Court No. - 33
Case :- FIRST APPEAL FROM ORDER No. - 210 of 2000 Appellant :- Smt.Vidyawati And Others Respondent :- New India Assurance Company Ltd. and Others Counsel for Appellant :- V.K.Dixit Counsel for Respondent :- Ajai Singh,Mayank Pratap Singh,Rajeev Chaddha,Rishi Bhushan Jauhari,Usha Kiran
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri V.K. Dixit, learned counsel for appellant, Ms. Usha Kiran, learned counsel for United India Insurance Company Limited and Sri Rajeev Chaddha, learned counsel for New India Insurance Company Limited.
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 order dated 30.10.1999 and decree dated 16.11.1999 passed by Motor Accident Claims Tribunal /IVth Additional District Judge, Shahjahanpurin MACP No.203 of 1996 awarding a sum of Rs.50,000/- only for death of breadwinner of the claimants.
3. Brief facts of the present case are that on 30.6.1996 Naresh Kumar was coming from Lucknow to Shahjahanpur in a car which was being driven by Pankaj Agarwal, son of the owner of Prasad Beej Bhandar. When the car reached at village Jumuki at about 10:45 p.m. within the limits of P.S. Rosa, district Shahjahanpur a truck No. URK- 3809 was coming from the side of Shahjahanpur which was being driven by its driver rashly and negligently and dashed his case ( Tata Mobile No. UP-27/5179) due to which Naresh Kumar received grevious injuries and died on the spot. The FIR of this accident was lodged at P.S. Rosa on the same day at 11:30 p.m. at Crime No.153/96, under Sections 279/304A IPC. The postmortem on the dead body of the deceased Naresh Kumar was also conducted.The appellant has further alleged that the deceased Naresh Kumar was aged about 30 years of age on the date of accident and she has one son and two daughters. She prayed for award of compensation of Rs.3,15,500 before the Tribunal.
4. The term contributory negligence and composite negligence has been discussed time and again a person who either contributes or is 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."
5. 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."
6. Learned counsel for the appellant-claimant submits that as far as the claimants are concerned, it is a question of composite negligence and has relied on the decision of the Apex Court in Khenyei Vs. New India Assurance Company Limited and Others (2015) 9 SCC 273 and has submitted that the finding of fact that the appellant has not proved who was negligent is bad. The driver of the truck did not appear. The driver of the Tata Mobile No.UP-27/5179 in which the deceased was traveling driven by one Naresh Kumar also did not appear. The first information report was filed and it was registered. The deceased Naresh Kumar died due to injury in the accident. The certified copies of postmartum report and FIR were produced before the Tribunal. The Tribunal held that the death occurred due to the accidental injuries and without giving a finding as to whether both the drivers were co-authors of the accident or only one of them was negligent.
7. While going through the record the FIR and site plan, it can be seen that both the drivers failed to exercise the cautions which was required of them. Hence, this Court has no other option but to upturn the findings of the Tribunal and hold both the vehicles negligent.
8. After hearing the learned counsels for the parties and perusing the judgment and order impugned, this Court feels that the income of the deceased should have been Rs.1500/- per month namely Rs.18,000/- per year to which as the deceased was 30 years of age, 50% of the income requires to be added in view of the decision in Pranay Sethi (Supra) which would come to Rs.18,000 + 9,000/- = 27,000/- out of which 1/3rd requires to be deducted as personal expenses of the deceased and, hence, the annual datum figure available to the family is Rs.18,000/-. As the deceased was in the age bracket of 26-30 years, the applicable multiplier would be 17 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that Rs.40,000/- is granted towards conventional heads as it is matter of 2000. Hence, the claimants are entitled to a total sum of Rs. 18,000 x 17 + 40,000 = Rs.3,46,000/-.
9. The rate of interest will have to be enhanced and I am unable to accept the submission of learned counsel for the respondent that the Rules will apply. A Division Bench of Lucknow Bench in F.A.F.O. No. 199 of 2017 (National Insurance Company Limited Vs. Lavkush and another) decided on 21.3.2017 have interpreted the Rules, which has been followed by this Court time and again, will enure for the benefit of the appellant and, therefore the rate of interest would be 9% as held in catena of decision of this High Court.
10. I am in agreement with counsel for the respondent that after the appeal is filed and is kept pending the rate of interest requires to be decreased.
11. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited with interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter till the amount is deposited. The amount be deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.
12. This Court is thankful to both the counsels to see that this very old matter disposed of.
Order Date :- 31.7.2019 Mukesh