Desh Kuamr @ Desh Raj Nagariya And ... vs Vinod Khatri And Another
2021 Latest Caselaw 11092 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2895 of 2008
 

 
Appellant :- Desh Kuamr @ Desh Raj Nagariya (since deceased)
 
1/1. Navneet Nagariya and another
 
Respondent :- Vinod Khatri And Another
 
Counsel for Appellant :- Ramanand Gupta,Maithali Sharan Pipersenia,P.N. Gupta
 
Counsel for Respondent :- Archana Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

(Ref: Civil Misc. Delay Condonation Application)

This is an application seeking condonation of delay in filing the substitution application

Cause shown is sufficient.

Delay condoned.

This application, accordingly, stands allowed.

Order Date:- 15.9.2021/PS

Case :- FIRST APPEAL FROM ORDER No. - 2895 of 2008

Appellant :- Desh Kuamr @ Desh Raj Nagariya (since deceased)

1/1. Navneet Nagariya and another

Respondent :- Vinod Khatri And Another

Counsel for Appellant :- Ramanand Gupta,Maithali Sharan Pipersenia,P.N. Gupta

Counsel for Respondent :- Archana Singh

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

Substitution application is allowed. Substitution be carried out within one week.

Order Date:- 15.9.2021/PS

Case :- FIRST APPEAL FROM ORDER No. - 2895 of 2008

Appellant :- Desh Kuamr @ Desh Raj Nagariya (since deceased)

1/1. Navneet Nagariya and another

Respondent :- Vinod Khatri And Another

Counsel for Appellant :- Ramanand Gupta,Maithali Sharan Pipersenia,P.N. Gupta

Counsel for Respondent :- Archana Singh

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Subhash Chand,J.

1. Heard Sri Maithali Sharan Pipersenia, learned counsel for the appellant and Ms Majima Singh holding brief of Ms Archana Singh, learned counsel for the respondents.

2. This appeal, at the behest of the claimants, challenges the judgment/award dated 25.01.2005 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Jhansi (hereinafter referred to as 'Tribunal') in M.A.C. No. 433 of 2003.

3. Brief facts as culled out from the record are that on 27.04.2003 Dr. Himanshu Nagaria had gone to Hotel Isha Garden situated at Bhedaghat road, Jabalpur for dinner with his friends. When he was returning to Medical College where he was living, near Krishi Upaj Mandi Naka Balsagar a Metador bearing no. M.P. 20 G-1248 was negligently all of sudden stopped by his driver and back light was also switched off due to which motor-cycle of Dr. Himanshu Nagaria bearing No. U.P.-93 D-2391 dashed with the standing Metador causing grievous injuries to Dr. Himanshu Nagaria and on the way to Medical College he succumbed to his injuries.

4. The deceased was 25 years of age at the time of accident. He was a doctor by profession and was pursuing M.D in pediatric and was getting Rs.10,600/- as a stipend. He was survived by his father (since deceased) and in his place his another son namely 1/1. Navnit Nagaria has been substituted vide Court's order dated 15.09.2021 and the mother (who is appellant no. 2). The Tribunal has considered his income to be Rs. 15,000/-p.m, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 12, granted Rs.10,000/- towards compensation for loss of love and affection, granted Rs,. 15,000/- for compensation for loss of estate, granted Rs. 2,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs.14,72,000/-.

5. Learned counsel for the appellant has submitted that the deceased Himanshu Nagaria was 25 years was a doctor and doing his M.D in pediatrics and getting Rs. 10,600/- p.m as stipend. The learned counsel for the appellant contends that he was below the age of 40 years, the tribunal should have added 50% to his income which is erroneous as it has not added any amount. He has further submitted that he was survived by his father and mother and therefore, the deduction as per the judgements of Sarla Verma and Pranay Shetty and even in those days should be 1/4th and not 1/3rd. It is submitted by him that amount of non pecuniary of Rs. 27,000/- requires to be enhanced.

