Smt. Jagriti And Others vs The New India Assurance Co. Ltd. ...
2021 Latest Caselaw 11454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3380 of 2003
 

 
Appellant :- Smt. Jagriti And Others
 
Respondent :- The New India Assurance Co. Ltd. And Ors.
 
Counsel for Appellant :- A.L. Jaiswal,Shrave Singh
 
Counsel for Respondent :- Sudhanshu Behari Lal Gour
 

 
With
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1319 of 2003
 

 
Appellant :- Sukhpal 
 
Respondent :- The New India Assurance Co. Ltd. And Ors.
 
Counsel for Appellant :- A.L. Jaiswal,Shrave Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral judgment by Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Shrave Singh, learned counsel for the appellants, Sri Sudhanshu Behari Lal Gour, learned counsel for the respondent-for the Insurance Company and perused the judgments and orders impugned.

2. By way of these appeals the appellants who are the legal heirs of the deceased have brought in challenge the award passed by Sri. Narendra Kumar Jain in M.A.C. No. 765 of 1999 dated 08.09.2003 whereby the Tribunal granted a sum of Rs. 50,000/- only under section 166 M.V. Act, 1988, to the appellants by way of appeal being F.A.F.O. No. 3380 of 2003 whereas Sukhpal who was the claimant in M.A.C. No. 25 of 2000 was also awarded Rs. 25,000/- only as compensation against the claim of Rs. 54,00,000/- has challenged the award by filing F.A.F.O. No. 1319 of 2003. The Tribunals granted this amount under the head of no fault liability to both the claimants. Both the claim petitions were decided separately. It was decided by Smt. Sadhana Chaudhary, which is dated 03.02.2003 and the other judgment is of Sri. Narendra Kumar Jain, dated 08.09.2003. At the outset it is not understood why both the matters which arose out of the same accident were not heard and decided together by the same Tribunal. At the outset we request the Registrar General of the High Court to place this concern of ours before Hon'ble the Chief Justice so directions can be passed on to the Tribunals in the State. So that multiplicity of awards and divergent views are not there, if the matter arises out of the same accident. We request the Principal Officer/Tribunal M.A.C.T. or the District Judge of the District should consolidate and list all theses matters before the same Tribunal, so that there is a comity of views and it does not become judgecentric decision.

3. The brief facts that emerges from the record and the paper book are the accident took place on 18.11.1999 is not in dispute. The deceased named as Ravindra who left behind him his widow and four minor children at the age of 35 years died in the said accident. He was the Manager in Sheela Chitra Mandir, Chirodi, and was earning Rs. 5,500/- per month, whereas Sukhpal who was aged about 30 years of age he was earning Rs. 2,500/- per month in private service in Hanuman Paper Mills and was having agricultural lands from which he used to earn Rs. 5,000/- per month. The doctor has opined that he has 70% disability in his body and he was aged about 30 years of age. The facts about the accident of Ravindra who was traveling in Maruti van owned by respondent no. 1 and driven by Ram Niwas respondent no. 2 when the Maruti van reached petrol pump at Sahibabad the driver who was driving the vehicle rashly and negligently dashed with a stationary truck which was stationed on the side of the road. The owner has not filed reply, the driver who had filed his reply contended that he was driving the vehicle with care and caution when the vehicle reached Bhopura road, suddenly one cyclist came from the other side, so as to save him Maruti van dashed with the stationary truck and contended that there was no negligence on his part while driving the vehicle. The Insurance Company filed its reply and accepted that vehicle Maruti van was insured with, it was driven in breach of policy condition and that vehicle before 1 ½ years was owned by Sushil Kumar son of Prem Chand who had sold the said vehicle to respondent no. 1 and therefore, the Insurance Company has no liability. The deceased was traveling as passenger in private vehicle which is against the terms and conditions of the policy. Three issues were framed, the first issue relates to negligence whereby the deceased was injured and Ravindra Singh died. In other matter also the issue raised about negligence, the issues were similar but it related to injury. All the other issues raised were similar.

4. The first award of the Tribunal of dated 03.02.2003 very strangely held that there is no negligence on the part of the driver of Maruti van just because P.W.-2 accepted that the driver of Maruti van tried to save the cyclist. It cannot be said that the driver of the Maruti van was not negligent. Similar finding is reiterated in the second also and has relied on the judgment in Claim Petition No. 25 of 2000 of Sukhpal. We will have to evaluate negligence on the principles enunciated by the Apex Court and this Court in different decisions.

