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2018 DIGILAW 1164 (ALL)

NEW INDIA INSURANCE CO LTD v. RAJPATI TRIPATHI

2018-05-09

K.J.THAKER

body2018
JUDGMENT/ORDER : Kaushal Jayendra Thaker, J. Heard learned counsel for the appellant. None appears for the owner - respondent. 2. The Insurance company has felt aggrieved as they have been saddled with the liability to indemnify the owner of the vehicle which was insured with them and which met with an accident for which the claimants preferred MACP No.105 of 1992. 3. By way of this appeal, the Insurance company has felt aggrieved by the award of Rs.2,66,500/- for the death of a 34 years old person, who was self employed. 4. Sri Ram Singh has relied on the decision of this Court in National Insurance Company Limited Vs. Smt. Vidyawati Devi and others, FAFO No.2389 of 2016, decided on 27.7.2016, and has requested that though there is no cross-appeal preferred, the amount granted by the Tribunal be enhanced on the ground that no future prospect has been considered by the Tribunal. 5. I shall deal with the submissions of Shri Prakash Lal for the Insurance company as it is an appeal of the Insurance company. It is submitted that the Tribunal has fallen in error in not considering the negligence of the other vehicular driver though qua the deceased it is a case of composite negligence as it is held that due to negligence of both driver and the deceased, the accident took place. The Insurance company will be at liberty to recover the part of the other amount of vehicle owner. 6. It is further submitted that compensation is on the higher side and third and last it is submitted that there is a statutory limit of Rs.50,000/- beyond which the Insurance company cannot be directed to make the payment and/or indemnity the owner which has not been considered by the Tribunal. 7. The submission of the learned counsel for the appellant regarding negligence of both the drivers will have to be considered and while considering the issue of composite/ contributory negligence, the following principles requires to be looked into. 8. As far as issue of contributory negligence is concerned as alleged by the appellant, I will have to consider the principles for deciding the negligence. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. 8. As far as issue of contributory negligence is concerned as alleged by the appellant, I will have to consider the principles for deciding the negligence. 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. 9. 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. 10. 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. 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. 11. 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 Vs. 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. 12. 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. 13. 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. 13. 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 Vs. State of Punjab, (2005) ACJ 1840). 14. 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. 15. This was a case where both vehicles had collided with each other. The vehicles involved were Truck and Bus, which are of equal magnitude as per the submission of Shri Prakash Lal. 16. It is submitted by counsel for appellant that the Tribunal having held that the driver of the Truck was driving the vehicle in rash and negligent manner and he alone was negligent, it is submitted that it is a wrong finding of fact. 17. I have been taken through the finding of fact by the Tribunal as far as the issue of negligence is concerned. The finding that the third suggestion was given to the witness that the Bus had at first dashed against the Truck and then it dashed against DCM Toyota. This is in contradiction with his pleadings in paragraph no.14 wherein it has been pleaded that the roadways bus first dashed against DCM Toyota and then against the offending Truck but in the suggestion, this position has been reversed. This also goes to show the uncertainty of the case of this defendant. This is in contradiction with his pleadings in paragraph no.14 wherein it has been pleaded that the roadways bus first dashed against DCM Toyota and then against the offending Truck but in the suggestion, this position has been reversed. This also goes to show the uncertainty of the case of this defendant. Yet another suggestion was given to the witness that the lights of the bus of alleged accident but there is no such plea either in the written statement of Insurance company. Surprisingly enough the suggestion of overloading of the roadways bus was also given and it has been alleged that the bus was overloaded and, therefore, it could not maintain balance and the accident had taken place because it dashed the other vehicle. 18. Learned counsel for the Insurance company has referred to the statement of this witness wherein he has stated that his visibility at that time was only 20 feet. He had obtained the driving licence in the year 1978 and got it renewed in the year 1990 but at the time of renewal of licence, his medical check up was not made by any doctor. On the basis of this statement, it was argued that the visibility of this witness was weak but I do not find myself in agreement with the above contention of the learned counsel but no question on the point of visibility of the witness was put to him and, therefore, no such inference can be drawn. On the other hand, the witness was of a very good physique when he appeared in the witness box. He looked tall and healthy man with a robust physique as the old saying goes, "A healthy mind lives in a healthy body", can be applied in the case of this witness also regarding his eye sight because unless unusual thing is proved, his eye sight should be taken to be the normal one. The witness has even stated in the last paragraph of his statement that he was assigned the duty of taking the bus to Delhi. Unless he was an expert driver and that normally of not very good eye sight, he could not be deputed to drive the bus for such a long distance. The witness has even stated in the last paragraph of his statement that he was assigned the duty of taking the bus to Delhi. Unless he was an expert driver and that normally of not very good eye sight, he could not be deputed to drive the bus for such a long distance. The witness has stated that he could see only up to that