Smt. Minakshi Srivastava And 3 ... vs Dheeraj Pandey And 2 Others
2022 Latest Caselaw 188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 07.02.2022
 
Delivered on 11.03.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3425 of 2016
 
Appellant :- Smt. Minakshi Srivastava And 3 Others
 
Respondent :- Dheeraj Pandey And 2 Others
 
Counsel for Appellant :- Satya Deo Ojha,Shashi Prakash Rai
 
Counsel for Respondent :- Bajarang Bahadur Singh
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vivek Varma,J.

1. Heard Sri Shashi Prakash Rai, learned counsel for the appellants, Sri Bajarang Bahadur Singh, learned counsel for the owner-respondent no.1. None present on behalf of driver-respondent no.2 and insurance company-respondent no.3.

2. By way of this appeal the appellants have felt aggrieved by the order passed by Claims Tribunal, whereby the Claims tribunal dismissed the claim petition being M.A.C.P. No. 21 of 2015.

3. Brief facts of the case culled out from the record are that, on 23.11.2014 at about 6.30 p.m. when the deceased was plying his Hero Honda motorcycle bearing No. U.P. 63 L/0421 and was going from Pathkhura to his house at that time near Paramhans Ashram respondent no.2 drove Minibus bearing No. U.P. 65 R/9955 and rashly and negligently dashed with the motorcycle and the deceased came under the bus and his motorcycle was also damaged. The people around him called 108 ambulance and he was sent to Rajgarh Community Centre but as he was serious he was sent to Sadar Hospital, Mirzapur, there also he was not treated but he was sent to Popular Hospital, Varanasi where he was admitted but as his health did not improve he was moved to B.H.U. hospital, where during treatment on 25th November 2014 he breathed last and succumbed to the injuries. On his death, his family was under shock, they could not lodge the first information report in time. The first information report was lodged by his brother on filing of the claim petition the respondent Nos. 1 and 2 filed their reply, which was one of negation contending that the vehicle was not involved in the accident and that the vehicle was permitted to ply between Mirzapur to Ghazipur and his vehicle could not have been at the place where the accident took place. The police took the vehicle and filed the charge-sheet. Later on, the driver of the Minibus was charge-sheeted and he was released on bail, is an admitted position of fact which has been brushed aside by the Tribunal. The respondent no.3 insurance company on the contrary took a stand that it was the deceased who was negligent and he dashed with the bus. The Tribunal framed five issues. The first and the fifth issue has been held against the appellants. The written statement of the insurance company ought to have been looked into by the Tribunal before brushing aside the judgment and not relying on the authoritative pronouncements in Varinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana, Devi Prasad Vs. Zahur Khan, 2001 (2) TAC 419 Madhya Pradesh, and Bhanwar Lal Verma Vs. Sharad Dholiya, 2007 ACJ 52.

4. The appellants have challenged the impugned award and decision on the following amongst grounds that the order passed by the Tribunal is illegal, arbitrary, without application of mind and cannot be sustained in the eyes of law.

5. It is submitted by learned counsel for the appellants that the court below has failed to consider, while passing the impugned order, that the insurance company of the vehicle/ respondent no.3 admitted that the accident took place by his vehicle but contended that accident occurred due to negligence of deceased. In support of his arguments, Sri S.D. Ojha, learned counsel for the appellants has relied on the following decisions in (i) Kusum Lata and others Vs. Satbir and others, 2011 (2) Supreme 207; (ii) Saroj and others Vs. Het Lal and others, (2011) 1 SCC 388; and (iii) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; Sunita and others vs. Rajasthan State Road Transport Corporation and another AIR 2019 SC 994 so as to contend that the petition has been dismissed by assigning reasons which are not germane.

6. It is further submitted in reply that it was the driver of the motorcycle, who was driving the vehicle rashly and negligently. The facts prove that the vehicle Minibus was involved in the accident.

7. The claimants examined the widow of the deceased, PW 2 Ikbal Ahmad, who was an eye witness and PW 3 Kamlesh Kumar Srivastava, who had lodged the first information report. As far as the respondents are concerned, DW 1 has been examined. The appellants filed chick F.I.R., post-mortem report, report of the Panchnama, the release memo of the Mini Bus, death certificate of the deceased, medical certificate of Mirzapur doctor, Popular Hospital and death certificate by Tehsildar of Chunar. The voter I.D. and all other documentary evidence to prove involvement of vehicle and the income of the deceased were also produced. The respondent no.1 filed the fitness certificate, permit, insurance and the driving licence of the driver.

