Allahabad High Court
Smt. Geeta Vishnoi And Others vs M/S Kanpur Shifter Pvt Ltd And Another on 20 December, 2021
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 21 Case :- FIRST APPEAL FROM ORDER No. - 1401 of 2009 Appellant :- Smt. Geeta Vishnoi And Others Respondent :- M/S Kanpur Shifter Pvt Ltd And Another Counsel for Appellant :- Mohd. Naushad Siddiqui,Shreesh Srivastava Counsel for Respondent :- Rahul Sahai & Case :- FIRST APPEAL FROM ORDER No. - 1559 of 2009 Appellant :- The New India Assurance Co Respondent :- Smt. Geeta Vishnoi And Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- M.N. Siddiqui Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. These two appeals have been preferred by the parties against the same judgement and award passed by Motor Accident Claims Tribunal/Additional District Sessions Judge, court No.17, Kanpur Nagar on 31.01.2009. FAFO No.1401 of 2009 (Smt. Geeta Vishnoi and others Vs. M/s Kanpur Shifter Pvt. Ltd. and others) is filed by claimants for enhancement of the impugned award while FAFO No.1559 of 2009 (The New India Assurance Company Limited Vs. Smt. Geeta Vishnoi and others) is filed by the Insurance Company of offending truck mainly on the ground of contributory negligence of the deceased. These two appeals are against the same judgement. Hence, these are heard and being decided together.
2. Brief facts of the case are that claimants of FAFO 1401 of 2009 filed a claim petition before learned Tribunal on account of the death of Chandra Kumar Vishnoi with the averments that on 16.03.2007, the deceased Chandra Kumar Vishnoi was going by scooter bearing No.U.P. 78 V 9207 on by pass road within the jurisdiction of Police Station- Barra, District- Kanpur Nagar. He was driving the the scooter with slow speed on its left side. Between 10:00 pm and 11:00 pm (night) when he reached near Ruchi Guest House, a tanker bearing No. U.P. 78 N 2323 hit the scooter of the deceased from behind while being driven rashly and negligently by its driver. In this accident, Chandra Kumar Vishnoi sustained fatal injuries and died on the spot. It is also averred that the age of the deceased was 40 years and he was Professor in DAV Degree College in Kanpur.
3. Heard learned counsel for both the parties and perused the record.
4. Learned counsel for the Insurance Company vehemently argued that it is a crystal clear case of contributory negligence on the part of the deceased but learned Tribunal inspite of discussing the issue, did not arrive at right conclusion and it was alleged that truck driver was solely negligent.
5. The principle for deciding whether driver of a vehicle is negligent or not was discussed in below mentioned judgments.
6. 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 inferen 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 comear 1992. "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
7. The Supreme Court in Bimala Devi Vs. Himachal Pradesh Rct (2009) 13 SCC 530 and Sunita Vs. Rajasthan State Road Transporation Corporation (2019) 0 SCC 195 has held that the evidence Act 1872, cast a duty on the respondents to adduce the evidence, so it is to show that the vehicles were being driven so as to avoid any accident being taken place.
8. The principles of res ipsa loquiter would apply on the facts of this case to demonstrate that the deceased was at the wrong side of the road and driving other side of the divider. If he would not have gone on the incorrect side, the accident would not have taken place but even though the accident could have been avoided if the truck would have been at moderate speed.
9. Learned counsel for Insurance Company attracted our attention towards the site-plan of the place of occurrence also, which is prepared by the Investigating Officer during investigation of connected criminal case against the driver of the truck. It is contended by the insurance company that the road, on which accident took place, was one way road having divider. The truck was being driven on the correct side of the road but the deceased was coming from the opposite side on the same road on which the truck was coming, meaning thereby the deceased was on the left side of the divider but on the right side road which was meant for coming the traffic from opposite side of the scooter of the deceased. Learned counsel submitted that the Tribunal has overlooked this aspect of the accident and held no contributory negligence. Learned counsel also submitted that the truck driver was on its correct side and plying the vehicle at normal speed. Hence, the deceased was solely negligent and responsible for the accident.
10. Per contra, learned counsel for the claimants submitted that the deceased was on left side of the road and the truck was in the middle of the road. Learned Tribunal has rightly held that as per site-plan, the deceased was just five feet on the road from its edge while the truck was 15 feet from the other side of the edge of the road, hence, in this way, the truck driver was solely negligent and responsible for the accident. There is no illegality or infirmity in the judgement of learned Tribunal and it does not call for any interference by this Court.
