Smt Sheela Devi And 3 Others vs Shri Sumit Kumar And 2 Others
2022 Latest Caselaw 1295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1080 of 2021
 

 
Appellant :- Smt Sheela Devi And 3 Others
 
Respondent :- Shri Sumit Kumar And 2 Others
 
Counsel for Appellant :- Shreesh Srivastava
 
Counsel for Respondent :- Arvind Kumar
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Shreesh Srivastava, learned counsel for the appellant, Sri Arvind Kumar, learned counsel for the respondent, none appears for the owner and perused the judgment and order impugned.

2. This appeal, at the behest of the claimants, challenges the judgment/award dated 30.3.2021 and the decree dated 3.4.2021 passed by Motor Accident Claims Tribunal/ Presiding Officer , Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.No.1014 of 2016 awarding a sum of Rs.19,77,831/- with interest at the rate of 7% as compensation.

3. The accident is not in dispute. The issue of negligence decided by the Tribunal is in dispute. The respondent has not challenged the liability imposed on them. The issues to be decided by this Court are, the quantum of compensation awarded and negligence.

4. Brief facts of the present case are that on 7.5.2016 at about 2:30 p.m, near village Gopalpur, one Magic loader vehicle bearing number U.P.-71 B-9992 was coming from Kanpur side suddenly dashed Gyan Prakash @ Gyan Prakash Uttam who driving his own car on correct side and was plying the vehicle forwards Kanpur from Jahanabad in district Fatehpur. He received several injuries from the aforesaid accident and thereafter he was taken to C.H.C. Bhitargoan there he was declared dead. He died on 7.5.2016 due to the injuries received in the aforesaid motor traffic accident.

5. It is submitted by learned counsel for the appellant that the deceased was 48 years of age at the time of accident and was in the business of dealing in Jwellery and was having his shop. His income was considered by the Tribunal to be Rs.3,58,676/- per year which according to the counsel for the appellant is on the lower side and should be considered at least Rs.4,05,994/- per year as per the income tax return of year preceding the accident or of the year when accident occurred. It is further submitted that the Tribunal has granted amount towards future loss of income of the deceased which is on lower side and should be granted in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and Rule 220(i) of U.P. Motor Vehicles Rules, 1998. It is further submitted that the amount granted under non-pecuniary damages are on the lower side requires enhancement in view of the decision of New India Assurance Company Limited Vs. Somwati and others, 2020 LawSuit ( SC) 559. Learned counsel for the appellant further submits that the ocular version of PW-2 is categorical that the road was 12'5 feet wide and, therefore, the decision of the Tribunal that the deceased had contributed 50% to the accident is bad and the facts prove otherwise.

6. Learned counsel for the appellant has heavily relied on the decisions of  (a) Oriental Insurance Company Limited Vs. Sangita and others, 2020 LawSuit(SC) 559, (b) Bajaj Allianz General Insurance Company Limited Vs. Venu Singh and others, 2016 LawSuit (All) 4465, (c) Kumari Kiran and others Vs. Sajjan Singh and others, 2014 LawSuit (SC) 827 (d) Sangita Arya and Others Vs. Oriental Insurance Company Limted and others, (2020) 5 SCC 327 and (e) New India Assurance Company Limited Vs. Somwati and others, 2020 LawSuit ( SC) 559 so as to contend that the Tribunal has misdirected itself in not considering the income tax return and decided that the deceased was earning Rs.3,58,676/- which was the mean of three years. Learned counsel has contended that the vehicle driven by the deceased was a smaller vehicle and driver of the truck has not stepped into witness box and therefore the finding of deceased being co-author of accident requires reassessment by this Court.

7. As against this, learned counsel for the Insurance Company has submitted that the award does not require any interference. The accident occurred on 7.5.2016 and the decision of the Tribunal is in consonance with twin decisions namely, Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 for multiplier and compensation is calculated as per decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and therefore the Tribunal has not committed any error in granting the non pecuniary damages. It is further submitted that the Tribunal has granted compensation considering the income tax return and has rightly taken mean of last three years for deciding the income of deceased. The learned counsel submitted that the evidence of claimants would demonstrate that the decision qua negligence does not require any interference by this Court under Section 173 of Motor Vehicles Act, 1988.

