1. Heard Sri K.S. Amist, learned counsel for the appellant and perused the judgment and order impugned. Though this appeal is of the year 1992, none appeared for the owner and the claimants.
2. By way of this appeal the Oriental Insurance Company Limited has felt aggrieved by the judgment and award dated 26.8.1992 passed by the Special Judge (D.A.A.)/Motor Accident Claims Tribunal, Jhansi (hereinafter referred to as 'Tribunal') in claim petition No147 of 1989 awarding a sum of Rs.2,33,000/- as compensation with interest at the rate of 12% to the claimants-respondents.
3. Facts as culled out from the record are that the respondents claimed compensation for the accident which took place on 21.1.1989 at about 5.00 p.m. The deceased was plying on his moped No. U.G.G.6024 and when he crossed Datia Gate Railway Crossing and reached Balaji Road, a tractor being No.U.A.UP. 1356 came from behind and dashed the deceased causing serious injuries to the deceased who after the said accident fell down on the ground and become unconscious. Gauri Shaker, the brother of the deceased and his friend who were plying another scooter got the deceased admitted in the District Hospital, Jhansi but the deceased succumbed to his injuries on the very same day leaving behind his widow and two minor sons.
4. The deceased was admittedly 28 years of age. He was a businessman and it is stated in the claim petition that he was earning Rs.4,000/- per month. The F.I.R. came to be lodged by the brother of the deceased. The owner, driver and the insurance company filed their respective written statement. Respondents No.1 and 2 denied the allegations and contended that the said tractor was insured with the insurance company for the period from 7.7.1989 to 5.1.1990, therefore, the insurance company was liable to pay compensation, if any. It was also contended that the driving license was valid for the period from 31.7.1986 to 30.1.1991 whereas respondent No.3, the insurance company, appellant herein took the standard objection in the written statement. The Tribunal framed five issues and all were held against the insurance company.
5. I have heard Sri K.S. Amist. The multifold contention are that the tractor trolley was insured with the appellant for agricultural use and the insurance company has proved that the vehicle was being used for purposes other than agricultural use and, therefore, they are not liable and for that the Tribunal has not recorded any finding specifically pleaded before it.
6. It is further submitted by Sri Amist that the insurance company as well as the owner and the driver of the tractor have raised the specific plea of contributory negligence which has also been decided against them. It is submitted that the deceased who was driving Moped was himself negligent.
7. It has been lastly contended that the Tribunal presumed the income of the deceased as Rs.18,000/- per year and the multiplier of 35 could have been applied and the rate of interest even in the year 1990 could not have been 12% per annum.
8. While buttressing the first two contentions, learned counsel for the appellant could not show to this Court that any specific plea with respect to breach of policy condition as far as the use of vehicle is concerned was ever proved. The submission that the issue was not framed which has to be framed on the contention being raised before the Tribunal. It appears that no such contention was raised by insurance company except that there was breach of policy.
9. The main reliance placed by the counsel for the appellant was on the evidence of D.W.1 who stated that he was traveling in the tractor by sitting in the trolley. It is not on record that the trolley was insured and therefore, it is clear in what capacity D.W.1, Parshuram was sitting in the tractor trolley and, therefore, the said submission is rejected as it is not proved on facts that he was travelling in the vehicle and he is a got up witness for the purpose of contributory negligence and his testimony has been rightly not believed by the Tribunal.
10. As far as the rash and negligent driving is concerned, the statement of Parshuram, D.W.-1, has not been believed by the Tribunal. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
11. 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.
12. The contributory negligence has been discussed time and again a person who either contributes or is 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."
13. 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."
14. The tractor driver dashed the moped from behind and it is cardinal principle that the person who drives in the rare side of a cross junction has to be very vigilant and has to be more cautious and, therefore, I do not find that this is a case of contributory negligence.
15. This takes this Court to the issue of quantum. The incident took place in the year 1990 when new Act had come into being. The deceased was 28 years of age and there is no dispute about it. He had a business of his own. The Tribunal has considered his income as Rs.18,000/- per annum and instead of 1/3rd, 50% has been slashed as personal expences and the figure is of Rs.9,000/-. Even if we accept the contention of the counsel for the appellant that multiplier is on the higher side, the learned Trial Judge has not considered any addition to the future prospects and, granted Rs.3,32,000/- as compensation. The Tribunal has deducted 30% of compensation as lump sum is granted will bring down the multiplier to one which would have been granted as per the decision of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121.
16. It is rightly contended by Sri Amist that the rate of interest could not have been 12%. However, as the incident is of the year 1990, I do not think that the same requires interference after such a long period, however, this shall not be treated as precedent.
In view of the above, the appeal fails and is dismissed.
17. Stay stands vacated. If the amount has not yet deposited, the same shall be deposited within six weeks from today and disbursed to the claimant.
18. This Court is thankful to Sri K.S.Amist, learned counsel for the appellant for getting such a very old matter disposed of.
Order Date :- 29.1.2019 DKS