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2020 DIGILAW 699 (ALL)

Santosh v. United India Insurance Company

2020-03-04

KAUSHAL JAYENDRA THAKER

body2020
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri B.P. Verma, learned counsel for the appellants, Sri Mohan Srivastava, learned counsel for the respondents-Insurance Company. None appears for original owner for tempo trailer. 2. This appeal, at the behest of the claimants, challenges the judgment and order dated 30.9.2002 passed by Special Judge/Motor Accident Claims Tribunal, Mathura (hereinafter referred to as 'Tribunal') in M.A.C. No. 289 of 2001. 3. The facts in nutshell are that on the fateful day when the accident took place. The tractor trolley owned by respondent insured with the respondent-Insurance Company was responsible for the commission of the accident as it was stationed in the middle of the road, in which the deceased, who was a teacher by profession and was going from Bhartpur By-pass bridge on 25.5.2001 his motorcycle dashed with the said tractor owned by the respondent at about 9:30 p.m.. The claimants alleged that on 25.5.2001 due to the said accident the husband of Santosh claimant No. 1 got injured and he had to be admitted to two hospitals first from 25.5.2001 to 26.5.2001 and later from 26.5.2001 till 4.6.2001 where he scummed to the accidental injuries on 4.6.2001. The deceased left behind him two minor children one of four years and one of 2 years and his young widow of 30 years. He was also survived by his aged parents. Bhagwan Singh deceased was 33 years of age and was a teacher in a school earning Rs. 7,000/- per month also had agricultural land. The deceased had sustained several multiple injuries and the accident occurred on National Highway No. 2 at about 9.30 pm.. The deceased was traveling on his motor cycle bearing No. U.P. 85C/6133. The deceased was admitted in Swam Jayanti Samuhik Hospital, Mathura and then when the said hospital felt that he was sinking they referred him to Kamayani Hospital, Agra from where he was shifted Mathura. The respondent Nos. 2 and 3 were the owners and drivers of the said tractor trolly. The claimants claim was confronted by the Insurance Company contending that the vehicle was not insured with them. There was collusion between owner and claimants that the Charge-sheet and F.I.R. was not filed in time. No effective and valid license was filed. The owner of the tractor trolly was not cooperating with the Insurance Company. The claimants claim was confronted by the Insurance Company contending that the vehicle was not insured with them. There was collusion between owner and claimants that the Charge-sheet and F.I.R. was not filed in time. No effective and valid license was filed. The owner of the tractor trolly was not cooperating with the Insurance Company. There was inordinate delay in filing the F.I.R. The driver of the tractor trolly was not negligent but the deceased was negligent. 4. The owners of the tractor trolly admitted the accident but denied their negligence in operating the tractor trolly. 5. The claimants filed several documentary evidence so as to prove the hospitalization and death as well as accident having occurred with the tractor trolly. 6. Before I delve into the several aspects of the matter from the record it is clear that neither the Insurance Company nor the owner of the tractor trolly ever contended that the vehicle was not involved in the accident. Despite that the claimants claim petition in absence of any rebuttal evidence being led was dismissed by claims tribunal. The tribunal dismissed the claim petition holing that the F.I.R. was belated, it did not bear the number of the tractor trolly and that there was collusion between Police Authority and the claimants and the owner and did not believe the oral testimony of eye-witness. 7. It is submitted by Sri B.P. Verma, learned counsel for the appellant that the Tribunal dismissed the claim by filmsy reasons and order is perverse and dismissed on the following counts. 1. Namely in the F.I.R. number of Tractor Trolley No. U.P. 85 F 3120 was not mentioned, F.I.R. alleged was filed after 14 days of accident. In the site plan, vehicle was not shown to be there on the spot. Head Constable submitted his charge-sheet report after 40 days of the accident involving the said vehicle. The Tribunal has disbelieved the involvement of the vehicle. 2. Evidence of witness produced by claimants was not believable. 3. The medical reports were scanty and did not mentioned who brought the injured. to the hospital. 8. It is submitted by Sri Mohan Srivastava, learned counsel for Insurance Company that award cannot be found fault with as the vehicle No. U.P. 85 F 3120 was not involved in the accident. Evidence of witness produced by claimants was not believable. 3. The medical reports were scanty and did not mentioned who brought the injured. to the hospital. 