Allahabad High Court
State Of U.P. Thru Collector Meerut vs Manoj Saxena And Others on 11 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 25.09.2019 Delivered on 11.12.2019 Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 2887 of 2008 Appellant :- State Of U.P. Thru Collector Meerut Respondent :- Manoj Saxena And Others Counsel for Appellant :- C.B. Yadav C.S.C. Counsel for Respondent :- Komal Mehrotra Hon'ble Sudhir Agarwal,J.
1. Heard learned Additional Chief Standing Counsel for appellant and Sri Komal Mehrotra, learned counsel for respondents.
2. This defendant's appeal under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988") has arisen from judgment and award dated 14.08.2006 passed by Sri Subodh Kumar, Motor Accident Claims Tribunal/Additional District Judge, Meerut (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.842/1999, Manoj Saxena Vs. Farmood and others, awarding compensation of Rs.2,49,000/- to claimant-respondents, jointly i.e. against defendant-appellant and respondent-3. Claimant-respondents have also been held entitled for interest at the rate of 6 % per annum.
3. On 10.08.1999, claimant-respondent, Manoj Saxena, aged about 22 years, around 4.30 PM was going from S.S.D. College crossing, Meerut, under Police State-Laalkurti, Meerut, to telephone exchange as a pillion rider on Bajaj Chetak Scooter No.U.P.15 F- 5482 driven by one of his student. Suddenly, Jeep No.U.A.E. 1513, driven rashly and negligently by its driver, hit the scooter from right back side, causing damage to scooter and also injury to claimant-respondent. He was admitted in Swati Nursing Home, Meerut, where, in his right leg, a rod was implanted. Claimant-respondent sustained bone injuries (fracture) in his right leg and backbone. Claimant-respondent sustained 75 % of permanent disability.
4. A claim petition under Section 166 of Act, 1988 was filed before Tribunal claiming compensation to the tune of Rs.16,50,000/-. Claimant-respondent impleaded driver of Jeep No.U.A.E. 1513 as defendant-1 and since vehicle was a government vehicle, Officer concerned namely Dr. Anand Prakash, Joint Director, Medical Health Services, Meerut was impleaded as defendant-2 and State of U.P. through Collector i.e. appellant was impleaded as defendant-3.
5. Claim was contested by defendants on various grounds including provisions of Section 80 IPC; contributory negligence as person driving scooter was himself driving it rashly and negligently; misjoinder of party i.e. defendant 2; and no liability of defendants.
6. Tribunal formulated following five issues :
"1- D;k fnukad 10-8-99 dks le; 'kke yxHkx 4-30 cts ,l-,l-Mh- dkfyt pkSjkgk vUrxZr Fkkuk ykydqrhZ esjB dSUV ij thi la[;k ;w0,0bZ0 1513 ds pkyd }kjk thi dks rsth o ykijokgh ls pykrs gq, LdwVj iathdj.k la[;k ;w0ih0 15 ,Q0 5482 esa VDdj ekj dj ;kph dks ?kk;y fd;kA 2- D;k dfFkr nq?kZVuk ds le; LdwVj la[;k ;w0ih0 15 ,Q 5482 dks dkSu pyk jgk Fkk o pkyd ds ikl LdwVj pykus dk oS/k ,oa izHkkoh pkyd vkKfIr ugha Fkh\ 3- D;k ;kfpdk foi{kh la0&2 ds xyr i{kdkj cuk;s tkus ds nks"k ls nwf"kr gS\ 4- D;k mDr ;kph }kjk LokLF; foHkkx m0iz0 'kklu dks okn esa vko';d i{kdkj u cuk;s tkus ds nks"k ls nwf"kr gS\ 5- D;k ;kph dksbZ {kfriwfrZ ikus dk vf/kdkjh gS] ;fn gka rks fdruh o fdls\"
"(1) Whether, on 10.08.1999 at around 4:30 a.m. at SSD College crossing under the Lalkurti Police Station in Meerut Cantt area, the driver of the jeep bearing no. UAE 1513, by driving it in a rash and negligent manner, hit the scooter bearing registration no. UP 15 F 5482 and injured the claimant?
(2) Who was driving the scooter bearing the registration no. UP 15 F 5482 on the day of the said accident and whether the driver had a valid and effective driving licence on the day of the occurrence?
(3) Whether the suit suffers from misjoinder of the opposite party 2?
(4) Whether the suit suffers from non-joinder of the Health department, Government of Uttar Pradesh as necessary party (5) Whether the claimant is entitled to get any compensation; if so, then how much and from whom?"
(English translation by Court)
7. Besides documentary evidence, oral evidence included deposition of claimant himself as PW-1 and Dr. R. M. Gupta as PW-2, while defendants adduced no oral evidence.
