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2022 DIGILAW 1859 (ALL)

Krishna Prasad Tiwari v. Pramod Kumar Yadav

2022-11-24

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Heard Sri Ram Singh, learned counsel for the claimants/appellants and Sri Arun Kumar Shukla, learned counsel for the respondents. 2. The claimants/appellants being dissatisfied with the quantum of compensation have preferred the present appeal with a prayer for enhancement of compensation. 3. Learned counsel for the claimants/appellants has contended that finding of the Tribunal that since the deceased was not having a valid driving licence to drive the motorcycle, therefore, there was some negligence of the deceased in the accident is perverse and against the record inasmuch as there was no evidence on record to prove the negligence of the deceased in the accident. It is further submitted that claimants/appellants had produced eye witness of the accident P.W.2 Ram Vilas Mishra, who proved the negligence of the driver of the offending vehicle namely Bus No.U.P.-70-CT-4080, and thus, finding of the Tribunal in respect of negligence of the deceased is not sustainable in law. 4. It is further submitted that the accident had taken place on 15.11.2015 and the Tribunal has assessed the income of the deceased as Rs.3,000/-per month and even if there was no proof of income of the deceased, the Tribunal ought to have taken Rs.6,000/- as income of the deceased in view of the judgement of Apex Court in the case of Magma General Insurance Company Ltd. Vs. Nanu Ram alias Chuhru Ram and others 2018 (18) SCC 130 in computing the compensation. 5. Per contra, learned counsel for the respondents would contend that it is admitted that deceased was not holding a valid driving licence to drive the motorcycle and thus, it is obvious that there was some negligence on the part of the deceased in the accident. He further submits that compensation awarded by the Tribunal is just and proper as there was no proof of income of the deceased and hence, the same does not call for interference by this Court in the appeal. 6. I have considered the rival submissions of the parties and perused the record. 7. In the instant case, the claimants/appellants have produced the eye witness P.W.2, who had categorically stated that the accident was the result of rash and negligent driving of driver of offending vehicle. No evidence in rebuttal to the testimony of P.W.2 was filed by the insurance company. 7. In the instant case, the claimants/appellants have produced the eye witness P.W.2, who had categorically stated that the accident was the result of rash and negligent driving of driver of offending vehicle. No evidence in rebuttal to the testimony of P.W.2 was filed by the insurance company. The Tribunal on its own without there being any material on record presumed that since the deceased was not having valid driving licence to drive the motorcycle, therefore, he was also negligent in the accident. This Court finds the finding of the Tribunal in respect of the negligence of the deceased in the accident is perverse and against the record. In this respect, it would be apt to reproduce paragraph nos.7 & 8 of the judgement of Apex Court in the case of Sudhir Kumar Rana Vs. Surinder Singh and Others 2008 (2) T.A.C. 769 (SC):- "7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. [See New India Assurance Company Ltd. v. Avinash, 1988 A.C.J. 322 : 1996 (2) T.A.C. 182 (Raj.)]. In T.O. Anthony v. Kavarnan & Ors. (2008) 3 SCC 748 , it was held: "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. 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. 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." 8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence." 8. Thus, in such view of the fact, this Court finds that the accident was the result of sole negligence of driver of offending offending. 9. Thus, in such view of the fact, this Court finds that the accident was the result of sole negligence of driver of offending offending. 9. Further, the Apex Court in the case of Magma General Insurance Company (supra) has held the notional income to be Rs.6,000/-per month and thus, accepting the submission of learned counsel for the claimants/appellants in view of the judgement of Apex Court in the case of Magma General Insurance Company (supra), this Court directs the Tribunal to recompute the compensation by treating the income of the deceased as Rs.6,000/-per month in place of Rs.3,000/- per month. 10. It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of claim petition. 11. Thus, for the reasons given above, the appeal is partly allowed and the award of the Tribunal is modified to the extent as indicated above. The insurance company is directed to pay the enhanced amount of compensation to the claimants/appellants within a period of three months from the date of production of a certified copy of this order. There shall be no order as to costs.