Smt. Shaheen And Others vs Manoj Kumar Nad Others
2021 Latest Caselaw 4527 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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

 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1163 of 2011
 

 
Appellant :- Smt. Shaheen And Others
 
Respondent :- Manoj Kumar Nad Others
 
Counsel for Appellant :- S.D. Ojha
 
Counsel for Respondent :- Ashish Kumar Srivastava
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

1. Heard Sri S.D. Ojha counsel for the claimants-appellants and Sri Ashish Kumar Srivastava for the Insurance Company. None for the owner, though served.

2. Though this is a defective appeal, we decided it finally as the dispute relates only to computation and negligence of the deceased as decided by the Tribunal.

3. This appeal, at the behest of the claimants, challenges the judgment and award dated 3.12.2010 passed by Motor Accident Claims Tribunal, Additional District Judge, Court No.02, Muzaffar Nagar( hereinafter referred to as 'Tribunal')  in MACP No.235 of 2009 awarding a sum of Rs.92,375/- with interest at the rate of 6%.

4. This is a delayed appeal filed in the year 2011 though vehemently objected by the counsel. We condoned the delay in filing the appeal.

5. As the Insurance Company may not be saddled with interest after the matter would be admitted. Records be called. Paper books be filed and then enhancement is made as the judgment of the Tribunal is against the saddled principle enunciated by the Apex Court in Kirti Versus Oriental Insurance Company limited, (2021) 1 TAC page 1. We have requested the counsels to agree for getting the appeal disposed of today as it is covered by the judgment of Apex Court in the case of National Insurance Company Limited Vs.  Pranay Sethi and others, 2017 0 Supreme (SC) 1050.

6. There is an error apparent on the face of record that the Tribunal has not considered awarding the amount under the head of what can be said to be future loss of income for the death of young person aged about 23 years of age who was a driver by profession. The Tribunal has considered his income to be Rs.3,000/- per month in the year 2009, applied multiplier of 15 and granted Rs.92,375/- under the head of non pecuniary damages. The deceased was survived by a minor daughter, widow and parents.

7. Sri S.D. Ojha, learned counsel for appellant submits that there are multiple errors first in considering the income, second not granting future prospects and third applying wrong multiplier and lastly considering the deceased to have contributed 75% to the accident having taken place.

8. Learned counsel for the respondent contended that the income considered cannot be said to be erroneous. The multiplier cannot be said to be erroneous and it is granted as per Law applicable. The amount awarded is just and proper under the head of non pecuniary damages considering the rules of Uttar Pradesh.

9. While considering the fact at the outset, we feel that the Tribunal has considered pecuniary damages as if considering the case under Section 163A of the Act, hence, the said finding is bad.

10. The question 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.

11. The Division Bench of this Court in First Appeal From Order No.1818 of 2012 ( Bajaj Allianz General Insurance Company Limited Versus Smt. Renu Singh and others) decided on 19.7.2016 has held as under: -

"16. The term 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 cause physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, 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, 1988 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 should 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. This is termed negligence.

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. In light of the above discussion, I am 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, Courts 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.

21. 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 of driver of another vehicle."

12. We will have to appreciate the fact of negligence on the touchstone on evidence laid before the Tribunal. The Tribunal has considered the site plan, evidence of driver Krishna Pal, the driver Krishna Pal was driving his vehicle at a moderate speed. All the light of the said vehicle in working condition. He had parked his vehicle on its correct side as the tyre of the said vehicle had busted at that point of time the driver of Tata-1109 namely the deceased came and rammed. If this fact is believe, his earlier version that he had sustained injuries because of the accident and not throwing light where he was when the accident took place. The FIR and the witness Abid has in his oral testimony opined that the truck overtook the truck which was being driven by the deceased and abruptly applied breaks this fact has not been believed by the Tribunal. The driver of the offending vehicle was arrested on the spot and he was charge-sheeted by the Police is accepted by the driver in his cross examination before the Tribunal. He did not lodge any FIR. His vehicle having been stationary due to bursting of tyre no were finds place in the FIR . In this view of the matter, both the vehicles were found near the divider has not applied breaks. The driver driving a vehicle must maintain proper distance. In view of the matter we hold both the driver equally negligence.

13. It is submitted by counsel for the appellant that the total amount awarded by the Tribunal does not carry any amount for future loss of income which  is apparent on the face of record  and requires to be interfered with as recently the Apex Court in  National Insurance Company Limited Vs.  Pranay Sethi and others, 2017 0 Supreme (SC) 1050 has held that future loss of income should be granted.

14. This takes us to the income of the deceased. The Tribunal has committed an error by considering the income of the deceased. The deceased who was driver by profession was qualified driver and his income can be said to be even if we consider bare wages in the year 2009, it would be Rs.4,500/- to which 40% will have to be added as per his age being below 50 years, out of which we would  have to deduct 1/3rd for the personal expenses of the deceased and granted multiplier of 18 as he was 23 years of age. As far as non pecuniary damages are concerned, it should be Rs.70,000/- with 10% rise every three years as per judgment of National Insurance Company Limited Vs.  Pranay Sethi and others which would be roughly calculated as Rs.1,00,000/-.

15. Hence, the total compensation payable to the appellants is computed herein below : -

i. Income : Rs.4,500/- per month

ii. Percentage towards future prospects : 40% namely Rs.1,800/- per month

iii. Total income : Rs.4,500 + Rs.1,800/- = Rs.6,300/-

iv. Income after deduction of 1/3rd = Rs.4,200/-

v. Annual income : Rs.4,200/- x 12 = Rs.50,400/-

vi. Multiplier applicable : 18

vii. Loss of dependency : Rs.50,400/- x 18 = Rs.9,07,200/-

viii. Amount under non pecuniary damages : Rs.1,00,000/-

ix. Total compensation : Rs.10,07,200 /-

16. Out of the awarded amount as we have held that deceased liable to the tune of 50% of negligence. The amount is halved.

17. In view of the above, the appeal is partly allowed. Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the additional amount within a period of 12 weeks from today without deducting TDS for which reasons are assigned herein below. The amount already deposited be deducted from the amount to be deposited.

18. 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 is not passed because applicants /claimants are neither illiterate or restic villagers.

19. 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.

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

Order Date :- 24.3.2021

Mukesh

Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1163 of 2011

Appellant :- Smt. Shaheen And Others

Respondent :- Manoj Kumar Nad Others

Counsel for Appellant :- S.D. Ojha

Counsel for Respondent :- Ashish Kumar Srivastava

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

(Ref: Civil Misc. Delay Condonation Application)

1. This is an application seeking condonation of delay in filing appeal.

2. Heard.

3. We have considered the objection of the Insurance Company which is formal in nature. The appeal has remain pending for more than ten years and, therefore, in view of the fact that there is merit in the appeal, we condoned the delay as after 2011 the matter has been listed for the first time after ten years on a note being filed. The absence of owner will not preclude us from condoning the delay and deciding the appeal. Cause shown is sufficient.

4. The appeal as remained pending at the stage of notice for a period of eleven years. The delay in filing the appeal is minimal and there was a defect of paying Court's fee. The delay is condoned. The exemption prayed for is also granted.

5. Delay in filing appeal is hereby condoned. Let appeal be registered with regular number.

6. This application, accordingly, stands allowed.

7. As we are taking the appeal for disposal, the appeal be given the same number.

Order Date :- 24.3.2021

Mukesh