 215, 220 of U.P. Motor Vehicle Rules, 1998 while deliberating over the matter and observed that that the MACT is obligated to frame the issues on which the right decision of the claim appears to depend. The Court relied on the judgment titled Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228 and held that the findings of MACT Lucknow were not justifiable as it should have considered the objections of the appellant and weighed the same in accordance with law. The principle of res judicata was applicable between the parties and the same should have been applied on the aspect of proportional liability of both the parties, accordant with the earlier judgment/award. The Court modified the award rendered by MACT Lucknow by fixing the liability to pay compensation equally to both the appellant and respondent. The consistent view is that if ingredients of section 11 of Code are satisfied the later tribunal should not venture to substitute its view without new and cogent evidence produced before it.
Reference to the decision of this high court in United India Insurance Co. Ltd. Vs. Anarwati, 2017 (2) ADJ 421 where the undersigned was signatory and where the counsel for the insurance company did not disclose that similar matter was decided by claims tribunal and issue of negligence was decided. The Appellate Court decided the issue of contributory negligence and later when it was found that the insurance company had not challenge the decision wherein the issue of negligence qua the driver of the tractor being held to be solely negligent was already decided and the contention before the appellate court that the vehicle was not involved could not have been permitted to be agitated, .(Similar is the case before us) In the case titled Ishwardas V/S State Of Madhya Pradesh & Ors. reported in 1979 SC 551, the Apex Court has held that in order to sustain the plea of res-judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.
A similar issue arose before this High court in case titled Oriental Insurance Co Ltd vs Bhag Singh and Others, First Appeal From Order No. - 164 of 2005, wherein the court held
"2. This appeal at the behest of Insurance Company is covered by a Division Bench judgment of this Court reiterated and followed in First Appeal From Order No.896 of 2005 (United India Insurance Company Limited Versus Smt.Anarwati & Others) decided on 20.10.2016 wherein it has been held that as far as issue of negligence is concerned, the judgment in one matter has to be followed by the subsequent Tribunal. Paragraph 19 of the Division BenchJudgment passed in First Appeal From Order No.896 of 2008 and Paragraph 14 of the judgment passed in First Appeal From Order No. 3096 of 2004 reads as follows :
"19. The driver of motorcycle cannot be said to have contributed to the accident having taken place. We have decided the matter of contributory negligence as learned Advocate for appellant did not disclose that in the case of Baladeen and others Vs. Tofan Singh andanother, M.A.C.P. No.501 of 2002, involving same vehicles being Tractor No.UP 75-A/1732,the driver of Tractor was held responsible for alleged accident. Had this been brought to our notice in the beginning and had it been conveyed whether said decision was challenged or not, we would not have re-decided said issue as decision on issue of negligence has already been decided by Tribunal and in the said decision, driver of Tractor has been held solely negligent. In light of decision of High Court of Gujarat in United India Insurance CompanyLtd. Vs. Hamirbhai and others, GLH 2007 (1) 633, we do not say anything about suppression of said material by learned Counsel while contending that vehicle was not involved in accident and it was a case of contributory negligence. We decided the same as it was not pointed out that Insurance company has challenged said decision or not. The decision in another matter arising out of same accident will act as res judicata and, therefore, this ground is no longer available to Insurance company as they had not challenged earlier judgment which found that driver of Tractor was responsible. Thus, we hold that driver of Tractor was negligent"
"14. It is rightly submitted by the counsel for insurance company that the finding of the earlier Bench was binding on the Tribunal as far as issue of negligence is considered. He has heavily relied on Division Bench judgment of this High Court in First Appeal From OrderNo.896 of 2005 (United India Insurance Company Limited Versus Smt. Anarwati & others)decided on 20.10.2016 and has submitted that the finding given to the contrary requires to be up turned. The said submission has to be accepted till it is upturned by Higher Court in appeal. In the earlier matter, the Tribunal held both the drivers negligent. In the subsequent matter the said finding has to operate as res judicata.
Thus, it is clear that the Tribunal committed an error in giving its fresh finding on negligence for the accident which took place in the year 1994 and did not follow the earlier judgment. The deceased driver Gurudas Singh was not considered to be negligent earlier also holding that the bigger vehicle contributed 66% is also bad. The earlier judgment as far as negligence is concerned would be binding on the subsequent Tribunal deciding between the same parties.
The Claim Petition No.148 of 1994 was decided much before this decision. Thus, the said judgment is upturned":
This court is of the opinion that where there are multiple claim petitions which are filed in different claims tribunals involving different vehicles, the principle of res judicata rather constructive res judicata should be made applicable if all the parties are the same, it is a case of composite negligence, the decision rendered by one Tribunal even if inviolability of res judicata, the decision of the tribunal would be an important piece of evidence which has to be taken not of along with other evidentiary value and material and, therefore, the apportionment would be as per the principles of composite negligence and cannot be judge centric and the decision rendered first would govern the later matters. This opinion of the undersigned gets support from the decision of the Karnataka High Court in the case of Managing Director, Karantaka State Road Transport Corporation Vs. P. Nandini.AIR 2019 (1) Kar. 235.
