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2020 DIGILAW 145 (ALL)

New India Assurance Company Ltd. v. Shanti Devi

2020-01-13

KAUSHAL JAYENDRA THAKER

body2020
ORDER : Kaushal Jayendra Thaker, J. 1. Heard Sri Kartikey Saran, learned counsel for the appellant and Sri Rajesh Kumar Mishra, learned counsel for claimant-respondent. None appeared for the owner. 2. This appeal at the behest of the New India Assurance Co. Ltd., challenges the judgment and award dated 4.11.1993 passed by Motor Accident Claims Tribunal/XVIth Additional District Judge, Allahabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 101 of 1991 awarding a sum of Rs. 2,85,000/- with interest at the rate of 12% as compensation. 3. The accident occurred on 7.12.1990 involving the Truck No. UHU 9049. The vehicle was insured with the appellant is not in dispute. The deceased died out of the said accidental injuries. The Insurance Company has filed its written statement contending that the accident did not occur in the manner in which it is projected. The owner has also filed similar reply and contended that as his vehicle was insured comprehensively it would be the liability of the Insurance Company to pay compensation if need to be paid. The Tribunal framed about six issues. 4. Grounds urged by the appellant are that the award made by the Tribunal is bad in eye of law as the owner of the vehicle had proved by cogent evidence that the truck in dispute was in Nagpur on the date of accident and as such, it could not have been involved in the accident. It is submitted that the eye witness, Suresh Narain was neither named in the F.I.R. nor he accompanied the body to the police Station or Hospital nor he made any report to the police or members of the family of the deceased and, therefore, his testimony is extremely doubtful rather he had not even proved any rashness and negligence on the part of the driver. He only had stated that the truck was coming at a 'fast speed' which according to the counsel for the appellant is a relative term and unless there is any rashness and negligence, the driver cannot be held guilty and the claim petition required to be dismissed. 5. It is further submitted that the Tribunal assessed the dependency Rs. 650/- per month, granted multiplier of 35 and ultimately awarded Rs. 2,85,000/- which is highly excessive and liable to be set aside. 6. 5. It is further submitted that the Tribunal assessed the dependency Rs. 650/- per month, granted multiplier of 35 and ultimately awarded Rs. 2,85,000/- which is highly excessive and liable to be set aside. 6. So as to bring home his submissions, learned counsel for the appellant has placed reliance upon the decisions of the Apex Court in Oriental Insurance Company Limited Vs. Meena Variyal, 2007 LawSuit (SC) 378 and Kaushnuma Begum Vs. New India Assurance Co. Ltd., 2001 LawSuit (SC) 6. 7. The respondent-claimants have preferred the cross objection seeking enhancement in the compensation awarded by the Tribunal on the grounds that the deceased was admittedly employed in Military Service and was drawing salary of Rs. 1322/- plus other allowances per month and, therefore, the finding of the Tribunal that the deceased was spending only Rs. 650/- per month on his wife and child is bad in the eye of law and cannot be sustained and requires to be enhanced. 8. It is submitted by the learned counsel for the respondents claimants that the deceased was 24 years of age with fairly good health and was expected to live up to 70 years of age. It is also submitted that no amount for loss of consortium has been granted by the Tribunal. 9. Heard the learned counsel for the parties and perused the judgment and order impugned. 10. As far as issue of negligence is concerned, the Tribunal has given its elaborate reasoning and while dealing with the said issue, principle of negligence and the judgment of the Apex Court will have to be appreciated. 11. 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. 12. The contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place. 12. The contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place. 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 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. 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. 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/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." (emphasis added) 13. The accident occurred at 6.00 p.m. in front of the house of Sri S.N. Mulla, near Beli Hospital. The F.I.R. was lodged and it goes to show that deceased-Shiv Bhole died out of the vehicular accident and that is not in dispute. What has been disputed is that the driver of the truck was not negligent. P.W.3 was the eye-witness. The driver of the truck was driving the truck in rash and negligent manner and dashed with the cyclist. After dashing the cyclist, the driver of the truck lessened the speed and that is how the eye-witness noted the number of the truck. The truck was being plied from South to North. The eye-witness gave the number to one Asthana and also to the father of the deceased. The D.W.1, Hari Lal, deposed that the accident did not occur by the said vehicle and his vehicle had gone to Nagpur. In his cross-examination, he accepted that he never boarded the truck from Allahabad to Kanpur. He was not the eye-witness. The eye-witness gave the number to one Asthana and also to the father of the deceased. The D.W.1, Hari Lal, deposed that the accident did not occur by the said vehicle and his vehicle had gone to Nagpur. In his cross-examination, he accepted that he never boarded the truck from Allahabad to Kanpur. He was not the eye-witness. However, Devta Deen who was the driver of the said vehicle contended that the vehicle did not meet with any accident and the vehicle was in Nagpur and not in Allahabad. His evidence has not been believed as he has not narrated the correct facts. The Tribunal has very categorically come to the conclusion that no document showing that the vehicle was off road or in Kanpur on the fateful date has been produced. No bill nor any receipt of loading or unloading of the goods at Kanpur was filed. The F.I.R. was promptly registered, the charge-sheet was also promptly filed which has been accepted and, therefore, the said vehicle was involved in the accident is a finding of fact which requires no interference. The evidence of Daya Shankar Mishra goes to show that he was informed about the accident and the accident occurred due to rash and negligent driving of Devta Deen, driver of the truck, hence, no fault can be found with the finding of the Tribunal. The Judgment in Meena Variyal (Supra) will not come to the aid of the appellant. Compensation : 14. The Tribunal considered the income of the deceased to be Rs. 1322/- per month namely Rs. 15,864/- per year. To which as the deceased was below 40 years of age and was a salaried person, 50% of the same i.e. Rs. 7,932/- requires to be added as future income of the deceased in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 which would bring the annual figure to Rs. 15,864 + 7932 = 23,796/-. The deduction towards the personal expenses of the deceased would be l/3rd and hence after deduction of l/3rd the amount would come to Rs. 15,864/-. Looking to the age of the deceased, the applicable multiplier would be 18 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 . In addition to that, Rs. The deduction towards the personal expenses of the deceased would be l/3rd and hence after deduction of l/3rd the amount would come to Rs. 15,864/-. Looking to the age of the deceased, the applicable multiplier would be 18 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 . In addition to that, Rs. 70,000/- is granted under the head of non-pecuniary damages in view of the decision in Pranay Sethi (Supra). Hence, the total figure would be Rs. 15864 x 18 + 70,000 = 3,55,552/-. 15. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under: "13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court." 16. Hence, the appeal is allowed to extent of multiplier and the interest. The cross objection is also partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The appellant-Insurance Company shall recalculate the amount and deposit the same within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.