Smt. Sunita Khera And 2 Others vs Jabbar And Anr.
2022 Latest Caselaw 8814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1481 of 2016
 

 
Appellant :- Smt. Sunita Khera And 2 Others
 
Respondent :- Jabbar And Anr.
 
Counsel for Appellant :- Avinash Pandey
 
Counsel for Respondent :- Aditya Singh Parihar
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred against the judgment and award dated 26.05.2012 passed by Motor Accident Claims Tribunal, Court No.9, Saharanpur (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 210 of 2010 (Smt. Sunita Khera and Others Vs. Jabbar and another), by which the learned Tribunal has awarded a sum of Rs.12,01,985/- with 6% per annum simple rate of interest. Learned Tribunal also held contributory negligence to the tune of 50% of each of the drivers, involved in the accident.

2. Brief facts as culled out from the record are that a claim petition was filed by appellants-claimants on account of death of Ram Kumar Khera with the averments that on 10.05.2010, the deceased was going on motorcycle No. UP 11B 9754, driving himself, at a moderate speed from Saharanpur to his house Yamunanagar. At about 7:00 pm when he reached near Bajaj Agency from Sarsawa, a truck Tata 407 bearing No.11 T 1174 came from opposite direction. This truck was being driven rashly and negligently and at a high speed by its driver. The truck driver hit the motorcycle of the deceased after coming from the wrong side in order to overtake a three wheeler. In this accident, Ram Kumar Khera sustained serious injuries. He was admitted to District Hospital, Saharanpur, where he was declared dead by the doctor. The age of the deceased was 39-40 years and he was working in Punjab National Bank as Head Cashier.

3. Heard Shri Avinash Pandey, learned counsel for the appellants-claimants and Shri Aditya Singh Parihar, learned counsel for the Insurance Company-respondent. Perused the record.

4. Learned counsel for the appellants-claimants has submitted that learned Tribunal has held that drivers of truck and motorcycle were guilty of 50% contributory negligence. Learned counsel submitted that this finding of learned Tribunal cannot be sustained because there is no evidence on record with regard to the fact that the deceased was also co-author of the accident. Plea of the contributory negligence, taken by the insurance company, is not proved. It is further submitted that at the time of accident, the truck driver was driving at a high speed and in order to overtake a three wheeler, the truck came from wrong side and hit the motorcycle of the deceased. In this way, the truck driver was solely negligent but learned Tribunal erroneously held the deceased also negligent to the tune of 50% while there is no basis on which the learned Tribunal has fixed the percentage of the negligence.

5. Learned counsel for the appellants-claimants next submitted that learned Tribunal has not calculated the amount of compensation in a right way because the deceased was serving in Punjab National Bank as a Head Cashier and at the time of his death in an accident his income was nearly Rs.35,000/- per annum but learned Tribunal has assessed the income on lower side. Learned counsel for the appellants also submitted that the income of the deceased is proved by witness PW6 but his testimony was wrongly disbelieved by the Tribunal. It is also submitted that learned Tribunal has not awarded any sum towards future loss of income and no reason for it is assigned in the impugned judgement. It is next submitted that non-pecuniary damages, awarded by the Tribunal, are on lower side and not in consonance with the settled law.

6. Per contra, learned counsel for the insurance company submitted that learned Tribunal has rightly held the deceased guilty of contributory negligence to the tune of 50% because it is proved on record that both the vehicles i.e. truck and motorcycle met with accident in the middle of road from opposite direction. In fact, it was head-on collision. Learned counsel vehemently argued that the truck driver is examined by insurance company as DW1 and the driver has deposed that at the time of accident, the deceased was coming from opposite direction and there were other bikers riding other bikes with him and all of them were involved in racing and the deceased lost balance of his motorcycle and dashed into the rear wheel of the truck. Learned counsel further submitted that in fact the accident had taken place due to sole negligence of the deceased. Learned counsel drew our attention towards site-plan also and submitted that site plan also goes to show that the accident had taken place in the middle of the road and not at the rear portion of the truck. It is submitted that learned Tribunal has not committed any error in holding the deceased also negligent.

7. With regard to the quantum of compensation, learned counsel for the insurance company submitted that PW6 was not rightly believed by learned Tribunal because he appeared before the Tribunal to prove the salary of the deceased but without original record and moreover the learned Tribunal has committed no mistake in relying upon the copy of the acknowledgment of the income tax return. Learned counsel for the insurance company very fairly admitted that no reason has been assigned by the learned Tribunal for not granting the future prospects but submitted that the Tribunal has applied multiplier of 15 which should have been of 14 as per the settled law in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 ACJ 1298.

8. This appeal has been preferred mainly on two grounds, one for challenging contributory negligence attributed to the deceased and second on the issue of quantum of compensation awarded.

9. The controversy as to whose negligence was there in commission of accident has to be decided. The term negligence has to be viewed from the perspective of the law laid down till date.

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 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.

11. 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.

