The Oriental Insurance Company ... vs Smt.Arti Tripathi And Others
2017 Latest Caselaw 2481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved 
 

 

 
Case :- FIRST APPEAL FROM ORDER No. - 681 of 2006
 

 
Appellant :- The Oriental Insurance Company Ltd.Gonda Th. Branch Manager
 
Respondent :- Smt.Arti Tripathi And Others
 
Counsel for Appellant :- Pramod Kumar
 
Counsel for Respondent :- Anchal Mishra,Atul Mishra,Mrs. Pooja Arora
 

 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. This First Appeal From Order has been preferred under Section 173 of the Motor Vehicles Act against the judgment and order dated 07.07.2006 passed by Motor Accident Claims Tribunal/2nd Additional District Judge, Lucknow, whereby in Motor Accident Claim Petition No.119 of 1998 - Arti Tripathi and others vs. Girja Shankar Tripathi and others, learned Tribunal awarded an amount of Rs.9,66,500/- as compensation in case of death of Subhash Chandra Tripathi.

2. It appears that on 23.09.1998 at about 11.00 AM one Shri Subhash Chandra Tripathi was travelling on Jeep No. UP-45-2376 from Gonda City to Karnailganj, Gonda. It is alleged that due to careless and negligent driving of the driver the Jeep met with an accident and Shri Subhash Chandra Tripathi sustained injuries which resulted in his death. The deceased was working as Clerk in the office of Deputy Registrar and at that point of time he was getting basic salary amount to the tune of Rs.4225/- per month.

3. Shri Girja Shankar Tripathi, respondent no.7, is the registered owner of the said Jeep and Shri Suresh Chandra Srivastava was driving the vehicle at the time of accident. Learned Tribunal framed five issues relating to the fact as to whether on 23.09.1998 at about 11.00 AM the deceased was travelling on the aforesaid vehicle and due to careless and negligent driving of the driver of the aforesaid vehicle, accident took place causing serious injuries and death of the deceased and as to whether the vehicle was insured with the Insurance Company and as to whether there is any violation of the terms and conditions of the insurance policy.

4. After examining the witnesses as lead by the parties and after hearing learned counsel for the parties, learned Tribunal came to the conclusion that the accident took place due to rash and negligent driving of the driver and since the vehicle was insured at the time of accident, the claimants are entitled for compensation to the tune of Rs.9,66,500/- with interest at the rate of 7.5%.

5. Learned counsel for the appellant has challenged the finding of the Tribunal with regard to quantum of compensation awarded to the dependents of the deceased i.e. respondent nos.1 to 6 on the ground that the vehicle was driven against the terms and conditions of the insurance policy and the amount of compensation with regard to annual income has not been calculated on the sound principles of law.

6. The expression 'just compensation' has been explained in Sarla Verma's case - AIR 2009 SC 3104, holding that the compensation awarded by a Tribunal does not become just compensation merely because the Tribunal considered it to be just. 'Just Compensation' is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. After surveying almost all the previous decisions, the Court almost standardized the norms for the assessment of damages in Motor Accident Claims.

7. At paragraph 24, it has been held as follows:

"24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death, A departure therefrom should be made only in rare and exceptional cases involving special circumstances."

8. In a recent decision, in Santosh Devi v. National Insurance Co. Limited and Ors. MANU/SC/0322/2012 : (2012) 6 SCC 421, Sarla Verma's case has further been explained with regard to the settled norms. It has been held in Paragraph 11 as follows:

"11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent-centric, the judgments which have bearing on socioeconomic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast-changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people."

9. Consequently, it has been held at Paragraphs 14 to 18, as follows:

"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.

15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put in extra efforts to generate additional income necessary for sustaining their families.

16. The salaries of those employed under the Central and State Governments and their agencies/ instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

10. Since, the Court actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.

11. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.

12. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case.

"Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

13. The principle was followed in the later decisions in Oriental Insurance Co. Limited v. Mohd. Nasir and Anr. MANU/SC/0899/2009 : AIR 2009 SC 1219 and in Ningamma and Anr. v. United Indian Insurance Co. Limited MANU/SC/0802/2009 : (2009) 13 SCC 710.

14. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the victim.

15. There is another reason why the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by Act No. 54 of 1994 with effect from 14.11.1994, the Report on motor vehicle accident prepared by the police officer and forwarded to the Claims Tribunal under Sub-section (6) of Section 158 has to be treated as an Application for Compensation.

16. Section 158 (6) of the Act reads as follows:

"158. Production of certain certificates, licence and permit in certain cases.-

(1) to (5) xxx

(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and, where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer."

17. Section 166(4) of the Act reads as follows:

"166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act."

18. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under Sub-section (4) of Section 166 of the Act, read as under:

"(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for compensation under this Act."

19. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.

20. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.

21. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.

22. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent such happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct.

23. In the case of Nageshwar Shri Krishna Ghobe v. State of Maharasthra MANU/SC/0182/1972 : (1973) 4 SCC 23, the Court observed that the statements of the witnesses who met with an accident while travelling in a vehicle or those of the people who were travelling in the vehicle driven nearby should be taken and understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as under:

"6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of coincidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured."