8. Tribunal returned Issue-1 in favour of claimant holding that driver of Jeep was driving it rashly and negligently. Issues-2, 3 and 4 were not pressed by defendants, hence answered against them. Issue-5 was answered holding that disability sustained by claimant-respondent is only to the extent of 40 % of his earning capacity. It assessed monthly income to Rs.24,000/-, and loss of earning capacity to 40 % was applied to it. Multiplier of 15 was applied, since, age of claimant-respondent was found 22 years on the date of accident. It awarded Rs.10000/- towards medical expenses, for pain and agony Rs.5000/-. Thus, total compensation Rs.2,49,000/- was awarded.
9. Learned Standing Counsel for appellant has assailed judgment in appeal passed by Tribunal on the ground that Insurance Company was not impleaded; disability Certificate was not produced and contributory negligence of driver of scooter has not been examined.
10. Therefore, three points for determination have arisen in this appeal, as under :
(1) Whether judgment in appeal is bad for non impleadment of Insurance Company?
(2) Whether Disability Certificate was not produced?
(3) Whether there was any contributory negligence whatsoever which was pleaded and proved by respondents but not considered by Tribunal?
11. It is not in dispute that Jeep was owned by State Government. It was under control of defendant-2 i.e. Dr. Anand Prakash, Joint Director, Medical Health Services, Meerut. Defendant-1, Farmood was a government servant, working as a driver. The vehicle in question, therefore, was owned by appellant. No material has been placed before us to show that vehicle was at all insured with any Insurance Company. When pointed out learned Standing Counsel could not dispute that government vehicles are not insured, therefore, first question raised has no substance at all and it is thoroughly misconceived. It is answered against appellant.
12. Now coming to second question i.e. Disability Certificate, judgment of Tribunal itself shows that Paper No.46ga/90 was produced before Tribunal, certified by Dr. R. S. Gupta, and according to him, percentage of permanent disability was 75 % though Tribunal has not accepted above level of disability as such and has taken only 40 % disability. However the fact remains that Medical Certificate providing permanent disability as Paper 46ga/90 was filed before Tribunal, hence question that no Disability Certificate was produced is contrary to record. Second question is also answered against appellant.
13. Now coming to third question, this Court repeatedly asked as to what evidence was adduced to show contributory negligence of driver of scooter except of a bare pleading in additional pleas, in para 29, which reads as under :
^^29- ;g fd mDr nq?kZVuk Lo;a LdwVj pkyd ds Lo;a LdwVj dks rsth o ykijokgh ls pykdj /kheh xfr ls lko/kkuh iwoZd viuh lgh lkbZM esa py jgh thi esa nk;h lkbZM esa VDdj ekj nh] bl nq?kZVuk esa mRrjnkrk foi{kh ds thi pkyd dh fcYdqy Hkh dksbZ =qfV ugha Fkh cfYd mDr nq?kZVuk esa lkjh xyrh LdwVj pkyd dh Fkh blfy, ;kph dksbZ Hkh {kfriwfrZ mRrjnkrk foi{kh foHkkx ls izkIr djus dk vf/kdkjh ugha gSA** "29. That the aforesaid accident was caused by the scooter driver himself by driving the scooter in a rash and negligent manner and by hitting the jeep, moving slowly in its proper lane, on its right side; and in the accident, the respondent, the driver of the jeep, committed no mistake at all; rather, the scooter driver was solely responsible for the accident; hence, the petitioner is not entitled to get any compensation from the answering respondent, the department."
(English translation by Court) (emphasis added)
14. For deciding contributory negligence, what is negligence, will also have to be looked into.
15. 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.
16. 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.
17. Tenth Schedule appended to Act, 1988 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 Jeep 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.
18. 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 well known. 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.
19. These provisions (sec.110A and sec.110B of 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.
20. In the light of the above discussion, I am 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).
21. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle.
22. Having gone through the impugned award, I find that while deciding issue 1, Tribunal has observed that the alleged accident took place due to rash and negligent driving by driver of Jeep No.U.A.E.1513 and, therefore, issue was answered against appellant.
23. In absence of any evidence led by appellant regarding alleged contributory negligence, it cannot be said that Tribunal has erred in law in not considering alleged contributory negligence and committed any error. In view thereof, aforesaid point raised by learned counsel for appellant is answered against appellant.
24. In fact, I find it appropriate to place on record that age of claimant-respondent being 22 years, as per judgment of Sarla Verma and others vs. Delhi Transport Corporation and others, AIR 2009 SC 3104 as affirmed in Reshma Kumari and others vs. Madan Mohan and others, (2013) ACC 907 (SC) and also by Constitution Bench in National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017 SC 5157, multiplier applicable in case in hand would have been 18 but Tribunal has actually applied multiplier of 15, therefore, actual determination of compensation by Tribunal is on the lower side. However, since claimant-respondent has not preferred any appeal, therefore, I find no occasion to enhance compensation. In fact, appellant is benefited, still has chosen to file appeal, which should not have been done.
25. No other point has been argued before this Court.
26. Appeal lacks merit and dismissed with costs throughout.
Order Date :- 11.12.2019 Manish Himwan