8. It is submitted by Sri Mohan Srivastava, learned counsel for Insurance Company that award cannot be found fault with as the vehicle No. U.P. 85 F 3120 was not involved in the accident. The vehicle should have been taken in custody by the police on the date of the accident as it is mentioned in the F.I.R. that police personnel came immediately and took injured to hospital. The evidence of witnesses examined by claim ants were rightly disbelieved by the tribunal. 9. While interpreting the provisions of Section 168 and 168 (4) of the Motor Vehicle Act, 1988 (hereinafter referred as the 'Act') were ignored by the Tribunal while deciding the matter. The Tribunal rejected the clam petition, though the deceased was admitted in the hospital and the F.I.R. clearly spelt out that it was due to the involvement of the vehicle. This fact was proved as the driver fled away with the vehicle though G.D. entry also there with police authorities. The post mortem report also proved the fact that deceased died due to accidental injuries. The vehicle tractor trolly was proved to be involved in the accident. The tribunal held that the driver, owner and insurance of the motor cycle was not joined as a party. The accident had taken place on 25.5.2001 at 9.30 p.m. as a result of involvement of tractor trolly which was not disputed by owner or driver or Insurance Company which has been proved by cogent evidence just because there are certain contradictions in the testimony of the witness and because who got the injured, in the hospital is not mentioned, the claim petition was dismissed and being the claimants' case is disbelieved. The fact is that the charge-sheet was filed pursuant to F.I.R lodged is not just because in dispute the tractor trolly was not confiscated detained on the spot it is held that the vehicle was not involved in the said accident. Recently the High Court of Gujarat in Joshi Rajendrakumar Popatlal v. Thakor Ramnaji Hamirji and others, 2020 ACJ 365 , has held that the Tribunal should not decide claim petition by taking hyper technical approach and thereby frustrate the provision of beneficial peace of legislation. Recently the High Court of Gujarat in Joshi Rajendrakumar Popatlal v. Thakor Ramnaji Hamirji and others, 2020 ACJ 365 , has held that the Tribunal should not decide claim petition by taking hyper technical approach and thereby frustrate the provision of beneficial peace of legislation. The Apex Court in Bimla Devi and others v. Satbir Singh and others, 2013 (4) SCC 345, has held that hyper technicality should not be allowed to frustrate the aim of beneficial peace legislation. In our case hyper technicality of the learned Tribunal has resulted into the flaw in his award. It was established that the deceased had definitely met with the accident involving two vehicles. It was also proved that the accident was between the tractor trolly and the motor cycle on which the deceased was plying. The technical defect of pleading should not have been made the basis of rejection of the claim petition. I am supported in my view by the decision of Apex Court in the case of Gurdeep Singh v. Bhim Singh, (2013)11 SCC 507 , wherein provision of Section 173 of the 'Act' read with Section 96 of the Code of Civil Procedure, 1908 will permit this Court to reverse the perverse findings reached by the tribunal. The Apex Court decisions in Sharanmma v. North-East Karnataka RTC, 2013) 11 SCC 517. The judgment in Dulcina Fernandes v. Joaquim Xavier, First Appeal No. 216 of 2004, decided on 14.11.2008 with also help the claimants. Therefore also the appeal will have to succeed. 10. The judgments relied by the learned counsel for the appellant herein supports the judgment relied hereinabove. The decision in Sunita and others v. Rajasthan State Road Transport Corporation and another, 2019 AIR SC 994 and the later judgment thereafter will oblige this Court to reverse the award of Tribunal as the award is based on a surmises and conjecture if there was collusion between the claimants and the owner, the Insurance Company could have proved their case which they have not proved. The Insurance Company has not led any rebuttal evidence. The finding of fact that the accident did not occur with the tractor trolly is based on surmises and conjunctures and is bad in law. The Insurance Company has not led any rebuttal evidence. The finding of fact that the accident did not occur with the tractor trolly is based on surmises and conjunctures and is bad in law. The charge-sheet was laid after 40 days appears, reason has been assigned by the police officer that they had enquired from the A.R.T.O. about the name of the owner of the tractor which was given by A.R.T.O. belatedly. Had there been a collusion between the police and the owner and the claimants they would not have inquired from A.R.T.O. about name of owner, non mentioning of the number in the GD entry or the F.I.R. was one of the reasons for rejecting the claim petition. The Insurance Company did not lead any evidence has not contended in written statement that tractor trolly was not involved