Allahabad High Court
Anoop Maheshwari vs Shiv Kumar Singh And Others on 7 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. - 3750 of 2009 Appellant :- Anoop Maheshwari Respondent :- Shiv Kumar Singh And Others Counsel for Appellant :- Satya Deo Ojha Counsel for Respondent :- ,Anand Kumar Sinha And Case :- FIRST APPEAL FROM ORDER No. - 299 of 2010 Appellant :- The Oriental Insurance Company Ltd. Respondent :- Anoop Maheshwari And Others Counsel for Appellant :- Anand Kumar Sinha Counsel for Respondent :- Satya Deo Ojha, ,Komal Mehrotra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per Kaushal Jayendra Thaker,J.)
1. Heard Sri Anand Kumar Sinha, learned counsel for the Insurance Company and Sri Satya Deo Ojha, learned counsel assisted by Sri Achintya Kumar, learned counsel for the claimant.
2. Both these appeals have been preferred against the common award dated 23.10.2009 passed by A.D.J., Special Judge (E.C. Act) Varansasi/ Motor Accident Claims Tribunal, Varanasi in Claim Petition No. 206 of 2000 awarding a sum of Rs.13,23,831/- with interest at the rate of 06%.
3. Parties are referred as claimant and Insurance Company for the sake of convenience.
4. Brief facts of the case are that the accident occurred on 09.04.2007 when the claimant/injured was going with his friend Manish Kodiya on Motorcycle No. U.P. 65A. A-4337. The claimant was plying the said motorcycle and when they came near Sigra, a procession was going and at 02:45 p.m. when the claimant reached at Kuber Complex a Truck bearing No. U.P. 70 U-9437 on which L.P.G. Cylinders were loaded, and, the said truck was trying to overtake the vehicle driven by the claimant/injured and while trying to overtake via left without giving any signal took turn towards left side. The driver Awadhesh Kumar- respondent no.2 was driving the truck in rash and negligent manner dashed the vehicle driven by claimant. The claimant/injured was hospitalized in Singh Medical and Research Centre, Teliyabagh and was operated by Dr. Sunil Saran, Orthopedic Surgeon and Dr. Prashant Baranwal, Plastic Surgeon & General Surgeon and was hospitalized from 09.04.2007 to 12.04.2007. Due to the accidental injuries the doctors had to amputate left lower limb right from the thigh region. The claimant was thereafter shifted to New Delhi where he was admitted from 12.04.2007 to 17.05.2007 and thereafter also he was admitted in Jai Prakash Narayan, Apex Trama, Centre, AIMS, Delhi 17.05.2007 to 20.07.2007 and from there he was discharged but despite being discharged till he filed the claim petition and till the evidence was recorded he was under pain and he had suffered disability as opined by the doctors.
5. On notices/summons being issued the respondents appeared and did not accept that the accident occurred due to involvement of the said vehicle. Despite the fact that the charge sheet was laid against the drive of the truck. Respondent no.2 namely Awadhesh Yadav did not appear before the Tribunal. Respondent no.3 Insurance Company appeared and filed reply of denial.
6. The Tribunal framed about 8 issues and decided them mostly in favour of the claimant.
7. The claimant is aggrieved by the compensation awarded, where as the Insurance Company has raised several grounds for challenging the said award. In light of the judgment of the Apex Court reported in U.P.S.R.T.C. Vs. Km. Mamta AIR 2016 (SC) 948, all the issues raised have to be decided by this Court under Section 173 of the Motor Vehicles Act.
8. The grounds by Insurance Company are as follows:-
"(i) The accident was caused by the truck which was carrying L.P.G. Cylinders and it was a heavy Transport Vehicle having weight of 12,000 Kg. as such driver has to possess driving licence for heavy transport vehicle but the driver has only licence for Light Motor Vehicle even without endorsement of licence for transport vehicle.
(ii) The driver has no valid driving licence to drive transport vehicle and owner has committed breach of policy and as such appellant-Insurance Company is not liable to pay compensation.
(iii) The accident was caused on 09.04.2007 and on the date, the driver of vehicle has driving licence to drive L.M.V. and the driver obtained endorsement for driving transport vehicle on 17.04.2007 i.e. after accident taken place.
(iv) The law is settled that endorsement of Transport vehicle is necessary indiscriminately whether the driving licence is for L.M.V. or for H.G.V. whereas the weight of truck is 12,000. Kg.
(v) The claimant/injured was driving Motorcycle and he was also negligent in causing accident.
(vi) The learned Judge gave the finding that the claimant has no independent income but even then wrongly assess the income of Rs.4,500/- per month arbitrarily without any basis or evidence whereas the Schedule provides that if no income is proved only Rs.15,000/- per annum may be presumed for assessing the income.
