Allahabad High Court
Radhey Shyam Jawarani And Others vs Walliguru Khan And Others on 20 April, 2023
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
AFR
Court No. - 19
Case :- FIRST APPEAL FROM ORDER No. - 189 of 1993
Appellant :- Radhey Shyam Jawarani And Others
Respondent :- Walliguru Khan And Others
Counsel for Appellant :- S.P.Shukla,Abhishek Dhaon,Sankalp Mehrotra
Counsel for Respondent :- M.S.Kotwal
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 190 of 1993
Appellant :- The New India Assurance Co. Ltd.
Respondent :- Radhey Shyam Jawarani And Others
Counsel for Appellant :- M.S. Kotwal,Inderpreet Singh Chadha
Counsel for Respondent :- S.P. Shukla,Abhishek Dhaon,Herpal S. Chadha,Sankalp Mehrotra
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 191 of 1993
Appellant :- The New India Assurance Co. Ltd.
Respondent :- Gaurav Kumar Jawarani And Others
Counsel for Appellant :- M.S. Kotwal,Inderpreet Singh Chadha
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 193 of 1993
Appellant :- The New India Assurance Co. Ltd.
Respondent :- Radhey Shyam Jawarani And Others
Counsel for Appellant :- M.S. Kotwal,Inderpreet Singh Chadha
Counsel for Respondent :- S.P. Shukla,Abhishek Dhaon,Herpal S. Chadha,Sankalp Mehrotra
Alongwith
Case :- FIRST APPEAL FROM ORDER No. - 196 of 1993
Appellant :- Gaurav Kumar Jawarani
Respondent :- Walliguru Khan And Another
Counsel for Appellant :- S.P.Shukla,Abhishek Dhaon,Sankalp Mehrotra
Counsel for Respondent :- M.S.Kotwal,Herpal S. Chadha,Inderpreet S. Chadha
Along with
Case :- FIRST APPEAL FROM ORDER No. - 198 of 1993
Appellant :- Radhey Shyam Jawarani
Respondent :- Walliguru Khan And Another
Counsel for Appellant :- S.P.Shukla,Abhishek Dhaon,R.P.Shukla,Sankalp Mehrotra
Counsel for Respondent :- M.S.Kotwal,Herpal S. Chadha,Inderpreet S. Chadha
Hon'ble Jaspreet Singh,J.
1. This is a bunch of six appeals preferred under section 173 of the Motor Vehicles Act 1989. Three appeals have been preferred by the claimants seeking enhancement of the award whereas the other three appeals have been instituted by the insurance company assailing the award. Since the issue of enhancement shall come subsequent as it first has to be determined whether the award passed by the Tribunal is in order. In case if the award survives only then the issue of enhancement shall be considered and in view thereof this Court proposes to take up the three appeals first which have been preferred by the insurance company.
2. The record would indicate that in the appeals filed by the Insurance Company, an application for substitution has been moved as the respondent no. 3 Sri Kungoo Mal had expired and he is survived by his son Radhey Shyam Jawarani. Significantly, despite the applications having been moved by the Insurance Company in the appeals filed by them yet the appellants of the other three appeals which have been filed by the claimants have not moved similar application for substitution.
3. Be that as it may, considering that the application for amendment is on record in few appeals which are being allowed as there is no issue of abatement as the legal heir is already on record, consequently, the said application shall also enure to the benefit of three other appeals filed by the claimants. The learned counsel for the appellant Sri I.P.S. Chaddha is permitted to carry out the necessary amendment in all the six appeals during the course of the day.
4. To put the controversy in a perspective, certain brief facts giving rise to the instant appeals are being noticed hereinafter: -
5. On 02.01.1992, Sri Radheshyam Jawarani was driving a Fiat car bearing number UGC 2184 and was returning from Lucknow to Sitapur. The said car belonged to Sri Kungoo Mal, the private respondent no 3 in the claim petition. Shri Kungoo Mal is the father of Radheshyam Jawarani. Radheshyam Jawarani was travelling along with his wife Janki and his two daughters and a son. It is also the case that on the fateful day that is 02.01.1992 when the car being driven by Radheshyam Jawarani had reached near Village Barabhari P.S. Kairabad on Lucknow Sitapur Road at the relevant time a truck bearing number UP 77/9256 was parked in the center of the road. The truck did not have any of its indicators or any reflectors to caution that the truck was stationary on the road. However, a small boy suddenly dashed across the road from one side to another and in order to save the said boy, the car of Radheshyam Jawarani dashed with the stationary truck. It is in this accident that Radheshyam and his son Gaurav sustained injuries whereas his wife Janki sustained grievous injuries and while she was taken to the district hospital at Sitapur, where she was declared dead.
