United India Insurance Co. Ltd vs Smt. Shashi Prabha And 5 Others
2022 Latest Caselaw 57 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 

 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 155 of 2022
 

 
Appellant :- United India Insurance Co. Ltd
 
Respondent :- Smt. Shashi Prabha And 5 Others
 
Counsel for Appellant :- Saurabh Srivastava
 
Counsel for Respondent :- Sunil Kumar,Amar Chandra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vivek Varma,J.

1. Heard Sri Saurabh Srivastava, learned counsel for the appellant and Sri Amar Chandra, learned counsel for the respondent-Claimants. This appeal mainly relates to compensation and therefore the owner, driver of the tempo and car owner and driver will not be concerned and therefore by consent of both the learned counsels we propose to dispose of this appeal as it relates to submission on negligence and only quantum.

2. This appeal, at the behest of the appellant-Insurance Company challenges the award dated 04.10.2001 passed by Motor Accident Claims Tribunal, Shahjahanpur, (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 254 of 2018.

3. Brief facts as culled out from the record are that on 14.05.2018 at about 8:00 p.m Indresh Kumar Singh was traveling in a tempo bearing no. U.P-32 CN-9011, at the same time driver of a car coming from opposite side bearing no. U.P.-32 HN-2292 driving his car negligently and rashly hits the tempo in which Indresh Kumar Singh was traveling and as a result of which Indresh Kumar Singh fell on the road and driver of the car drove the wheel of the car on his head and the deceased sustained grievous injuries . Injured Indresh Kumar Singh was taken to the Trauma Centre by the police where he was declared dead by the doctors.

4. The deceased was 41 years and 6 months of age at the time of accident. He was working as a Sub-Inspector in Police department and was earning Rs. 48, 159/- p.m. He was survived by his father, widow and a son. The Tribunal has considered his income to be Rs. 48,159/-p.m, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 14, granted Rs.40,000/- towards love and affection, granted Rs. 15,000/- towards loss of property and granted Rs.15,000/- towards funeral expenses and ultimately assessed the total compensation to be Rs. 70,81,956/-.

5. 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.

6. 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.

7. 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

8. 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

9. 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 was not the driver of the car or of the tempo. P.W.-1 is not the eye witness but P.W-2 was the eye witness. In that view of the matter the finding of the fact as far as negligence is concerned cannot be found fault with.

10. This takes this Court to the issue of compensation. 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 It is submitted by the counsel for the appellant that tribunal has committed manifest error in not deducting the income tax from salary of the deceased and the amount which was paid as kit maintenance allowance is Rs. 1200/-, Rs. 700/- towards conveyance. Rs. 2208/- should have been deducted and amount of income tax payable on his salary was supposed to be deducted. It is further submitted that the amount of pension received by the widow should also be deducted. The other prayer that the amount under other heads would be also deducted cannot be accepted in view of the judgment of the Apex Court in case of Vimal Kanwar and Others Versus Kishore Dan and others ( 2013) 7 SCC 476. We cannot accept the submission of the Sri Saurabh Srivastava, learned counsel for the appellant that the amount for personal expenses requires to be deducted, it cannot have been deducted and it has been rightly not deducted by the tribunal. It is no doubt a accepted position of law that income tax has to be deducted and certain amounts can be deducted from the salary of the deceased. The judgments on which reliance has been placed by the learned tribunal cannot be found fault with and are applicable to the facts of this case except the fact that income tax has to be deducted if the deceased was a income tax payer. The income tax according to the learned counsel for the appellant was Rs. 10,862/- p.m. The same is to be multiplied by multiplier of 14, this would be the amount which would not be available to the legal heirs of the deceased.

11. The amount of income tax being 10,862/- was added with 30% as future loss of income and was calculated in the salary which has to be deducted. We deduct a lum-sum of Rs. 2,00,00/- and certain amounts not to be added.

12. We direct the Insurance Co. to recalculate the amount and deposit the rest of the amount with 7% rate of interest. We reject the oral request of counsel of respondent to enhance the rate of interest to 12% as the matter is disposed in a conciliatory manner, we retain the rate on interest at 7%.

13. 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.

14. 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.

15. 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.

16. The amount of Rs. 25,000/- deposited in the Registry of this High Court be remitted back to the tribunal. The recalculated amount be deposited within eight weeks from today.

17. We are thankful to Sri Saurabh Srivastava, learned counsel for the appellant and Sri. Amar Chandra, learned counsel for the respondents-claimants that they got this matter disposed of at this stage only. We disposed of this appeal without the record of the tribunal as nothing remains to be done.

18. This appeal is partly allowed. Awarded decree shall stand modify to the aforesaid extent. On depositing the amount the tribunal shall follow the aforesaid directions.

Order Date :- 28.01.2022/PS