5. The Tribunals held that driver of the vehicle not to be held negligent and, therefore, granted only a sum of Rs. 50,000/- for death and Rs. 25,000/- for injury to Sukhpal namely under the provisions of no fault liability. This is under challenge. It is submitted by learned counsel for the appellants that the Tribunals have wrongly returned the issue of negligence against appellants and principle of strict liability has been totally ignored by both the Tribunals.

6. The principle for deciding whether driver of a vehicle is negligent or not we discussed in below mentioned judgments.

7. 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 inferen 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 comear 1992."

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

8. Also the judgment of Hon'ble Apex Court "Kausnuma Begum Vs. New India Insurance Company 2001 SCC Page 151" will also not permit us to concur with the decisions of learned Tribunals, the reasons being the F.I.R. and the charge-sheet were laid against the driver of the vehicle. The Supreme Court in Anita Sharma case relying on Bimla Devi Vs. Himachal Rct, (2009) 13 SCC 530 2009 AIR SC 2819 and Sunita Vs. Rajasthan State Road Transport Corporation, (2019) 0 SCC 195 has held that the Evidence Act 1872, cast as duty on the respondents to adduce evidence, so it is to show that vehicles are being driven so as to avoid any accident being taken place. In our case the driver was the best person who has not been examined on oath, who has not stepped into the witness box, pleadings and prove necessary to establish the claim while discharging by the appellants herein. The contention of the appellants that accident occurred due to rash and negligent driving of the driver should have been accepted by the Tribunal. In view of the fact that one of the appellants was himself injured. Lifting one sentence from the testimony of PW-2 to exonerate the driver is bad in eyes of law. The approach of the Tribunal should be holistic analysis of entire pleadings and evidence by applying principles of preponderance of probability. Once, foundational fact, namely, actual occurrence of accident, has been established, then Tribunal's role would be to calculate quantum of just compensation if accident had taken place by reason of negligence of driver of a motor vehicle and, while doing so, Tribunal would not be strictly bound by pleadings of parties.

9. We can also rely on the decision in Mangla Ram Vs. Oriental Insurance Company Limited and Others (2018) 5 Supreme Court Cases 656 wherein strictosencso principals of pleadings are not to bind the Tribunal, prima-facie negligence of the driver has to be proved. In our case both the deceased and the injured were persons who were not driving the vehicle nor have they contributed to the accident having taken place qua them the judgment of Kausnuma Begum (Supra) and decision in Khenyei Vs. New Indian Assurance Company Ltd. & Ors reported in AIR 2015 SC 2261. The combined effect of negligence of two persons or joint tort fessor will be payable by the sole tort fessor rather the wrong doer. The Tribunal has in our view committed a grave error in coming to the conclusion that the driver of van was not negligent. This finding is not only erroneous but perverse, the driver of the offending van did not even step into the witness box, despite that holding him not negligent is against the record. The Tribunal has taken a view which is not permissible under law, hence, the said finding is upturned.

10. As far as, the deceased and injured in F.A.F.O. No. 1319 of 2003 are concerned the occupants of car. A non tortfeasor the car hit from behind a stationary vehicle.

11. As far as, the deceased and injured, qua both, it was case of composite negligence and therefore, also the claim petition could not have been dealt with in the manner which has been decided.

12. The appellant Sukhpal who is the injured nor the deceased none of them were driving the Maruti van. The vehicle was driven at an excessive speed will be not diluted by the evidence of PW-2 just because he stated that a cyclist all of sudden came on the road. The principle of res-ipsaloquitur would apply to the facts to demonstrate that the driver of the car was driving the vehicle at moderate speed had it been so, it would not have gone towards the side of the road and ramped into the stationary vehicle which would permit us to hold that the driver did not take proper care nor he did take proper caution. The principles for deciding the matter do not rest on the strict interpretation of criminal or civil jurisprudence but has to be on the basis of evidence led. In our case the F.I.R and the charge sheet and the written statement of driver himself would show that driver was negligent in driving. It is not proved that the truck was on the middle of road but was parked on the side line and the driver of the car driven his vehicle cautiously, he would have easily avoided the accident having taken place. The principles of negligence would not permit us to concur with findings of the fact returned by the Tribunals. The Tribunals has to take what is known as the practical view in the matter and cannot take a pendentic or hyper technical view as taken by the Tribunals. The doctrine of res-ipsaloquitur will apply to the facts of the case. Hence, we hold the driver of Maruti car was negligent. The witnesses as of fact have deposed that the accident took place and the vehicle ramped into stationary vehicle. It cannot be said that there was no negligence on the part of the driver of Maruti van.

