Deepak Sharma vs Jitendra Singh And 2 Ors.
2022 Latest Caselaw 2471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 143 of 2016
 

 
Appellant :- Deepak Sharma
 
Respondent :- Jitendra Singh And 2 Ors.
 
Counsel for Appellant :- Jagdish Prasad Tripathi,A.D. Saunders
 
Counsel for Respondent :- Ankur Tondon
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

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

1. This appeal challenges the judgement and order of MACT/Special Judge E.C. Act, Meerut dated 13.10.2015 in MACP No.1276 of 2012 (Deepak Sharma Vs. Jitendra Singh and others), by which the claim petition filed by appellant was dismissed.

2. Heard learned counsel for the appellant and learned counsel appearing on behalf of respondents.

3. Brief facts of the case are that a claim petition was filed by appellant before the learned Tribunal on account of death of father of the appellant Brahm Swarup Sharma in a road accident. As per averments in the petition, on 05.08.2012 at about 3:00 pm, the deceased was going from Meerut to Sardhna by his motorcycle bearing No.UP 15 Q 5760. When he reached by pass road Khirwa crossing, a car bearing No.DL 7 CC 2323 which was coming from the side of Haridwar and was being driven rashly and negligently by its driver dashed into the motorcycle of the deceased. In this accident, the deceased sustained fatal injuries and died. The age of the deceased was 58 years. The deceased was serving in Custom and Central Excise Department and was also getting pension due to being an ex-army man.

4. Learned counsel for the appellant submitted that learned Tribunal held that in the aforesaid accident the deceased was himself 100% negligent and the car driver was not negligent at all. Learned counsel submitted that there is crossing on the spot of the accident. The car driver was driving the car at a very high speed while the deceased was standing on his motorcycle on the side of the road. The car driver hit the motorcycle because he was driving rashly and negligently. Learned counsel attracted our attention towards the testimony of PW2, who is eye-witness of the accident and submitted that the eye-witness PW-2 has also stated that the deceased was standing on his motorcycle on the side of the road and the car driver dashed into the motorcycle due to high speed. In this way, the car driver was sole negligent but the learned Tribunal did not appreciate the evidence in right perspective. Learned counsel for the appellant relied on the judgement of this Court, penned by one of us, Smt. Meenakshi Srivastava Vs. Dheeraj Pandey and others 2022 0 Supreme (All) 318 decided on 11.03.2022.

5. It is next submitted by the learned counsel for the appellant that the deceased was in service in Central Excise Department, Meerut from where he was getting salary of Rs.20,000/- per month. The deceased was ex-army man and he was getting pension also nearly Rs.7,000/- per month. The age of the deceased was 58 years as per his service book record.

6. Learned insurance company vehemently opposed the submissions made by the appellant and submitted that at the time of accident the deceased came from the side road, which was crossing the highway, hence, it was duty of the deceased to see right and left side of the highway to make sure that no vehicle is coming from either side and after taking aforesaid precaution, he should have crossed the highway but he did not take such precaution. It is also submitted that eye-witness PW2 has given false evidence that the deceased was standing on motorcycle on the side of the road but as per the site-plan, the place of the accident is shown in middle of the road. Moreover, there was no indicating board or red light at the crossing, which could caution the vehicle running on the highway. Hence, the learned Tribunal has rightly held that the car driver was not negligent and the deceased was sole author of the accident. Hence, there is no illegality or infirmity in the impugned judgement which calls for any interference by this Court.

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

8. 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.

9. 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.

10. 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 )

11. We have perused the judgement of the Hon'ble Apex Court in Archit Saini & another Vs. Oriental Insurance Co. Ltd. AIR 2018 SC 1143 but we have to appreciate entire evidence on record, documentary evidence as well as oral. There are discrepancies between the site-plan and oral evidence of PW2. As per the testimony of PW2, at the time of accident the deceased was not driving the vehicle in the middle of road but was standing on his motorcycle on the side of the road. While, the spot/place of impact of the accident is shown to be in the middle of the road in the site-plan.

12. It is an admitted fact that the offending car was running on the highway and the deceased was crossing or about to cross the highway from the intercepting road. This law is well settled that at interception or inter junction namely, where two roads cross each other, it is the duty of the vehicle, coming on the highway from intercepting road to slow down the vehicle and to see on all sides more particularly, his right and left side to ensure whether any vehicle is coming on the highway or leaving the other road and entering the intersection so as to cross the road from either side which could endanger either of them. The case on hand, it seems that the deceased did not take aforesaid precaution because at the time of accident, the deceased was in the middle of the road while crossing the highway. Although, the deceased should have been more cautious, it was equally the duty of the car driver who was driving a bigger vehicle to slow down his vehicle when he was approaching the cross road, because any vehicle or pedestrian could come from either side of the intercepting road. Hence, in such a situation, duty is cast on the drivers of the both the vehicles but the degree of caution is higher on the part of the person approaching on the highway from intercepting road in comparison to the person, driving on the highway because vehicles generally move at higher speed on the highways. Hence, merely because the driver of the car was driving on the left side of the road would not absolve him from his responsibility to slow down the car when he was approaching the interception of the roads. We do not concur with the submissions of learned counsel for the insurance company that there was no indicating board or red light at the crossing, because the driver of the car could easily see from a distance that there is intercepting road ahead of him. Hence, he was also duty bound to slow down the car, but he did not take such precautions. It is also pertinent to mention that the car driver, who is the best witness, has not stepped into the witness box to explain the accident.

