Smt. Vinita Kesarwani And Others vs The Oriental Insurance Co. Ltd. ...
2022 Latest Caselaw 240 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 316 of 2012
 
Appellant :- Smt. Vinita Kesarwani And Others
 
Respondent :- The Oriental Insurance Co. Ltd. And Another
 
Counsel for Appellant :- Neerja Singh,Sharve Singh
 
Counsel for Respondent :- ,Ashok Kumar Jaiswal,S.N.Mishra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

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

1. Heard Sri Sharve Singh, learned counsel for the appellants and Sri Siddarth Jaiswal, learned Advocate appearing Sri Ashok Kumar Jaiswal, learned counsel for the respondent.

2. This appeal, at the behest of the claimants, challenges the judgment and award dated 27.9.2011 passed by Motor Accident Claims Tribunal/Special Judge, (SC/ST Act), Allahabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 292 of 1998 awarding a sum of Rs.3,09,500/-.

3. Brief facts of the case are on the intervening night of 7/8.3.1998 at 00.30 am. on Allahabad-Kanpur Road near Chauphatka which lies within the jurisdiction of Police Station Cantt, Allahabad, the truck bearing No.MP17A/0066, which was being driven rashly and negligently dashed the Maruti Car No.UGV-4647 from opposite direction causing instantaneous death of Vinod Kumar Kesarwani who was driving the Maruti Car.

4. Deceased- Vinod Kumar Kesarwani was 39 years of the age at the time of accident, was doing wholesale trading in fruits and was earning Rs.20,000/- per month. The deceased was survived by his widow, two minor children and mother. The Tribunal has considered his income to be Rs.5,000/- per month, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 15, granted Rs.9,500/- under non-pecuniary heads and ultimately assessed the total compensation to be Rs.6,00,000/-. The Tribunal held the deceased-who was driving the Car negligent to the tune of 50% and apportioned the amount of compensation to the tune of 50%. The claimants were therefore granted amount of Rs.3,00,000/- plus Rs. 9,500/- as compensation.

5. It is submitted by learned counsel for the appellants that the Tribunal has fallen in error in holding the deceased negligent to the tune of 50%. It is submitted that the Tribunal has failed to consider the evidence on record which proves that the accident in question was caused due to rash and negligent driving of the driver of Truck No.MP-17A-0066 and that the Tribunal has failed to consider the pleadings as well as evidence which clearly establish that the deceased was driving car carefully and cautiously.

6. It is further submitted by learned counsel for the appellants that Tribunal did not grant any amount for future loss of income of the deceased and also the amount awarded under non-pecuniary heads granted by the Tribunal is on the lower side and should be enhanced in view of the the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105. Lastly, learned counsel for the appellant has submitted that the Tribunal has not granted interest on the compensation which is bad in the eye of law.

7. As against this, Sri Siddarth Jaiswal, learned counsel for the respondent-Insurance Company submits that as far as the issue of negligence is concerned, the Tribunal has rightly held the deceased negligent to the tune of 50% as there is head on collision and therefore, it cannot be said that the driver of the truck was solely negligent.

8. It is further submitted by learned counsel for the respondent that the quantum of compensation and non-grant of interest by the Tribunal is just and proper and does not call for any interference by this Court.

9. Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.

10. 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 though it 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.

11. The principle of contributory negligence has been discussed time and again. A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.

12. 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

13. A similar view has been taken by the Apex Court in Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 wherein the finding of the Tribunal was upheld by adverting to the same more particularly the Apex Court has upheld the finding in paragraph 21 to 27 in its judgment. The paragraph 5 of the said Apex Court's judgment is reproduced hereinbelow:

"5.The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidence, including the site map (Ext. P-45) produced on record along with charge-sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered Issue 1 against the respondents in the following words:

"21. Our own Hon'ble High Court in a case captioned Lakhu Singh v. Uday Singh [Lakhu Singh v. Uday Singh, 2007 SCC OnLine P&H 865 : PLR (2007) 4 P&H 507] held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata v. Satbir [Kusum Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2 SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2 RCR (Civil) 379] the Hon'ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

22. After considering the submissions made by both the parties, I find that PW 7 Sohan Lal eyewitness to the occurrence has specifically stated in his affidavit Ext. PW 7/A tendered in his evidence that on 15-12-2011 at about 20.30 p.m. he along with PHG Ajit Singh was present near Sanjha Chulha Dhaba on the National Highway leading to Jammu. All the traffic of road was diverted on the eastern side of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bearing No. HR 02 K 0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car could not spot the parked tanker due to the flashlights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or parking lights.

23. The statement of this witness clearly establishes that this was the sole negligence on the part of the driver of the Gas Tanker especially when the accident was caused on 15-12-2011 that too at about 10.30 p.m. which is generally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreover, as per Rule 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road.

