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Allahabad High Court · body

2022 DIGILAW 1138 (ALL)

Umesh Pal v. Uttam Ghosh

2022-07-21

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : AJAI TYAGI, J. 1. Heard learned counsel for the appellants and learned counsel for the respondents. Perused the record. 2. First Appeal From Order No. 1270 of 2022 has been preferred by appellants/claimants against the judgment and award dated 18.01.2020 passed by Motor Accident Claims Tribunal, Muzaffarnagar (hereinafter referred to as ‘Tribunal’) in Motor Accident Claim Petition No. 459 of 2016 (Umesh Pal and Another vs. Uttam Ghosh and Others) whereby the claimants were awarded compensation Rs. 1,37,12,904/- with 7% per annum rate of interest. 3. Claimants have preferred the aforesaid appeal for enhancement of amount of compensation. The National Insurance Company insurer of truck (vehicle) involved in the accident has also preferred Appeal No. 1377 of 2020 against the aforesaid award challenging the same and for setting aside the award in question/modification qua compensation, negligence and liability of Insurance Company are concerned. 4. The brief facts as culled out from the record are that a claim petition was filed by claimants, who are legal representatives of deceased. The averments in the petition are that on 3.8.2016 the deceased Gaurav Kumar was driving Motorcycle No. WB-20N-1364. When the deceased was going to his room with his friend Virendra Kumar at about 4.30 p.m. and when the deceased reached the gate of M.I.M.T. Colony on Taratola Road, a tanker No. WB-19E-8494 came from behind which was being driven rashly and negligently by its driver and hit the motorcycle of deceased from behind. In this accident, deceased sustained grievous injuries due to which he died on the spot. Deceased Gaurav Kumar was serving in Merchant Navy as a Cadet. 5. On summons being issued, Respondent No. 3, Insurance Company Ltd filed its written statement, but no written statement was filed by driver or owner of the aforesaid Tank involved in the accident. 6. The Apex Court in UPSRTC vs. Km. Mamta and Others, AIR 2016 SC 948 , has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court. 7. 6. The Apex Court in UPSRTC vs. Km. Mamta and Others, AIR 2016 SC 948 , has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court. 7. The accident having occurred is now not in dispute, involvement of truck though initially disputed by Insurance Company, qua involvement but finding of tribunal about involvement is not in dispute in challenge by either side while going through the grounds of challenge of the insurance Company, the insurance company has contended that non consideration of contributory negligence of the deceased in light of the facts and circumstances and holding the driver of the truck to be solely liable is bad in eye of law. 8. The issue of negligence decided by the Tribunal is in dispute. The Insurance Company has challenged the liability imposed on them. It is submitted by counsel for Insurance company, the finding that the driving licence of the driver of tanker was valid and effective is bad and on this ground the impugned award is erroneous and liable to be set aside qua the Insurance Company. 9. It is further submitted by learned counsel for Insurance company that the driving licence of the deceased was not valid and effective on the date of accident i.e. on 03.08.2016 as it was valid to drive transport vehicle w.e.f. 26.08.2019 to 25.08.2024 and that there was no endorsement for hazardous goods whereas Tanker in question was heavy goods vehicle capable of carrying of hazardous goods but the Tribunal illegally held that the driving licence of Tanker driver was valid and effective hence on this ground also impugned award is erroneous and liable to be set aside. 10. It is an admitted position of fact that deceased was a bachelor and the claimants are the legal representatives of the deceased, namely, the parents of the deceased, the multiplier would be as per the judgment of National Insurance Company Limited vs. Pranay Sethi and Others, 2017 (0) Supreme (SC) 1050, which would have to be granted as per the age of the deceased and not as per the age of the parents as submitted by learned counsel for the Insurance company. 11. With these background, the submissions of counsels are to be discussed. Arguments qua Compensation in both Appeals: 12. 11. With these background, the submissions of counsels are to be discussed. Arguments qua Compensation in both Appeals: 12. Learned counsel for claimants submitted that at the time of accident, deceased was serving in Merchant Navy, with a private Marine Company in Ireland. It is also submitted that learned tribunal has assessed monthly income of the deceased at Rs. 90,000/- p.m. which is on lower-side because the company had deposited Rs. 12,00,000/- in six months in the bank account of deceased. The monthly income of the deceased was Rs. 2,00,000/- when converted to Indian currency. It is next submitted that in the service of Merchant Navy, income tax has not to be deducted from the salary of the employee. Learned counsel submitted that in the present case, deceased used to reside in Ireland for nine months and tax was deducted from his income by the Government of Ireland, it is submitted that learned Tribunal has erred in deducting income tax from the income of deceased. Learned counsel also submitted that deceased was receiving salary from the company in Euro Currency and at the time of his death, the exchange rate of Euro was Rs. 71.20 per Euro. Learned counsel for claimants also submitted that for the future loss of income, 50% of the income should have been added