Allahabad High Court
Gopi Charan vs Smt. Rekha Dwivedi And Another on 4 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. 1176 of 2007 Appellant :- Gopi Charan Respondent :- Smt. Rekha Dwivedi And Another Counsel for Appellant :- A. Chaturvedi AND Case :- FIRST APPEAL FROM ORDER No. - 1177 of 2007 Appellant :- Gopi Charan Respondent :- Smt. Rekha Dwivedi And Another Counsel for Appellant :- A. Chaturvedi Counsel for Respondent :- Sushil Kumar Mehrotra AND Case :- FIRST APPEAL FROM ORDER No. - 1179 of 2007 Appellant :- Gopi Charan Respondent :- Smt. Rekha Dwivedi And Another Counsel for Appellant :- A. Chaturvedi Counsel for Respondent :- Sushil Kumar Mehrotra **** Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Heard Sri Anurudh Chaturvedi, learned counsel for the appellant, Sri S.K. Mehrotra, learned counsel for the respondent-Insurance Company and perused the record. None appears for the owner or driver of offending vehicle.
2. These appeals, under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as ''Act'), are preferred at the behest of the claimant challenging the judgment and award dated 12.01.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Kanpur Dehat (hereinafter referred to as 'Tribunal') in M.A.C.P. Nos.398/2005, 399/2005 and 400/2005 (the Tribunal has passed separate awards).
3. The challenge to the decision regarding negligence of deceased and compensation for the death of two children of the appellant and his wife in the road accident which occurred on the fateful day are the twin issues posed for our decision. The finding of Tribunal about liability of insurance company has attained finality and there is no dispute about the same. The accident having caused death of three persons is not in dispute. The involvement of two vehicles is not in dispute. The age of deceased is also not in dispute before us.
4. The parties are referred to as claimant/appellant and the respondent/Insurance company.
5. The Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court.
6. The issues before us are to decide the twin issues posed for our consideration namely (1) Whether deceased driving motorcycle had contributed to the accident having taken place and, therefore, the deduction of the compensation for death of all three by the Tribunal is justified or not? (2) (a) The quantum of compensation awarded requires any re-computation (b) Whether percentage of interest granted requires interference by this Court or not?
7. The brief facts as culled out from record and necessary for our purpose are that on 17.5.2005 at about 4:30 p.m. elder son of appellant along with his mother and younger brother aged 6 were going from their house to Bangarmau by motorcycle, bearing no.UP70AU-2377. The deceased along with his mother and younger brother was plying his motorcycle and when he reached near Udaipur crossing in the district Kanpur Nagar, Tata Jeep, bearing no.UP77C-3262 came from opposite direction which was being driven by its driver rashly and negligently and dashed with the motorcycle and caused the accident, 3 persons scummed to the injuries sustained due to the accident and died on the spot. The claimant, who is father of two deceased and husband of third, filed claim petition. Owner of the Jeep and its Insurance company filed their respective written statements which were of denial.
8. The claimant examined himself as PW1. The documentary evidence was filed and proved so as to prove that accident occurred due to rash and negligent driving of Jeep driver. The Tribunal after framing issues and on conclusion of evidence returned the finding that as there was head on collision, both were equally negligent.
9. The appeal, being appeal no.1176 of 2007, pertains to the death of younger son of the appellant Avanish whose age was between 6 - 7 years at the time of accident. Learned Tribunal has considered contributory negligence of driver of the offending Jeep and motorcycle to the tune of 50% each. The Tribunal awarded Rs. 2,25,000/- but deducted 1/2 from the calculated compensation and ultimately has awarded Rs. 1,14,500/- as compensation. The deduction of 1/2 or 50% was on account of contributory negligence of the driver of the motorcycle. These two aspects are under challenge. The appeal no.1177 of 2007 relates to wife of appellant and appeal no.1179 of 2007 is preferred by the father of the deceased, who was driving the vehicle.
