M/S Natioanal Insurance Co. Ltd. vs Smt. Wasimunnisha
2023 Latest Caselaw 13994 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 25.4.2023
 
Delivered on 03.5.2023
 
Court No. - 44
 

 
Case :- FIRST APPEAL FROM ORDER No. - 796 of 1993
 

 
Appellant :- M/S Natioanal Insurance Co. Ltd.
 
Respondent :- Smt. Wasimunnisha
 
Counsel for Appellant :- Kuldip Shanker Amist
 
Counsel for Respondent :- Ram Jee Saxena,Raghuvansh Chandra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. This First Appeal From Order is preferred by the appellant-Insurance Company challenging the award dated 27.5.1993, passed by the Motor Accident Claims Tribunal/Additional District Judge, Banda (herein after referred to as 'Tribunal') in M.A.C.P. No.102 of 1989 (Smt.Wasimunnishan and others vs. Battu Ram and another) awarding a sum of Rs.2,94,400/- as compensation to the claimants with interest at the rate of 10% per annum from the date of filing of the petition. The claimants have also filed cross-objection for enhancement of compensation.

2. The brief facts of the case are that aforesaid claim petition was filed before learned Tribunal with the averments that on 2.3.1989 at about 7:00 pm the deceased Mohammad Anwar was going from Pangara to Naraini. In front of the Naraini Dak Bunglow, a tractor bearing No.URE-9674 was also going towards Naraini, which was laiden with iron bars and other agricultural implements on the trolley and the iron bars were protruding outside from the trolley on the back side. There was no red flag or any other cloth for warning nor there was any light on the back side. The tractor driver without giving any indication or blowing horn suddenly stopped the tractor wrongly due to which the iron rod hit the deceased, who was coming from behind on a scooter. The rod hit in the neck of deceased and he died instantaneously. The deceased was pillion of scooter.

3. Heard Shri K.S.Amist, learned counsel for the appellant-Insurance Company and Shri Pravesh Kumar, learned counsel appearing for respondent-claimants. None appears for the owner. Perused the record.

4. By way of this appeal, the appellant-Insurance Company, who has been saddled with liability by the Motor Accident Claims Tribunal, has felt aggrieved by the compensation awarded and by the finding of fact that the driver of the motor-cycle was not negligent. The appellant has felt aggrieved that question of non-joinder of the owner and the Insurance Company of the motor-cycle has been rejected despite the fact that the deceased was the brother of the driver of the vehicle (motorcycle).

5. The appellant even felt that the Tribunal granted compensation despite the fact that the claimants did not prove the dependency by holding that claimants were entitled for compensation being legal representative and that they were dependent on deceased. The Insurance Company was made liable, which finding is assailed as perverse.

6. It is further contended by Insurance Company that the original policy was not produced by the owner despite that the Tribunal did not hold that there was breach of policy condition as the tractor was attached with a trolley and trolley was not insured by it.

7. It is further submitted by learned counsel for the appellant that the driving licence to drive the tractor was either fake or say a learner's licence despite that liability is fixed on the appellant. The liability of the Insurance Company under the Motor Vehicles Act, 1939 will have to be determined from the facts of the case. The defences, which are available to the Insurance Company have been taken by them that the licence was a learner's licence.

8. PW1 has stated that a thresher and the iron rods were loaded on the tractor trolley. Defence Witness No.1 Ram Asrey has stated that a thresher with a machine used for agricultural purpose to cut fodder was there, therefore, the judgment of the Apex Court in the case of Santlal vs. Rajesh AIR 2017 SC 4054 will not permit this Court to take a different view then that taken by the Tribunal that the tractor was being used for agricultural purposes. This takes this Court to the question whether the vehicle was plied against the terms of the policy, namely, that it was used for non-agricultural purposes. The fact that it had a thresher with the trolley will not permit this Court to take a different view and Insurance Company cannot avoid its liability.

9. As far as the driving licence of the driver of tractor is concerned, the finding of fact goes to show that driving licence of the driver of the tractor was produced before the Tribunal and the Tribunal has considered this aspect and has rejected the objection of the Insurance Company. In its finding in paragraph 17 of the judgment of the Tribunal where the contention regarding fake and/or learner's driving licence of tractor driver has been answered by assigning reasons. The document as 91-Ga, which is issued by the Motor Vehicles Department, Banda, on 20.2.1989, which was valid up to 20.2.1994, which has the photo of dirver-Sukhdeo, if the driving licence was a learner's licence, it could not have been for more than one month and, therefore, the Insurance Company cannot avoid its liability only by contending that there was breach of policy condition. In our case, there is no breach of Section 93 of the Motor Vehicles Act, 1939. This fact has been held to be wrongly agitated and the document, which has been considered by the Tribunal while deciding Issue No.2 cannot be found fault with. The finding as to licence being not learner's licence is affirmed on facts proved.

