Allahabad High Court
The New India Assurance Co. Ltd. vs Smt. Minakshi Sharma And Others on 3 December, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 3459 of 2007 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Minakshi Sharma And Others Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- Satya Dev Ojha AND Case :- FIRST APPEAL FROM ORDER No. - 3460 of 2007 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Minakshi Sharma And Others Counsel for Appellant :- Rakesh Bahadur Counsel for Respondent :- Satya Dev Ojha Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Rakesh Bahadur and Sri S.D.Ojha, learned counsel for respondents- claimants however non present for owners.
2. Both the appeals have been filed by Insurance Company of Scooter being Scooter No. UMQ-630 involved in the accident and who have been ordered to pay compensation for the death of the driver and one pillion of other scooter which had been crushed by the truck which was coming from behind. The driver and insurance company of the truck were not made party. The owner of truck was made a party.
3. The claim petition MACP No.209 of 2002 was filed by the widow and minor son of deceased Ajay Sharma whereas the other MACP being 208 of 2002 was filed by Smt. Minaxi mother of deceased Anjali who was five years of age.
4. Both these claim petition was heard together. As far as the claim petition filed by the claimants the Tribunal framed four issues namely, whether the scooter bearing number UPQ-630 and truck UTS-871 drove the vehicle rashly and negligently causing the death of Ajay Sharma. The second issue was whether the deceased Ajay Sharm was also negligent in driving scooter no. HR-26 N-4292 whether the driver of scooter UMQ-630 had proper driving licence and what compensation the claimants were entitled to inform whom.
5. The claimants exained eye witness Smt. Minaxi as PW-1 and Dilawar Singh PW-2. The respondents examined DW-1 Muzarat Ali. The claimants filed the FIR , postmortum report of Ajay Sharma and minor Anjali. The pay slip of the deceased, HIgh School passed certificate, certificate issued by polytechnic. Fee receipt of Anjali issued by Lady Fathma School , Guargoan and the progress report. The insurance company filed the site plan , charge sheet but did not examine any person on oath namely no oral testimony was recorded.
6. While going through the record and the judgment it is clear that the claim petition were filed under Section 163A and 166 of the Motor Vehicles Act, 1988.
7. This takes this Court to the skeletal facts the deceased was plying on his scooter with his wife and children and going at a slow speed, a truck came and dashed from behind. This is the version in the FIR but after certain period of time, a letter was returned contending that the scooter insured with the appellant was also involved in the accident and that the scooterist who tried to overtake the scooter driven by the deceased dashed with the front portion of the vehicle driven by the deceased whereby the deceased and her minor daughter fell down and the speedy truck coming from behind crushed the deceased who died out of vehicular injuries.
8. The accident occurred on 15.11.2001. The FIR was lodged by the real brother of the deceased. The charge sheet was laid without reference of the involvement of the scooter no. UPQ-630. The claimants moved an application before the Superintendent of Police for inclusion.
9. The owner of the truck who was made a party contested the claim by contending that there was oil spillage on the road and the deceased died as he was carrying more persons on the pillion and could not maintain his balance.
10. The Tribunal held the driver of the scooter and the driver of the truck equally negligent and held both the drivers negligent.
11. While going through the record, it is very clear that it is a case of involvement of three vehicles, namely, (i) scooter being plied by the deceased along with his son his wife and daughter. (ii) scooter bearing no. UMQ-630 owned by respondent no. 4 herein and insured with appellant herein (iii) and the truck whose insurance company whether it was insured or not, is not brought on record.
12. It is submitted by Sri Rakesh Bahadur, learned counsel for appellant that the vehicle which was insured by the appellant was not even involved in the accident as its number or data was not mentioned in the FIR. It was only subsequently by a letter said to be involved in the accident. It appears that that stand was taken may be because the truck may not have been insured.