10. Learned Counsel for the appellant submitted that there were three deaths in the accident. The deceased was younger brother of the driver of motorcycle. The minor child was pillion rider and he had not contributed to the accident having taken place, hence, there was no justification for deduction of 50% compensation to be granted to claimant by the Tribunal. It was not a case of contributory negligence qua deceased child. It is next submitted by the learned Counsel that the Tribunal has not awarded any sum for love and affection and mental agony to the appellant/claimant, who was the father of the child. The mother of the deceased was also not a contributory to the accident having taken place qua her, it was a case of composite negligence despite that the Tribunal deducted 50% from the compensation awarded which, according to the learned Counsel for the appellant, is bad in the eye of law.
11. Learned Counsel also submitted that the Tribunal has directed that no interest shall be paid if payment of compensation is made by the Insurance company within 2 months from the date of award and in case if the same is not deposited within 2 months, then the appellant would be entitled to 6% interest from the date of filing of claim petition. Learned Counsel submitted that 18% interest should have been awarded and this conditional order is against the mandate of Section 171 of the Act and the said direction requires to be modified.
12. Learned Counsel for the Insurance company in F.A.F.O. No.1176 of 2007 vehemently objected to the submission advanced by the Counsel for appellant and submitted that the deceased was a child of 7 years of age and he was not earning member. It is further submitted that the Tribunal has rightly assessed his notional annual income at Rs. 15,000/- per years and damages for funeral expenses are also granted by the Tribunal. Learned Counsel submitted that as per II Schedule of Act, the Tribunal has calculated just compensation which does not call for any interference by this Court.
13. The learned Counsel for appellant has submitted that learned Tribunal has lost total sight of the fact that it was not a case of contributory negligence qua 2 persons. As far as the younger son and wife of appellant are concerned, it was a case of composite negligence and not contributory negligence.
14. It is further submitted by the learned Counsel for Insurance Company that In this case, it is an admitted position of fact that there was collusion between motorcycle and Jeep. It is further submitted that learned Tribunal has fixed contributory negligence of both the drivers to the tune of 50% each. It is not in dispute that the deceased child and mother were pillion riders on the motorcycle. They were not driving the motorcycle yet the Tribunal deducted 50% amount from total compensation payable, which is not bad and not against the principles of composite negligence.
15. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.
FINDINGS ON ISSUE OF NEGLIGENCE
16. The term negligence means failure to exercise care towards others, which a reasonable and prudent person would in a circumstance or take action which such a reasonable person would not. Negligence can be both intentional or accidental though it is normally accidental. More particularly, it connotes reckless driving and the injured or the claimants namely legal representative of deceased 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.
17. The principle of contributory negligence has been discussed time and again. A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.
18. Reference to certain judicial precedents would make things clear. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
19. If we uphold the finding of negligence of the deceased in those circumstances, the judgment of Khenyie (infra) will have to be interpreted in a different manner. It was the wife, who was riding on the back as pillion and she sustained fatal injuries. It is husband of the deceased, who is entitled to the claim as he is the sole survivor. It has not been brought on record whether the motorcycle owned by the deceased or his father namely the claimant-appellant, then as per the judgment of Khenyie, no doubt it is the right of the claimant to claim any of the tortfeasors, who were the tortfeasors, would be the rider of the motorcycle and, therefore, the Insurance company cannot be directed to recover from the said tortfeasor and, therefore, the amount has to be deducted from available corpus.
20. The extent of the share of the husband should be deducted. However, this would depend on the fact whether we hold the deceased liable for contributory negligence or not. We are fortified by our view in the case of Patel Roadways and another Vs. Manish Chhotalal Thakkar and others, 2001 ACJ 180, and decision of the Gujarat High Court in United India Insurance Company Ltd. Vs. Kiritikumar Tulsibhai Patel, First Appeal No.1450 of 2016, decided on 1.9.2016.
21. As we are even concerned as to whether qua the death of two pillion riders whether deduction is proper or not reference to case titled Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469, is necessary wherein the Apex Court has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
22. The decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/ contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care.
