Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 2457 of 2004 Appellant :- United India Insurance Co Ltd Thru Its Divisional Manager Respondent :- Smt. Husan Ara And Others Counsel for Appellant :- Amit Singh,Imran Khan Counsel for Respondent :- H.N. Singh,Atul Kumar Shahi,B.N. Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard learned counsel for the appellant and Sri Atul Kumar Shahi, learned counsel for the claimant-respondent.
2. This appeal under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988") has arisen from judgment and order dated 29.5.2004 passed by Motor Accident Claims Tribunal/ Additional District Judge, Court No.11, Gorakhpur in MACP No.49 of 2002 against the award of Rs. 8,28,000/- with 5% rate of interest granted to the claimants- respondents. The Insurance Company has felt aggrieved by the said decision.
3. Brief facts of the present case are that on 4.9.2001 at about 12.00 am the deceased was going on a scooter and that time on the turning a jeep came from behind and dashed with deceased who fell down. The driver of the jeep ran away. The deceased was moved to the hospital but he succumbed on the way. The deceased at the time of incident was aged 48 years and was ammonia plant operator with fertilizer corporation and the applicants are the legal representative of the deceased. The respondent no.1, owner filed his reply of rebuttal and denied of his driver being charge sheeted but accepted the driver had proper driving license and was authorised to driver the Jeep. The vehicle was insured with respondent no. 3, United India Insurance Company. The insurance filed its reply of denial. The Insurance Company did not accept that the driver of the jeep had proper driving license and it denied the involvement of the vehicle.
4. Learned counsel for the appellant submits that the Tribunal has committed manifest error of law apparent on the fact of record in holding that the deceased had died due to accident with Jeep No. UP -52 B-5336. The Tribunal has committed manifest error of law apparent on the fact of record in holding that the alleged accident had taken place due to rash and negligent driving of the driver of the Jeep. He further submitted that the Tribunal relying upon the statement of PW-2 Saurabh Kumar Patel while holding that the alleged accident had taken place with the jeep No. UP52-B5336. It is submitted that explanation for loding the belated FIR is wrong and illegal and not sustainable in the eye of law. He next submits that claimant has failed to prove that the alleged accident had taken place due to the negligence of the driver of the Jeep , whereas the appellant has proved that in the alleged accident, the deceased was also negligent and as such the finding of the learned Tribunal that the alleged accident had taken place on due to rash and negligent driving of the driver of the jeep is wrong and illegal. Finding of the Tribunal that the driver fo the jeep was holding valid driving licence at the time of accident is wrong and illegal. He next submits that the compensation awarded is on higher side.
5. The principles enunciated by the Court to decide who was the author of the accident or whether the accident was coauthored by two persons and whether the claimant or the deceased was himself contributor to the accident having taken place are summarized as under-
6. Heard both the learned Advocates. None appears for the owner when the matter is taken up for final disposal.
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 latest decision on the issue of negligence in Rajasthan SRTC Versus Alexix Sonier, (2015) 17 SCC 758 wherein the Apex Court has held in paragraph 13 as under : -
"13) So far as the question as to whether the accident in question which occurred on 08.01.1988 was a result of contributory negligence or the driver of the bus of the Corporation was driving rashly and speedily is concerned, we find that the driver of the bus had denied that any accident in fact had taken place, however, the site plan (Exh. 52), which has been taken into consideration by the High Court, shows that the bus was driven at a sufficiently high speed and skid marks of the tyres of bus are about 32 ft. in length which were because of the speed of bus. The speed of the bus was quite high and at the relevant time it cannot be stopped immediately. The High Court has, therefore, correctly held that the bus was driven rashly and negligently and at a very fast speed. Therefore, the question of accident being a result of contributory negligence does not arise."
11. Let us see facts of the case on hand; (i) the driver or the owner of the vehicle have not stepped into the witness box. (ii) the charge sheet and the FIR was laid against the driver, (iii) the claimant widow has examined herself has produced documents namely, FIR, charge sheet. Witness number 1 and 2 have categorically mentioned in their testimony that the motorcycle was being driven on its correct side. On seeing that he took his vehicle on further left side of his correct side despite that came rashly and negligently and dashed with motorcycle and the deceased became unconscious and was shifted to the hospital.
12. The finding of the Tribunal are not perverse as it is now demonstrated that the Jeep being a bigger vehicle was being driven at a moderate speed nor any legal evidence has been produced to show that the deceased had contributed to the accident. Tribunal has given proper reasons for holding the driver of the Jeep negligent. The conclusive proof of negligence was against the Jeep driver, therefore, the tribunal has not committed error in holding the driver of insured as negligent. There is no evidence about the motorcycle being driven negligently by the deceased at the time of accident. The appellant did not produce any such evidence and there is a charge sheet against the Jeep driver which prima-facie pointed towards the negligence of the appellant. Thus the finding of contributory negligence be sustained. I am supported in my view by the decision of Apex Court in Mangla Ram Versus Oriental Insurance Company Limited, (2018) 5 SCC 656.
13. The finding of fact of the Tribunal shows that the stapeny of the scooter was bent. The right side of the scooter was damaged. The Site plan also shows that the scooter was dragged to certain distance. The back light of the scooter was also damaged. The car has hit from the behind and therefore the finding of the fact that the accident occurred due to driver of the jeep is established. The driver of the jeep did not appear before the Tribunal . The driver of the jeep was charge sheeted. Thus the finding of fact that the motorcyclist was not at all at fault cannot be found fault with on the factual scenario. Hence the said ground fails.
14. I am unable to accept the submission of learned counsel for the Insurance Company that the Tribunal's finding on contributory negligence requires to be upturned. The reasons are that (i) the driver of the other vehicle never stepped into witness box. (ii) The police authority who had scribed the FIR also stated that the driver of the Jeep was driving the vehicle at the high speed. (iii) The charge sheet was laid against the driver of the Jeep. The accident occurred at about 12.00 p.m. and (iv) Motorcycle was so damaged which shows that evidence of PW-1 cannot be brushed aside.
15. The submission that the deceased did not die out of the vehicular accident is also rejected as the post-mortem report, FIR and the charge sheet is filed in this case which prime facie proves that the death occurred due to involvement of the vehicle, the FIR and charge sheet also bears the name of deceased and the driver of the said vehicle has been charge-sheeted. Hence the said submission fails just because there was delay in lodgement of it cannot be said that the vehicle was not involved in the accident. The testimony proves to the hilt regarding the involvement of the said vehicle. The defence that the driver of the vehicle did not have proper license also is nullified by the production of the driving license and the said aspect has been considered by the Tribunal.
16. The submission that the compensation has been wrongly assessed and the compensation assessed is higher side while calculating the compensation it is seen that the Tribunal has not given any amount under the head of future prospects for the death of the deceased and therefore also the said submission fails. The interest also granted is on lower side. That view of the matter it cannot be said that the compensation awarded is on higher side.
17. The appeals fails and is dismissed.
18. Interim relief, if any, stands vacated.
19. The amount, if not yet deposited be deposited forthwith.
(Justice K.J. Thaker) Order Date :- 28.2.2019 V.S. Singh