Oriental Insurance Co. Ltd. vs Brahma & Others
2017 Latest Caselaw 3817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 409 of 1995
 

 
Appellant :- Oriental Insurance Co. Ltd.
 
Respondent :- Brahma & Others
 
Counsel for Appellant :- K.S.Amist
 
Counsel for Respondent :- S.K. Singh,ASGI,Pankaj Srivastava,R. Singh Yadav,V.S.Dwivedi
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the insurer against the award of the Motor Accident Claims Tribunal, Mahoba dated 29.8.1995 in Misc. Case No. 50 of 1991 being claim petition filed under the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). The award is of Rs. 1,20,000/- arising from death of Ram Kishore.

In brief facts giving rise to the present appeal are, the claim petition came to be filed by the parents, wife and four minor children of Ram Kishore (hereinafter referred to as the deceased) arising from an accident that occurred on 14/15.5.1991.

At the time of accident, the deceased Ram Kishore was 25 years of age and was travelling on a train - Gwalior-Benaras Express, 1187 Down, from Surat to his village at Mamuwa in District Banda, alongwith Shambhu and Laxman. They boarded the train at Jhansi. Being ''amavasya' night, the said train was over loaded with passengers and at the time of accident, the deceased was sitting in the passage near a entry gate of a coach of the train. At the same time, a truck bearing registration number USF-5640 (hereinafter referred to as the truck), insured by the present appellant was so near the railway track, that the said train grazed against the rear end of the truck resulting in deceased coming into contact with the truck as the train compartment (in which the deceased was travelling), went past the truck.

As a result of injuries suffered in that accident, Ram Kishore died. Also, two others, namely Shambhu and Massli got injured in that accident. It is also claimed, Ram Kishore was a skilled worker and he used to work at Krishna Textile Silk Mill at Surat. It was further claimed he was earning about Rs. 3,000/- per month before the accident.

In the claim proceeding, the claimant impleaded the owner, driver and the insurer of the truck as also the Union of India through the General Manager, Central Railway. It is also on record, the claimants initially filed a claim petition before the Railway Claims Tribunal which was however, dismissed.

Before the Motor Accidents Claim Tribunal, Mahoba, the insurer, owner and driver of the truck as also the railway entered appearance. The owner and driver of the truck first denied occurrence of the accident. At the same time, they stated the truck was engaged to move some earth across the railway track, near Pachpehra railway crossing, when, at about 8:30 pm its rear wheel got stuck in a drain besides the railway track just as it crossed it, fully laden.

At about 9:00 pm the train crossed point where the truck was lying stuck. The deceased suffered injuries, because according to them, the deceased was standing on the footboard of the train compartment of the moving train, holding on to the handle bars. According to him, the truck was at distance about two feet from the railway track and therefore, injuries suffered by the deceased were on account of his own fault.

The Tribunal framed four issues including as to jurisdiction of the Tribunal and whether negligence of the driver of the truck caused the accident. The railway authority appeared but did not file any objection as to jurisdiction. Therefore issue of jurisdiction was decided in favour of the claimants. Then, the Tribunal also concluded, the railway was not liable to compensate the claimants because the train was moving on its track and train was not being driven in a rash and negligent manner.

Then, the Tribunal noted, there was no negligence on part of respondent no.4 because the train was moving on its track in normal course and injuries to the deceased were not caused due to the train being driven in a rash and negligent manner. The Tribunal further noted, the truck had crossed the railway line from one side to the other and it was thereafter that its rear end got stuck in a drain.

The owner and driver of the truck first denied the claim allegations as to occurrence of accident, age and occupation of the deceased. They even denied the fact of the deceased and other witnesses travelling on the train or the involvement of their truck.

At the same time the Tribunal has also recorded that they stated that the truck was engaged in moving earth from across the railway track at Pachpera road crossing when the rear wheels of that the truck (that was laden with earth), got stuck in a drain situated about 5 feet away from the railway line that was 2 feet deep and 2.5 feet wide. The drain itself was covered with stone tiles that gave away under the weight of the fully laden truck. Despite much efforts the wheels of the truck could not be freed. The deceased was then claimed to have been lunging at the gate of a compartment of the train, standing on its footboard holding on to its hand rails, on its sides.

