Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 1951 of 2002 Appellant :- Smt. Sunita Sharma And Others Respondent :- Sunil Kumar And Others Counsel for Appellant :- B.P. Verma Counsel for Respondent :- N.K. Srivastava
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri V.P. Verma, learned counsel for the appellant and Sri N.K. Srivastava, learned counsel for the respondent.
2. By way of this appeal, the appellants have challenged the judgment and order dated 28.2.2002 passed by Motor Accidents Claim Tribunal/Additional District Judge, Court No.5, Mathura (hereinafter referred to as 'Tribunal') in Claim Petition No.7 of 2001 awarding a sum of Rs.1,84,034/- with 9% interest.
3. According to the counsel for the appellant, the Tribunal deducted 25% of the amount from the award without any basis only on the ground that as the driver, owner and the insurance company of the motorcycle on which the deceased was plying was not made a party, 25% of the awarded amount has been deducted.
4. The issue of negligence raised before it was answered against the driver of the tanker. Just because in paragraph 21 it has held that the claimants had not made the owner of the motorcycle as party and had not produced driving license of the motorcyclist, this has been held against him and, therefore, the adverse inference has been drawn whereas issue No.1, the Tribunal has held that the negligence was solely on the driver of the tanker. The site plan goes to show that the finding on issue No.1 could not have been given go by while deciding the quantum. Reasoning in paragraph 22 is absolutely absurd and could not have been observed as may be the deceased himself was the owner of the said vehicle. Having held the driver of the tanker solely negligent just because not making the other vehicle party-respondent, can deduction be given, the obvious answer is 'no' as the driver of the motorcycle namely the deceased was not at all at fault is the finding at issue No.1.
5. 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.
6. The concept rather term contributory negligence has been discussed time and again. A person who either contributes or is coauthor 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.”
7. Hence, I am unable to accept the submission of Sri N.K. Srivastava, learned counsel for the appellant, that finding in paragraph 21 and 22 of the judgment of the Tribunal are just and proper as driver and owner of the motorcycle which is the other vehicle involved in the accident are not germane to the facts of this case and, hence, the said finding requires to be annulled from the judgment being perverse.
8. Hence, the Tribunal could not have deducted any amount from the compensation payable to the heirs of the deceased. Just because of the fact that the driver, owner and insurer of the other vehicle involved in the accident was not joined as party. In this case, it was not even proved that it was not even proved that it was a case of composite negligence. It is proved that the sole person liable for the accident was the driver of the tanker
9. This take this Court to the income of the deceased, it is admitted position of fact and not disputed by learned counsel for the appellant. The deceased was 35 years of age having fixed salary means fixed pay, hence, as per the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050, 50% of the income which would come to Rs.7600/- in rounded figure will have to be added and, therefore, Rs.7600 X 16 =1,21,600/- would be the additional amount available to the family and to which additional sum of Rs.55,000/- as Rs.15,000/- granted for funeral expenses, pain shock suffering and love and affection.
10. Hence, the awarded amount that was Rs.2,58,712/- will remain intact and the additional amount Rs.1,76,600/- awarded by this Court will carry 9% rate of interest as awarded by the Tribunal from the date of the claim petition till the award and 6% thereafter till the amount is deposited. The amount is required to be deposited within 12 weeks from today.
11. The appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount already deposited will be given set off.
12. This Court is thankful to both the counsels for getting a very old matter disposed of.
Order Date :- 27.2.2019 DKS