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Allahabad High Court · body

2019 DIGILAW 1706 (ALL)

Oriental Insurance Co. Ltd. v. Shamshad Ali

2019-07-16

K.J.THAKER

body2019
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri V.C. Dixit, learned counsel for the appellant and Sri Amresh Sinha, learned counsel for the respondent - Insurance company. None appears for the owner. 2. By means of this appeal, the appellant challenges the judgment and award dated 7.10.2002 passed by Motor Accident Claims Tribunal, Meerut, (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 764 of 1999 awarding a sum of Rs. 4,33,710/- with interest at the rate of 9 per cent. 3. The claim petition was preferred under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") claiming a sum of Rs. 26 Lac with 18% rate of interest. As far as the claimant injured is concerned, he was a person who was a conductor/helper in one of the vehicle. The issue is could the Tribunal had decided the issue of negligence in a claim petition under Section 163-A of the Act. Could the Tribunal has decided the issue of negligence? In a petition under Section 163-A of the Act it should not have which means that the Tribunal went on to decide the claim petition as if it was a claim petition under Section 166 of the Act and, therefore, this Court will have to ascertain whether it was a case of co-authorship of negligence of the drivers who were driving the vehicles and qua the claimant it would be a case of composite negligence. The principles enunciated for deciding negligence by the various Courts would have to be visualized which are as follows: 4. The concept of contributory negligence has been time and again evolved, decided and discussed by the Courts. 5. 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. 6. 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. 6. The term contributory 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 and another v. M/s. Harkishan Dass Mohan Lal and others 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 and others (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. 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." 7. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co. Ltd. v. 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. 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. Fletcher, (1868) 3 HL (LR) 330. 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. 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 loquitur 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. State of Punjab, 2005 0 ACJ(SC) 1840). 22. 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." 8. The insurance company has failed to prove that accident occurred due to carrying of more persons as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligent on the part of the scooter’s, cannot be benefited. The negligent act must contribute to the accident having taken place. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Another v. Oriental Insurance Company Limited, AIR 2018 SC 1143 . 9. The Apex Court in Khenyei v. New India Assurance Company Limited and others, 2015 LawSuit (SC) 469, has held as under: 4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tortfeasors. In a case of accident caused by negligence of joint tortfeasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tortfeasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the Court. However, in case all the joint tortfeasors are before the Court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tortfeasor vis-à-vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. 14. There is a difference between contributory and composite negligence. In the case of composite negligence, apportionment of compensation between tortfeasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant. 14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan and others [ 2008 (3) SCC 748 ] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder: "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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, 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 wrong-doer separately, nor is it necessary for the Court to determine the extent of liability of each wrong-doer 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 of the part of the injured which contributed to the accident is referred to as his contributory negligence. 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 of 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 stands 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." 18. This Court in Challa Bharathamma & Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing Court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tortfeasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle-trailer-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle-trailer-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailer-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tortfeasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law. What emerges from the aforesaid discussion is as follows: (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the Court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the Court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." 10. The findings on issue Nos. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award." 10. The findings on issue Nos. 1 and 4 relating to negligence goes to show that the Tribunal has exonerated the other driver just because the charge-sheet was not laid against the driver of trolley No. HR 37 4343. On 12.5.1999, the accident occurred in the early morning. It was a head on collision. The conductor - claimant has deposed that the tanker was dashed with the trailer. The tanker number was HR-38-3144. The claimant in his deposition has categorically mentioned that both the drivers are equally responsible. The road was about 20 feet broad. The trolley driver has not stepped into the witness box. Hence, both the drivers will have to be held equally negligent. 