in the accident. The owner nor the Insurance Company have lead any evidence to show that the tractor trolly was not involved in the accident. The G.D. entry was there and F.I.R. was lodged immediately after the death of the injured namely after 4.6.2001. The driver of the vehicle was arrested and was enlarged on bail, these orders are on record of the Tribunal. The A.R.T.O. took a long time in supplying name of the owner of the vehicle and just to come to a finding that the witnesses were not reliable is bad in eye of law. The provision of the Section 168(4) of the Motor Vehicle Act has not been followed by learned Tribunal and therefore also the award requires interference. The post mortem report went to show that the deceased died out of accidental injuries. The tractor trolly was confiscated by police. The deceased survived for about 8 days after the incident. The finding that the widow of the deceased did not see the tractor trolly on the spot is a perverse finding as she was not an eye-witness. The evidence of the other eye-witness has been wrongly discarded. The number of the tractor was given immediately after the accident just because who went to the hospital with injured is not mentioned, the learned Tribunal has disbelieved that the accident took place. The deceased died due to injury on his vital part i.e. his head. The evidence of the other eye-witness has been wrongly discarded. The number of the tractor was given immediately after the accident just because who went to the hospital with injured is not mentioned, the learned Tribunal has disbelieved that the accident took place. The deceased died due to injury on his vital part i.e. his head. All these facts go to show that the Tribunal has flawed in coming in to the conclusion that the tractor trolly was not involved in the accident. Once F.I.R and charge-sheet were filed it prima facie proves the involvement of the tractor in the accident. The learned Judge has committed an error of fact while going through the record. 11. In our case also the appellants are able to prove the factum of accident as the eye-witness P.W. 2 Mahesh has given proper account of the involvement. The belated filing of charge-sheet and F.I.R. has been properly explained as the family members were busy in giving medical aid to the injured. Now G.D. entry was lodged. The finding that there was collusion between the family members, the police and the owner and driver of the vehicle is not proved. The police took him to the hospital and just because no police was examined can it be said that there was malice. The Tribunal could have as per the provisions of the act summoned the police authorities for giving evidence which was not done. The charge-sheet is prima facie, a document which would show that the vehicle was involved. The accident took place at night and the admission of the respondent as per the Code of Civil Procedure, 1908 was supposed to be looked into just because Hari whose name figures in' the charge-sheet as to the person who took the deceased to the hospital was not examined, the learned Tribunal goes to a remote finding which cannot be accepted even in regular Civil Court that the document of both the hospitals did not mention what treatment was given though the document at Exhibit 23K shows that the first hospital where he was treated for one day referred him to Agra. The documents are produced and the judgment of Oriental Insurance Company Ltd. (Supra) and in the case of Kumari Deepti Tiwari v. Banwarilal, 1965 LawSuit (MP) 94, would help the appellants. 12. The tribunal has held that no documents of Bhagwan Singh were produced. The documents are produced and the judgment of Oriental Insurance Company Ltd. (Supra) and in the case of Kumari Deepti Tiwari v. Banwarilal, 1965 LawSuit (MP) 94, would help the appellants. 12. The tribunal has held that no documents of Bhagwan Singh were produced. Unfortunately, he has over looked the documents at 11 G also which shows that CT Scan, clinical observation, medicine of P.P. medicos and the CT Scan of brain advised by Swarn Jayanti Samudayik Hospital, Mathura were already on record. The learned Tribunal has over looked the documents of Kamayani Hospital where he was treated till 4.6.2001. The delay in F.I.R. lodgment is explained but the learned tribunal has mislead itself. In coming to the conclusion that deceased had no accidental injury. The documents of Kamayani Hospital, Agra shows that he was admitted due to accidental injury and certificates for also given to the said fact.. The fact that the driver was enlarged on bail by the concerned authority also goes in favour of the claimant. 13. Learned counsel for the appellants has relied on judgments in the case of Ravi v. Badrinarayan and others, 2011 Law Suit (SC) 97, Bimla Devi and others v. Satbir Singh and others, decided on 28.2.2012, Kaushnwna Begum and others v. The New India Assurance Co. Lid. and others, decided on 3.1.2001, Vimla Devi and others v. National Insurance Company Ltd. and others, decided on 16.11.2018 and Oriental insurance Co. Ltd. v. Premlata Shukla and others, decided on 15.5.2007. 