Smt. Reena Agarwal And Others vs Upsrtc And Others
2021 Latest Caselaw 11457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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

 
Case :- FIRST APPEAL FROM ORDER No. - 179 of 2011
 

 
Appellant :- Smt. Reena Agarwal And Others
 
Respondent :- Upsrtc And Others
 
Counsel for Appellant :- A.K. 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 A. K. Singh, learned counsel for the appellants, learned counsel for the respondents-for the Insurance Company and none has appeared for the owner and perused the judgment and order impugned.

2. This appeal challenges the  compensation findings and negligence by the Tribunal being Motor Accident Claims Tribunal, Aligarh, (hereinafter referred to as Tribunal) in M.A.C.P. No. 695 of 2008, awarding a sum of Rs. 18,67,492/- against the Uttar Pradesh State Road Transport Corporation, (U.P.S.R.T.C.) with interest at the rate of 6% from date of application.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is not in dispute. The respondents have not challenged the liability imposed on them. The only issue to be decided is the compensation awarded.

4. The accident and involvement of vehicle of respondent is not in dispute, where the vehicle of U.P.S.R.T.C., was not insured with any Insurance Company is also not in dispute. The issue of negligence as decided by Tribunal has attained finality. The only issue raised for our consideration to be decided is the issue of compensation awarded by the Tribunal for tortuous act of the driver of Uttar Pradesh State Road Transport Corporation. (U.P.S.R.T.C.).

5. The brief facts for our purpose which relates to compensation awarded is that accident occurred involving the bus whereby the deceased-Sanjeev Kumar Agarwal breathed his last. The deceased-Sanjeev Kumar Agarwal was driving the car, he suffered severe injuries and died on the spot. He was running coaching center in the name of Agarwal coaching center at Aligarh and where even students from out side of Aligarh were coming to take coaching and learn.

6. It is submitted by learned counsel for the appellants that deceased was earning Rs. 35,000/- to 40,000/- per month. He left behind him his widow and four children who were minor. It is further submitted that claimants have claimed Rs. 70,20,000/- with 18% interest before the Tribunal, thereafter Tribunal has framed the issues. 

7. We are concerned with issue no. 7 which relates to compensation. The claimants had produced several documents namely the school living certificate, the income tax returns for the assessment years 2007-2008, 2008-2009 and 2009-2010 were produced before the Tribunal despite that did not decide.

8. The fact that accident caused the death of deceased is also proved by the postmortem report and that finding has attained finality. The issue of negligence has also been decided in favour of the claimants. His income is sought to be proved by PW-3 Anant Sharma and the widow of deceased namely Smt. Reena Agarwal-PW-1. The Tribunal has considered negligence of the deceased to be 25%.

9. 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.

10. 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.

11. 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 comear 1992.

Despite given chance to the appellant, no one has appeared to press this appeal.

It seems to us that the appellant is not interested in continuing with the appeal.

After waiting for 28 years, I have no other option but to dismiss the appeal.

In view of the above, this appeal stands dismissed for non prosecution.

ing 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

12. The car dashed with bus of Uttar Pradesh State Road Transport Corporation, the driver of U.P.S.R.T.C. was more negligent as he was driving the bigger vehicle and therefore, he was supposed to take more care, we uphold the finding of Tribunal as far as it relates to issue of negligence. ear 1992.

Despite given chance to the appellant, no one has appeared to press this appeal.

It seems to us that the appellant is not interested in continuing with the appeal.

After waiting for 28 years, I have no other option but to dismiss the appeal.

In view of the above, this appeal stands dismissed for non prosecution.

13. The issue no. 7 relates to compensation it is proved that deceased the age group of 41 to 45 years. He was running his own school and his income tax returns shows that for the assessment year 2007-08 his income was Rs. 3,01.373.00/-. Even if we consider the mean of the returns of all the years it would come to Rs. 2,30,000/-. per annum very strangely the Tribunal has deducted 25% while considering income of deceased this could not have been done, no logical reason is assigned thereafter the Tribunal deducted 1/4th for personal expenses of deceased and did not add any amount towards the future loss of income as he was self employed person.

14. Looking to these facts, we will have to recalculate the compensation though vehemently objected by the learned counsel for the (U.P.S.R.T.C.).

15. It is further submitted that the Tribunal has assessed his income is Rs. 2,30,000/- which we do not interfere. To which as the deceased was below the age of 50 years and claimants were not granted any amount towards future loss of income of the deceased namely 25% lump sum amount Rs. 60,000/- should be added in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Out of which as he was having four children and a widow 1/4th will have to be deducted as deducted for personal expenses by the Tribunal the same is maintained. The multiplier of 14 granted is maintained. The amount of Rs. 1,00000/- under the head of non pecuniary damages will have to be added.

16. The total compensation payable is recalculated and is computed herein below:

i. Annual Income Rs. 2,30,000/-

ii. Percentage towards future prospects : 25% namely Rs. 57,500/-

iii. Total income : Rs. 2,30,000+57,500= Rs. 2,87,500/-

iv. Income after deduction of 1/4 towards personal expenses : Rs. 71,875/-

v. Multiplier applicable : 14

vi. Loss of dependency: Rs. 215625X14= Rs. 30,18,750/-

vii. Amount under non pecuniary heads : Rs. 100000/-

viii. Total compensation : Rs. 31,18,750/-

17. 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."

18. 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 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 award and 6% thereafter till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

19. The Tribunal could not have deducted 25% ad-hoc amount from the income of deceased. The 25% has to be over all compensation which has been granted and therefore, so that this mistake may not be committed, this judgment may be circulated to the M.A.C.T. after obtaining approval of the Hon'ble Chief Justice.

20. 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 not be passed as the deceased has already elapsed. The claimants be paid by RTGS to their account in bank.

21. 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, registry of this Tribunal is directed to allow the claimant 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.

22. 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 apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

23. Record and proceedings be sent to the Tribunal.

Order Date :- 10.12.2021

Vikram