6. It is in respect of this accident that three claim petitions came to be filed before the Motor Accidents Claims Tribunal/4th ADJ, Sitapur, (I) Claim petition No. 66/92 was filed by Radheshyam along with his daughters and sons for the compensation on account of death of Smt. Janki. (II) Claim petition bearing No. 67/92 was filed by Radheshyam for the injuries sustained by him. (III) Claim petition bearing No. 68/92 was filed by Gaurav for the injuries sustained by him.
7. After due contest, claim petition No. 66/1992 was allowed and the Tribunal awarded a sum of ₹ 5,36,100/-along with interest at the rate of 15% per annum. This award dated 25.05.1983 has been challenged by the Insurance Company in F.A.F.O. No. 193 of 1993 whereas the said award is under challenge seeking enhancement in F.A.F.O. No. 189 of 1993 filed by the claimants.
8. The claim petition No. 67/92 filed by Radheshyam for the injuries sustained by him was allowed and a sum of Rs. 40,000/- was awarded by the Tribunal along with interest at the rate of 15% per annum and this award dated 25.05.1993 is challenged by the Insurance Company in F.A.F.O. No. 190 of 1993 whereas the said award is challenged by the claimant seeking enhancement in F.A.F.O. No. 198 of 1993.
9. The Claim petition No. 68/92 filed by Sri Gaurav Zawrani for the injuries sustained by him was also allowed for a sum of Rs. 40,000/- along with interest at the rate of 15% per annum and this award dated 25.05.1993 challenged by the Insurance Company in F.A.F.O. No. 191 of 1993 whereas the said award dated 25.05.1993 is challenged by the claimant seeking enhancement in F.A.F.O. No. 196 of 1993.
10. Thus, it would be seen that F.A.F.O. Nos. 189 of 1993, 198 of 1993 and 196 of 1993 are the three appeals which have been filed by the claimants for seeking enhancement of the awarded sum vide award dated 25.05.1993. On the other hand three appeals have been filed by the insurance company bearing number 193 of 1993 which assails the award passed in claim petition No. 66 of 1992. The F.A.F.O. 191 of 1993 arises out of the award passed in Claim Petition No. 68 of 1992 relating to the award passed in favour of Gaurav and the appeal bearing number 190 of 1993 challenges the award passed in Claim Petition No. 67 of 1992 relating to the award in favour of Radheshyam for the injuries sustained by him.
11. It is in the aforesaid backdrop, as all the six appeals arise out of the same accident relating to the same parties in question and involving similar questions of both law and fact therefore this court has clubbed together all the six appeals which have been heard together and are being decided by this common judgment.
12. The court for the sake of convenience is taking up the three appeals preferred by the insurance company that is bearing F.A.F.O. No. 193 of 1993, F.A.F.O. No. 191 of 1993 and F.A.F.O. No. 190 of 1993 first.
13. Shri IPS Chaddha learned counsel appearing for the insurance company has assailed the award dated 25.05.1993 in the three appeals on primarily two grounds. It is urged by the learned counsel that the Tribunal fell in error in passing the award in Claim Petition No. 66 of 1992 which related to the compensation on account of death of Smt. Janki. It is submitted that Smt. Janki was travelling in the car which belonged to Sri Kungoo Mal and as the insurance policy did not cover any other person other than the driver, hence, no compensation could have been awarded on account of death of Smt. Janki. It is also submitted that there is a clear finding that the accident had occurred wherein the driver of the car which is insured by the insurance company was not negligent even then the award has been passed against insurance company which is not sustainable.
14. It is submitted that as per the version in the claim petition ,the Fiat car was being driven by Radheshyam and in order to save a boy who suddenly crossed the road, Radheshyam dashed with the stationary truck. The Tribunal has also returned a finding that in the said accident Radheshyam was not negligent rather it was the offending truck which was parked in the centre of the road which caused the accident and for the said reason without fastening the entire liability on the truck owner and in absence of impleading the insurer of the said truck, the award passed against the appellant insurance company is bad in the eyes of law.
15. It is also urged that if at all the award is to be satisfied the same was the liability of the insurer of the truck or its owner and it could not be fastened on the insurance company who had insured the Fiat car bearing No. UGC 2184.
16. It is also submitted that where no negligence has been attributed to the car owner which is insured with the appellant and it is also not a case of contributory negligence yet apportioning half of the awarded sum on the appellant and the other half on the owner of the offending truck is erroneous and by doing this the Tribunal has completely misdirected itself which has resulted in miscarriage of justice.
17. In so far as the award passed in the case of Smt. Janki is concerned, it is submitted by Sri Chaddha that the Tribunal has awarded a total sum of Rs. 5,36,100/- but from a bare perusal of the award, it would indicate that the Tribunal has arrived at the aforesaid sum by resorting to surmises and conjectures. There is no proper consideration and even otherwise on the given facts and the material on record there was no question of any enhancement, inasmuch, as it would indicate that the Tribunal has erroneously awarded a sum of Rs. 1,78,100/- towards non-pecuniary benefits but has disclosed no reason as to how the aforesaid amount has been arrived at.
