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Allahabad High Court · body

2020 DIGILAW 917 (ALL)

National Insurance Co. Ltd. v. Urmila Devi

2020-06-02

K.J.THAKER

body2020
JUDGMENT : 1. Both these appeals arise out of the same Judgment/award dated 29.5.1999 passed by Motor Accident Claim Tribunal VIth, Allahabad (hereinafter referred to as the Tribunal) in M.A.C.P. No. 227 of 1997 whereby the objections raised by the Insurance Company regarding breach of policy condition were rejected and compensation was awarded to the claimants. 2. Being aggrieved by the award, National Insurance Company Ltd. filed above First Appeal From Order No. 1022 of 1999 before this Court with the submission that the compensation so awarded is not as per the settled legal position of law as enunciated by High Court and the Apex Court and the Insurance Company is no liable as there is breach of policy condition and also contended that it is a case of contributory negligence. A new ground in memo of appeal is raised, namely, insured vehicle was being towed by one another vehicle as it had met with an accident earlier. However, at the outset, this ground in the appeal was neither raised before the Tribunal nor it is substantiated by leading any cogent evidence and, therefore, the said submission requires to be rejected at the outset without delving further in the matter. Being dissatisfied with the above award, the claimants have also preferred above First Appeal From Order No. 1010 of 1999 requesting for enhancement of compensation awarded by the Tribunal for the death of sole bread winner, a police constable of 34 years, who died in the vehicular accident leaving behind six heirs. 3. Claim Petition No. 227 of 1997 was instituted by widow Smt. Urmila Devi and five minor children of young police Constable, Ashok Kumar Shukla, who died at the young age of about 34 years. The Tribunal considered his income as Rs.4,000/- as per salary slip. It is submitted by counsel for claimants that Tribunal did not award any amount under the head of future prospect and deducted 1/3rd towards personal expenses of the deceased from the assessed income. It applied multiplier of 16 and added Rs.20,000/- for loss of love and affections and loss of consortium. It further granted Rs.2,000/- for funeral expenses and Rs.2,000/- for cost of litigation and thus, it awarded total sum of Rs.7,95,000/- as compensation with 12 per cent rate of interest. 4. The offending vehicle being insured with the Insurance Company is not in dispute. It further granted Rs.2,000/- for funeral expenses and Rs.2,000/- for cost of litigation and thus, it awarded total sum of Rs.7,95,000/- as compensation with 12 per cent rate of interest. 4. The offending vehicle being insured with the Insurance Company is not in dispute. Unfortunately, neither before the tribunal nor before this Court, the owner has appeared so as to contest the litigation. Further the driver or the owner did not produce any driving licence and, therefore, it is contended by the Insurance Company that the Judgment of the Tribunal requires to be modified. 5. Brief facts, which are required to be gone into are that the accident took place involving the truck insured by the Insurance Company. The parties are referred to as claimants as they appear before the Tribunal and Insurance company as it appeared before the Tribunal. The deceased was a police constable is not in dispute. The claimants filed copy of the driving licence of the driver of the truck is also not in dispute. However, the issues, which arise before this Court for decision, are as to the liability of Insurance Company, the quantum awarded and whether document, namely, the copy of the driving licence produced by the claimants should have been not considered by the Tribunal and negligence. The accident has taken place on 1.1.1997 at 1.15 a.m. when the deceased was returning on feet after patrolling duty. At that point of time, the driver of the offending truck came from behind without blowing any horn and dashed with the police constable on the road whereby he died instantaneously. The claimants produced several documentary evidence and claimed Rs.25,00,000/-as compensation in the claim petition filed under Section 163 A and 166 of Motor Vehicles Act as it was not settled law that whether claim petition under Section 163A would also be maintainable or not. However, while going through the Judgment, it is clear that the Tribunal considered the matter under section 166 of the Motor Vehicles Act. 6. The Insurance Company in its reply, submitted that it was a case of sole negligence of the deceased as he was walking in the middle of the road. However, while going through the Judgment, it is clear that the Tribunal considered the matter under section 166 of the Motor Vehicles Act. 6. The Insurance Company in its reply, submitted that it was a case of sole negligence of the deceased as he was walking in the middle of the road. It was further contended