Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 1429 of 2009
Appellant :- Santosh Kumar And Another
Respondent :- Sri Neeraj Kumar Sonkar And Another
Counsel for Appellant :- Kavita Tomar,Jai Raj Singh Tomar,V K Shukla,Vidya Kant Shukla
Counsel for Respondent :- Aditya Singh Parihar,Dhirendra Singh Rajput
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri V.K. Shukla, learned counsel for appellant, learned counsel for respondents and perused the record.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 13.01.2009 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.16, Kanpur Nagar (hereinafter referred to as 'Tribunal') in Claim Petition No.109 of 2008 whereby dismissed the claim petition.
3. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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).
10. 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.
11. While considering the issue of negligence which could not have been done. The Tribunal returned the said finding in favour of the claimants holding that the deceased who was 19 years of age died out of accidental injuries. As far as the insurance and policy conditions were considered issue no. 2, 3 and 4 were also answered in favour of the claimants-appellant herein.
12. The Tribunal rejected the claim petition under Section 163-A of the Act holding that it was not proved that deceased who was a pillion rider was covered by the policy or not. This finding is perverse. The policy which was before the Tribunal and it took within itself the fact that motor cycle was inusred with ICICI Lombard and was owned by Neeraj Kumar Sonkar. It was not proved by the insurance company or the owner that the vehicle was not insured. Even if it was not insured, the driver and the owner would be liable. This matter is covered by two judgment of the Apex Court in Sunita and others Vs. Rajasthan State Road Transport Corporation and Another and A.I.R. 1988, Jugal Kishore wherein it has been held by the Apex Court that it is a duty of person in whose possession the policy is the same has to be produced by the person in whose the possession the same is if the same is not produced adverse inference has to be drawn by the Tribunal. If the policy is not produced by the insurance company, the appellant could not have been non suited rather the adverse interference has to be drawn against the insurance company is the submission of Sri V.K. Shukla, learned counsel for appellants, Sri Parihar has submitted that in absence of proof that the vehicle was insured they cannot be directed to make any payment for death of pillion rider.
13. While going through the finding it is clear that the judgment is perverse. Provision of Section 163-A of Motor Vehicles Act, 1988 reads as follows:
“1[163A. Special provisions as to payment of compensation on structured formula basis.—
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.—For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. ]”
14. Therefore, the Tribunal could not have dismissed the claim petition in toto on the ground that it was not proved whether there was a contract between the insurance company and the owner about pillion rider insurance. The judgment in this case suffers from perversity and has to be quashed and set aside.
15. The matter could have been remanded by the Tribunal but as it is claimants appeal and 13 years have elapsed from filing of the claim petition and 10 years from filing of this appeal it would be better to decide the appeal on quantum also instead of increasing the burden of the Tribunal. The deceased was 19 years of age his notional income to be considered Rs.2,000/- per month, 40% has to be added as he was self employed and ½ will have to be deducted. Multiplier of 18 will have to be granted and filial consortium of Rs.30,000/- requires to be granted to the parents who have lost their son who was just 19 years of age. Hence the total sum Rs. 24,000 + 9600 = 33,600- 16,800 = 16,800 x 18 = Rs.3,02,400/- + Rs.30,000 = Rs.3,32,400/-
16. The amount shall carry 9% rate of interest from the date of fling of the claim petition till the amount is deposited. The judgment and decree as far as its finding in issue No.5 is concerned are quashed and set aside. However, the insurance company shall first deposit the amount and if it can prove that the pillion rider was not covered by the policy condition it may recover the same from the owner of the vehicle.
17. The appeal is partly allowed.
Order Date :- 31.05.2019 Shubhankar