Delhi High Court

Sh.Anil Kumar Sharma & Ors. vs Sh.Amod Kumar & Ors. on 4 September, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

               MAC App. No.931-33 of 2006

%            Judgment reserved on: 26th August, 2008

             Judgment delivered on:4th September, 2008


1.Sh.Anil Kumar Sharma
S/o Late Sh.Pyare Lal Sharma
R/o C-286, Shalimar Garden Extn.II
Ghaziabad, U.P.

Office Address:
Estern Div.No.V,
Pocket-I, Delhi Development Authority
Dilashad Gardej, Delhi.

2.Amit Kaushik
S/o Sh.Anil Kumar Sharma

3.Sumit Kaushik
S/o Sh.Anil Kumar Sharma

(Both R/o C-286, Shalimar Garden
Extn.II, Ghaziabad, U.P.                   ....Appellants

                    Through:Mr.S.K.Jain, Adv.


                             Versus

1.Sh.Amod Kumar
S/o Late Sh.Devi Singh Yadav,
R/o Vill. Chhota Lakhora
P.S.Kuraoli, Mainpuri, U.P.

(Driver & legal heir of the owner -was
proceeded ex parte)

MAC App.No.931-33/2006                          Page 1 of 18
 2.Sh.Mohan Singh
S/o Late Sh.Devi Singh
R/o Vill.Chhota Lakhora,
P.S.Kuraoili, Mainpuri, U.P.

(Legal heir of the owner -was proceeded
ex parte)

3.National Insurance Co.Ltd.
Punjab Colony, Mainpuri, U.P.
(Insurer)                                 ...Respondents.

                    Through:Nemo.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         YES

2. To be referred to Reporter or not?                      YES

3. Whether the judgment should be reported
   in the Digest?                                          YES

V.B.Gupta, J.

The present appeal under Section 173 of the

Motor Vehicles Act, 1988 (for short as „Act‟) has been

filed on behalf of the Appellants seeking enhancement

of the compensation as awarded by judgment dated

26th August, 2006 passed by Sh.A.S.Jayachandra,

Presiding Officer, MACT, Delhi for a sum of

Rs.3,66,801/- along with the interest @ 7.5% p.a.

except for the period not specifically allowed.

2. The brief facts of this case are that the appellant

along with his wife and children were going to

Mainpuri, U.P. from Ghaziabad, U.P. in a maruti car

bearing No.DDC-4215 on 8th March, 1998. When the

vehicle reached Village Jamalpur, a truck came from

the opposite side and the truck driver wanted to save

stray animal and applied sudden brakes. The car was

going on the left side and was crossing the truck. It is

also alleged that a tractor was also coming behind the

truck. When the truck driver applied the brakes,

respondent No.1 who was driving tractor bearing

No.UP-84-755, moved towards the right hand side and

negligently struck the maruti car of the appellant

which was being driven by him. There was a head-on-

collision. The maruti car was badly damaged and the

inmates of the car sustained injuries. Wife of the

appellant No.1went into coma. Later on she was

treated in various hospitals and ultimately she died on

23rd October, 1998.

3. Devi Singh was the owner of the tractor, who died

during the pendency of the proceedings pending

before the trial court and his legal heirs who is

respondent No.2 herein the appeal was impleaded. The

offending vehicle was insured with respondent No.3.

4. Respondents 1 & 2 filed the written statement in

the trial court.

5. Respondent No.1 in his written statement has

stated that this respondent did not cause the alleged

accident. The true facts are that respondent No.1 was

much behind the truck and the appellant was driving

the maruti car at a very fast speed. After crossing the

truck, the appellant without caring for the traffic

coming from the front side on the road, started

overtaking a truck which was proceeding ahead of him

and hence dashed against the tractor of the answering

respondent with force as a result of which both the

maruti car as well as tractor of the answering

respondent were damaged badly. Thus, the answering

respondent did not cause alleged accident and it was

appellant No.1 who has caused the accident.

6. Respondent No.3-Insurance Company has

admitted the fact that the tractor in question was

insured with it.

7. The notice of this appeal was issued to the

respondents and all the respondents were duly served.

On 19th March, 2007 counsel for respondents 1 & 2

had put in appearance. Thereafter matter was

adjourned to 18th September, 2007.