that the truck was driven in breach of policy condition and that the driver and the owner of the vehicle did not appear before the Tribunal nor produced any documentary evidence and, therefore, it should be held non liable to indemnify the owner and in turn the claimants. Before the Tribunal, claimants examined Urmila Devi as P.W. 1 and Rajiv Kumar as P.W.2 and produced First Information Report, Post Mortem Report, site plan, technical report, charge sheet, driving licence of the driver Tej Bahadur Singh, who was driving the vehicle U.M.W 826, photo copy of the Fifth Pay Commission's report and other relevant documents pertaining to the service conditions of the deceased, the Insurance Company neither produced any document nor examined any witness. In the backdrop of factual data the compensation and the exoneration of the Insurance Company will have to be looked into. 7. At the outset, as far as, the objection of the Insurance Company regarding consideration of the copy of the driving licence is concerned, the law is well settled that it has not been proved by evidence by the Insurance company that the said document is either a forged document or it is not issued by the transport authorities, the claimants cannot be expected to find original document and the same document has to be considered by the Tribunal. The admitted position of law is that Motor Vehicles Act, 1988 is a beneficent and benevolent piece of legislation. The admitted position of law is that Motor Vehicles Act, 1988 is a beneficent and benevolent piece of legislation. It is an admitted fact that the Motor Vehicles Act, 1988 is a benevolent piece of legislation, which has been enacted to award just and reasonable compensation to the victims of the road accident and therefore, according to this Court, while deciding the claim petition filed by the claimants, it is not necessary for the Tribunal to insist for strict proof of the documents produced by the claimants and the strict proof as per Indian Evidence Act is not to be insisted upon and the Tribunal is obliged not to make these strict principles applicable to the proceedings before the Claims Tribunal if the documents produced by the claimants are found to be genuine and correct. If the Tribunal on facts has found them to be correct and has relied upon those documents, this court while reappreciating those documents also find them to be genuine. It can be relied for coming to the conclusion that the driver of the said vehicle, namely, truck had proper driving licence. The Insurance Company did not lead any evidence to prove that the licence was a fake licence. In absence of proving the same, this Court cannot accept the submission of the learned counsel for the Insurance Company. 8. Hence, the submission that the said document should not have been considered by the Tribunal and the Insurance company should have been exonerated, cannot be accepted. I am unable to accept this submission as the proposition of law is very clear that the document, i.e., driving licence, unless proved to be unreliable or proved to be a fake driving licence, has to be considered and not be neglected. The Tribunal has considered this aspect in detail and has rejected the contention of the Insurance company that it is not liable. The driver was Tej Bahadur Singh, who was driving the offending vehicle on the fateful day and was charge-sheeted. His driving licence fitness and other documents were there, therefore, the Tribunal has come to the conclusion that there was no breach of policy condition. The Tribunal has dealt with the issue no. 2 raised by the Insurance Company that whether the driver of the said vehicle was driving the vehicle in breach of policy conditions. His driving licence fitness and other documents were there, therefore, the Tribunal has come to the conclusion that there was no breach of policy condition. The Tribunal has dealt with the issue no. 2 raised by the Insurance Company that whether the driver of the said vehicle was driving the vehicle in breach of policy conditions. The Insurance Company has only averred in the written statement that the vehicle was being driven against the policy conditions. The Tribunal referred the Judgment reported in 1985 TAC 396 of this High court and held that it was the duty of the Insurance Company to prove that the vehicle was being driven in breach of policy condition. The submission of the Insurance company has been that the driver and the owner should have appeared before the Tribunal then only the same document would have been relied on. The Tribunal has given cogent reasons for not accepting this submission. I am in complete agreement with the Tribunal. It is a cardinal principle of law that the person who asserts a fact must prove the same. The strict proof of law of evidence as enunciated in Civil Procedure cannot be very strictly made applicable in cases of Motor Vehicles Act, 1988. Otherwise, the object and purpose of beneficial legislation would be frustrated. In that view of the matter, the contention of the Insurance company that the Tribunal has materially erred cannot be accepted. I also supported in my view by the decision of the Apex Court in the case of Ram Chandra Singh Vs. Rajaram and others, AIR 2018 SC 3789 , wherein it is held that the Insurance company should prove that the licence of the driver was fake driving licence. In this case, it is not proved that the licence produced by the claimant was not a proper driving licence. 