Smt. Usha And 4 Others vs U.P.S.R.T.C. Tedhi Kothi Lucknow ...
2021 Latest Caselaw 11456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2591 of 2016
 

 
Appellant :- Smt. Usha And 4 Others
 
Respondent :- U.P.S.R.T.C. Tedhi Kothi Lucknow And Another
 
Counsel for Appellant :- Alok Kumar Singh
 
Counsel for Respondent :- Ramanuj Pandey
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the claimants have challenged the judgment and order dated 03.05.2016 passed by Motor Accident Claims Tribunal/Additional District & Sessions Judge, Court No.11, Ghaziabad (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 111 of 2015 awarding sum of Rs.3,08,000/- as compensation to the claimants with interest at the rate of 7% per annum.

2. Heard Mr. Alok Kumar Singh, learned counsel for the appellants and Mr. Ramanuj Pandey, learned counsel for the respondents. Perused the record.

3. The accident is not in dispute. The Uttar Pradesh State Road Transport Corporation (in short "U.P.S.R.T.C.") has not challenged the liability fastened on it. In this case, Tribunal has fixed 20% contributory negligence of the deceased.

4. The claimants-appellants filed Motor Accident Claim Petition against the U.P.S.R.T.C. with the facts that on 17.01.2012 deceased Devkidas was going to his work place at 6:30 AM. When he crossed by-pass road and reached the other side, a U.P.S.R.T.C. bus came from the side of Delhi bearing No. U.P. 84 F 9208, which was being driven in a very rash and negligent manner by its driver, which hit the deceased from behind. The deceased sustained fatal injuries and died on the spot.

5. The U.P.S.R.T.C.-respondent in its written statement admitted the factum of accident but contended that deceased was himself negligent. He all of sudden came in front of the bus by jumping the divider. Accident could have been avoided if the deceased would have not been so negligent.

6. Learned counsel for the appellants has submitted that deceased was not negligent in accident. It is also submitted that at the time of accident, the deceased had already crossed the road and the driver of the bus hit him on the side of the road by rash and negligent driving.

7. Per contra, learned counsel for the U.P.S.R.T.C. has submitted that on the basis of evidence on record, it is established that deceased was crossing the road at the place which was not ment for crossing and all of sudden, he came in front of the bus due to his own negligence. Learned counsel for the respondents has also submitted that the judgment and order passed by Tribunal also does not suffer from any such infirmity or illegality which may call for any interference by this court.

8. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured 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.

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

10. 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."

11. 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.

12. In this regard, we have perused the evidence regarding the contributory negligence on record. Learned Tribunal after threadbare perusing the evidence, has opined that Investigating Officer has prepared site plan during the course of investigation, which shows that at the place of occurrence, there was divider in the middle of road and there was no cut in the divider. It means that the deceased came in front of the bus after jumping on the divider. On the basis of evidence on record, learned Tribunal fixed 20% contributory negligence of the deceased and held that driver of the bus in question, was negligent to the extent of 80% only.

13. We are in full agreement with the finding of learned Tribunal on the point of negligence.

14. The issue to be decided is, the quantum of compensation awarded by the Tribunal. The facts except for deciding compensation are not being narrated.

15. Learned counsel for the appellants has submitted that learned Tribunal has fixed the income of the deceased as Rs.36,000/- per annum, while the deceased used to earn much more because he was a mechanic in a factory. It is next submitted that income of the deceased was Rs.2,40,000/- per annum. Perusal of record shows that there is no plausible, acceptable and documentary evidence to prove the income of the deceased so as to accept the submission of learned counsel for the appellants that deceased be held to be earning Rs.2,40,000/- per annum as no income tax return is also filed. On the basis of evidence on record, it is clear that deceased was working in a factory, hence, keeping in view the above fact, the income of the deceased may be fixed as Rs.5,000/- per month (Rs.5,000 X 12 = 60,000 per annum) in the absence of any documentary or plausible evidence. Hence, the annual income of deceased is fixed as Rs.60,000/- per annum.

16. It is also submitted by learned counsel for the appellant that learned Tribunal has not given compensation under the head of future prospects. The age of the deceased was 40 years, hence in the light of the judgment of the Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613 and National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, due to being self employed and being of 40 years of age, 40% shall be added towards future prospects to the income of the deceased as per the aforesaid decision being self employed.

17. As far as the dependency is concerned, there are five dependents. Learned Tribunal has deducted 1/3rd of the income of the deceased for personal expenses which requires reassessment. Keeping in view the number of dependents, ¼th shall be deducted for personal expenses. Learned Tribunal has applied multiplier of 15 for which there is no dispute. The deceased was 40 years of age. Under the non pecuniary head, claimants-appellants shall be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Apart from it, wife of the deceased shall also be entitled to get Rs.40,000/- for loss of consortium. In this way, claimants shall get Rs.70,000/- under the head of non pecuniary damages with increase of 10% for every three years as per the judgment of Apex Court in Pranay Sethi (Supra).

18. Hence, the total compensation payable to the appellants are computed herein below:

(i) Annual income Rs.60,000/- Per annum.

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

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

(iv) Income after deduction of ¼th : Rs.63,000/-

(v) Multiplier applicable : 15

(vi) Loss of dependency : Rs.63,000 X 15 = 09,45,000/-

(vii) Amount under non pecuniary head : Rs.70,000/- + 21,000/- = 91,000/-

(viii) Total compensation : Rs.09,45,000/- + 91,000/- = Rs. 10,36,000/-

(ix)Amount after 20% deduction towards contributory negligence : Rs.10,36,000 - 02,07,200/- = Rs. 08,28,800/-

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. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

21. No other grounds are argued orally when the matter was heard.

22. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-U.P.S.R.T.C. shall deposit the 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.

23. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in 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, registry of this 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) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

Order Date :- 10.12.2021

P.S.Parihar

(Hon'ble Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)