11. We threadbare perused the copy of the site-plan but before discussing the site-plan we taken up issue whether in the accident in question, both the vehicles were coming from opposite direction or scooter was hit by the truck from behind. As per averment of petition, the truck driver hit the scooter from behind but it is not the case because the copy of the site-plan clearly shows that it was highway and one way road where accident took place. There was divider between the road and both the vehicles are on one side of the road where the truck driver was going from east to west on its correct side but the deceased was going from west to east on the same side of the divider and the accident took place when both the vehicles were coming from opposite direction. This fact is also corroborated by the evidence of eye-witness PW2, who has deposed that the road at the site of the accident is one way. There is divider in between. Deceased was going on left side of the road and tanker was coming in the middle of the road. If this statement of PW2 is seen in the light of the site-plan, it is clear that both the vehicles were on the same side of the road and coming from opposite direction. Learned Tribunal discussed this point in its judgement but failed to appreciate the point and situation of divider. Learned Tribunal held that the deceased was at the left side of the divider but he overlooked the situation that he was on the same side of the road on which the truck was coming from opposite direction and this side was the wrong side for the deceased to ply his vehicle. Other side of the road from divider was the correct side for the deceased to drive the scooter. Hence, it is proved on the basis of evidence that the deceased was driving the scooter on the wrong side of the road and he was driving negligently. Although, the truck was on correct side of the road but he was on high speed. Had the speed of the truck been reasonable and slow, the accident could have been avoided. After discussing the point of the negligence, we hold the deceased to be 50% negligent. In this way, we hold the deceased and the truck driver both were negligent in driving the vehicle to the tune of 50% each.
12. Now we come to the issue of quantum of compensation. Learned counsel for the claimants submitted that learned Tribunal has awarded less amount of compensation because the income of the deceased was not assessed in right perspective. It is submitted that the deceased was Professor in DAV Degree College Kanpur and he was getting salary of Rs.28,391/- per month but the Tribunal has assessed only Rs.22,931/- as salary per month. Learned counsel for the claimants argued that apart from basic salary, D.A. H.R.A. also shall be taken into account and no deduction in the salary shall be considered.
13. Per contra, learned counsel for the Insurance Company argued that only that portion of salary will be taken into account as is left after deduction of income tax. We are fully convinced with the argument of learned counsel for the Insurance Company. Perusal of the impugned judgement shows that learned Tribunal has opined that Rs.2,000/- was income tax which was liable to be deducted from the salary. Basic-pay of the deceased was Rs.13,680/- and he was getting DA at Rs.6840/- and additional D.A. at Rs.5951/- as well as house rent allowance of Rs.1980/-. Certain deductions could not have been made by the Tribunal in view of the judgement of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830. The Tribunal has concluded that income tax returns of the deceased are filed but no return is filed pertaining to the year of the death. Hence, finally the Tribunal has assessed salary of the deceased at Rs.22,931/- after making the deduction towards income tax only, which we do not disturb.
14. Learned Tribunal has not granted any amount towards future loss of income. It is admitted fact that the deceased was a salaried person and his age was 42 years at the time of accident. Hence, as per the judgement of National Insurance Company Limited Vs. Pranay Sethi and Others 2014 (4) TAC 657 (SC) 30% of the income shall be added towards future prospects. Keeping in view the number of the dependents on the deceased, the Tribunal has rightly deducted 1/3 of the income towards personal expenses of the deceased. Learned Tribunal has applied multiplier of 15 in accordance with the second Schedule of Motor Vehicle Act but multiplier of 14 shall be applied, keeping in view of 42 years of age of the deceased, in view of the judgement of Hon'ble The Apex Court in Sarla Verma Vs. Delhi Transport Corporation 2009 (2) TAC 677 (SC). As far as non-pecuniary damages are concerned, Tribunal has provided Rs.5,000/- for loss of consortium, Rs.2,500/- for loss of estate and Rs.2,000/- for funeral expenses, but as per the judgement of Pranay Sethi (surpa) Rs.15,000/- shall be granted for loss of estate and Rs.15,000/- shall be granted for funeral expenses. The wife of the deceased shall be entitled to get Rs.40,000/- for loss of consortium. Deceased is survived by two children and parents. Hence, in view of the judgement of Kurvan Ansari @ Kurvan Ali and another Vs. Shyam Kishore Murmu and another, 2021(4) TAC (SC), both the children of the deceased shall get filial consortium Rs.40,000/- each and mother of the deceased shall also get filial consortium of Rs.40,000/-. Hence, under the head of non-pecuniary damages, the claimants shall be entitled to get Rs.1,90,000/- in all.
15. Hence the total amount of compensation, in view of the above discussions, payable to the claimants is being computed herein below:
(i) Monthly income of the deceased : Rs.22,931
(ii) Addition towards future prospects (30%) : Rs.6879/-
(iii) Total income 22931+6879= Rs.29,810/-
(vi) Income after deduction of 1/3 : 29810-9936= Rs.19,874/-
(v) Annual income : 19874 x 12 = Rs.2,38,488/-
(vi) Multiplier applicable : 14
(vii) Loss of dependency : 2,38,488 x 14 = Rs.33,38,832/-
(vii) Loss of estate : Rs.15,000/-
(ix) Funeral expenses : Rs.15,000/-
(x) Loss of consortium and filial consortium: 40,000+40,000+40,000+40,000= Rs.1,60,000/-
(xi) total compensation : Rs.33,38,832 + 1,90,000= Rs.35,28,832/-
Compensation payable to the claimants after deduction of 50% towards contributory negligence of the deceased : Rs.17,64,416.
16. 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."
17. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.
18. In view of the above, both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
19. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [2007(2) GLH 291] and this High Court in 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 claimants 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 20.12.2021
Ashutosh Pandey