14. Even if there was collusion the application under Section 170 of the Motor Vehicle Act was filed and they were permitted to lead all the evidence so as to rebut all the averments made in the claim petition and the reply filed by the respondent owner of the vehicle. 15. The appeal was allowed holding that vehicle was involved in the accident. 15. The appeal was allowed holding that vehicle was involved in the accident. Initially I had thought of remanding the matter but due to lockdown the judgment could not be uploaded on 4.3.2020 i.e. on the same date and while making corrections this Court felt that the issues which are raised are similar or identical to those raised in the judgment of Apex Court in the case of Vimla Devi and others (Supra) and therefore as per the provisions of Section 173 of 'The Act' read with Section 166, 158 and Section 140 of 'The Act' and the judgement of Apex Court in the case of Jai Prakash v. National Insurance Co. Ltd., 2010 (2) SCC 607 and also 163 (A). Should the matter be remanded was the question which arose in my mind the accident occurred in the year 2001, we are 20 years hence, the record is before this Court. The matter can be decided on the touch stones of the seven para meters laid down in para 26 to 33 of the decision in Vimla Devi (Supra). Section 173, 166, 156, 140 reads as follows: "Section 173 of the Motor Vehicles Act, 1988 173. Appeals.- (1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Section 166 of the Motor Vehicles Act, 1988 166. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees. Section 166 of the Motor Vehicles Act, 1988 166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 1 [(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.] [***] [(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act. Section 158 of the Motor Vehicles Act, 1988 158. Section 158 of the Motor Vehicles Act, 1988 158. Production of certain certificates, licence and permit in certain cases.- (10 Any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce- (a) the certificate of insurance; (b) the certificate of registration; (c) the driving licence; and (d) in the case of a transport vehicle, also the certificate of fitness referred to in Section 56 and the permit, relating to the use of the vehicle. (2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving death or bodily injury to another person, the driver of the vehicle does not at the time produce the certificates, driving licence and permit referred to in sub-section (1) to a police officer, he shall produce the said certificates, licence and permit at the police station at which he makes the report required by Section 134. (3) No person shall be liable to conviction under sub-section (1) or sub-section (2) by reason only of the failure to produce the certificate of insurance if, within seven days from the date on which its production was required under sub-section (1), or as the case may be, from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him to the police officer who required its production or, as the case may be, to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident: Provided that except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to the driver of a transport vehicle. (4) The owner of a motor vehicle shall give such information as he may be required by or on behalf of a police officer empowered in this behalf by the State Government to give for the purpose of determining whether the vehicle was or was not being driven in contravention of Section 146 and on any occasion when the driver was required under this section to produce his certificate of insurance. (5) In this section, the expression "produce his certificate of insurance" means produce for examination the relevant certificate of insurance or such other evidence as may be prescribed that the vehicle was not being driven in contravention of Section 146. (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer. Section 140 of the Motor Vehicles Act, 1988 140. Liability to pay compensation in certain cases on the principle of no fault.- (1) Where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section. (2) The amount of compensation which shall be payable under sub-section (1) in respect of the death of any person shall be a fixed sum of 1 [fifty thousand rupees] and the amount of compensation payable under that sub-section in respect of the permanent disablement of any person shall be a fixed sum of 2[twenty-five thousand rupees]. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (3) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. (4) A claim for compensation under subsection (1) shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. 3[(5) Notwithstanding anything contained in sub-section (2) regarding death or bodily injury to any person, for which the owner of the vehicle is liable to give compensation for relief, he is also liable to pay compensation under any other law for the time being in force: Provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under Section 163A." 16. 