Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1039 of 2003 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Dassi Devi And Others Counsel for Appellant :- Arun Kumar Shukla Counsel for Respondent :- S.D. Ojha
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Arun Kumar Shukla, learned counsel for appellant and Sri S.D. Ojha, learned counsel for claimant. None appears on behalf of owner of the tractor.
2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by The New India Assurance Company Limited(appellant), being aggrieved by judgment and award dated 10.1.2003 passed by the Motor Accident Claims Tribunal/Special Judge, Azamgarh in MACT No. 93 of 1990.
3. Brief facts of the present case are that the deceased was travelling from Azamgarh to Chiraya Kot in Jeep No. UHX-7965 and near Village Jamlpur, P.S. Sidhari, District Azamgarh, on Azamgarh - Ghazipur Road on9.5.1990 at about 09 a.m. the said jeep collided with tractor No. UTQ-2982 and the accident occurred due to rash and negligent driving of both the said vehicles and Statya Ram died due to injuries sustained by him in the said accident. The owner of the said jeep was Rajesh Kumar Singh and the owner of the said Tractor was Ravindra Pal Singh. Both the said vehicles were insured with New India Assurance Company Limited. The deceased was earning Rs.3,000/- per month at the time of accident. The age of the deceased was 35 years at the time of accident.
4. It is submitted by Sri S.D. Ojha-Advocate for claimant respondent that the accident qua the deceased was a case of composite negligence. It is submitted by Sri Arun Kumar Shukla-Advocate for the Insurance Company that the owner and driver of the tractor have not stepped into witness box. The charge sheet was laid against the driver of the tractor, despite that the entire liability has been fixed on the driver of the jeep namely the insured of the appellant holding the driver of the jeep to be solely negligent in causing the death of the person travelling in his vehicle.
5. 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.
6. 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."
7. 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."
8. The factual scenario will now have to be ascertained as to whether the finding of fact that the driver of the jeep was the only person guilty of commission of the accident. While analyzing the factual data it would be clear that the vehicle dashed with each other. The tribunal seems to be carried away with the fact that the tractor driver was not joined as a party. The DW-1 Ashok Kumar Srivastava states that he was travelling in that jeep and the driver was driving the said jeep rashly and negligently, and he stepped down from the jeep near Sidhari Railway Crossing feeling himself insecured in the jeep. This witness being not an eye witness cannot be relied upon. DW-6 Brij Nath Singh is the uncle of the jeep owner Rajesh Singh who states that he was driving the jeep at the time of accident, and tractor No.UTQ-2982 came rashly and negligently and dashed against the jeep and the persons sitting in the jeep were injured, and Satya Ram died in the accident.
9. Both the vehicle were being driven rashly and negligently. The factual scenario goes to show that the driver of the vehicle was driving it rashly and negligently is evident form the FIR and the charge sheet.
10. Hence, the owner and driver of tractor and its insurance company will indemnify the appellant to the tune of 40% as the driver of the tractor trolly is held to be 40% negligent.
11. Appeal is partly allowed.
Order Date :- 26.4.2019 Mukesh