Allahabad High Court
U.P. State Road Transport Corporation ... vs Krishna Gopal Agarwal And Another on 5 February, 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.75 of 2005 Appellant :- U.P. State Road Transport Corporation through R.M. Respondent :- Krishna Gopal Agarwal And Another Counsel for Appellant :- Avanish Mishra, Ajit Kr. Singh, L.D. Rajbhar Counsel for Respondent :- S.D. Ojha Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Shashi Prakash Ravi for the appellant and Sri S.D. Ojha appearing for the claimant - respondent.
2. By means of this appeal, the appellant challenges the order dated 24.9.2004 passed by Motor Accident Claims Tribunal, Azamgarh, in Motor Accident Claim Petition No.153 of 1998 awarding a sum of Rs.1,74,000/- along with 6% interest.
3. The facts in brief is that on 20.10.1997 at about 03.30 to 04.00 p.m. the deceased was travelling in Maruti Car No.USR-3053 and when the said car reached near the village Kasarwal on Khalilabad Gorakhpur Road, a bus came from the opposite direction and came on its wrong side and dashed with Maruti Car causing death of the deceased, who was travelling with other persons in the Maruti car they were returning after attending the weekly fare from selling the cloths from Khalilabad. The bus came on the wrong side and caused the accident whereby the persons travelling in Maruti got injured. They all were admitted in hospital in Gorakhpur where on the next date Vikas Agrawal succumbed to the injuries.
4. The deceased was unmarried person and was earning Rs.3,500/- per month. The claimant had claimed a sum of Rs.19,63,200/- with interest. The claimant filed a claim petition, which was opposed by UPSRTC. The opponent filed the written statement that the bus was never involved in the accident and have disputed the involvement of the bus in question and in the second breath, they have mentioned that the bus was being driven as per the rules and the claimant had cooked up a story and that the Insurance company of the Maruti car was not made a party, therefore, it suffers from vice of non-joinder of parties. The Tribunal raised the following issues:-
(i) Whether the accident occurred due to the driver of the bus driving UP78B5891:
(ii) Whether the claim petition suffers from non-joinder of parties and what is the effect;
(iii) Whether the claimant was entitled to any compensation if yet how much and from whom.
All the three issues were decided by the Tribunal against the appellant herein.
5. Recently the Apex Court in Sudarsan Puhan Vs. Jayanta Ku. Mohanty and another etc., AIR 2018 SC 4662, and in the case of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, has held that as appeal is continuation of the earlier proceedings, High Court is under legal obligation to decide all the issues of lis and decide it by giving reasons.
6. The UPSRTC as usual has taken the first ground that the bus was not involved and in the alternative it has been submitted that it was a driver of Maruti Car who was negligent. It is also submitted that the compensation awarded is on the higher side and the apportionment must be there.
7. The counsel for the respondent Sri S.D. Ojha has submitted that the Tribunal has by cogent reasons and after discussing the ratios laid down by different courts and fact that the bus of the roadways was being driven rashly and negligently. It is submitted that even if this Court upturns the finding, the deceased not being the driver of the vehicle can claim from any of the tortfeasors.
8. It is submitted by Sri Ojha, learned counsel for the claimant, that in the light of the judgements of this Court and of the Apex Court in the case of Shivawwa and another Vs. Branch Manager, National Insurance Co. Ltd. and another, AIR 2018 SC 1640, and in National Insurance Company Ltd. Vs. Smt. Vidyawati Devi and 2 others, FAFO No.2389 of 2016, decided on 27.7.2016, and has therefore requested this Court to dismiss the appeal and enhance the compensation in light of the decisions of the Apex Court regarding entitlement of the claimants as he need not file cross-objection as held by this Court.
9. The factual data would have to be first analyze as per the findings given by the Tribunal. The claimants have examined four eye-witnesses, who were travelling in the Maruti Car and had sustained injuries namely PW1-Krishna Murari Agrawal, PW2-Suraj, PW3-Samarnath Prasad Chachdudashi and PW4-Krishna Gopal Agrawal. The documentary evidence produced vide a list 30-Ga. 31-Ga is death certificate given by the hospital, 32-Ga and 33-Ga are the F.I.R. and the 34-Ga is the Chick F.I.R., 33-G is the site plan and 37-G is the chargesheet. There were other 3 claim petitions also filed.
