Smt. Shashibala And 4 Others vs Jogindra Singh And 2 Others
2021 Latest Caselaw 11026 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on :11.8.2021
 
Delivered on :31.8.2021
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2651 of 2017
 

 
Appellant :- Smt. Shashibala And 4 Others
 
Respondent :- Jogindra Singh And 2 Others
 
Counsel for Appellant :- J.B. Singh,Sudhanshu Pandey,Vageesh Pandey
 
Counsel for Respondent :- Pradeep Kumar Sinha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Shri Sudhanshu Pandey, learned counsel for the appellants and Sri Pradeep Kumar Sinha, learned counsel for the respondent-insurance company.

2. This appeal, at the behest of the claimants, challenges the judgment dated 22.07.2017 passed by M.A.C.T./Additional District Judge/Fast Track Court-I, Gautam Budh Nagar (hereinafter referred to as 'Tribunal') in Claim Petition No.226 of 2013 awarding a sum of Rs.1,25,000/- with interest at the rate of 7% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. The respondent concerned has not challenged the liability imposed on them. The issues to be decided are the quantum of compensation awarded and whether deceased was also negligent in causing the accident.

4. The claimants are the legal heirs of the deceased who died in the fateful vehicular accident which occurred on 15.7.2013 when the deceased Ajab Sigh at about 9.30 in the night was going on Motorcycle No. HR 29 Q 2011 and was returning to home (Faridabad), and when he reached near Galgotiya University, a Maruti Alto No. HR 51 AS 6256 being driven rashly and negligently came and dashed with his scooter whereby he suffered injuries and when he was moved to the Hospital, he succumbed to injuries. One Harinder Singh tried to stop the Maruti Caar but the driver fled away. Claimant No.4, Jaipal Singh lodged the complaint. The deceased was a Teacher in Education Department of Haryana and his basic salary was Rs.51,860/- p.m. The respondent Nos. 1 and 2 filed their replies and contended that their vehicle was not involved in the said incident. The vehicle was insured with it is accepted by respond no.3, insurance company but they pleaded that the vehicle with plied in contravention of policy condition. The tribunal framed about 9 issues. We are mainly concerned with the issue of negligence and dependency/compensation.

5. It is submitted by learned counsel for the appellants that the Tribunal has not granted any amount towards future loss of income which is required to be granted in view of the decision titled National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. It is further submitted that amount under non-pecuniary heads which is granted and the interest awarded by the Tribunal are on the lower side and requires enhancement. It is further submitted that as the deceased was survived by his mother, wife, one daughter and two sons, the deduction towards personal expenses of the deceased should be 1/4th and not 1/3rd as deducted by the tribunal. In support of this submission, learned counsel for the appellants cited the judgment of the Supreme Court in National Innsurance Company Limited v. Birender and others, Civil Appeal Nos. 242-243 of 2020 decided on 13.1.2020.

6. Learned counsel for the respondents has vehemently objected to the submissions of the learned counsel for the appellants and has submitted that the compensation awarded by the Tribunal is just and proper and does not call for any enhancement. The learned counsel for the respondents has further submitted that in light of the evidence adduced and it is contended that the tribunal has not committed any error as Compassionate Assistance of full pay is given by the Government to the heirs at least for 12 years. It is further submitted that wife would be getting full pension, entire amount which deceased was getting, till the date of retirement and therefore also requires to be deducted.

7. It is submitted by counsel for claimants that the Supreme Court's decision was cited before the tribunal but tribunal has deducted bonus, maintenance allowance, PF and gratuity from commuptable income holding that they are not part of the salary and, therefore, the tribunal held that the same cannot be considered to be part of the income. The tribunal added 40% as future loss of income, which should be 50%. Most unfortunately, the tribunal has considered the judgment of Sandeep Khanduja v. Atul Dande and Ors., (2017) 3 SCC (Crl) 178 and held that claimants can't be awarded compensation except non pecuniary damages. The claim petition was not moved under Section 163-A of the Motor Vehicles Act, 1988 (Act) but was moved under Section 166 of Motor Vehicles Act, 1988 and hence, it appears that the learned tribunal has granted multiplier of 18, but held that as the widow would be getting compensation till 2025 no compensation is payable and granted Rs.1,25,000/- and deducted 25% of the amount holding the deceased to be also negligent.

8. It is submitted by learned counsel for claimants that the learned Tribunal should have gone by the judgment in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and not by the rules the tribunal ought to have been considered the decision of this Court in FAFO No.199 of 2017, National Insurance Company Limited v. Luv Kush and another where in it is held that rules are not to be over strictly followed. It is submitted that compensation has to be as per the judgment of Pranay Sethi's case, appellants are entitled to filial consortium, funeral charges, compensation for love and affection. The judgment in Pranay Sethi (Supra) though has been considered by the learned tribunal, he has misguided himself by relying on Rule 4 of the U.P. State Motor Vehicle Rules, 2011 which could not be done.

9. Heard the learned counsels for the parties. The issue of negligence has to be decided from the perspective of the law laid down.

10. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance. Negligence can be both intentional or accidental which can also be accidental. More particularly, term negligence connotes reckless driving and the injured of claimants must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.

