Allahabad High Court
Brahma Dutt Sharma vs Umesh Sharma And Others on 30 January, 2019
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 26 Case :- FIRST APPEAL FROM ORDER No. - 534 of 1995 Appellant :- Brahma Dutt Sharma Respondent :- Umesh Sharma And Others Counsel for Appellant :- K.C.Saxena,K.C.Srivastava,R.P.Tiwari Counsel for Respondent :- Dinesh Chandra Srivastava,R.K.Shukla Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant-Brahma Dutt Sharma, being aggrieved by judgment and decree dated 7.3.1995 passed by Court below rejecting the claim petition despite giving finding of contributory negligence.
2. This appeal requires to be allowed for the reasons mentioned herein below.
3. The accident having taken place is not in dispute. The appellant having suffered loss of one vision is not in dispute. The vehicle being insured with insurance company and there is no breach of policy condition. The accident occurred way back in the year 1990 is not in dispute. The involvement of the vehicle is not in dispute and is proved before the Tribunal. The appellant challenges the findings as they are perverse and against the record and, therefore, factual data is not adverted to except that the accident occurred at 10.00 pm at night when the appellant was driven his motorcycle all of a sudden the driver of the tempo drove the tempo in rash and negligent manner and dashed with the motorcycle of the appellant rendering him unconscious. The appellant was a Government servant but unfortunately he had not produced documentary evidence to show his permanent and partial disablement except that he had lost vision in one eye and he was placed at a lower grade but that was also without any documentary proof.
4. It is submitted by the learned counsel for the appellant claimant that the Tribunal has erred in holding that the tempo was being driven on its correct side. It has further submitted that the claims Tribunal failed to consider the bills of medicines and medical treatment. The claims Tribunal has rejected the claim petition without assigning proper reason and suffers from perversity. The Tribunal should have granted the amount under the principles of no fault liability. Tribunal has materially erred in rejecting the claim petition despite holding that this was a case of contributory negligence it could have halved the compensation but could not have dismissed the claim petition.
5. This appeal requires to be decided on the touchstone of the principles enunciated by this Court and the Supreme Court for deciding the issue of negligence and whether this Court can grant compensation as 24 years have elapsed from the date of the rejection of claim petition and the record is before this Court in view of the judgment in Bithika Mazumdar Versus Sagar Pal, (2017) 2 SCC 748 wherein the Apex Court decided the question of quantum. The High Court dismissed the petition on the ground of delay. The case before us was dismissed erroneously by the Tribunal. The appeal is pending before this Court since 1995 and, therefore, it will be duty of this Court to determine just and fair compensation as it is admitted that the injured had lost one vision and therefore instead of remanding this matter after 24 years, I proceed to decide the quantum also in light of the aforesaid judgment.
6. The principles enunciated by the Court to decide who was the author of the accident or whether the accident was coauthored by two persons and whether the claimant or the deceased was himself contributor to the accident having taken place are summarized as under-
7. The latest decision on the issue of negligence in Rajasthan SRTC Versus Alexix Sonier, (2015) 17 SCC 758 wherein the Apex Court has held in paragraph 13 as under : -
"13) So far as the question as to whether the accident in question which occurred on 08.01.1988 was a result of contributory negligence or the driver of the bus of the Corporation was driving rashly and speedily is concerned, we find that the driver of the bus had denied that any accident in fact had taken place, however, the site plan (Exh. 52), which has been taken into consideration by the High Court, shows that the bus was driven at a sufficiently high speed and skid marks of the tyres of bus are about 32 ft. in length which were because of the speed of bus. The speed of the bus was quite high and at the relevant time it cannot be stopped immediately. The High Court has, therefore, correctly held that the bus was driven rashly and negligently and at a very fast speed. Therefore, the question of accident being a result of contributory negligence does not arise."
8. Let us see facts of the case on hand; (i) the driver or the owner of the other vehicle have not stepped into the witness box. (ii) the charge sheet and the FIR was laid against the tempo driver, (iii) the claimant has examined himself has produced his document namely, FIR, charge sheet and the oral testimony of medical officer. Witness number 1 and 2 have categorically mentioned in their testimony that the motorcycle was being driven on its correct side. On seeing that tempo he went on took his vehicle on further left side of his correct site despite that tempo came rashly and negligently and dashed with his motorcycle and he became unconscious and was shifted to the hospital and he has lost vision of one eye and the vision of another eye of 50%. He was admitted in the Medical Hospital by police personal. He was going to Jhansi as his brother-in-law was getting engaged. This has weighed with the Tribunal in (i) holding him contributory negligent and then while awarding the amount a whimsical view and holds that there was no disability and that if he had his Insurance he would taken from them and issue no. 2 he has been taken to be totally negligent.
9. Once a Judge held that there is contributory negligence, thereafter, cannot take a u-turn and dismiss the claim petition by saying that the claimant must be driving at a great speed because he has not taken permission to go from one district to another district. This is nothing but a finding of fact based on notion of the Tribunal which cannot be the basis for rejecting the claim petition. The person who has suffered loss of vision of one eye as per the doctor's opinion and testimony and therefore as per the provision of Act, 1988 and the schedule and the definition of disability as it is defined in Section 142 of the Act, 1988. These facts were required to be looked into by the Tribunal.