23. The Hon'ble Supreme Court in K. Anusha Vs. Regional Manager, Shriram General Insurance Co. Ltd., 2021 (4) TAC 341, has observed that mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence.
24. Reference to the decision of the Apex Court in Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143, can be made wherein the finding of the Tribunal was upheld by Apex Court holding that driver of scooter was not negligent. The findings are verbatim referred as they are very important for our purpose would be very relevant for our purpose so as to decide whether driver of motor cycle has been rightly held to be negligent to the tune of 50%:
"5.The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidence, including the site map (Ext. P-45) produced on record along with charge-sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered Issue 1 against the respondents in the following words:
"21. Our own Hon'ble High Court in a case captioned Lakhu Singh v. Uday Singh [Lakhu Singh v. Uday Singh, 2007 SCC OnLine P&H 865 : PLR (2007) 4 P&H 507] held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata v. Satbir [Kusum Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2 SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2 RCR (Civil) 379] the Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
22. After considering the submissions made by both the parties, I find that PW 7 Sohan Lal eyewitness to the occurrence has specifically stated in his affidavit Ext. PW 7/A tendered in his evidence that on 15-12-2011 at about 20.30 p.m. he along with PHG Ajit Singh was present near Sanjha Chulha Dhaba on the National Highway leading to Jammu. All the traffic of road was diverted on the eastern side of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bearing No. HR 02 K 0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car could not spot the parked tanker due to the flashlights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or parking lights.
23. The statement of this witness clearly establishes that this was the sole negligence on the part of the driver of the Gas Tanker especially when the accident was caused on 15-12-2011 that too at about 10.30 p.m. which is generally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreover, as per Rule 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road.
24. The arguments of the learned counsel for the respondent that PW 7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 ft from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so Respondent 1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the Gas Tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flashlights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in night-time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held inGinni Devi case [Ginni Devi v. Union of India, 2007 SCC OnLine P&H 126 : 2008 ACJ 1572] , Mohan Lal case [New India Assurance Co. Ltd. v. Mohan Lal, 2006 SCC OnLine All 459 : (2007) 1 ACC 785 (All)] . It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the backside of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of the learned counsel for Respondent 3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Harbans Kaur case [New India Assurance Co. Ltd. v. Harbans Kaur, 2010 SCC OnLine P&H 7441 : (2010) 4 PLR 422 (P&H)] and T.M. Chayapathi case [New India Assurance Co. Ltd. v. T.M. Chayapathi, 2004 SCC OnLine AP 484 : (2005) 4 ACC 61] is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the present case. Likewise, non-examination of minor children of the age of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eyewitness to the occurrence has proved the accident having been caused by the negligence of Respondent 1 driver of the offending vehicle.
25. Moreover, in Girdhari Lal v. Radhey Shyam [Girdhari Lal v. Radhey Shyam, 1993 SCC OnLine P&H 194 : PLR (1993) 104 P&H 109] , Sudama Devi v. Kewal Ram [Sudama Devi v.Kewal Ram, 2007 SCC OnLine P&H 1208 : PLR (2008) 149 P&H 444] andPazhaniammal case [New India Assurance Co. Ltd. v. Pazhaniammal, 2011 SCC OnLine Ker 1881 : 2012 ACJ 1370] our own Hon'ble High Court has held that ''it is, prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.'
26. Moreover, Respondent 1 driver of the offending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am inclined to draw an adverse inference against Respondent 1. In this context, I draw support from a judgment of the Hon'ble Punjab & Haryana High Court reported asBhagwani Devi v. Krishan Kumar Saini[Bhagwani Devi v. Krishan Kumar Saini, 1986 SCC OnLine P&H 274 : 1986 ACJ 331] . Moreover, Respondent 1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that Respondent 1 has been falsely implicated in this case.
27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by Respondent 1 by parking the offending vehicle bearing No. HR 02 AF 8590 in the middle of the road in a negligent manner wherein Vinod Saini and Smt Mamta Saini have died and claimants Archit Saini and Gauri Saini have received injuries on their person. Shri Vinod Saini, deceased who was driving ill-fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in favour of claimants."
