Dismissed

Icici Lombard General Insurance Co. Ltd. v. Kishan and 4 Ors.

Allahabad HC18 Jan 2018FAFO/1296/2013

Case brief

AI extract

What is this about?

A fatal tractor–motorcycle accident claim raised contributory negligence, non-joinder, insurance coverage, driving licence and compensation disputes. The court rejected the insurer's objections, upheld its liability and the compensation with 6% interest, and dismissed the appeal without costs.

What the court decided

AI extract

Icici Lombard General Insurance Co. Ltd. Vs Kishan and 4 Ors. — Insurance | Allahabad HC (2018)

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AFR

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Reserved on 5.1.2018 Delivered on 18.01.2018

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Court No. - 27

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Case :- FIRST APPEAL FROM ORDER No. - 1296 of 2013 Appellant :- Icici Lombard General Insurance Co. Ltd. Respondent :- Kishan And 4 Ors. Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Ram Babu Tiwari,Satya Deo Ojha,V.C. Dixit

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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Heard Mr Rahul Sahai, learned counsel for the appellant and Mr

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S. D. Ojha, learned counsel for the respondents-claimants.

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Instant First Appeal From Order has been preferred under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'Act' 1988) by the ICICI Lombard General Insurance Company Ltd, being aggrieved against the judgement and award dated 28.1.2013 passed by Motor Accident Claims Tribunal/Addl District Judge, Court No. 16, Muzaffar Nagar in Motor Accident Claims Petition No. 626 of 2011 (Kishan and others Vs Smt Khatoon and others), whereby the Tribunal has awarded Rs. 3,24,000/- as compensation for the death of deceased Vinod, aged about 22 years along with other technical damages together with 6 % simple interest thereon.

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Brief facts of the case are that on 31.7.2017 deceased Vinod aged about 22 years was travelling on a motorcycle and as soon as he reached near the brick kiln his motorcycle dashed with a Tractor, which was being driven negligently and in excessive speed and in the alleged accident deceased died on way to Hospital. The claimants, thereafter, filed a claim petition under Section 140&166 of the Act was filed by the legal representatives of the deceased before the Motor Accident Claims Tribunal. Before the Tribunal, it has been alleged that the deceased was sole bread earner and he was engaged in the brick kiln and also in the profession of small scale business and

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thereby was earning about 20000/- per month and the claimants were totally dependent on him. The Tribunal after considering the evidence brought before it passed the judgement and award dated 18.1.2013 and assessed the compensation to the tune of Rs, 3,24,000/- with 6 % simple interest.

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Learned counsel for the appellant has vehemently argued various points in support of his contention and has submitted that judgement and award passed by the Tribunal is illegal, perverse and against the law and the same cannot be sustained in law as the relevant material has not been considered by the Tribunal. It is further submitted that from the facts as they emerged, the Tribunal has misread the evidence and has held the driver of the offending vehicle (Tractor) solely responsible for the accident.

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It is further submitted that the Tribunal has failed to consider the fact that the owner/insurer of the ill-fated motorcycle was ever made party to the claim petition and thus there was a fatal defect of non joinder of the necessary parties.

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It is further submitted that the Insurance company under the policy was not liable to pay any amount and as such no compensation what so ever could be awarded against the appellant nor any liability of the appellant can be fixed but view to the contrary taken by the court below is wholly illegally and erroneous.

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It is next argued that the Tribunal has failed to consider the contributory negligence on part of the deceased. The Tribunal has also failed to appreciate that the driving license of the driver of Tractor was not a valid license and has wrongly concluded that the driver of the Tractor held a valid and an effective license whereas the documentary evidence brought on record speaks completely against it.

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It is next submitted that the compensation awarded by the Tribunal is also excessive and against the law in view of the fact that

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neither any age proof was brought on record by the claimants nor anything was brought on record to prove that the deceased was employed or had any source of income yet the Tribunal has wrongly concluded that he was earning a sum of Rs. 3000/- per month and further has wrongly applied the multiplier as that of the age of the deceased whereas the multiplier should have been awarded looking to age of the claimants and not that of deceased and requires to be rectified. It is further submitted that the rate of interest @ of 6% is exorbitant and requires interference.

