1. Heard Sri Satya Prakash Shukla, learned counsel for the appellant, Sri Rakesh Bahadur for the Insurance company. None appears for the owner.
2. This appeal has been filed by the appellant Smt. Sharda Yadav, who is widow of the deceased against the award dated 21.11.2008 passed by learned Motor Accident Claim Tribunal/ Additional District Judge, Ghazipur wherein the Tribunal has awarded Rs. 5,15,512/-as compensation. The Insurance company has filed the cross objection challenging the compensation as well as the finding of negligence by the Tribunal.
3. The brief facts leading to the litigation on 9.12.2003 at about 11.40 when deceased was drawing his cycle, a truck bearing No. AP 16 T 7899 came from behind very rashly and negligently dashed the deceased from behind. The deceased succumbed to the injuries while he was being taken to the hospital. The deceased was serving in the education department and was earning about 12,000/- per month. His age of retirement was 62 years. The deceased was survived by his widow who has filed the claim petition. The respondent owner driver did not appear before the Tribunal did they appeared before this Court. The Tribunal framed five issues and answered in favour of the claimant appellant but the claimant is not satisfied with the quantum of compensation. The claimant appellant examined four witnesses and filed several documents namely FIR, Post mortem, family register, Charge sheet by way of certificate 37 G, salary certificated of the deceased was filed. The insurance cover note, permit of the truck, driving license of the driver of the truck, the insurance company vehemently contested the claim and here the insurance has filed cross objection recently contending that the driver of the truck was not negligent and that the claimant has not proved the negligence. The compensation awarded is on higher side. It is further contended that the claim petition deserves to be dismissed.
4. Sri Satya Prakash Shukla, learned counsel for the appellant has relied on the followings decisions: 2009 (1) ACCD 187 (All) Smt. Kamla Devi and others Vs. Chandra Engineering Corporation, Faizabad and others; 2009 (1) ACCD 191 (All), Oriental Insurance Co. Ltd. Vs. Smt. Manju and another; 2009 (3) ACCD 1441 (SC) National Insurance Co. Ltd. Vs. Smt. Saroj and others; 2009 (3) ACCD 1445 (SC) North West Karnataka Road Transport Corp. Vs. Gourabai and others; 2008 (1) ACCD 258 (SC) Oriental Insurance Co. Ltd. Vs. Jashuben and others; 2007 (2) ACCD 1138 (All) National Insurance Company Ltd. Vs. Smt. Indira Srivastava and others and 2007 (2) ACCD 1141 (All) National Insurance Company Ltd. Vs. Rajendra Prasad and others and contended that the amount granted is not in consonance with these judgments.
5. In reply Sri Rakesh Bahadur, learned counsel for Insurance has relied on the judgment of Apex Court reported in (2013)9 Supreme Court Cases 65 Reshma Kumari and others Vs. Madan Mohan and another and has contended that the Tribunal has committed an error on relying on the charge sheet filed in absence of other reliable documents as the so called witnesses had not seen the accident and it was not proved that the driver of the truck was negligent and has submitted that cross objection under order 41 Rule 22 of the CPC 1908 requires to be allowed.
6. While dealing with the issue of negligence, 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.
7. Negligence means failure to exercise required degree of care and 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.
8. 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.
9. 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.
10. 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.
11. These provisions (sec.110-A and sec.110-B 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.
12. In the light of the above discussion, 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 loquitar 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 ACJ(SC) 1840).
13. 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. While going through the record, it is clear that the cyclist was on his correct side and the truck driver came from behind did not blow any horn and the injuries which the deceased suffered go to show that the driver against whom the charge sheet is filed and the version in FIR is proved by the testimony of the witnesses. The principles of the res ipsa loquitar will apply in the facts of this case and the judgment of Reshma Kumari (Supra) and the judgment of this High Court relied by Sri Rakesh Bahadur namely 2013 (1) T.A.C. 606 (All.) Smt. Gaura Devi and others (Supra). Hence the factum of accident has been proved and the driver or the owner have not appeared before the Tribunal, the Tribunal has drawn the adverse inference and not only on the basis of charge sheet but as the FIR had mentioned the number of the truck, the Tribunal held the driver of the truck to be negligent. The injuries on the deceased also proved the rashness with which the driver of the truck drove the vehicle, hence the submission of counsel for respondent can not succeed. The cross objection also fails. The judgement of the Gaura Devi (Supra) is eclipsed by the judgment of the Apex Court in Vimla Devi and others Vs. National InsuranceCompany and others and by the judgment reported in 2019 (2) SCC 186 and the judgment of Apex Court in Sunita and another Vs. Rajsthan State Road Transport Corporation AIR 2019 SC 994. The injuries which have been cused go to show that it was the act of negligent driving by the driver of the truck reference of the judgment of Apex Court in S. Kumar Vs. United India Insurance company Limited AIR 2019 SC 3235, hence the deceased died due to the negligence of the driver of the truck. This finding of fact by the tribunal is not demonstrated to be bad or perverse. And in that view of the matter the cross objection as far as proving negligence is concerned fails.
15. After hearing the learned counsels for the parties and perusing the judgment and order impugned, this Court finds that the income of the deceased Rs. 7,945/-per month has been wrongly assessed by the Tribunal as the Tribunal has deducted amounts which were not supposed to be deducted from the salary of the deceased namely the advantages which were can not be deducted and as held by the Hon. Supreme Court in the case of (2013) 7 SCC 476 Vimal Kanwar & Ors. Vs. Kishore Dan & Ors. I am even fortified in my view by the judgment of Apex Court reported in National Insurance Company Limited VS. Mannat Johal and another (Infra). The amount, therefore, which would be entitled to the family would to Rs. 12,000/- to which, as the deceased was 54 years of age, 10% of the income requires to be added in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. which would bring the figure to Rs.1, 44, 000 + Rs.14,400 =Rs.1,58,400/-. Out of which 1/3th requires to be deducted as personal expenses of the deceased, hence after deduction of 1/3th means Rs/ 52,800/- the amount available to the family would be Rs.1, 05, 600/-. As the deceased was in the age bracket of 51-55 years, the applicable multiplier would be 11 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that, Rs.70,000/- is granted towards conventional heads as it is matter of 2004. Hence, the claimants are entitled to a total sum of Rs. 1, 05, 600/- x 11) + 70,000 =Rs. 12, 31, 600/-.
16. As far as issue of rate of interest is concerned, the interest 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."
17. 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 amount be deposited with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
18. This Court is thankful to both the counsels to get this very old matter disposed of.
19. The cross objection is dismissed. Record be send back to the tribunal forthwith.
Order Date :- 18.12.2019 RPD