Allahabad High Court
The New India Assurance Co Ltd vs Smt. Barisa And Others on 2 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1109
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 29.1.2020 Delivered on :23.3.2020 Now On : 2.6.2020 IN CHAMBER Case :- FIRST APPEAL FROM ORDER No. - 2473 of 2009 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Barisa And Others Counsel for Appellant :- Amit Manohar Counsel for Respondent :- Nigmendra Shukla AND Case :- FIRST APPEAL FROM ORDER No. - 734 of 2011 Appellant :- The New India Assurance Co Ltd Respondent :- Smt. Shabana And Others Counsel for Appellant :- Amit Manohar AND Case :- FIRST APPEAL FROM ORDER No. - 2538 of 2019 Appellant :- Smt. Barisa And Another Respondent :- Smt. Hemshira And Others Counsel for Appellant :- Anju Shukla,Nigamendra Shukla Counsel for Respondent :- Vipul Kumar Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Amit Manohar, learned counsel for appellant-insurance company and Sri Nigmendra Shukla, learned counsel for respondent-claimants. Parties are referred to as Insurance Company and claimants and or appellant and respondent respectively as they appear in all three appeals.
2. Two appeals, under section 173 of Motor Vehicle Act, 1988 ( hereinafter referred to as the "Act, 1988") are filed at the instance of appellant- The New India Assurance Co. Ltd. and one appeal, at the instance of claimants has arisen from the awards dated 28.3.2009 passed by Motor Accident Claim Tribunal/ Additional District Judge-I, Gautam Budh Nagar (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No. 174 of 2007, whereby compensation of Rs.1,96,500/- and in Motor Accident Claim Petition No. 177 of 2007 whereby compensation of Rs.3,21,500/-. It is not understood why the same Tribunal did not decide both the claim petitions by a common judgment and wasted or rather copy pasted the judgments for compensation in both the matters which arose out of the same accident.
3. On the fateful day namely 29.6.2007 two persons were returning from Palwal to Jewar on Motor Cycle No. U.P.-16S-6927. As the illfated motor cycle reached on Palwal Hamadpur Road ahead of Jhuppa Check Post at about 7:15 p.m. the offending Truck No. HR-37-B-5198 coming from Hamadpur side ( opposite direction) at a very high speed in negligent and careless manner, suddenly turned to its right side non-metal road(kuchcha patri) of the road and dashed against the motor cycle causing this horrible accident in which both the deceased sustained multiple, accidental injuries to which one died on spot and motor cycle was also badly damaged. At the time of accident the deceased Raess was driving motorcycle on extreme left side of the road at moderate speed with full care and caution. The accident is the result of negligent driving of the driver of truck. At the time of accident the driver of the offending vehicle was driving his vehicle being Truck No. HR-37-B-5198 at very high speed and in a negligent, careless and reckless manner without any care and caution. It appeared that at the time of the accident, the driver of the vehicle truck had no control over the steering of the offending vehicle, had the driver of offending vehicle-truck been not negligent, then this unfortunate accident would not have happened.
4. It is submitted by Sri Amit Manohar , Advocate for insurance company that the vehicle collided in the middle of the road and therefore not considering that the deceased was also a coauthor of the accident or rather he was the greator contributor to the accident is bad and requires to be interfered with as had the deceased-driver of scooter taken care on seeing the opposite vehicle coming he would have averted the accident having taken place. He has submitted that the decision of the apex court in Bijoy Kumar Dugar Versus Bidyadhar Dutta and others, 2006(2) Supreme 374 and Yerramma and others Versus G. Krishnamurthy and another, 2014 (4) TAC 337 SC would show that this aspect has not been considered by the Tribunal. The Tribunal according to the learned counsel for the appellant Insurance Company has misread the evidence on record and has come to a erroneous decision on issue of negligence.
5. As against this, learned counsel for the respondent-claimant has relied on the judgment of the undersigned in First Appeal From Order No. 631 of 2005 United India Insurance company Versus Ram Kishor and others ) decided on 7.2.1019 and has contended that in absence of any evidence led by the insurance company or the driver and owner of the other offending vehicle and in absence of proving the same the said decisions cited by the counsel for the insurance company cannot be made applicable in the facts of this case as for as negligence is considered.
6. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 ( Bajaj Allianz General Insurance Company Limited Versus Smt. Renu Singh and others) decided on 19.7.2016 has held as under: -
"16. The 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 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 cause 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.
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, 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 should 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. This is termed negligence.
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. In 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, Courts 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.
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 motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle."
7. The term contributory negligence and composite negligence has been discussed time and again a person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows:
7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:
"6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
8. In view of the decision of this High Court in United India Insurance company Versus Ram Kishor and others ) and First Appeal From Order No. 79 of 2000 wherein concept of considering negligence are considered in cases where two vehicles are involved which are of unequal magnitude can it be said that both the drivers have to be considered to be tortfeasors, at times it may be so but in our case the finding of fact by the Tribunal was such which goes to show that the driver of the scooter who died on the spot could not have even visualzied that the truck whose driver has not stepped into the witness box would come on the wrong side and cause the accident as deposed by eye witness in both the matters though decided separately
9. The fact that the driver of the truck who was the best person to have deposed about the manner in which the accident occurred has conveniently absented himself and the charge sheet and the FIR as well as the fact that the driver of the motor cycle died on the spot shows the magnitude with which the accident had occurred. The judgment in Bijoy Kumar Dugar ( supra) and Yarramma and others Versus G. Krishnamurthy and another, 2014(4) T.A.C. 337 ( S.C.) will apply to the facts of this case as in this case it is not the case that the driver of the truck showed any indicator or blew horn. In this case the observation in the judgment of Yerramma ( supra) will apply as the driver of the truck did not take any caution, came on the wrong side dashed with the motorcycle causing fatility of two persons. The judgment in Bijoy Kumar Dugar ( supra) will not apply, the reason being the movement of the bus in the said matter was in a zig-zag manner and the bus as per the judgment of Apex Court could have been visualised by the driver of the maruti car and driver of maruti car could have avoided the accident. In our case, neither the evidence shows the accident that the driver of the truck had taken any caution to avoid the accident. None has come forward to depose in favour of the truck driver nor is it demonstrated before this Court that the deceased was a coauthor of accident.
10. In that view of the matter the decision of the Tribunal holding the driver of the the insured vehicle of the appellant to be negligent herein cannot be disturbed, I am supported in my view by the decision of the Apex Court reported in Mohd. Siddiqui Versus National Insurance Company Limited, 2020 ACJ SC 751 and therefore in absence of any evidence to prove that the deceased victim contributed either to the accident taken place or that the death was attributable to the fault of the deceased driver. He can not be held to be liable.
11. The decision of Supreme Court in Khenyei Vs. New India Assurance Company Limited and Others (2015) 9 SCC 273 which would also apply in the facts of this case as qua one of the deceased it was a case of composite negligence.
Breach of Policy
12. As far as the submission that there was breach of policy condition the said is not proved as the copy filed by the respondent owner was verified and was found to be meeting the standard for which the truck driver was authorized to drive and therefore the said ground fails and just because the driving licence of Raise was not found it cannot be said that he was negligent or there was breach of policy condition. Raies was not a trotfeasor. The licence which is material for our purpose is that of the driver of the truck. The driving licence if is said to be fake the insurance company should have prove the same. The finding of fact of the Tribunal as far as non breach of policy condition cannot be found fault with.
13. The finding is very clear that the driving licence of the driver of the truck whose driving licence number 22183 E-9 / 0033 which was issued and was valid from 29-12-2005 to 28-12-2008. The document was not proved to be fake rather the said document was accepted to be a valid and effective driving licence and therefore the insurance company did not press the said objection. Having proved in the case between Sabana Versus New India Assurance Company Limited in MACP No. 177 of 2007 the judgment which is impugned herein the said ground cannot be accepted.
Compensation in MACP No.177 of 2007 giving rise to FAFO No. 734 of 2011 .
