Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 1320 of 2000 Appellant :- U.P.S.R.T.C.
Respondent :- Rameshwar Dayal And Another Counsel for Appellant :- M.M. Sahai Counsel for Respondent :- G.S. Yadav
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri M.M. Sahai, learned counsel for the appellant and perused the judgment and order impugned.
2. This appeal, at the behest of the U.P.S.R.T.C. has been preferred against the judgment and order dated 17.6.2000 passed by Motor Accident Claims Tribunal/IInd Additional District Judge, Mainpuri (hereinafter referred to as 'Tribunal') in Claim Petition No.139 of 1999 awarding a sum of Rs.1,45,000/- with interest at the rate of 11% in favour of the claimants.
3. The ground taken is that the accident did not occur with the bus of the U.P.S.R.T.C. and, therefore, the claimants were not entitled for any compensation from the appellant.
4. It is submitted that the appellant had contended before the Tribunal that the accident did not take by the bus of the appellant but the trolley was hit by the truck. The Tribunal while dealing with this issue has not assigned any reason as to why the appellant's bus was liable to pay compensation.
5. A further ground is taken that the deceased was travelling in a tractor trolley which was not made for passengers and even assuming without admitting that the accident took place from the appellants bus even then the owner of the tractor trolley was also liable to pay compensation but the entire liability has been fixed by the Tribunal on the appellant which is illegal.
6. It is further contended that the compensation had based on the age of the parents of the deceased and the Tribunal has wrongly applied the multiplier of 14 and, hence, the amount required to be slashed.
7. Recently the Apex Court in U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948, has held that all the issues raised require to be dealt with by the appellate court.
8. As far as compensation is concerned, this Court would deal the said issue first. The submission that the multiplier should be applied on the basis of the parents is no longer res integra in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.
9. The father of the deceased had deposed that the deceased would be earning Rs.3000/- per month, however, the Tribunal has considered his income to be Rs.15,000/- per year and out of which 1/3rd has been deducted. As the judgments in those days namely in the year 2001 used to consider the multiplier on the basis of the parents of the deceased, the multiplier of 16 was given by the Tribunal. I do not find any fault as the deceased was 16 years of age, therefore, as far as the compensation is concerned, the amount of Rs. 1,45,000/- cannot be said to be on the higher side.
10. In fact, I cannot interfere with the interest as it though high but normally as per the decisions of the Apex Court and this Court, for the death of a 16 year old person, the amount payable would be Rs.2,25,000/-. The interest will work for the same as there is no appeal preferred by the claimants.
11. This takes this Court to the issue namely that the deceased was travelling on the tractor trolley which could not have been permitted to carry passengers. There is no overt act nor is there any relation with the accident having taken place due to this aspect the tractor trolley has not been considered as negligent, hence, this submission of the learned counsel for the appellant cannot be countenanced and is rejected.
12. This takes this Court to the main issue of negligence and the involvement. The concept of negligence and contributory negligence has been time and again evolved, decided and discussed by the courts.
13. 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.
14. 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.”
15. In the case on hand the eye witness has seen the accident and, therefore, the defendant the appellant herein examined Lajjar Ram who was the driver of the bus. He testified that the tractor never dashed with his vehicle on the contrary, it dashed with the track and as he was driving his vehicle behind the truck, the police arrested him and he has been made an accused. The Tribunal has given finding of fact which is after considering all facts before it and has negatived the evidence of the driver of the bus and, therefore, the theory of non- involvement and of negligence of the other driver cannot be accepted.
16. The submission of Sri M.M. Sahai, learned counsel for the appellant that the bus was not involved in the accident, cannot be believed and the same fails. The accident occurred due to involvement of bus has been cogently proved and, hence, the finding of the Tribunal on the said issue cannot be said to be perverse.
17. In that view of the matter, the appeal fails and is dismissed. Interim relief, if any, stands vacated forthwith. The amount if yet not deposited be deposited forthwith.
Order Date :- 25.2.2019 DKS