Court No. - 18
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 258 of 2000 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Bhani Devi Rawat & Others Counsel for Appellant :- Kuldip Shanker Amist Counsel for Respondent :- S.K.Singh,V.K.Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the parties and perused the record.
2. This appeal defective appeal is of the year 2000. Delay in preferring the appeal has been condoned vide order of the date passed on delay condonation application.
3. This appeal, under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as Act, 1988), is taken up for hearing by the consent of the parties.
4. The appellant has felt aggrieved by the judgment and award dated 20.12.1999 passed by 1st Additional District Judge/Motor Accident Claims Tribunal, Ghaziabad (hereinafter referred to as 'Tribunal') allowing a sum of Rs.4,82,000/- as compensation alongwith interest at the rate of 12% to the claimants-respondents for the death of Hari Singh Rawat which occurred by the motor vehicle accident which took place with Truck No.HR-38A/2478 insured with the appellant.
5. The deceased was plying Maruti Van No. HR 51B/ 0474 and qua him it is a case of composite negligence. However, the claimants were the parents and wife of the deceased. The grounds of appeal are as follows:
6. The Insurance Company challenges the award on the ground that no accident took place on account of rash and negligent driving of the driver of the truck whereas the Maruti Van was being driven in rash and negligent manner and, therefore, the finding of negligence is bad.
7. It was a case of contributory/composite negligence and not saddling the driver of maruti van with any kind of negligence is against the record and is bad in the eye of law.
8. It is vehemently submitted that the driver of the Truck which was insured with the appellant was not having a valid and effective driving license. Driver of the truck being the employee of the owner, the Insurance Company cannot be saddled with any liability as they have not replied under Section 147 of the Act, 1988 as there is breach of policy condition.
9. Lastly, it has been contended that the compensation awarded is on the higher side as the deceased could not have earned Rs.3,000/-. The dependency of Rs.2000/- per month and multiplier of 18 are exorbitant and high. The interest awarded is also on the higher side.
10. The issue of negligence will have to be decided on the principles enunciated by various Courts and Authorities and the facts which emanate in this case. The principles enunciated for deciding negligence of two vehicles with unequal magnitude as decided by 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 and the operative part of the said judgment are 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.”
11. While considering the issue of negligence, the fact that the accident took place due to involvement of two vehicles plying with unequal magnitude will have to be looked into. The F.I.R. has been lodged against the driver of the truck. The finding of fact of issue Nos. 1 and 2 goes to show that the driver of the truck was driving the vehicle at an exorbitant speed. The truck driver or the owner have not stepped into the witness box. They have even disputed the involvement of the vehicle though the same has been proved by the cogent evidence. The accident not doubt took place at a cross road but when the truck turned turtle, it goes to show the speed with which the driver of the truck had been driving.
12. The independent witness had stated that the death of the deceased was instantaneous. The vehicle which was small was hit on the side and after hitting it, the truck turned turtle. I witnesses also deposed against the driver and the owner of the truck. The truck was being driven from South to East. Hence, I do not find there is any fault on the part of the driver of the Maruti Van and the finding does not required to be interfered with.
13. The submission that the license was not proper, nothing has been proved that the driver did not have proper driving license and the finding on issue No.3 is bad.
14. The Insurance Company has not proved by cogent evidence that there is no driving license. In that view of the matter, this ground also fails and is rejected.
15. As far as quantum is concerned, the quantum in those days can be said to be on the lower side even considering the judgment in General Manager, Kerala S.R.T.C vs Susamma Thomas, 1994 AIR 1631, 1994 SCC (2) 176. The multiplier of 18 and non addition of any amount towards future prospects also will not permit this Court to interfere with the interest portion.
16. In that view of the matter, the appeal fails and is dismissed.
Order Date :- 31.10.2018 DKS
Court No. - 18
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 258 of 2000 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Bhani Devi Rawat & Others Counsel for Appellant :- Kuldip Shanker Amist Counsel for Respondent :- S.K.Singh,V.K.Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
(Ref: Civil Misc. Delay Condonation Application)
1. Heard learned counsel for the parties and perused the record.
2. This is an application seeking condonation of delay in filing the appeal.
3. Cause shown is sufficient.
4. Delay condoned.
5. This application, accordingly, stands allowed.
Order Date :- 31.10.2018 DKS