Finding On Negligence

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 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. As far as negligence is concerned, we are satisfied that the deceased has also contributed to the accident having taken place. The only question is what was the percentage of this contribution.

12. While going  through the evidence of PW-2, we find that the vehicle driven by the deceased has also crossed the white mark. However, the driver of the bigger vehicle  is suppose to take more caution is cardinal principle of law of negligence. Our findings get support from decision of Apex Court in Kumari Kiran and others ( supra). 

13. In our case, the charge sheet and FIR was laid against the driver of the other offending vehicle. The driver of the offending vehicle has not stepped into the witness box so as to testify as in what manner, the accident took place. The negligence of the deceased can be attributed 30% as the speed of the bigger vehicle was much more than the speed of car when it dashed with the vehicle driven by deceased and it pushed the vehicle behind. We are fortified in our view by the decision of this Court in Bajaj Allianz General Insurance Co.Ltd. ( supra).

14. The Apex Court in the decision of Renu Rani Shrivastava Vs. New India Assurance Company Limited, AIR (2019) 5719 while considering several decision on the issue of negligence has reconsidered the issue of negligence. In the said case the deceased was coming from K side to A side by car and lorry was coming from A to K and there was a collision between two vehicles - car was coming on its correct side. Lorry recklessly and negligently was driven by driver came on the right side of the road and dragged the car to extreme side of road. The Apex Court considered the breadth of road and decided the question of negligence.

15. In case on hand from the evidence it is clear that the car was on its correct side but was slightly on the right hand side of the road. This fact would reveal that the driver of the lorry was more negligent and collided with the car of the deceased at point "A" . Thus, we hold the driver of both the vehicles to have contributed to the accident not in equal proportionate. The driver of the car was driving the smaller vehicle . The driver of lorry was suppose to take more caution and, therefore, we modified the order of Tribunal.

Finding For Compensation :-

16. We consider the income of the deceased to be Rs.4,00,000/- per annum as per the income tax returns. It has been submitted by counsel that tax has already been deduced while calculating the income. As far as the heads of addition of future loss is concerned, the finding of Tribunal does not require any modification as addition of 25% is granted which is just and proper.

17. Heard the learned counsels for the parties and considered the factual data. This Court finds that the accident occurred on 7.5.2016 causing death of Gyan Prasad Uttam who was 48 years of age at the time of accident. The Tribunal has assessed his income to be Rs.3,58,676/- per year which according to this Court, in the year of accident, would be at least Rs.4,00,000/- per year looking to his vocation and the income tax return as per decision of Apex Court in Sangita Arya and Others ( supra) and hold that taking mean of income of three years is bad as reflected in tax returns. The income as per income tax return by increasing and hence income of last year return latter most income tax return every year has to be considered taking of average has been deprecated by Apex Court in case titled Sangita Arya and Others ( supra) which we follow. To which as the deceased was in the age bracket of 46-50, 25% of the income will have to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). The amount under non-pecuniary heads should be at least Rs.1,00,000/- in view of the decision in Pranay Sethi (Supra) as every three years 10% be added to Rs.70,000/-. In view the facts and circumstances of the case, this Court feels no interference is called for as far as deduction of personal expenses is concerned. 

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

i. Annual Income Rs.4,00,000/-

ii. Percentage towards future prospects : 25% namely Rs.1,00,000/-

iii. Total income : Rs.4,00,000/- + Rs.1,00,000/- = Rs.5,00,000/-

iv. Income after deduction of 1/3rd towards personal expenses : Rs.3,33,333/-

v. Multiplier applicable : 13

vi. Loss of dependency: Rs.3,33,333/- x 13 = Rs.43,33,329/-

vii. Amount under non pecuniary heads : Rs.1,00,000/-

viii. Total compensation :Rs.44,33,329/-.

ix.   Compensation payable to claimants after deductions of 30% negligence on the part of the deceased : Rs.44,33,329/- - Rs.13,29,999/- = Rs.31,03,330/-

19. As far as issue of rate of interest is concerned, the interest 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."

20. No other grounds are urged orally when the matter was heard. 

21. 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-Insurance Company 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.

22. 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 rustic villagers.

23. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagauri 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.

24. 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.

25. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 19 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R..

Order Date :- 18.4.2022

Mukesh