Minta Devi And Others vs The New India Assurance Company ...
2019 Latest Caselaw 3475 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 

 
Court No. - 40
 

 
Case :- FIRST APPEAL FROM ORDER No. - 707 of 2016
 
Appellant :- Minta Devi And Others
 
Respondent :- The New India Assurance Company Ltd. And Another
 
Counsel for Appellant :- V.K. Baranwal
 
Counsel for Respondent :- Jyotsna Srivastava,Neeraj Singh,Sharve Singh,Subash Chandra Srivastava
 

 
Hon'ble Harsh Kumar,J.

The present first appeal from order has been filed against impugned judgment and award dated 13.1.2006 passed by M.A.C.T./Additional District Judge, Court No.2 Jaunpur (hereinafter referred as "Tribunal") in M.A.C.P. No.196 of 2004 awarding a compensation of Rs.1,00,000/- to claimants-appellants. Feeling aggrieved, claimants-appellants have preferred this appeal for enhancement of compensation.

The brief facts of the case are that claimants-appellants being widow, four children and a father of deceased filed M.A.C.P. No.196 of 2004 with averments that on 8.7.2004 at about 4:00 a.m. Bankey Lal was going from Adarsh Nagar to Railway Station Khusrobagh, Allahabad by his bicycle and Achchey Lal was sitting behind him and when they reached from Jogiveer Tiraha towards Railway Station, Allahabad, Truck No.MKA 1275 being driven rashly and negligently by it's driver dashed the bicycle of Bankey Lal, resulting in grievous injuries to pillion rider Achchey Lal, who died due to injuries sustained in accident and the truck driver was taken into custody at the spot.

It is also contended in petition that at the time of accident, offending truck was owned by Makkhan Lal and was being driven by a driver holding a valid driving license to drive offending truck and truck was duly insured with The New India Assurance Company.

Learned Tribunal in it's findings on issue nos.1 and 4 held that bicycle is not meant to carry two persons and was being driven in contravention of Traffic Rules and since accident in question did take place on mettled road it was a head on collision wherein both vehicles were equally liable for contributing to the extent of 50% each for rashness and negligence. On issue nos.2 and 3, learned Tribunal came to the conclusion that at the time of accident driver was holding a valid driving license and offending vehicle was duly insured with The New India Assurance Company. On issue no.5, learned Tribunal considering averments made in petition regarding income of Rs.4500/- per month by doing work of roasting Layi-Chana (लायी-चना भूनने का काम करता था) and statement of P.W.2 Bankey Lal, who was driving bicycle, that deceased was earning a sum of Rs.150/- to Rs.200/- per day, in absence of any documentary evidence, Tribunal assessed income of deceased at Rs.15,000/- per month, deducted 1/3rd towards his personal expenses and on rest 2/3rd amount of dependency, applied multiplier of 15 and out of calculated amount of Rs.1,50,000/- deducted 50% towards contributory negligence of cyclist and by granting Rs.25,000/- under conventional heads, partly allowed the petition by awarding Rs.1,00,000/- as compensation with interest at the rate of Rs.6% per annum.

Heard Sri V.K. Baranwal, learned counsel for appellants, Sri S.C. Srivastava, learned counsel for respondent no.1-The New India Assurance Company Limited and perused the record.

The deceased was pillion rider of bicycle which is undisputedly not an automobile and is required to be pulled by the person on driving seat by paddling. It is common knowledge that on bicycle generally two persons use to go and mere for the reason that deceased was sitting behind his brother, it will not be just and appropriate to say that bicycle was being used in contravention of Traffic Rules and even for such contravention, cyclist may not be held responsible for contributory negligence. As per claim petition at the time of accident as soon as bicycle of deceased and his brother came on the main road, from the side road, it was hit by truck coming rashly and negligently on the main road. Hence, it may not be considered to be a case of head on collision, as the cyclist was not coming from opposite direction. The offending truck was being driven by respondent no.2 and being driver of heavy vehicle, he was expected to take due care for light vehicles coming from side roads and was expected to go on moderate speed within city with extra care and caution giving space to other light vehicles to run. Merely for the reason that some cyclist came from side road, so he may not be justified in hitting him or crushing under the wheels of truck.

