Prem Chandra Sharma And Others vs Sri Munna Verma And Another
2022 Latest Caselaw 1797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 19.4.2022
 
Delivered on 29.4.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. 3211 of 2005
 
Appellant :- Prem Chandra Sharma And Others
 
Respondent :- Sri Munna Verma And Another
 
Counsel for Appellant :- Sudhir Dixit
 
Counsel for Respondent :- Hasan Abbas
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.9.2005 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.11, Aligarh (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 125 of 2004, by which claim petition of the appellants was dismissed by the Tribunal.

2. The brief facts are that the claim petition was filed with averments that on 28.4.2003 at 1:30 a.m. (night). The deceased Yatendra Kumar Sharma alias Jeetu was coming by his motorcycle, bearing no.UP81K-2865, from Hathras to Agra after attending the marriage function. When he reached near village Ujarai, Police Station Khandauli, District Agra, his motorcycle got disbalanced due to dazzling effect of light of the vehicle coming from opposite side and the motorcycle dashed into a stationary truck, bearing no.RJ-5-G-1812, which was parked on the road due to being out of order. There were bricks in the truck. In this incident, the deceased sustained fatal injuries and died on the spot.

3. Learned Tribunal held that in the aforesaid accident, the deceased was sole negligent and there was no negligence of truck driver and with this observation the claim petition was dismissed.

4. Heard Sri Sudhir Dixit for the appellants ad learned Counsel for Insurance company.

5. Learned Counsel for the appellants submitted that the truck was parked on the road. Indicators or parking lights of the truck were not on nor there was any red cloth behind the truck. Learned Counsel has also submitted that no bricks or stones were placed around the truck so the deceased could not see in the dark night that the truck was parked on the road and due to dazzling effect of the vehicle coming from opposite direction, the deceased was not in a position to see the stationary truck and his motorcycle dashed into the truck. Learned Counsel submitted that there was clear negligence on the part of driver of the truck because if the truck was out of order, its driver who has taken all care and precautions so that the other passenger or vehicle from the road could not be endangered. Learned Tribunal has taken a wrong approach in holding that it was sole negligence of the decision.

6. Learned counsel for the appellants relied on the judgment of Karnataka High Court titled Shri Ram General Insurance Company Ltd. Vs. Pushpa and others, 2019 Law Suit (Kar) 2601.

7. As far as issue of contributory negligence is concerned as alleged by the appellant, we will have to consider the principles for deciding the negligence. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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 ACJ (SC) 1840).

13. 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.

14. Learned Counsel for the Insurance company vehemently objected the submissions made by the appellants and submitted that the deceased was driving motorcycle at a very high speed. It was dark night and deceased could very easily see the stationary truck in the head-light of his motorcycle but the deceased was driving so rashly and at a high speed that he dashed into the truck. It is further submitted that learned Tribunal has rightly held that the deceased lost control over his motorcycle due to high speed and he was not in a position to see the truck from a long distance in the head-light of his motorcycle, hence, there is no illegality or infirmity in the impugned judgment which calls for any interference by this Court.

15. A perusal of the record shows that PW2 - Pushpendra Kumar Sharma was pillion rider on the motorcycle of the deceased at the time of accident. He was examined by the Tribunal in which he has clearly deposed that at the time of accident, it was dark on the road. No indicator of the truck was on and there was no red cloth behind the truck to warn the other vehicles. It is also deposed that no bricks were placed at the side of the truck. The learned Tribunal has not believed the evidence of PW2 and held that his presence on the spot was doubtful but it remains the fact that the truck driver has not stepped into the witness box to rebut the evidence of eye witness PW2. Now, the question comes as to who are negligent or responsible for the accident in question.

