Yogendra Sahni And Another ... ... vs M/S Puram Braders Pvt. Ltd. & ...
2021 Latest Caselaw 3832 UK

          HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

         Appeal from Order (DAO No. 24 of 2008)
Yogendra Sahni and Another                                  ...       Appellants
                                       Vs.

M/s Puram Braders Pvt. Ltd. & Others                        ... Respondents
Advocates :   Mr. Alok Dalakoti, learned counsel for the appellants
              Ms. Radha Arya, learned counsel, holding brief of Mr. Raj Kumar Singh,
              learned counsel for respondent Nos. 1 & 2.
              Mr. Bindesh Kumar Gupta, learned counsel for respondent No. 3


Hon'ble Sharad Kumar Sharma, J.

Brief facts of the present Appeal from Order are that the claimants (appellants herein) are said to have instituted the proceedings, for the determination of an adequate and appropriate compensation, as a consequence of an accident, which had chanced on 10th May 1999, resulting into the death of a boy, named Ram Babu, who, at the time of the accident, was said to be of 14 years of age and, as per the contentions, which had been raised in the claim petition i.e. Claim Petition (M.A.C. No. 104 of 1999), Yogendra Sahni and Another Vs. M/s Puram Braders Pvt. Ltd. and others, it was contended therein, that the deceased Ram Babu was working as a labourer in Shiv Gifts Bhandar, Kharkhari.

2. It was further submitted that as per the income, which had been shown to have accrued i.e. to the deceased Ram Babu, on account of his said engagement, it was pleaded that he used to earn Rs. 3000/- per month. The claimants, who are the parents of the deceased, contended that on account of untimely death of their son, they were entitled for the grant of compensation, which they had assessed it as to be of Rs. 4 lakh, according to the claim petition, which was instituted by them on 25th October 1999.

3. The respondent Insurance Company, who were the defendant No. 3 to the said Claim Petition No. 104 of 1999, and on issuance of notice, the defendant/respondent No. 3, had put in appearance and had

filed its written statement being paper No. 31 (kha), wherein the contents of the claim petition from para 1 to 14, were denied for the lack of knowledge. They further denied the fact, that as to whether at the time and date of occurrence of the accident, the offending vehicle, which was allegedly shown to be involved in the accident, was validly insured with the Insurance Company. In fact, they submitted, that the offending vehicle, bearing Registration No. UP 07 C 7244, it was insured with them, because of the fact that the National Insurance Company, had issued a cover note bearing No. 2853255, which was issued from the branch office of the Insurance Company at Rishikesh and hence on account of the said insurance cover note of the offending vehicle, the Insurance Company had taken a defence that the entire story, which had been developed by the claimants/appellants, about the death of the deceased and the income, which had been accrued to the deceased, was not tenable in the absence of there being any definite and concrete material on record. Apart from the fact that since the deceased was minor, his monthly income, which has been depicted therein in the claim petition, cannot be taken as to be the actual income foundation to determine the compensation, because it cannot be presumed that a minor boy of 14 years of age, could at all have been profitably engaged and having an income of Rs. 3000/- per month, as it was averred in the claim petition.

4. The learned counsel for the insurance company further submitted that at the time of occurrence of the accident, the driver of the vehicle since was having a valid registration and fitness certificate and the vehicle in question, was driven in accordance with the permit and hence the insurance company cannot be made liable to pay any compensation to the claimants, while considering the covenants provided under Section 170 of the Motor Vehicles Act.