24. The arguments of the learned counsel for the respondent that PW 7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 ft from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so Respondent 1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the Gas Tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flashlights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in night-time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held inGinni Devi case [Ginni Devi v. Union of India, 2007 SCC OnLine P&H 126 : 2008 ACJ 1572] , Mohan Lal case [New India Assurance Co. Ltd. v. Mohan Lal, 2006 SCC OnLine All 459 : (2007) 1 ACC 785 (All)] . It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the backside of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of the learned counsel for Respondent 3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Harbans Kaur case [New India Assurance Co. Ltd. v. Harbans Kaur, 2010 SCC OnLine P&H 7441 : (2010) 4 PLR 422 (P&H)] and T.M. Chayapathi case [New India Assurance Co. Ltd. v. T.M. Chayapathi, 2004 SCC OnLine AP 484 : (2005) 4 ACC 61] is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the present case. Likewise, non-examination of minor children of the age of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eyewitness to the occurrence has proved the accident having been caused by the negligence of Respondent 1 driver of the offending vehicle.

25. Moreover, in Girdhari Lal v. Radhey Shyam [Girdhari Lal v. Radhey Shyam, 1993 SCC OnLine P&H 194 : PLR (1993) 104 P&H 109] , Sudama Devi v. Kewal Ram [Sudama Devi v.Kewal Ram, 2007 SCC OnLine P&H 1208 : PLR (2008) 149 P&H 444] andPazhaniammal case [New India Assurance Co. Ltd. v. Pazhaniammal, 2011 SCC OnLine Ker 1881 : 2012 ACJ 1370] our own Hon'ble High Court has held that ''it is, prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.'

26. Moreover, Respondent 1 driver of the offending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am inclined to draw an adverse inference against Respondent 1. In this context, I draw support from a judgment of the Hon'ble Punjab & Haryana High Court reported asBhagwani Devi v. Krishan Kumar Saini[Bhagwani Devi v. Krishan Kumar Saini, 1986 SCC OnLine P&H 274 : 1986 ACJ 331] . Moreover, Respondent 1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that Respondent 1 has been falsely implicated in this case.

27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by Respondent 1 by parking the offending vehicle bearing No. HR 02 AF 8590 in the middle of the road in a negligent manner wherein Vinod Saini and Smt Mamta Saini have died and claimants Archit Saini and Gauri Saini have received injuries on their person. Shri Vinod Saini, deceased who was driving ill-fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in favour of claimants."

(emphasis supplied)"

14. As there was a head on collision between car and the truck, we are unable to accept the submission of the learned counsel for the appellant that the Tribunal should not have considered the negligence of the deceased to the tune of 50%. We are in agreement with the submission made by Sri Jaiswal and on the basis of material on record, negligence as considered by the Tribunal is just and proper.

15. This takes this Court to the issue of compensation. As far as income of the deceased is concerned, the Tribunal has not considered the Income Tax Returns. The balance sheets of income and audit report for the year 1994-95, 95-96, 96-97 & 97-98 were before the Tribunal and have also been shown to us by the counsel for the appellant as the record is not before us and as there are conciliation going on so that the Insurance Company may not be saddled with heavy interest. We have perused the record which shows his income was in the Income Tax Return to be Rs.1,20,000/- who are shown to be propriety of M/s Sailesh Kumar Sushil Kumar & Company and therefore the finding of the Tribunal that what was the share of the deceased in the income of the firm, is bad and cannot stand the scrutiny of this Court. Hence, the income of the deceased would be considered to be Rs.1,20,000/- per annum.

16. As far as future loss of income is concerned, learned counsel for the appellant has submitted that 40% should be added towards future loss of income of the deceased. As against this, learned counsel for the respondent states that as per postmortem report, the deceased was 40 years of age, hence, even if this Court considers the judgment in Pranay Sethi (Supra), addition towards future loss of income would be 25%.

17. In Pranay Sethi (Supra), the words used are 'below 40 years' and unless it is clarified that the deceased was below 40 years, addition of 40% is not possible. Hence, we accept the submission of learned counsel for the respondent and hold that 25% should be added in the income to the deceased towards future loss. Deduction of 1/3rd towards personal expenses and multiplier of 15 granted by the Tribunal are just and proper.

18. As far as the amount under the head of non-pecuniary damages is concerned, the accident took place in the year 1998, the deceased was survived by two minor children and widow, we award Rs.50,000/- to the widow and Rs.40,000/- each to the minor children who have lost their father at a very tender age.

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

i. Annual Income Rs.1,20,000/-

ii. Percentage towards future prospects : 25% namely Rs.30,000/-

iii. Total income : Rs. 1,20,000 + 30,000 = Rs.1,50,000/-

iv. Income after deduction of 1/3rd : Rs.1,00,000/-

vi. Multiplier applicable : 15

vii. Loss of dependency: Rs.1,00,000 x 15 = Rs.15,00,000/-

viii. Amount under non-pecuniary head : 50,000 + 40,000 + 40,000 = Rs.1,30,000/-

ix. Total compensation : 16,30,000/-

x. Compensation payable to claimants after deductions of 50% negligence on the part of the deceased : 8,15,000/-

20. As far as issue of rate of interest is concerned, it should be 3% from the date of filing of the claim petition till the amount if deposited and till then 6% if the same has not been paid along with interest within 12 weeks from today. The amount already deposited be deducted from the amount to be deposited.

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

22. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent.

23. 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 be passed by Tribunal..

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

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

26. 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 long time has elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

Order Date :- 1.4.2022

DKS/Irshad