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2021 DIGILAW 1121 (ALL)

Rajesh Singh v. Margub Ali

2021-09-27

K.J.THAKER, SUBHASH CHAND

body2021
JUDGMENT : 1. Heard Sri S.D. Ojha, Advocte, holding brief of Sri Ram Shiromani Yadav, learned counsel for the appellants, Sri N.K. Srivastava, learned counsel for the respondent and perused the judgment and order impugned. 2. This appeal, at the behest of the claimants, challenges the judgment and award dated 7.8.2014 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Rampur (hereinafter referred to as 'Tribunal') in M.A.C.No. 50 of 2013 awarding a sum of Rs.1,43,616/- with interest at the rate of 6% as compensation. 3. Facts in brief as per claim petition are that Smt. Rita Singh wife of claimant, namely, Rajesh Singh was posted as Assistant Teacher in Primary School, Mohanpura, Police Station Tanda, District Rampur. On 19.2.2013, she was travelling as a pillion rider on motor cycle bearing Registration No. UP 22 L 7256, which was being driven by Sri Chandrabhan Singh. When they reached Kharij brick-kiln, driver of a truck bearing Registration No. U.P. 21 N. 1312 driving rashly and negligently dashed said motorcycle as a result of which Smt. Rita Singh sustained grievous injury and later on she died on the spot itself. Chandrabhan Singh also sustained injuries and motorcyle also got damaged. Report of the accident was registered as Crime No. 112 of 2013 at Police Station Chowki Saidnagar under Sections 279, 304 A I.P.C. 4. The Tribunal seems to have deducted dearness allowance and has considered the income to be Rs.10,560/- which, according to Sri Ojha should not have been done in view of the Judgment in Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830 and Sunil Sharma Vs. Bachitar Singh, Laws (SC)-2011-2-73. According to him, as the deceased was below the 40 years and salaried person, 50 per cent should have been added to her income under the head of future prospect in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is submitted by counsel for the appellants that no amount under the head of pecuniary loss has been awarded by the Tribunal. Interest is also required to be enhanced. 5. It is submitted by the learned counsel, Sri N.K. Srivastava ably assisted by Anubha Gupta that husband cannot be considered to be dependent on his wife. He would have his own earnings. Interest is also required to be enhanced. 5. It is submitted by the learned counsel, Sri N.K. Srivastava ably assisted by Anubha Gupta that husband cannot be considered to be dependent on his wife. He would have his own earnings. In the pleadings also it is not shown that he was not having his own income. This submission is made, we think, for deduction of personal expenses of the deceased. Learned counsel for the respondent contends that the driver of the motorcycle, namely, Chandra Ban is third party. The motorcycle belonged to appellant no. 1, namely, Rajesh Singh. It is further submitted that finding of fact of the Tribunal cannot be found fault with as the motor cyle was going ahead of the truck. 6. Sri Ojha submitted that the finding of fact recorded by the Tribunal that motorcyclist was 90% negligent cannot be accepted. He further submitted that even if it is assumed that the driver Chandra Bhan Singh was negligent qua the appellants it would be a case of composite negligence. In support of his submissions, he relied upon the decision of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and others, 2008 (3) TAC 193 (SC) and Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 to contend that no amount can be deducted from the compensation awarded from the legal heirs of the deceased, who was not coauthor of the accident. 7. 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. 8. The principle of 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. 9. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co. Ltd. Vs. 8. The principle of 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. 9. 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 loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew 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) 10. The Apex Court in Khenyei Vs. New India Assurance Company Limited & 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 tort feasors. In a case of accident caused by negligence of joint tort feasors, 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 tort feasors 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 tort feasors 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 tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. However, in case all the joint tort feasors 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 tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors 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 & Ors. [ 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. 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. 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." 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 tort feasor 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. The same analogy can be applied to the instant cases as the liability of the joint tort feasor 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 – trailor-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 trailor-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 tort feasor 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: 7. (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. 8. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 9. (iii) In case all the joint tort feasors 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 tort feasors 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 tort feasor can recover the amount from the other in the execution proceedings. 10. (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 tort feasors. 10. (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 tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award." (Emphasis added) 11. The decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite and contributory negligence. 12. The judgments of Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and others decided on 05.08.2002 in Appeal (Civil) No. 5436 of 1994, (2) Raj Rani and others Vs. Oriental Insurance Company Limited and others decided on 06.05.2009 in Civil Appeal No. 33-3318 of 2009 (Arising out of SLP (C) Nos. 2792-27793 of 2008) and (3) Archit Saini Vs. Oriental Insurance Company Ltd. And others, (2018) AIR (SC) 1143, will also permit us to revaluate the percentage of the negligence of the deceased. The Tribunal has held that the deceased too was negligent in driving the vehicle. 13. Having heard both the counsel while going through the site plan, the magnitude of the accident and the principle, which is enunciated time and again, we are of the view that the driver of motor vehicle has to be more cautious on the Highway. The driver of the truck has not stepped into the witness box. Charge sheet was laid down against him. There was instantaneous death of the deceased on the spot which shows he tried to overtake a motor cycle. Looking to the totality of facts and circumstances, we hold Chandra Bhan, driver of the motorcycle to be 25% negligent. Judgment of Khenyei (supra) would give recovery right of 25% from the driver or owner. In our case, owner is appellant no. 1 himself, hence, instead of going into the fresh cases of recovery, it would be better for us to deduct of 25% from the amount payable by the Insurance Company. 14. This takes us towards consideration of compensation amount to be awarded in the facts of the present case. We may fix income of the deceased as Rs.25,000/- as out of Rs.26468 certain amount has to be deducted to which 50% requires to be added under the head of Future Prospect. 14. This takes us towards consideration of compensation amount to be awarded in the facts of the present case. We may fix income of the deceased as Rs.25,000/- as out of Rs.26468 certain amount has to be deducted to which 50% requires to be added under the head of Future Prospect. Deduction of ½ is required towards personal expenses as there was only one dependent, ie., minor son. As the deceased was 36 years of age, multiplier of 16 and not 17 would apply . Husband and son have lost their wife and mother, hence, Rs.70,000/- is awarded towards non pecuniary damages. 15. Hence, the total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below: i. Income Rs. 25,000 p.m. ii. Percentage towards future prospects Rs. 12,500/- iii. Total income: Rs. 25,000/- + Rs. 12,500/- Rs. 37,500/- iv. Income after deduction of ½ towards personal expenses Rs. 18,750/- v. Annual income: Rs. 18,750/- x 12 Rs. 2,25,000/- vi. Multiplier applicable 16 vii. Loss of dependency: Rs. 2,25,000/- x 16 Rs. 36,00,000/- viii. Amount under non pecuniary heads Rs. 70,000/- Total compensation Rs. 36,70,000/- 16. Compensation payable to the claimants after deduction of 25% of amount would be Rs.27,52,500/-. 17. 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." 18. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers. 19. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd. 2007 (2) GLH 291 , total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No. 1 of 2020 in First Appeal From Order No. 23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount. 20. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount 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. Amount for the minor child be kept in fixed deposit till he attains majority. 21. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 22. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 22. Record be sent back to the Tribunal.