5. The learned Motor Accidents Claims Tribunal, after exchange of the pleadings between the parties, had formulated the following point of determinations, which are extracted hereunder:-

**1- D;k fn0 10-5-99 dh jkr djhc 11 cts LFkku fudV [kM+[kM+h vUrxZr Fkkuk gfj}kj ftyk gfj}kj esa Vªd la0 ;w0ih0 7lh7244 ds pkyd }kjk mls rsth o ykijokgh ls pykdj ,d O;fDr jkeckcw dks VDdj ekjh x;hftlds dkj.k og xEHkhj :i ls ?kk;y gks x;k ,oa dqN le; i"pkr mldh e`R;q gks x;h\ 2- D;k mDr of.kZr Vªd la?k ;w0ih0 7lh 7244 ds pkyd ds ikl oS/k MªkbZfoax ykbZlsal miyC/k Fkk vFkok ugha ,oa mlds Lokeh ds ikl oS/k chek ikfylh miyC/k Fkh vFkok ugha \

3- D;k ;kphx.k ls :i;k pkj yk[k dh /kujkf"k crkSj {kfriwfrZ izkIr djus ds vf/kdkjh gS vFkok ugha ;fn gka rks fdl foi{kh ls vkSj fdruh\

6. The reference to the point of determination or the issues, which has been framed by the learned Tribunal becomes relevant to be considered from two different perspectives; one, the learned counsel for the claimants has submitted that the claimants/appellants have preferred this Appeal from Order, for the purposes of enhancement of the compensation, that the reasons, which has been assigned by the learned Motor Accidents Claims Tribunal, in its award dated 06.09.2003, while determining the compensation payable to be @ Rs. 80,000/- only, was wrongfully determined on the premise, that the Motor Accidents Claims Tribunal, has travelled beyond the pleadings and even beyond the evidence which has been adduced by the parties to the claim petition, while drawing an inference and carving out a case, that since it was an accident resulting because of the contributory negligence hence the amount of compensation after its determination made by issue No. 3, has been proportionately reduced to 50%, which has been made liable to be paid by the Insurance Company to the claimants.

7. The appellants' counsel submitted that the said finding which had been recorded pertaining to the contributory negligence, will not be available to be considered at all for the Motor Accidents Claims Tribunal, to be considered for the reason being, that in the written statement, there had been no such specific plea taken with regard to the circumstances, under which the accident has occurred, or a plea with regard to the contributory negligence and hence he submits, that in the absence of there being a case, which had been developed by the

defendants in the written statement of a contributory negligence, which always depends upon the determination of facts, evidence and circumstances of each and individual case, which are variable in nature, the learned Motor Accidents Claims Tribunal ought not to have carved out a case of contributory negligence for the purposes of reducing the amount of compensation, which was made payable to the claimants/appellants.

8. In support of his contention, the learned counsel for the appellants submitted that the learned Motor Accidents Claims Tribunal had rather travelled beyond the pleadings and the points of determination, which were framed before it, the learned counsel for the appellants has made reference to a judgement dated 5th August, 2002, which was rendered by the Hon'ble Apex Court in Civil Appeal No. 5436 of 1994, Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak & Ors., particularly, he has made reference to the judgement, which was based upon the principles laid down by the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403, wherein the Australian High Court, had considered, as to under what circumstances the aspect of contributory negligence could be taken into consideration and particularly when it is a case developed, that it was a case of contributory negligence; then only an inference could be drawn or the liability could be fastened accordingly but, in the absence of there being any focus on the conduct of the plaintiff to be established by evidence, by the defendant that he was also equally responsible for the accident, no such plea of contributory negligence could be taken into consideration, because the conduct of the plaintiff, if at all which is attributed to be having an effect of a contributory negligence, it is in that eventuality, it is always the responsibility of the Insurance Company or the respondent to the claim petition, to have established it by way of an evidence on record.

9. On the contrary, the learned counsel for the respondent/ Insurance Company, has submitted that the argument, as extended by

the learned counsel for the appellants, based upon the principles laid down in Pramodkumar's case (Supra) with regard to the plea of contributory negligence and the factors, which are required to be established before the Court below, may not be sustainable in the circumstances of the present case; even if the fact of contributory negligence was not pleaded; even if the issue was not framed by the learner Motor Accidents Claims Tribunal; even if the respondent/ insurance company has not laid any evidence to discharge their burden of proof, that the deceased was responsible or contributory negligence for the purposes of reduction of determination of compensation on the principles based on res ipsa loquitur.

