Smt. Sushila And 2 Others vs Amar Pal And 2 Others
2021 Latest Caselaw 11483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 
Case :- FIRST APPEAL FROM ORDER No. - 119 of 2018
 
Appellant :- Smt. Sushila And 2 Others
 
Respondent :- Amar Pal And 2 Others
 
Counsel for Appellant :- Mirza Ali Zulfaqar,Sandeep Kumar Tripathi
 
Counsel for Respondent :- Arun Prakash
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per: Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellants (legal heirs of the deceased) have challenged the judgment and order dated 10.10.2017, passed by Motor Accident Claims Tribunal/District Judge, Rampur (herein after referred to as 'the Tribunal') in Motor Accident Claim Petition No.129 of 2016 (Smt.Sushila and others vs. Amar Pal and others), whereby the Tribunal awarded a sum of Rs.8,54,800/- with a default clause that for 21.5.2016 till the amount is deposited, 7% interest would approve as per Section 174 of the Motor Vehicles Act, 1988.

2. Heard Shri Santosh Kumar Tripathi, learned brief-holder appearing for Shri Sandeep Kumar Tripathi, learned counsel for the appellants-claimants, learned counsel for the Insurance Company and perused the record.

3. Motor accident claims petition was filed by the appellants for compensation in connection with the death of the deceased Motilal Yadav with the averments that on 7.2.2016, deceased Motilal Yadav was going with his relative Teerth Raj Yadav by driving Car No. UK06AG-3903 from Rampur to Rudrapur, District-Udhamsingh Nagar. At about 8:00 a.m., when he reached near Ishanagar Chauki, a Bolero No.UP22U-3651 came from the side of Rudrapur, which was being driven very rashly and negligently by its driver hit the car. Due to this accident, the car of the deceased fell into a ditch. In this accident, Motilal Yadav and Teerth Raj Yadav sustained injuries and Motilal Yadav succumbed to injuries on the way to hospital. It is also stated that deceased Motilal Yadav was in the business of transport. He was having 12 trucks and his income was Rs.40,000/- per month. He was also income tax payee. The respondents filed their respective written statements.

4. It is submitted by learned counsel for the appellant that the deceased was income tax payee and he was in the business of transport. His monthly income was Rs.40,000/-, but the Tribunal has assessed his monthly income at Rs.12,000/-, which is on a lower-side. It is also submitted that learned Tribunal has not awarded any sum towards future loss of income. The Tribunal has recorded the findings, wherein the appellant No.1 has stated that the business of transport is being looked after by the brothers of the deceased and she is getting the income of her share. On the basis of this evidence, Tribunal has held that there is no loss of income from business, but business could grow in future, if the deceased was alive. It is next submitted by learned counsel for the appellants that in the heads of non-pecuniary damages, Tribunal has awarded Rs.5,000/- for loss of consortium, Rs.2,500/- for loss of estate and Rs.5,000/- for funeral expenses, which are also on lower-side whereas rate of interest is allowed only 7%, which should also be enhanced. No other point regarding the quantum of compensation is pressed. On the point of negligence, learned counsel for the appellants submitted that deceased was not negligent while driving the car at the time of accident and the driver of the Bolero car was solely negligent. Therefore, the Tribunal has wrongly assessed 20% contributory negligence of the deceased and the finding pertaining to contributory negligence may be set aside and entire compensation should be paid to the appellants.

5. Learned counsel for the Insurance Company has submitted that as per the evidence of wife of the deceased, she is getting her share of income, which is generated from the transport business, therefore, learned Tribunal has rightly held that there was no loss of future income due to death of the deceased. With regard to the contributory negligence, he has submitted that evidence on record clearly transpires that the deceased was himself negligent in driving the car and the Tribunal has rightly fixed 20% contributory negligence of the deceased.

6. Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.

7. 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.

8. 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.

9. 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 (section 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 )

10. 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."

11. 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 composite 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."

18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

What emerges from the aforesaid discussion is as follows :

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."

(Emphasis added)

12. We threadbare perused the evidence on record. As far as finding of contributory negligence is concerned, Tribunal has held that deceased was liable for 20% contributory negligence. The latest decision of the Hon'ble 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 or the impact of accident upon the victim could have been minimized if he has taken care. In this case, Teerth Raj Yadav (PW2) was sitting in the car of the deceased at the time of accident. Being the best eye-witness of the accident, he has stated before the Tribunal that at the time of accident, he and the deceased had seen the Bolero car from at the distance of 150-200 mtrs. and he had told the deceased to save the accident. Hence, it is crystal clear from the evidence of eye-witness (PW2) that deceased was also negligent in driving the car and certainly he was also responsible for the accident. In our opinion, Tribunal was justified in holding contributory negligence of the deceased also, which is to the tune of 20% and this finding of Tribunal is maintained as it is just and proper in the given circumstances of the case.

13. Now, this takes this Court to the issue of compensation. The income of the deceased is assessed at Rs.12,000/- per month by the Tribunal. It is not disputed that the deceased was in transport business and he was income tax payee. No doubt, the wife of the deceased had deposed that she is getting her share of income from the transport business, which is being looked after by the brothers of the deceased, but the assessment of Tribunal is not justified and we fix the income of the deceased at Rs.20,000/- per month. It cannot be ruled out that deceased could give the growth to his business, if he was alive. Hence, appellants are entitled to have compensation for future loss of income also. The deceased was self-employed. At the time of death, his age was 53 years. Therefore, as per the decision of Hon'ble Apex Court in New India Assurance Co.Ltd. vs. Urmila Shukla [2021 ACJ 2081], 20% shall be added in the income of the deceased towards future prospects. There is no dispute between the parties regarding the deduction of 1/3 for personal expenses of the deceased and multiplier of 11, but in our opinion, the non-pecuniary damages, awarded by the Tribunal, are on the lower side. As per the decision of Hon'ble Apex Court, in National Insurance Co.Ltd. vs. Pranay Sethi and others [2014 (4) TAC 637 (SC)], appellants shall be entitled for Rs.15,000/- each, towards funeral expenses and loss of estate. Appellant No.1-wife of the deceased shall also be entitled to Rs.40,000/- towards loss of consortium. Hence, the total compensation payable to the appellants is re-computed herein below:

i. Income Rs.20,000/-

ii. Percentage towards future prospects : 20% namely Rs.4000/-

iii. Total income : Rs. 20,000/- + Rs.4000/- = Rs.24,000/-

iv. Income after deduction of 1/3 : Rs.16,000/- (rounded up)

v. Annual income : Rs.16,000 x 12 = Rs.1,92,000/-

vi. Multiplier applicable : 11

vii. Loss of dependency: Rs.1,92,000 x 11 = Rs.21,12,000/-

viii. Amount under non-pecuniary head : Rs.15,000/- + Rs.15,000/- + Rs.40,000/- = Rs.70,000/-

ix. Total compensation : Rs.21,12,000/- + Rs.70,000/- = Rs.21,82,000/-

x. Compensation after deduction of 20% towards contributory negligence : Rs.21,82,000-Rs.4,36,400/- = Rs.17,45,600/-

14. 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."

15. 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.

16. Tribunal has committed grave error while awarding the interest from the date of filing the written statement by the Insurance Company-respondent No.2. This is an absurd finding, which cannot be appreciated at all. We set aside this finding and direct to pay the interest to the appellants from the date of filing of the claim petition.

17. 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 Insurance Company shall deposit the amount within a period of 8 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.

18. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [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.

(Ajai Tyagi, J.)               (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 15.12.2021
 
LN Tripathi