1. Heard Sri Anand Kumar Sinha, learned counsel for appellant and Sri Ashish Kumar Kumar Srivastava, learned counsel for claimants - respondent.
2. This First Appeal From Order has been filed under 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by The Oriental Insurance Company Limited , being aggrieved by judgment and decree dated 2.4.2008 passed by Motor Accident Claims Tribunal/ Special Judge ( E.C. Act) Badaun in Motor Accident Claim Petition No. 94 of 2002.
3. The brief facts of the present case are that on 2.1.2002, at about 9.00 a.m. a truck was being plied by the deceased on the road Sikarpur to Bulandshahar when the said truck reached Mirzapur in the District of Bulandshahar, one tractor trolly bearing No. UP-13 F-0397 was being driven rashly and negligently and came on the wrong side and dashed with the truck driven by the deceased. Truck driver Jahid received serious injuries and while being taken in the Hospital summed to the injuries sustained in the said vehicular accident.. The heirs of the deceased alleged in the claim petition that he was a professional driving earning Rs.5,000/- per month and that is why they claim a sum of Rs. 17,35,000/- from the owner and Insurance Company of Truck and from the driver, owner and the insurance company of the tractor. The owner of the truck did not appear before the Tribunal and the Insurance Company on being summoned filed their reply of negative and raised the technical objections like vehicle was not insured with them, the deceased was not driver on the vehicle his claim was not covered by them, there was breach of policy conditions.
4. The owner of the tractor also appeared before the Tribunal by filing reply which was one of rebuttal and contended that the accident occurred due to the fault of the deceased himself. The vehicle on the date of accident never met with any kind of accident with the alleged truck in question.
5. The Insurance Company of the tractor took the technical stands of breach of policy, tractor being used by person unauthorized to use it and that the driver of the said vehicle did not have proper driving licence and that the tractor driver did not contribute the accident having taken place. The tractor owner showed that the vehicle was insured with the Insurance Company from 4.10.2001 to 3.10.2002 and therefore if the Tribunal found the driver negligent, the Insurance Company was liable.
6. The Oriental Insurance Company with whom the tractor was insured did not accept that the vehicle was insured with them. They were not liable as the trolley was not insured with them and the driver did not have licence to drive tractor trolley and there was breach of policy condition.
7. The Insurance Company has felt aggrieved and have contended that the driver of the truck was himself negligent and if not totally liable for the accident his part in the accident is more than the driver of the tractor.
8. It is further submitted that the truck dashed with the trolley after the tractor had passed and it hit the portion of the trolley, the issue has been wrongly decided by the Tribunal. It is submitted that at the truck driver driven the vehicle in a manner in which the vehicle was being driven the impact was such that the accident could have been avoided.
9. It would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into.
10. The term 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 cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, negligence of drivers is required to be assessed.
11. 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.
12. 10th Schedule appended to Motor Vehicle Act, 1988 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 should 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. This is termed negligence. .
13. 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.
14. In light of the above discussion, I am 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, Courts 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.
15. 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 of driver of another vehicle.
16. The Apex Court in the case of Parmeswari Versus Amir Chand and others, 2011 ACJ 1613 (SC) held that High Court was not cognizant of the principle that in road accident claim, strict principles of proof as required in criminal case are not attracted- once eye witness who has taken the claimant, if the road accident for treatment, immediately after the accident has deposed in favour of claimant, HC was not right in holding that accident is not proved and claimant is not entitled for any compensation- SC allowed claim petition of injured claimant .
17. Learned counsel for the appellants submits that the accident was caused due to head on collusion between the truck and tractor trolley and therefore both the drivers of vehicle were negligent and and were co-authors for causing the accident. The deceased was himself driving the truck and due to his own negligence the accident was caused and therefore the claimant cannot claim any compensation under Act,1988 and they have remedy to move application for compensation. The Tribunal without any evidence wrongly held that the driver of the tractor was solely negligent in causing the accident although the first information report lodged by eye witness stated that it was head on accident. The appellant -Insurance Company had insured the tractor but it never insured the trolley and therefore the accident caused due to trolley and the Insurance Company never took any premium for insurance of trolley and no liability can be fastened upon the insurance company which never insured the trolley. The owner has violated the terms of the policy while he used trolley without any insurance. He further submits that the deceased driver of the truck had also no valid driving licence and therefore the negligence on the part of deceased driver cannot be ignored for the reason that a person who has no driving licence will be presumed that he did not know how drive the vehicle.
