A.F.R.
Court No. - 26
Case :- FIRST APPEAL FROM ORDER No. - 1314 of 2005 Appellant :- United India Insurance Company Ltd. Respondent :- Smt. Sanjida Khatun And Another Counsel for Appellant :- Ajay Singh Counsel for Respondent :- Ram Singh & Case :- FIRST APPEAL FROM ORDER No. - 1315 of 2005 Appellant :- United India Insurance Company Ltd. Respondent :- Smt. Shahabunnisa And Another Counsel for Appellant :- Ajay Singh Counsel for Respondent :- Abhishek Kumar Srivasatav, Ram Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Ajay Singh, learned counsel for the appellant and Sri Ram Singh, learned counsel for the respondent-claimants. None appeared for the owner and driver of the vehicle.
2. Both these appeals namely F.A.F.O. No.1314 of 2005 and 1315 of 2005, at the behest of the United India Insurance Company Limited, have been preferred against the judgment and award dated 28.3.2005 passed by District Judge/Motor Accident Claims Tribunal, Kaushambi (hereinafter referred to as 'Tribunal') in M.A.C. No.83 of 2002 (Smt. Sanjida Khatoon Vs. Satyavir Singh and Another) and in M.A.C. No.84 of 2002 (Smt. Shahabunniss Vs. Satyavir singh and another) respectively.
3. Facts as culled out from the record are that the accident occurred on 28.6.2002 at about 8.15 in the morning when the deceased Asfaq was plying his motorcycle at that point of time, the vehicle driven by the opponent being driven rashly and negligently dashed the motorcycle from behind which caused multiple injuries to the deceased. The pillion rider also got injured and both of them succumbed to the injuries. The deceased, as far as claim petition No.84 of 2002 is concerned, was 21 years of age survived by his widowed mother. He had no other heirs or legal representative. He was earning Rs.4,000/- by selling miscellaneous articles. The deceased, as far as claim petition No.83 of 2002 is concerned, was 22 years of age survived by his widow and parents. He had no other heirs or legal representative. He was earning Rs.3,500/-. The First Information Report was filed against the driver. No reply was filed by the owner or the driver and the matter was conducted ex parte against them. The Insurance Company as usual raised defence of contributory negligence, breach of policy condition and that the driver of the vehicle in dispute insured with it did have proper driving license. Issues framed by the Tribunal were answered in favour of the claimants of both the matters. The claimant-mother in Claim Petition No. 84 of 2002 was awarded a sum of Rs.2,00,000/- and the widow and parents in Claim Petition No. 83 of 2002 were awarded Rs.3,10,400/-.
4. Counsel for the appellant submits that the Tribunal has failed to decide the question of contributory negligence in its proper perspective. The compensation awarded for the death in both the matters is on the higher side and requires to be interfered.
5. As against this Sri Ram Singh has preferred cross appeals in both the matters for the claimants. These cross appeals are reported to be belated by 12 years.
6. The submission of Sri Ajay Singh, that the cross appeals are belated, cannot be countenanced in view of judgment of the Apex Court in Wadhya Mal Vs. Prem Chand Jain and Another, 1981 A.C.J. 459 relied by Sri Ram Singh and, therefore, delay will not deprive the claimants from claiming enhancement of compensation and cross appeals will have to be decided on merits even otherwise this Court which is deciding these appeals will have to decide on the justness of compensation.
7. At the outset, even if we consider, that the finding of fact on negligence is bad and that the driver of the motorcycle was negligent. As far as the pillion rider is considered, it would be case of composite negligence and, therefore, claimants can claim from any of the tort feasors.
8. The brief facts will be necessary for deciding the issues of contributory negligence and compensation. In ground 8 it is submitted that there was violation of terms of policy but the same has not been proved before the Tribunal and, therefore, even in these appeals, the said submission fails.
9. It is further submitted that factum of accident with alleged vehicle is not proved. This fact is also conclusively proved against the driver of the vehicle due to filing of F.I.R. and charge-sheet and the defence taken by the owner, hence, this ground though taken in memo of appeal, fails and finding of Tribunal is upheld.