13. As the matter has remained pending for 17 years before this High Court and the destitute family has not got any amount of compensation despite we feel that the family members who was the earning member is lost in the accident, but as the Insurance Company has contended that the driving license was fake and they have not filed appeal because that issue was never decided. As far as, the claimants are concerned as the accident is of the year 1999 and the family has been deprived of compensation. We would take help of judgment of the Apex Court in Bithika Mazumdar and Another Vs. Sagar Pal And Others AIR (2017) 2 Supreme Court Cases 748, we would venture to decide the quantum as empowered under section 173 of the Motor Vehicles Act, on the principles of grant of compensation for death and injury. As far as, Appeal No. 3380 of 2003 is concerned the deceased Ravindra was 35 years of age was the Manager in Sheela Chitra Mandir, Chirodi earning Rs. 4,500/- per month but we hold the income at Rs. 5,000/- per month to which being below the age of 40, 40% will have to be added for future prospects. As he was survived by widow, three sons and one daughter and mother deduction of 1/4 will be necessary for personal expenses and multiplier of 16 would have to be granted and Rs. 70,000+ rise 10% in Rs. 70,000/- will have to be granted. Hence the total calculation will be Rs. 5,000+2,000 - 1/4 for personal expenses. Out of which the amount under no fault liability will have to be deducted + Rs. 1 lac toward non pecuniary damages.

(i) Annual income Rs.5,000 X 12 = Rs. 60,000/- per annum

(ii) Percentage towards future prospect : 40% = Rs. 24,000/-

(iii) Total income : Rs. 60,000 + Rs. 24,000 = Rs. 84,000/-

(iv) Income after deduction of 1/4th : Rs. 84,000 - 21,000 = Rs. 63,000/-

(v) Multiplier applicable : 16 :- Rs. 63,000 X 16 = Rs. 10,08,000/-

(vi) Amount under non pecuniary head:Rs.70,000/-+30,000 = Rs.1,00,000/

(vii) Total compensation:Rs. 10,08,000+ Rs. 1,00,000 = Rs.11,08,000 /-

14. As far as Sukhpal is concerned, he was in private service and also doing agricultural work. We consider his income to be Rs. 3,000/- per month to which being below the age of 30 years, 40% will have to be added for future prospects. He had 70% disability of body as a whole to which we would consider it as 35% as functional disability. The Tribunal has been inconsistent, one Tribunal has granted interest and other Tribunal has refused interest on no fault liability. Though the amount under no fault liability should not have been kept in fixed deposit as that amount is of meeting the immediate needs of the family, we deprecate the said practice. The award shall carry 7% interest.

(i) Annual income Rs.3,000 X 12 = Rs. 36,000/- per annum

(ii) Percentage towards future prospect : 40% = Rs. 14,400/-

(iii) Total income : Rs. 36,000 + Rs. 14,400 = Rs. 50,400/-

(iv) Compensation for disability @ 35%=Rs.2,99,880 or Rs. 3,00,000/- (rounded of)

(v) For paying shocking suffering:- Rs. 25,000/-

(vi) Medical expenses and all other charges:- Rs. 3,00,000 + Rs. 20,000= Rs. 3,20,000/-

(vii) Total compensation: Rs. 3,00,000 + Rs. 25,000/- + Rs. 3,20,000/- = Rs. 6,45,000/-. Out of which the amount under no fault liability will have to be deducted.

15. In this case the Tribunal has held that the Insurance Company will have right of recovery from the owner, but in the final award that direction is missing. However, as we find that it is admitted fact that the vehicle was insured with the Insurance Company, and having decided the compensation. We grant the Insurance Company right of recovery to recover from owner. However, it will have to prove before the Tribunal that the owner was aware about the fake driving license of the driver and that driver was plying the vehicle with such a fake driving license. We pass this order as the Apex court in Ram Chandra Singh Vs. Rajaram and others AIR 2018 SC 3789 and the case of Nirmala Kothari v. United India Insurance Co. Ltd. (2020) 4 SCC 49, wherein it is held that High Court and Trial Court should examine the fact as to whether the owner of the vehicle was aware of fake driving license. In our case we remand the matter for fresh consideration on question of liability of the Insurance Company to recover the amount form the owner.

16. Appeals are partly allowed.

Order Date :- 10.12.2021

Vikram