10. The entire judgment which is in three pages shows total lack of judicial application of mind as well as it shows that the learned Judge did not feel that as it is beneficial peace of legislation amount should have been awarded when it was proved that he had sustained disability and there was loss of vision in one eye and there was partial loss of vision in the other eye. .
11. It is submitted by the counsel for respondent insurance company that once the Tribunal has held on facts that the claimant was negligent the judgment cannot be found fault with and that the claim petition was rightly rejected by the Tribunal.
12. Heard both the learned Advocates. None appears for the owner when the matter is taken up for final disposal.
13. I am unable to accept the submission of learned counsel for the Insurance Company that the Tribunal's finding on contributory negligence requires to be upheld. The reasons are that (i) the driver of the other vehicle never stepped into witness box. (ii) The police authority who had scribed the FIR also stated that the driver of the Tempo was driving the vehicle at the high speed. (iii) The charge sheet was laid against the driver of the tempo. The accident occurred at 10.00 p.m. and (iv) Motorcycle was so damaged which shows that evidence of PW-1 cannot be brushed aside.
14. The finding of the Tribunal are perverse. The tempo being a bigger vehicle as no legal evidence has been produced to show that the claimant had contributed to the accident. Tribunal has not given proper reasons for holding him negligent whether he had taken permission to come Jhansi or not is of no relevance and it has not been brought on record that because he has left place of service, he was negligent. The conclusive proof of against the tempo driver, therefore, the tribunal committed manifest error in holding the appellant first contributory negligent and coupling with no proper reply for leaving the head quarter. There is no evidence about the motorcycle being driven negligently by the appellant at the time of accident. The Respondent did not produce any such evidence and there is a charge sheet against the tempo driver which prima-facie pointed towards the negligence of the appellant. Thus the finding of contributory negligence cannot be sustained. I am supported in my view in Mangla Ram Versus Oriental Insurance Company Limited, (2018) 5 SCC 656.
15. 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.
16. The 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. 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."
17. 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."
18. This takes this Court to the quantum of question from the record and testimony of PW-1 the claimant himself PW- 3 and 4 who are the doctor who treated the appellant and the medical evidence showing that he had lost vision of one eye. The finding of fact that the injures were not sufficient to grant him compensation is bad. The doctor who has deposed as PW-3 and PW-4 have categorically mentioned that he had a fracture in lower portion of fore arm. He was in hospital from 3.2.1990 to 5.2.1990 he had fractured his wrist also. He had injury on the head also. He was not discharged by hospital but he had taken discharge and he was admitted in other hospital and from 24.2.1992 it was found that he had vision of 6 x 9/6/19 of his left eye and there is no possibility of improvement. He has withstood the cross objection of the insurance company and the Advocate for the owner.
19. In view of the decision of the Apex Court reported in Rajasthan SRTC Versus Alexix Sonier ( supra), as 25 years have elapsed, I propose to decide the quantum also. For loss of vision of one eye the claimant would be entitled to amount under pain shock suffering. His was 36 years at the time of accident and he had spent around Rs.95,000/-. He has three children. He was downgraded because of the injures and he has been made session organizer and his pay grade has been reduced from 1640-2900 to 1320-2040 . The Tribunal has not considered all these facts and rejected the claim petition on the ground that he might have taken compensation from his own insurance company and, therefore, held that he was not entitled to any amount. The document at 123C showed that he was admitted in casualty ward as there was head injury and fracture on right arm and he has problem of left eye. Compensation is to be paid on the basis of disability. The average income in this case can be considered to first clear loss of income due to his injuries he has been demoted in his job for that he would be entitled to the compensation. For loss of vision he would be entitled to compensation. For medical expenses he would be entitled to compensation under the head of pain shock suffering. For loss of enmities, he would be entitled to compensation.
20. The loss of vision will permit this Court to grant him a sum of Rs.1,00,000/- under the head of pain shock suffering. He has produced the medical bill for Rs.90,000/-. Hence, this amount requires to be paid to the appellant. From the record, he has not proved what is his functional disability and hence the multiplier method cannot be applied but as he has been kept in lower grade, a lump sum Rs.25,000/- is ordered to be paid under that head. Under the head of conveyance, attendance charges and good diet an amount of Rs.30,000/-is awarded. Hence, the claimant is entitled to Rs.2,45,000/- from the respondent jointly and severally.
21. Amount shall carry 9% rate of interest from filing of claim petition till 1995 and from 1995 till the amount is deposited at 4% as the matter remain pending before this Court therefore the Insurance Company being not at fault cannot be penalized for the same.
22. Appeal is partly allowed. Judgment and decree shall stand modified. The amount be deposited within a period of 12 weeks from today.
23. This Court is thankful to the learned Advocates for the claimant-appellant and learned counsel for insurance company. Record and proceeding be sent to the Tribunal. The amount deposited be disbursed to the appellant without keeping it in fixed deposit as 29 years have elapsed from the date of accident and he is not a illiterate person and, therefore, in view of the judgment reported in A. V. Padma and others Versus R. Venu Gopal and others, (2012) 3 SCC 378.
Order Date :- 30.1.2019 Mukesh