10. The factum of the accident qua negligence and the compensation awarded are elaborately discussed in these appeals.
11. The evidence in both the matters were separately recorded. The claimants have examined an eye witness who has been examined as PW-2, Dr. Yakub Ahmad. The mother of the deceased in F.A.F.O. No. 1315 of 2005 and the widow in F.A.F.O. No. 1314 of 2005 were not the eye-witnesses. It is admitted position of fact that against the oral testimony of PW-2 who was an eye-witnesses, the Insurance Company or the owner has not examined any witness. The F.I.R. and the Charge-sheet were before the Tribunal which has been corroborated by the evidence of PW-2 Dr. Yakub Ahmad, who has deposed that he had seen the accident and he has deposed that the motorcyclist was driving his motorcycle on G.T. Road and that the motorcycle was being driven at a moderate speed at that time, a truck going from Kanpur to Allahabad came from behind and dashed with the motorcycle driven by Asfaq Ahmad on which Mohammad Atique was a pillion rider. He has further deposed that the driver of the said truck dashed the motorcycle from behind and both the driver and pillion rider died on the spot.
12. 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. 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.”
16. Recently this Court in FIRST APPEAL FROM ORDER No. - 1198 of 1992 (M/S Oriental Insurance Co.Ltd. Vs. Smt. Aruna Agarwal And Ors) decided on 29.1.2019 has in paragraph 14 held as under:
“14. The tractor driver dashed the moped from behind and it is cardinal principle that the person who drives in the rare side of a cross junction has to be very vigilant and has to be more cautious and, therefore, I do not find that this is a case of contributory negligence.”
17. Similar is the situation here and the case on hand, as there is deposition of an eye-witness who has been examined as PW-2 and he has withstood the cross-examination. I am even supported in my view by the decision of this Court in FIRST APPEAL FROM ORDER No. - 534 of 1995 (Brahma Dutt Sharma Vs. Umesh Sharma And Others) wherein it has been held as under:
“13. 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 upheld. 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 Tempo was driving the vehicle at the high speed. (iii) The charge sheet was laid against the driver of the tempo. The accident occurred at 10.00 p.m. and (iv) Motorcycle was so damaged which shows that evidence of PW-1 cannot be brushed aside.
14. The finding of the Tribunal are perverse. The tempo being a bigger vehicle as no legal evidence has been produced to show that the claimant had contributed to the accident. Tribunal has not given proper reasons for holding him negligent whether he had taken permission to come Jhansi or not is of no relevance and it has not been brought on record that because he has left place of service, he was negligent. The conclusive proof of against the tempo driver, therefore, the tribunal committed manifest error in holding the appellant first contributory negligent and coupling with no proper reply for leaving the head quarter. There is no evidence about the motorcycle being driven negligently by the appellant at the time of accident. The Respondent did not produce any such evidence and there is a charge sheet against the tempo driver which prima-facie pointed towards the negligence of the appellant. Thus the finding of contributory negligence cannot be sustained. I am supported in my view in Mangla Ram Versus Oriental Insurance Company Limited, (2018) 5 SCC 656.”
18. Therefore, the submission of the learned counsel for insurance company, Sri Ajay Singh that Tribunal has failed to decide the question of negligence in proper perspective fails.
This takes this Court to the compensation awarded in both the cases where the claimants have also filed cross-objections for enhancement.
19. As far as F.A.F.O. No.1315 of 2005 is concerned, the deceased was a bachelor and left behind him his widow mother and a brother. The question, whether the mother and brother are legal representative or not is now no longer res integra and is decided in Smt. Manjuri Bera Vs. Oriental Insurance Company, Limited, AIR 2007 SC 1474, and therefore, the compensation will have to be considered in light of the income of deceased and minimum wages prevailing in those days and the later decisions of and Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050
20. The Tribunal while awarding compensation in this case, considered the age of the mother who was a widow. The deceased was engaged in business of selling miscellaneous articles in the village. He was 21 years of age at the time of accident. The Tribunal has considered that he would be earning Rs.3,000/- per month and out of which, 1/3rd has been deducted and Rs.24,000/- has been considered to be the amount available to the mother per year and as the judgment of the Apex Court on the date of accident and granting of award was to the effect that multiplier of the dependent parent should be considered, the Tribunal considered granting multiplier of 8, with Rs.8,000/- under non-pecuniary heads and interest at the rate of 6% from the date of filing of the claim petition till the date of the award. No amount under the head of future economic loss was granted.