10. The respondent - appellant herein examined the driver and conductor of the roadways as DW1 and DW2. In light of the oral testimony and the documentary evidence the submission that it is a case of contributory negligence and non involvement of the bus in the claim petition would have to be looked into. The FIR and chargesheet show the number of the bus. The submission that the bus had started from Deoria to Kanpur at about 01.00 p.m. and in no way it could be involved in the accident. The Tribunal has considered the oral evidence of the injured eye-witnesses and has concluded that the driver of the bus and the conductor were not telling the truth. They have tried to take the defence of non-involvement by showing the difference in timings just because there is slight variations in the timing such an excuse and defence cannot stand scrutiny of the defence. The said fact has been disbelieved that the bus was being driven on that route and only because there variation in time, it cannot be said that the bus was not involved. The theory of driver that the vehicle was not involved was proved to the contrary. Therefore, when the FIR and Chargesheet bore the name of the driver and also the number of the bus, no fault can be found in the finding of the Tribunal that the bus was not involved in the accident. This take this Court to the issue of negligence.
11. The submission that the bus was not involved having been held against the appellant - UPSRTC, the next ground is regarding non-joinder of necessary parties. The Tribunal has held that there is no negligence of the driver of the bus and, therefore, the question of joining the driver and owner of the bus does not arise and has held that when the driver of the Maruti was not held to be negligence whether driver, owner was joined or not makes no difference.
12. However, as a ground is raised that the Tribunal had not given its finding and that the driver of the Maruti was also negligent, hence that submission will have to be considered in the light of the evidence recorded.
13. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
14. 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.
15. 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."
16. 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."
17. 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 benefitted. 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.
18. 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.
19. The evidence of PW1, PW2, PW3 and PW4 couple with the FIR and Chargesheet which goes to show that the Maruti car met with the accident when the bus of the roadways went on the right side and dashed with the Maruti Car. The trappings of civil proceedings would not apply ipso facto. The bus driver not only gave false evidence but later on even accepted that the police report was filed because of the difference of time and the bus was driven in rash and negligent manner and the driver of the Car took all the caution to avoid the accident whereas the bus driver who was driving the bigger vehicle was under an obligation to take proper care while driving and, therefore, in light of the aforesaid judgments, no fault can be found in the finding of the Tribunal.
20. This takes this Court to the challenge to the compensation. The Tribunal has considered the award of compensation in the following manner.
21. That the claimant contended that he was earning Rs.200/- per day which Rs.6,000/- per month. The deceased was in the business of wholesale cloths. However, none of them have produced any documentary evidence. The Tribunal considered his income to be Rs.15,000/- per year and deducted 1/3rd and granted multiplier of 17 and added Rs.2,000/- toward funeral charges and Rs.2,000/- for medical expenses as he was admitted in the hospital. This has been assailed both by the claimant as well as the owner.
22. It is submitted by the learned counsel for the UPSRTC that the deceased was unmarried and, therefore, his personal expenses should have been 1/2 and not 1/3rd. The learned counsel for the respondent - claimant has submitted that the income has been considered on the lower side. The rate of interest at 6% cannot be sustained in view of the latest decision of the Apex Court in Anant Vs. Pratap, 2018 ACJ 2773 and Magma General Insurance Company Ltd. Vs. Nanu Ram, 2018 ACJ 2782. Going through the judgment it is clear that the Tribunal has been over conservative and the Tribunal has not awarded any amount under the head of future income of a young person and also has not awarded any amount under filial consortium.
23. While considering the oral objection, this Court is obliged to decide the quantum on the touchstone of the decision in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 and National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014, decided on 31.10.2017, even if we consider that the income was Rs.15,000/- per annum the half would come to Rs.7,500/- multiplied by 17, which would come to Rs.1,27,500/-. However, the multiple would be of 18 and to which 40% will have to be added, which would be around Rs.50,000/- as compensation and to which filial consortium and the other non-pecuniary amount will have to be also granted hence an amount of Rs.50,000/- requires to be added. This exercise is undertaken in view of the settled legal position enunciated in Mahant Dhangir and another Vs. Madan Mohan and others, 1987 (Supp) SCC 528, Jitendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others, 2015 (1) TAC 673 (SC), New India Assurance Company Ltd. Vs. Resha Devi and others, 2017 (2) AICC 1808, and Surendra Singh and another Vs. Vijay Singh and others, 2018 (3) TAC 226 (All.).
24. The appeal of UPSRTC is dismissed. The judgment of Tribunal is modified on oral objection by the claimant and an additional sum of Rs.50,000/- is ordered to be paid by the UPSRTC with 9% rate of interest. The amount awarded by the Tribunal remains to be paid with 9% rate of interest if yet not deposited.
25. This Court is thankful to Sri Shashi Prakash Ravi, who has vehemently argued the matter and Sri S.D. Ojha appearing for the claimant.
Order Date :- 5.2.2019 Irshad