1. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant-oriental Insurance Company Limited, being aggrieved by award dated 12.1.2000 passed by Motor Accident Claims Tribunal/Ist Additional District Judge, Ghaziabad.
2. This appeal is of the year 2000 after the notices were issued and the stay was granted, no one appeared for the respondents,. They are deemed to have been served.
3. While going through the record, it is very clear that the owner or the driver did not contest the claim and therefore also though they are served with the notices in the year 2000 they have not appeared before this Court through they belong to the nearby District Ghaziabad.
4. The brief facts leading to litigants between the parties that on 4.7.1995 Sanjay Tyagi was plying on the motorcycle being USY-6067 and when reached at Mohan Nagar near on the road towards Ghaziabad one truck bearing Truck No. CDLG 3403 dashed the motorcycle from behind and deceased Ashok died. The driver of the truck was driving the vehicle at an very exorbitant speed. Sanjay Tyagi was hospitalized for six month and therefore could not immediately filed the claim petition. He claimed Rs.7,15,000/- from the opponents. Insurance Company filed its reply one of denial and contending that the driver of the truck was not negligent it was the claimant who was negligent. It is further contended that there was breach of policy condition, therefore, they could not be saddled with any liability to make good any payment and prayed for the dismissal of claim petition.
5. However, the contention is raised that this is the case of total negligence of the motorcycle being Vehicle No. USY 6067 who was the claimant himself and, therefore, also the Insurance Company could not have been saddled with the liability to make good the amount of compensation. It is submitted that if this Court does not accept the principle of negligence atleast by going through the record it has proved that it was a case of contributory negligence. It is further submitted that the compensation which has been awarded is very exorbitant and the compensation of Rs.2,15,000/- is on higher side and against the principles enunciated by the Apex Court.
6. Be that as it may be though this appeal is listed for order. The order of fresh notice till not served any parties.
7. The issue of fake licence has been proved and just because the RTO Officer did not come despite several summons being issued and the finding of fact that it is for the insurance company to prove that the licence was fake. The ground taken was that the vehicle was not involved in the accident. The document at Ex-138K is a Government document and ought to have been believed as held by this High Court in the case Oriental Insurance Company Limited Vs. Punam Kesarwani and others, 2010 ACJ 1992 wherein paragraph 3 to 11 is very clear and therefore the same reliance has been placed in this case. The Tribunal failed to hold that the insurance company had taken deligent efforts to prove that the licence was not issued by the concerned RTO and,therefore, in light of Pappu and others Vs. Vinod Kumar Lamba and another, AIR 208 SC 595 and , therefore, the recovery rights will have to be granted. However with a rider that it will be open to the owner to prove that it was not a fake licence. The main ground is that the licence of the driver was fake and, therefore, the Insurance Company who had insured the vehicle being Truck No. DL 1G/3403 was not liable to pay any amount of compensation. It has submitted that though the warrants were issued, nobody from the RTO nor the driver or owner have stepped into witness box to show that the licence was a valid licence. The owner and driver neither filed written statements and therefore the owner has not proved that the licence was a valid and proper driving licence. The version which was produced shows that the driving licence which was issued by RTO, Sonipat was never issued by them, their Inspector who inspected facts has told that the licence was a fake. This was produced by way of document this was on record but unfortunately the RTO Officer /Clerk never appeared before the Tribunal and, therefore, it is submitted that adverse inference should have be drawn against holding of the licence. The Insurance Company who had been permitted permission under Section 170 of the Act, 1988 had taken all care to prove that the driver of the vehicle did not possess proper driving licence. The owner has not appeared before the Tribunal to prove that he was not aware about the fact that the driver had no proper driving licence. He has absented himself and the driver has absented himself and therefore the driving licence being fake could not be shifted on the insurance company as attempt was made by the Insurance Company to prove that the driver did not have proper driving licence.
8. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
9. 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.
10. 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."
11. 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."
12. As far as issue of negligence is concerned, having gone through the record it is very clear that the incident occurred due to sole negligence of the driver of the truck as it is evident from the claimant himself and no perversity can be found in the finding of negligence by the Tribunal. The Tribunal has believed the evidence of the claimant and the claimant had proper driving licence to drive the motorcycle. The truck dashed from behind without blowing any horn and the driver or the owner did not appear before the Tribunal. The driver who drives the vehicle from behind has to be more cautious, and has negatived the suggestion of the counsel for the insurance company that the motorcycle driver should have taken more care. A suggestion was made to the claimant in his cross examination that he had tried to overtake the truck which has been negatived by him. The fact that the driver of the truck did not appear also is held against them. Hence, the issue of negligence has been rightly decided by the Tribunal and I am not persuaded to take any other view than that taken by the Tribunal.
13. As far as last issue of compensation, the Tribunal has taken into consideration the decision applicable in the case of Oriental Insurance Company Limited Versus Prakashwati and another , ACJ 1999 page 869 and has awarded the compensation to the claimant who had claimed a sum of Rs.7,15,000/- and he had produced the documents of medical bills. The disability has also been properly proved that is how the Tribunal has granted the amount. The rate of interest in this case 9% which cannot be said over exorbitant.
14. The appeal is partly allowed. Insurance Company may recover the amount from the owner by the execution proceeding, if they so chose. The judgment and decree shall stand modified.
Order Date :- 30.1.2019 Mukesh