9. This takes this Court to the other grounds raised by the Insurance company in its appeal, i.e., First Appeal From Order No. 1022 of 1999, namely, that there is contributory negligence on the part of the deceased and that it is not proved that the driver of the said vehicle was in any way negligent. It is further submitted that the accident was not admitted which is also one of the grounds raised in this appeal. It is further submitted that the accident was not admitted which is also one of the grounds raised in this appeal. It is submitted in this appeal, which was never contended before the Tribunal, that the said truck which is alleged to be involved in the present accident, had already met with a accident and was being taken to the workshop towing with other vehicle and during this period the accident occurred with the vehicle, which was propelling the said vehicle and the said vehicle was not made a party to the litigation and, therefore, also the claimants are not entitled to be reimbursed by the Insurance Company. Unfortunately, this was not the argument or submission ever raised before the Tribunal nor was it proved that the claimants have very cleverly not made the other vehicle a party. This argument is raised in the memo of appeal without any proof. The Insurance company has not even produced any witness nor is there any application for leading any additional evidence for a period of about 19 years, hence, this submission also fails. 10. This takes this Court to issue of negligence raised in the memo of appeal of Insurance company so as to contend that the deceased was solely negligent and or in the alternative, he was co-author of the accident. 11. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 (Bajaj Allianz General Insurance Company Limited Versus 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. 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. 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. 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/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. 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. 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." 12. While going through the F.I.R, the charge sheet and the Judgment of the Tribunal impugned in these appeals, it is very clear that the deceased was on his feet and it was night hours. It goes to show that the accident occurred at about on 1.1.1997 at 1.15 (night). While going through the F.I.R, the charge sheet and the Judgment of the Tribunal impugned in these appeals, it is very clear that the deceased was on his feet and it was night hours. It goes to show that the accident occurred at about on 1.1.1997 at 1.15 (night). P.W. 2, namely, Rajiv Kumar, who is an eye witness stated that he was walking along with deceased and they were returning after performing their duties at H.L. Factory. When they reached at Munshiganj Sarai at about 1.15 a truck bearing Registration No. UMW 82, which came rashly and negligently, and dashed deceased. Constable 48 Jitendra Kumar Singh and Constable 355 Harun Khan flashing their torch had seen the driver and the number of truck and the truck was taken in their custody on the place qua Munshiganj. District Sultanpur and the driver had abandoned the said truck. It was stated that the driver had abandon the said truck after hundred meters of the place of occurrence. There were blood marks on the tyres of the said truck, which were fresh. There was confessional statement of the son of owner that the driver confessed that his truck had met with an accident. However, we may not consider this part of the evidence as being an inadmissible evidence. However, all these facts go to show that the vehicle was involved in the accident and the evidence also shows that deceased Ashok Kumar and other accompanying witnesses were walking on their correct side and he has even negatived the suggestion that he and deceased were walking in the middle of the road. While going through the record, it is clear that the Insurance Company has not been able to dislodge the evidence of this witness and his evidence requires to be accepted. In this view of the matter, can it be said that the tribunal has committed any error in holding that the vehicle was involved in the accident and that the driver of the said truck was solely negligent. The term 'negligence' partakes with it failure to exercise required degree of care and caution expected of prudent driver. Driver did not take