18. The ground upon which the award passed in the claim petitions filed by Radheshyam and Gaurav is concerned, it is urged that Radheshyam and Gaurav could not establish any injury sustained by them nor did they lead any evidence regarding their injuries, treatment and in absence of any documentary evidence to establish the same, the amount which has been awarded is not appropriate and is hugely excessive rather the claim petitions ought to have been dismissed for want of evidence.
19. It is further urged that a mere statement was recorded in evidence that Sri Radheyshyam had spent a sum of Rs. 60,000/- on his treatment and on the treatment of his son Gaurav. It is also urged that it is alleged that the said treatment was made in the nursing home at Lucknow but there is no document to indicate whether the claimant Radheshyam and Gaurav were ever admitted or treated in the said nursing home as there is no evidence oral or documentary to indicate the date upon which they were admitted or were under treatment. There is no prescription nor there is any receipt for the medicines bought. It is alleged that Radhey Shyam had six broken teeth but there is nothing to substantiate it, accordingly, there is no question of enhancement of the award rather the amount which has been awarded also deserves to be set aside as without establishing the injuries as well as the amount spent on the treatment, the award could not have been passed.
20. Thus, it is submitted that the Tribunal has erred in fastening the liability of the award on the appellant company. it is urged that the award cannot be enhanced and in light of the submissions made in context with the appeals preferred by the insurance company wherein the award has been challenged, the award itself deserves to be set aside and the appeals of the insurance company deserves to be allowed whereas the three appeals preferred by the claimant respondents deserves to be dismissed.
21. Shri Sankalp Mehrotra, learned counsel appearing for the claimant-respondents has submitted that the submission of the counsel for the insurance company is not tenable for the reason that it was a clear case of composite negligence and in the aforesaid circumstances it is open for the claimants to seek the awarded sum from either the truck owner or the car owner. It is urged that insofar as the claim petition relating to death of Smt. Janki is concerned, since she was travelling in the car and was a third party and there is a clear finding that she had not contributed to the accident in any manner as the car was being driven by Radheshyam, thus, it being a case of composite negligence as a result of which Smt. Janki expired leaving behind her legal heirs who are the claimants and they are entitled to claim the compensation and also recover the same from the insurance company as the car involved bearing No. UGC 2184, in question, was insured and involved in the mishap.
22. It is also submitted that the car was badly damaged and the appellant company has already cleared the claim for the damage and loss occurred to the car and as such at this stage it is not open for the insurance company to allege that the insurance company is not going to honour the award. It is further submitted that insofar as the injuries sustained by Radheshyam and Gaurav was concerned, their claim petition have been rightly allowed as it was clearly established by the evidence on record that they had sustained injuries and for the aforesaid reasons the appeals filed by the insurance company deserve to be dismissed.
23. Shri Mehrotra learned counsel for the claimants while pressing his appeals for enhancement submits that the Tribunal has erred in directing 50% of the amount awarded to be recovered from the appellant insurance company and though it was a case of composite negligence and apportioning the liability inter-se between the truck owner and the insurance company of the car could have been done but the rights of the claimant-appellants could not be limited to 50% rather the claimants are entitled to receive the entire sum from either the insurance company or the truck owner or both and it would be open for the insurance company or the truck owner to recover the apportioned part from the other, as the case may be, after satisfying the award in full to the claimants and to the aforesaid extent, the award requires to be modified.
24. It is also submitted that Smt. Janki was an income tax payee and she had her own income and considering her age, while awarding compensation future prospects have not been provided nor the Tribunal has awarded appropriate sum towards non-pecuniary benefits, thus the award deserves to be enhanced for non-pecuniary benefits after factoring her future prospects.
25. It is also submitted that the Tribunal has erred in not awarding appropriate compensation towards injuries sustained by Radhey Shyam and Gaurav and though a sum of Rs. 60,000/- was claimed in respect of the two claim petitions but only a sum of Rs.40,000/- each awarded which is on the lower side and accordingly the award deserves to be enhanced in this respect as well.
26. The Court has heard the learned counsel for the parties and also perused the material on record.
27. In order to resolve the controversy, the facts as pleaded by the parties, require to be noticed.
28. To recapitulate, it is the case of the claimants-appellants that on the fateful day i.e. 02.01.1992 Sri Radhey Shyam Jawarani was driving his Fiat Car bearing No. UGC 2184 and in the said Car his wife Smt. Janki, his son Sri Gaurav Jawarani and his two daughters and a servant were returning from Lucknow to Sitapur. As soon as the car neared Village Barabhari, P.S. Khairabad on Lucknow Sitapur road, a small boy suddenly rushed to cross the road and in order to save the said boy, Sri Radhey Shyam Jawarani hit the stationary truck which was parked in the centre of the road and that too without any indicators or any reflector to put the people to notice that the truck was stationary.
