Dismissed

U.I.I.Co. Ltd. v. Smt. Brij Rani

Allahabad HC14 Oct 2019FAFO/217/1994

Case brief

AI extract

What is this about?

The single judge dismissed the appeal against the Motor Accident Claims Tribunal's award of Rs. 80,000. The court rejected arguments that the driving was not rash and negligent or that the license was invalid. It held the compensation amount was not exorbitant in light of Supreme Court precedents.

What did the court decide?

The appeal was dismissed. The interim relief was vacated. The appellant was ordered to deposit the remaining awarded amount within 12 weeks.

U.I.I.Co. Ltd. Vs Smt. Brij Rani — Cheque Dishonour | Allahabad HC (2019)

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No. - 217 of 1994

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Appellant :- United India Insurance Co. Ltd. Respondent :- Smt. Brij Rani Counsel for Appellant :- S.K. Srivastava,Usha Kiran,No Name Counsel for Respondent :- K.B. Dixit,K.B.Dixit,R.K. Yadav,Rajesh Kumar Tripathi

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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Heard learned counsel for the parties and perused the judgment and order impugned.

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This appeal, at the behest of the United India Insurance Co. Ltd., challenges the judgment and award dated 18.10.1993 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Mainpuri (hereinafter referred to as 'Tribunal') awarding sum of Rs.80,000/with interest at the rate of 12% as compensation.

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According to the appellant, the accident is not in dispute, the involvement of the vehicle is not in dispute. The disputes have been raised by way of raising following grounds urged in the memo of appeal:

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"IBecause the Tribunal has given a perverse finding that the deceased was knock down by the offending tractor due to the rash and negligent driving.

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IIBecause the driver of the offending vehicle was not having a valid license at the time of accident and thus the offending tractor was driven against the terms and conditions of the policy.

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IIIBecause the amount of compensation is too excessive."

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While going through ground No.2, it is very clear that the Tribunal has considered that the license of the driver of the tractor was renewed and it was in vogue and he had license to drive the tractor, hence, this submission of the counsel for the appellant fails.

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This takes this Court to the concept of negligence. It is

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[2]

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submitted that the finding of the Tribunal that driver of the tractor drove the vehicle rashly and negligently is perverse.

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The principle of negligence enunciated here in below will have to be looked into as the Insurance company in memo of appeal has come with the stand that there was a head on collision and it was a case of contributory negligence and, therefore, there is error apparent on the face of record and erred in not framing any issue on that count.

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The concept of negligence has been time and again enunciated by different Courts and the word 'negligence' will have to be viewed from the decision in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330 which has been time and again referred by the Courts in India.

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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.

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The contributory negligence has been discussed time and again. A person who either contributes or author of the accident would be liable for his contribution to the accident having taken place.

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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 :

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“ 16. Negligence means failure to exercise required degree of care and

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[3]

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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.

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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.

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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.

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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.

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20. 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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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) .

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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.”

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emphasis added

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The Tribunal in its judgment has held that the driver of the tractor drove the vehicle in rash and negligent manner and cause the death of Hira Lal by his rash and negligent driving. After colliding with the deceased, the tractor went into the ditch. The tractor and the deceased both fell in the ditch.

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The oral evidence has been rightly believed that the driver of the tractor dashed Hira Lal who was going on cycle while the driver of the tractor tried to overtake the other vehicle. This submission of the counsel for the appellant also fails.

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This takes this Court to the submission that the compensation awarded and the rate of interest are on the higher side. The accident is of the year 1990. It is submitted that the rate of interest should not have been 12%.

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The Tribunal has considered the yearly dependency to be Rs.6000/- and granted the multiplier of 15 and deducted 25% from the datum figure as lump sum amount and granted Rs.67,500/- plus Rs. 12,500/- as consortium. Even if this Court recalculate the said amount, in absence of any cross appeal or submission, it cannot be said that the amount of Rs.80,000/- is exorbitant amount for the person of the age of 45 years in view of the decision of the Apex Court in Sarla Verma

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[5]

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Vs. Delhi Transport Corporation, (2009) 6 SCC 121.

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Hence, the appeal fails and is dismissed.

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The interim relief shall stand vacated forthwith. The appellant has deposited 50% of the awarded amount. The rest of the amount be deposited within 12 weeks from today.

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Order Date :- 14.10.2019 DKS

U.I.I.Co. Ltd. v. Smt. Brij Rani

Case brief

What is this about?

What did the court decide?

U.I.I.Co. Ltd. v. Smt. Brij Rani

Case brief

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