distance and before that sentence, he has stated that light of his bus could go up to 20 feet. There is some over writing over the number "2". This appears to be "3" also. Though this is not very material but if it is read as "30" then the distance covered by the light would be 10 feet more than the distance quoted above. Moreover, it cannot be expected that a person could see the things in the night beyond the area covered by the light and in this back ground, the witness has limited the coverage of distance of 20 feet - 30 feet although there is slight variation in his statement but that is not very material in this case. It was tried to be explained that this witness could not see the DCM Toyota which is alleged to be behind the offending truck but the witness has stated that certain bullock-cart were passing at that time in between the offending truck and the roadway bus. The width of the road at the place of occurrence was about 20 feet, therefore, even if there were certain bullock-carts the bus and the truck could easily pass through the road if the driver of the truck would have been vigilant and would not have been rash and negligent. A judicial notice of the width of G.T. Road can be taken. It has been told to be 20 feet but including footpath, the width of GT road could not be less than 60 feet and bullock-carts would have been on the footpath at that time. Argument with respect to breaking distance has been advanced but the principle of this breaking distance cannot be applied in this case as that distance is to be maintained when the vehicles come from the same direction but for the vehicles coming from the opposite direction, no breaking distance be maintained. 19. Argument with respect to breaking distance has been advanced but the principle of this breaking distance cannot be applied in this case as that distance is to be maintained when the vehicles come from the same direction but for the vehicles coming from the opposite direction, no breaking distance be maintained. 19. On one hand, there is categorical evidence of PW2, who was driving the roadways bus at the time of alleged accident to prove that the accident had resulted on account of rash and negligent driving of the offending truck while on the other hand there is not an iota of evidence to show that PW2 had in any way contributed to the commission of the alleged accident. Under the circumstances, the roadways department cannot be saddled with any liability for payment of any part of compensation to the claimant and in view of the above finding it was of no use making roadways department a party in this case. 20. In view of the above discussion, I come to the conclusion that the accident in question had resulted on account of rash and negligent driving of truck no. UAM 8922 and this issue is decided in the affirmative. 21. In that view of the matter, I am unable to accept the submission of learned Counsel for the appellant as the witness has also stated that the truck driver was solely negligent. 22. In that view of the matter, the submission of learned Counsel for the appellant that there are contradiction in the ocular version and the F.I.R. and, therefore, the version in F.I.R. should be believed. The said submission is rejected because in the F.I.R. even if some averments are made but they are not proved by examining the maker of the F.I.R. Hence, I am unable to accept the submission of learned Counsel for the appellant. The said submission is rejected. 23. This takes this Court to the next submission regarding statutory liability. While going through the policy, the Insurance company has even accepted additional premium for its liability qua third party and, therefore, also the submission that the Insurance company cannot be saddled with the liability beyond Rs. The said submission is rejected. 23. This takes this Court to the next submission regarding statutory liability. While going through the policy, the Insurance company has even accepted additional premium for its liability qua third party and, therefore, also the submission that the Insurance company cannot be saddled with the liability beyond Rs. 50,000/- and that the fact that the vehicle was insured only for indemnify to the tune of Rs.50,000/- cannot be accepted rather it was denied that the vehicle was insured but the cover note produced shows that the vehicle was insured from 18.1.1991 to 17.1.1992 and it was a comprehensive policy and there was no mention that its liability qua third party was only Rs.50,000/-. In that view of the matter the said submission of the learned counsel for the appellant cannot be accepted. The submission that there was breach of policy conditions is also not proved. In that view of the matter, the submission that it was limit liability policy cannot be accepted and is rejected. 24. It is further submitted that the Tribunal committed and error in granting 25% deduction of lump sum payment, when 30% to 35% should have been deducted. This takes this Court to the issue of quantum. The deceased was a person, who was employed. 1/3rd has been deducted for personal expenses of the deceased and not 1/4th as submitted by Shri Ram Singh. Unfortunately, the Tribunal deducted 25% from the amount of compensation and deduction of 25% is not permissible in the light of the decision of this Court and, therefore, deduction of 25% is arbitrary and is quashed. The ends of justice would be met if that 25%, which has been deducted, is again restored. 25. The submission of Sri Ram Singh that nothing has been granted towards future prospect. In that view of the matter and in view of the decision prevailing even in those days for a person below the age of 50 years, 25% be added being a salaried person. I would have added 25% which would come to a sum of Rs.1 Lac. with interest @ 9% from the date of claim petition till 1994 and 4% thereafter. 26. Appeal sans merit and is dismissed. The cross-objections are upheld and the appellant is directed to deposit a sum of Rs.1 Lac with interest as aforesaid mentioned. I would have added 25% which would come to a sum of Rs.1 Lac. with interest @ 9% from the date of claim petition till 1994 and 4% thereafter. 26. Appeal sans merit and is dismissed. The cross-objections are upheld and the appellant is directed to deposit a sum of Rs.1 Lac with interest as aforesaid mentioned. Record and proceedings be sent to be trial court forthwith.