Hon'ble Subhash Chand,J.
Per: Hon'ble Subhash Chand,J.
1. We are taking up this defective appeal for final disposal and directing the office to give regular number, as we have condoned the delay today.
2. Heard Sri Anubhav Sinha, learned counsel for the appellants and Sri Brijesh Chandra Naik, learned counsel for the respondent no.3 (Insurance Company). None appears for owner and driver.
3. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.03.2017 passed by Motor Accident Claims Tribunal/Additional District Judge II, Gautam Budh Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. Case No.24 of 2014 awarding a sum of Rs.9,31,625/- as compensation.
4. This appeal is of the year 2018 and both the counsels have agreed with our suggestion for getting the matter finally disposed of without record so that the liability to pay interest is lessened as the only issue to be decided is quantum assessed.
5. It is submitted by learned counsel for the appellants that the deceased was 26 years of age at the time of accident. He was in job, but he was not a permanent employee, therefore, the Tribunal did not grant any amount under the head of future loss of income, as the job was only for seven months. The Tribunal has considered his income to be Rs.4500/- per month. It is submitted by learned counsel for the appellants that the income of the deceased should have been considered to be between Rs.7,000/- to Rs. 8,000/- per month as it was proved by leading evidence to which, the deceased being 26 years, 40% of the income should be added and as he was survived by his widow and two minor sons and parents. 1/4th of the amount should be deducted towards personal expenses of the deceased. As far as multiplier is concerned, there is no dispute between the parties. It is also submitted that the interest should be granted at the rate higher than 7% and Rs.70,000/- with increase by 10% for three years should granted under the head of non-pecuniary damages.
6. Sri Naik, learned Advocate appearing for the respondent-Insurance Company has contended that in the absence of any proof of income of Rs.7000/- per month cannot be considered to be income of the deceased and the Tribunal has rightly considered the income of the deceased to be Rs.4500/-. It is further submitted by Sri Naik that in view of the fact that an appeal is continuation of proceedings though the Insurance Company has not challenged the findings, as far as negligence of the driver is concerned, he can raise the same as held by this High Court in case of National Insurance Company Ltd. Vs. Smt. Vidyawati Devi and two others decided on 27.07.2016 in First Appeal From Order No. 2389 of 2016. We permit Sri Naik to raise the said issue of negligence. It is submitted by Sri Naik that it a case of head on collusion and therefore, the deceased should also be held negligent and is requested to this Court to up turn the finding on the issue of negligence by holding that the deceased to be negligent and dismiss the claim petition.
7. Sri Naik, learned counsel for the Insurance Company in oral reply to the submissions of learned counsel for the appellants on negligence contends that this being a case of head on collision, the deceased should also be held negligent and requested this Court to upturn the finding on issue of negligence.
8. As far as issue of negligence is concerned, it is vehemently submitted by learned counsel for the appellants, that the deceased was held not at all negligent. According to him, the accident was between two vehicles of unequal magnitude and, therefore, the deceased cannot be said to have contributed to the accident having taken place.
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 principle of 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.
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 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."
emphasis added
12. At the very outset from the award impugned, it is culled out that two vehicles involved in the accident were of unequal magnitude, namely, the motor cycle driven by the deceased Anil Kumar Yadav and the Dhumpher insured by the respondent-Insurance Company. Issue no.1 has been decided by the Tribunal whereby the deceased has been considered to be riding motorcycle namely a two wheeler whereas the other vehicle was Dumpher namely the big vehicle and collusion was between the vehicles of two unequal magnitude. The Tribunal decided the issue of negligence in favour of the claimants though orally it was submitted by Sri Naik that there was head collision and the deceased was also negligent. The Tribunal has relied on several authoritative pronouncements for arriving