Allahabad High Court
Smt. Manju Singh @ Manju Devi And 3 Others vs U.P.S.R.T.C. Thru. R.M. And 2 Others on 22 December, 2021
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 17.12.2021 DELIVERED ON 22.12.2021 Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. 2737 of 2014 Appellant :- Smt. Manju Singh @ Manju Devi And 3 Others Respondent :- U.P.S.R.T.C. Thru. R.M. And 2 Others Counsel for Appellant :- Rakesh Kumar Porwal,M.M.Sahai connected with Case :- FIRST APPEAL FROM ORDER No. - 2795 of 2014 Appellant :- U.P.S.R.T.C. Thru. R.M. Respondent :- Smt. Manju Singh Alias Manju Devi And 5 Others Counsel for Appellant :- M.M. Sahai Counsel for Respondent :- Rakesh Kumar Porwal **** Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per : K.J. Thaker)
1. Heard Sri R.K. Porwal for the appellant, Sri M.M. Sahai for U.P. State Road Transport Corporation and Sri A.A. Khan for the Insurance company in FAFO No.2737 of 2014 and Sri M.M. Sahai for the appellant, Sri R.K. Porwal for the claimant and Sri A.A. Khan for the Insurance company in FAFO No.2795 of 2014.
2. Both these appeals raise issues which have to be decided by the Division Bench in the light of judgment of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, and the later judgment. The appeal, being Appeal No.2737 of 2014 is preferred by the claimants and the appeal, being Appeal No.2795 of 2014, is preferred by U.P.S.R.T.C. Both have challenged what is known as the issue of negligence. The U.P.S.R.T.C. has raised the issue of negligence contending that the Tribunal has committed an error which can be said to be an error apparent on the face of record as the site plan, the record and all the factual data would go to show that the truck came and dashed with the bus whereby the driver of the bus and the passenger scummed to injuries. The evidence of PW-2 has also been ignored by the Tribunal and that is how the judgment dated 10.7.2014 is bad in the eyes of law.
3. The twin issues raised are the finding of fact as far as negligence and compensation is concerned.
4. The skeletal facts are that the accident between bus of U.P.S.R.T.C. and the vehicle driven by the deceased met with an accident on the fateful day i.e. 5.6.2008. All other issues are not required to be decided except the factum of compensation and quantum. On 5.6.2008 Sri Raj Bahadur Singh Bhadauriya and some people, who were travelling from Kanpur to Orai at that point of time when the bus passed Orai, a truck, bearing no.UP93E-6362 came rashly and negligently injuring some and causing death of bread winner of Manju Devi and her children.
5. As far as the compensation is concerned, it is submitted that the judgment of Sarla Verma, 2009 ACJ 1298 (SC) and Reshma Kumari, 2013 ACJ 1253 (SC), will apply and no addition to income will be allowed whereas Tribunal has granted 20% addition which is bad in the eye of law and that the multiplier of 12 granted is on the higher side.
6. Learned Counsel for the U.P.S.R.T.C. has taken us through the assessment and requested that the assessment be recalculated in the light of the settled legal preposition of law.
7. As against this, the appeal preferred by the claimants relates to only compensation. We now come to the factual scenario as it emerged.
8. Shri A.A. Khan has taken us to the site plan and has contended that the facts are such that there was a head-on collision and we should attribute 50% - 50% negligence as there was an injury which shows that the driver of the bus was equally negligent.
9. 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.
10. 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."
emphasis added
11. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
12. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/ contributory negligence.
13. In view of this and the recent decision of the Apex Court in Smt. K. Anusha and others Vs. Regional Manager, Shriram General Insurance Co. Ltd., 2021 (4) TAC 341 (SC) and National Insurance Company Ltd. Vs. Chamundeswari and others, 2021 (4) TAC 367 (SC), the issue of contributory negligence or composite negligence will have to be decided as qua the deceased it was a case of composite negligence but when the payment of amount is to be decided, we will have to decide the percentage of negligence of each driver. There are 4 facts which emerged from the facts as per record and evidence. It was not a case of head-on collision rather the truck dashed with the bus which was on its correct side. The driver of the bus may have crossed the middle of both but was not to his extreme right (wrong side). The impact was such that the driver of the bus died on the spot and the driver of the truck ran way from the scene of accident. He has not stepped into witness box. The charge-sheet was laid against him. It was on the highway that the accident occurred. Testimonial of all witnesses was permitted us t disturb the finding of the Tribunal to hold that only 10% was attributable to the driver of the bus and 90% was the fault of the Truck driver insured with the Insurance company.
14. As far as claimants are concerned, it will be a case of composite negligence, hence the judgment of Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469, would apply. The issue of negligence is held in favour of U.P.S.R.T.C. and against the Insurance company.
15. This takes us to the issue which can be said to be the core issue. The submission of Sri Sahai that the judgment in Sarla Verma (supra) does not permit addition of any amount and it is stated that even if any amount is to be added, it should be 15% as per the judgment of Sarla Verma and Pranay Sethi.
16. We cannot accept the submission for two fold reasons. The Tribunal has relied on the Uttar Pradesh Motor Vehicle Rules, 2011. Rule 220 (a)(3) provides that 20% will be added to the income of the deceased. This issue after the age of 50 as per the rule is no longer res-integra as the Apex Court in New India Assurance Co.Ltd. Vs. Urmila Shukla and others, 2021 ACJ 2081, has held that judgment of Pranay Sethi is an indicia but if the statutory instrument which affords better and greater benefit then it will prevail as it is held that the statutory instrument has to be allowed to operate unless it is found to be invalid. We do not delve further in the issue as the learned Tribunal's view in the afore mentioned judgment. Therefore, para 60 of the said decision, we are obliged to quote here:-
"The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma, (2009) ACJ 1298 (SC), thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari, 2013 ACJ 1253 (SC). Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 and 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 and 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts."
and this issue is not dealt further.