10. What he intends to convey is, that the evidence, which was there on record itself was prima-facie explicitly was establishing the fact that the deceased was also equally responsible for the contributory negligence and hence the determination, which had been made by the learned Motor Accidents Claims Tribunal of the amount of compensation to be made payable, to the claimants, was absolutely justified.

11. The argument of the learned counsel for the respondent Insurance Company, based on the legal maxim of res ipsa loquitur that the evidence on record itself was explicit enough to hold that the deceased was equally responsible for the contributory negligence, is not acceptable by this Court, for the reason for it being, that when the Insurance Company takes a defence of contributory negligence, then it is incumbent, one, the insurance company that it should have specifically pleaded a case in their written statement before the learned Motor Accidents Claims Tribunal, in the written statement which has been filed in defence. Secondly, even if it is presumed that the plea is not taken, in that eventuality also, even at the stage of formulation of an issue, the Insurance Company, could have requested the learned Motor Accidents Claims Tribunal, to formulate an issue in that regard, but since the Insurance Company has failed to do so, the

implications of the maxim of res ipsa loquitur, will not be applicable in the present circumstances of the case, because the determination of the aspect of contributory negligence in a given set of every case requires an establishment & appreciation of fact and evidence, which was required to be established and discharged by the respondent Insurance Company, to bring the case to be considered within the ambit of a contributory negligence.

12. In absence of the same, the inference, which has been drawn by the learned Motor Accidents Claims Tribunal, while deciding the issue No. 3, explicitly on its own based upon the documents on record i.e. interpreting contents of the post-mortem report, the age of the deceased, the income, which was accruing to the deceased, and the logic which has been assigned by the learned Motor Accidents Claims Tribunal, holding it to be a contributory negligence and hence thereby, reducing the quantum of compensation to be awarded by 50%, in fact, would not be acceptable by this Court, for the reason being, that there was no credible material as such on record which was placed, which was appreciated, which was considered and pleaded by way of formulation of an issue to carve out a case of contributory negligence.

13. Particularly, when in accordance with the own case of the respondent Insurance Company, the establishment of contributory negligence in fact it was a burden which was to be discharged by them, even if they places reliance on the principles of the maxim of res ipsa loquitur, since they have not endeavoured, even at an appellate stage also, to shift upon the burden of contributory negligence upon the deceased. The said principles, in the absence of there being any appreciation of an evidence, which had been led by the respondent, I am of the view that the Court has travelled beyond the pleadings and beyond the case itself, which was placed before it for its consideration while determining it and making it as a case of contributory negligence and reducing the compensation by 50%.

14. Simultaneously, on the other hand, it has been argued by the learned counsel for the respondent, that the story, which has been built up by the claimants/appellants herein, in the claim petition that the deceased was working and he was having an income of Rs. 3000/- per month, is also not believable, according to the stand taken by the respondent Insurance Company; because, a 14 years aged boy is not expected to be profitably engaged to earn a sum of Rs. 15000/- per annum. But, yet again, the logic, which has been given therein, if the written statement is appreciated, in fact, paper No. 31B, yet again has only referred very vaguely in para 3, of the written statement, that the income, which has been reflected in the claim petition, has been wrongly described.

15. In case, in that eventuality, the burden to prove the income of the deceased was obviously required to be discharged by the claimants, but what is important is that if the written statement is taken into consideration, in fact, though the age and the income accruing to the deceased was attempted to be denied, but one important fact, which was not denied by the respondent Insurance Company, even in the written statement is pertaining to the engagement of the deceased with the Shiv Gift Bhandar, Kharkhari, which was not specifically denied in the written statement, nor any effort was made by the respondent Insurance Company, to produce the owner of the said Shiv Gift Bhandar, Kharkhari, in the witness box, so as to substantiate their arguments, that the income was not accruing to the deceased, as it has been claimed in the claim petition.

16. Hence, the logic, which has been assigned by the learned Motor Accidents Claims Tribunal, while determining the compensation holding it to be @ of Rs. 15000/- per annum, and after deducting 1/3rd of the amount, which was expected, that the deceased was using upon himself, has rightly come to the conclusion that the income, which was accruing to the applicant, on the basis of income, which he acquired due to his aforesaid profitable engagement was rightly

calculated and hence it cannot be flawed that the income was not established.

