Allahabad High Court
U.P. State Road Transport Corporation vs Ahsan on 11 March, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 26 Case :- FIRST APPEAL FROM ORDER No.3143 of 2003 Appellant :- U.P. State Road Transport Corporation Respondent :- Ahsan Counsel for Appellant :- S.K. Mishra Counsel for Respondent :- Nigamendra Shukla Hon'ble Dr. Kaushal Jayendra Thaker, J.
1. Heard Sri S.K. Mishra for the appellant and Sri Nigamendra Shukla for the claimant - respondent.
2. By means of this appeal, the appellant challenges the judgment and decree dated 12.9.2003 passed by Motor Accident Claims Tribunal (Special Judge), Muzaffarnagar, in Motor Accident Claims Tribunal No.295 of 2001 (Ahsan Vs. U.P. State Road Transport Corporation).
3. As per the judgment of Apex Court in the case of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948.
4. The parties are referred to as Claimant and the opponents (now appellants) as they are arrayed before the Tribunal in MACP No.295 of 2001 preferred by Ahsan son of Mushtaq for a sum of Rs.8,50,000/- for the injuries which were caused to him. He has also demanded interest @ 18 per cent.
5. The brief facts are that on 21.5.2001, the claimant along with some other persons was standing beside the road and due to rash and negligent driving of the bus no. UP-70-B-5808 which was coming from Muzaffarnagar side and dashed with the claimant due to which the claimant received serious injuries. It is even averred that the tractor of one Shannwar was damaged and one Tahseen died on the spot. He received crush injuries on his left lower limb and rod had to be inserted when he was taken to the government hospital at Roorkee. Dr. Mukesh Jain of the government hospital referred him to Dr. M. Prakash Hospital at Meerut as his injuries were grievous. He was an indoor patient of 15 days and even while he filed the claim petition, his treatment was going on. He had his own agriculture field. He was having his buffalo and he used to sell milk thereby he was earning Rs.5,000/- per month and he has been rendered totally unemployed. The respondent no.1 has filed his reply but has denied the accident. The opponent no.1 has submitted that the accident occurred due to negligence of the tractor trolley and that the claimant was not entitled to any compensation and the driver of the bus was driving his bus at a moderate speed. The truck driver while trying to save a Jeep, dashed with a police vehicle meanwhile a tractor trolley which was coming dashed with him. According to the opponent no.1, nobody was injured in the accident and as the driver, owner and insurance company of tractor was not made a party, the claim petition was bad for non-joinder of parties.
6. The Tribunal raised 4 issues and answered all against the opponent no.1 (appellant herein). The learned Advocate for the opponent no.1 has submitted that the bus was being driven at moderate speed and therefore, holding the driver negligent is bad in the eye of law. The UPSRTC has denied that the claimant, who was said to be a pedestrian, was injured because of the accident between the bus and the tractor.
7. It is further submitted that the claimant had not proved any evidence to show that he had any functional disability and his evidence was not trust worthy and he was a interested witness. It is further submitted that the opponent no.1 examined the conductor and his evidence was such which had to be considered by the Tribunal but has been brushed aside.
8. The Claims Tribunal without any basis clearly erred in awarding Rs.60,000/- as medical expenses, Rs.25,000/- for pain and suffering, Rs.15,000/- for future medical expenses, Rs. 5,000/- for special diet and Rs.2,500/- as loss of income during treatment, in arriving at a final figure of Rs.1,07,500/- as compensation.
9. It is further submitted that the Tribunal failed to appreciate that the medical bills/vouchers were not proved by the claimant by leading cogent evidence.
10. The twin issues raised are regarding non-involvement and non-negligence of the driver of the bus and the compensation awarded.
5. As far as the issue of negligence is concerned, the finding of fact is that DW1 and DW2 have submitted that the tractor trolley was being driven rashly and negligently was not believed by the Tribunal as the Chargesheet was laid against the driver of the bus. The damage to the tractor trolley goes to show that the driver of the bus drove the bus at an excessive speed causing death of persons travelling in a tractor trolley. Hence the submission of learned counsel for the appellant will fail. I have take aid of the decisions of this Court and the Apex Court for considering this ground which are reiterated hereinbelow.
6. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
7. 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.
8. The 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. 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."
9. 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 which 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."
"10. The insurance company has failed to prove that accident occurred due to carrying of more persons as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligent on the part of the scooterist, cannot be benefited. 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."
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."
12. The F.I.R. and Chargesheet were laid against the driver of the bus. The driver of the bus has been held negligent by the Tribunal though he has appeared before the Tribunal and deposed on oath. The Insurance company has accepted its liability in another matter settled at Lok Adalat was not the ground for coming to the said conclusion. The Tribunal has evaluated and reevaluated the concept of composite/contributory negligence and has found that the driver of the bus was not stating the truth and hence these findings of fact are not perverse. Evidence of DW-1 and DW-2 has been properly scrutinized and has not been believed by the Tribunal. Hence, the tractor trolley driver having not been made a party, would not vitiate the proceedings as there was a death of one person which shows that the bus came and dashed with a standing tractor trolley even if we believe that the driver of the tractor was negligent but the same has not been proved and, therefore, the submission of Sri Mishra fails.
Compensation
11. The submission that the awarded amount is exorbitant is to be assessed on the touchstone of the judgment in Raj Kumar Vs. Ajay Kumar, reported in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343, wherein the principles for functional disability are considered. The Tribunal has considered: (a) that the left lower limb was crushed (b) He had several injuries on his head, face and chest. (c) He was in hospital for a long time.
12. The Tribunal considered his income as Rs.2,500/-. It granted him Rs.50,000/- under the head of medical treatment, Rs.25,000/- under the head of pain shock suffering, Rs.5,000/- for two months actual loss and Rs.15,000/- for future treatment and that is how it granted Rs.1,07,500/- with 9% rate of interest. Nothing has been granted under the head of future loss of income. There is a cross objection filed by the claimant through one Madhu Sudan Dixit but there are no prayer for enhancement. Hence, once there is no prayer nor any oral submissions, enhancement cannot be granted and it has not been proved that anything requires to be added to the same.
13. The submission of Sri Mishra that 9% rate of interest in the year 2003 was more requires to be considered in light of the decisions of this High Court more particularly in FAFO No.2366 of 2003 (Smt. Neeta Devi and others Vs. Navin Roosia and others), decided on 27.2.2019, wherein this Court after elaborate reasons, has held that in 2003 rate of interest would be 9 per cent.
14. This Court in FIRST APPEAL FROM ORDER No. - 656 of 2012 in (Smt. Swapna Das Gupta & Others.
Vs. Sri Rajiv Kapoor & Others) decided on 20.4.2017, on the issue of interest has opined as under:
23. "The rate of interest even in the year 2003 namely the date of judgment would be 9% as held by this Court in This takes us to issue of award of interest on amount awarded. It is submitted by learned counsel for claimant that accident occurred 3.1.1993 and Tribunal decided the matter on 29.9.2011 by granting 6% interest from the date of filing of claim petition and if the amount is not deposited within one month then 9% interest was awarded. It is further submitted that rate of interest as awarded by Apex court in the decisions cited by learned counsel for the claimant as 9% and Tribunal has erred in granting it at 6%. As against this learned counsel for the Insurance Company has submitted that appeal is of 1993, matter was dismissed in default number of times.
24. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
11. "The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
25. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.
26. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.
27. In Shashikala and Others Vs Gangalak-shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.
28. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%.
29. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.
30. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.
31. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
32. Unfortunately, it goes without saying that Motor Accident Claim matters could not have been dismissed in default as has been held by Apex court. However, on that count we do not think that Insurance Company can benefit as monies were lying with the Insurance Company and therefore, rate of interest as applicable as per recent trend and as per repo rate as per decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & Another, in First Appeal No.2440 of 2014 and other matter decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held "that it is a discretion of the Court to decide the rate of interest but has to be as per prevalent rate of interest which would be given by the banks at that time. The rate of interest shall be 9% from the date of filing of the claim petition till realization". Hence 9% rate of interest would have to be awarded."
15. The submission that 9% interest is on a higher side is also rejected.
16. No case is made out. The appeal is dismissed. Oral cross objection is also dismissed.
Order Date :- 11.3.2019 Irshad