1. Heard Sri Ram Singh for the appellants and Sri Anubhav Sinha holding brief of Sri Amresh Sinha for Insurance company. None appears for the owner.
2. The claimants had preferred claim petition bearing no.185 of 2003 before the Motor Accident Claims Tribunal, Kanpur, who vide order dated 20.7.2005 granted a sum of Rs.1,60,700/- as against Rs.18,600/-. This Rs. 1,60,700/- was arrived at by the Tribunal considering that the driver deceased has been considered to be negligent to the tune of 50% which has been assailed by Sri Ram Singh. He has even assailed the amount awarded by the Tribunal which is Rs.1,60,700/-. He has also assailed the rate of interest given by the Tribunal and has contended that the rate of interest should be 18 per cent. It is submitted by Advocate for the appellants - claimants that the deceased is survived by widow and his aged mother, who have filed the claim petition. The amount be enhanced to Rs.3,000/- per month as he was skilled person and the accident occurred in the year 2003 to which as per the judgment of National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014, decided on 31.10.2017, 40 per cent be added as he was self employed person and below 40 years of age. Out of which, 1/3rd be deducted and the multiplier to be added would be that of 17 to which additional amount of Rs.70,000/- as per Pranay Setthi's judgment be granted.
3. As against this, Sri Sinha has submitted that income has been properly considered, the multiplier is also on the higher side, the loss of expenses has also not been properly evaluated, and nothing for future income could be added and hence, they have not been added by the Tribunal and the Tribunal has rightly granted interest as applicable in those days.
4. It is further submitted by learned Advocate for the Insurance company that negligence of the motorcyclist has been considered as accident which has occurred is head on collision and the claimants though have examined a person called eye-witness, the site plan nor any other document, which can prove that the deceased was not negligent. It is submitted that the Tribunal has shown grace in considering only 50% negligence of the deceased.
5. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
6. 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.
7. 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."
8. 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."
9. The insurance company has failed to prove that accident occurred due to carrying of more persons as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligent on the part of the scooterist, cannot be benefitted. The negligent act must contribute to the accident having taken place. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143.
10. In this case, the Tribunal has held the deceased to be 50% negligent. The Tribunal has held the deceased 50% negligent as according to the Tribunal, accident occurred and it was an head on collision. The evidence of PW4 has been negatived. This finding is bad. The Tribunal ought to have seen that the loader was driving a bigger vehicle. Arvind Kumar, who is PW4, goes to state that the deceased died because of the said injuries. Ajay Kumar, the driver, can be said to have been negligent to the effect of 25% as he could have avoided the accident just because it was an head on collision. It is not a rule of law that both the drivers must be held equally liable. The concept of contributory negligence has been decided time and again and just because there is head on collision, it cannot be held that the driver of the smaller vehicle had equally contributed in absence of best evidence available. The driver of the vehicle has absented himself. In that view of the matter, the deceased can be held to be 25% negligent.
11. The deceased is survived by wife and daughter and his aged mother, who has filed the claim petition. The amount is enhanced to Rs.3,000/- per month as he was skilled person and the accident occurred in the year 2003 to which as per the judgment of National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014, decided on 31.10.2017, 40 per cent will have to be added as he was self employed person. Out of which, 1/3rd will have to be deducted and the multiplier would be that of 17 to which additional amount of Rs.70,000/- as per Pranay Setthi's judgment will have to be granted. Out of this, as I hold that the driver of the motorcycle was 25% disabled, the amount has to be slashed. I am unable to accept the submission of Sri Ram Singh that the interest should be 18%. I am unable to accept the submission of Sri Amresh Sinha that the rate of interest should be 7% as per Rule U.P. Motor Vehicle Rules 1998 w.e.f. 26.9.2011. The interest will be 9% as per the following decisions (infra).
"24. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8% per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
25. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9% interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.
26. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9% per annum which was challenged that it is on higher side. Court upheld said rate of interest.
27. In Shashikala and Others Vs Gangalak-shmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9% rate of interest from the date of claim petition till the date of realization.
28. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8% . Accident took place on 27.11.2016. It was held that 8% interest is on lower side and it should be 9%.
29. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6%. Court held that it is on lower side and it should be 9%.
30. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9% interest.
31. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15% interest which was reduced to 9% Gujrat High Court. Court held that it is on higher side and awarded 9% interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
32. Unfortunately, it goes without saying that Motor Accident Claim matters could not have been dismissed in default as has been held by Apex court. However, on that count we do not think that Insurance Company can benefit as monies were lying with the Insurance Company and therefore, rate of interest as applicable as per recent trend and as per repo rate as per decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & Another, in First Appeal No.2440 of 2014 and other matter decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held "that it is a discretion of the Court to decide the rate of interest but has to be as per prevalent rate of interest which would be given by the banks at that time. The rate of interest shall be 9% from the date of filing of the claim petition till realization". Hence 9% rate of interest would have to be awarded."
12. The rate of interest 9% is granted from the date of filing of claim petition till 2005 and 6% thereafter till the amount is deposited.
13. The appeal is partly allowed. The claimants are entitled to a sum of Rs.36,000/- plus 40% which is equal to Rs.50,400/- divided by 1/3rd which is equal to Rs.16,800/- hence datum figure would be Rs.33,600/- multiplied by 17 is equal to Rs.5,71,200/- plus Rs.70,000/- is equal to Rs.6,41,200/- with 9% rate of interest from the date of filing of claim petition till the award and 6% thereafter till the amount is deposited. The impugned judgment and award is modified to the aforesaid extent.
Order Date :- 28.2.2019 Irshad