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To the contrary, learned counsel for the respondents supported the award and submitted that the compensation deserves to be enhanced as the Tribunal ought not to have deducted half of the amount from the earning of the deceased in view of the judgement of the Apex Court in National Insurance Company Limited Vs Pranay Sethi and Others, 2017 0 Supreme (SC) 1050 and also Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298. Therefore, the amount of compensation would be much more than that which has been granted by the Tribunal but he does not press the same as his client is satisfied with the awarded amount.

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For appreciating all the issues raised before this Court, it would be necessary to advert them one by one. The principles for deciding negligence, are enunciated or discussed by the Apex court and by the British Court of Law also which are enumerated hereinbelow.

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“As far as the issue of contributory negligence is concerned as alleged by the appellant it is necessary to consider the principles for deciding the negligence. 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

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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.

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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.

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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

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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.

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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.

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These provisions (sec.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.

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In the light of the above discussion, it is seen 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

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lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of resipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per threeJudge Bench in Jacob Mathew V/s. State of Punjab, 2005 ACJ (SC) 1840).

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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 of driver of another vehicle.”

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I have perused the judgement of the Tribunal and the fact that driver of the tractor i.e. D.W.-1 Salauddin was charge-sheeted is a proved fact. The tractor which is a big vehicle dashed with the motorcycle. The impact was so great that the deceased had to be taken to the hospital but he died on way to hospital, which shows the impact of the accident. The alleged eye witnesses of the incident have also narrated the incident in the same manner as alleged in the claim petition and further the map prepared during the course of investigation also depicted the negligence on the part of the driver of the offending vehicle (Tractor). The evidence on record cumulatively prove that the accident took place due to rash and negligent driving of the driver of the offending vehicle. Independent witness Veerpal, PW2 has also stated, on oath, that the accident took place due to rash and negligent driving of tractor by its driver. Therefore, the submission of learned counsel for the Insurance company that it was a case of contributory negligence cannot be accepted and is rejected. Thus, in absence of any cogent material and in absence of proving the fact that the deceased drove the motorcycle negligently and this court is unable to accept the submission of the learned counsel for the appellant in this regard. Thus, I cannot take a different view then the view taken by the Tribunal. I concur with the finding of facts as far as negligence is

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concerned.

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The next submission that owner/insurer of the ill-fated motorcycle was not made party to the claim petition and there was a fatal defect of non joinder of the necessary parties and therefore no award can be passed against the insurance company. In this regard, Tribunal has framed issue no. 6 and held that the since the deceased was not liable for causing accident nor was held negligent and the driver of the offending vehicle was produced and examined as D.W.-1 Salauddin but he has not produced any independent witness in regard to his contention that he is not liable for negligent driving, the Tribunal has considered the said fact and held that there is no defect of non- joinder of necessary parties hence this submission is also rejected.

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This takes this Court to the another issue regarding liability. The Tribunal, while deciding issue no. 2 on this point, has come to a finding of fact that the offending vehicle was insured with the appellant- Insurance company which was valid on the date of the alleged incident and the Insurance company/appellant did not produce any evidence that the said vehicle was being used other than the purpose specified therefor namely agriculture purpose. The finding of facts of the Tribunal making liable the Insurance Company cannot be found fault with in the light of the judgment of Apex Court in Mukund Dewangan Vs Oriental Insurance Company Limited, AIR, 2017 (SC) 3668. From the record, it is clear that the vehicle was used for agriculture purpose only. Even in the FIR also, it is mentioned that it was being used for agricultural purpose. Insurance Company has not proved any thing to show that the Tractor was being used for non agricultural purpose. The provision of Section 147 of the Act have not been faulted by the owner. Nothing is brought on record that it was used for commercial purpose, hence I do not find any reason to interfere with the well reasoned judgment of the Tribunal so

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far as violation of the provisions of Section 147 of the Act is concerned. The driver of the offending vehicle had license to drive the vehicle which is clear from the finding at Issue no. 3. Laden weight of the Tractor would bring it within the purview of Light Motor Vehicle and therefore the license at page 57 of the paper book would also permit this Court to reject the submission made by learned counsel for the appellant regarding non holding of valid driving license. The burden of proof cannot be shifted to the claimant who was a third party. The Insurance Company could have led evidence to prove that the company is not liable for any compensation. It was definitely for the Insurance Company to prove as per the Motor Vehicles Act once they wanted to avoid the liability under Section 147 and 149 of the Motor Vehicles Act. Thus, I concur with the finding of the Tribunal holding the Insurance Company liable.