10. The contention that the policy, which was produced was not the policy, but only cover note and hence Insurance Company be exonerated cannot be accepted. A celebrated judgment of the Apex Court in the case of National Insurance Co.Ltd. vs. Jugal Kishore, AIR 1988 SC 719, it is held that it is for the Insurance Company to produce the policy as it has to act fairly. In our case, the owner has the policy and document as exhibited at 91-Ga also supports the finding recorded by the Tribunal, which is confirmed and affirmed by this Court.

11. This takes this Court to the last ground as the tractor being attached with a trolley and trolley was insured with the Insurance Company and, therefore, they are not liable. Whether attaching trolley to tractor and the trolley not insured will be sufficient to exonerate the Insurance Company, the answer is given by the apex court in State of Orissa & others Vs. Bijaya C. Tripathy AIR 2005 SC 1431 and Fahim Ahmad & others Vs United India Insurance Company Ltd and others 2014 (2) T.A.C. 383 (SC) and this High Court in First Appeal From Order No. 1507 of 2003 (UPSRTC through Regional Manager Vs. Smt. Sukha Devi & Others) has held that if there is no fundamental breach of policy, the Insurance Company cannot be exonerated. In our case, tractor was used for carriage of Iron Bars and thresher, which is used for agricultural puposes is not a fundamental breach of policy under Section 147 of the Motor Vehicles Act, 1988 giving rise to the Insurance Company to avoid its liability, the provisions are applicable in accidents under the Act, 1939 also.

12. This Court in First Appeal From Order No. - 381 of 2017 (Doodh Nath Chaurasiya Vs. Kanhaiya Lal And 3 others) decided on 6.12.2017 has held as under:

"7. On issue no 5, the Tribunal has held against the appellant as the trolley was not insured with the Insurance Company. Learned counsel for the appellant has relied on Fahim Ahmad and Others Vs. United India Insurance Company Limited and Others, 2014 LawSuit (SC) 198 and National Insurance Company Limited Vs. V. Chinnamma, 2004 LawSuit (SC) 905 and, therefore, the same cannot be said to be breach of policy condition. The vehicle was in fact being used for agricultural purposes only. There is no other finding as to tractor was used for carrying goods."

13. The question of driver driving the vehicle with LMV license is also now covered by the decision in Mukund Dewangan Vs. Oriental Insurance Company Limited, A.I.R. 2017 (SC) 3668 and Sant Lal Vs. Rajesh and Others, Etc., 2017 (3) R.C.R. (Civil) 757.

14. It is submitted that the claimants were not dependent on the deceased and that the claimants are not the legal representatives of the deceased as they fall in class II heirs under Hindu Succession Act, 1956. This issue is no longer res integra as it is not necessary that the deceased must be the sole bread winner. The term "heirs" which has been time and again interpreted to partake within itself heirs in Class I and Class II heirship would be covered. I am supported in my view by the decision in Smt. Manjuri Bera Vs. Oriental Insurance Company, Limited, AIR 2007 SC 1474. The said decision has been incorporated by this Court in FIRST APPEAL FROM ORDER No. - 199 of 2017, National Insurance Company Limited, Lucknow Vs. Lavkush and another decided on 21.3.2017 speaks about representatives. The adopted son and the brother is said to be representatives falling in class I and class II heirs respectively and, therefore, this submission of the Insurance Company also cannot be accepted hence, the same is rejected.

15. As far as the question whether the claimants are the dependents or not is concerned, this Court concurs with the finding of fact by the Tribunal. The fact that the minor sister and brother are legal representatives and the term used even in the Act, 1939 is legal representative and not dependants. Mother would be also dependent on the deceased.

16. This takes this Court to decide as to who was negligent. At the outset qua deceased even if both drivers are held to be negligent would be a case of composite negligence.

17. 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.

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 (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 )

19. 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."

