Madhya Pradesh High Court
Icici Lombard General Insurance Co. ... vs Sunita on 5 July, 2024
Author: Hirdesh
Bench: Hirdesh
1 MA-258-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 5 th OF JULY, 2024
MISC. APPEAL No. 258 of 2016
(ICICI LOMBARD GENERAL INSURANCE CO. LTD.
Vs
SUNITA AND OTHERS)
Appearance:
(SHRI MANOJ JAIN, LEARNED COUNSEL FOR THE APPELLANT).
(SHRI MANISH JAIN, LEARNED COUNSEL FOR THE RESPONDENTS NO.1
TO 5)
SHRI NAVNEET KISHORE VERMA, LEARNED COUNSEL FOR THE
RESPONDENTS NO.6 & 7)
MISC. APPEAL No. 352 of 2016
(SMT. SUNITA AND OTHERS
Vs
DURGADANSINGH AND OTHERS)
Appearance:
(SHRI MANISH JAIN, LEARNED COUNSEL FOR THE APPELLANTS).
(SHRI NAVNEET KISHORE VERMA, LEARNED COUNSEL FOR THE
RESPONDENTS NO.1 & 2
MANOJ JAIN, LEARNED COUNSEL FOR THE RESPONDENT NO.3)
ORDER
Both appeals are being decided together as they arise out of a common award arising out of the same accident.
2. M.A.No.258/2016 has been filed by the appellant/insurance company on the ground that the offending vehicle has been falsely implicated in the accident, hence prays for exonerating the insurance company from its liability whereas MA No.352/2016 has been filed by the claimants on the ground of enhancement of compensation as well as for setting aside the finding regarding contributory negligence on the part of the deceased.
3. Both appeals have been filed under section 17391) of the Motor Signature Not Verified Vehicles Act challenging the award dated 02.11.2015 passed by MACT, Ujjain Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 2 MA-258-2016 in Claim Case No.104/2012.
4. Brief facts of the case are that on 20.02.2012 deceased Yashwat was going on a motorcycle along with his friend Sanjay and when they reached near RD Gardi Medical College, Agar Road, Ujjain, their vehicle dashed with a stationary tractor trolley bearing registration no.MOU-5780, due to which Yashwant died on the spot.
5. Appellant/insurance company and driver and owner of the offending vehicle contested the claim and denied all the material allegations made in the claim petition. However, the tribunal after framing issues and recording evidence, allowed the claim petition filed by the claimants and calculated a total compensation of Rs.14,10,119/- along with interest but after deducting 50% amount towards contributory negligence on the part of the deceased, awarded only a sum of Rs.7,05,060/- payable by the insurance company, driver and owner of the offending vehicle jointly and severally.
6. Being aggrieved by the said award, the insurance company has filed MA no.258/2016 on the ground that the tribunal has committed an error in not considering the fact that no eye witness was examined by the claimants to prove the fact of accident. Witness Sitaram has admitted in his cross examination that he reached the spot of accident after ten minutes of the accident which goes to show that he was not an eye witness of the incident. Since no eye witness was examined by the claimants, the tribunal has committed an error in believing the fact of accident.
7. Learned counsel for the insurance company further submits that the compensation awarded by the tribunal is on the higher side because the restaurant which was being run by the deceased is still running, hence prays for Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 3 MA-258-2016 reducing the amount of compensation awarded by the tribunal and also seeking exoneration of the insurance company from its liability.
8. On the other hand being aggrieved by the impugned award, the claimants have filed MA No.352/2016 on the ground of inadequacy of compensation and seeking enhancement of compensation. Counsel for the claimants submits that the tribunal has committed an error in not awarding just and proper amount of compensation in the case. The Tribunal has also committed an error in fastening 50% contributory negligence on the deceased. The Tribunal has committed an error in assessing 50% of the income of the deceased from the hotel business as his income which is totally against the documentary evidence Ex.P/6, P/7 & P/8. The Tribunal has committed an error in disbelieving the income of the deceased as per the income tax return i.e. Rs.1,86,997/- per annum which is totally erroneous, perverse and against the evidence, hence prayed for setting aside the finding regarding 50% contributory negligence on the part of the deceased. Hence, both the appellants i.e. the insurance company of the offending vehicle as well as claimants opposed the appeals of each other and prayed for its dismissal.
9. Heard learned counsel for both parties and perused the record.
10. The first contention raised by the counsel for the appellant/insurance company is that the claimants were unable to produce any eye witness before the Tribunal, therefore, due to lack of eye witness account, the Tribunal has committed error in holding that the driver of the offending vehicle was rash and negligent in driving the vehicle due to which the accident had occurred. So, now the question arises for consideration in the present case is whether the doctrine of res ipsa loquitur is applicable to the facts of the present case or not so as to justify the finding by the Tribunal that the deceased died due to rash and Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 4 MA-258-2016 negligent driving of the offending vehicle in question.