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 (section 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. It is not disputed that the accident had taken place when, the vehicles involved were coming from opposite directions and colluded in middle of the road. Although the site-plan is relied on by the insurance company and Tribunal cannot be disputed so as to show the place of accident, which is middle of the road. The driver of the truck Adesh Tyagi has deposed as DW1. He has appeared before the learned Tribunal and deposed in his testimony he has opined that at the time of accident, the deceased was coming on motorcycle from opposite direction and some other boys were also riding vehicles along with the deceased and all these bikers were involved in racing activity. It is deposed by DW1 that in the process of the racing, the deceased lost his control and dashed his motorcycle in the rear wheel of the truck. Keeping in view the evidence on record, we are in agreement with the finding of learned Tribunal with regard to the negligence of the deceased and we do not disturb the finding that the driver of truck and deceased both were co-authors of the accident and were negligent to the tune of 50% each.

Compensation:-

14. The issue so as to grant of quantum of compensation, has to be re-evaluated. It is not disputed that at the time of death, the deceased was serving in bank as a Head Cashier meaning thereby he was a salaried person. Learned Tribunal has held that PW6 has not produced original record before the Tribunal to prove the salary of the deceased. Although the standard of proof in motor accident claim case is not as strict as in civil suit or criminal trials but to prove the income/salary of the deceased, official record must be brought before the learned Tribunal. In this case, learned Tribunal has mentioned in impugned judgement that PW6 did not produce the original record and admitted that he has not brought the original record. But learned Tribunal took the holistic view and relied on the copy of the acknowledgment of the income tax return of the deceased for the assessment year 2009-10. The income tax return is authentic documentary proof of the income. Learned Tribunal deducted the amount of income tax from the gross income and considered the annual income of the deceased at Rs.2,36,357/-, but learned Tribunal has relied on the acknowledgement of the income tax return which is not even signed and not disclosing the period. We find on record the best document to be relied on in connection with income of a salaried person, which is known as Form-16, which is issued by Punjab National Bank, Islam Nagar, where the deceased was an employee, which is paper No.79-C on record. The perusal of the aforesaid Form-16 shows that it pertains to the period from 01.04.2009 to 31.03.2010. This is the relevant period for assessment of income of the deceased because the death of the deceased had taken place on 10.05.2010. The aforesaid document shows gross income of salary at Rs.3,14,236/- and Rs.4880/- was deducted towards income tax. No other amount except income tax could be deducted in the light of the judgement of Apex Court in Vimal Kanwar and Others Vs. Kishore Dan and Others, 2013 (3) T.A.C. 6 (SC). Hence, the learned Tribunal has lost the sight and did not consider the Form-16 of the deceased, which is the mirror of his actual annual income, reflecting the tax component also. Hence, the annual income of the deceased at Rs.3,14,236 - Rs.4,880 = Rs.3,09,356/-.

15. Learned Tribunal has not awarded any sum for future prospects and no reason is assigned for non-granting the same. Learned counsel for the insurance company has vehemently submitted that at the time of accident the age of the deceased was above 40 years. The original educational certificate of the deceased is available on record in which his date of birth is mentioned as 21.01.1970. The accident had taken place on 10.05.2010 and, hence, at the time of accident, the age of the deceased was above 40 years and undoubtedly he was Head Cashier in Punjab National Bank. In the light of judgement of National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, 30% would be added towards future loss of income. Learned Tribunal has rightly deducted 1/3 for personal expenses of the deceased with which we concur because he was survived by three dependents. Learned Tribunal has applied multiplier of 15 but as per judgement of Sarla Verma and others (supra) as the age of the deceased was within the bracket of 40-45 years, the multiplier of 14 will be applied. Apart from it, in the light of judgement of Pranay Sethi (supra) appellants would be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. The wife of the deceased would also be entitled to get Rs.40,000/- for loss of consortium. Hence appellants-claimants will be entitled to Rs.15000+15000+40000= Rs.70,000/- towards non-pecuniary heads with 10% increase for every three years. We fix lump-sum amount of Rs.1,00,000/- under non-pecuniary heads.

16. Hence, the total amount of compensation, payable to the appellant-claimants is computed herein below:-

(i) Annual income : Rs.3,09,356/-

(ii) Percentage towards future prospects : 30% namely Rs.92,806/-

(iii) Total income : Rs.4,02,162/-

(iv) Income after deduction of 1/3rd: Rs.4,02,162 - Rs.1,34,054= Rs.2,68,108/-

(v) Multiplier applicable : 14

(vi) Loss of dependency: Rs.2,68,108/- X 14 = Rs.37,53,512/-

(vii) Amount under non pecuniary head : Rs.1,00,000/-

(viii) Total compensation: Rs.37,53,512/- + 1,00,000/- = Rs. Rs.38,53,512/-

(ix)Amount after 50% deduction towards contributory negligence : Rs. 38,53,5012/- - 19,26,756 = Rs.19,27,000 /- (round off)

17. As far as issue of rate of interest is concerned, it 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."

18. Learned Tribunal has awarded rate of interest as 6% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

19. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631 for disbursement.

20. 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 (supra), the order of investment is not passed because claimants are neither illiterate nor rustic villagers.

21. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal or appellate court under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act, 1961.

22. 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 12 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account with without investment as the case may be.

23. In view of the above, the appeal is partly allowed. Judgment and award passed by the learned 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 the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

24. Record be transmitted to Tribunal.

   (Hon'ble Ajai Tyagi, J.)        (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 2.08.2022
 
Ashutosh Pandey