29. It is also the case of the claimants that the accident was an outcome of negligence of the truck driver as there was no occasion for the truck driver to park the truck in the centre of the road and noticing that the accident occurred on 02.01.1992 i.e. during winter time when the sun sets early and at the relevant time i.e. 06:30- 07:00 PM, it was dark and without proper indicators or reflector, the driver of the car could not contemplate that the truck was stationary and since he was attempting to save the boy who suddenly crossed the road, he hit the truck instead. It was the duty of the truck driver to have ensured that the truck was not left unattended in the centre of the road without adequate precautions.
30. The Tribunal has also returned a finding that there was no negligence on the part of the car driver rather the negligence has been found to be that of the truck driver/owner. In this regard, it will also be relevant to notice that no appeal has been preferred by the truck owner nor any cross objections has been filed by him.
31. The effect of non-filing of a cross appeal or cross objections is that the finding returned by the Motor Accident Claim Tribunal in so far as the negligence of the truck owner/driver is concerned remains intact and is liable to be accepted by this Court in absence of any challenge or material to the contrary.
32. Now, in the aforesaid backdrop if the contention of the learned counsel for the Insurance-company is examined, it reveals that the thrust of the submission lies in the fact that where the negligence has been attributed to the offending truck and no negligence has been attributed to the Fiat car which is insured with the Insurance-company, hence, under these circumstances, the Insurance-company cannot be fastened with the liability to honour half of the awarded sum leaving the other half to be recovered from the truck owner rather if the award survives then the entire liability of the award ought to be fastened on the truck owner.
33. In order to meet the aforesaid argument, it has been urged by the learned counsel for the claimant-respondents that it was a case of composite negligence and not contributory negligence and thus in so far as the claimants are concerned, they are entitled to recover the same from the Insurance Company or the truck owner as their liability is both joint and several.
34. In order to explore the aforesaid dissenting arguments, it will be first necessary to notice the difference between contributory negligence and composite negligence. In case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the loss, injury or damage sustained by him in the accident to the extent of his negligence. Whereas in composite negligence, a person who has suffered has not contributed to the accident but has suffered due to the combination of outcome of negligence of two or more wrong doers.
35. The difference between the two type of negligence in context with a motor accident has been very well explained by the Apex Court in Khenyei Vs. New India Assurance Company Limited and others; (2015) 9 SCC 273 and the relevant paragraphs reads as under:-
"15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident 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 due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan [(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer 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 : (SCC pp. 750-51, paras 6-7)
"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 wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, 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 wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer 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 on 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 stand reduced in proportion to his contributory negligence.
36. 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."
The decision in T.O. Anthony v. Karvarnan [(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] has been relied upon in A.P. SRTC v. K. Hemlatha [(2008) 6 SCC 767 : (2008) 3 SCC (Cri) 34] .
16. In Pawan Kumar v. Harkishan Dass Mohan Lal [(2014) 3 SCC 590 : (2014) 2 SCC (Civ) 303 : (2014) 4 SCC (Cri) 639] , the decisions in T.O. Anthony [(2008) 3 SCC 748 : (2008) 1 SCC (Civ) 832 : (2008) 2 SCC (Cri) 738] and Hemlatha [(2008) 6 SCC 767 : (2008) 3 SCC (Cri) 34] have been affirmed, and this Court has laid down that where the plaintiff/claimant himself is found to be negligent jointly and severally, liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. He is entitled to damages not attributable to his own negligence. The law/distinction with respect to contributory as well as composite negligence has been considered by this Court in Machindranath Kernath Kasar v. D.S. Mylarappa [(2008) 13 SCC 198 : (2009) 3 SCC (Cri) 519] and also as to joint tortfeasors. This Court has referred to Charlesworth and Percy on Negligence as to cause of action in regard to joint tortfeasors thus : (Machindranath Kernath Kasar case [(2008) 13 SCC 198 : (2009) 3 SCC (Cri) 519] , SCC p. 212, para 42)
"42. Joint tortfeasors, as per 10th Edn. of Charlesworth & Percy on Negligence, have been described as under:
''Wrongdoers are deemed to be joint tortfeasors, within the meaning of the rule, where the cause of action against each of them is the same, namely, that the same evidence would support an action against them, individually.... Accordingly, they will be jointly liable for a tort which they both commit or for which they are responsible because the law imputes the commission of the same wrongful act to two or more persons at the same time. This occurs in cases of (a) agency; (b) vicarious liability; and (c) where a tort is committed in the course of a joint act, whilst pursuing a common purpose agreed between them.'"
