Smt. Islamunnisa vs Smt. Manni Devi And 2 Others
2021 Latest Caselaw 11084 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 37
 
Case :- FIRST APPEAL FROM ORDER No. - 3203 of 2018
 
Appellant :- Smt. Islamunnisa
 
Respondent :- Smt. Manni Devi And 2 Others
 
Counsel for Appellant :- Mohd. Asim Zulfiquar
 
Counsel for Respondent :- Sushil Kumar Mehrotra
 
With
 
Case :- FIRST APPEAL FROM ORDER No. - 3254 of 2018
 
Appellant :- Smt. Islamunnisa
 
Respondent :- Smt. Manni Devi And 2 Others
 
Counsel for Appellant :- Mohd. Asim Zulfiquar
 
Counsel for Respondent :- Sushil Kumar Mehrotra
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Mohd Asim Zulfiquar, learned counsel for the appellant, Sri Sushil Kumar Mehrotra, learned counsel for the respondent in both the appeals.

2. Both these appeals are preferred by legal heirs of the deceased which challenge the judgment and award dated 9.5.2018 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Kaushambi (hereinafter referred to as 'Tribunal') in M.A.C.P. No.57 of 2014 awarding a sum of Rs.50,29,968/- as compensation with interest at the rate of 7% for the death of Dr. Mohd. Asif, who is son of the claimant-appellant and the award dated 9.5.2018 passed by the Tribunal in M.A.C.P. No. 56 of 2014 awarding a sum of Rs.3,70,200/- as compensation with interest at the rate of 7% for the death of one Smt. Kaniza Begum, who is the daughter-in-law of claimant-appellant and wife of the deceased Dr. Mohd Asif. The appeals challenge the quantum and finding of negligence returned by the Tribunal holding the deceased doctor also a tort feasor.

3. Facts as per the claim petition are that on 10.8.2013 at about 12.00 noon when the deceased reached near Kakora, Police Station Kokhraj, District Kaushambi, one Mahendra Yadav, driver of Vehicle Trailer No. R J 14 J F 4210 rashly and negligently drove his vehicle and dashed the Figo Car (bearing Registration No. UP 70 BZ 6881) of claimant's son who along with his wife Kaniza Begum @ Zeenat Mumtaz was coming from Locality G.T.B. Nagar, Kareily City, Allahabad to his home Kajiyana Kara, Police Station Saini, District Kaushambi. On account of the accident, both of them, namely, Dr. Mohd. Asif and Kaneejz Begum succumbed to their injuries on the spot.

4. The deceased Dr. Mohd. Asif was a resident doctor in Guru Teg Bahadur Hospital and his income was Rs.41070/- +Rs.7875/-=Rs. 48,945/-. The accident is not in dispute which occurred on 10.8.2013  between two vehicles-one driven by Dr. Mohd. Asif which proved to be fatal to him and his wife who were 29 and 27 years of age respectively. Mother of Mohd. Asif and mother-in-law of Kaniza Begum @ Zeenat Mumtaz had filed the claim petitions.

5. The issue to be decided is who is to be considered to be legal representative. No one except class two heir, that is, mother-in-law has come before this Court and her claim has been accepted by the Tribunal. The Insurance Company or the owner of the other vehicle has not challenged the compensation awarded by Tribunal.

6. The counsel for appellant has contended that deduction of the amount, which was to be paid to the mother-in-law could not have been deducted as the deceased wife was not a tort feasor. It is submitted that even if this court accepts the findings of the Tribunal that deceased, who was driving the car was co-author of accident and negligent, the amount awardable to legal heir could not be deducted, this finding is error apparent on the face of the record, in view of the Judgment of Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 and that proportionate amount could not have been deducted from the amount admissible to the claimant in the said MACT.

Negligence and Compensation

7. The issue of negligence will have to be considered from the facts as adduced as one of the deceased was a non tort feasor and qua the legal heir it would be case of composite negligence and, hence, whether the Tribunal was right in deducting compensation admissible to heir/legal representative of non tort feasor has to be considered. The Apex Court in Khenyei (supra) 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.

14. 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 contributory 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]

8. This Court in these appeal has to decide the issue of contributory negligence also as the Tribunal has held one of the deceased to be co-author of the accident having taken place. As far as the issue of negligence is concerned, 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 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.

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."

[Emphasis added]

11. No doubt F.I.R. is not a substantive piece of evidence but it has to be proved by leading cogent evidence. The learned counsel for the appellant has relied on the decisions of the Apex Court titled (a) Meera Devi and another vs. HRTC and others, 2014 (2) T.A.C. 1 (S.C.); (b) National Insurance Com. Ltd. Vs. Jai Deo Singh, 2010 (80) ALR 52; (c) Oriental Insruance Compnmay Ltd. through Branch Manager Vs. Smt. Rehana Begham and others, 2009 (2) TAC 227 (All.); (d) Rajendra Singh and others Vs. National Insurance Company Limited, 2020 (3) TAC 25 (SC); and (e) Sunil Sharma and others Vs. Bachitar Singh and others, (2011) 11 SCC 425 to submit that deceased was not a tort feassor and the finding needs to be reversed. These decisions are also relied to contend that compensation requires revaluation.