8. On 18th September, 2007, none appeared for the

respondent and matter was adjourned to 15th April,

2008.

9. Since 15th April, 2008 was declared as a local

holiday, the matter was taken up on 21st April, 2008.

On that date also, none appeared for the respondents

and the matter was adjourned to 26th August, 2008.

10. On 26th August, 2008, counsel for the appellant

was present but as none appeared on behalf of the

respondents, the matter was passed over and on the

second call again, none appeared for the respondents

and as such arguments advanced by learned counsel

for the appellant have been heard.

11. One of the plea taken by the learned counsel for

the appellant is that the accident took place due to

rash and negligent driving on the part of the tractor

driver and the Tribunal has wrongly attributed

contributory negligence to the appellant to the extent

of 30% and had deducted 30% of compensation

amount for the negligence on the part of the appellant.

12. Other contention is that, the appellant had to

employ a domestic help/Aya at his house for doing the

household work till the deceased remained under coma

at a monthly salary of Rs.1,000/- and after the death of

the deceased, the appellant has to employ another

domestic held/Aya for taking care of minor children

and for doing the house hold work on a monthly salary

of Rs.1,500/- for a period of 2½ years. The Tribunal

has not granted any amount on this account.

13. Further, no amount of compensation towards pain

and sufferings has been awarded, though the deceased

remained admitted in various hospitals from 8th March,

1998, (the date of accident) till 23rd October, 1998, (the

date of her death). During the 7½ months period, the

deceased had undergone great pain and sufferings, but

no compensation has been awarded by the Tribunal on

this count.

14. PW1 has claimed that he had spent around Rs.1.5

Lac on treatment of his wife between 08.03.98 till

23.10.98. He produced the consolidated bill for a sum

of Rs.1,79,445/- but the same is supported by 14

original bills only, rest of the bills were not proved for

want of originals.

15. The total sum of the original bills worth

Rs.74,001/-, which includes the expenses proved by the

Ex.PW2/A to C and Ex.PW4/1 to 4/3, were allowed by

the Tribunal.

16. PW2, Dr. Ashok Kumar has deposed that Meena

Sharma was treated by him between 01.04.1998 to

08.06.1998, 10.06.1998 to 02.08.1998 and 16.08.1998

to 04. 10.1998. During the period of treatment she was

unconscious. However in his cross-examination, he

admits that he was the family physician and his

treatment was not based on the opinion of any Neuro-

Surgeon.

17. PW3, Dr. Rashmi Jain deposed that the deceased

was treated for gyaenic problems from April, 1998 to

October, 1998. She did not produce any records.

18. Negligence is nothing but a failure to observe

precaution and vigilance which the circumstances

justly demand, whereby such other person suffers

injury. Not only commission of an act but also an

omission to do something which a reasonable man

would do or is obligated to do amounts to negligence.

Therefore, negligence does not always mean absolute

carelessness, but also includes a failure to observe the

degree of care and precaution and vigilance duly

required under the circumstances which justly

warrant. Negligence is a relative and comparative

term. No rigid formula and no mathematical ratio

could be laid down as to what constitutes negligence

under particular circumstances of the accident, but to

determine what an act would amount or would not

amount to negligence, the test would be whether a

prudent and reasonable man would cause damage. In

other words, not only an act but also an omission to do

an act which the circumstances warrant from a

reasonable man‟s point of view and which the law

obliged would constitute negligence.

19. Contributory negligence has been explained by

the Apex Court in The Municipal Corporation of

Greater Bombay v. Shri Laxman Iyer and Anr., JT

2003 (8) SC 108, as under:

"To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other‟s negligence. Whichever party could have avoided the consequence of the other‟s negligence would be liable for the accident. If a person‟s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be

described as negligence, although negligence is not given its usual meaning. (See on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise."