20. As far as the deceased is concerned, it is a case of composite negligence. There are divergent version of the parties. Even if we accept the version of the driver of the tractor that the tractor was standing and it was on its extreme left and he was went for taking tea. The finding of fact that there was no red-lights, no marks that the vehicle had iron bars. The version of the claimants is that the tractor trolley driver took an abrupt turn and that is how the accident occurred. The driver was also injured on shoulder and the rod pierced the neck of the deceased, who died instantaneously. From the facts, the driver of the motorcycle, who was coming from behind, rather rear side head a duty cast on him, but in this trafficated area, where the distance are very less maintained. His negligence can be set to be 20%. Qua that the Insurance Company ground that there was negligence on the part of the driver has to be accepted. However, claimants are third-party, no amount can be deducted from their share as per the judgment of Khenyei (supra) as it was a case of composite negligence. The amount of 20% can be recovered from the owner and the driver of the scooter, whose number is there in the records and who was the elder brother of the deceased. Hence, this issue is partly answered in favour of the Insurance Company.

21. This takes this Court to the question of quantum and compensation awarded. The compensation will have to be reworked as the submission of Shri K.S. Amist, learned counsel for the appellant, that the multiplier of 400 months could not have been granted has to be accepted. The submission that the claimants were not representatives or dependents on the deceased is answered in favour of claimants and will have to reassessed vis-a-vis the fact that the claimants have filed cross-objection, therefore, the issue of compensation amount admissible to the claimants will have to be recalculated and the said exercise is undertaken. The factual data goes to show that deceased was employed as a Junior Teacher, but his appointment was not as an confirmed employee but was a tranee and, therefore, to that the income of Rs.1,000/- taken by the Tribunal is required to be modified as Tribunal has not considered amount of dearness allowance.

22. The submission of Shri Amist that multiplier of 400 months cannot be given has to be accepted, but at the same time, the submission of learned counsel for the respondent-claimants that the Tribunal did not grant any amount under the head of future loss of income though the deceased was a salaried person. The judgment of Gobald Motor Services Ltd. And another vs. R.M.K. Velusamy, 1962 SCR (1) 929 and General Manager, Kerala S.R.T.C. vs. Susamma Thomas, 1994 SCC (2) 176 will permit this Court at enough figure of 50%, hence, the amount would be Rs.1500/- per month as the deceased was a bachelor, but his younger brother, younger sister and mother were there and it is come on evidence that elder brother after his marriage had started living separately and it was the deceased the sole bread-earner for the family, hence, 1/3 would be deducted. The data figure would be Rs.1,000/- per month, which means Rs.12,000/- per year. The multiplier of 18 will have to be granted in view of the judgments even prevailing in those days and the judgment of Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 ACJ 1298, which has been applied retrospectively also in all pending matters. As it is a matter under the old Act, Rs.50,000/- plus Rs.30,000/- (additional) for non-pecuniary damages would have to be granted.

23. As far as rate of interest is concerned, the rate of interest granted by the Tribunal for the awarded amount is maintained, but the deductions as given by the Tribunal for lump sum amount cannot be accepted. The deduction has to be 1/3 as there were three dependants though the deceased was a bachelor.

24. Hence, the total compensation payable to the appellants and daughters of the deceased as per the discussion above is recomputed herein below:

i. Monthly Income : Rs.1200/-

ii. Percentage towards future prospects : 50% = Rs.600/-

iii. Total income : Rs.1800/-

iv. Income after deduction of 1/3 : Rs.1800/- - Rs.600/- = Rs.1,200/-

v. Annual income : Rs.1,200/- x 12 = Rs.14,400/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.14,400/- x 18 = Rs.2,59,200/-

viii. Amount under non-pecuniary heads : Rs.50,000/- + Rs.30,000/- = Rs.80,000/-

ix. Total compensation : Rs.2,59,200/- + Rs.80,000/- = Rs.3,39,200/-

25. Learned Tribunal has awarded rate of interest at 10% per annum. Thus the compensation of works out to what is granted but is recalculated on the basis of 9% per annum looking to the period of litigation. The additional amount be refunded to Insurance Company from the fix deposit.

26. This Court granted stay, hence, the additional amount is to be deposited calculating amount with 9% rate of interest.

27. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal is modified to the aforesaid extent. The appellant-Insurance Company shall deposit the entire amount within a period of 12 weeks from today with interest @ 9% per annum from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.

28. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [2007(2) GLH 291] and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

Order Date :- 03.05.2023

LNTripathi