17. The question also arises as to the remedies available to one of the joint tortfeasors from whom compensation has been recovered. When the other joint tortfeasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided. Apportionment of composite negligence cannot be made in the absence of impleadment of joint tortfeasor. Thus, it would be open to the impleaded joint tortfeasors after making payment of compensation, so as to sue the other joint tortfeasor and to recover from him the contribution to the extent of his negligence. However, in case when both the tortfeasors are before the court/Tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tortfeasor can recover the amount so determined from the other joint tortfeasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.
18. This Court in National Insurance Co. Ltd. v. Challa Upendra Rao [(2004) 8 SCC 517 : 2005 SCC (Cri) 357] with respect to mode of recovery has laid down thus : (SCC p. 523, para 13)
"13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."
22. What emerges from the aforesaid discussion is as follows:
22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several.
22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
22.3. In case all the joint tortfeasors 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 tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the 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 the main case one joint tortfeasor can recover the amount from the other in the execution proceedings.
22.4. 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 tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award."
37. The aforesaid decision of Khenyei (supra) was followed by this Court in F.A.F.O. No. 126 of 2010 (Smt. Suman and Others Vs. Smt. Anisa Begam and Another) along with other connected matters which was decided on 22.02.2019.
38. Having noticed the settled legal position regarding the contributory and composite negligence and applying it to the present case, it would indicate that in so far as the case of Smt. Janki is concerned, it can be a case of composite negligence so also the case of Gaurav Jawrani but in so far as the case of Radhey Shyam Jawrani is concerned, it cannot be treated to be a case of composite negligence.
39. As noticed above where a person contributes to the wrong doing then it is a case of contributory negligence and in the instant case, the Fiat Car bearing No. UGC 2184 was being driven by Sri Radhey Shyam Jawrani and as such the manner in which the accident has occurred which has been noticed in the previous paragraphs, it was a case where the car being driven by Sri Radhey Shyam Jawrani hit a stationary truck and the only two vehicles involved was the Fiat Car and the stationary truck.
40. In this scenario, after going through the evidence which was led by Sri Radhey Shyam Jawrani, it would indicate that he had deposed that around 06:30-07:00 PM on 02.01.1992 while a boy suddenly crossed the road and also the lights from an oncoming truck from the opposite directions had blinded Radhey Shyam Jawrani, hence, in order to avoid a collision with the oncoming truck as well as save the boy, he could not see the stationary truck and he dashed against it. The manner in which the accident has occurred and explained in the deposition, it cannot be said that there was no role of the car driver at all. It may be true that the truck ought not have been parked on the road without reflectors/indicators but nevertheless in case if the deposition of Sri Radhey Shyam Jawrani is believed in its entirety, it would indicate that he had stated that his speed was about 40 to 50 Kms. per hour and he failed to see the said truck. This also indicates a degree of negligence on the part of the car driver as even from a distance, the driver could have seen the stationary truck from the lights of his own car itself. Another reason why the car driver was also negligent is of the fact that while driving on a highway, it is but natural that all sorts of vehicles including trucks ply and it cannot be said that because of the oncoming lights from a truck, Sri Radhey Shyam Jawrani was blinded and in order to avoid the collision, he dashed in the stationary truck which could not be seen.
41. In view thereof, the negligence of Sri Radhey Shyam Jawrani cannot be ruled out and in the aforesaid facts and circumstances, the Tribunal, though, without recording any finding on contributory negligence in so far as the case of Sri Radhey Shyam Jawrani has yet apportioned the liability 50% on the car as well as 50% on the truck and this apportionment is affirmed by this Court and it is held that Sri Radhey Shyam Jawrani was also responsible and contributed to the accident and the Tribunal has erred in coming to the conclusion that the negligence was solely of the truck owner and it also indicates that the Tribunal has not sifted through the evidence available on record in the right perspective keeping the concept of negligence in mind which the Tribunal is required to inquire in a petition under Section 166 of the Motor Vehicles Act, 1988.
42. In light of the aforesaid, the Court finds substance in the submission of learned counsel for the Insurance Company that the car driver was also negligent and had contributed to the accident.
43. Having said that, it will also be seen that this contributory negligence can only be attributed to the case of Sri Radhey Shyam Jawrani and cannot be extended to the other two namely Smt. Janki and Sri Gaurav. Accordingly, while considering the respective submissions of the parties, the case of Smt. Janki and Sri Gaurav will be considered as a case of composite negligence where the accident is the outcome of wrong doing of two persons namely the car driver and the truck driver/owner and as far as the case of Sri Radhey Shyam Jawrani is concerned that would be treated to be a case of contributory negligence.
44. Now, the stage is set to examine the matter in respect of the claim petitions in context to the submissions advanced by the learned counsel for the respective parties.