17. The recent decisions of the Apex Court decision in New India Assurance Co. Ltd. Vs. Urmila Shukla and others, 2021 ACJ 2081, will enure the benefit of claimants. In our case also the owner and the driver of the truck before the Tribunal did not enter into the witness box. The learned Tribunal has decided this issue on the basis of the judgment in Rajasthan State Road Transport Corporation Vs. Devi Lal and others, 1991 ACJ 230, that it was a head-on collision. The eye witnesses have deposed that the accident took place at 7.30 a.m. in the month of June. The injured PW-2 was also admitted to a hospital. The fact that the driver of the truck bearing no. UP93A-6362 came towards the bus without blowing horn dashed with driver side of the bus in such a way that it was injured to certain persons and the deceased died in the hospital. Though owner and the driver of the truck filed his reply, he has not stepped into the witness box. The Insurance company has also not examined anybody. In that view of the matter, documentary evidence appreciated on the same which will not permit us to concur with the submission of Sri Sahai that the driver of the truck was solely responsible.
18. This takes us to the issue of compensation in the case of Manju Singh and others, legal representative of the decision Raj Bahadur Singh Bhadauriya.
19. It is an admitted position even by the Tribunal that his monthly income was Rs.54,512/- as per the evidence led before it and the ocular version of PW-1 as he was a Professor at Janta Degree College. He had about 20 - 22 bighas land also and he was also serving in private institution.
20. The compensation is normally bases on the pay slip and also the tax which is paid. The assessment for the year 2007 - 08 has shown that gross total income of Raj Bahadur Singh Bhadauriya is Rs. 4,57,504/- as per the acknowledgement. His income as per the document is Rs. 39,539/- per month. He would have retired in the year 2013. this is a certificate given by Principal of Janta Mahavidyalaya Ajitmal (Auraiya), dated 9.7.2008. His pay salary is Rs.18,720/-, DA is Rs.9,360/- and further Rs.11,513/- which is according to 41% DA and he was paying Rs. 890/- as HRA. The submission that he had an agricultural land and tuition also is not born out from the record. The Tribunal, therefore, cannot be said to have committed error which can be said to be error in calculating the income of the deceased at the time of the accident. Thus, the submission of Sri Ram Singh that the income should be considered to be Rs. 55,590/- cannot be accepted.
21. The deduction of 1/3rd is also just and proper as daughters are major and his dependant are only wife and son. The only area which requires reconsideration is non-granted of filial consortium. We ad Rs. 70,000/- + 10% which has been left by Tribunal in view of the decision of the Apex Court in Pranay Sethi (Supra). Therefore, we hold that filial consortium to be 40% to the wife and by way of love and affection it was Rs.40,000/- to the son and Rs. 30,000/- for the other head. Hence, the compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:
i. Income Rs.39,539/- (Rounded up Rs. 39,540/-) ii. Percentage towards future prospects : 20% namely Rs.7,908/-
iii. Total income : Rs. 39,540 + 7,908 = Rs. 47,448/-
iv. Income after deduction of 1/3 : Rs. 31,632/-
v. Annual income : Rs.31,632 x 12 = Rs.3,79,584/-
vi. Multiplier applicable : 9 vii. Loss of dependency: Rs. 3,79,584 x 9 = Rs. 34,16,256/-
viii. Amount under non pecuniary heads : Rs.1,00,000/-
x. Total compensation : Rs. 35,16,256/-
22. The additional amount be deposited in their proportioned by both tort-feasors by U.P.S.R.T.C. and New India Assurance Company Ltd. However, if one deposits, the other will be entitled to recover.
23. Both these appeals are allowed. The negligence of the driver of U.P.S.R.T.C. is considered to be 20% and, therefore, U.P.S.R.T.C. can recover 10% from the owner and Insurance Company of the Truck. As far as appellant of appeal, being appeal no.2737 of 2014 are concerned, it will be recoverable from either of the tort-feasors. The compensation is enhanced to additional amount of Rs. 1,05,000/- with additional interest of 7.5% from the date of filing of claim petition till the said amount is recovered.
F.A.F.O. No.2737 of 201424. In view of the fact that we have already decided the appeal preferred by U.P.S.R.T.C., being appeal no.2795 of 2014, the cross objection in the said matter are disposed of. There is no appeal brought to our notice against the order of the Tribunal qua the driver but as we hold that his negligence was only 20%, then 10% will have to be deposited by the respondent in motor accident claim petition filed by the driver if at all filed by him, the said amount be deposited by the Insurance company.
25. As far as issue of rate of interest is concerned, the interest 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."
26. No other grounds are urged orally when the matter was heard.
27. In view of the above, the appeal is partly allowed. Judgment and award passed by the 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. The Insurance Company who will deposit the entire amount can have their right to recover the amount from owner and the Insurance Company of the other vehicle. As far as deceased is concerned, it is a case of composite negligence, hence, the amount cannot be deducted from the compensation awarded to the claimants who are the heirs of a non tort-feasor.
28. 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 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) 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.
29. The record and proceedings be sent back to the court below.
Order Date :- Dec. 22, 2021 Irshad