Smt. Ramo Devi And 3 Others vs Icici General Insurance Co. Ltd. ...
2022 Latest Caselaw 4545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								A.F.R.
 
Reserved on 13.05.2022
 
Delivered on 30.05.2022
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 3406 of 2014
 
Appellant :- Smt. Ramo Devi And 3 Others
 
Respondent :- Icici General Insurance Co. Ltd. And 2 Others
 
Counsel for Appellant :- Sanjay Kumar Singh
 
Counsel for Respondent :- Rahul Sahai,Vishwambhar Nath
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

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

1. By way of this appeal, the claimants-appellants who are legal heirs of the deceased have challenged the judgment and order dated 17.10.2014 passed by Motor Accident Claims Tribunal/ District Judge, Ghaziabad (hereinafter referred to as ''Tribunal') in M.A.C.P. No. 224 of 2013. The appellants' claim petition for compensation on account of the death of the sole bread earner came to be dismissed by the Tribunal.

2. The brief facts as culled out from the record, placed before this Court are that on 09.01.2013 deceased Rajendra Kumar Pal was returning to his house after completing his duty from Ghaziabad Railway Station. At about 7:30 PM, when the deceased reached near Ghantaghar and when the deceased beside the road, a motorcycle bearing no. DL 13 SF 1906, which was being driven very rashly and negligently by its driver, hit the deceased and fled towards Mohan Nagar.

3. The deceased being on bicycle is not dispute and the accident occurred between the bicycle driven by the deceased and the motorcycle driven by the opponent.

4. In this accident, deceased sustained serious injuries. He was taken to Narendra Mohan Hospital from where he was referred to Max Hospital, Delhi where on 21.01.2013 he died during treatment on account of injuries sustained in the aforesaid accident. It is also averred that at the time of accident, the deceased was serving in Northern Railway. The First Information Report of the accident was lodged at police station Kotwali, District Ghaziabad.

5. Heard Mr. Sanjay Kumar Singh, learned counsel for the appellants and Mr. Rahul Sahai, learned counsel for the Insurance Company. None is present on behalf of owner.

6. It is submitted by learned counsel for the cliamants-appellants that learned Tribunal has rejected the claim petition of the appellants on the ground that appellants have failed to prove that the accident occurred due to rash and negligent driving of the motorcycle in question, though involvement of vehicle is accepted by the learned Tribunal but learned Tribunal has failed to appreciate the evidence in right perspective. It is also submitted that Investigating Officer has submitted the charge sheet against the Sachin Kumar who was driving the motorcycle at the time of accident.

7. It is further submitted by learned counsel for the claimants-appellants that learned Tribunal has not considered the averments made by driver of motorcycle in his written statement where he has admitted the accident. Although, he has maintained that he was not negligent while driving the motorcycle. Learned counsel for the appellants has submitted that factum of accident is accepted by the driver of the motorcycle yet the learned Tribunal has not placed reliance on the aforesaid averment. It is next submitted that site plan, prepared by the Investigating Officer during the investigation, is not taken into consideration by learned Tribunal even the evidence of eye witnesses have been discarded/brushed aside. It is submitted that finding recorded by the learned Tribunal are perverse and bad in the eye of law and against the settled legal position for deciding claim petition arising out of motor accident.

8. Mr. Rahul Sahai, learned counsel for the Insurance Company has submitted that on the basis of evidence on record, it is nowhere proved that the motorcycle in question was involved in the aforesaid accident. It is further submitted that First Information Report was lodged against unknown vehicle and after two months of the accident, an application was given to the police authorities mentioning that the motorcycle no. DL 13 SF 1906 was involved. Evidence in this regard is totally concocted as to how the informant knew the number of offending motorcycle after two months of the accident.

9. It is further submitted by learned counsel for the Insurance Company that learned Tribunal meticulously examined the evidence on record and found that entire evidence regarding the accident, involving the aforesaid motorcycle are based on concocted story, hence, learned Tribunal is justified in not relying the evidence led by the claimants-appellants and the claim petition is rightly rejected. It is further submitted that there is no illegality or infirmity in the impugned judgment, which calls for any interference by this Court.

10. Having heard learned counsel for the parties. Certain aspects as prelude, we require our attention:-

(a) No doubt the First Information Report was lodged against the unknown vehicle but it is to be kept in mind that the informant was not the eye witness of the accident.

(b) The involvement of vehicle was known to the informant, he moved an application to the police authorities.

(c) Investigation is conducted by the police in order to reach to the logical conclusion that vehicle was involved, hence, it would not make any difference whether initially the F.I.R. was lodged against unknown vehicle as F.I.R. is only staring point of investigation. However, on completion of investigation, charge sheet was submitted against Shri Sunil Kumar-driver of the motorcycle and once the F.I.R., charge sheet and post-mortem report are filed before the learned Tribunal, prima facie, they would prove that the accident had occurred with the vehicle in question. The postmortem report of the deceased goes to show that he died out of injuries sustained in vehicular accident. The driver of the motorcycle admitted the factum of the accident in his written statement filed before the learned Tribunal which has not been proved to be in collusion by the insurance and it is also not proved by leading any cogent evidence that the vehicle was not involved.