16. We have to examine the issue of negligence with regard to principles of strict liability imposed on the driver of truck, who parked the vehicle on the road particularly in a place where the vehicle was not supposed to be parked. The Division Bench of Karnataka High Court has examined this issue in Claim Manager, Shriram General Insurance Company Limited Vs. Pushpa and others, 2019 LawSuit (Kar) 2601 in which they have referred the judgment of Karnataka High Court in M.F.A. No.24179 of 2012, decided on 28.3.2019. The relevant portion of the said judgment reads as under:-

"94. Section 122 of the Motor Vehicles Act, 1988 deals with leaving vehicles in dangerous position. It states that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. The owner of the vehicle has the right to drive the vehicle on the road and also the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passers-by or passengers. This is a restriction on the road to park the vehicle. The aforesaid restriction on the road to park a vehicle is a reasonable restriction and emanates from a duty to take care. In Kumari Jyothi & Others vs. Mohd. Usman Ali & Others, [ILR 2002 KAR 893] (Kumari Jyothi), a Co-ordinate Bench of this Court found that the lorry in the said case was parked in the middle of NH9 with a full load of sugarcane with no signs or indicators with regard to parking of the lorry on the road; that, normally, when any vehicle had to be parked on account of break down, at least some stones would be kept around the vehicle to give some signal or warning to others. In the said case, that was not done and that there were also well grown trees and it was difficult to see the parked lorry. Referring to Section 122 of the Act, the Division Bench held that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for the other road users. That the Tribunal therein was not justified in placing the blame to an extent of 50% each on the driver of the lorry and the motorcyclist and that the driver of the lorry was solely negligent."

17. In Premlata Nilamchand Sharma Vs. Hirabhai Ranchhodbhai Patel, 1983 ACJ 290 (Gujarat High Court) and in Pushpa Ran Ghopra Vs. Anokha Singh, 1975 ACJ 396, the Delhi High Court have held that where the place was dark and the vehicle was parked without any sign or indication to warn other road users, negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes any such parked vehicle.

18. In our case, it has come in evidence that front portion of the stationary truck was towards Agra and the deceased was also going on towards Agra, it means that both vehicles were proceeding on the left side of the road. It may be assumed that in the context of Highway person travelling could proceed at a faster face than in a city r town unless there is a traffic restriction or other instruction to slow down. Hence, any vehicle, which is parked on the Highway without any sign or indication with regard to its parking, must take care regarding the parking of the vehicle so that it does not cause any obstruction to other passengers on the Highway.

19. The driver of the stationary truck has not stepped into the witness box. Hence, there is no evidence on the part of the owner or Insurance company that the driver of the truck took all the precautions for other road users to avoid any accident because the burden of proving the aforesaid precautions must be held to be account one, who seeks to avoid liability arising from the accident with such vehicle.

20. Section 122 of the Motor Vehicles Act, 1988, provides as under:-

"122. Leaving vehicle in dangerous position.--No person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers."

21. Hence, the aforesaid provisions of the Motor Vehicles Act casts the duty on the driver of a stationary vehicle on a public place so as not to cause any danger, obstruction or undue inconvenience to the users of public place and also to the other passengers. Further, Section 126 of the aforesaid Act provides for the precautions to be taken by the stationary vehicles but in our case there is no such evidence on the part of the owner of the truck or Insurance company that no precautions were filed by the driver of the truck, who avoid any accident due to its stationary position on the road because there is no rebuttal of the evidence of eye witness-PW2 that no parking light of the truck were on nor any other signs were on the road by placing the bricks to warn other passengers on the road. At the cost of repetition, we emphasize that the truck was parked towards the left side of the road and the motor cycle of the deceased was also proceedings towards the left side of the road and it hit the truck from behind but we are aware of the fact that it was dark night and the deceased could see the brick object lying in the truck from a certain distance in the head-light of the motor cycle it it would have been driven at a normal or moderate speed. The dashing of the motor cycle into the stationary truck from behind shows that the deceased was driving motor vehicle at a high speed and in spite of seeing the truck in the head-light of the motorcycle, as it could have been, he was not in a position to stop the motorcycle or save the accident. This fact goes to show that motorcyclist was driving the vehicle and could not control the speed and dashed with truck.