14. The submission of the counsel for the insurance company is that the income of the deceased should have been taken to be Rs.15000/- per annum and the Tribunal has considered Rs.36000/- per annum which is bad and that the deduction of 1/3rd is also bad. The quantum requires to be recalucated in view of the decision in National Insurance Company Limited Versus Pranay Sethi , 2017 ACJ 2700 and also reliance is placed on the decision of this High Court wherein it is held that as per the principle of just compensation even if no appeal is filed the Court under Order 41 Rule 33 of the Code of Civil Procedure , 1908, this Court will be obliged to grant what is known as just compensation. The awarded amount is not disturbed.
15. As far as the FAFO No.2473 of 2009 and FAFO No. 2538 of 2019 are concerned the re-calculation would have be remade. I am in agreement with the submission of Sri Amit Manohar that the deduction for a bachelor person, expenses has to be ½ half and not 1/3rd as done by the Tribunal.It is submitted by Sri Shukla for the claimants that the claimants were the parents of the deceased who was a bachelor was 19 years of age the tribunal granted multiplier as per the age of the parents and not on the basis of age of deceased and granted only Rs.4500/- under the head of non pecuniary damages.
16. The deceased can be said to be earning Rs.4000/- per month as he was a skilled labourer and was having his own repair garage for repairing motorcycle and therefore the calculation has to be made likewise. Rs.4,000/- + Rs.1,600 = Rs.5,600/-, the said amount has to be deducted by ½ half as personal expenses of the deceased which would be Rs.2,800/- multiplied by 12 and then 18 as the deceased. The judgment in the case of Royal Sundaram Alliance Insurance Company Limited Versus Mandala Ydagari Goud, (2019 5 SCC 554) holding that for the death of a bachelor 50% should be deducted for the personal expenses and that multiplier should be based on the age of the deceased and not on the age of the parents and, therefore, the appeal preferred by Insurance Company being FAFO No. 2473 of 2009 will have to be partly allowed. was 19 years of age + Rs.70000/- under other heads. Hence, the appeal preferred by Barrisa mother of the deceased as well as the appeal preferred by the Insurance Company will have to be accepted.The judgment in the case of Royal Sundaram Alliance Insurance Company Limited Versus Mandala Ydagari Goud, (2019 5 SCC 554) holding that for the death of a bachelor 50% should be deducted for the personal expenses and that multiplier should be based on the age of the deceased and not on the age of the parents and, therefore, the appeal preferred by Insurance Company being FAFO No. 2473 of 2009 will have to be partly allowed.
17. The judgment in the case of Royal Sundaram Alliance Insurance Company Limited Versus Mandala Ydagari Goud, (2019 5 SCC 554) holding that for the death of a bachelor 50% should be deducted for the personal expenses and that multiplier should be based on the age of the deceased and not on the age of the parents and, therefore, the appeal preferred by Insurance Company being FAFO No. 2473 of 2009 will have to be partly allowed.
18. The claimants would now be entitled to Rs.2800 x 12 x 18 + Rs.70000 = Rs.6,74,800/- with interest as would be decided herein below.
Interest
19. Recently the Apex Court in the case of National Insurance Company Versus Birendra decided on 13.1.2020 hence, the interest should be 9%. However, the recalculation goes to show that the insurance company will have to deposit amount as First Appeal From Order No.2588 of 2019 which was filed by the claimants for enhancement in the year 2010 but the delay came to be condoned while hearing the appeals on merits and therefore the submission of Sri Amit Manohar that the interest should be computed from 2019 cannot be accepted.
20. In the final analysis FAFO No. 2538 of 2009 and FAFO No.2473 of 2009 are partly allowed whereas F.A.F.O. No.734 of 2011 preferred by the Insurance Company is dismissed.
21. Record and proceedings be sent back to the Tribunal.
22. The Insurance company shall deposit the difference of the amount within 12 weeks from today.
23. The matters were ordered to be listed for pronouncement on 23.3.2020 but due to lockdown the pronouncement was deferred. Pronounced belatedly today.
Order : 2.6.2020 Mukesh