United India Insurance Company ... vs Smt. Asha Devi Soni And Ors.
2017 Latest Caselaw 7309 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved 
 

 

 
Case :- FIRST APPEAL FROM ORDER No. - 133 of 2015
 

 
Appellant :- United India Insurance Company Ltd.Throu Manager
 
Respondent :- Smt. Asha Devi Soni And Ors.
 
Counsel for Appellant :- Anil Kumar Srivastava
 

 
Hon'ble Shabihul Hasnain,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 award dated 29.11.2014 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Pratapgarh, whereby in Motor Accident Claim Petition No.200 of 2012 - Smt. Asha Devi Soni and others vs. Mohd. Mateen and another, learned Tribunal awarded an amount of Rs.5,34,000/- as compensation with simple interest @ 7% per annum from the date of filing claim petition till the date of realization on account of death of Ram Kumar.

2. The contents of the appeal reveal that on 28.09.2012 at about 09.00 am when the claimant Asha Devi was coming back from Mauaima, Allahabad with her husband Ram Kumar and Monu on motorcycle, the motor car bearing registration no.U.P.44-S-7286 coming from the side of Faizabad on Allahabad-Faizabad road, driven rashly and negligently, collided with motorcycle in which all the persons on motorcycle got injured and serious injuries were caused to Ram Kumar, who was admitted to District Hospital, Pratapgarh, where he died. He was doing business of vegetable in Bombay and was earning Rs.10,000-12,000/- per month.

3. After considering the written statement filed by the appellant/defendant in the case, the Tribunal framed four issues to the effect as to whether on 28.09.2012 at about 09.00 am the aforesaid car collided with the motorcycle and caused injuries whereby the deceased Ram Kumar died during the treatment and as to whether driver of the vehicle had a valid and effective license and as to whether the vehicle was insured at the time of accident. Learned Tribunal after assessment of the evidence found that the driver of the offending vehicle had a valid license and the vehicle was insured at the time of accident. It was further found that the accident was caused due to rash and negligent driving of the offending vehicle and thus the claimants were entitled for payment of compensation.

4. Learned counsel for the appellant has submitted that the judgment and award passed by learned Tribunal is wholly illegal and erroneous and against the facts and law. The first point as raised by the learned counsel for the appellant is that the multiplier used by the learned Tribunal is not in accordance with law.

5. It is not in dispute that the deceased was of 45 years age at the time of accident. While discussing the case of National Insurance Company Limited v. Pranay Sethi and others in Special Leave Petition (Civil) No.25590 of 2014, Hon'ble the Apex Court vide order dated 31.10.2017 has applied the multiplier as laid in the case of Sarla Verma v. Delhi Transport Corporation reported in (2009) 6 SCC 121. While discussing the above noted case, Hon'ble the Apex Court also discussed the law laid down in the case of Reshma Kumari and others v. Madan Mohan and another reported in (2009) 13 SCC 422, which is quoted as under:-

".......42. In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out.

42. The conclusions that have been summed up in Reshma Kumari are as follows:

43.1. In the applications for compensation made Under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the Table prepared in Sarla Verma read with para 42 of that judgment.

43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed.

43.3. As a result of the above, while considering the claim applications made Under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.

43.5. While making addition to income for future prospects, the Tribunals shall follow para 24 of the judgment in Sarla Verma.

43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above.

43. On a perusal of the analysis made in Sarla Verma which has been reconsidered in Reshma Kumari, we think it appropriate to state that as far as the guidance provided for appropriate deduction for personal and living expenses is concerned, the tribunals and courts should be guided by conclusion 43.6 of Reshma Kumari. We concur with the same as we have no hesitation in approving the method provided therein.

44. As far as the multiplier is concerned, the claims tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of Sarla Verma read with paragraph 42 of the said judgment. For the sake of completeness, paragraph 42 is extracted below:

42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.