(emphasis supplied)"
25. We are fortified in our view by the judgment of the Apex Court in Mohammad Siddique and another Vs. National Insurance Company Limited and others, 2020 (3) SCC 57, wherein it has been held that two pillion riders did not mean that the rider has contributed in the accident. In our case, if we see the site map, it is clear that the vehicle of the deceased did not meet with the accident because the minor child was accompanying the deceased as a pillion on the vehicle. The accident cannot be said to have occurred because of negligence of the rider of two vehicles. The mother, who was riding on the bike as pillion, sustained injuries. Her husband is entitled to compensation as he is class II heir and as we upturn the finding of fact as far as negligence is concerned, non-joinder of the owner and deduction of the amount does not arise. The motorcyclist was not negligent which is proved by (a) oral testimony (b) F.I.R. (c) Site Plan (d) Chargesheet (e) evidence by best witness i.e. driver of Car if Car was a bigger vehicle (g) strayed from its path came and dashed with motorcycle which was driven on its correct side.
26. The appellant has examined himself. He was not an eye witness. PW2 - Sarvesh Kumar is the person, who has lodged the F.I.R. The chargesheet was led against the driver of Tata Spacio and PW-2 in his oral testimony has categorically mentioned that the accident occurred due to rash and negligent driving of Tata Spacio. The Tribunal has relied on the decision of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, 2006 (1) TAC 969, so as to come to the conclusion that as the accident occurred and as it was a head-on-collision, both the drivers are held to be equally negligent. The learned Tribunal has not given any cogent reason as to why it held both the drivers to be equally negligent. One of the reasons given is that the vehicle was carrying more persons than its capacity of sitting.
27. While going through the F.I.R., the chick F.I.R. and Chargesheet of the site plan, it is clear that the accident did not occur because the vehicle was having three persons but, it was because of the tata scorpio which was being plied on the same direction, came and dashed the motorcyclist from behind. It is cardinal principle that the vehicle which is being driven should show more care and caution. The driver and owner of the Car tata spacio have not stepped into the witness box. Having a minor child on the motorcycle was itself not a cause of the accident. This finding of fact by the Tribunal is absurd. This takes us what was the negligence of the motorcycle. He stayed trying to save the dash from another vehicle and from truck.
28. The factual scenario in this case goes to show that the deceased pillion riders were not at all responsible for the accident in question and it was a case of composite negligence qua them. In case of composite negligence, the claimant is entitled to seek compensation either from the driver of both the vehicles or he may seek entire compensation from any of the drivers because in case of composite negligence, the liability is joint and several. Hence, we upturn the finding of the learned Tribunal regarding contributory negligence as far as the petition regarding the death of pillion riders is concerned.
29. This takes us to the issue of quantum of compensation and directions for grant of interest which are as under:
FIRST APPEAL FROM ORDER NO.1176/2007
30. As far as deceased-Avanish is concerned, he was minor and the Tribunal has considered Rs.2,25,000/- as compensation which is just proper even in view of the decision in Manju Devi's case, 2005 (1) TAC 609 = 2005 AICC 208 (SC) of this High Court. The claimant would be entitled to Rs.2,25,000/- with interest.
FIRST APPEAL FROM ORDER NO.1177/2007
31. As far as deceased-Savitri is concerned. The Tribunal has considered the notional income of deceased at Rs.3000/- per month in view of the decisions of the Apex Court and High Courts, we are also of the considered view that the notional income of the deceased can be assumed at Rs. 3,000/- per month as the deceased was house wife and accident took place in 2005. To which, 40% should be added towards future loss of income. The multiplier applicable would be 15 in view of the decision in Sarla Verma (supra). Deduction of 1/3rd towards personal expenses decided by Tribunal is just and proper. Further, the appellant is also entitled to a sum of Rs. 40,000/- for filial consortium for loss of wife and Rs. 15,000/- for funeral expenses. Hence, the appellant is entitled to following amount towards compensation:-
i. Monthly Income Rs. 3,000/-
ii. Percentage towards future prospects : 40 % namely Rs.1200/-
iii. Total income : Rs. 3000 + 1200 = Rs. 4200/-
iv. Income after deduction of 1/3rd: Rs. 2800/-
v. Annual income : Rs.2800 x 12 = Rs.33,600/-
vi. Multiplier applicable : 15 vii. Loss of dependency: Rs.33,600 x 15 = Rs. 5,04,000/-