It was then stated, the train swayed as it went past the truck, resulting in injuries to the deceased. According to them the accidental injuries and death of the deceased was caused due to own neglect of the deceased.

Then, PW-2 was examined in support of the claim case. He claimed to have been travelling with the deceased on the train at the time of accident, sitting along with the deceased, in the passage near the door of the train compartment because there were no seats available on that train. He also stated the truck was so near the train that the train came in contact with the truck as the train went past the truck. In that process the deceased got hit by the truck and died.

As to the occurrence of the accident, the Tribunal found the truck was loaded with boulders and it got stuck while crossing over the drain. It therefore concluded the truck was overloaded. It reasoned, the truck was so stuck that the locomotive pulling the train did not come in contact with it, else it would have pushed the truck away from the train and the accident would have been avoided.

The Tribunal then noted that the train compartment had come in contact with the truck and also that if there had been some space, for the deceased, he would have saved himself. Also, the Tribunal disbelieved the defense statement made by the driver and owner of the truck that they had sent a person to Sooba railway station to inform about the truck having got stuck.

According to the Tribunal because Sooba railway station was at a distance of 8-9 kilometers from the accident site if the information had actually been attempted to be passed on to the railway authorities, such information would have been sent at Mahoba railway station that was only 4-5 kilometers away.

Then the Tribunal disbelieved other defense set up that defendant owner/driver that the deceased was travelling on the foot board of the train, holding its hand rails. According to the Tribunal, the said defendant had himself stated it was a moonless night and the accident occurred at about 9 p.m. as also that he was standing far from the truck and he came to know of the accident after it had occurred. Thus, according to the Tribunal he had not seen the accident at all. Alternatively, the Tribunal reasoned even if the deceased was travelling on the foot board, he would have been safe if the truck had been further away from the railway track.

Also, in view of the fact that the deceased suffered injury only to his legs and not to any other part of his body - upon the train grazing the truck, the Tribunal concluded the deceased was not lunging on the footboard of the train as sought to be pleaded by the respondents.

Then, in view of his further statement that the accident occurred at 9:00 pm whereas he reached the accident site at about 8:30 pm, the Tribunal drew an inference that there was sufficient time with the said respondent to have gone up to Mahoba, railway station that was 4 to 5 km away to alert railway authority as also the GRP etc. about the truck having got stuck close to the railway track. According to the Tribunal, if such information had been passed-on, the accident would have been averted.

On such reasoning the Tribunal concluded, the negligence was entirely of the driver of the truck and not of any of the railway authorities or employees.

Learned counsel for the appellant submits, in view of the fact that the respondent owner of the truck had himself stated, that he reached the railway crossing at about 8:30 p.m. at the railway ''fatak', it is clear the accident occurred near a manned railway crossing. Therefore, he submits the accident occurred because of negligence of the railway authority because it was a duty of the railway staff to have alerted the other railway authorities to ensure no train passed on the railway line where the truck was lying stuck, dangerously close to the railway track.

Opposing the aforesaid argument, learned counsel for the railway submits, barring mention of the word 'fatak' at one place in the award neither it was the case of the claimant nor the owner nor the insurer that the accident occurred near a manned railway crossing. He further submits, had it been a case of accident near a manned railway crossing, then specific pleadings would have been made in that regard by the owner as also the insurer of existence of such fact.

He also denied, the owner or the driver of the truck had passed on the information to any railway staff about the truck having got stuck at the accident site. He submits, the very fact that the driver and the owner stated before the Tribunal that they had lit up a fire to warn the driver of the oncoming train, itself belies the argument being by the learned counsel for the appellant.

Had it been the case of accident near or at a manned railway crossing, there would neither have been any occasion for the owner or the driver of the truck to have lit up a fire as alleged and also there would have been no occasion to first attempt to send information to a railway station at distance of 8-9 kilometers.

Then, he submits, as a fact, no intimation at all was passed on to the railway staff by the owner/driver of the truck. This fact admitted to those respondents inasmuch as it was a specific case that the truck got stuck at about 8:30 p.m. and they did not go to the railway station at Mahoba which was only 4-5 km away. Thus, he submits, it was easily possible for the owner/driver of the truck to have reached to the Mahoba Station to inform the railway authority about this accident. Fact that the train reached the accident site from Sooba railway station is not relevant.

