Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 958 of 2001 Appellant :- United India Insurance Co. Ltd. Mainpuri Respondent :- Shyamveer Singh Chauhan And Another Counsel for Appellant :- Amaresh Sinha Counsel for Respondent :- A.S. Chauhan
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Amaresh Sinha, learned counsel for appellant and Sri A.S. Chauhan, learned counsel for claimant. None is present for owner.
2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellant, being aggrieved by judgment and decree dated 27.3.2001 passed by Motor Accident Claims Tribunal /Vth Additional District Judge, Mainpuri in MACP No.137 of 2000 awarding a sum of Rs.3,60,000/-.
3. Brief facts of the present case are that on 8.8.1998 when the claimant was going on motorcycle No.UP-84E-3727 when he was plying towards Mainpuri when he reached the bridge near Orandh, a tempo bearing No.UP-84 9160 being driven rashly and negligently dashed with him causing multiple injures to him. He was admitted in the Army Hospital from 10.8.1998 and his treatment continued up to 22.6.1998. He claimed a sum of Rs.14,45,000/-, the Insurance company namely the appellant herein filed its reply and raised all contention which could be raised namely that the vehicle was involved in the accident. The vehicle was not insured with them. There was breach of policy conditions. The accident occurred due to sole negligence of the claimant and he was not entitled to any amount. The owner appeared and accepted the accident but contended that as the vehicle was insured, the insurance company should pay the compensation if at all had to be paid.
4. The Tribunal held in favour of the claimant and held that the driver of the tempo was the author of the accident and the claimant had suffered permanent disablement and therefore was entitled to compensation.
5. The insurance company has felt aggrieved by the compensation awarded to the claimant. The Insurance Company has contended that alleged accident occurred due to negligence of the claimant. As far as quantum is concerned, it is submitted that as he continued in service he could not have been granted the said amount.
Negligence : -
6. So as to appreciate the submission of counsel for appellant that the claimant himself was negligent and had caused the accident the principles for deciding negligence rather contributory negligence will have to be looked into.
7. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 ( Bajaj Allianz General Insurance Company Limited Versus Smt. Renu Singh and others) decided on 19.7.2016 has held as under: -
"16. The term 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 cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, 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, 1988 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 should 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. This is termed negligence.
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. In light of the above discussion, I am 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, Courts 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.
21. 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 of driver of another vehicle."
8. The fact that the driver of the tempo did not appear before the Tribunal as also being adversely held by the Tribunal against the owner and the driver fo the tempo. PW-1 is the claimant himself and his version has been corroborated by PW-2 and while going through the record and FIR the submission of counsel for appellant cannot be accepted.
Compensation :-
9. This takes this Court to the compensation awarded to the claimant-injured the Tribunal has considered his income to be Rs.5,000/- per month./ he was 33 years of age and there is 40% disability. He had submitted document showing his age of birth. He was serving in the Army and his age to be shown 35 years of age. His commanding Officer has certified that he would not be in a position to do the same work as he was doing and the Tribunal has considered the bills and vouchers produced by him for his Hospitalization. He did not claim any amount for the treatment which he got in the Government Army Hospital. The Tribunal has not even granted the amount under the said head.
10. The Tribunal granted him monthly loss of Rs.2,000/- X 12 x 15 = Rs.3,60,000/-. The submission of the counsel for the appellant that the compensation is bad as he was given treatment in the Army Hospital. This submission cannot be accepted as he was not awarded any amount for the medical treatment by the Tribunal.
11. As far as the non reduction of salary the compensation has to be paid for the tortuous act of the person and not for what he would loose. The High Court of Gujrat in Union of India and others Versus Ashwathanarayan S. Sharma, 1993 (1) G.L.H.1044 as held that compensation for a tortuous act has to compensate the person for the wrong committed and the functional disability also has to be looked into.
12. In that view of the matter, the Tribunal has not granted any amount under the head of pain shock suffering future loss of income , any amount under the head of non pecuniary damages. I do not think that interference is required in the light of the settled legal position as enunciated by the Apex Court in several judgment.
13. Thus the appeal fails and is dismissed. The original claimant has passed away. The remaining amount be deposited by the Insurance company within 12 weeks from today. Record and proceedings be sent back to the Tribunal. The amount be paid to the heirs as they are joined before this Court.
14. This Court is thankful to both the counsels to see that this very old matter disposed of.
Order Date :- 31.7.2019 Mukesh