Dismissed

New India Assurance Co. Ltd. v. Smt. Babita and Others

Allahabad HC19 Aug 2019FAFO/2470/2005

Case brief

AI extract

What is this about?

The court dismissed the insurance company's appeal, finding the driver of the car grossly negligent. While rejecting the plea for sole negligence of the scooterist, the court enhanced compensation for the deceased's loss of consortium and granted additional sums without a formal application for enhancement.

What did the court decide?

Compensation enhanced by adding Rs. 5,44,000 for loss of consortium with 9% interest; appeal dismissed in other respects.

New India Assurance Co. Ltd. Vs Smt. Babita and Others — Motor Accident Claims | Allahabad HC (2019)

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No.2470 of 2005

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Appellant :- New India Assurance Co Ltd Respondent :- Smt. Babita And Others Counsel for Appellant :- Vinod Swarup,K.S.Amist Counsel for Respondent :- Siddharth,Satya Deo Ojha

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Hon'ble Dr. Kaushal Jayendra Thaker, J.

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By way of this appeal, the appellant – Insurance company has felt that the driver of the scooter, whose negligence was attributed to be 25% only should have been held by the Tribunal to be solely negligent as the site plan proves the fact to be otherwise.

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Brief facts leading to the litigation are that on 19.12.2003 at about 6.30 p.m. Narendra Singh was plying his motorcycle UP-15-N-2152. He was going from Meerut to his village. When he reached Meerut – Bhawana road at the turning a Maruti Car came at a great speed and dashed with the motorcycle. Narendra Singh was taken to the hospital and from that hospital he was moved to Army Hospital at Delhi. He died out of the injuries. The deceased was 26 years of age. He was an aviation fitter in the Indian Army and was earning Rs.10,200/- per month. He left behind him his widow, 2 minor children and parents. The claimants claimed Rs.51,72,000/- with 18% interest.

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The owner of the Maruti Car filed his written statement and accepted that the vehicle was insured but denied that the accident had taken place and contended that as the vehicle was insured, the liability would be of the insurance company. The driver of the Maruti Car also filed his written statement one of denied. The Insurance company took all the technical stand which could be taken but accepted that the vehicle was insured with them. The Tribunal answered issue nos.1 and 2. The Tribunal has held

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the driver of the motorcycle to be 25% negligent.

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The concept of contributory negligence has been time and again evolved, decided and discussed by the courts.

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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 term contributory negligence has been discussed time and again a person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors decided on 29 January, 2014 has held as follows:

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7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff’s claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:

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“ 6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment

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of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

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7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error. ”

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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 which has held as under:

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“ 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

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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

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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, 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 threeJudge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 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 the other side.”

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The insurance company has failed to prove that accident occurred due to carrying of more persons as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligent on the part of the scooterist, cannot be benefitted. The negligent act must contribute to the accident having taken place. The Apex Court recently has considered the principles of negligence in case of Archit Saini and Antother Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 .

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Just because the vehicle has dashed from opposite direction, it cannot be said that they are equally negligent. The finding recorded by the Tribunal go to show that the driver of the Maruti Car was more negligent even from his own testimony as DW1, it is proved that the motor car which is a bigger vehicle did not take proper care in avoiding the accident. While arguing the matter in view of

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the judgment of National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014, decided on 31.10.2017 , the submission that the compensation was on higher side was not vehemently submitted.

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The appeal fails and is dismissed. This takes this Court to the question of compensation, the deceased was a government employee. The Tribunal has granted multiplier of 17 and has granted only Rs.15,000/- under the head of loss of consortium. The amount will have to be added as he had fixed salary. He was below 50 years of age, hence additional sum of Rs.32,000 x 17 = Rs.5,44,000/- with 9% rate of interest will have to be granted. The oral crossobjection is upheld in view of the decision of the Division Bench of this High Court in F.A.F.O. No. 2389 of 2016 ( National Insurance Company Limited Vs. Smt. Vidyawati Devi & 2 Others ) decided on 27.7.2016 which has been followed time and again by this Court that for doing justice, just compensation has to be awarded even without there being an application for enhancement.

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Interim relief, if any, stands vacated.

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As far as respondent no.5 is concerned, he has passed away and his legal heir is already on the record and qua him, the appeal abates.

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Order Date :- 19.8.2019

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Irshad

New India Assurance Co. Ltd. v. Smt. Babita and Others

Case brief

What is this about?

What did the court decide?

New India Assurance Co. Ltd. v. Smt. Babita and Others

Case brief

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What did the court decide?

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