Court No. - 26
Case :- FIRST APPEAL FROM ORDER No.742 of 2000 Appellant :- U.P.S.R.T.C. Respondent :- Smt.Shanti And Ors. Counsel for Appellant :- M.M.Sahai
Hon'ble Dr. Kaushal Jayendra Thaker, J.
1. Heard Sri M.M. Sahai for the appellant.
2. This is an appeal of the year 2000. On 8.8.2017, the Assistant Manager (Law & Personnel) on behalf of UPSRTC after 17 years of pendency without any first order conveyed before Hon'ble Aniruddha Singh, J, that the matter be listed in National Lok Adalat but there was no orders even of notice being issued to the heirs of the deceased.
3. The appeal is taken up for hearing under Order 41 Rule 27 of Code of Civil Procedure, 1908, as for a period of 19 years neither the matter has been admitted nor has been listed for hearing. The award passed by the Tribunal dated 02.12.1999 in Motor Accident Claim Petition No.163 of 1995 awarding a sum of Rs. 1,56,000/- is brought into challenge. The Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal required to be addressed and decided by the first appellate court.
4. The brief facts leading to the filing of the litigation is Bhagwan Das met with an accident on 16.5.1995 at 02.00 a.m. mid night when the deceased was plying on the tractor of one Vinit. The Accident occurred with the bus bearing no. UP-02-6568, which was being driven very rashly and negligently. The Tribunal, after taking into consideration the objection raised by UPSRTC, decided that the bus driven by the driver of the bus was negligent and as qua the claimant is being a case of composite negligence held that it was not necessary for the claimant to join the tractor driver or Insurance company. The deceased Bhagwan Das was survived by his widow, 2 daughters and one son. The Tribunal granted Rs.1,56,000/- with 8% rate of interest. It is submitted by Sri Sahai that the accident never occurred with the bus in question. It is further submitted that the bus was not being driven rashly and negligently and the accident did not occur due to rash and negligent driving of the driver of the bus but the accident took place due to negligence of tractor trolley driver and, therefore, the claim petition itself was not maintainable. It is further submitted that the compensation granted is on a higher side. The income of the deceased has been wrongly decided, his age was also not proved and, therefore, considering his income as Rs.1,500/- per month and deducting 1/3rd and awarding the multiplier of 13 thereby granting Rs.1,56,000/- is bad. It was further that in another matter arising out of the came accident being MACP No.154 of 1995, the amount of Rs.70,000/- was accepted in Lok Adalat, Hence, in this matter also that should have been amount awardable.
5. As far as the issue of negligence is concerned, the finding of fact is that DW1 and DW2 have submitted that the tractor trolley was being driven rashly and negligently was not believed by the Tribunal as the Chargesheet was led against the driver of the bus. The damage to the tractor trolley goes to show that the driver of the bus drove the bus at an excessive speed causing death of persons travelling in a tractor trolley. Hence the submission of learned counsel for the appellant will fail. I have take aid of the decisions of this Court and the Apex Court for considering this ground which are reiterated hereinbelow.
6. The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.
7. 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.
8. 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.”
9. 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.”
“10. 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 benefited. 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 Antother Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143.”
11. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
“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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer 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 of 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 stands 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.”
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor- truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”
12. The F.I.R. and Chargesheet were laid against the driver of the bus. The driver of the bus has been held negligent by the Tribunal though he has appeared before the Tribunal and deposed on oath. The Insurance company has accepted its liability in another matter settled at Lok Adalat was not the ground for coming to the said conclusion. The Tribunal has evaluated and reevaluated the concept of composite/contributory negligence and has found that the driver of the bus not stating the truth and hence these findings of fact are not perverse. Evidence of DW-1 and DW-2 has been properly scrutinized and has not been believed by the Tribunal. Hence, the tractor trolley driver having not been made a party, would not vitiate the proceeding as rather deceased, it was a case of composite negligence. The submission of Sri Sahai that the tractor trolley came on the wrong side is belied by the evidence on record as discussed by the Tribunal and hence the same cannot be countenanced.
13. It is submitted that the income considered for calculating the compensation ought not to have been Rs.15,000/- and after 1/3rd deduction, the family could not have been granted the multiplier of 13 and, therefore, the multiplier applied was also erroneous. It is submitted that the method of compensation and method of calculation is bad. One more ground taken is that the settlement in Lok Adalat cannot be held against UPSRTC.
14. The heirs of the deceased had claimed a sum of Rs.6 Lacs. PW-1 and PW-2 have been examined on behalf of the deceased and have withstood the cross examination by the counsel for the Insurance company. The deceased was a rickshaw driver and on 16.5.1995 at about 02.00 a.m. at night, he was plying on a tractor of Vinit, who was going to Surajpur, then he met with an accident and died. The tractor dashed with the bus. It was averred that he was earning Rs.100/- per day. The children were dependent on him. The Tribunal considered his income as at Rs.1,500/- per month and deducted 1/3rd making the datum figure as Rs.1,000/- per month and granted multiplier of 13 to which no other amount under any other head or future income was added. The amount of Rs.1,56,000/- with 8% rate of interest cannot be said to be exorbitant.
15. The appeal fails and is dismissed. The amount, if yet not deposited, be deposited expeditiously.
16. This court is thankful of Sri Sahai to get this very old matter disposed of.
Order Date :- 25.2.2019 Irshad