Partly allowed

Smt Bitti and Others v. Abdul Farooq @ Kallu and Others

Allahabad HC6 Sept 2019FAFO/3189/2003

Case brief

AI extract

What is this about?

This High Court held the finding of the Tribunal impermissible, assigning 90% contributory negligence to the Tata Sumo driver and 10% to the scooter driver. The Court recalculated the compensation quantum and applied a 7.5% interest rate, directing the respondents to deposit the awarded amount.

What did the court decide?

Judgment and award modified; compensation recalculated and interest fixed at 7.5% p.a.; respondents directed to deposit the awarded amount within 12 weeks.

Smt Bitti and Others Vs Abdul Farooq @ Kallu and… — Motor Accident Claims | Allahabad HC (2019)

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A.F.R.

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Court No. - 33 Case :- FIRST APPEAL FROM ORDER No. - 3189 of 2003 Appellant :- Smt Bitti And Others Respondent :- Abdul Farooq @ Kallu And Others Counsel for Appellant :- R.K. Porwal Counsel for Respondent :- Nripendra Misra And

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Court No. - 33

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Case :- FIRST APPEAL FROM ORDER No. - 3188 of 2003 Appellant :- Ram Hans And Others Respondent :- Abdul Farooq @ Kallu And Others Counsel for Appellant :- R.K. Porwal Counsel for Respondent :- Nripendra Misra

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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1. Heard Sri R.K. Porwal, learned counsel for the appellants for the appeals and Sri Nripendra Misra, learned counsel for the respondents in both the appeals.

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2. Both these appeals, at the behest of the claimants, challenges the judgment and award dated 30.09.2003 passed by Motor Accident Claims Tribunal/Special Judge (E.C.) Act, Etawah (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 45 of 2000 and M.A.C.P. No.44 of 2000.

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3. Brief facts of the litigation are that on 28.11.1999 at about 05 p.m. on Mathura Agra road near village Mahuaa the deceased was plying his scooter bearing No. D.L. 8 C 3277 and Prem Singh and his minor son were going at that time a Tata Sumo Bearing No. M.P. 7 H 4155 coming from Agra driven rashly and negligently drag with the scooter. Jagmohan and his son met with serious injuries and during the treatment they summoned to the death. F.I.R. was lodged charge sheet was led against the driver of Tata Sumo. The owner of the driver of Tara sumo did not appear and qua them the litigation proceeded ex-

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parte. The insurance company took its defence contending that on the scooter there were three persons plying the scooter. The vehicle though was insured with them there was breach of policy condition.

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4. The Tribunal framed four issues in both the matters and rejected both the claim petitions holding the driver of the scooter solely responsible for the accident. It is this finding of fact which is assailed by the appellants.

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5. It would be necessary for us to decide the question of negligence as for the pillion rider it was a case of composite negligence and that it is submitted that the scooter driver was driving the scooter on its correct side as he had to cross the divider and as he had to go in the same lane as the side which was his correct side the site map shows that it was Tata Sumo which came on its extreme right and the accident was so grave that the driver and the pillion driver met with serious injuries and therefore it cannot be said that the driver of the scooter was negligent. It is further submitted that the driver of the sumo did not step into the witness box.

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

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8. 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

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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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9. 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 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

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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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10. The Division Bench of this Court in F.A.F.O 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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“ 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

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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 threeJudge 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

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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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11. The insurance company has failed to prove that accident occurred due to carrying of person as pillion rider. In absence of such a finding, the insurance company having not proved factum of negligence on the part of the scooterist, cannot be benefited. 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 Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 .

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12. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 Law Suit (SC) 469 has held as under:

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"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting interse equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.

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14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim

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compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :

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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 wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment 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 wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer 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 of 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 stands reduced in proportion to his contributory negligence.

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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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13. The Apex Court in National Insurance Co. Ltd. Vs Challa Bharathamma & Ors reported in [2004 (8) SCC 517] has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle – trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailortruck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

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What emerges from the aforesaid discussion is as follows :

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(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to

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recover the entire compensation as liability of joint tort feasors is joint and several.