(vii) The Tribunal has wrongly applied multiplier according to Schedule although the application was filed under Section 166 of M.V. Act and more than Rs.40,000/- per annum income was assessed and Tribunal also fixed more than Rs.40,000/- per annum income of the injured/claimant.
(viii) If the injured was sitting on the shop he can still sit in the shop and there is no loss of any earning.
(ix) As per Schedule of workman compensation Act the injured caused is amount 30% disability but the learned Tribunal assess the disability of 45% contrary to the provisions of statute.
(x) The learned Tribunal wrongly allowed Rs.4,70,000/- for artificial leg and in case the artificial leg is fixed to the injured his disability for earning loss will be reduced and the compensation awarded him is much more excessive.
(xi) The Tribunal wrongly allowed Rs.1,00,000/- for assistant which is not permissible under Schedule.
(xii) The Tribunal wrongly allowed Rs.3,39,926/- for medical expenses and over and above Tribunal further allowed Rs.4,70,000/- for artificial leg and such circumstance compensation for Rs.4,13,100/- is absolutely illegal and unjustified."
9. Heard the learned Advocates for the claimant and Insurance Company. None appears for the Owner or driver of the Truck.
10. In these appeals 3(three) issues arise for our consideration: (i) whether claimant was also negligent and the finding of Tribunal not returning a finding holding him contributor of accident is bad? (ii) Whether the finding that there is no breach of policy is bad. (iii) Whether compensation awarded requires re-computation.
Issue No.1:- Negligence visa vis contributory negligence.
The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
11. 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.
12. The term contributory negligence has been discussed time and again a person who either contributes or is 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."
13. 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."
14. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 which would apply in the facts of this case.
15. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under for negligence as well as breach of policy condition:-
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."
16. The Tribunal while considering the issue of negligence has categorically held that the charge sheet, F.I.R and the site plan has been properly evaluated by it and the evidence of the claimant proves that the vehicle was involved in the accident insured by the respondent. The driver of the truck who is the best witness has not stepped into the witness box. The finding of facts as to the accident being authored by the driver of the truck who was driving his truck rashly and negligently cannot be brushed aside. The Tribunal has even considered that in the written statement the owner did not file rebuttal contending that the claimant was negligent. This also will not permit us to consider the submission of Sri Sinha that the claimant was contributor to the accident.
Issue no.2: Breach of Policy:-
This takes us to the submission that the vehicle was being driven without proper licence and there is breach of policy condition.
17. It is the submission of Sri Sinha, learned counsel for the Insurance Company that the vehicle involved in the accident was a heavy motor vehicle and the license of the driver which is endorsed later than the accident goes to show that there is a tick mark on licence for driving heavy motor vehicle but is later than accident. The submission of Sri Sinha is that the interpolation is after the incident took place. It is submitted by Sri Ojha, learned counsel for the claimant that it is a dispute between the owner of the vehicle insured by Insurance Company and driver of the truck, and claimant being third party his right cannot be scuttled. However, considering this aspect we can give recovery rights to Insurance Company subject to proving that the driver did not have license to drive heavy vehicle and that the owner had entrusted the truck to a person fully knowing that he was not having proper driving license, however, the factual finding that the unladen weight of the vehicle would fall within definition of Light Motor Vehicle as per Section 2(21) of the Motor Vehicle Act, 1988. This since on a bare reading of license page 102 that there is a tick mark but the same is not proved before the Tribunal to be after or before the accident.
18. It is further submitted that the driver of the truck was not having license to drive heavy vehicle. It is submitted that this is also apparent from the record. It is submitted that the tribunal has considered that the vehicle involved in the accident was a light motor vehicle This finding according to learned counsel for the appellant-Insurance Company is bad even on facts and law.
19. It is further submitted by learned counsel for the Insurance Company that the Tribunal while considering the aforesaid aspect about licence that the driving licence was valid from 31.01.2005 to 30.01.2025 of the motorcyclist. The driving licence of the driver of offending vehicle shows that Driving Licence No.35910 Varanasi 98 valid from 22.07.2004 to 21.07.2007 for light motor vehicle and from 17.04.2007 it was endorsed for heavy motor vehicle, the said document has been verified by Insurance Company. The accident occurred on 09.04.2007 and therefore, it cannot be said that on 09.04.2007 the driver had proper driving licence. Learned counsel further submitted that the driver did not have valid driving licence whether the vehicle was bearing 6200 kg. has to be evaluated from record which we would advert to later.