A:- Claim of Radhey Shyam Jawarani:-
45. Considering the respective submissions and from the perusal of the material on record, it would be seen that the main contention of the learned counsel for the Insurance Company is that it was a case of contributory negligence and treating the same as such 50% of the award has been apportioned on the Insurance Company whereas the remaining 50% has been apportioned on the truck owner but while dealing with the issue, the Tribunal has held that the negligence was solely of the truck owner. This finding of the Tribunal, noticed above in the preceding paragraphs has been held to be fallacious and accordingly it cannot be said that Sri Radhey Shyam Jawrani did not contribute to the accident. Thus, the case of Radhey Shyam Jawrani is treated as a case of contributory negligence and in this light it will further have to be seen as to how much many injuries and quantum of damages has been sustained and how the amount as granted by the Tribunal can be sustained or enhanced since a contention has been raised by the learned counsel for the Insurance Company that there was no material or evidence to indicate the injuries sustained as well as the amount spent and without considering the material on record a sum of Rs. 40,000/- has been awarded in a mechanical manner.
46. In this context, if the material on record is seen, it would reveal that Sri Radhey Shyam Jawrani deposed before the Tribunal that he had sustained injuries. He further deposed that he was admitted in the District Hospital, Sitapur for few days and thereafter he was even admitted to Krishna Medical Center at Lucknow where he had undergone his treatment which included for even loss of few teeth and on the aforesaid he had to spend about Rs. 60,000/- on his treatment as well on the treatment of his son Gaurav.
47. During his cross-examination, Sri Radhey Shyam Jawrani admitted that he had not filed any document regarding his treatment or regarding the medication. Thus, since there was no material on record to establish the nature of injuries as sustained by Sri Radhey Shyam Jawrani, it is very difficult to fathom as to how the Tribunal arrived at a conclusion to award a sum of Rs. 40,000/- to Sri Radhey Shyam Jawarani. Apparently, the findings returned by the Tribunal in this regard is based on pure surmise and conjecture. If at all, Sri Radhey Shyam Jawrani had sustained injuries as was stated by him in his examination-in-chief then surely he would have adequate documents including his admission and discharge from the District Hospital, Sitapur as well as from Krishna Medical Center at Lucknow. If he had broken few teeth then naturally, he would have consulted a dentist and there ought to have been some x-ray plates but none of this was available or produced before the Court.
48. Even leaving all these facts behind the screen for the time being yet the record reflects that there is not a single prescription by any doctor or any Medication Practitioner. No medicine prescribed nor any receipt for any medical consultation, radiological assistance or medicine purchased and in absence of such vital and important documents, the contention that the claimant Sri Radhey Shyam Jawarani received serious injuries does not find corroboration or support from the material on record. Sri Radhey Shyam Jawrani is admittedly an income tax payee and is having a separate business and being a person well acquainted in business and worldly affairs despite the same he did not file such documents on record to substantiate his contentions which leads to an inference against Sri Radhey Shyam Jawarani.
49. This Court thus finds that the amount as awarded by the Tribunal in case of Sri Radhey Shyam Jawrani is excessive and not based on any evidence. Having said that it will also be relevant to notice that on the record, there is a Insurance Surveyor's Report which also annexes certain photographs of the damaged and mangled Fiat Car and looking into the manner in which the accident occurred and that one of the co-traveller/passenger expired as well as the condition of the car definitely some injuries may have occurred to the driver of the car and taking note of the aforesaid facts and on account of absence of evidence on behalf of the claimants, this Court awards a notional amount of Rs. 5,000/- in favour of the claimant Sri Radhey Shyam Jawrani and also noticing that he contributed to the accident, hence, 50% thereof being attributable to his negligence thus he shall be entitled to recover only 50% of the awarded amount from the truck owner i.e. Walliguru Khan.
50. Thus, in view of the aforesaid F.A.F.O. No. 190 of 1993 is partially allowed and a total sum of Rs. 5,000/- is awarded to the claimant Sri Radhey Shyam Jawrani of which only 50% shall be recoverable from the truck owner Walliguru Khan along with interest at the rate of 9% per annum from the date of the application till the date of its actual payment. Accordingly, the award dated 25.05.1993 passed in Claim Petition No. 67 of 1992 shall stand modified to the aforesaid extent and the appellant company shall not be liable to pay in this regard.
51. In light of the findings given herein, there is no question of enhancing the awarded amount and for the aforesaid reasons the F.A.F.O. No. 198 of 1993 filed by Sri Radhey Shyam Jawrani shall stand dismissed.
