Allahabad High Court
Smt. Sarita Sharma And Anr. vs Mohd. Usman And 3 Others on 10 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1164 of 2015 Appellant :- Smt. Sarita Sharma And Anr. Respondent :- Mohd. Usman And 3 Others Counsel for Appellant :- Neeharika Sinha Narayana,Vivek Saran Counsel for Respondent :- Nishant Mehrotra And Case :- FIRST APPEAL FROM ORDER No. - 1053 of 2015 Appellant :- Shriram General Insurance Co. Ltd. Respondent :- Smt. Sarita Sharma And 4 Others Counsel for Appellant :- Nishant Mehrotra Counsel for Respondent :- Vivek Saran,Neeharika Sinha Narayana Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral Judgment by Hon'ble Ajai Tyagi, J.)
1. These two appeals have been preferred against the same judgment and award dated 07.03.2015 passed by Motor Accident Claims Tribunal/Special Juede (E.C.), Act, Ghaziabad (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 264 of 2012 (Smt. Sarita Sharma and another Vs. Mohammad Usman and others), whereby the claim petition of the claimants was allowed and awarded a sum of Rs.34,50,000/- as compensation to the claimants with interest at the rate of 6% per annum. Learned Tribunal also held contributory negligence to the tune of 50% each of the drivers, involved in the accident.
2. The claimants have preferred an appeal bearing no. F.A.F.O. No. 1164 of 2015 for enhancement of compensation and setting aside the part of contributory negligence on the part of the deceased/driver of the car, whereas, the Insurance Company of the truck preferred an appeal bearing no. F.A.F.O. No.1053 of 2015, mainly on the ground that the truck in question was not involved in accident and if not so, the deceased was the major contributor to the accident.
3. Heard Mr. Vivek Saran, learned counsel for the appellants-claimants and Mr. Nishant Mehrotra, learned counsel for the Insurance Company-respondents. Perused the record.
4. Brief facts of the case are that claim petition was filed by claimants on account of death of Mr. Vimal Kaushik (husband of appellant-claimant no.1), who died in road accident no 10.04.2011. It is averred in claim petition that on 10.04.2011 at about 2:30 AM (night), deceased Vimal Kaushik was coming from Merrut to Ghaziabad in his car bearing no. U.P. 14 BH 1232. Leaving the Merrut road, when he turned to Hapur road and crossed the flyover a truck bearing no. H.R 38 G 1780, which was being driven very rashly and negligently by its driver, came from opposite direction and hit the car of the deceased. In this accident, husband of claimant no.1 was badly injured and died on the way to the District Hospital Ghaziabad. Accident was reported in police station Kavinagar, District Ghaziabad on the same day by brother of the deceased.
5. Learned counsel for the appellants-claimants has submitted that learned Tribunal has held deceased's guilty of 50% contributory negligence in the accident but the plea of contributory negligence was neither pleaded nor proved. Plea of contributory negligence was not proved by any of the parties to the claim petition. Apart from it, there is no evidence on record, to show or prove that deceased was contributor to the accident. It is further submitted that deceased was on correct side of the road while the truck was on the wrong side. At the site of the accident, there is divider on the road. The driver of the truck came on the same road on which deceased was coming which was left side of the road of the car. In fact, the truck should have gone across the divider but to make short-cut, the truck came on the wrong side of the divider and hit the car of the deceased.
6. In this way, the truck driver was solely negligent but learned Tribunal erroneously held the deceased's guilty also to the tune of 50% for contributory negligence. Site plan, prepared by Investigating Officer also shows that the truck was being driven on the wrong side of the divider of the road.
7. Learned counsel for the claimants has also submitted that learned Tribunal has given finding that there was night at the time of accident and head light of the truck must have been visible to the deceased from a certain distance, hence, he had an opportunity to avoid the accident but due to high speed he could not avoid the accident. This finding is perverse and based on surmises and conjectures only.
8. Learned counsel for the claimants contended that there is no evidence on record that deceased was driving the car in rash and negligent manner and there is no evidence at all that he was driving at a high speed yet the learned Tribunal held him guilty for negligence. Moreover, there is no basis on which learned Tribunal has fixed the percentage of negligence of both the drivers. It is next argued that the compensation is calculated on the lower side, deceased was professor in a Degree College. His pay structure is duly proved by the accountant of the collage but learned Tribunal has deducted the component of House Rent Allowance and City Compensatory Allowance from the salary of the deceased, which was duly payable to him.