11. The finding on issue No. 2 goes to show that neither of the owner nor the driver appeared before the Tribunal. They did not prove that the driver of either of the vehicles had produced any driving licence. The Tribunal threw the onus on the Insurance company to prove the negative. This kind of finding has been disapproved by the Apex Court in Pappu and others v. Vinod Kumar Lamba and another, AIR 2018 SC 592 and Ram Chandra Singh v. Rajaram and others, AIR 2018 SC 3789 , wherein it has been held that the liability of Insurance company arises only if the truck was driven by authorized person. Recently the Apex Court has held that where there was no licence or a fake licence, the compensation be first paid by the Insurance company and can be recovered from the owner. In this case, the appellant has been ordered to deposit the entire amount by the interim direction of this Court given on 7.1.2003 and, therefore, it will be entitled to recover its portion from the owner, driver and Insurance company of the other tortfeasor. The finding of the Tribunal is upturned to this extent. 12. It is an admitted position of fact that driving licence was not produced. Neither Sri Amresh Sinha nor Sri Nigamendra Shukla appearing for respondents could dispute the fact. CROSS OBJECTION 13. The cross objection has been filed after 12 years. The finding of the Tribunal is upturned to this extent. 12. It is an admitted position of fact that driving licence was not produced. Neither Sri Amresh Sinha nor Sri Nigamendra Shukla appearing for respondents could dispute the fact. CROSS OBJECTION 13. The cross objection has been filed after 12 years. The judgment of the Apex Court will not permit this Court to dismiss the cross objection as the appeal preferred by the Insurance company is pending before this Court. 14. As the appeal preferred by Insurance company is pending, the said objection is over ruled. 15. The question of compensation and the quantum will also have to be looked into as held above the matter was decided as a matter under 166 of the Act and, therefore, it cannot be said that it was considered under 163-A of the Act. 16. It is submitted by the counsel for the claimant that the income of the injured could not have been Rs. 2000/- per month. The income should have been considered to be Rs. 15,000/- per annum. The compensation awarded is on higher side as against this, Sri Nigamendra Shukla appearing for the claimant in the cross objection, has submitted that his income should have considered Rs. 3,000/- per month as he was in employment. It is submitted that his both the lower limbs were amputated. The Tribunal has considered to grant 100% by way of loss of income and the Tribunal has considered Rs. 50,000/- under the head of pain shock suffering and he has been awarded sum of Rs. 20,710/- under the head of medical expenses. The Tribunal granted 9% rate of interest. 17. The pain shock suffering for amputation of both legs will be Rs. 2 Lac as per the judgment of Apex Court and in view of the Division Bench Judgment in FIRST APPEAL FROM ORDER No. 199 of 2017 (National Insurance Company Limited, Lucknow v. Lavkush and another), decided on 21.3.2017, and the said judgment has been ordered to be circulated. 39. Section 168 contemplates determination of "just compensation". 'Just' means, fair, reasonable and equitable amount accepted by legal standards. "Just compensation" does not mean perfect or absolute compensation. "Just compensation" principle requires examination of particular situation obtaining uniquely in an individual case. 40. 39. Section 168 contemplates determination of "just compensation". 'Just' means, fair, reasonable and equitable amount accepted by legal standards. "Just compensation" does not mean perfect or absolute compensation. "Just compensation" principle requires examination of particular situation obtaining uniquely in an individual case. 40. When compensation is to be determined on an application under Section 166, various heads under which damages are to be assessed, have to be looked into by Tribunal and not by merely determining income and applying multiplier. 41. We may consider some broad aspects in the context of injury/disability and death separately. Bodily Injury/Disability 42. Here damages are broadly in two categories, i.e., pecuniary damages and special damages. Pecuniary damages are those which victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include: (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss. 43. Non-pecuniary damages are such which are incapable of being assessed by arithmetical calculation. They may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. and in the following decisions reliance can be placed as they relate to additional amount being paid for future loss of income even in the case of injured claimant: (I) Sanjay Kumar v. Ashok Kumar and another, (2014) 5 SCC 330 ; (II) Syed. Sadiq and others v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735 ; (III) V. Mekala v. M. Malathi and another, (2014) 11 SCC 178 ; and (IV) Uttar Pradesh Motor Vehicles (Eleventh Amendment) Rules, 2011. 18. Additional amount of Rs. 1 Lac for his future loss of income requires to be granted looking to the fact that he has been totally crippled and he will not be able to do the work of conductor. He is entitled to a sum of Rs. 50,000/- for each limb for getting artificial limb or crutches. 18. Additional amount of Rs. 1 Lac for his future loss of income requires to be granted looking to the fact that he has been totally crippled and he will not be able to do the work of conductor. He is entitled to a sum of Rs. 50,000/- for each limb for getting artificial limb or crutches. The amount awarded by the Tribunal is enhanced by Rs. 4 Lac. The amount not deposited yet be deposited within 12 weeks. 19. The interest at the rate of 9% from the date of filing of the claim petition till award and 6% thereafter from the date of filing of cross objection. The Insurance companies first shall deposit their share of the amount namely 50% each and then recover the said amount from the owner. The appellant would be entitled to recover the amount deposited pursuant to the interim order from the driver - owner as per the procedure prescribed. 20. Record and proceedings be sent back to the Tribunal. Appeal and cross-objection both are partly allowed. 21. This Court is thankful to both the counsels to see that this very old matter is disposed of.