The reliance by the counsel for respondent-insurance company ltd on the recent decision of the High Court of Gujarat in G.S.R.T.C. Vs. Rajeshbhai Shankarlal Patel, (Refer : https://indiankanoon.org/doc/14396269/) where the division bench was considering whether a decision rendered by a coordinate tribunal at a different place would apply as res judicata as far as issue of negligence is concerned. The interesting part is that before the earlier Tribunal all the parties were not arrayed and it was a matter where the Tribunal had not even bifurcated what would be the contributory negligence. All that the Tribunal had done was had decided on the composite negligence. The learned subsequent tribunal in bunch of matters held that as far as the heirs of the deceased who was driving the other vehicle the matter would have to be re-agitated and thereby re-decided the issue of negligence and came to the conclusion that the factual matrix will not permit the Tribunal to apply the doctrine of res judicata. The reasoning given is that the heirs of the driver of the jeep had filed the claim petition which came up for subsequent hearings. The appreciation of evidence before the Tribunal and the High Court revealed that the earlier Tribunal had decided the matter as the same was filed by the heirs of persons travelling in the marshal jeep namely a non tort-feasor and qua those claimants it was a case of composite negligence. Thus, it can be seen that where it is case of composite negligence, a subsequent tribunal if finds that on factual matrix the matter is not covered by the principles down by the Courts can differ and may not apply the doctrine of res judicata.
In our case the matter was not against the father by the children as the case before the Gujarat High Court. In our case the claimants were being heirs of the deceased who had succumbed to the injures and qua them even if the tribunal was of the opinion that the driver of the car was negligent it was a case of composite negligence. The petition was filed only against the driver owner and the insurance company tanker and not against the father by the children as was in the case before the Gujarat High Court. Thus the tribunal was even bound by the principles of res judicata which the tribunal has not discussed why the tribunal would not follow the decision of the coordinate tribunal the judgment of Gujarat High Court in F,A. Referred by the insurance company will be of no help as on facts as they emerge in the case on hand. The facts in the decisions of Gujarat high court are different there the tribunal in case of GSRTC (supra) distinguished the decision of the earlier tribunal and the high Court had confirmed the same in our case unfortunately the learned tribunal does not even discuss as to why the well reasoned judgment of the earlier coordinate tribunal was not applicable and came to its own finding without there being any further or contradictory evidence to support the finding of fact. Thus on both counts the judgment requires to be upturned as far as issue of negligence is concerned, this court comes to conclusion that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent the tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision on both these counts the judgment requires modification.
QUESTION OF LEGAL REPRESENTATIVE The provisions of Chapter XI partakes within it laudable object to ensure that third party, who suffered because of accident will be compensated, even if financial condition of the driver or the owner, who caused the accident, was not sound. The provisions have to be construed in a manner so that the laudable object of Chapter XI and XII is fulfilled .The term ''legal representative' is discussed as this court feels that despite several decisions interpreting the term legal representative under the Motor Vehicles Act, 1939 and1988., the tribunal has misconstrued the term.
The term legal representative has not been defined in the Motor Vehicles Act 1939 or 1988 Act. The 2019 Amendment also does not define the term legal representative. Certain provisions of the Code of Civil Procedure are made applicable to the Motor Vehicles Act 1988 and Tribunals and higher Courts have interpreted the term legal representative so as to give purposive interpretation to the said definition. In view of this position we will have to take recourse to umbrella legislation namely Code of Civil Procedure 1908.Section 2 (11) of the Code of Civil Procedure defines the term ''legal representative' which reads as under:
"Section 2 (11) "legal representative" means any person who in law represents the estate of a deceased person, and includes any person who inter meddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party suing or sued;"
In the case of GSRTC Vs Ramanbhai Prabhatbhai, AIR 1987 SC 1690, the Supreme Court has held that for claiming compensation under either of the Acts the term legal representative cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are legal heir or legal representative of deceased. (Refer to: https://www.livelaw.in/amp/top-stories/major-sons-of-deceased-can-claim compensation-151579 and https://timesofindia.indiatimes.com/india/Dependency-no-criteria-for-relief-in-accidentcaseSC/articleshow/1839639.cms?from=mdr) LEGAL REPRESENTATIVE OF OWNER OF VEHICLE In Guru Govekar Vs.Respondent: Filomena F. Lobo and Ors., AIR 1988 SC 1332, the Apex court was faced with the issue of deciding whether under Motor Vehicles 1939,Sections 94, 95, 96 and 125 whether insurer would be liable to pay compensation to third party or to his or her legal representatives as case may be when liability arises when motor vehicle is in custody of repairer The Supreme Court held that insurer is liable to pay compensation found to be due to claimant as consequence of injuries suffered by respondent if any innocent third parties goes without compensation when they suffer injury on account of motor accidents the purpose of the Act will be defeated very object of introducing insurance policy under Act.