My above view is supported by judgment passed by the Apex Court in the case Yerramma and others Vs. G. Krishnamurthy and another 2014 (4) T.A.C. 337 (S.C.) where in case of accident between motorcycle of deceased and bus in question, Tribunal and High Court apportioned contributory negligence of deceased on motorcycle to the extent of 25% and driver of bus to the extent of 75%, the Apex Court held that:-

"The driver of the offending vehicle of the respondent-Corporation bus was negligent by not giving the right turn indicator and causing the accident. The driver of the respondent-Corporation bus should have been aware of the fact that he was driving the heavy passenger motor vehicle, and that it was necessary for him to take extra care & caution of the other vehicles on the road while taking the turn to enter the depot. Had the driver of the offending vehicle taken sufficient caution and care, slowed down and allowed reasonable provision for other vehicles on the left side of the road to pass smoothly, the accident could have been averted."

In present case, driver of offending truck has not been produced to witness box and he could not dare to state on oath before Tribunal that he was going on moderate speed, had taken all care and caution of vehicles coming from side roads, was blowing horn or the bicycle suddenly came before him and he was not driving truck rashly or negligently. Driver of truck would have been best witness to throw light on the manner of accident, but was not produced. For withholding best evidence of driver of offending truck adverse inference is to be drawn against him. In absence of any evidence to the contrary there is no reason to disbelieve uncontroverted statement of P.W.2 Bankey Lal, who has stated on oath that truck driver rashly and negligently hit his bicycle when he came on main road.

Since the bicycle on which deceased was a pillion rider, was being pulled by P.W.2 Bankey Lal, it may not be considered to be going rashly and negligently in high speed. There is nothing on record to show or suggest that bicycle came on road all of a sudden without looking at nearby vehicles. It is fully proved from the evidence on record that offending truck in question (a heavy goods vehicle) was being driven rashly and negligently and had it not being driven rashly and negligently, accident could have been averted.

In view of discussions made above, I have come to the conclusion that Tribunal has not even taken into consideration the settled principles of law that even in case of contributory negligence, the heavier vehicle may be held responsible for major percentage of contributory negligence. In view of evidence on record, I find that cyclist may not be held responsible for contributory negligence to any extent and the findings of learned Tribunal on issue nos.1 and 4 holding contributory negligence of each vehicle bicycle and truck in question to the extent of 50% each is wholly erroneous. Findings of learned Tribunal on issue nos.1 and 4 are accordingly set aside.

As far as quantum of compensation is concerned, in view of settled principles of law laid down by the Apex Court in the cases of Sarla Verma and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and others (2017) 16 SCC 680 and Rule 220A of U.P. Motor Vehicles Rules, I find that considering the number of dependents of deceased counting minors as half unit as per Rule 220-A (2)(ii) &(iii), there were four members dependent on deceased, so in this case deduction of 1/4th of the income of deceased is required to be made towards personal expenses of deceased for computing amount of dependency of claimants and Tribunal has acted wrongly in making deduction of 1/3rd. Accordingly, claimants-appellants are entitled for compensation as under :-

(i) Annual income of deceased Rs.36,000/- per annum.

(ii) Deduction of 1/4th Rs.9000/- towards personal expenses of deceased.

(iii) Dependency of claimants Rs.36,000/- - Rs.9,000/- = Rs.27,000/- per annum.

(iv) Enhancement on account of future prospects 40%, which comes to Rs.10,800/-.

(v) Total dependency including future prospects Rs.27,000/- + Rs.10,800/-= Rs.37,800/-, taken as Rs.38,000/- per annum for convenience.

(vi) Multiplier in view of age of deceased between 31 to 35 years 16 in place of 15 applied by Tribunal.

(vii) Total amount of compensation towards monetary loss Rs.38,000/- x 16 = Rs.6,08,000/-.

(viii) Compensation under conventional heads Rs.70,000/- interest 7% per annum as per Rule 220 (a) (vi) of Motor Vehicles Rules instead of 6% awarded by Tribunal.

Hence, appellants are held entitled to get compensation of Rs.6,08,000/- + Rs.70,000/- = Rs.6,78,000/- with simple interest at the rate of 7% per annum from the date of filing of claim petition till date of payment.

The appeal is partly allowed and impugned award is modified accordingly. Respondent no.1 will deposit entire amount of compensation as per calculations made above with simple interest at the rate of 7% per annum from the date of filing of petition till date of deposit with the Tribunal in favour of claimants-appellants, which will be payable to them in accordance with impugned award.

Let a copy of judgment be sent to Court below/M.A.C.T., Jaunpur for ascertaining necessary compliance.

Order Date :- 25.4.2019

Tamang