13. It is further submitted that PW-2 has categorically stated in his cross examination that there was a collision between two scooters namely the one which is insured with the appellant which is said to have tried to overtake the scooter of the deceased and while trying to do so dashed with the scooter of the deceased. While trying to overtake the vehicle of the deceased the said speedy scooter which was coming from behind at about 8:00 p.m. while trying to overtake the same dashed with the vehicle driven by the deceased and as a result of which the deceased and one his daughter fell down. It is submitted by Sri Rakesh Bahadur, Advocate that this testimony is not to be relied on. It is further submitted that the scooter became imbalanced because of overload the scooterist was not even involved in the accident. The evidence of the witness PW-2 withstood the cross examination of the insurance company and maintain that the driver of the scooter as well as the truck both contributed to the accident having taken place. The Tribunal has accepted the fact that the truck had caused the death and therefore the driver of the scooter insured by the appellant cannot be saddled with any liability rather the said vehicle was not involved in the accident . The investigation was complete, charge sheet was laid till then the number of the vehicle insured was not given .
14. The application was given by the widow who was under tremendous trauma as she had lost her husband and minor daughter. The Tribunal has given cogent reasons and the delay has been explained in the judgment of Apex Court in Oriental insurance Company Versus Prem Lata, 2007 (3) TAC 11 SC has been explained by the Tribunal. The Tribunal has categorically come to the conclusion that the scooter was involved in the accident. Neither the owner nor the driver appeared before the Tribunal. Thus I do not think any other view can be taken in the facts of this case.
15. This takes this Court to the submission of Sri Rakesh Bahadur regarding contributory negligence of the deceased. the principles which are necessary for being looked into for considering negligence are enumerated and discussed time and again by the Apex Court and this High 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."
16. The learned counsel for appellant has heavily relied on the judgment of Supreme Court in Nishan Singh and others Versus Oriental Insurance Company Limited and others, 2018(3) T.A.C. 12 (S.C.) contending that the driver of the truck was the sole person who was negligent and it has been submitted that the rules of the Road Regulation will obliged to this Court to hold that the driver of the truck was solely negligent. The paragraph 10 of the said judgment on the contrary goes to show that the observations of the Tribunal on part of scooter driver and the truck was rightly believed by the Tribunal. However, one think required to be taken into consideration that the deceased was driving the vehicle with two pillion riders. The deceased plied the scooter with two persons as pillion rider and, therefore this Court feels that some negligence should be attributed to him which would be 10%.
17. While going through the record and perusing the same, certain facts which emerge are that the driver of truck did not step into witness box nor did the driver owner of the scooter insured with the appellant stepped into the witness box.
18. While going through the record it is very clear that it is a case of sheer negligence of both the driver of scooter and truck who have been held to be equally negligent. The deceased plied the scooter with two persons as pillion rider and, therefore this Court feels that some negligence should be attributed to him which would be 10%.
19. The widow who was an eye witness categorically stated the number of scooter. No witness has been examined to dispute this fact that the scooter was overtaken by other scooter which fact has been proved before the Tribunal, and while trying to overtake the scooter driven by the deceased, he did not take proper care and caution to see that the accident did not occur . He had not even tried to see that scooter infront rather the deceased would not have lost his balance had the driver of the scooter taken some care and caution and, therefore, negligence has to be attributed to the driver of the scooter and truck which is insured with the appellant.
20. I am agreement with the submission made by Sri Rakesh Bahadur, Advocate that the truck driver must be driving the truck at the exorbitant speed and he ranover two deceased and had he maintained proper distance, he could have avoided the accident having taken place.
21. Hence, I attributes 60% negligence on the driver of the truck 30% on the scooter and 10% on the deceased himself.
22. As far as the claim of the claimants is concerned, except 10% they can recover the amount from any of the respondents as it is a case of composite negligence qua them .
23. As far as the compensation is concerned, it is rather conservative and no amount for future loss of income is granted.
24. The compensation as far as the claim petition 209 of 2002 is concerned held that the deceased was serving with BSNL as a junior engineer and his income was considered to be 12878/- and devoided by 1/3rd and granted multiplier of 17 as he was 33 years of age and granted 7500 for non pecuniary damages . I am in agreement with Sri Rakesh Bahadur, Advocate that the multiplier is on higher side but though he was below the age of 50 no addition of future loss of income was made and, therefore, also the compensation does not require to be disturbed. Except 10% which has to be deducted for his personal negligence.
25. The appeals preferred by the Insurance company is allowed. The insurance company is at liberty to recover the 70% from the owner of the truck in MACP No.209 of 2002 and 10% from the claimants.
26. Record and proceedings be sent back to the Tribunal. Amounts to be disbursed to the claimants.
Order Date :- 3.12.2019 Mukesh