13. In view of the above, we cannot concur with the learned judge of the Tribunal that the deceased was solely negligent and car driver was not rash and negligent. We are of the considered opinion that drivers of the car and motorcycle, both were co-authors of the accident and have contributed to the accident and there is negligence on part of both the drivers. We hold the deceased to be equally negligent namely 50% negligent and the driver of the car to be 50% negligent as the deceased was coming from the smaller road and required to be cautious while entering the inter junction of roads, deceased also was negligent though it is opined by PW2 to have stopped at interjection but the speed shows that he was also eqaully careless.

14. The next issue which arises is regarding compensation and liability of the respondents and liability to compensate the appellant. While pondering over the matter the question is should the matter be sent to tribunal for deciding quantum as for liability the tribunal has returned the finding that there is no breach of policy nor is there anything proved by insurance company to prove to the contrary the fact that the matter has remained pending for long, namely 7 years, 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. We place reliance on the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748, Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186 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 wherein 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.

15. Hence, as far as quantum is concerned, after hearing the learned counsel for both the parties and perusal of the record, we find that the deceased was in service in Central Excise Department in Meerut. It is also on record that the deceased was ex-army man and he was getting pension also. The pay slip of the deceased is issued by Assistant Chief Accountant of Customs and Central Excise Department, Meerut, which is paper No.25 Ga/2. Although, no concerned employee/accountant of the department has appeared before learned Tribunal with salary record, yet the salary slip cannot be disbelieved because it is filed in record by the Commissioner, Central Excise Meerut-I in response to the information, sought under Right to Information Act. The net amount of the salary was Rs.15,169/- in which the component of provident fund Rs.8,500/- would be added as per judgement of Vimal Kanwar and others Vs. Kishore Dan and others, 2013 (3) TAC, 6 (SC). Hence, the total payable salary comes Rs.15,169+ Rs.8,500 = Rs.23,669/-. It is pertinent to mention that this pay slip pertains to the last full month salary of the deceased prior to accident which the deceased received. Apart from salary slip, the pass book of the deceased paper No.23 Ga/5 is also on record, which is said to be pension pass book or the pass book in which the pension of the deceased was being credited. The perusal of this pass book shows that he has received Rs.6934 as last pension. Hence, total income of the deceased by way of salary and pension comes to Rs.23,669+Rs.6,934=Rs.30,603/- per month which is rounded up at Rs.30,000/- per month.

16. As per the judgement of Hon'ble the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 the deceased was a salaried person and within the age bracket of 50-60 years, hence, 15% would be added to his salaried income only, because the aforesaid judgement of Pranay Sethi (supra) provides for future prospects to the tune of 15% for the persons who are in the permanent job or are self-employed. The deceased was receiving pension but as the son is married and daughters are married and his wife has predeceased him the amount of pension would have been spent by him and the amount would not increase as it would stop with his demise, hence, on the component of pension, no future loss of income can be calculated or granted.

17. When we scanned through the record, we noted that the appellant/claimant has deposed as PW1 and in his cross-examination, he has deposed that the deceased is survived by three daughters and the appellant but the appellant has not made the daughters as party to the claim petition and the learned Tribunal has also lost sight to this fact. Hence, we take it to ourselves to take care of the compensation payable to the sisters of the appellant would be entitled to compensation also in view of the Judgement of Apex court reported in Smt. Manjuri Beri Vs. Oriental Insurance Co. Ltd. AIR 2007 SC 1474 as they are legal representative of deceased.

18. As far as the deduction towards personal expenses of the deceased are concerned, as per the testimony of appellant PW1, his mother has predeceased his father. Appellant has also deposed that he is in service and getting salary at Rs.15,000/- per month. He has three sisters and all of them are married. Hence it can safely be assumed that the sisters were not dependent on father. In such a situation, we consider it appropriate to deduct ½ for personal expenses of the deceased and the amount of pension would be spent on himself we cannot deduct ¾ as submitted by learned counsel for respondent.

19. The copy of the service book shows the date of birth of the deceased as 01.07.1954. Hence, at the time of accident, the deceased was of 58 years old. Hence, as per the judgement of Smt. Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)] multiplier of 9 would be applied.

20. Hence, the total compensation, in view of the above discussions, payable to the appellant-claimant is being computed herein below:

i.

Total income (salary + pension)

Rs.30,000/-

ii.

Percentage towards Future-Prospects (on income from salary Rs.23,669/- only) 15%

Rs.3,550/-

iii.

Total Income

Rs.30,000/-+Rs.3,550/-

Rs.33,550/-

iv.

Income after 1/2 deduction for personal expenses

Rs.33,500/- - Rs.16,775/-

Rs.16,775/-

v.

Annual income

Rs.16,775/- x 12

Rs.2,01,300/-

vi.

Multiplier applicable

vii.

Loss of dependency

Rs.2,01,300/- x 9

Rs.18,11,700/-

viii.

Payable amount after deduction of 50% for contributory negligence

Rs.18,11,700-Rs.9,05,850

Rs.9,05,850/-

21. The three daughters of the deceased, who are married as per testimony of the appellant, would get Rs.50,000/- each and the rest amount of compensation would be paid to the appellant with interest, which would be 7.5% per annum from the date of filing of the claim petition till the date of depositing the amount by the Insurance Company respondent No.2. Insurance Company shall deposit the amount of compensation within 12 weeks from today.

22. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma Vs. Venugopal reported in 2012 (1) GLH (SC) 442, the order of investment is not passed because applicants/claimants are neither illiterate nor rustic villagers.

23. In view of the above, the appeal is partly allowed.

24. Fresh award be drawn accordingly by the Tribunal as per modification made herein.

20. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [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.

21. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Privae Ltd. vs. 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. Since long time has elapsed, the amount be deposited in the Saving Bank Account of claimant(s) in a nationalized Bank without F.D.R.

(Ajai Tyagi, J.)              (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 11.5.2022
 
Ashutosh Pandey