by the learned tribunal, but tribunal has committed error by adding 40% of the income only, it is further submitted that the amount under non pecuniary damages is on lower side. It is further submitted that rate of interest on lower side than repo rate. 13. Learned counsel for Insurance company vehemently objected to the submissions advanced by counsel for claimants as far as compensation is concerned and submitted that deceased was not the employee of the company, but he was working with the company on contractual basis and there was employment contract between company and deceased in which it was clearly stated that salary would be 800 US Dollars per month. Learned counsel submitted that the tribunal could not go beyond the aforesaid contract and further submitted that at the time of death of the deceased, the exchange rate of US Dollar was Rs. 70 per dollar. Hence, the salary of the deceased comes at Rs. 56,000/- per month and the calculation of salary at Rs. 90,000/- per month is on higher side. 14. 70 per dollar. Hence, the salary of the deceased comes at Rs. 56,000/- per month and the calculation of salary at Rs. 90,000/- per month is on higher side. 14. Learned counsel for claimants submitted that it is on record that from 19th August, 2015 till 20th December, 2015, the deceased earned 18670.67 Euro, certificate of which is on record. It is also submitted by learned counsel that statement of bank account of the deceased is also on record which could prove the income of the deceased which has been overlooked by the tribunal. 15. Learned counsel for insurance company submitted that deceased was not a permanent employee of the Marine Company. Hence, the learned Tribunal was justified by adding only 40% of the income towards future loss of income to the salary of deceased. Findings on all issues: Negligence: 16. As the issue of negligence is raised by Insurance company the same would have to be decided as to who was negligent, whether the deceased had contributed in the accident having taken place what we have to be evaluated to the fact and circumstances of the case. The issue of negligence will have to be decided in light of the facts and circumstances of this case. 17. 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. 18. 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. 18. 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. 19. 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. 20. 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 vs. 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. 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. 21. These provisions (Section 110A and Section 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. 22. 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 vs. State of Punjab, 2005 (0) ACJ (SC) 1840). 23. 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. 24. While going through the facts, it is an admitted position of fact that neither the driver nor the owner of the truck have stepped into the witness box. 24. While going through the facts, it is an admitted position of fact that neither the driver nor the owner of the truck have stepped into the witness box. The driver of the vehicle (truck) is the best witness to contradict and prove the negligence. While going through the testimony of the witnesses, it is clear that motorcyclist was not negligent. The fact that the motorcyclist was going ahead of the truck, the truck which is a bigger vehicle which was following the motorcycle the driver of the truck should have taken proper care, if care was taken, the injuries would not have been suffered by the deceased. The deceased died on the spot and there was injuries on temporal region also. This shows that driver of the truck drove the truck rashly and negligently and dashed motorcyclist on the rear-side. Therefore, the submission of counsel for the insurance company that the deceased had also contributed to the accident having taken place cannot be accepted. Hence, the issue of negligence is decided against the insurance company and we concur with the learned Tribunal as far as issue No. 2 is concerned. 25. This takes us to the issue of avoidance and breach of terms of insurance as far as the licence of the truck driver is concerned, the judgment of the Apex Court in Mukund Dewangan (infra) would enure for the benefit of the claimants, the permit was also there, the driver had driving licence which cannot be said to be not of the vehicle which he was driving. It has not been proved whether the truck was carrying hazardous chemicals or not. All the documents were valid, the finding of fact which has not be proved to be perverse or bad in eye of law. The tribunal which has to take a holistic view of the matter in coming to the conclusion that the driver was having proper effective driving licence has done so. 26. All the documents were valid, the finding of fact which has not be proved to be perverse or bad in eye of law. The tribunal which has to take a holistic view of the matter in coming to the conclusion that the driver was having proper effective driving licence has done so. 26. We are fortified in our view in the light of the judgment of this Court in Oriental Insurance Company Limited vs. Poonam Kesarwani and Others, 2008 Law Suit (All) 1557, when it was not proved by the Insurance Company that there was breach of policy condition, there being no breach of policy of insurance, the judgment of Apex Court in Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) 14 SCC 663 , though referred to the larger Bench will apply to the facts and circumstances of the case. Hence, this ground so to avoid its liability by insurance company cannot be accepted. Insurance company cannot avoid its liability. We concur with the tribunal as far as breach of policy conditions are concerned, there is no breach of policy condition. Compensation: 27. The learned tribunal has assessed monthly income of the deceased at about Rs. 90,000/- per month on the following basis. While learned counsel for Insurance Company has referred the employment contract between the company and the deceased which shows that salary of the employee would be 800 US Dollars per month. It is submitted by learned counsel for claimants that the deceased was paid amount in Euro currency. 