8. The respondent no.3 did not examine any witness. The Tribunal has dismissed the claim petition despite the fact that the respondent insurance company had taken the plea that the accident occurred due to the negligence of the driver, who had lost his balance. The Tribunal did not believe the testimony of the wife as she did not disclose, who gave her number of Minibus. It is held that PW 2 cannot be accepted as an eye witness as he also did not give the number of the bus and that the first information report was against an unknown vehicle and therefore, the charge-sheet was not acceptable.

9. The evidence on record which has been brushed aside by the Tribunal is without any basis. The PW 1 did not give the name, number of vehicle involved. The chick F.I.R. did not give the number of Minibus and that PW 3 who registered the F.I.R. also did not give the number of Minibus. The fact that the evidence of all these three witnesses have not been controverted even except the filing of written statement by the owner. The driver of the vehicle never complained that he has falsely implicated. The F.I.R. also states that Minibus was involved in the accident. The charge-sheet is a prima facie proof of involvement of the vehicle, the owner no where contends that his bus was not on the road.

10. On the contrary, while going through the record, it is very clear that the vehicle had permit to ply at the place where the accident occurred and therefore, the statement of the owner could not have been believed. The route permit discussed by the learned Tribunal also goes to show that the vehicle was having a permit to ply on the road which is in the accident. The fitness certificate and permit is there from Mirzapur to Ghazipur via Chunar Varanasi Saidpur and therefore, they contend that the vehicle did not have permit to ply on the said road is also a wrong statement on the record made by the owner against whose driver charge-sheet is led, thus on preponderance of probability the finding of the Tribunal cannot be accepted. We quantified in our view by the judgment of Apex Court in the case of Sunita (Supra). The recent judgement of the division bench in the case of First Appeal From Order No.1902 of 2010 (Ranjeet Singh v. Oriental Insurance Co. Ltd. and another) decided on 4.3.2022 will enure for the benefit of the appellant's herein.

11. In view of the above, we cannot concur with the learned Judge that it was not proved that the driver of the mini bus had not driven the bus rashly and negligently. The injuries suggest that the driver of Minibus was driving the vehicle rashly and negligently. Hence, the said issue is answered in the positive and in favour of the appellants.

12. The appreciation of evidence as held by the Apex Court in the case of Kusum Lata, Saroj and Vimla Devi (supra) will not permit us to concur with the learned Tribunal. The finding is perverse.

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

14. 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.

15. 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.

16. 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

17. The next issue which arises is that the matter has remained pending for long, the record and proceedings are before this Court and the matter whether be remanded to the Tribunal or decided here? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748 and of this Court in F.A.F.O. No. 1999 of 2007 (Oriental Insurance Company Limited vs. Smt. Ummida Begum and others) and in F.A.F.O. No. 1404 of 1999 (Smt. Ragini Devi and others Vs. United India Insurance Company Limited and another) decided on 17.4.2019 where in it has been held that if the record is with the appellate Court, it can decide compensation instead of relegating the parties to the Tribunal.

18. Hence, as far as quantum is concerned, this Court after hearing the learned counsels for the parties and perusing the judgment and order impugned, finds that the deceased was even hospitalised for quite some time and he was earning Rs.33,523/-per month by way salary as he was Lekhpal, namely Rs.4,02,276/- per year. To which, as the deceased was 47 years of age, 30% of the income requires to be added in view of the decision in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Further, one third requires to be deducted as his personal expenses as he was survived by his wife and three minor daughters aged about 19, 16 and 13 years. As the deceased was in the age bracket of 47 years, the applicable multiplier would be 13 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that, Rs.75,000/- is granted towards conventional heads.

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

i. Income : Rs.33,523/- (Rs.4,02,276/- per year)

ii. Percentage towards future prospects : 30% namely Rs.10,057/- (rounded up)

iii. Total income : Rs.33,523 + 10,057 = Rs.43,530/-

iv. Income after deduction of 1/3rd towards personal expenses of the deceased : Rs.29,020/-

v. Annual income : Rs.29,020 x 12 = Rs.3,48,240/-

vi. Multiplier applicable : 13

vii. Loss of dependency: Rs.3,48,240 x 13 = Rs.45,27,120/-

vii. Amount under non pecuniary damages : Rs.75,000/-

viii. Total compensation : Rs.46,02,120/-

20. 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."

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

22. In view of the above, the appeal is allowed. Judgment and order passed by the Tribunal is set aside. 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.

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 is not passed because applicants /claimants are neither illiterate or rustic villagers.

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

Order Date :- 11.03.2022

S.S.