45. In Reshma Kumari, the aforesaid has been approved by stating, thus:

It is high time that we move to a standard method of selection of multiplier, income for future prospects and deduction for personal and living expenses. The courts in some of the overseas jurisdictions have made this advance. It is for these reasons, we think we must approve the Table in Sarla Verma for the selection of multiplier in claim applications made Under Section 166 in the cases of death. We do accordingly. If for the selection of multiplier, Column (4) of the Table in Sarla Verma is followed, there is no likelihood of the claimants who have chosen to apply Under Section 166 being awarded lesser amount on proof of negligence on the part of the driver of the motor vehicle than those who prefer to apply Under Section 163-A. As regards the cases where the age of the victim happens to be up to 15 years, we are of the considered opinion that in such cases irrespective of Section 163-A or Section 166 under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the Table in Sarla Verma should be followed. This is to ensure that the claimants in such cases are not awarded lesser amount when the application is made Under Section 166 of the 1988 Act. In all other cases of death where the application has been made Under Section 166, the multiplier as indicated in Column (4) of the Table in Sarla Verma should be followed."

6. The deceased was of 45 years age and M-14 would be applicable in the present case while learned Tribunal has applied the multiplier of 15. Thus, the appeal deserves to be allowed on this point.

7. Learned counsel for the appellant has further submitted that it was a case of contributory negligence and learned Tribunal has not calculated the award in light of settled principles of contributory negligence.

8. 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.

9. '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.

10. 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.

11. 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.

12. 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."

13. We have gone through the award and judgment passed by the learned Tribunal. Learned Tribunal has properly appreciated the evidence and found that PW-2 Monu had clearly stated that the motorcycle was at the left side of the road and the driver of the offending vehicle that is Car by driving the vehicle in high speed, rashly and negligently, collided with the motorcycle and caused injuries. Learned Tribunal has also examined the proposition of law as laid down in the following cases:-

i. Meera Devi and others v. HRTC and others - 2014 (2) TAC 01 (SC)

ii. Krishna Nandan Prasad v. New India Assurance Co. Ltd. - 2011 (1) SCCD 216 (Patna)

iii. Manniya Uchcha Nyayalaya and Narmada Prasad Chaure and others Nanak Pawar and others - 2012(2) SCCD 737 (MP)

iv. Manniya Uchcha Nyayalaya Yogendra Pal Singh v. Motor Accident Claims Tribunal and others - 1995(2) TAC 153 (Allahabad)

v. Manniya Uchcha Nyayalaya and Dr. Smt. Lilarani v. Shekh K.S. Hora and others - 1994(2) TAC 615 (MP)

vi. Smt. Rashida and others v. Ishtiyaq and others - 2012 (3) TAC 387 (Allahabad)

vii. Manniya Uchcha Nyayalaya and Vijay Kumar Dugar v. Vidyadhar Datta and others - 2006(1) TAC 989 (SC)

14. Thus, we are of the view that the driver of the motorcycle was not in any way rash and negligent and the principle of contributory negligence would not be applicable in the present case.

15. Learned counsel for the appellant has further submitted that the percentage of future prospects has not been properly applied in this case.

16. The discussion of issue no.4 reveals that learned Tribunal has calculated the future prospects @ 30%.

17. 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.

18. 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."

19. 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."

20. 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.

21. 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.

22. Hon'ble the Apex Court while dealing with the case of Pranay Sethi (supra) fixed the rate of enhancement in paragraph 61(iv) as follows:-

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

The deceased was of 45 years. Thus, in light of law laid down as mentioned above the future prospects will be considered as 25%.

23. In light of above facts, we are of the view that the claimants are entitled for the following compensation:-

i

Annual income as already assessed by the Tribunal after deducting ¼

Rs.27,000/-

Multiplier applicable M-14

27,000 x 14 = 3,78,000/-

ii

Future prospects @ 25%

Rs.94,500/-

iii

Loss of estate (In light of Pranay Sethi's case Paragraph 61(viii)

Rs.15,000/-

iv

Loss of consortium

Rs.40,000/-

v

Funeral expenses

Rs.15,000/-

Total amount of claim admissible

Rs.5,12,000/-

Accordingly, the First Appeal From Order deserves to be modified. The claimants/respondents 1 to 6 are entitled for an award to the tune of Rs.5,12,000/- with simple interest and conditions as laid down by the Tribunal.

24. 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. FAFO is disposed of accordingly.

Dated: 27.11.2017.

 
A. Katiyar
 
(Sheo Kumar Singh-I, J.)     (Shabihul Hasnain, J.)