The claimants before this court and the tribunal are the legal representatives of the deceased as they are husband and children who fall in Class - I heirship. In a recent decision, it has been held that earning wife succumbed to the injuries claim petition was filed by minor daughter and father insurance company disputed its liability on the count that husband is earning and was not dependent of the deceased and minor was dependent on her father Whether such objection sustainable? No. For fatal accident of wife, earning husband is treated as Legal representative of the deceased wife refere to- 2019 ACJ 855 (Del). Thus the deduction of compensation of claimant no.1 by the tribunal cannot be sustained as he was claiming as an heir and not driver the driver or injured.
COMPESATION The tribunal again confused itself by finding that the death certificate dated 31.5.2009 showed the age of the deceased as 45 the injury certificate dated 26.2.2009 showed his age 45 the post mortem report showed age is 38 years whereas ration card dated 28.3.2006 showed her age as 34 he disbelieves the school living certificate as the claimant no.1 did not say in his oral testimony that the name of father of the Rajkumar Durga Singh, it appears that the learned tribunal has not applied basic principles of law of evidence that the School certificate is not proved otherwise corroborated other evidence should be accepted the oral testimony of PW1which proved that the deceased was 38 years at the time of accident on what basis the tribunal came to the conclusion that the deceased was 42 years of age is not understood. The tribunal takes out a mean of the age and comes to the conclusion that she would be 42years of age this is not permitted even if all contours of Evidence Act are to be followed. The tribunal could not have considered that he would consider the mean between what was narrated in medical certificate and the other evidence it has to be observed that this finding of the tribunal is also bad in eye of law and cannot be sustained. The age of deceased will have to be considered to be 38 years at the time of accident. The tribunal considered the income of the deceased at RS 3000per month deducted 1/3 amount granted multiplier of 14 and awarded a meagre sum of Rs.9500/- as non pecuniary damages and added Rs.86000/- for medical expenses for the period she was hospitalised. The tribunal deducted one third for personal expenses It is submitted by learned advocate that the tribunal again committed a mistake in deducting 50% from the total compensation which it could not have done the medical expenses could not have been added to compensation awarded under other heads taken as total compensation. It is further submitted that the tribunal committed error in not adding any amount under the head of future loss of income reliance is placed on the decision of the Apex Court in National Insurance Company Ltd Vs Pranay Sethi, 2017 judgment of the Apex Court dated 31.10.2017 or claiming enhancement and KHEYNI (supra) for contending that no amount could have been deducted-from compensation to heirs.
The deceased was 38 years of age in the year of accident namely 2009.The evidence on record shows that she was into animal husbandry but no proof was adduced to prove this fact or her earning and the tribunal held that the High Courts and Apex court has held that for a houselady the income would be Rs 3000 per month and as the tribunal had considered her age to be 42 applied multiplier of 14 in view of Even if we consider the ratio laid down by the Apex Court in recent judgment, titled Laxmidhar Nayak and Others Vs. Jugal Kishore Behera and others reported in AIR 2018 SC 204 income of a housewife in the year 2009 would be Rs.4000 per month, the amount would be Rs. 48,000/- per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self employed.
Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:
i. Annual Income Rs.48000/ ii. Percentage towards future prospects : 25% iii. Total income : Rs.60,000/-
iv. Income after deduction of 1/3 amount would be Rs.40,000/-
v. Multiplier applicable :15 vi. Loss of dependency: Rs.40,000 x 15 = Rs 6,00,000/Amount(six Lacs ) vii. Under non pecuniary heads: Rs1,00,000/-.
viii. Total Compensation : 6,00,000 + 1,00,000 = Rs.7,00,000/- plus Rs. 86,000/- as awarded by the Tribunal for medical expenses.
As far as issue of rate of interest is concerned, the interest should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.), wherein the Apex Court has held as under :
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
In view of the above, the appeal is partly allowed.
Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent.
The respondent-Insurance Company shall deposit the amount with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeksfrom today. The amount already deposited be deducted from the amount to be deposited.
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 is not passed because applicants/claimants are neither illiterate or restic villagers.
In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti 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.
Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein.
This Court feels that a direction requires to be given to all the Tribunals in the State that where there are multiple claims, the learned MACT Tribunal Main should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same so that the situation as it arose in this matter may not arise.
This judgment may be sent down to the concerned Tribunal so that in future he may be more vigilant while deciding matters under this beneficial piece of legislation.
The Tribunals in the State shall follow the direction of this Court as herein afore mentioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
This Court is thankful to learned advocates for arguing and getting matter disposed of.
Order Date: 26.11.2020 amarnath