24. In light of above facts, we have examined the decision taken by the learned Tribunal. After incident, which occurred on 23.09.1998 at about 11.00 AM on Lucknow-Gonda road, a first information report was lodged at 12.30 PM on the same day and after investigation, a charge sheet was submitted in case Crime No.602 of 1998 under Sections 279, 304-A, 337 and 338 IPC in which Suresh Kumar Srivastava, Driver, was found guilty. The deceased was taken to medical hospital and it was reported that he died due to excessive bleeding caused due to accident with Jeep. While deciding the issue no.1 it was found that accident took place on 23.09.1998 and the deceased died due to accident and careless driving of the driver of the Jeep. While deciding issue no.2 it was found that the vehicle was insured with the Insurance Company. Issue nos. 3 and 4 were relating to fact as to whether driver had valid driving license and it was found that at the time of accident the driver had a valid driving license.

25. With regard to issue as to whether any terms and conditions of the policy have been violated, learned counsel has submitted that the said vehicle was registered as a goods carrier vehicle at the time of insurance and a premium of Rs.6363/- was paid for insurance of goods carrier vehicle. It is alleged that during the time of accident it was used for passenger carrying vehicle for which an additional premium of Rs.1328/- was required to be paid but the said amount had not been paid. In light of above facts, it has been argued that the appellant is not liable to pay any compensation to the claimants because owner of the Jeep had not paid required premium.

26. We have gone through the impugned judgment and order and evidence on record. The claimants have filed a certificate from the Transport Department in which the vehicle was insured for five passengers and five quintal of luggage and required amount of premium was paid to the Insurance Company. Learned Tribunal has relied on the following pronouncements of the Court:-

(a) Hardhyan Singh v. Chiranji Lal and others - 2003 (3) TAC 100 (Punjab & Haryana High Court)

(b) Kaushal Bai and others v. Abid Ali - 2000 (1) TAC 15 (MP)

(c) 2003 (2) TAC 1 (SC)

(d) 2004 (2) TAC 315 - Insurance Company v. Sitaram

27. While discussing the above propositions of law, it was found that if the driver had a driving license of LMV or LGV then it shall be deemed that he had a valid license. Since vehicle was insured for five passengers and five quintal of luggage, it cannot be said that the terms and conditions of the insurance policy had been violated by the owner of the vehicle. No other evidence had been produced by the appellant before the Tribunal that any terms and conditions of the insurance policy had been violated.

28. The next question raised by learned counsel for the appellant is the calculation of amount on the basis of monthly pay. We have gone through the records and assessment made by the learned Tribunal and found that on the basis of monthly pay and in light of the revised pay scale the learned Tribunal has calculated the amount of compensation and found that the annual income of the deceased was about Rs.84000/- per year and 1/3 amount of personal expenditure was deducted from the total annual income. Further the deceased was about 32 years of age at the time of accident and in light of the provisions contained in second Schedule the multiplier was applied by the learned Tribunal. The amount of Rs.2000/-, 5000/-, 2500/- and 5000/- was granted for loss of consortium, loss of state, loss of affection and miscellaneous expenses which seems to be on very lower side.

29. When an Appeal is filed under Section 173 of the Motor Vehicles Act, 1939 before the High Court, the normal Rules which apply to Appeals before the High Court are applicable to such an Appeal also. Even otherwise, it is well settled position of law that when an Appeal is provided for, the whole case is open before the Appellate Court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the Appellate Court to consider the entire case on facts and law.

30. It is well settled that the right of Appeal is a substantive right and the questions of fact and law are at large and are open to Review by the Appellate Court. Thus, such powers and duties are necessarily to be exercised so as to make the provision of law effective.

31. Generally, finding of fact recorded by Tribunal should not be interfered with in an Appeal until and unless it is proved that glaring discrepancy or mistake has taken place. If the assessment of compensation by the Tribunal was fair and reasonable and the award of the Tribunal was neither contrary nor inconsistent with the relevant facts as per the evidence available on record then as mentioned hereinabove, the High Court would not interfere in the Appeal. In the case in hand, nothing could be pointed out to us as to what were the glaring discrepancies or mistakes in the impugned Award of the Tribunal, which necessitated the Appellate Court to take a different view in the matter.

32. In light of aforesaid discussions, we are of the opinion that the learned Tribunal has discussed every point of fact and law and found that late Subhash Chandra Tripathi succumbed to injuries on 23.09.1998 at about 11.00 AM when the aforesaid vehicle met with an accident due careless and negligent driving of the driver. At the time of accident, the vehicle was insured with the Insurance Company/appellant. Learned Tribunal has awarded the amount which is just and reasonable and we find no error in the impugned judgment and order passed by the learned Tribunal. Thus, the First Appeal From Order against the impugned judgment and order lacks merit and deserves to be dismissed.

33. Accordingly, the First Appeal From Order is hereby dismissed. No order as to costs.

34. Statutory amount deposited by the appellant before this Court shall be remitted to the tribunal concerned within three weeks from today for adjustment and disbursement to the claimants in accordance with the award.

Dated: 18.07.2017.

 
A. Katiyar
 
(Sheo Kumar Singh-I, J.)              (Dr. D.K. Arora, J.)