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As far as the another contention is concerned, there is no force in the submission of the learned counsel for the appellant that the higher multiplier have been applied. For computing the compensation the multiplier method is logically sound and is well established which is more scientific for arriving at proper multiplicand and multiplier. The multiplier method involves the ascertainment of loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is higher and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy would yield the multiplicand by way of annual interest. The income of the deceased was considered at Rs.18,000/per annum. The Tribunal awarded a sum of Rs. 3,24,000/- under the head of loss to the estate. The Tribunal did not consider loss of future income though the deceased was aged 22 years of age. Thus, the submission of learned counsel for the appellant that the higher

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multiplier has been applied by the Tribunal cannot be accepted in view of the fact that the Tribunal after relying upon the judgment of the Apex court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298, has rightly applied the multiplier of 18. Recently, the Apex Court in National Insurance Company Limited Vs Pranav Sethi and Others, 2017 0 Supreme (SC) 1050 has held that the multiplier should be applied on the basis of the deceased. In that view of the matter, the submission that the age of parents should be considered cannot be accepted and is rejected. The Tribunal though has considered multiplier of 18 but has not considered any amount under the head of love and affection or any future prospects and has considered his income to be Rs. 18,000/- per year and has deducted half and has granted multiplier of 18 and the same cannot be said to be on higher side as contended by the learned counsel for the appellant. It cannot be said that the amount was more rather it was compensation without any future prospects and even not considering the amount under the head of love and affection.

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It is lastly submitted by the learned counsel for the appellant that the interest is on the higher side. While dealing with the issue of interest, this court finds the following recent authorities which are as under:

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In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-

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"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8 % per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we

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award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment.”

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In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9 % interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.

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In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9 % per annum which was challenged that it is on higher side. Court upheld said rate of interest.

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In Shashikala and Others Vs Gangalakshmamma and Another (2015) 9 SCC 150 , where accident had taken place on 14.12.2006, Court allowed 9 % rate of interest from the date of claim petition till the date of realization.

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In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8 % . Accident took place on 27.11.2016. It was held that 8 % interest is on lower side and it should be 9 %.

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In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457 , accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6 %. Court held that it is on lower side and it should be 9 %.

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In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703 , date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9 % interest.

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30. In Jitendra Khimshankar Trivedi Vs Kasam Daud

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Kumbhar and Others (2015) 4 SCC 237 , incident was on 21.09.1990. Tribunal awarded 15 % interest which was reduced to 12% by Gujrat High Court. Court held that it is on higher side and awarded 9 % interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).

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In view of above, and also the decision in National Insurance company Limited Vs. Chintan Arun Kumar Raval & another, in First Appeal No. 2440 of 2014 and other matters decided on 16.9.2014 by a Division Bench of High Court of Gujarat (comprising of Hon. Mr. Justice M.R. Shah and Hon.Dr. Justice K.J. Thaker), wherein it has been held that it is a discretion of the Court to decide the rate of interest but has to be prevalent rate of interest which would be given by the banks at that time. Thus the Tribunal has rightly awarded the interest and the same cannot be said to be excessive.

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In the result, the appeal fails and is hereby dismissed.

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No order as to costs.

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Order Date :- 18 .01.2018 RavindraKSingh

Icici Lombard General Insurance Co. Ltd. v. Kishan and 4 Ors.

Case brief

What is this about?

What the court decided

Icici Lombard General Insurance Co. Ltd. v. Kishan and 4 Ors.

Case brief

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What the court decided

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