22. On the basis of the above discussion, we reach to the conclusion that both the drivers of the vehicles i.e. truck and motorcycle were equally negligent and responsible for the accident in question. Hence, we hold the driver of the truck and the deceased to be negligent to the tune of 50% each.

23. The concept of negligence as propounded above would show that the motorcyclist ramped into the truck which was stationary but without any light/indicator was parked in the middle of the road. It can be safely said that the deceased has also contributed to the accident having taken place. No doubt at night on the road if a truck stationed without any side light in the light of the fact that the driver of the said motorcycle must also be driving the motorcycle not at a moderate speed and, therefore, his negligence is considered to be equal. He cannot be said to have totally authored the accident. We are supported in our view from the factual data as it has emerged on record and, therefore, we upturn the finding of the Tribunal which has held the driver deceased is solely negligible are not germane to the fact as being merged. On appreciation of the materials on record, the cause of accident was combined negligence of both the drivers. The driver of the truck parked the truck on the middle of the road without any side light. The driver of the motorcycle dashed from behind and, therefore, his negligence is also equivalent to that of the driver of the truck. One more fact which goes in favour of the claimants is that the driver of the truck has not stepped into witness box. The principles of Res Ipsa Loquitur as propounded by the Madras High Court in Reliance General Insurance Company Limited Vs. Subbulakshmi and others, C.M.A. No.1482 of 2017 and CMP No.7919 of 2017 (CMA Sr. No.76893 of 2016), will also enure for the benefit of the appellants.

24. As far as the question of quantum of compensation is concerned, it is the accident of the year 2003 hence we do not want to relegate the matter to the Tribunal to assess the compensation because 19 years have already elapsed and the record is before this Court. Hence in the light of the judgment in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748 and Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768, we proceed to decide the quantum.

25. A perusal of record shows that as per claim petition the age of the deceased was 21 years and he was working with a doctor as a compounder. His income is shown Rs. 3,000/- per month in the claim petition. Moreover, the aforesaid doctor is examined on oath before the Tribunal as PW2 namely Dr. Sanjay Bhargav. He has deposed in his testimony that the deceased was working in his hospital as a compounder and he was being paid at the rate of Rs.3,000/- per month. There is no rebuttal of the evidence by the respondents. Hence, we hold the income of the deceased at Rs.3,000/- per month. The age of the deceased was below 40 years, hence as per the judgment of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105, 40% would be added for future loss of income because he was in permanent job. As per the judgment of Munna Lal Jain and another Vs. Vipin Kumar Sharma and others, 2015 (4) AWC 3845 (SC), 1/2 shall be deducted for personal expenses of the deceased because he was un married. In the light of the aforesaid judgments, multiplier shall be applied according to age of the deceased hence as per the judgment of Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, multiplier of 18 would be applied keeping in view his 21 years of age. As per the directions of Pranay Sethi (supra), the claimant would be entitled to get Rs. 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses. Father and mother of the deceased would also get Rs. 40,000/- each for loss of love and affection.

26. On the basis of the above discussion, the amount of compensation is computed herein below:

i. Income Rs.3,000/-

ii. Percentage towards future prospects : 40% namely Rs. 1,200/-

iii. Total income : Rs. 3000 + 1200 = Rs. 4200/-

iv. Income after deduction of 1/2 : Rs. 2100/-

v. Annual income : Rs.2100 x 12 = Rs.25,200/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.25,200 x 18 = Rs. 4,53,600/-

viii. Amount under non pecuniary heads : Rs.70,000/-

ix. Total compensation : Rs. 5,23,600/-

x. Amount after deduction of 50% for contributory negligence : Rs. 2,61,800/-.

The father and mother of the deceased shall get equal amount of compensation.

27. 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."

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

29. 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.

30. 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 with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited within a period of 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.

31. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein.

32. This Court is thankful to both the counsels to see that this very old matter is disposed of.

Order Date :- 29.4.2022

Irshad