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 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. 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. 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." 17. 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." 17. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Company Limited v. 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. 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. 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. 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." 18. The eye-witness goes to show that the tractor trolly was parked in the middle of the road. It is not proved that the deceased was drunk or intoxicated as it is not proved by any evidence. The post mortem report filed also does not speak of any such liquid or food material. The tractor was parked facing towards Agra. It was dead of night at 9:30 p.m. when the deceased scooterist came from behind and dashed with the stationary tractor trolly. The negligence of the deceased can be attributed to 50 per cent. The reason being the tractor trolly was in the middle of the road was without any side lights, without indicators and it is proved that the accident occurred. Liability: 19. The principals for directing the Insurance Company to pay would be on the basis of the fact that it is to be proved that there is no breach of policy condition. The driving license of the tractor trolly driver shows that the driver he had license to drive light motor vehicle. Tractor is a light motor vehicle even if trolly is insured or not the Insurance Company would be liable as per Santlal (infra). 20. This takes this Court to the issue of whether the Insurance Company is able to prove that there was breach of policy condition, they have not laid any evidence. The license produced which is a xerox copy goes to show that the driver of tractor trolly was authorised to drive the tractor. It is now a settled legal position of law as initiated by the Apex Court in Mukund Dewangan v. Oriental Insurance Company Ltd:, (2017) 7 Law (SC) 49, retreated in Sant Lal v. Rajesh and others, (2017) 8 SCC 590 , that if a person has a driving license of LM V he can drive a tractor trolly. Hence, it is conclusively proved that the driver had proper driving license there was no breach of policy condition also. 21. Hence, it is conclusively proved that the driver had proper driving license there was no breach of policy condition also. 21. As the uploading took time instead of remanding the matter which would take further time during this pandemic the matter is decided here in the especial facts and circumstances as the record is before this Court and as per the judgment of Apex Court in Vimal Devi (Supra) and Section 173 of Act which has been reproduced hereinabove. Compensation: 22. This takes this Court to the last issue of compensation as per the judgment in Vimla Devi (Supra) simple calculation would wipe the tears of a young widow who has waited for 20 years and the children who have lost their only bread winner who was a teacher and was admittedly earning Rs. 6,000/- per month as per the documentary evidence. He was survived by his widow, two minor children aged one daughter and one son four and two years who by now must have become major, and the aged parents. The deceased was 33 years of age when the accident occurred. Hence, even by the thumb rule as held in National Insurance Company Limited v. Pranay Sethi and others, 2017 0 Supreme (SC) 1050. Rs. 6,000+Rs. 3,000/- would be Rs. 9,000/- deduction of 1/3rd would be Rs. 3,000/- for personal expenses as there are five survivors but two are minor, hence one portion for them, hence, Rs. 6,000 x 12 x 16 (multiplier) as per judgment of Apex Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 12, which would be 11,52,000+ 70,000=12,22,000/-. The medical expenses of Rs. 50,000/- would also be admissible out of this 50% be deducted towards contributory negligence. 23. The claimants have proved by the cogent evidence laid before the tribunal that for the treatment of the deceased they have spent not less than Rs. 50,000/-, hence, this Court feels that they would be entitled to get the said amount also. 24. 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. v. Mannat Johal and others, 2019 (2) TAC 705 (SC), 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. Ltd. v. Mannat Johal and others, 2019 (2) TAC 705 (SC), 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.". 25. The appeal is partly allowed in favour of claimants. 26. The record and proceedings be sent to the Tribunal forth with. 27. The Insurance Company shall deposit the amount as computable with interest i.e. Rs. 6,11,000+50,000= Rs. 6,61,000/- at the rate of 7.5% as expeditiously as possible not later than 31.12.2020.