Then, he submits, argument being made by the learned counsel for the appellant is wholly misconceived inasmuch as such defense, if existed, should have necessarily been raised specifically. It is submitted, in such case it would have been specifically pleaded that they did not go to the Mahoba Station because they had passed on the information to the railway staff at the manned railway crossing. In absence of such defence the claim made by the owner/insurer of truck that information was given to railway staff is wholly false.

In this regard only a vague statement has been made that information was given to the railway staff. However, no detail whatsoever, either of the time or the place of the person to whom such information may have been given, has been disclosed.

Alternatively, learned counsel for the railway has relied upon a judgement of the Supreme Court in the case of UOI Vs Sunil Kumar Ghosh AIR 1984 SC 1737 to submit, since the deceased was sitting near the gate passage of the railway compartment with his legs dangling out of that compartment, he suffered injuries due to his own neglect.

Having considered the argument advanced by learned counsel for parties, I find that the argument raised by learned counsel for the appellant does not carry any force and the same deserves to be rejected in so far as the appellant has sought to place the entire blame on the railway.

There is no pleading or evidence to believe, the accident occurred at a manned railway crossing. Merely because the word 'fatak' appears at one place in the award, it cannot be inferred that the accident had occurred at a manned railway crossing, especially in view of other evidence on record which clearly proves, the truck got stuck at an unmanned railway crossing Pachpera.

Also, other evidence of the owner/driver of the truck of having lit up a fire near the accident site also belies the argument that the accident occurred at a manned railway crossing. Manned railway crossings are equipped both with personnel as also signaling and communication equipment enough to sound the railway authorities about such and other happenings.

Also, it cannot be lost sight of, PW-2, who was travelling with the deceased, at the time of accident, specifically stated, the truck grazed the moving train and thus, as the Tribunal has found, the truck cut through the legs of the deceased who was sitting at the gate of the train compartment due to heavy rush.

The truck having got stuck at the accident site at 8.30 p.m. the owner/driver of the truck had time enough to run up to the Mahoba railway station to inform the railway authorities about the truck lying stuck near the railway track. The negligence of the truck driver stood clearly established in having not taken any measure to avert the accident, though his truck had got stuck dangerously close to the railway track.

Thus, it appears, due to lack of any warning, and it being night time, the train was moving on the railway track in its normal course without any warning or information about the insured truck lying stuck close to the railway line.

Then it has been further urged by learned counsel for the appellant that even if is assumed that the railway crossing was unmanned, still the railway had acted negligently in not erecting a fence or gate at that crossing in discharge of its obligation under section 18 of the Railways Act. He relies on a judgement of the Supreme Court in Union of India Vs United India Insurance Co. Ltd. 1997 (8) SCC 683 wherein the Supreme Court recognized the duty of the railway to erect fences and gates at railway crossing. However, as to liability arising against the railway, it was not recognized as a necessary to arise in every case where such gate had not been erected. It was made subject to fulfillment of factual conditions which have not been pleaded or proven to exist in the facts of the instant case.

Still in view of the fact railway allowed its train (that was being run under its solitary control), to move in a dangerously overloaded condition such that passengers like the deceased were found seated in manner that inherently compromised there safety and, further, in light of the negligent conduct of the driver/owner of the truck, as noticed above, the two i.e. the railway and the truck owner were guilty of negligence of composite negligence, in equal measure.

However, thereafter it is seen, in the facts of the instant case, even if the railway is held initially liable for negligence, yet on the principle of last to act, it would still be the driver of the truck who would have to be held liable for compensation because, he did not act to prevent the accident though he had sufficient time of half an hour to try and inform the railway authorities about the truck having got stuck near the Pachpera level crossing. Thus, the railway is liable for negligence upto 25% only. The award of the Tribunal therefore, deserves to be modified to that extent.

Reliance placed by learned counsel for the railway on the judgement of the Supreme Court in the case of Union of India Vs Sunil Kumar Ghosh (Supra) is inapposite. In that case, the Supreme Court held, an accident suffered by a passenger during ''shunting' procedure, is not an accident ''to the train'. In the present case, admittedly, the train and the truck grazed against each other. Thus, it was clearly and accident ''to the train'.