viii. Amount under non pecuniary heads : Rs.40,000 + 15,000 = Rs.55,000/-
ix. Total compensation : Rs. 5,59,000/-
32. The claimant would be entitled to Rs.5,59,000/- with interest as decided herein after.
FIRST APPEAL FROM ORDER NO.1179/2007
33. As far as deceased-Manish Singh is concerned, the deceased was 24 years of age and was an Engineer in Infosys Technologies Ltd. Bangalore and was earning Rs. 38,778/- per month. The Tribunal has considered his income to be Rs. 8,470/-.
34. The income of the deceased was to be assessed as Rs.38,778/- per month and deduct 20% (as Income Tax from the same and other deductible allowances). We consider allowable amount for grant of compensation to be Rs.30,000/- (round figure) per month. To which 50% will have to be added towards future loss of income as he was salaried person in view of U.P. Motor Vehicles Rules 2011 amended and decision of Pranay Sethi. The deduction towards personal expenses would be 1/2 instead of 1/3rd as granted by the Tribunal as the deceased was bachelor. The Tribunal has granted multiplier of 11 considering the age of the parents which is bad and it should be 18 looking to the age of the deceased and in view of the decision in Sarla Verma (Supra) and Munna Lal Jain and another Vs. Vipin Kumar Sharma and others, 2015 (4) AWC 3845 (SC). The claimant would be entitled to Rs.40,000/- towards filial consortium as per the decision in Pranay Sethi (Supra). Hence, the total compensation would be as follows:
i. Monthly Income Rs.30,000/- (rounded up) ii. Percentage towards future prospects : 50% namely Rs.15,000/-
iii. Total income : Rs.30,000+ 15,000 = Rs.45,000/-
iv. Income after deduction of 1/2 : Rs. 22,500/-
v. Annual income : Rs.22,500 x 12 = Rs.2,70,000/-
vi. Multiplier applicable : 18 vii. Loss of dependency: Rs.2,70,000 x 18 = Rs. 48,60,000/-
viii. Amount under non pecuniary heads : Rs.40,000/-
ix. Total compensation : Rs.49,00,000/-
35. We hold that in view of the latest decision of the Apex Court in National Insurance Company Limited Vs. Mannat Zohal and others, 2019 (2) TAC 705 (SC), the appellant shall be entitled to the rate of interest at 7.5% per annum in all the three appeals.
36. In view of the above, all the three appeals are partly allowed. The award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent - Insurance company shall deposit the difference amount within 8 weeks from today with interest @ 7.5% per annum 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.
37. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any.
38. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment shall not be passed by Tribunal as 17 years have elapsed and appellant is in prime of life.
39. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.
40. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
41. Registrar General to circulate a copy of this order with request to the Tribunals to decide matters arising out of same accident by a common judgment and award and not by separate awards which may cause disparity.
42. The claimant-appellant is not an illiterate person and the matters are pending since 2007 before the High Court and since 2005 before the Tribunal, hence, the purpose of keeping the money in Fixed Deposit would not serve any purpose as the amount can be disbursed as per the judgment in Bajaj Allianz General Insurance Company Pvt. Ltd. Vs. Union of India and others, vide order dated 27.1.2022. The appellant may give his accounts detail so that the money can be directly disburse to him as and when the Insurance company deposits the same.
43. We hope this direction would be circulated by Registrar General after obtaining permission from Hon'ble the Chief Justice so that in future the Tribunal will follow this direction of disbursement of amount.
Order Date :- 4.3.2022 Irshad