at the finding. The driver of the Dumpher, who was the best witness has not stepped in the witness box. The evidence of PW-2, who was eye witness clinches the issue. The evidence he was riding his motorcycle and was driving vehicle along with the deceased, he has been believed to be an eye witness by the Tribunal. He has opined in his oral testimony that when the deceased came to Mahamaya fly over, the Dumpher driven in rash and negligent manner came and dashed with the motorcyclist causing his death. Except the written statement, Insurance Company did not lead any evidence. The decision cited by the learned judge holding against the Insurance company will come in the way of oral submission of Sri Naik. The reason being site plan shows that the deceased was on his correct side. The FIR was lodged by Sonu Yadav and the charge-sheet was laid against respondent no.2, namely driver of the Dumpher and therefore, it is very clear that PW-2, who is eye witness has opined that the Dumpher came on the wrong side and dashed with the vehicle driven by the deceased, namely Anil Kumar Yadav. This evidence corroborated by the documentary evidence is produced before the court below and it is very clear that the evidence produced before the Tribunal was pointing out its finger toward the negligence of the driver of the Dumpher. The instantaneous death of the motorcyclist goes to show that the motorcyclist was not negligent. The decision of the Apex Court in case of Archit Saini Vs. Oriental Insurance Company Limited and others 2018 0 AIR (SC) 1143 and the reasonings of the Apex Court in the said case is also required to be applied to the facts of this case and therefore, it cannot be said that the driver of the vehicle was in any way negligent. The finding of the court below cannot be upturned and we are convinced that the findings of fact recorded by the Tribunal cannot be disturbed. The recent decision of the Apex Court in case of Rajendra Singh Vs. National Insurance Company (2020) 7 SCC 256 where the Apex Court has held that issue of negligence has to be decided on the basis of evidence adduced or on the basis of evidence adduced against the respondents driver and, therefore, also we cannot accept the oral objections of learned counsel for the Insurance Company that the deceased should be held to be negligent also. We also take into consideration the decisions on which the Tribunal has placed reliance namely United India Insurance Company Limited Vs. Sarita Rani Dhaka and others ACJ 895, Ranu Bala Paul Vs. Bani Chakraborty and others 1999 (1) TAC 151, N.K.V. Brothers (Pvt.) Limited Vs. M. Karumai Ammal and others AIR 1980 SC 1354, Usha Rajkhowa and others Vs. Paramount Industries and anothers 2 (2009) ACC 281 (SC), State of Haryana and others Vs. Jasveer Kaur and othes 2003 (3) TAC 569 (SC), Smt. Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 ACJ 1298, Reshma Kumar and others Vs. Madan Mohan and others Civil Appeal No. 4646 and 4647 of 2009 decided on 02.04.2013. We are fortified our view and the oral submission of Sri Naik is required to be rejected. The factual scenario will also not permit us to up turn the finding of the Tribunal as far the issue of negligence is concerned, therefore, no negligence can be attributed to the deceased. Thus, it cannot be said that the deceased was in any way negligent. The site plan as discussed by the Tribunal will also not permit us to take a different view. Further aspect that requires to be appreciated is that the charge-sheet was laid against the driver of the Dumpher. The fact that the driver of the Dumpher has not stepped in the witness box this fact has also been considered by the learned judge by relying on the decision reported in United India Insurance Company Limited Vs. Sarita Rani 1995 ACJ 895, thus the reasonings cannot be found fault with. The other oral submission that the driver and owner of the other vehicle has not been joined as party is not required to be decided as the driver of the other vehicle has died and his heirs have claimed the compensation hence this submission is also rejected.
13. We are also fortified in our view by the decision of the Apex Court in case of Mohammed Siddique and another Vs. National Insurance Company Limited and others (2020) 3 Supreme Court Cases 57.
Compensation:-
14. This takes this Court to the issue of compensation. The income of the deceased in the year of accident and looking to his profession namely that he was having private job can be considered to be Rs.7,000/- per month to which as he was 26 years, 40% as future loss of income requires to be added in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.