18. The accident having taken place has been discussed by the Tribunal and the site plan at Exhibit 12/G is perused by the undersigned. It is an admitted position of the fact that neither the driver of the tractor nor the owner of the tractor nor the owner of the truck came to depose before the Tribunal. Tribunal has evaluated the evidence of PW-2 Mohd. Tahir who was a helper on the truck on the date of the accident. He has deposed that the driver of the tractor came in rash and negligent manner and dashed with the truck on the driver's side that is how Jahid was caught between the door of the truck and the tractor trolley . The FIR also is against the driver of the tractor trolley however while going through the FIR the tractor came and tried to take a sharp turn and that is how the accident occurred. The FIR and the evidence of PW-2 will permit this Court to take any other view then that taken by the Tribunal as though it was a accident which was said to be caused by vehicles hitting head on but in this case the tractor troll as dashed with the door of the driver's side and not in middle of the vehicle and, therefore, the submission that the driver of the truck was also negligent cannot be accepted and is rejected.
19. Section 147 of Act, 1988 which reads as follows :
"147 Requirements of policies and limits of liability. ?
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which?
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)?
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required?
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee?
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. ?For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:?
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
20. The license produced cannot said to be in breach of Section 149 (2) (a) which reads as follows:
"149 (2) (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or"
20A. Nothing contrary was proved that the vehicle was given to a driver to drive without taking care and caution by the owner of the vehicle. R.T. Officer was never examined by the Insurance Company. In the absence of anything proved to the contrary, it cannot be said that there was any breach of condition.
21. This takes this Court to the question of breach of policy. It is submitted by learned counsel for appellant that the truck was attached with a trolley which was never insured with them and the tractor trolly was being used in breach of policy conditions. He has relied on the judgment of Karnataka High Court in the case of Oriental Insurance Company Limited Represented by Its Administrative Officer Vs. D. Laxman S/o D Thimmappa, 2006 LawSuit(kar) 696. The submission that the driver of the tractor did not have proper driving licence and the finding of fact of the Tribunal goes to show that the driver had a proper driving licence . The document at Exhibit 15G testifies to the aforesaid extent and the said submission that the tractor was attached with trailer with trolley makes them non liable cannot be accepted in view of the the judgment of Supreme Court in Sant Lal Vs. Rajesh & Others, AIR 2017 SC 4054 and Fahim Ahmad and others Versus United India Insurance Company Ltd. And others, 2014(2) T.A.C. 383 (S.C.), hence, just because trolley was attached, it cannot be said that the driver did not have proper driving lience.
22. As far as the jdugment of Karnatka High Court in Oriental Insurance Company Limited Represented by Its Administrative Officer Vs. D. Laxman S/o D Thimmappa is concerned, cited by the counsel for the Insurance Company is concerned the facts are different which are required to be narrated in that case the trolley was carrying coolies in it and the insurance policy did not cover coolies carried in trolley and, therefore, the Division Bench allowed the appeal. In our case, it is not a case of collies carried in trolley being carried in the trailer.
23. In that view of the matter the judgment of this High Court being against the submissions of the counsel for appellant will have to be followed and it has not been proved that there was any breach of policy .
24. Hence, this ground of challenge fails and is rejected.
25. The challenge to the quantum will fail in view the judgment of Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 LAWsuit(SC) 1093, the amount awarded cannot be said to be exorbitant. It is proved that the Tribunal has considered his income at Rs.2500/-. Out of which 1/3rd is deducted. The age of the deceased was 35 years of age. It is stated that the multiplier could not have been 17 however the Tribunal on other heads has granted very meager amount and has not granted any amount under the any head of future loss of income, only 10,000/- for non pecuniary damages is granted. The Tribunal granted only 6% interest whereas the normal rate of interest in 2008 was 9%, hence it cannot be said that the Tribunal committed any error in granting compensation.
26. This appeal fails and is dismissed. The remaining amount be deposited by the Insurance Company within four weeks, if not yet deposited.
Order Date :- 31.5.2018 Mukesh