Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 662 of 1989 Appellant :- Kailash Nath Respondent :- Rajendra Yadav And Others Counsel for Appellant :- Asharfi Lal Jaiswal,Sharve Singh Counsel for Respondent :- S.K. Chaturvedi,D.C. Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Sharve Singh, learned counsel for the appellant, Sri D.C. Srivastava, learned counsel for the respondent-Insurance Company and perused the record. None appeared on behalf of respondent-owner.
2. This appeal, at the behest of the claimant, challenges the judgment and order dated 30.4.1988 passed by Motor Accident Claims Tribunal/Xth Additional District Judge, Allahabad (hereinafter referred to as 'Tribunal') in M.A.C. No. 93 of 1983 awarding a sum of Rs.1,40,000/- with 12% interest in favour of the claimant.
3. Brief facts as culled out from the record that appellant- injured had preferred the claim petition before the Tribunal claiming a sum of Rs.2,00,000/- with 12% rate of interest for the injuries which he suffered in a vehicular accident. The accident took place on Allahabad-Kanpur G.T. Road near Police Station Khokharaj on 25.6.1981 at about 3.15 p.m. The injured was the conductor in the mini bus being No. UTP 6523 which was collided with the truck being No. UPV 1389.
4. It is submitted by the learned counsel for the appellant and as has been urged in the grounds of the appeal that as there is head on collision between the two vehicles coming from the opposite direction in the broad day light, each of them has contributed to the accident and the Tribunal's finding holding the driver of the bus not negligent is erroneous. It is also submitted that it is a case of composite negligence qua the appellant, hence, award should be made against driver, owner and Insurance Company of both the vehicles jointly and severally. It is also submitted that the respondent-Insurance Company had not taken the plea of limited liability of Rs.50,000/-, hence, the liability is for the entire compensation awarded. It is further submitted that as both the vehicles were insured with the same Insurance Company, the entire award should have been paid by Insurance Company and they could have recovered the same from the owner.
5. Learned counsel for the appellant has relied on the decision of the Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 to contend that from total compensation deduction is bad.
6. After hearing the counsel for the parties. The twin points for determination are that whether the apportionment of the award made by the Tribunal was erroneous and whether the award of Rs.1,40,000/- should be ordered to be paid by all the respondents jointly.
7. To appreciate the contention of the counsel for the appellant about the contributory negligence, principle of negligence and the judgment of the Apex Court will have to be appreciated.
8. The principle of negligence enunciated hereinbelow will have to be looked into as the Insurance company in memo of appeal has come with the stand that there was a head on collision and it was a case of contributory negligence and, therefore, there is error apparent on the face of record and erred in not framing any issue on that count.
9. The concept of negligence has been time and again enunciated by different Courts and the word 'negligence' will have to be viewed from the decision in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 which has been time and again referred by the Courts in India.
10. 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.
11. 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.
12. 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 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.”
emphasis added
13. The submission of the counsel for the appellant has to be accepted. The reason being claimant-appellant was non tort feasor and can claim from any of the tort feasor, hence, the said direction that he would be entitled to only Rs.50,000/- Going through the policy, this aspect of limited liability qua third party is not on record. Both vehicles were insured with the same Insurance Company. Both the drivers, owners and Insurance company of both the vehicles namely the Truck No. UTV 1279 and Mini Bus No. UTP 6523 would be equally liable. The injured has withstood the cross-examination. Both the vehicles have collided with each other. The mini bus was coming from Allahabad and the truck was going towards Kanpur which shows that there was head on collision.
14. Version of P.W.2 was also to the effect that both the drivers did not take proper care and caution. P.W. 5 has been consistent that the driver of the mini bus was also negligent. He has changed his version before the police and before the Tribunal.
15. The conclusion that only truck was negligent is bad in eye of law. Just because the evidence was not produced by the truck driver, both the drivers have to be held to be negligent. It was even the case of the claimant that it was a case of contributory negligence. Hence, 40% negligence is attributed to the driver of the mini bus.
16. While going through the record, the finding of fact that the liability of the Insurance Company of the truck was limited upto Rs. 50,000/- is not borne out from the record, however, as I have held both the driver negligent, the matter qua the claimant is one of composite negligence and, therefore, recovery can be made from the other tort-feasor.
17. As far as the quantum is concerned, the monthly income namely Rs.800/- per month has been rightly assessed by the Tribunal and is not disturbed. To that as the injured was 35 years of age, 40% of the income requires to be added, hence, the figure would be Rs. 1120/- and as he has sustained 30% disability the loss of income would be Rs.336/- namely Rs.4032/- per year. As the deceased was 35 years of age, the multiplier applicable would be 16 and looking to his injuries, additional amount of Rs. 30,000 under all other heads is granted over and above the non-pecuniary damages (Rs.40,000/-) granted by the Tribunal.
18. Hence, he would be entitled to the total sum of Rs.4032 x 16 + 30,000 = 94,512/- The amount shall carry 9% rate of interest from the date of filing of the claim petition till award and 4% thereafter till the amount is deposited. As it is a case of composite negligence qua the appellant, the amount can be recovered from any of the tort-feasor and the said tort-feasor will be entitled to recover the same from the other tort-feasor.
19. In that view of the matter, the appeal succeeds and the judgment is reversed. The amount be deposited with the interest as awarded hereinabove with a period of 12 weeks from today. Record and proceedings of the Tribunal be sent back to it forthwith.
Order Date :- 26.7.2019 DKS