Hon'ble Subhash Chand,J.
1. Heard Sri B. Dayal, learned counsel for appellants and Sri Amit Manohar, learned counsel appearing for insurance company.
2. The present appeal has been filed challenging the judgment and award dated 15.12.2007 passed by Motor Accident Claims Tribunal, Pilibhit (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 52 of 2002.
3. This is claimants appeal and is pending since 2008. The Tribunal has considered all other aspects. There is no controversy. The issue which we have to decide are the issue of negligence and the quantum of compensation awarded to the claimant-appellants. While going through the record, it is clear that the accident took place on 28.02.2002 where the deceased who was Bachelor and was running his own business died. As far as the respondent insurance company is concerned, they have accepted the liability.
4. Having heard the learned counsel for the parties, issue of negligence be considered from the perspective of the law laid down.
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 principle of 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.
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 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
8. While considering the evidence of D.W.1, namely, the bus driver, the principles of falsus in uno falsus in omnius will apply in the facts of the present case. The words falsus in uno falsus in omnius meaning thereby false one thing would be false in everything should be applied to the facts of this case also. His testimony is totally silent on the way how the accident occurred as even in his oral testimony, he has maintained that his vehicle was not involved in the accident. The deceased did on the spot. The deceased was trying to overtake the horse cart. The charge-sheet was led against the bus driver and therefore, we hold the deceased 25% negligent and not 50% as has been held by the Tribunal.
9. The submission that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra)(4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5) National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben W/o. Dipakbhai Hariram and Anr. v/s. Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:
"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.
para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.
para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."
10. Thus even in the year 1990 to 2005, the addition of future prospects was not ruled out, just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated with decision though of persuasive value of Gujarat High Court referred herein above wherefore, the submission of Sri Amit Manohar that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing.
11. In Malarvizhi & Others and Indiro Devi & Others (Supra), it has been held that Income Tax is the mirror of one's income unless proved otherwise. In our case, the returns as it reflects, proved income of deceased to be Rs. 2,04,000/- per annum. On what basis, the Tribunal has disregarded this income cannot be fathomed as a man's income would increase unless proved otherwise. Even in the earlier days, the factors to be considered for issuing quantum of compensation reads as follows:
12. While considering the evidence of D.W.1, namely, the bus driver, the principles of falsus in uno falsus in omnius will apply in the facts of the present case. The words falsus in uno falsus in omnius meaning thereby false one thing would be false in everything should be applied to the facts of this case also. His testimony is totally silent on the way how the accident occurred as even in his oral testimony, he has maintained that his vehicle was not involved in the accident. The deceased did on the spot. The deceased was trying to overtake the horse cart. The charge-sheet was led against the bus driver and therefore, we hold the deceased 25% negligent and not 50% as has been held by the Tribunal.
13. Learned counsel for the appellants has submitted that deceased was 26 years of age and was a Bachelor. It is submitted that the Tribunal has considered his income to be Rs.1,20,000/- per annum which is made and it should be at least Rs. 2,04,000/- per annum. It is further submitted that the Tribunal has not added any amount under the head of future loss of income of the deceased which should be 25% of the income in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050; that multiplier should be applied on the basis of the age of the deceased and not on the basis of age of the parents and for that he has relied on the decision of the Apex Court in Munna Lal Jain & Anr. Vs. Vipin Kumar Sharma & Ors. 2015 (6) SCALE 552 wherein it has been held that multiplier should be on the basis of the age of the deceased. It also submitted that the interest and the amount under the head of non pecuniary damages are on the lower side and requires enhancement.
14. After hearing the learned counsel for the claimant-appellants and perusing the judgment and order of the Tribunal, which is under challenge before this Court, the income of the deceased should be considered to be Rs.10,000/-. As per the document 86-G the Tribunal could not go on deducting the amount first at the rate of 20% towards personal expenses that is 1/3 of the amount but the Tribunal has deducted 2/3 amount, which is highly deplorable. The computation of the compensation would be as per the provisions of Section 166 of the Motor Vehicle Act. From the record, it is clear that the deceased was upshot his business and he was earning Rs.6,923/- per month and then his income would be Rs.2,43,280/- per annum. All these facts have been ignored by the Tribunal while considering the annual income of the deceased which is bad in the eye of law. Therefore, we hold that the deceased would be earning Rs.1,20,000/- per annum, hence his monthly income would be Rs.10,000/- per month. The Tribunal has held the deceased negligent to the tune of 40% but as per our view it would be 25% and deduction towards personal expenses would be 1/2 as he was Bachelor and multiplier would be 18 as the deceased died at the age of 26 years, which falls under the age bracket of (26-30). As far as the interest is concerned, the Tribunal has allowed the interest of 6%, which would be 7.5%.
15. The total compensation payable to the claimants is computed herein below:
i. Annual Income Rs. 10,000/-
ii. Percentage towards future prospects : 25% (2500) iii. Total income : Rs.12,500/-
iv. Income after deduction of 1/2 =Rs.6,250/-
v. Annual income= Rs. 6,250 x 12 =75000/-
v. Multiplier applicable : 18 vi. Loss of dependency: Rs.75000 x 18 =13,50,000/-
vii. Amount under non-pecuniary head : 70,000/-
viii. Total compensation : 14,30,000/-
16. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
17. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited by the respondent-Insurance Company within a period of 12 weeks from today with interest at the rate of 7.5%. The amount already deposited be deducted from the amount to be deposited.
DEDUCTIONS OF INCOME TAX FROM THE COMPENSATION AWARDED:
18. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimants in their proportion for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceed Rs.50,000/- in any financial year, the deduction is not permissible, registry of the Tribunal is directed to allow the claimants to withdraw the amount, without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.
DISBURSEMENT BY TRIBUNAL:
19. The claimants being major and not an illiterate person the judgment of A.V. Padma Vs. Venugopal, [2012(1) GLH (SC), 442] will be followed by Tribunal as 11 years have already elapsed since the time of appeal and amount be granted.
20. This Court is thankful to both the counsels for getting this matter disposed of.
21. Let record of court below be sent back to the Tribunal concerned.
Order Date :- 17.9.2021 Prajapati