11. The principle of contributory negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.

12. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.

18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.

20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.

21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).

22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."

emphasis added

13. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:

"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

emphasis added

14. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care.

15. The findings of fact that the accident occurred due to contribution of both drivers is to be evaluated on aforesaid principles. The tribunal comes to the conclusion that from the evidence educed, it can't be presumed or held that the motorcyclist was on wrong-side. The learned tribunal has come to the conclusion that as it was a head on conclusion and so both the drivers would have contributed in the accident taking place for which the tribunal relied on the decisions titled Bijoy Kumar Dugar vs. Bidhyadhar Dutta and others, TAC 2006 (1) 969 and Rajesh Ji Verma v. Abhineet Kesharwani, 2008 (2) TAC 40. The said judgements would not apply as two vehicles of unequal magnitude were involved in the accident in the case on hand. The motorcyclist was on the correct-side just because the road was broad enough, it cannot be said that he did not take any care or caution to avert the accident from taking place. Nothing is brought on record that the driver of the Maruti Caar had taken all kinds of caution. It is proved that the driver of the motorcycle cannot be said to have contributed in accident having taken place. The judgment of Supreme Court in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, which has considered the principles of negligence will also come to the aid of the appellants herein. The reason being the detail analyses of facts would go to show that the driver of Maruti Car was at fault. The sight plan filed along with the charge sheet will not support the finding recorded by the Tribunal. It is not in dispute that the owner or driver of the vehicle namely Maruti Caar did not appear before the tribunal. The Negligence of deceased is quantified at 10% and not 25%.

Compensation

16. Having heard the counsels for the parties and considered the factual data, the accident occurred on 15.7.2013 causing death of Ajab Singh who was 41 years of age and left behind him, wife, one daughter, two young sons and mother. The Tribunal has assessed the income of the deceased to be Rs.50,360- per month. The deceased was a government employee. The income according to counsel for appellants has not been properly calculated. It is submitted that the deceased was Government employee even if we consider the income of the deceased in the year 2013 and even if we go by the judgments of the Apex Court wherein it has been held that income as on date of accident would be applicable. It is submitted that income has to be considered to be Rs.51,860/- per month, which we feel is just and proper. To which as the deceased was in the age bracket of 41-45 years, 30% of the income will have to be added as future loss of prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. As far as deduction towards personal expenses of the deceased is concerned, it should be 1/4th as the deceased was a married. The Tribunal considered the multiplier of 14 which is maintained as per the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 will have to be followed.

17. Tribunal has considered the judgment of Supreme Court in Reliance General Insurance Co. Ltd. V. Shashi Sharma and others, 2016 (4) TAC 149 and held that the family mainly the widow would as per the rules will receive a sum, which will aggregate to upto 2025 Rs. 67,28,256/- for a period of 12 years which will not permit us to disturb the findings as far non entitlement of amount for twelve years. The deceased was in the age group of 41-45 years and hence an additional multiplier of 14. Hence we would grant a multiplier of 2 which is not granted by the tribunal. Income of the deceased was Rs.51,860/- p.m. to which multiplied by 12 and 1/4 would have to be deducted for personal expenses of deceased. The legal representative mainly the wife receiving a sum of Rs.67,28,256/- upto 2025. We grant multiplier of 2 as is rightly pointed out by Shri P. K. Sinha, learned counsel for insurance company that under the compensatory jurisdiction, it cannot be windfall but must be commensurate with the amount which a family has to receive. The tribunal had already granted Rs.1,00,000/- for non pecuniary damages and Rs.25,000/- for funeral charges which also is not disturbed. The tribunal has not taken into consideration the judgment of Vimal Kanwar & Ors. Vs. Kishore Dan & Ors. 2013 (2) RCR(Civil) 945 and Syed Basheer Ahmed v. Mohammed Jameel, 2009 ACJ 690.

18. The total compensation payable to the appellants in view of the decision of the Apex Court in Pranay Sethi (Supra) is computed herein below:

i. Income Rs.51,860 /- p.m.

ii. Percentage towards future prospects : 30% namely Rs.15,558/-

iii. Total income : Rs. 51,860 + Rs.15,558 = Rs.67,418/-

iv. Income after deduction of 1/4 : Rs.50564/-

v. Annual income : Rs.50,564 x 2x12 = Rs.12,13,536/-

vi. Multiplier applicable : 14 (as the deceased was in the age bracket of 41-45 years), but as the family is to get compensated for 12 years (only 2 years loss is granted).

vii. Amount under non pecuniary heads : Rs.1,25,000/-

viii. Total compensation : Rs.13,38,536/-

19. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

20. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount along with additional amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

21. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment may be.

22. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, the TDS can't be deducted on amount of compensation. Registry of the Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.

23. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly direct investment of amount. The same is to be applied looking to the facts of each case.

24. The amount shall be disbursed in equal proposition but amount of minor children if any now be kept in Fixed Deposit upto 2025 and then be released.

25. This Court is thankful to both the counsels to see that the matter is disposed of.

26. The record be sent back to the Tribunal.

Order Date :- 31.8.2021

A.N. Mishra