11. In the case of Pushpabai Parshottam Udeshi vs. Ranjit Ginning and Pressing Co. Pvt. Ltd. reported in AIR 1977 SC 1735, the Hon'ble Supreme Court has observed as under:
"The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Ed.) at p. 306 states : "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the position is stated thus : "An exception to the general rule is that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous". Where the maximis applied the burden is on the defendant to show either that infact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care."
12. In the case of Kerala State Electricity Board Vs. Kamalakshy Amma reported in 1987 ACJ 251 the Hon'ble Supreme Court has observed as under:-
"The maxim res ipsa loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. Section 114 of the Evidence Act gives a wide discretion to the courts to draw presumptions of fact based on different situations and circumstances. This is in a way, recognition of the principle embodied in the maxim res ipsa loquitur. The leading case on the subject is Scott v. London and St. Katherine Docks Co. (1865) 3 H & C 596. Erle C.J. in the said case has stated that, "where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 5 MA-258-2016 the absence of explanation by the 8 of 18 defendants, that the accident arose from want of care''. Evershad M. R. in Moore v. R. Fox & Sons (1956) 1 OB 596 affirmed and followed the principle laid down in Scott's case. Winfield in his famous treatise on Tort, after referring to the decisions which founded the above doctrine, has mentioned the two requirements to attract the above principle. They are, (i) that the "thing" causing the damage be under the control of the defendant or his servants and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. This principle which was often found to be a helping guide in the evaluation of evidence in English decisions has been recognized in India also.The Supreme Court in Syed Akbar v. State of Karnataka, AIR 1979 SC 1848 has discussed the applicability of the maxim res ipsa loquitur in civil as also criminal cases, in the light of the provisions of the Evidence Act."
13. In the case of National Insurance Co. Ltd.Vs. Gita Bindal reported in 2013 (8) R.C.R. (Civil) 245 the Hon'ble Delhi High Court has summarized the legal position as to applicability of the principle of res ipsa loquitur as under:-
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more.
ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. iii. There are two requirements to attract res ipsa loquitur, (i) that the "thing" causing the damage be under the control of the defendant and (ii)that the accident must be such as would not in the ordinary course of things have happened without negligence. iv.Res ipsa loquitur is an exception to the normal rule that mere happening of anaccident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrong doer. 9 of 18 v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability. vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 6 MA-258-2016 it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant.
14. In the present case, it is established that deceased died in the accident and police after registering the FIR investigated the matter and filed charge sheet against the driver of the offending vehicle but owner and driver did not adduce any evidence in rebuttal of the criminal documents and evidence of the claimants produced before the Tribunal. It is the duty of the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part but they were unable to adduce any evidence in this regard. So a presumption must be drawn against them in this regard. Thus, the first contention raised by the appellant/insurance company has no substance.
15. The next contention raised by the counsel for the appellant/insurance company during arguments is that the hotel which was being run by the deceased is still running but perusal of the appeal memo and grounds of appeal it is found that the insurance company has not raised this ground in the appeal memo. The insurance company has filed the appeal seeking exoneration of the company from its liability because there was no eye witness of the accident and the accident was not proved. So this argument of the insurance company has no substance because they have not raised it in their appeal memo.
16. Counsel for the insurance company further submits that the trolley was not insured with the insurance company but in the present case the accident was not caused by the trolley and the deceased was not travelling in the trolley. In the present case the tractor trolley was stationary on the road negligently and the trolley was attached with the tractor as the trolley itself was not a motor vehicle. When trolley was attached with the tractor that itself is a part of the Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 7 MA-258-2016 tractor and there is no need of insurance of the trolley. Thus, in the considered opinion of this Court, non insurance of the trolley does not affect the liability of the insurance company. So this ground also has no substance. In view of the above discussion, the appeal filed by the insurance company has no substance. Accordingly, MA No.258/2016 is dismissed.
17. So far as appeal filed by the claimants for enhancement of compensation is concerned, counsel for the claimants in MA No.352/2016 submits that tribunal has committed an error in fastening 50% contributory negligence on the deceased. He further submits that in absence of any evidence in rebuttal against the deceased it cannot be assumed or presumed that the deceased was also negligent in driving the motorcycle and contributed to the accident. He further submits that it is the duty of the insurance company to adduce direct evidence regarding the negligence. In support of his contentions, counsel for the appellants/claimants has placed reliance on the decision of the apex Court in the case of Jeyarani and another vs. Manager, Bajaj Allianz General Insurance Co. Ltd. and another reported in 2023 ACJ 2390, in which the apex Court has held that there has to be specific evidence regarding negligence even if additional pillion rider was carried on the two wheeler. He has further placed reliance on the decision of the apex Court in the case of Laxmi Devi and others vs. Mehboob Ali and others reported in 2023 ACJ 2386, in which the apex Court has held that when it was a case where the offending vehicle was parked in middle of the road and the deceased had not noticed it as there was no clear indication or signal, it cannot be said that there was negligence on the part of the deceased as he could notice the vehicle only when he had approached the same. The apex Court has further held that the conclusion as reached both by the MACT and the High Court that the deceased Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 8 MA-258-2016 was negligent to the extent of 50% is not justified. Furthermore when there was no explanation on the part of the driver of the truck by examining him with regard to the manner in which the accident had occurred, we are of the opinion that the entire negligence is to be fastened on the driver of the offending vehicle.