20. The definition of Light Motor Vehicle under Section 2 (21) reads as under:-
"(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms."
21. Section 147 Requirements of policies and limits of liability. --
"(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)--
(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required--
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
22. The document which is produced on Rs.10/- Stamp Paper along with Transport Department, Uttar Pradesh Certificate as document 1/2 and 1/3 goes to show that unladen weight of the vehicle was 6200 kg. and therefore, no fault can be found with the finding of the Tribunal. The Oriental Insurance Company has also mentioned in the policy that weight does not exceed 7500 kg. and can not exceed 12000 kg. which categorically shows that finding of fact that though the vehicle is termed as heavy goods vehicle it was having unladen weight of 6200 kg, though, it is termed as a truck but is Light Motor Vehicle. Once the prime facie evidence is before the Tribunal and this Court that the unladen weight was 6200 kg., the request of Sri Anand Sinha, learned counsel to grant what is known as recovery rights cannot be granted even on the document at Page 58(G) which is the same xerox copy of the document which is particular slip of the vehicle and also mentions the unladen weight 6200 kg. laden weight is more. In view of the matter, it cannot be said that the vehicle was being driven by a person not authorised to drive the said vehicle. The driver could have been examined by the Insurance Company but the same has not been done. The record goes to show that licence was valid for Heavy Motor Vehicle but whether it was in vogue on date of accident or not will have to be proved, which fact gives rise to doubt about whether licence was valid for Heavy Motor Vehicle from July, 2004 to 27.07.2007. We could grant recovery rights to the Insurance Company on the ground that the driving licence though there is a tick mark to drive heavy goods passengers vehicle, there is a dispute regarding the same and therefore, if the appellant-Insurance Company proves as directed by the Apex Court in the case of Singh Ram Vs. Nirmala and Others, (2018) 3 SCC 800, the recovery rights can be granted but the vehicle is held to be Light Motor Vehicle and we concur with the Tribunal on re-scanning the documents produced and proved for the reasons given by Tribunal and reevaluated by us. The Tribunal has rightly relied on the decision in the case of National Insurance Com. Ltd. Vs. Annappa Irappa Nesaria and Others 2008 (1) T.A.C. Page 812 SC. so as to come to the conclusion that the vehicle weights less than 7500 kg and therefore, it was a light motor vehicle though cylinders were carried in the said vehicle.
Compensation:-
As far as the compensation granted is concerned and to be granted, learned counsel for the Insurance Company has submitted that in the State of Uttar Pradesh Rule 220 of the Uttar Pradesh Motor Vehicle Rules came into force in the year 2011 and hence, no future loss of income could be granted as in this case accident occurred in the year 2007.
23. In the case titled Kajal Vs. Jagdish Chand & Ors. 2020 1 Supreme (SC) 110 the Apex Court has held that future loss of income has to be given for injury cases whether the rules specify or not. This is an accident of the year 2007 just because the rules are silent, the claimant cannot be deprived of this benefit. In catena of decisions even prior to year 2011 future loss of income was considered to be grantable. The recent decisions of the Apex Court in the case of (1) Kajal Vs. Jagdish Chand & Ors. 2020 1 Supreme (SC) 110, (2) R.D. hattangadi Vs. M/s Pest Control (India) Pvt. Ltd. And others reported in 1995 0 ACJ 366, (3) Raj Kumar Vs. Ajay Kumar & Anr. reported in 2010 0 ACJ 1, (4) Mohan Soni Vs. Ram Avtar Tomar and Ors. reported in 2012 1 ACC 1, (5) Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735, (6) Mukund Dewagan Vs. Oriental Insurance Company Ltd. Reported in AIR 2017 SC 3668, cited by Sri Ojha will not permit us to accept the submission of Sri Sinha as the judgment in Dinesh Singh Vs. Bajaj Allianz General Insurance Co. Ltd (2014 (2) T.A.C. 737 (S.C.) also deals with case of injury. Raj Kumar (supra) which is a judgment of the year 2010 will not permit us to accept the submission of Sri Sinha which though appears attractive but cannot apply to the facts of this case. We cannot accept the submission of Sri Sinha as in catena of decisions which are binding on this Court granting future loss of income namely (a) Pappu Deo Yadav Vs. Naresh Kumar, AIR 2020 SC 4424, (b) Erudhaya Priya Vs. State Express Transport Corporation Ltd., AIR 2020 SC 4284 and (c) Karthik Subramanian Vs. B. Sarath Babu & Anr., reported in 2021 ACJ 993 has granted future loss of income. The submission of Sri Sinha so as to point error in judgment as even while considering the judgment prior to the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, namely Gobald Motor Service Ltd. & Vs. R. M. K. Veluswami & Others AIR 1962 SC 1 wherein also even in the said decision the future loss of income has been considered. It is submitted by counsel for the Insurance Company that as the accident and the dispute is prior to the decision in Syed. Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735 no future loss of income can be awarded. The decision of the Apex Court in Gobald Motor Service Ltd. (supra) cannot be countenanced in light of these decisions even in the case of Uttaranchal Transport Corporation Ltd. Vs. Vimla Devi 2009 (0) AIJEL-SC 66148 wherein also the question of future loss of income of injured was considered. The decisions rendered by the Apex Court in General Manager Kerla State Road Transport Corporation Trivandrum Vs. Susamma Thomas and others 1994 (2) SCC 176, thus, the submission of Sri Sinha cannot be accepted in the light of the decisions which are prior to the decision of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and the decision of Syed. Sadiq (supra) will apply in full force. We cannot accept the submission of the counsel for the Insurance Company that the matter should be remanded as the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 is for death cases and does not lay down guidelines for injury cases. In (a) Yadava Kumar Vs. The Divisional Insurance Co. Ltd. & Another (2010) 10 SCC 341, (b) Shahikala & Ors. Vs. Gangalashmamma & Anr. (2015) 9 SCC 150 and in (c) Malarvizhi Vs. United India Insurance Company Ltd. 7 Anr. (2020) 4 SCC 228 (d) Oriental Insurance Com. Vs. Mathu Ram 2019 ACJ 65 (HP). The decision of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 applies to injury cases also and applies for future loss of income. In the facts of this case the latest judgment in the case of Kajal Vs. Jagdish Chand & Ors. 2020 1 Supreme (SC) 110 will oblige us to award just compensation which we are recalculating.
24. The injured was under treatment when the petition was filed in 2005. He was time and again admitted in hospital which is proved from the records produced before the Tribunal.
25. We have considered the submission of Sri Sinha that the income cannot be Rs.30,000/- per month as the business is continued, however, looking to the ITR returns considering income to be Rs.8,000/- per month. Injured has 45 per cent disability, the age of the injured was 21 years, 40 per cent would have to be added for future loss of income on basis of decisions cited and precedents on this subject. The medical expenses of Rs.8,10,000/- have been granted.
26. The compensation awarded by the Tribunal is Rs.13,23,831/- with interest payable at 6% simple interest.
27. There is a question of remanding the matter as per the submission of the learned counsel for the Insurance Company. It is submitted by Sri Sinha, learned counsel for the Insurance Company that it was the duty of the claimant to prove the medical bills. There is no evidence to prove that the medical bills are fake just because of the statement to hold that it cannot be read in evidence is not accepted in the light of judgment of this High Court in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557, hence, we consider the medical bills to be for figure of Rs.8,00,000/-. For pain, shock and suffering, nothing has been awarded by the Tribunal and we grant Rs.1,00,000/- because of the amputation of lower limb of a young person who was of 21 years.
28. The Tribunal has considered the income of the injured to be Rs.4500/- and considering that he had sustained 45% by way of disability and that is how he held that he is entitled to Rs.24,300/- per year multiplied by 17, granted Rs.8,10,731/- for medical expenses and Rs.4,13,100/- towards loss of income for other non-pecuniary damages a sum of Rs.1/- lac was awarded rounding up the figure to Rs.13,23,831/- at 6%. This is the calculation which according to the learned counsel for the applicant is bad in eye of law. It is submitted by learned counsel for the applicant that the injured was in business and he has proved his income to be Rs.20,000/- and his disability should be considered 50%, hence, Rs.10,000/- be considered as incme to which he being 21 years of age and to his personal income 40% must added and a multiplier of 18 should be granted. It is submitted that the future economic loss Rs.10/- lac should be awarded. Towards pain, shocks and suffering it should be Rs.1/- lacs as he has amputation of lower limb. For medical expenses he has demanded Rs.17,25,790/- and for future medicine it is demanded Rs.5/- lacs should be granted, for special diet and Rs.50,000/- and Rs.3/- lacs for other charges, totaling it to Rs.59,15,790/- lacs and interest at 9% has been demanded. While going by the records one thing is borne in mind that claimant has filed Income Tax Return of last 3 years which shows upward increasing income from the independent and proprietary business of the applicant and it is submitted that the same is ignored by the Tribunal. It is further submitted that for future medical expenses no amount is awarded. It is submitted that report of the Investigator of Oriental Insurance Company Ltd. though was not proved by leading evidence, has been taken into consideration by the tribunal.