9. Per contra, learned counsel for the Insurance Company has vehemently objected the arguments advanced by the claimants and submitted that the involvement of the truck is not proved by the claimants because the F.I.R. of the accident was lodged by brother of the deceased against unknown truck. Truck number is also not mentioned in F.I.R. and later on with the collusion of the truck owner, it was impleaded in the accident for making unlawful gain to the claimants.
10. Learned counsel for the Insurance Company has also submitted that there is no evidence on record that truck driver was driving rashly and negligently at the time of accident. The manner by which the accident took place is only the result of imagination of the learned Tribunal. If at all the accident happened, it was on account of sole negligence on the part of the deceased or he was the major contributor. Presence of so called eye witnesses is completely doubtful on the spot. In site plan also no truck number is mentioned by the Investigating Officer. Moreover, brother of the deceased, who lodged the F.I.R., was not produced in evidence which weakens the claimants' case to the great extent and it was proved that he had not seen the incident.
11. It is further submitted by learned counsel for the Insurance Company that as far as the quantum of compensation is concerned, it is already fixed on the higher side, which needs no interference by this Court.
12. Apart from the issue of quantum of compensation, there are two main issues in both appeals; one issue relates to the involvement of the truck in question in the accident and second issue relates to contributory negligence on the part of the drivers of both the vehicles involved.
13. As far as the involvement of truck is in question, learned counsel for the Insurance Company has taken plea before us that truck in question was not involved in accident because no truck number is mentioned in the F.I.R. and during the investigation also. I.O. did not mention any truck number in site plan.
14. We are not convinced with the arguments of Insurance Company in this regard, because the accident had taken place in the night of 10.04.2011 at 2:30 AM and the F.I.R. was lodged at 07:05 AM on the same day i.e. after four and half hours of the incident. Hence, there was no opportunity for claimants to plant a wrong vehicle in the accident, in such a short-time that too in the dark hours of the night because it is very important and pertinent to mention that F.I.R. does not say that unknown vehicle hit the car but it says that unknown truck hit the car, hence it is established in F.I.R. that the vehicle which caused the accident was truck. If truck number is not mentioned in F.I.R. it does not weaken the case of claimants because in the dark night it was not expected by anybody to note the truck number when it is admitted case that truck was not caught on the spot and it ran away from the spot after causing the accident. It is not disputed that both the vehicles dashed in each other from opposite direction because the technical inspection report of the car shows all damages in front side of the car.
15. The Hon'ble Supreme Court in the case of Anita Sharma and Others Vs. The New India Assurance Co. Ltd. and Another, 2020 (0) Supreme (SC) 704 has held that learned Tribunal is not required to adopt the standard of proof as is adopted in criminal trials. Learned Tribunal is required to decide the claim petitions on touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. In such matters, learned Tribunal should take holistic view of the matter on the basis of evidence available on record. Learned Tribunal has rightly concluded that truck in question was involved in the accident, hence, on this point we confirm the finding of learned Tribunal.
16. Now, we come to the controversy of negligence in the matter. Let us consider the negligence from the perspective of the law laid down.
17. 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.
18. The principle of 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.
19. 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 (section 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."
(Emphasis added )
20. Learned Tribunal has held that in the said incident, the truck was coming on wrong side of the divider. At the time of accident, it was found on the road, which was correct side of the road, for truck and the car was on correct side of the divider. But the learned Tribunal held that although the truck was on the wrong side of the divider yet due to the night, head lights of the truck were on and were visible to the deceased from a certain distance but due to high speed of the car, the deceased could not save the accident. Hence, truck driver and the deceased were held negligent to the tune of 50% each.
21. After analyzing the evidence on record, it is not in dispute that at the time of accident, truck was on the wrong side of the divider and the car was on correct side of the divider. Site plan, which was prepared by I.O. during the investigation, shows that accident took place at the point shown by letter "A", which is absolutely very near of speed breaker, hence, it was expected from the deceased also that the speed of the car should have been very moderate due to presence of speed breaker, yet the impact of the accident was so high that it took away the life of the deceased. But we are not convinced to concur with the aforementioned finding and degree of percentage holding the deceased to be negligent to the tune of 50%.
22. Further it is very important to note that the truck driver has not stepped in the witness-box, hence, claimants could not get opportunity to cross-examine the driver on the factum of accident, which could elicit the truth because in this case, unfortunately, the car driver lost his life and truck driver has not stepped in witness-box, hence, only circumstances remain before the learned Tribunal and this Court to ascertain the degree of contributory negligence on the part of each of the drivers. It is jurisprudence of law that cross-examination is an acid test of the truthfulness of the statement made by a witness but truck driver is not produced in evidence, hence, claimants lost the opportunity to elicit the truth from the best witness namely driver of the truck.
