Allahabad High Court
Ranjeet Singh vs The Oriental Insurance Co. Ltd. And ... on 4 March, 2022
Author: Ajai Tyagi
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. 1902 of 2010 Appellant :- Ranjeet Singh Respondent :- The Oriental Insurance Co. Ltd. And Another Counsel for Appellant :- Nipun Singh Counsel for Respondent :- Sushil Kumar Mehrotra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. Sri Nipun Singh appearing for the appellant and Sri S.K. Mehrotra for the respondents.
2. Once the owner admits before the Tribunal to dispose of the claim when it was not proved by the Insurance Company that they were in collusion, this is the main issue involved in this appeal.
3. The brief facts as culled out from the record are that the appellant met with an accident on 25.1.2007 at about 11:45 hrs. when he was driving the motorcycle along with his nephew and was travelling between Delhi to Ghaziabad and when he came near I.P.M. College and he entered the railway flyover, one unknown truck being driven rashly and negligently came on the wrong side and dashed with him. He sustained injuries and he had one of his put amputated. The truck could not be named as his nephew and he both were busy in getting him admitted into the hospital. On 29.1.2007 one of the witnesses came and conveyed to him the number of the truck being numbered as DL-01-GB-5913. The owner of the truck gave him some money so that he may not file criminal case. On notice being issued, the Insurance company appeared and filed their reply. The driver and owner accepted the accident having taken place but contended that the accident occurred due to negligence of the appellant herein.
4. The Tribunal framed about 4 issues and rejected the claim petition holding that it was not proved that the accident occurred with the truck in question. The Tribunal disbelieved PW-1, who is claimant and eye witness. Just because there is 2 days delay, the Tribunal on the basis that the police had filed the summary, it is not conclusively proved that the vehicle was not involved in the accident. The claimant was examined at Yashoda Hospital. PW2 - Subhash Kumar has been disbelieved. The F.I.R. categorically mentions about the truck. Just because the final report was filed will not conclusively prove that the vehicle was not involved. The Tribunal on surmises and conjectures disbelieved PW1 and PW2 only on the ground that there was a delay in filing the F.I.R. The written statement of the owner ought to have been looked into by the Tribunal before brushing aside the judgment and not relying on the authoritative pronouncements in Varinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana, Devi Prasad Vs. Zahur Khan, 2001 (2) TAC 419 Madhya Pradesh, and Bhanwar Lal Verma Vs. Sharad Dholiya, 2007 ACJ 52.
5. The appellant has challenged impugned award and decision dated 8.3.2010 on the following amongst grounds:
(i) The order passed by the Tribunal is illegal, arbitrary, without application of mind, cyclostyle manner and cannot be sustained in the eyes of law.
(ii) The court below has failed to consider, while passing the impugned order, that the owner of the vehicle/ respondent no.2 himself admitted that the accident took place by his vehicle.
(iii) There is no negligence on the part of the applicant and the accident took place due to negligence driving of the respondent no.2.
(iv) The court below has failed to consider, while passed the impugned order, that in the statement of PW-2 - Subhash Kumar, who is an eye witness of the aforesaid accident supported the view taken by the appellant.
(v) At the time of accident the appellant is earning Rs.6,500/- per month by generalize and after the accident he got 70% disable and lost his earning capacity.
6. Learned Counsel Sri Nipun Singh has relied on the following decisions:-
(i) Kusum Lata and others Vs. Satbir and others, 2011 (2) Supreme 207;
(ii) Saroj and others Vs. Het Lal and others, (2011) 1 SCC 388; and
(iii) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768;
so as to contend that the petition has been dismissed by assigning reasons which are not germane.
7. It is submitted by Sri S.K. Mahrotra that the petition was rightly dismissed as the F.I.R. culminated into a report and there was no objection raised to that. The owner has colluded with the petitioners and, therefore, also there is no reason to not concur with the Tribunal. The owner did not stepped into the witness box. The Insurance company did not examine in person nor was the owner of the vehicle, which is alleged to be involved in the accident, put to any cross-examination as he did not appear before the Tribunal nor did the Insurance company examine him as its witness. The Tribunal dismissed the claim petition holding that it was not proved by cogent evidence that the accident occurred with the vehicle in question.
8. The evidence on record conclusively proves that the vehicle was involved in the accident. The findings of the Tribunal that the vehicle was not involved in the accident is perverse and against the tenet of evidence and deserves to be reversed. The findings of fact that the truck was not involved in the accident is absurd. The driver of the truck has nowhere stated that the vehicle was not involved in the accident. Filing of final report is not a conclusive proof in view of the judgment ofVarinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana. The Insurance company could not have summoned the owner and the driver and cross-examined them but nothing in evidence it has been brought on record that the vehicle was not brought on record. Just because protest petition was not filed, it does not mean that the vehicle was not involved in the accident. The judgment of Vastu Ram Vs. Anant Ram and others, reported in 1990 ACJ 323, Himanchal Pradesh of the High Court would apply to the facts of this case. An owner may not like to file protest petition as it would be in his favour. The claimant would not be even aware about whether he was summoned to file protest or not it has not been brought on record. The medical evidence speaks volume just because the doctor, who had treated the appellant, is not examined. It cannot be said that the vehicle was not involved. The Tribunal believes that the injuries were due to accident and, therefore, dismissing the claim petition is bad in the eye of law. There was amputation also and, therefore, it cannot be said that it was a planted vehicle.
9. As far as issue of contributory negligence is concerned as alleged by the appellant, I will have to consider the principles for deciding the negligence. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 ACJ (SC) 1840).
15. 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 of driver of another vehicle.
16. We cannot concur with the learned Judge that it was not proved that the truck driver had not driven the truck rashly and negligently. The injuries suggest that the truck driver on the bridge was driving the vehicle rashly and negligently. Hence, the said issue is answered in the positive and in favour of the appellant. The appreciation of evidence as held by the Apex Court in the case of Kusum Lata, Saroj and Vimla Devi (supra) will not permit us to concur with the learned Tribunal. The finding is perverse. They have been decided by the Tribunal in favour of the appellant herein.
17. As far as issue nos. 2 and 3 are concerned, they have been decided by the Tribunal.
18. The appeal is allowed. The matter is remanded to the Tribunal for deciding the issue of compensation only and, therefore, presence of the claimants and the Insurance company will alone be necessary and they may be heard on the quantum of compensation to be awarded. The record be sent back to the Tribunal. The Tribunal to decide the matter within 8 weeks from today after hearing the Counsel for the Insurance company and the Counsel for the claimants. No fresh evidence is required in the matter.
Order Date :- 4.3.2022 Irshad