B:- Claim of Sri Gaurav Jawarani:-
52. Now coming to the case of Sri Gaurav Jawrani again it would be seen that the Tribunal in this claim, as well, has awarded Rs. 40,000/- and apportioning 50% liability on the truck owner and 50% on the Insurance Company, payable along with interest at the rate of 15% per annum and this has been challenged by the Insurance Company on grounds which have been noticed earlier while noticing the contentions of learned counsel for the respective parties.
53. In this regard, this Court finds that the case of Sri Gaurav Jawrani is one of the composite negligence. At the outset, it may noticed that any apportionment made by the Tribunal is only to determine the inter-se liability between the two joint tortfeasor i.e. the car owner as well as the truck owner. Since it is a case of composite negligence, it is open for the appellant to claim or recover the aforesaid full amount from either of the two joint tortfeasor as their liability is joint and several as has been noticed in the former part of this judgment.
54. It will also be relevant to notice that in the preceding paragraphs it has been held that the car driver was also negligent and was also responsible to the accident to the tune of 50% and also the truck owner for 50% and this Court has also concluded that the findings returned by the Tribunal that it was the sole negligence of the truck owner is not correct. Hence, the case of Sri Gaurav Jawrani being a case of composite negligence and the liability of 50% as ascertained by the Tribunal shall be treated to be the determination of inter-se liability between the two joint tortfeasor.
55. In so far as the contention regarding the quantum awarded is concerned, this Court again finds that there was no material on record to indicate that any injuries was suffered by Sri Gaurav Jawrani. This Court further finds that no reasons have been recorded nor any material has been discussed upon which the Tribunal came to the conclusion that a sum of Rs. 40,000/- is to be paid as compensation to Sri Gaurav Jawarani. For the same reasons, as have been noticed while considering the claim of Sri Radhey Shyam Jawarani in the preceding paragraphs, this Court in the case of Gaurav Jawarani also finds that there is no material to support the amount as awarded. Since he was also travelling in the car and may have sustained some injuries, accordingly, in absence of any documentary evidence or trustworthy evidence of any witness in support of the claim of compensation for injuries suffered to him, this Court grants a notional sum of Rs. 5,000/- to be awarded along with interest at the rate of 9% per annum from the date of the claim application till the date of its recovery. Being a case of composite negligence, Sri Gaurav Jawrani shall be entitled to recover the same from either of the two joint tortfeasor and any of the two joint tortfeasor after satisfying the award shall be entitled to recover 50% from the other in accordance with law as settled by the Apex Court in the case of Khenyei (Supra).
56. In light of the aforesaid discussions and for the reasons aforesaid, the F.A.F.O. No. 191 of 1993 filed by the Insurance Company arising out of Claim Petition No. 68 of 1992 shall stand partly allowed whereas F.A.F.O. No. 196 of 1993 filed by the claimant Sri Gaurav Jawrani for seeking enhancement of the award dated 25.05.1993 shall stand dismissed. The award passed by the Tribunal in Claim Petition No. 68/1992 shall stand modified to the extent as provided herein.
C:- Claim for death of Smt. Janki:-
57. Now, considering the case of Smt. Janki, again it will be seen that it is a case of composite negligence which occurred on account of wrong doing of two joint tortfeasor. It is the case of death which is not disputed and for the reasons as noticed in the preceding paragraphs it has already been held that the car driver was responsible for the accident to the extent of 50% and the Tribunal has erred in not returning a finding of contributory negligence to the above extent.
58. It cannot be disputed by the appellants insurance company that there is nothing to indicate that the deceased had contributed to the accident and as such it was apparently not a case of contributory negligence but is a case of composite negligence.
59. In this context, it would be seen that the claimants had impleaded both Sri Kungoo Mal, the owner of the Fiat Car as well as Waliguru Khan the owner of the truck as the respondents and the Insurance Company with whom the Fiat Car No. UGC 2184 was insured.
60. It is also found that the purpose of apportioning the liability by the Tribunal between the Insurance Company with whom the Fiat Car was insured and the truck owner was for the purposes of inter-se settlement and apportionment of awarded sum between the insurer of the car and the truck owner.
61. It will also be relevant to notice that Sri Kungoo Mal had filed his written statement and admitted the accident. The Insurance Company has also paid Sri Kungoo Mal the amount towards the damage caused to the car. The surveyor of the Insurance Company had made a detailed report which was also placed on record and thus there can be no doubt that in so far as the manner in which the accident occurred, the damage caused to the vehicle and the death of Smt. Janki is not in dispute and the same has been accepted by the Insurance Company.
62. Now, the only issue that remains to be seen is regarding the claim of the heirs of Smt. Janki regarding the enhancement of the award passed in Claim Petition No. 66 of 1992 which has given rise to F.A.F.O. No. 189 of 1993.
63. Though, it was urged by the Insurance Company that the Tribunal without any basis has awarded a sum of Rs. 1,78,000/ towards non-pecuniary benefits which is contrary to the settled principles as laid down by the Apex Court in the case of National Insurance Company Limited vs Pranay Sethi (2017) 16 Supreme Court Cases 680.On the other hand, the claimants state that the Tribunal has not factored for the future prospects.