23. On the basis of discussions made above, we are of considered opinion that truck driver even if he was not solely responsible for the accident, was the major contributor to the accident. He is the main author of the accident, yet we cannot shut our eyes to the fact that deceased was also driving the car at a high speed at the time of accident because in spite of there being a speed breaker very near to the accident site, the deceased was not able to reduce the impact of the accident. Had he been driving at a moderate speed due to approaching the speed breaker, impact of accident could have been much lesser. Hence, we set aside the finding of learned Tribunal with regard to the degree of percentage of contributory negligence on the part of the each of the drivers of the vehicles involved to the tune of 50% each and instead we fix the contributory negligence of truck driver to the tune of 80% and contributory negligence of the deceased to the tune of 20%.
Compensation:-
24. The question of quantum of compensation has to be reevaluated. The deceased was professor in a degree college in Ghazibad, his salary certificate is produced on record, which is duly proved by the concerned employee of the college by entering in witness-box before the learned Tribunal. As per the salary certificate, after deduction of income tax etc., the deceased was getting Rs.63,734/- as salary. He was also getting Rs.3,00/- as city compensatory allowance and Rs.6960/- as house rent allowance. These allowances were deducted bythe learned Tribunal from the salary and assessed the salary for computation at Rs.54,474/-.
25. In our opinion, city compensatory allowance and house rent allowance are not deductable component from the salary because these are allowance, which were used for the benefit of family also. Salary certificate of the deceased is on record, which shows that gross salary of the deceased was Rs.78,658/- deduction for provident fund/G.P.F. of Rs.4924 and income tax of Rs.10,000/- are shown in salary certificate. In our opinion deduction towards Provident Fund/G.P.F. is made from salary, hence, it is to be included in the salary for the purpose of computation. Only the income tax of Rs.10,000/- shall be deducted from gross salary. Hence, for the purpose of computation of salary, the income will be assessed Rs. 78,658-10,000 = Rs.68,658 and learned Tribunal has not awarded any sum towards future loss of income. The learned counsel for the appellant has also relied on the decision in Vimal Kanwar and Others Vs. Kishore An and Others, 2013 (3) T.A.C. 6 (SC).
26. According to the judgment of the Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613 and National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, due to being employed and being of 40 ½ years of age, 30% shall be added towards future loss of income to the income of the deceased as per the aforesaid decisions.
27. As far as the dependency is concerned, there are two dependents of the deceased. Keeping in view the number of dependents, 1/3rd of the income shall be deducted for personal expenses. Learned Tribunal has applied multiplier of 15 for which there is no dispute. Under the non pecuniary head, claimants-appellants shall be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Apart from it, claimants shall also be entitled to get Rs.40,000/- + 40,000/- for loss of consortium. In this way, claimants shall get Rs.1,10,000/- under the head of non pecuniary damages as per the judgment of Hon'ble Apex Court in Pranay Sethi (Supra).
28. Hence, the total compensation payable to the claimants appellants are computed herein below:
(i) Annual income Rs.68,658 X 12 = Rs. 8,23,896/- Per annum.
(ii) Percentage towards future prospects : 30%. Rs.2,47,168/-
(iii) Total income : Rs.8,23,896 + 2,47,168/- = Rs.10,71,064/-
(iv) Income after deduction of 1/3rd:Rs.10,71,064-3,57,021/-= Rs.7,14,043
(v) Multiplier applicable : 15
(vi) Loss of dependency : Rs.7,14,043 X 15 = Rs.1,07,10,645/-
(vii) Amount under non pecuniary head : Rs.1,10,000/-
(viii) Total compensation: Rs.1,07,10,645/- + 1,10,000/- = Rs. 1,08,20,645/-
(ix)Amount after 20% deduction towards contributory negligence : Rs.1,08,20,645 - 21,64,129/- = Rs. 86,56,516/-
29. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under:
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
30. Learned Tribunal has awarded rate of interest as 6% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.
31. In view of the above, the appeal preferred by the claimants bearing F.A.F.O. 1164 of 2015 is partly allowed. The appeal preferred by the Insurance company bearing F.A.F.O. No. 1053 of 2015 is, accordingly, dismissed. Judgment and award passed by the learned Tribunal shall stand modified to the aforesaid extent. The respondent- Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
32. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.
Order Date :- 10.03.2022 P.S.Parihar (Hon'ble Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)