18. On the other hand, counsel for the insurance company has supported the finding of the tribunal regarding contributory negligence on the part of the deceased and in support of his contention has placed reliance on the decision of the apex Court (Raj Rani and others vs. Oriental Insurance Co. Ltd. and others) in Civil Appeal Nos.3317-3318 of 2009 (Arising out of SLP (C) Nos.27792 - 27793 of 2008) decided on 06.05.2009 as well as a decision of the High Court of Himachal Pradesh in the case of National Insurance Company Ltd. vs. Usha Devi and others in FAO (MVA) No.19 of 2010 decided on 09.11.2011.
19. Perusal of the record it is found that the driver and owner of the offending vehicle filed a written statement before the tribunal and thereafter proceeded ex-parte but no evidence was adduced to the effect that the tractor trolley was parked with due care and with all precautions by the side of the road. Perusal of the FIR it is also found that the the offending vehicle (tractor trolley) was stationary on the road in negligent manner. Therefore, it was the duty of the owner and driver of the tractor trolley to adduce evidence to the effect that the tractor trolley were parked on the road side with all precautions but they were failed to adduce any evidence in this regard. So no specific evidence was adduced by the insurance company of the offending vehicle or driver/owner of the tractor trolley that the tractor trolley was parked on the road by taking all precautions so as to avoid any kind of untoward incident. Thus, Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 9 MA-258-2016 considering the facts and circumstances of the case and the evidence available on record, in the considered opinion of this Court, the tribunal has fastened 50% contributory negligence on the deceased only on assumptions and presumptions and not based on any substantial evidence. So, the finding of the tribunal regarding contributory negligence on the part of the deceased is not correct in the eye of law, therefore, it is hereby set aside.
20. Counsel for the appellant/claimants further submits that the tribunal has committed an error in assessing the income of the deceased as half of the income of the Meenakshi restaurant as per the income tax returns. He further submits that as per income tax returns Ex.P/6, P/7 & P/8, Rs.1,86,997/- was the income of the deceased himself and it was not the income of the Meenakshi restaurant, therefore, the tribunal ought to have assessed Rs.1,86,997/- as income of the deceased and calculated the compensation amount accordingly. Perusal of the evidence of AW/3 Ashok it is found that in cross examination in para-4 he has stated that income of Meenakshi restaurant was Rs.1,86,997/-. He has further stated in cross examination that Meenakshi restaurant was registered in the name of the deceased as well as his elder brother. So considering the evidence of AW/3, in the considered opinion of this Court, the tribunal has rightly assessed the income of the deceased as Rs.93,500/- per year and there is no need to interfere in the said finding.
21. In the case of National Insurance Co. Ltd. vs. Pranay Sethi and others - 2017 ACJ 2700, the apex Court has held that while determining the income, an addition of 40% of the established income should be added towards future prospects where the deceased was self employed and was below the age of 40 years. An addition of 25% should be added towards future prospects where the deceased was between the age of 40 and 50 years. According to the Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 10 MA-258-2016 decision in the case of Sarla Verma and others vs. Delhi Transport Corporation and another - (2009) 6 SCC 121, a multiplier of 13 must be applied where the deceased was for the age group of 46 to 50 years. In the present case, there are 5 claimants, therefore, 1/4th income must be deducted towards personal expenses. The claimants are also entitled for spousal, parental as well as filial consortium in the light of the verdict of the apex Court in the case of Satinder Kaur @ Satwinder Kaur and others vs. United India Insurance Co. Ltd. - (2021) 11 SCC 780. Thus, in view of the above discussion, the compensation awarded by the tribunal is modified as under:
HEAD AMOUNT
Loss of dependency -Rs.11,39,528/-
(i.e. Rs.93500 25% FP=1,16,875 - 1/4th PF x 13 (M))
Consortium -Rs.2,20,000/-
(i.e. 44000x5)
Funeral expenses -Rs.16,500/-
Loss of estate -Rs.16,500/-
--------------------
TOTAL Rs.13,92,528/-
22. Thus, the just and proper amount of compensation in the instant case is Rs.13,92,528/- as against the award of the Tribunal of Rs.7,05,060/-. Accordingly, the appellants are entitled to an additional sum of Rs.6,87,468/- over and above the amount which has been awarded by the Tribunal.
23. In the result, the appeal filed by the insurance company (MA No.258/2016) is dismissed whereas the appeal filed by the claimants (MA No.352/2016) is partly allowed by enhancing the compensation amount by a Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02 11 MA-258-2016 sum of Rs.6,87,468/-. The enhanced amount shall bear interest at the same rate as awarded by the Tribunal. The other findings recorded by the Tribunal shall remain intact.
(HIRDESH) JUDGE hk/ Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 09-07-2024 16:47:02