Coming to the award of compensation it is noticed against claim of earning of deceased @ Rs. 100 per day, the Tribunal assumed the daily wage of the deceased at Rs. 70 per day. It further assumed, the deceased would not have worked for 30 days a month but only 25 days a month. It thus assumed the monthly income of the deceased at Rs. 1,750/-. With this I do not propose to interfere, it being a matter of direct evidence.

Accordingly, the annual income of the deceased was taken at Rs. 21,000/- (1750 X 12). The Tribunal reduced it by Rs. 2,000/- per annum, on an assumption that such amount must have been expended by the deceased on travel to his home, on holidays. Then, it further made a deduction of Rs. 9,000/- on account of personal expenses.

It thus determined the loss of dependency at Rs. 10,000/- per annum to which applied a multiplier of 15, to reach a figure of Rs. 1,50,000/- towards award of loss of dependency. Then again, it made a deduction thereto to somehow reach a figure at Rs. 1,20,000/-.

While there is no cross appeal for enhancement, the award as made by the Tribunal cannot be sustained in respect of computation as it appears to be wrong computation.

The claim has been made not of a fair, reasonable, just or proper compensation but it is an award of the bare minimum, undeniable amount. This approach cannot be accepted or allowed to stand even if the claimants are not before this Court.

To accept this would be to allow unfairness to stand because the sufferers of the unfairness were not strong enough to carry on the fight or because they did not protest, perhaps because, they lost hope of fair treatment or just gave up the desire or courage to fight any further.

The court and the Tribunal, are duty bound, to ensure a fair, just, proper and reasonable amount gets delivered to the claimants, as of right, whether they ask specific amounts under specific heads, or not. Once, evidence had been led as to age, vocation and income of the deceased, it was not for the claimants to extend a bowl to ask for more alms. It was for the Tribunal to offer, that which was the legal due of the claimants, not as an act of charity or indulgence, but as part of discharge of a sovereign duty, to which the Tribunal and this court are sworn.

In this regard a division bench of this Court in the case of National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi & Ors FAFO No. 2389 of 2016 decided on 27.07.2016 had the occasion to consider this precise objection raised by learned counsel for the appellant-insurer and it was held, as below:-

"We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (supra) the Hon'ble Apex Court has observed that when circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the court cannot be found wanting when it comes to exercise its powers.

Thus the argument in this regard made by the learned counsel for the appellant has no legs to stand and is not liable to be sustained.

Hon'ble Apex Court has laid down the principles to be followed while awarding compensation under non-pecuniary damages, such as loss of consortium, loss of love, care and guidance to children and funeral expenses. In the case of Rajesh and others v. Rajbir Singh and others, (2013) 9 SCC 54 and Kalpanaraj and others vs. Tamil Nadu State Transport Corporation, 2014(3) TAC 707(SC) Hon'ble Apex Court has held that guiding principle for determining compensation is that it must be just and reasonable and the Court should not succumb to niceties or technicalities, in such matters while considering the issue of award of compensation under non-pecuniary damages such as loss of consortium, loss of love, care and guidance to children and funeral expenses. It has been observed in paragraph 17 as under :

"17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practise of awarding compensation under conventional heads: loss of consortium to thee spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500 to Rs. 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs. 5000 to 10,000. In legal parlance. "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection. etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United State of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the court awards at least rupees one lakh for loss of consortium."

The same view has been reaffirmed in the case of Kalpanaraj and others (supra). In the said case, Hon'ble Apex Court raised compensation of Rs.30,000/- awarded towards loss of consortium and Rs.20,000/- towards loss of love and affection of the minor children to Rs.1,00,000/- each under the said heads finding the sum awarded to be on the lower side in the light of principles laid down in the case of Rajesh (supra)."

The above, reasoning of the division bench of this Court appears to be consistent with the decision of the Supreme Court in Jitendra Khimshankar Trivedi & Ors Vs. Kasam Daud Kumbhar & Ors reported in 2015 (4) SCC 237 wherein the Supreme Court has held as below:-

"13. The tribunal has awarded Rs. 2,24,000/- as against the same, claimants have not filed any appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. 2003 2 SCC 274, Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. 2009 6 SCC 280 and Ningamma & Anr. vs. United India Insurance Compnay Ltd. 2009 13 SCC 710. As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation.