21. This requires to be reconsidered in view of the latest judgment. Even if this Court considers the income of the deceased to be Rs.3,000/- per month as considered by the Tribunal to which 40% of the income has to be added as he was self employed and, therefore, the monthly detum figure would be Rs.3,000+1,200= 4,200/-,. Out of which, for his personal expences, ½ have to be deducted and, therefore, the Rs.2,100/- is the monthly figure available to the estate. As the deceased was 21 years of age, the multiplier applicable would be '18' in view of the decision in Pranay Sethi (Supra), hence, the amount would be Rs.2,100 x 12 x 18 = 4,53,600/- plus Rs.20,000/- (Rs.10,000 each) under loss of love and affection to both the claimants.
22. As far as F.A.F.O. No. 1314 of 2005 is concerned, the deceased left behind him his widow and parents. The Tribunal considered his income to be Rs.2100/- per month and out of which 1/3rd was deducted and that is how the income became Rs.1400/- per month. He was 22 years of age and, hence, multiplier of 18 was granted and that is how compensation awarded was Rs.3,02,400/- plus Rs.8000/- under other heads.
23. It is submitted by Sri Ram Singh that the deceased was a skilled labourer, therefore, his income also should have been considered at Rs.3,000/-. As against this It is submitted by Sri Ajay Singh, counsel for the appellant that the widow might have remarried, however, nothing has been proved to the said effect.
24. This Court is in agreement with the submission of Sri Ram Singh, counsel for the claimants. Hence, Rs.3,000/- would be the income of the deceased to which 40% of the income has to be added as he was self employed and, therefore, the monthly detum figure would be Rs.3,000+1,200= 4,200/-,. Out of which, for his personal expences, ½ have to be deducted as would be like bachelor single person i.e. wife, therefore, the Rs.2,100/- is the monthly figure available to the estate. As the deceased was 22 years of age, the multiplier applicable would be '18' in view of the decision in Pranay Sethi (Supra), hence, the amount would be Rs.2,100 x 12 x 18 = 4,53,600/- plus Rs.70,000/- under other heads as held by the decision in Pranay Sethi (Supra) for the widow.
25. As far as issue of interest is concerned, the Tribunal has awarded interest at the rate of 6% in both the matters which according to the learned counsel for the claimants is on the lower side requests that the at 18% rate of interest the amount be granted.
26. A Division Bench of this Court in FIRST APPEAL FROM ORDER No.-1011 of 2012 (Ramesh Kumar Soni Vs. Shriram General Insurance Co.Ltd. Thr.Manager & Another) decided on 3.3.2017, while dealing with the issue of interest, has held as under:
“14. Tribunal has awarded interest at the rate of 6% per annum on the amount of compensation from the date of filing of claim petition. It is contended that interest at the rate of 6 % is on much lower side and it should be 9 %.
15. We find in recent authorities, Courts have held that appropriate rate of interest should be 9%.
16. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-
"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8 % per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481.
Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."
17. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9 % interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.
18. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9 % per annum which was challenged that it is on higher side. Court upheld said rate of interest.
19. In Shashikala and Others Vs Gangalakshmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9 % rate of interest from the date of claim petition till the date of realization.
20. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8 % . Accident took place on 27.11.2016. It was held that 8 % interest is on lower side and it should be 9 %.
21. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6 %. Court held that it is on lower side and it should be 9 %.
22. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9 % interest.
23. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15 % interest which was reduced to 12% by Gujrat High Court. Court held that it is on higher side and awarded 9 % interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).
24. In view of above, the rate of interest in the present case, 6 % awarded by Tribunal also cannot be justified and in our view interest should be paid at 9 % per annum.”
27. Hence, the rate of interest would be 9% but as the Cross objections are delayed by 12 years, the interest shall be computed at rate of 9% from the date of filing of claim petitions till the judgment of the Tribunal and no interest shall be paid on the enhanced amount till the cross objections were filed i.e. 2.2.2017 in both the matters.
28. Both the appeals preferred by the Insurance Company are dismissed. The cross objections are partly allowed. The Insurance Company shall deposit the amount within 18 weeks from today as per the calculation and directions given herein-above.
Order Date :- 28.2.2019 DKS