15. As far as the income of the deceased is concerned, the deceased was working with The Oura Creation Sri Nagli Enterprises Pvt. Limited and was earning Rs. 8,000/- per month. PW-1 the widow of the deceased has deposed the said fact and also the salary slip was produced as Exhibit 23. PW-3 Sri Vijay Naik, who was H.R. Executive had examined who has deposed that document 19/G/1 and 19G/5 was produced by his company that Anil Kumar Yadav was being paid Rs. 8000/- per month. The tribunal unfortunately has considered his income to be Rs. 7000/- per month for a period of seven months namely for the period during which the deceased had worked and thereafter has considered his income to be Rs. 4500/- on the basis of judgment of the Apex Court in State of Haryana and others Vs. Jasveer Kaur and others 2003 (3) TAC 569 (SC). We fail to understand as to how the tribunal can draw such a distinction during one year and split the income of the deceased. The tribunal according to us has committed an error, which is apparent on the face of the record in considering the income of the deceased as Rs. 4500/- per month, despite the fact that income was proved as Rs. 8000/- per month. The reliance on the judgment of State of Haryana (supra) is erroneous reason, is once it has been established by way of cogent evidence that income of the deceased was Rs. 8000/-, the tribunal cannot fix it notionally. We fix the income at Rs. 7000/-, as Rs. 1000/- is the other allowances, which are deductible as per the judgment of the Apex Court. Thus, the income is considered to be Rs. 7000/- per month to be recalculated. The learned judge has referred to the judgment of Reshma Kumari and another Vs. Madan Mohan and another passed in Civil Appeal No. 4646 and 4647 of 2009 decided on 02.04.2013, but the tribunal thereafter has referred to the judgment of Sarla Verma and another Vs. Delhi Transport Corporation and another 2009 ACJ 1298 and not granted future loss of income. The Tribunal most unfortunately held that income of deceased should be considered to be notional income of Rs. 4500/- per month for five months and for the other seven months his income should be considered to be Rs. 7000/- per month. Rs. 4500 x 12 and multiplied by 17, on what basis the Tribunal has split this, is not clear. The Tribunal has considered that his basic income was Rs. 7000/-, but is it not clarified that what the deceased was doing prior to that seven months and therefore, the Tribunal has relied on judgment in case of State of Haryana (supra), this is itself arbitrary and against the mandate of Apex Court as well as this High Court. Once the salary slip shown to be that Rs. 8000/- the other items could have been deducted and income should be considered as Rs. 7000/- per month. We, therefore, on the basis of the judgment of Reshma Kumari (supra) subsequently approved by the Apex Court in the Pranay Sethi, recalculate the said amount. Unfortunately, the learned judge has despite the fact that judgment in Reshma Kumari (supra) permitted addition of 30% if the person, who is in the age bracket of 40-50, the learned Tribunal holds that फ्यूचर प्रॉपेक्ट्स (भावी सम्भावनाओ) को वास्तविक वेतन में जोड़ा नहीं जा सकता as it was not proved whether his job was permanent, this again according to us is perverse finding of fact, which requires to be up turned as in the judgment of Sarla Verma (supra), it is not opined as to whether job of the deceased should be permanent or private job for which future prospects would be added, therefore, future prospects of 30% will have to be added. Even on the plain reading of Sarla Verma case, learned judge would not have made this mistake as even if we go by the Rules, namely Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011. The deduction of ¼ for personal expenses is not disturbed, hence we recalculate the amount of compensation as per settled legal principles enunciated in Pranay Sethi and Reshma Kumari (supra).
16. Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:
i. Income Rs.7,000/-
ii. Percentage towards future prospects : 50% namely Rs.3500/-
iii. Total income : Rs. 7,000 + 3500 = Rs. 10,500/-
iv. Income after deduction of 1/4th : Rs. 7,375/- (rounded up) v. Annual income : Rs.7,375 x 12 = Rs. 88,500/-
vi. Multiplier applicable : 17 vii. Loss of dependency: Rs.88,500 x 17 = Rs.15,04,500/-
viii. Amount under non pecuniary heads : Rs.70,000/-
x. Total compensation : 15,74,500/-
17. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :
"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."
18. No other grounds are urged orally when the matter was heard.
19. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
20. This Court is thankful to both the counsels for getting this matter disposed of.
21. It is stated by learned counsel for the appellants that they have been granted recovery right. The owner despite service of notice has not appeared for three years, hence the ex-parte judgement is passed and recovery right is maintained as here also no witness or permit is produced.
22. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants/claimants are neither illiterate nor rustic villagers.
23. The Registrar General is requested to circulate this judgment so that in future the tribunals may not commit this error of taking notional income with the income of the deceased is proved by documentary evidence as well as oral ocular version and tribunal shall in future consider the income of the deceased which is proved.
Order Date :- 29.7.2021 AK Pandey Court No. - 37 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 355 of 2018 Appellant :- Smt. Chandrakala And 7 Others Respondent :- Imtiyaz And 2 Others Counsel for Appellant :- Anubhav Sinha Counsel for Respondent :- Pradeep Kumar Rai,Brijesh Chandra Naik Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Subhash Chand,J.
Ref: Civil Misc. Delay Condonation Application 1 of 2018 This is an application seeking condonation of delay in filing the appeal.
The delay in filing the appeal is 265 days and vehemently objected by counsel for the respondent.
Cause shown for the delay in the affidavit attached to delay condonation application is sufficient, hence, the delay is condoned.
This application, accordingly stands allowed.
Office to give regular number to the appeal.
Order Date :- 29.7.2021 AK Pandey