Allahabad High Court
Smt. Kamlesh Sharma And Others vs United India Insurance. Co. Ltd. And ... on 3 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1221 of 2004 Appellant :- Smt. Kamlesh Sharma And Others Respondent :- United India Insurance. Co. Ltd. And Another Counsel for Appellant :- D.P.Verma,B.P. Verma Counsel for Respondent :- Devendra Kumar Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)
1. Heard Sri B.P. Verma, learned counsel for the appellants, Sri Devendra Kumar, Advocate has absented himself even in the third round. We have perused the award and record of the Tribunal impugned.
2. This appeal, at the behest of the claimants, challenges the judgment and order dated 6.2.2004 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Meerut (hereinafter referred to as 'Tribunal') in M.A.C.No.494 of 2002 awarding a sum of Rs.1,77,375/- with interest at the rate of 7% as compensation.
3. Brief facts as culled out from the record are that on 26.2.2002, the deceased-Satyadev Sharma was going on scooter No. U.P.-15 G/7219 from L. Block Shastri Nagar to Tejgarhi and when he reached near Bank of Baroda then Tanker No. U.P.No.9002 hit the scooter from behind. He was treated in Lokpriya Hospital Meerut and Apolo Hospital Delhi and ultimately on 4.3.2002, he died. A very strange accident has occurred whereby a young person after being hit by a bus and tanker, died after about ten days in the hospital. Tribunal very strangely granted compensation to the tune of only 25% whcih was the liability of the tanker. The Tribunal held the driver of the bus to be negligent to the tune of 70% but did not grant compensation as according to the Tribunal, having not joined the owner or the driver of the said bus disentitled the claimants from claiming compensation. The better option for the Tribunal was to direct the driver and owner of the bus to be joined as respondents but neither the insurance company of the tanker gave such application. In this backdrop, that we are called upon to decide the liability and the compensation awardable to the legal heirs of the deceased. The deceased was aged about 46 years and was working as Labour and Industrialk Law Concultation as well as Manager ( Legal) in Sanghal Paper Ltd. And was earning Rs.20,000/- per month.
4. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. Apportionment of negligence is under challenge. The respondent has not challenged the liability imposed on them. The only issue to be decided by this Court is, the quantum of compensation awarded for which we have minutely scanned the record. The involvement of three vehicles; bus, truck and scooter driven by deceased is not in dispute. The dispute is non-grant of 70% of compensation attributed to the negligence of bus driver.
5. It is submitted by learned counsel for the appellant that the deceased was 46 years of age at the time of accident and was in the job and was having labour consultancy as Manager( Legal) in Sanghal Paper Ltd. and was earning Rs.20,000/- per month. His income was considered by the Tribunal to be Rs.75,000/- per annum which according to the counsel for the appellants is on the lower side and should be considered at least Rs.20,000/- per month. It is further submitted that the Tribunal has not granted any amount towards future loss of income of the deceased which should be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that the amount granted under non-pecuniary damages are on the lower side and it should be as per the decision in Pranay Sethi (Supra).
6. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference as the date of accident is 26.7.2002 and the decision of the Tribunal is prior to the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and therefore the Tribunal has not committed any error in not granting the future loss of income. It is further submitted that the judgment of Supreme Court in Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476 which has been pressed into service by learned counsel for appellant cannot apply in the facts of this case as the deceased was self employed and the Tribunal has committed no error.
7. Having heard the learned counsel for the appellant and having perused the record as the issue of negligence is under challenge rather apportionment and non-grant of 70% of amount, the issue of negligence is discussed herein below.
8. 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.
9. The principle of 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.
10. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added
11. 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
12. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care. In this case the deceased was not the author or the co-author of the accident. On facts, the deceased was plying the vehicle. The deceased was not by bus and then by tanker. The Tribunal has held non joinder of bus for deduction of compensation, 70% could not be deducted from compensation payable by deceased. We uphold the decision as far as negligence of all the three driver is concerned, but hold that the insurance company has to be saddled with 95% of liability with right to recover the finding of facts as far as negligence apportioned by the Tribunal is not disturbed as the facts goes to show that the driver of the bus did not stepped into the witness box. The Tribunal or the insurance company would have examined the driver by filing an application for procuring his presence before the Tribunal which was not done. We hold the bus driver to be 70% negligent and the driver of the tanker to be 25% negligent. Negligent of deceased has decided by Tribunal to be 5% is maintained in the facts of this case.
Re-computation of Compensation :-
13. This Court finds that the accident occurred on 26.7.2002 causing death of Satya Deo Sharma who was 46 years of age at the time of accident. The Tribunal has assessed his income to be Rs.75,000/- per year which according to this Court, in the year of accident, would be at least Rs.90,000/- on the basis of evidence produced before the Tribunal both oral and documentary. The Tribunal has committe3de error in not considering income tax return and their mean has to be calculated. We are fortified in our view by the decision in Anita Sharma Vs. New India Assurance Company Limited (2021) 1SCC 171. To which as the deceased was in the age bracket of 46-50, 25% of the income will have to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). The amount under non-pecuniary heads should be at least Rs.1,00,000/- in view of the decision in Pranay Sethi (Supra) as every three years 10% be added to Rs.70,000/-. In view the facts and circumstances of the case, this Court feels no interference is called for as far as deduction of personal expenses is concerned.
14. The total compensation payable is recalculated and is computed herein below:
i. Annual Income Rs.90,000/-
ii. Percentage towards future prospects : 25% namely Rs.22,500/-
iii. Total income : Rs.90,000/- + Rs.22,500/- = Rs.1,12,500/-
iv. Income after deduction of 1/3rd towards personal expenses : Rs.75,000/-
v. Multiplier applicable : 13 vi. Loss of dependency: Rs.75,000/- x 13 = Rs.9,75,000/-
vii. Amount under non pecuniary heads : Rs.1,00,000/-Rs.70,000/- + Rs.30,000/-) viii. Total compensation : Rs.10,75,000/-
ix. Compensation payable to claimants after deductions of 5% negligence on the part of the deceased : Rs.10,75,000/- - Rs.53,750/- = Rs.10,21,250/-.
15. As far as issue of rate of interest is concerned, it 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."
16. It is submitted by learned counsel for the appellant that it is not necessary but to join to other tort feasor as held in the decision of the Apex Court in Khenyei (Supra). The Tribunal while computing the amount held that only 25% would be payable as that was the liability of the insurance company and the owner of the tanker. The owner of the bus and the number of bus was also there before the Tribunal and it could have directed the claimant to join the said other tort feasor also. The decision of the Tribunal is against the settled legal principals of law, hence is up turned.
17. 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 within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. The insurance company would be at liberty to recover 70% amount from the co-tort-feasor, namely; bus whose number is given in the record. The deduction of 70% on the basis that the driver and owner of the bus was not been joined and that the deceased was negligent to the tune of 5% and, therefore, only 25% of the amount is payable is against the principal enunciated in Khenyei (Supra). Qua the appellant, it was a case of composite negligence coupled with contrary negligence to the tune of 50% of the deceased and, therefore, the amount will have to be compensated by the respondent and the insurance company is given recovery rights from the other tort- feasor.
18. 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 rustic villagers.
19. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri 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.
20. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned 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.
21. Record be transmitted to the Tribunal forthwith.
Order Date :- 3.3.2022/Mukesh