Kamal Singh Sachan And 3 Others vs Smt. Savitri Devi And 2 Others
2022 Latest Caselaw 219 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2706 of 2015
 

 
Appellant :- Kamal Singh Sachan And 3 Others
 
Respondent :- Smt. Savitri Devi And 2 Others
 
Counsel for Appellant :- Anurag Singh
 
Counsel for Respondent :- Amaresh Sinha
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

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

By way of this appeal, the claimants have challenged the judgment and order dated 27.07.2015 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.6, Kanpur Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 103 of 2012 awarding sum of Rs.10,09,500/- as compensation to the claimants with interest at the rate of 7% per annum.

Heard Mr. Anurag Singh, learned counsel for the appellants and Mr. Anubhav Sinha, learned counsel for the respondents. Perused the record.

Brief facts of the case are that a claim petition is filed before Motor Accidents Claim Tribunal (hereinafter referred to as the 'Tribunal') with the averments that on 21.10.2011, the deceased was returning from his brick kiln to his house in Kidwai Nagar, Kanpur by his Innova car bearing No. UP78CE4408. When he reached between Shambhua railway crossing and village Hadaha, a truck bearing No. UP78N5859, which was being driven very rashly and negligently by its driver, hit the Innova car from opposite direction. In this accident, the deceased Sheel Sachan sustained fatal injuries and died on the spot. First information report of this accident was lodged in the concerned police station. After investigation, charge-sheet was submitted against the driver of the aforesaid offending truck. Learned Tribunal held the drivers of both the vehicles negligent to the tune of 50 % each and awarded Rs. 10,09,500/- as compensation with interest at the rate of 7 % per annum. Aggrieved with the quantum of award and finding of contributory negligence, this appeal has been filed by the appellants.

The accident is not in dispute. The liability of insurance company to pay the compensation is also not disputed but the finding of contributory negligence is challenged by the appellants. It is submitted by learned counsel for the appellants that at the time of the accident, the deceased was not at fault and the accident had taken place due to sole negligence of the truck driver.

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.

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.

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."

In this regard, we have perused the evidence regarding contributory negligence on record.

Learned Tribunal has refused to rely on the site plan prepared by the investigating officer during investigation of the concerned criminal case and held that it is not the site plan which could be relied on for determination of contributory negligence but other factors are to be seen such as first information report, charge-sheet and evidence of independent witnesses. Learned Tribunal mainly relied on technical inspection reports of both the vehicles i.e. Innova car and the offending truck and came to the conclusion that there is damage in the front side of both the vehicles. In this way, learned Tribunal concluded that since there is damage on the front side hence, both the drivers were negligent in driving their respective vehicles. Learned Tribunal also relied on the evidence of eye witness PW2 who had deposed that both the vehicles dashed into each other from opposite direction. On the basis of this evidence, learned Tribunal held contributory negligence of both the drivers to the tune of 50% each but we are unable to concur with the aforesaid finding.

Learned counsel for the appellant submitted that investigating officer prepared site plan but in the index thereof, he wrongly mentioned the truck with single arrow and Innova car with double arrow while making entry in general diary of police station regarding spot inspection, the investigating officer has rightly mentioned the Innova car with single arrow and truck with double arrow. Learned counsel also submitted that in this regard, a supplementary affidavit has been filed by the appellants.

We have gone through the supplementary affidavit which supports the arguments advanced by the appellants as above. It is also pertinent to mention that the driver of the truck has not stepped into the witness box. It is correct that both the vehicles have damaged on front side but it does not mean that it was head on collusion in the middle of the road because the site plan shows that Innova car was on its correct side of the road and the truck was on its wrong side hence, it was head on collusion but on the correct side of the Innova car. Hence, it is clear that the truck came on the side of the Innov car and resulted in the death of its driver. However, we cannot ignore the fact that the Innova car was not on the extreme left side of the road. Hence, keeping all the facts together in the light of the evidence on record, the finding of the learned Tribunal regarding contributory negligence to the tune of 50% each cannot be sustained. We hold the driver of the truck to be 80% negligent and the driver of the Innova car i.e. the deceased to be 20% negligent. Now, it takes us to determine the quantum of compensation.

Learned counsel for the appellant submitted that the deceased was a graduate in Engineering. He was partner in three brick kilns and agriculturist also. The deceased was an income tax payee. The income tax returns filed by him are on record but the learned Tribunal did not rely on those returns. Learned Tribunal has assessed the annual income of the deceased at Rs. 1,56,000/- which is on the lower side. Although, learned counsel for the insurance company submitted that Tribunal has rightly assessed the income of the deceased and it does not call for any interference but we cannot shut our eyes from the fact that the income tax returns of the deceased show his annual income to be Rs. 1,78,401/-. Hence, we hold the annual income of the deceased in round figures to be Rs. 1,78,000/-.

It is submitted on behalf of the appellants that the learned Tribunal has not awarded any sum for future loss of income. It is vehemently objected by learned counsel for the insurance company and he submitted that no future loss of income should be granted.

We are unable to accept the aforesaid submissions of learned counsel for the insurance company as per judgment of the Apex Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi and others 2017 (SC) 1093 in which it is held that in case of death of a self employed person, his legal representatives shall be entitled to get compensation for future loss of income. In this case, it is not disputed that the deceased was self employed and he was below the age of 40 years. Hence, as per the aforesaid judgment of Pranay Sethi (supra), 40% shall be added to the income of the deceased for future loss of income. There were four dependents upon the deceased amongst which, appellant no.4 was minor, hence, 1/3rd will have to be deducted towards personal expense of the deceased whereas the Tribunal has deducted 1/4th . At the time of the death, the age of the deceased was 27 years, hence, as per the judgment of Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 ACJ 1298, the multiplier of 17 shall be applied.

A perusal of the impugned judgment shows that learned Tribunal has awarded Rs. 10,000/- for loss of consortium, Rs. 15,000/- for loss of love and affection and Rs. 5000/- for funeral expenses which are on the lower side. As per the judgment of Pranay Sethi (supra), the appellants shall be entitled to get Rs, 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses apart from it, the wife of the deceased shall be entitled to Rs. 40,000/- for loss of consortium and the minor son of the deceased would get Rs. 50,000/- as filial consortium since he has lost his father at a very tender age. In this way, the appellants together will get Rs. 1,20,000/- as non-pecuniary damages. On the basis of above discussion, total amount of compensation payable to the appellants is computed hereinbelow:

i. Annual income = Rs.1,78,000/- per annum.

ii. Percentage towards future prospects: 40% = Rs.71,200/-

iii. Total income: Rs.1,78,000/- + Rs.71,200/- = Rs.2,49,200/-

iv. Income after deduction of 1/3rd = Rs. 1,66,134/-

v. Multiplier applicable = 17

vi. Loss of dependency: Rs.1,66,134/- x 17 = Rs. 28,24,278/-

vii. Amount under non pecuniary head = Rs.1,20,000/-

viii. Total compensation: Rs.28,24,278/- + 1,20,000/- = Rs. 29,44,278/-

ix. Amount after 20% deduction towards contributory negligence = Rs.23,55,423/- which is rounded off to Rs. 23,55,500/-.

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."

Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

No other grounds are argued orally when the matter was heard.

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

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 claimants 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.

Order Date :- 24.3.2022

Madhurima