12. The vehicles involved are trailer and the car. Site plan goes to show that the vehicle of unequivocal magnitude dashed with each other. The Tribunal came to the conclusion and based its decision on the basis of site plan that the accident occurred in the middle road. Unfortunately, the driver of the trailer has not examined himself. The charge sheet was laid against him. The F.I.R., site plan and other facts have been considered by us. While considering the totality of the facts and circumstances, the driver of Trailer RJ 14 GF 4210 can be said to be negligent and we hold him to be negligent to the tune of 75% as the accident occurred at about 12 noon just because in the F.I.R., it was mentioned that the trailer was coming from the opposite side, the Tribunal believed this aspect. There is no rebuttal to the F.I.R. Relevant part of the Judgment reads as under:-

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13. Hence, 25 per cent will have to be deducted from the amount payable to the mother and brothers of the deceased, who are the claimants in F.A.F.O. No. 3203 of 2018.

Compensation in both appeals

14. Submission of the counsel for the appellant that the Tribunal has deducted several amounts from income of the deceased and has deducted amount which could not have been deducted, namely, HRA and other benefits. The Tribunal , unfortunately, did not grant any amount under the head of future loss of income though the deceased was in service.

15. The House Rent Allowance received by deceased could not have been deducted. We are supported in view of the Vimal Kanwar and others Vs. Kishore Dan and Others, 2013 (3) T.A.C. 6 (S.C.). Though the Tribunal has referred to the decision of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 for granting multiplier. It has not granted future loss. The income of deceased Dr. Mohd. Asif is considered to be Rs.60,885 per month as per Tribunal but his income would be Rs.41,070/- + Rs.7,875/- (HRA) = Rs.48,945/-. The Tribunal deducted income tax, HRA and other allowances which could not be done. The Tribunal has not added any amount of future loss of income through deceased was in Government Job. As the deceased was below 40 years, 50% will have to be added towards future prospect. Deducted towards his personal expenses would be 1/3rd. Further as he was aged 29 years at the time of accident, multiplier applicable would be 17. Deduction of 25% would be towards negligence attributed to him. The amount awarded under the head of non pecuniary damages for fililal consortium is also on lower side which requires ehnancement.

Hence, the total compensation payable to the appellant in view of the Judgment of Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 for death of Dr. Mohd. Asif is computed herein below:

i. Income Rs.48,945/- (after deduction Income Tax and Transport Allowance)

ii. Percentage towards future prospects : 50% namely Rs.24472/-

iii. Total income : Rs. 48945 + 24472 = Rs.73,417/-

iv. Income after deduction of 1/2 : Rs.36,708/-

v. Annual income : Rs.36,708 x 12 = Rs.4,40,496/-

vi. Multiplier applicable : 17

vii. Loss of dependency: Rs.4,40,496 x 17 = Rs.74,88,432/-

viii. Amount under non-pecuniary head : Rs.40,000/-

ix. Total compensation : Rs.75,28,432/-

Total compensation payable to the appellant after deduction 25% would be Rs.56,46,324/-

16. As far as the second appeal for enhancement of compensation for death of daughter-in-law is concerned, income of Kaniza Begum @ Zeenat Mumtaz can be considered to be Rs.5,000/- to which as she was aged 27 years, 40% will have to be added under the head of future prospect as she was home maker. Further 1/2 has to be deducted towards personal expenses as she had no liability to maintain her husband who was doctor by profession. Multiplier applicable would be 17. Rs.30,000/- is gratned towards non-pecuniary damages to the appellant.

Hence, the total compensation payable to the appellant in view of Pranay Sethi (supra) for death of Kaniz Begum @ Zeenat Mumtaz is computed herein below:

i. Income Rs.5,000/-

ii. Percentage towards future prospects : 40% namely Rs.2000/-

iii. Total income : Rs. 5,000 + 2,000 = Rs.7,000/-

iv. Income after deduction of 1/2 : Rs. 3,500/-

v. Annual income : Rs.3,500 x 12 = Rs.42,000/-

vi. Multiplier applicable : 17

vii. Loss of dependency: Rs.42,000 x 17 = Rs.7,14,000/-

viii. Amount under non-pecuniary head : Rs.30,000/-

ix. Total compensation : Rs.7,44,000/-

Total compensation payable to the appellant after deduction 25% would be Rs.5,58,000/-.

Reason why 25% is deducted

17. In fact the deceased was not a tort feasor. The heirs can claim from any of the tort feasors. The mother-in-law is the legal heir rather mother of the deceased who is held to be negligent to the tune of 25% and as recovery rights would have to be granted to the owner driver and Insurance Company of trailer. It would be practical to deduct. The amount as recovery has to be from the petitioner as the deceased was owner and driver of other vehicle involved.

18. As far as issue of rate of interest is concerned, rate of interest as granted by the Tribunal is maintained.

19. Looking to the old age of the claimaint-appellant amounts not to be kept in fixed deposit as accident occurred in the year 2013 and we are now in the year 2021.

20. In view of the above, the appeals are partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7% 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.

21. On depositing the amount in the Registry of Tribunal 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 be made or not made as applicant is aged lady of 70 years.

22. Record and proceedings be sent to the Tribunal.

23. We are thankful to both the counsels for getting the old matter disposed of.

Order Date :- 14.9.2021

Ram Murti