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2017 DIGILAW 1958 (ALL)

NEW INDIA ASSURANCE COMPANY LTD. v. SHARIFAN

2017-08-24

K.J.THAKER

body2017
JUDGMENT : Kaushal Jayendra Thaker, J. 1. The New India Assurance Company Limited (hereinafter referred to as 'Insurance Company') has felt aggrieved by the judgment and award dated 8.1.2008 passed by the XIII Additional District Judge, Bareilly/Motor Accident Claim Tribunal (hereinafter referred to as 'Tribunal') in claim petition No. 248 of 2005 whereby for the death of the sole bread winner of the family, a sum of Rs. 2,90,483/- was awarded with interest at the rate of 6% from the date of the filing of the claim petition and 7% from January 2007 till depositing the same. 2. Brief facts as gleaned from the record available with this Court are that the deceased was plying his motor cycle and was going from Aanwala to Sirauli and when he reached near a place known as Mau Chandpur Bridge, a Maruti Van bearing No. DL-4 CB-2568 owned by respondent came from the opposite side get lost its balance and dashed with the Motor Cycle causing the deceased multiple grievous injuries. The accident took place on 5.2.2005 and the injured succumbed to the injuries on 15.2.2005. 3. The widowed mother of the deceased Sharif who died in the accident and his two minor sisters filed claim of Rs.5,00,000/- before the Tribunal. The Insurance Company filed its written statement and in the written statement, additional plea by way of paragraph 21 was taken that of contributory negligence. 4. As far as this appeal is concerned, the learned counsel for the appellant has pressed into service two grounds of challenge; (i) that the Tribunal has failed to appreciate the fact that there was a head on collision and the site plan showed that there is enough space for both the vehicles to pass by and, therefore, there must be some negligence was on the part of the deceased and (ii) quantum is on much higher side namely in the year 2005 without any proof, the income has been considered to be that of Rs.2,500/- and only 1/3rd has been deducted whereas for a person who is unmarried, 1/2 should have been deducted. 5. I have heard Sri Saurabh Srivastava, learned counsel for the appellant and peruse the site plan and the findings of the Tribunal more particularly issue No. 2. It is very clear that Maruti Van has been made accused in the criminal trial. The charge sheet has led against him. 5. I have heard Sri Saurabh Srivastava, learned counsel for the appellant and peruse the site plan and the findings of the Tribunal more particularly issue No. 2. It is very clear that Maruti Van has been made accused in the criminal trial. The charge sheet has led against him. He was charged under Sections 279, 338, 427 and 304 (A) of I.P.C. The injuries were such as revealed from the fact and the finding of the Tribunal, which proves that the vehicle driven by the opponent was being driven in such a way that it had no other option but to hold the driver of Motor Car negligent. 6. While dealing with submission on issue of negligence raised by the learned counsel for the appellant, it would be relevant to discuss the principles for deciding contributory negligence and for that the principles for considering negligence will also have to be looked into. 7. 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. 8. 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. On these broad principles, the negligence of drivers is required to be assessed. 8. 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. 9. 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. 10. 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. 11. 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. 11. 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. 12. 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). 13. 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. 14. 13. 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. 14. The driver of the vehicle was the best person who could have deposed in his favour but he has neither stepped into the witness box nor has the Insurance Company led any evidence to prove the site plan and, hence, in the absence of these facts, I do not think that the said finding in issue No. 1 requires any interference even on the settled legal principles enunciated by this Court as well as the apex court. 15. This takes this Court to the issue of quantum. It is true that as far as unmarried person is concerned, 1/2 should have been deducted but in this case the multiplier applied is 13 instead of 18 which should have been applied as the deceased was 25 years of age, hence, the submission of learned counsel for the appellant that decision of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and another, 2009(6) SCC 121 has not been applied will also not come to the aid of the Insurance Company reason being from the evidence of the mother of the deceased, it is very clear that she is a widow and the deceased was looking after her and two sisters who were minor and, therefore, Tribunal after elaborate reasoning deducted 1/3rd only. If the principles enunciated in Sarla Verma (Supra) have to be applied to the facts of this case, the Tribunal has not even considered addition of future income. The deceased was in the hospital for about more than 10 days and all that the Tribunal has awarded is the amount spent on the medical expenses. Nothing has been awarded under the head of pain, shock and suffering. While going through the award it appears that in 2005 as per the decision of the apex court, age of the parent was considered and, therefore, the Tribunal has awarded the multiplier of 13. Further, recently a Division Bench (Comprising Hon'ble Sudhir Agarwal,J. And Hon'ble Ravindra Nath Mishra II,J.) of this Court in First Appeal From Order No. 199 of 2017 (National Insurance Company Limited, Lucknow Vs. Further, recently a Division Bench (Comprising Hon'ble Sudhir Agarwal,J. And Hon'ble Ravindra Nath Mishra II,J.) of this Court in First Appeal From Order No. 199 of 2017 (National Insurance Company Limited, Lucknow Vs. Lavkush and another) decided on 21.3.2017 has held that normally the rate of interest should be 9%. As there is no cross appeal/objection filed by the claimants and in totality of the facts and circumstances of the case, it can be said that the quantum is just and proper. 16. In view of the above, the appeal fails and is dismissed.