11. We are supported in our view by the recent pronouncement of Division Bench of this Court in Smt. Minakshi Srivastava and Others Vs. Dheeraj Pandey and Others, F.A.F.O. No. 3425 of 2016, decided on 11.03.2022, where the factum of accident is accepted by the owner will apply and enure for the benefit of these claimants.

12. Learned counsel for the appellants has relied on the aforesaid decision of this Court in Smt. Minakshi Srivastava (Supra), wherein it is held that once the owner has accepted the involvement of vehicle in accident, the Tribunal cannot dismiss the claim petition unless proved otherwise. In this case on hand, although in his testimony, the driver of the motorcycle has deposed that accident did not take place by his motorcycle but in his written statement he has stated that accident did not take place due to his negligence, accident occurred due to the negligence of the deceased by not complying with the traffic rules. Hence, when the factum of the accident is admitted by the driver, his evidence against the pleadings cannot be accepted.

13. Perusal of impugned judgment goes to show that though the learned Tribunal has held that the burden of proof in claim petition under Motor Vehicles Act, 1988 cannot be considered as in civil or criminal cases yet the learned Tribunal has fallen in error in not considering the matter under beneficial piece of legislation. The learned Tribunal has come to conclusion that claimants did not prove that respondent-3 was driving the vehicle at the time of the accident, but the charge sheet was submitted against the driver-respondent no.3, was primary evidence of his driving the vehicle which has not been rebutted nor proved to be concocted as it is in evidence of driver of motorcyclist/respondent no.3 as D.W.-1 that he was coming from Chhapraula and going to Mohan Nagar. Hence, we hold that the motorcycle was involved in the accident.

14. The evidence on record comprises of oral testimony of witnesses and the documentary evidence in support of the said accident and injuries caused to deceased. The post-mortem report shows that the deceased died due to the injuries which he had sustained in the accident and hence, it is a homicidal death, which is proved. In our case, the case title Sunita and Others Vs. Rajasthan Sate Road Transport Corporation and Another, 2019 (1) T.A.C. (S.C.) will also be applicable to the facts of this case. The decision of the Supreme Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. and Others, 2018 (4) Supreme 525, relied by the appellants goes to show that pleadings of parties will have to be scrutinized in a holistic manner.

15. We are fortified in our view by the decisions of Apex Court in (a) Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9., (b) Vimla Devi and others Vs. National Insurance Company Limited and others, 2019 (133) ALR 768; (c) Anita Sharma v. New India Assurance Co. Ltd. (2021) 1 SCC 171 (d) Dulcina Fernandes & Ors. vs. Joaquim Xavier Cruz & Anr., AIR 2014 SC 58, and on the decision of Madras High Court in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others, passed in C.M.A. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] and the decision of Apex Court referred in the said case namely Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC), the ratio laid in these decisions would be applicable in such matters where Tribunal takes hyper technical stand in dismissing the claim petition which is filed under the beneficial piece of legislation. Despite the fact that judgment of Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9 was very much in vogue, the Tribunal has dismissed the claim petition holding that there are discrepancies in the evidence of prosecution witnesses.

16. Now, we take up the issue of negligence as to who was negligent in the accident. 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.

17. 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.

18. 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."

19. The learned Tribunal has failed to consider the above aspect while dismissing the claim petition. Hence, this appeal requires to be allowed and the impugned judgment and award of the Tribunal dismissing the claim petition being against the mandate of law and facts requires to be quashed.

20. The First Information Report was lodged by the brother of the deceased and it was averred that at the time of accident, the deceased was coming from Ghaziabad Railway Station on his bicycle after completing his duty. When the deceased took turn from G.T. road towards his house, the vehicle hit him from behind but in oral testimony, the witnesses twisted the statements and deposed that at the time of accident, deceased was stationary on bicycle beside the road, which cannot be accepted. Moreover, the site plan also goes to show otherwise. The site plan is in-consonance with the averments of F.I.R. that the accident took place when the deceased took turn towards his house from G.T. road. Copy of site plan is annexed in paper book, which goes to show that there was a divider on G.T. road and there is also a cut in the divider for crossing the road towards otherwise. The accident had taken place at the point where there is opening in the divider and the deceased is shown going and turning towards his right side from the road and offending motorcycle is shown coming from behind. The driver of motorcycle should have slowed down the speed of motorcycle, when he was approaching the place of accident in the divider because it is used for crossing the road and if it would have been done by the driver of the motorcycle, the accident could have been avoided.

21. In fact whether the deceased was also negligent has also to be decided and that he took turn towards right side from middle of the road without ensuring that any vehicle is not coming from behind because if this precaution would have been taken by the deceased, then also the accident could have been avoided. But it is seen that neither the driver of the motorcycle nor the deceased took any precaution due to which the accident could have been avoided. Both are co-authors of the accident. Hence, we hold that driver of the motorcycle and the deceased were both negligent in driving in their respective vehicles, hence, we hold the negligence of the driver of motorcycle and the deceased to the tune of 50% each.