6. As against this, Ms Majima Singh, advocate appearing for Ms. Archana Singh, learned counsel for the respondents contends that deduction of 1/3rd from personal expenses is not just and proper, it should be 1/2nd.

7. Having heard the learned counsel for the parties, income of the deceased considered by tribunal is Rs. 15,000/- per month as it has been rightly pointed out by Ms Majima Singh, counsel appearing for Ms Archana Singh, counsel for the respondents that record shows that the Tribunal has been more lenient in deciding the income of the deceased as the stipend paid to the deceased was Rs. 10,600/- p.m. We are convinced that the deceased was in his second year of M.D in pediatrics and therefore his personal income can be considered to be Rs. 20,000/- p.m in light of recent decisions. Let us consider the negligence from the perspective of the law laid down.

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.

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. 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.

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

12. The latest decision of the Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 Law Suit (SC) 469 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 and the impact of accident upon the victim could have been minimised if he had taken care. In this case the deceased was not the author or the co-author of the accident. Hence, the oral prayer that deduction of 50% from the compensation be made is rejected.

13. This takes this Court to the issue of compensation. We would place reliance on the Apex court decision in Malarvizhi & Ors Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228 and United India Insurance Co. Ltd. Vs. Indiro0 Devi & Ors, 2018 (7) SCC 715. and in The Oriental Insurance Company Ltd. Vs. Mangey Ram and others, 2019 0 Supreme (All) 1067 and the recent judgment of the Apex Court in New India Assurance Company Vs. Urmila Shukla decided by the Apex Court on 6.8.2021 reported in MANU/SCOR/24098/2021 and Kirti and others vs oriental insurance company ltd reported in 2021(1) TAC 1It could not be culled out from record that on what basis, the Tribunal has deducted the pecuniary benefits from the income cannot be fathomed. The income of the deceased in the year of accident and looking to his profession can be considered to be Rs.20,000/- per month as the deceased is below 50 years, 40% as future loss of income requires to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). As far as amount under the head of non-pecuniary damages are concerned, it should be Rs.70,000/- + 10% increase as per the decision of the Apex Court in Pranay Sethi (Supra) as three years have elapsed hence, the lump sum amount under this head would be Rs.1,00,000/-. As far as multiplier is concerned, it is 18 as the deceased was in the age bracket of 21 to 25..

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

i. Income Rs.20,000/-

ii. Percentage towards future prospects : (40%) Rs.8000/-

iii.Total income : Rs. 20,000 + 8,000= Rs.28,000/-

iv. Income after deduction of 1/2 : Rs. 14,000/-

v. Annual income : Rs. 14,000 x 12 = Rs.1,68,000/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.1,68,000 x 18 = Rs.30,24,000/-

viii. Amount under non-pecuniary head= 70,000/-Plus Rs 30,000/as per pranay sethi (supra) = 1,00,000/-

ix. Total compensation :RS: 31,24,000/-

15. As far as issue of rate of interest is concerned, we are convinced that though the delay was only of 62 days, the matter remain pending for three years . In light of the judgment of Apex Court reported in AIR 2021 SC 3301, we restrain the interest of these three years to 4 %, rest it will remain 6% enhanced to 7% from the date of filing of the petition till the judgment.

16. In view of the above, the appeal is partly allowed. Oral cross objections are allowed and compensation is recalculated. Judgment and award 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. The Insurance Company will deposit the entire amount can have their right to recover the amount from owner and the Insurance Company of the other vehicle. As far as deceased is concerned, it is a case of composite negligence, hence, the amount cannot be deducted from the compensation awarded to the claimants who are the heirs of a non tort-feasor.

17. 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 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) 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.

18. Record be sent back to tribunal forthwith.

19. This Court is thankful to both the learned Advocates for getting this matter disposed of during this pandemic.

Order Date :- 15.9.2021/PS