29. Having heard the learned counsel for the claimant as well as Sri Sinha as we have held that Income Tax Return should be considered. We have held that future loss of income is admissible. The judgment in Raj Kumar (supra) will have to be looked into and a old decision of the Gujarat High in Union of India Vs. A.S. Sharma 1995 ACJ 493 will have to be looked into before we decide to recompute the amount. Learned counsel for the claimant-appellant had contended that his annual income was Rs.1,96,000/- as he has invested Rs.39/- lacs for his business and in future he would earn Rs.1/- lac per month and before the accident he had his own shop which was known as Amit Traders which was his alias name. For three years namely from the age of 18 he used to earn Rs.15,000/- per month from the said business. He used to file Income Tax Return also. He has already produced the bills and vouchers of the building material which he used to purchase which is at 25G/4 though the shop is in the name of the appellant's father. The firm is also a registered firm which deals with tiles, sentinel fitting, building materials. The diary of the said firm is also produced on record. The firm was a propitiatory firm despite this fact the tribunal has misread the document in coming to the conclusion that the applicant has not proved how many partners were there. The injured was an entrepreneur who was in last year of B. Com. The tribunal comes to the conclusion that as he was a student he could have not gaven proper attention to his business and that he had any personal income. According to this Court the said finding is an error apparent on the record as the Income Tax Return is in his name The Tribunal comes to the conclusion that Income Tax is only with a view to save the tax to be paid by the mother and father of the injured. This finding is based on his own surmise and conjuncture without any proof, just because the father of the injured has also has a shop which is also of building material this finding is returned and that is why the Tribunal held that the income of claimant to be Rs.4500/- per month which is bad in eye of law. The medical certificate at Document 25G Dr. V.N. Verma who has been examined on oath has proved the said document. The Tribunal goes by the concept in the Workman Compensation Act, 1923 and has come to the conclusion that if both the lower limbs are amputated then 90% would be disability as he has only one limb which is amputated it would be 45% disability. He has not considered the other injuries which have been narrated in the medical forms and that is why he has granted a sum of Rs.4,13,100/-. There are medical bills of Rs.12,54,985/- which are receipts which has been proved by leading evidence but because of same statements which are not proved and which cannot be read into evidence as per judgment of Poonam Kesharwani (supra) the Tribunal feels that a sum of rupees that only Rs.3,39,926/- which are found to be correct by the Tribunal is payable. The Tribunal holds that for other claims as he has not proved that he cannot marry, no amount can be awarded. The Tribunal thereafter has considered certain other amount under non-pecuniary damages and has came to the conclusion that sum of Rs.13,23,831/- would be payable. We hold that the income of the injured would be minimum Rs.8,000/-, 40% should be added, his disability would be 50% multiplied by 18, for medical expenses we grant him a sum of Rs.10/- lacs which is proved by the receipts and the other non-pecuniary damages granted by the Tribunal are maintained.
30. Where the appellant has become disabled to the tune of 50% and that too by his leg and he is not able to sit properly and walk and he has lost pleasures of life because he cannot lead a normal life after accident. It is natural that he had bleak prospects of marriage and family life as he was young boy of 21 years of age only. It can be said that the appellant has lost amenities of life to the great extent, which cannot be restored at all. Therefore, he would grant Rs.2,00,000/- for loss of amenities.
31. First of all we calculate the amount of compensation payable to the appellant under the head of permanent disability as under:-
i. Monthly income : Rs.8,000/-
ii. Percentage towards future prospects : 40% namely Rs.3,200/-
iii. Total income : Rs. 8,000 + 3,200 = Rs.11,200/-
iv. Annual loss : Rs.11,200 x 12 = Rs.1,34,400/-
v. Multiplier applicable : 18 vi. Total loss : Rs.1,34,400 x 18 = Rs.24,19,200/-
vi. 50% for permanent disability = Rs.12,09,600/- (as above)
32. Hence, the amount of compensation payable to the appellant would be computed herein below:-
i. Amount for permanent disability: Rs.12,09,600/-, ii. Medical expenses: Rs.8,00,000/-, iii. Loss of Amenities: Rs.2,00,000/-, iv. Amount under pain, shock and suffering : Rs.1,00,000/-, v. Total compensation : Rs.12,09,600+8,00,000+2,00,000/-+1,00,000/-=23,09,600/-.
The interest at 6% is maintained.
33. In view of the above, both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the additional amount within a period of 12 weeks from today with interest at the rate of 6% 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.
34. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. 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 be passed by Tribunal.
35. 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.
36. 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.
37. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. Vs Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 10 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.
38. This Court is thankful to both the counsels for getting this matter decided.
Order Date :- 7.3.2022 Krishna*