22. The counsel for the respondent contended that no amount can be granted as the petition was dismissed and requested to reject the appeal and to the alternative or remand the same to the Tribunal to decide the compensation. The contentions are rejected in view of the decision in Bithika Mazumdar Vs. Sagar Pal, (2017) 2 SCC 748, and this Court feels that as nine years have elapsed from filing of appeal and that the record is before this Court, instead of directing the parties to go before the Tribunal only for the assessment of compensation as the deceased was a salaried person which could cause further delay rather it would be more justifiable if this Court decides the quantum as this Court has to decide only quantum under Section 166 of the Act, 1988 which would be the final amount payable to the claimants.

23. The compensation to be awarded is on the settled legal principles enunciated in the judgments of the Apex Court relating to persons who was in government job. Therefore, we are deciding the compensation here. Hence, we decide the compensation here without relegating the petitioners to the MACT as the record is here. There is no dispute about the salary which is proved by cogent evidence and, therefore, as nine years have already elapsed. We rancher to decide the compensation here without relegating the parties to the Tribunal as the other issues have been decided by the Tribunal meaning thereby that the policy of the vehicle was invoked and there was no breach of policy. The driver of the motorcycle had proper driving licence and, therefore, the Tribunal's view is so vulnerable that it cannot stand the scrutiny of this Court.

24. Now, we take up the issue of quantum of compensation payable to the appellants-claimants. As per the claim petition, the deceased was serving in Northern Railway in account section and was getting salary at Rs.61,635/- per month.

25. Learned counsel for the appellants-claimants has submitted that Senior Section Officer/Accounts of Northern Railway is produced as P.W.-4 before the learned Tribunal who has proved the income of the deceased. It is also submitted that deceased was a government servant, hence he was entitled to get compensation for future loss of income also.

26. Learned counsel for the Insurance Company has submitted that net income of the deceased is shown at Rs.30,926/- per month, which is to be taken into consideration. The accident of the deceased had taken place on 09.01.2013, hence, salary slip for the month of December, 2012 is relevant, which is on record. The aforesaid salary slip is proved by P.W.-4 Ashok Kumar, Senior Section Officer/Accounts, Northern Railway, who has deposed before the learned Tribunal on producing the original records.

27. As per the testimony of P.W.-4, the gross monthly salary of the deceased was Rs.61,635/-. As per the judgment of Hon'ble Apex Court in Vimal Kanwar and Others VS. Kishore Dan and Others, 2013 0 Supreme (SC) 441, the component of income tax would be deducted from the salary and provident fund shall not be deducted. Hence, out of gross salary, Rs.6,425/- towards income tax and Rs.700/- towards deduction for railway society and Rs.30 for insurance shall be deducted. Hence, the computable salary comes at Rs.54,480/- per month.

28. The age of the deceased was 57 years, hence in light of the decision of the Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613 and National Insurance Co. Ltd. Vs. Pranay Sethi and Others, 2017 LawSuit (SC) 1093, and due to being employed and having the age of 57 years, 15% shall be added towards future prospects in the income of the deceased.

29. Keeping in view the number of dependents, 1/3rd shall be deducted for personal expenses. The multiplier of 9 has to be applied. Under the non pecuniary head, claimants-appellants shall be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- for funeral expenses. Apart from it, wife of the deceased shall also be entitled to get Rs.40,000/- for loss of consortium. In this way, claimants shall get Rs.70,000/- under the head of non pecuniary damages with increase of 10% for every three years as per the judgment of Apex Court in Pranay Sethi (Supra) rounded off Rs.1,00,000/-.

30. The total compensation payable to the appellants are computed herein below:

(i) Annual income Rs.54,480/- per month X 12 = Rs.6,53,760/- per annum.

(ii) Percentage towards future prospects : 15%. Rs.98,064/-

(iii) Total income : Rs.6,53,760 + Rs.98,064/- = Rs.7,51,824/-

(iv) Income after deduction of 1/3rd : Rs.5,01,216/-

(v) Multiplier applicable : 09

(vi) Loss of dependency : Rs.5,01,2016 X 09 = Rs.45,10,944/-

(vii) Amount under non pecuniary head: Rs.70,000/- +30,000/- = 1,00,000/-

(viii) Total compensation: Rs.45,10,944/- + Rs.1,00,000/- = Rs. 46,10,944/-

(ix) Amount after 50% deduction towards contributory negligence :

Rs.46,10,944/- - Rs23,05,472/- = Rs.23,05,472/-

31. 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."

32. In view of the above, the appeal is allowed. Judgment 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.

33. 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 be passed by Tribunal.

34. 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.

35. The Tribunal shall follow the guidelines issued by the Hon'ble Apex Court in Bajaj Allianz General Insurance Company Pvt. Ltd. Vs. Union of India and Others, vide order dated 27.01.2022, 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.

Order Date :- 30.05.2022

P.S.Parihar

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