20. The relevant findings of the Tribunal on the point

of negligence are as under:-

"Excepting the evidence of PW1 and R3W2 who is the driver there are no other witnesses who can speak about the manner of accident and the negligence. PW1 attributed negligence to the tractor driver respondent number 1. Respondent number 1 of course did not choose to lead the evidence after taking a plea of negligence on the part of Car driver, but examined on behalf of respondent

3. I have gone through Ex.P-1 the FIR which was lodged by PW1 himself. In the FIR the mention of the stray animal sneaking into the road is not mentioned. In the oral testimony, PW 1

stated that there was a truck coming in opposite direction followed by the offending tractor. The truck driver wanted to avoid the stray cattle being mowed down. The tractor was following it but over took the truck to hit the Car of PW 1. In the cross- examination by respondent number 3, it is clearly admitted that the accident occurred due to the buffalo coming from opposite direction. This factum can not be ignored while assessing the negligence of the offending vehicle. It is also to be borne in mind that PW 1 had noticed the cattle sneaking into the road and the truck avoiding it. He also deposed that the tractor was following the truck. In such a situation, it is common prudence that the driver of such a vehicle noticing the events ahead on the road should be highly cautious in responding to the events occurring as a sequel as any prudent driver ought to have reacted. In the above case, PW 1 who was driving the Car in which the deceased was travelling admits in cross-

examination that the accident occurred because of the stray cattle. This admission itself can not be treated as the sole reason for the accident. Viewing from the oral testimony, I find that the offending tractor was rash enough to have over took the truck without caring for the flow of traffic from opposite side alongside the lack of precautionary responsive action on the part of the PW 1 who was driving the Car also.

The evidence of R3W2 is also of some relevance. He deposed that he applied sudden brakes of his tractor while a truck over-took him and imputed negligence on the part of the Car driver. He denied the negligence. This witness was cross-examined on behalf of the petitioner and he also admits that a buffalo had come in front of the truck, the truck driver applied the brakes. He denied the suggestion that he was driving with heavy speed. The evidence of R3W2 shows that the accident occurred because of a stray cattle. This evidence also fortifies my opinion that the accident is not because of the total negligence on the part of the respondent number 1."

21. In civil / compensation cases one is concerned with

preponderance of probabilities and not proof beyond

reasonable doubt. As a matter of fact, except PW 1 and

R3W2, there are no other witnesses who can speak

about the manner of accident and negligence. PW 1

stated that there was a truck coming in opposite

direction followed by the offending tractor. The truck

driver wanted to avoid the stray cattle being mowed

down. The tractor was following it but over took the

truck to hit the Car of PW 1. In the cross-examination

by respondent number 3, it is clearly admitted that the

accident occurred due to the buffalo coming from

opposite direction.

22. Thus, in the facts of the present case, the Tribunal

rightly assessed 30% of negligence on the part of the

of the appellant No.1/car driver and considered the

contributory negligence while awarding compensation.

23. As regard the contention of learned counsel for

appellant about employing one housemaid consequent

to the accident for doing house hold work till deceased

remained under coma and thereafter for looking after

the children, in this respect PW-5 housemaid has

deposed that she was employed for 2½ years and have

received Rs.1,500/- per month.

24. The trial court has granted a sum of Rs.18,000/-

towards expenses of household maid to appellant No.1

in connected matter which is a claim for compensation

filed by appellant in respect of injuries received by him

25. When the PW-5 has deposed that she had been

employed for 2½ years, I fail to understand as to on

what basis the trial court has granted compensation

under this head for period of one year only.

26. Under the circumstances, as the housemaid was

employed for 2½ years on a monthly salary of

Rs.1,500/-, the total amount under this head comes to

Rs.45,000/-. Since Rs.18,000/- has already awarded to

appellant No.1 in connected matter, an additional sum

of Rs.27,000/- is awarded as compensation to the

appellants qua expenses of housemaid.

27. Next plea is that no amount of compensation

towards pain and sufferings has been awarded by the

Tribunal.

28. In this regard, decision of Apex Court in R.O.

Hattangadi v. Pest Control (India) Pvt. Ltd., AIR

1995 SC 755 laying the broad principles may be

referred to, in which it was held that:

"Broadly speaking, while fixing the amount of compensation payable to a victim of an accident the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; (ii ) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

29. The accident in the present case has taken place

on 8th March, 1998 and deceased Meena Sharma

remained admitted in various hospitals and later on

went in to coma and died on 23rd October, 1998.

During this period, she had undergone lot of pain and

sufferings and no amount towards pain and sufferings

has been awarded by the Tribunal.

30. Thus, in view of the above discussion, a sum of

Rs.48,000/- is awarded to the appellants on account of

pain and sufferings in addition to compensation

awarded by the Tribunal.

31. Accordingly, the order passed by the Tribunal is