64. It is taking note of the aforesaid as well as the dictum of the Apex Court in National Insurance Company Ltd. (supra) as well as noticing the material available on record, this Court finds that Smt. Janki was an income tax payee. The record further indicates that her last income tax return was also filed. In the evidence led on behalf of the claimants of Smt. Janki, it was stated that Smt. Janki was having her separate business. It was also stated that the income of Smt. Janki was spent on her children and amongst them, one daughter is differently abled.
65. It is also not disputed that Smt. Janki is survived by her husband, three daughters and two sons. She had her income of about Rs. 5,000/- per month from agriculture and business and she also was paying income tax and was about 40 years of age at the time of her death.
66. It will also be relevant to notice that since in a petition under Section 166 of the Motor Vehicles Act, 1988, the Court has to hold an inquiry to determine the just and proper compensation. It is keeping the aforesaid principles in mind also noticing that the accident occurred in the year 1992 and the appeals have been pending and apparently, the Tribunal did not record appropriate findings and did not appreciate the case in its correct perspective, hence, the Court has taken upon itself to consider the case of the claimants of Smt. Janki being the Appellate Court.
67. It is in this regard the Court considering the material on record and the evidence which indicates that Smt. Janki had her separate income and from business and agriculture and Radhey Shyam Jawarani one of the claimants in Claim Petition No. 66 of 1992, Radhey Shyam Jawarani was not her dependent and one daughter was also married and one was differently abled and thus primarily the income of Smt. Janki was spent on her two daughters out of three and her two sons. Thus, the compensation payable to the legal heirs of Smt. Janki is re-determined as under:-
Income [As per Income Tax Returns]
35,740/- (business)
Add:-20,000/- (agricultural)
----------------------------
55,740/-
Less:-(1,033) Income Tax payable = Rs. 54,707/-annual
Add: Towards Future Prospect @ 25% = Rs. 13,676/-annual
Total Income(54,740+13676/-) = Rs. 68,383 per annum.
Less:- (Since children alone dependents,
hence 1/3rd deducted) = Rs. 45,589 annual
Age = 40 years
Thus compensation payable = Rs. 45,589/- x 15 = 6,83,835/-
Add:- For consortium :- 40,000/-
Loss of Estate :- 15,000/-
Funeral Expenses :-15,000/-
= Rs. 70,000/-
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Thus, total compensation
payable shall be = Rs. 7,53,835/-
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68. Thus, the claimants of Claim Petition No. 66 of 1992 shall be entitled to a total compensation of Rs. 7,53,835/- which shall carry interest @ of 9% per annum from the date of application till the date of its actual payment. The claimants of Claim Petition No. 66 of 1992 shall be entitled to recover the total compensation from either of the two joint tortfeasor and any of the two joint tortfeasor who satisfies the award shall be entitled to recover the 50% of the award from the other joint tortfeasor in accordance with law as settled by the Apex Court in Khenyei (supra).
69. Thus, F.A.F.O. No. 189 of 1993 seeking enhancement of the award passed in Claim Petition No. 66 of 1992 is allowed and F.A.F.O. No. 193 of 1993 filed by the Insurance Company is dismissed subject to above modification. The award dated 25.05.1993 passed in Claim Petition No. 66 of 1992 shall stand modified and enhanced to the aforesaid extent.
70. It is also provided that in case any amount paid to Sri Radhey Shyam Jawarani and Sri Gaurav Jawarani by the Insurance Company which is in excess to the amount now determined in their respective claims for injuries, it becomes recoverable, the same can be adjusted from their share as payable to them in terms of compensation payable to them as legal heirs and dependents of Smt. Janki in Claim Petition No. 66 of 1992.
Conclusions:-
71. In light of the detailed discussions:-
A. F.A.F.O. No. 190 of 1993 of the Insurance Company is partially allowed to the extent as detailed hereinabove and F.A.F.O. No. 198 of 1993 filed by Sri Radhey Shyam Jawarani for enhancement of award is dismissed.
B. F.A.F.O. No. 191 of 1993 of the Insurance Company is partly allowed to the extent as detailed hereinabove and F.A.F.O. No. 196 of 1993 filed by Gaurav Jawarani for enhancement of award is dismissed.
C. F.A.F.O. No. 193 of 1993 of the Insurance Company is dismissed in light of the observations made hereinabove and F.A.F.O. No. 189 of 1993 filed by legal heirs and claimants of Claim Petition No. 66 of 1992 is allowed.
The parties shall bear the respective costs. The records of the Tribunal shall be returned expeditiously.
Order Date :- 20th April, 2023
Asheesh