17. The learned counsel for the appellant has made reference to yet another judgement, which was yet again dealing with an aspect of the contributory negligence, it was as that rendered by the Hon'ble Apex Court in Civil Appeal No. 9343 of 2019, Jumani Begam Vs. Ram Narayan & Ors., the reference of para 7 of the said judgement, on which the reliance has been placed by the learned counsel for the respondent, is extracted hereunder:-

"7. Learned counsel appearing on behalf of the appellant has assailed the view which has found acceptance with the High Court, both on the finding of contributory negligence and on the computation of compensation. On the first aspect, learned counsel submitted that the order of the MACT indicates that there was an independent witness who had deposed that the truck trailer was parked without any reflectors on the road. It was urged that though the MACT accepted the evidence of the independent witness, it came to the conclusion that there was contributory negligence on the part of the deceased without cogent reason. The High Court, it has been submitted, simply proceeded to affirm the view of the MACT without giving reasons in spite of the fact that it was seized of a substantive appeal against the order of the MACT. On the computation of the compensation, learned counsel submitted that in terms of the judgment of the Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi, 2(2007)16 SCC 680, the High Court ought to have added an amount of 15% towards future prospects having regard to the age of the deceased and the fact that he was in government employment.

18. In fact, in support of his contention, the learned counsel for the respondent Insurance Company has submitted that if the ratio propounded therein, by the Hon'ble Apex Court has to be taken into consideration, it is always the defendant who has to take the defence of contributory negligence, it is he who has to establish the fact, that the deceased was also equally responsible in contributing to the accident, in order to reduce the compensation proportionately, which is lacking in the instant case.

19. This contention has been sought to be denied by the learned counsel on the ground that the said principle, which has been laid down therein, in the aforesaid judgement, was based upon altogether a

distinct set of circumstances, where a truck trailer, which was parked was without any reflection on it or the parking lights on and due to which the accident had chanced, the inference has been drawn, because of the fact that there was no independent witness, which has been produced before the Court below to draw the conclusion, that there was a case of contributory negligence on part of the deceased, without any cogent reasons. Hence, in the absence of there being any efforts ever made by the respondent Insurance Company, to carve out the case of a contributory negligence, hence in view of the principles laid down in para 7 of the said judgment, the present case cannot be taken as to be a case falling within the ambit of contributory negligence and hence the Appeal from Order is partly allowed; only to the extent that the proportionate reduction as it has been made by the learned Motor Accidents Claims Tribunal by reducing the amount of compensation thus determined by 50%, is hereby enhanced and the amount of compensation, which has now been directed to be paid as a consequence of the enhanced compensation would be a total amount of Rs. 1,60,000/- out of which, Rs. 80,000/- has already been paid to the claimants. The balance Rs. 80,000/- with interest and other dues would be paid by the respondent Insurance Company within a period of 60 days from the date of receipt of the certified copy of this judgement.

20. Lastly, the learned counsel for the appellant has submitted that the learned Motor Accidents Claims Tribunal, has not considered the aspect pertaining to the levying of interest on the amount of compensation claimed from the date of filing of the claim petition. In fact, if the pleading is taken into consideration in the light of the provisions contained under the Motor Vehicles Act, since no such contention was ever raised by the claimants before the Court below, it will not be appropriate for this Court to travel into that aspect, as to what would be the appropriate ratio of interest, which could be levied on the amount of compensation thus determined by the learned Motor Accidents Claims Tribunal and hence the plea of laving of interest on

the claimants and awarded amount is not being considered by this Court as to be appropriate in the absence of same being established before the Court below or even before this Court.

21. Accordingly, in view of what has been observed above, the Appeal from Order, partly succeeds; the amount of compensation, as determined by the learned Motor Accidents Claims Tribunal is enhanced to Rs. 80,000/-.

(Sharad Kumar Sharma, J.) 23.09.2021 Mahinder/