proper care and caution and, therefore, his act was a tortuous act. The Insurance Company in paragraph 7 has accepted the accident but has not accepted the involvement of the vehicle. The term 'negligence' partakes with it failure to exercise required degree of care and caution expected of prudent driver. Driver did not take proper care and caution and, therefore, his act was a tortuous act. The Insurance Company in paragraph 7 has accepted the accident but has not accepted the involvement of the vehicle. They have not examined any eye witness, leave apart any witness so as to substantiate their claim of negligence of the deceased. The Tribunal has also drawn adverse inference as the driver of the said vehicle was not examined. However, as far as the deceased is concerned, looking to the F.I.R. and manner in which the accident has occurred, it cannot be said that the deceased has in any way contributed to the accident having taken place. The accident was authored by the driver of the truck and his negligence as attributed hundred per cent is to be accepted and the finding of the Tribunal is accepted. Thus, the concept of contributory negligence pressed into service by the Insurance Company cannot be accepted. Even as per the principles enunciated by the Apex Court in Mohammed Siddique and another Vs. National Insurance Co. Ltd. and others, 2020 ACJ 751, dated 8.1.2020, it cannot be said that the Tribunal has committed any error in holding that the driver of the truck negligent. The reasoning of the Tribunal cannot be flawed. The fact that the deceased was on his feet and there was no evidence to show that there was any wrongful act on the part of the deceased victim which contributed either to the accident or to the nature of the injuries which he had sustained. Hence, the said issue is also decided against the Insurance Company. 13. This takes this Court to the compensation to be awarded. At the outset Sri K.S. Amist has submitted that the interest at 12 per cent could not have been granted and that the quantum requires to be reconsidered. Paragraphs 13 and 14 of the memo of appeal (FAFO No. 1022 of 1999) reads as under:- "13. Because the salary of the deceased as Rs.6000/-per month and the dependency of claimants on deceased as Rs.4000/-per month, fixed by the Motor accident claims Tribunal, are high and exhorbitant. 14. Paragraphs 13 and 14 of the memo of appeal (FAFO No. 1022 of 1999) reads as under:- "13. Because the salary of the deceased as Rs.6000/-per month and the dependency of claimants on deceased as Rs.4000/-per month, fixed by the Motor accident claims Tribunal, are high and exhorbitant. 14. Because future increaement of salary could not be taken into account and the Motor Accident Claims Tribunal illegally and arbitrarily fixed the salary of the deceased as Rs.6000/-per month taking into consideration the future increasement of the salary." 14. It is further submitted that the family of the deceased would be getting family pension as deceased was a Constable in the police force. It is further submitted that the multiplier of 16 is erroneous and that Rs.20,000/- under non pecuniary damages is also bad. The Tribunal according the K.S. Amist could not have awarded any interest. 15. Learned counsel for the appellants in First Appeal From Order No. 1010 of 1999 has contended that the deceased was in service and the claimants should have granted what is known as future loss of income, but, it has not been considered by the Tribunal and that Tribunal ought to have considered this fact has not considered that the deceased would have been entitled to full fledged pension had this accident not occurred. It is further submitted that the deceased left behind five minor children and his widow and Tribunal should have deducted 1/5th and not 1/3rd for his personal expenses. The computation of the compensation is on lower side. Sri Mishra appearing for the claimant has relied on decision rendered in the case of Suresh Chandra Bagmal Doshi and another Vs. New India Assurance company Limited and others, (2018) 15 Supreme Court Cases 649, and has contended that this Court should consider that future rise of income of the deceased was 100 per cent. He has further contended that it is settled legal position that the amount of pension received cannot be deducted from the compensation paid. 16. At the outset, before I start computing compensation, it has to be borne in mind that the amount of pension or other benefits received by the family on account of death of a person in service cannot be deducted. I am supported in my view by the decision of the Apex court in Sunil Sharma & Others Vs. 16. At the outset, before I start computing compensation, it has to be borne in mind that the amount of pension or other benefits received by the family on account of death of a person in service cannot be deducted. I am supported in my view by the decision of the Apex court in Sunil Sharma & Others Vs. Bachitar Singh & Others, 2011 (3) T.A.C. 629 and Manasvi Jain Vs. Delhi Transport Corporation and others, 2014 ACJ 1416 and the Judgment of this Court in First Appeal From Order No. 3159 of 2013, Regional Manager, U.P.S.R.T.C. Vs. Smt. Nisha Dube and others decided on 9.12.2016, wherein it has been held that the deduction of House Rent, Allowance, Medical Allowance, Dearness Allowance, Dearness Pay, Employees Provident Fund, Government Insurance Scheme, General Provident Fund, C.C.A. cannot be made. Recently the Apex Court in Mohammed Siddique (supra) holding that the Tribunal is under an obligation to award what is known as future loss of income, Judgment of this High Court in 2020 ACJ 555, Suman and others Vs. Anisa Begum and another, the future loss of income will have to be granted and the multiplier will have to be granted on the basis of the age of the deceased. In the decision in Malarvizhi and others Vs. United India Insurance Co. Ltd. and another, 2020 ACJ 526 wherein principles of grant of rate of interest and principles for deciding the quantum in fatal accident have been considered. In dealing with the similar case in First appeal No. 1373 of 2010 (Guj.), New India Assurance co. Ltd. Vs. Hiraben WD/O Motibhai Ganabhai Prajapati, the undersigned has held that the quantum will have to be calculated as the deceased was a person having Government job and the earlier Judgment of 2012 in K.R. Madhusudan (supra) was not considered by the Apex Court while dealing with the matter of salaried persons in the case of National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and but has been been considered by earlier Judgment, i.e. K.R. Madhusudhan and others Vs. Administrative Officer and another, (2011) 4 SCC 689 . Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and but has been been considered by earlier Judgment, i.e. K.R. Madhusudhan and others Vs. Administrative Officer and another, (2011) 4 SCC 689 . It has been now reiterated in Suresh Chandra Bagmal Doshi and another (supra) wherein the Judgment in the case of Pranay Shetty has been distinguished and it has been held that computation for future loss of income can be considered in a different manner also for persons having job. In the said decision the Apex Court considered both Sarla Verma Vs. DTC, (2009) 6 SCC 121 , and Pranay Shetty (supra). 17. Having heard the learned counsel for the parties and considered the factual data, income of the deceased can be considered to be Rs.4,000/-per month to which we can add what he would have earned by way of Fifth Pay Commission and Sixth Pay commission, namely, 2000, in 2012 and 2019. Pay of the deceased would increase every year as he would be getting yearly increments and the Pay Commission's recommendations and revise what is known as yearly increment and at the time of his retirement, even if, we do not consider the Pay Commission's reports the DA would have increased and his pay would be Rs.18,217/- and though this calculation is by the learned Advocate placed on record of the Tribunal. The Pay Commission's report if we take into consideration which came into effect after 2006 but was made applicable from 1999 a rough figure of addition of 70 per cent for future loss of income would be just and proper. As per Madhusudan (supra) the average can be taken. The multiplier should be 17 as per Sarla Varma (supra). Thus the claimants would be entitled to Rs.4000+ Rs. 2800 (monthly) out of which as there are five nimors and a widow 1/4th will have to be deducted, hence, the family would be entitled to Rs.5100 (Rs. 5000 round figure) x 12x 17=Rs.1020000/ + 70,000/-+50,000 (for minor children) Rs.1,20,000/-which is equal to Rs.11,40,000/-. 18. In light of this, it is submitted by Sri K.S. Amist that interest also requires to be re-calculated as being consistent in the old matter. 19. 5000 round figure) x 12x 17=Rs.1020000/ + 70,000/-+50,000 (for minor children) Rs.1,20,000/-which is equal to Rs.11,40,000/-. 18. In light of this, it is submitted by Sri K.S. Amist that interest also requires to be re-calculated as being consistent in the old matter. 19. In view of decision of the Apex Court in Civil Appeal No.242/243 of 2020 (National Insurance Company Ltd. vs Birender and others) decided on 13 January, 2020 which is the latest in point of time, rate of interest should have been 9 per cent from the date of filing of claim petition before Tribunal till the Judgment and 6 per cent thereafter till the amount is deposited. The Insurance Company shall recalculate the amount and deposit the same before the Tribunal as expeditiously as possible not later than December, 2020. Record and proceedings be sent back. 20. As more than twenty years have elapsed, by now, the minor children would have become major. The amount be disbursed in equal proportion to all and no amount be kept in fixed deposit as per the latest Judgment of Apex Court in A.V. Padma and others Vs. R. Venugopal and others, 2012 (3) SCC 378 . 21. Both the appeals are partly allowed.