U.P.S.R.T.C. vs Smt. Sushma Singh And Others
2023 Latest Caselaw 19829 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC:153314
 

 
Court No. - 44
 

 
Case :- FIRST APPEAL FROM ORDER No. - 476 of 1999
 

 
Appellant :- U.P.S.R.T.C.
 
Respondent :- Smt. Sushma Singh And Others
 
Counsel for Appellant :- Samir Sharma(Senior Adv.),Dinkar Mani Tripathi
 
Counsel for Respondent :- Daya Shankar Prasad Singh,Ram Niwas Singh,V.K. Chandel
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. By way of this appeal, the U.P.S.R.T.C. has challenged the judgment and decree dated 5.2.1999 passed by Motor Accident Claims Tribunal / VII-Additional District Judge, Jaunpur (hereinafter referred to as 'Tribunal') in M.A.C.P. No.9 of 1986 (Smt.Sushma Singh and others vs. UP State Road Transport Corporation) awarding sum of Rs.3,26,400/- as compensation to the claimants with interest at the rate of 10% per annum from the date of filing the claim petition.

2. Heard Mr.Dinkar Mani Tripathi, learned counsel for the U.P.S.R.T.C. and Mr.V.K. Chandel, learned counsel for the claimant-respondent No.1.

3. The brief facts of the case are that claimants filed Motor Accident Claim Petition before the Tribunal for claiming the compensation under Motor Vehicles Act, 1988 for the death of Harish Mohan Singh in a road accident with the averments that on 15.10.1995 at about 6.45 p.m., after discharging his duty, the deceased was going home, a bus of corporation bearing No.UTQ-4151 hit the deceased. In this accident, deceased sustained very serious injuries and died on the spot. The Tribunal considered the income of the deceased as Rs.2,400/- per month, deducted 1/3rd as personal expenses and applied multiplier of 17. Total compensation granted by the Tribunal is Rs.3,26,400/- with 10% rate of interest.

4. The appeal is preferred by the UPSRTC challenging the award of compensation passed in favour of the claimants. It would be worthwhile to mention that the claimants have also challenged the award by way of filing the cross-objection on the ground that the Tribunal did not consider the grant of future prospects though the deceased was 31 years of age and was a salaried person, namely, compensation was awarded on lower side.

5. The grounds raised by the appellant herein would first be required to be looked into as to whether the deceased died due to involvement of bus belonging to appellant was also liable for causing the accident as that is one of the grounds raised in the memo of appeal namely that the bus of the corporation was not involved in the accident on the alleged date of accident and/if the court comes to be conclusion that it was involved then 90% of negligence was that of the deceased in causing the accident as the deceased was negligently driving his scooter and that is how the accident occurred.

6. It is further submitted by counsel for appellant that evidence of PW-2 being heavily interested person has been placed reliance by the Tribunal whereas the testimony of driver of the bus, who is the best witness has been disbelieved. It is next submitted that the insurer and owner of the scooter had not been impleaded and, therefore, the award is bad. On compensation also, it is submitted that total compensation of Rs.3,26,400/- with multiplier of 17 is on the higher side. The interest at the rate of 10% is also on higher side.

7. While going through the record the submission that the vehicle was not involved in the accident cannot be accepted as the charge-sheet, FIR and the oral testimony of DW-1 belies this theory of the UPSRTC as to the involvement of the vehicle. This takes to the Court to the fact whether the accident occurred due to the contributory negligence or the sole negligence of the bus of the corporation.

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 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 )

10. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:

"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant."

11. Issue Nos. 1 and 2 have been decided against the appellant. The factual scenario on the basis of negligence cannot be found fault with. The accident occurred on 15.10.1995 on account of collision between two vehicles of unequal magnitude, therefore, on the principles of negligence, the Tribunal on the basis of the evidence has held that it was the driver of the bus, who was solely negligent. This finding is concurred by this Court.

12. As far as compensation is concerned, it is true that the age of the deceased was 31 years and multiplier of 17 could not be awarded. The interest at the rate of 10% should have been 9%. On this count, the compensation will have to be re-evaluated.

13. The income of the deceased to be Rs.2,400/- per month as decided by the Tribunal is not disturbed. The deceased will fall within the category of salaried person and his age was 31 years at the time of accident, 50% shall be added towards future loss of income and 1/3 shall be deducted for personal expenses as held by Hon'ble Apex Court in National Insurance Company vs. Pranay Sethi [2014 (4) TAC 637 (SC)]. Keeping in view the age of the deceased, multiplier of 18 will be admissible in the light of the judgment of Hon'ble Apex Court in the case of Smt.Sarla Verma vs. Delhi Transport Corporation [2009 (2) TAC 677 (SC)].

14. As far as non-pecuniary damages are concerned, the Tribunal has not awarded any sum towards non pecuniary damages. In the light of Judgment in the case of Pranay Sethi (supra), claimant shall be entitled to get Rs.70,000/- + Rs.30,000/- for loss of consortium in the light of the judgment of Hon'ble Apex Court in the case of Kurvan Ansari alias Kurvan Ali and another vs. Shyam Kishore Murmu and another [2021 (4) TAC (SC)].

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

(i) Annual Income : Rs. 2,400/- x 12 =28,800/- per annum

(ii) Percentage towards future prospects 50% : Rs. 14,400/-

(iii) Total income : Rs. 28,800/- + Rs.14,400/- = Rs. 43,200/-

(iv) Income after deduction 1/3 : Rs.43,200/- - Rs.14,400/- = Rs.28,800/-

(v) Multiplier applicable : 16

(vi) Loss of Dependency : Rs. 28,800/- x 16 = Rs.4,60,800/-

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

(viii) Total compensation : Rs.4,60,800/- + Rs.1,00,000/- = Rs.5,60,800/-

16. As far as issue of rate of interest is concerned, it should be 9% per annum from the date of filing claim petition till judgment of Tribunal and 6% per annum thereafter till amount is deposited.

17. In view of the above, the appeal as well as the cross-objections are partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The appellant shall deposit the additional amount within a period of 12 weeks from today with interest as directed above. The amount already deposited be deducted from the amount to be deposited. Record and proceedings be sent back to the Tribunal forthwith.

18. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers.

19. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguri P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount. The said decision has also been reiterated by High Court Gujarat in R/Special Civil Application No.4800 of 2021 (The Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS) decided on 5.4.2022.

20. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.

21. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. 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. As long period has elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.

Order Date :- 31.7.2023

LN Tripathi