14. In order to award just and reasonable compensation income of the deceased is taken as Rs. 3,000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs. 2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs. 4,32,000/- (Rs. 2,000 X 12 X 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs. 5,000/- towards loss of estate and Rs. 3,000/- towards funeral expenses totaling Rs. 8,000/-. The High Court has awarded conventional damages of Rs. 15,000/- i.e. Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors., 2013 9 SCC 54 and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors., 2013 9 SCC 166 this Court has awarded substantial amount of Rs. 1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs. 1,00,000/- is awarded towards loss of consortium and Rs. 1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs. 15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs. 6,47,000/-."

(Emphasis supplied)

Therefore, applying the law laid down by the division bench in case of National Insurance Co. Ltd. Vs. Vidyawati Devi (supra), and also in view of the fact that the present appeal is a continuation of the claim proceedings, in my view, the issue of just and fair compensation has been made alive by the insurer who has asked for reduction of compensation.

Once the matter has been so challenged and opened, the entire issue of determination of just and fair compensation has to be treated as being open and correct amount of compensation is required to be determined applying the settled law.

The Tribunal has itself found the age of deceased to be 25 years. Assuming or allowing the first estimate made by the Tribunal to stand. It is taken the deceased was earning Rs. 1750/- per month. However the method of calculations made thereon and deductions made is wholly erroneous and based on non-existent and unacceptable principles. The compensation for loss of dependency has to be reworked.

Considering the age of the deceased being 35 years on the date of accident a multiplier of 16 and not 15 should have been taken as has been upheld in the case of Smt. Sarla Verma and Ors Vs. Delhi Transport Corporation and Anr reported in AIR 2009 SC 3104. Application of correct multiplier does not require any evidence to be led. It's a matter of applying correct legal principle. It would result in computation of loss of income factor at Rs. 3,36,000/-.

Then again number of dependents/claimants being seven, deduction towards personal expenses should not have been allowed at more than 1/5th i.e. Rs. 67,200/- and not at close to 50%. Thus total compensation for loss of dependency is Rs. 2,68,800/-.

Again, the Tribunal has not awarded any amount towards non-pecuniary benefits which too should have been allowed, irrespective of the claim in that regard.

The entire amount of compensation for loss of dependency shall be released in favour of the claimant respondent no.3, the widow of the deceased and the other amount for non-pecuniary losses shall be released in the manner provided above.

Sl No.

Head of award

Person to whom awarded

Amount

Loss of dependency

Claimant respondent no.3 (widow) and respondent nos. 3-7(children)

Rs. 2,68,800

1.

Loss of consortium

Claimant respondent no.3 (widow)

Rs. 25,000/-

2.

Loss of estate

Claimant respondent no.3 (widow)

Rs. 25,000/-

3.

Loss of love and affection.

Claimant-respondents, 1,2,4, 6 and 7 (parents & children)

Rs. 25,000/- (at the rate of Rs. 5,000/- each).

4.

For pain and suffering

Respondent nos. 1 and 2 jointly (parents)

Rs. 20,000/-

5.

For funeral expenses

Respondent no.3 (widow)

Rs. 5,000/-

By an interim order dated 5.12.1995, the entire decretal amount had been stayed. While Rs. 25,000/- is lying deposited before this Court. Balance, Rs. 95,000/- together with interest at the rate of 8% would be lying deposited with the Tribunal. However, by subsequent order, the same should have been released in favour of the claimants. Consequently, Rs. 25,000/- lying deposited with this Court shall be forthwith remitted to the Tribunal such as to reach the Tribunal not later than one month from today.

Also, within a period of eight weeks from today, the appellant shall deposit a further amount of Rs. 1,56, 600/- together with 7% on the date of the filing of the claim petition till the date of deposit with the Tribunal. Also, the railway shall deposit a sum of 92,200/- together with 7% on the date of the filing of the claim petition till the date of deposit with the Tribunal.

The Tribunal may then send out notices to the claimant respondents, and ensure the entire balance unpaid compensation amount, as enhanced by this order is paid out to genuine claimants only, as expeditiously as possible, preferably within a period of four months from today. If however, the same cannot be done, for any reason, within that time, the Tribunal shall retain the amount in an interest bearing term deposit for such time as it may become necessary, till the compensation is paid out to the claimants.

Appeal partly allowed. Award stands modified as above. No order as to costs.

Order Date :- 30.8.2017

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