28. Controversy about the salary/pay package of the deceased, this Court have re-evaluated. The reports of copies of bank account statement of the deceased just prior to the accident. 29. It is admitted fact that death of the deceased took place in the month of August 2016 on account of the accident, hence the income of the deceased preceding one year of the death would be relevant. 30. While going through the bank account statements of the deceased, for the one year preceding to the death of the deceased, total Rs. 8,45,225/- were credited into the bank account of the deceased by the company, hence, average monthly income of the deceased comes out Rs. 70,435/-. It is pertinent to mention that this amount of Rs. 30. While going through the bank account statements of the deceased, for the one year preceding to the death of the deceased, total Rs. 8,45,225/- were credited into the bank account of the deceased by the company, hence, average monthly income of the deceased comes out Rs. 70,435/-. It is pertinent to mention that this amount of Rs. 8,45,225/- was credited in bank account between the month of September 2015 and December, 2015 and no amount was credited by the company from the month of January, 2016 till the death of the deceased. Hence, the average income of the deceased is assessed Rs. 70,435/- per month. In this way, the total computable annual income of the deceased has to be taken at Rs. 8,45,225/- (concerted). 31. We are in agreement with the learned tribunal for adding 40% of the income towards future loss of income because the deceased was not a permanent employee of the company, but he was working with the Company on contractual basis, 1/2 is deducted by the tribunal for personal expenses of the deceased as he was bachelor and for some period of year would not be with parents which is in consonance with the judgment of Apex Court titled Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 multiplier of 18 is also correctly applied in view of the aforesaid judgment of Sarla Verma (supra) because the age of the deceased was 23 years, non pecuniary damages also need not to be interfered by us as there is no dispute with regard to the non pecuniary damages. 32. On the basis of the above discussions, the quantum of compensation is re-computed herein-below: (i) Annual Income Rs. 8,45,225/- p.m. (ii) Percentage towards future prospects: 40% namely Rs. 3,38,090/- (iii) Total income: Rs. 8,45,225 + Rs. 3,38,090 Rs. 11,83,315/- (iv) Income after deduction of ½ Rs. 5,91,657/- (v) Multiplier applicable 18 (vi) Loss of dependency: Rs. 5,91,657 x 18 Rs. 1,06,49,826/- (vii) Loss of estate Rs. 15000/- (viii) Funeral expenses Rs. 15,000/- (ix) Filial Consortium (Rs. 40,000 each) Rs. 80,000/- (as per decision of the Apex Court) (x) Expenses for bringing the dead-body Rs. 20,000/- Total compensation (vi+vii+viii+ix+x) Rs. 1,07,79,826/- 33. We maintain transportation charges awarded by the tribunal, the reason being, dead body of the deceased transported from distant place. 34. 15000/- (viii) Funeral expenses Rs. 15,000/- (ix) Filial Consortium (Rs. 40,000 each) Rs. 80,000/- (as per decision of the Apex Court) (x) Expenses for bringing the dead-body Rs. 20,000/- Total compensation (vi+vii+viii+ix+x) Rs. 1,07,79,826/- 33. We maintain transportation charges awarded by the tribunal, the reason being, dead body of the deceased transported from distant place. 34. 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 (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.” 35. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and Others vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas and Others, AIR 1994 SC 1631 for disbursement. 36. 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 (supra), the order of investment is not passed because claimants are neither illiterate nor rustic villagers. 37. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. vs. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No. 4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal or appellate court under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961 38. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunal 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 judgment of A.V. Padma (supra), the same is to be applied looking to the facts of each case. 39. In view of the above, both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount of Rs. 1,07,79,826/- 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. 40. Record be transmitted to tribunal. 41. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. vs. Union of India and Others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 8 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account with without investment as the case may be. 42. The First Appeal From Order No. 1377 of 2020 of National Insurance Company Ltd. is partly allowed and the First Appeal From Order No. 1270 of 2020 of claimants is decided, accordingly. 43. We are thankful to learned counsel for the parties for ably assisting this court in getting this old appeal disposed of.