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(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”

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emphasis added

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14. While going through the record it is clear that the Tribunal has materially erred in coming to the conclusion that the driver of the scooter was driving the scooter in rash and negligent manner. The reasoning given are not germane and are not proved by the driver of the Tata Sumo while seeing the site plan it is clear that the correct side of the scooter was the one where he was driving, though the road is divided by divider the side which was the correct side was not open to public and the scooter driver and other vehicles had to ply the vehicles on the side where the deceased was driving the said scooter. In this case the driver of the Tata Sumo has been charge sheeted. He has not stepped into the witness box and the impact shows that the scooterist

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was 10 per cent negligent. The Tata Sumo was trying to overtake another vehicle which is clear from evidence. The Sumo tried to overtake came on the right side which was not meant for it and that is how the accident occurred. There is no rebuttal evidence and therefore also this court while relying on the site plan and the judgment in Archit Saini and Another (supra) holds that the driver of the Tata Sumo who caused the fatal accident was the main author of the accident having taken place whereby two persons died which shows the impact with which Tata Sumo must have dashed the scooter hence the driver of Tata Sumo is held to be 90 percent negligent.

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15. In view of the judgment in the case of F.A.F.O. No.534 of 1995 (Brahma Dutta Sharma Vs. Umesh Sharma and Others) decided on 30.01.2019 wherein para 14 , it has been held as follows:

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“14. The finding of the Tribunal are perverse. The tempo being a bigger vehicle as no legal evidence has been produced to show that the claimant had contributed to the accident. Tribunal has not given proper reasons for holding him negligent whether he had taken permission to come Jhansi or not is of no relevance and it has not been brought on record that because he has left place of service, he was negligent. The conclusive proof negligence is of against the tempo driver, therefore, the tribunal committed manifest error in holding the appellant first contributory negligent and coupling with no proper reply for leaving the head quarter. There is no evidence about the motorcycle being driven negligently by the appellant at the time of accident. The Respondent did not produce any such evidence and there is a charge sheet against the tempo driver which prima-facie pointed towards the negligence of the appellant. Thus the finding of contributory negligence cannot be sustained. I am supported in my view in Mangla Ram Versus Oriental Insurance Company Limited, (2018) 5 SCC 656. ”

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16. Holding that the claim petitions were wrongly dismissed. The question is should this court remand the matter to the tribunal or decide the same here as the record is before this court while going though the judgment it is clear that the tribunal had calculated what

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would be the compensation available in M.A.C.P. No.44 of 2000 and 45 of 2000 but as the petitions being rejected no amount of compensation was ordered to be paid by any of the respondents holding that the claimants could file claim petitions for recovery against the owner and driver of the scooter though for the pillion rider it was a case of composite negligence.

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17. In view of Bithika Mazumdar Vs. Sagar Pal (2017) 2 SCC 748 wherein it has been held that compensation claim petition which remained undecided for nine years and the record was before the Apex Court, the Apex Court decided the quantum.

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Similarly, this court feels that as sixteen years have elapsed from filing of claim appeal and that the record is before this court instead of directing the parties to go before the tribunal only for the re-assessment of compensation which could cause further delay and will also cause further loss to the destitute family. This court in Brahma Dutta Sharma Vs. Umesh Sharma and Others (supra) has taken similar view and therefore I without remanding the matter as the principles for determination of compensation are well settled venture to recalculate the amount of compensation to be paid to the appellants in both these appeals decide the compensation here."

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18. It is submitted by learned counsel for the appellant that the Tribunal has though wanted to reject the claim petition has considered and decided on quantum the income in Claim Petition No.44 of 2000 and 45 of 2000 of the deceased to be Rs. 2,000/- per month and has held that sum of Rs.4,08,000/- for loss of income in case of Bitti and has added another Rs.5,000/- in case of deceased Prem Singh. Law as it held that deceased driver of scooter negligent rejected both the claim petitions.

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19. In case of Jagmohan his income has been considered to Rs.3,000/as the deceased had a shop of preparing sweet in Delhi and has

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deducted 1/3 and granted a sum of Rs.4,32,000/- as the deceased was 25 years of age.

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20. The amount is being re-evaluated in both the matters. The accident occurred in the year 2000. The income of the deceased in both the matters can be safely considered to be Rs.3,000/- as considered by the Tribunal however a sum of Rs.12,000/- will have to be added. Hence, the amount would be Rs.4,200/- per month. 1/3 will have to be deducted hence the amount available to the family would be Rs.3,000/- per month meaning thereby Rs.36,000 x 17 +40,000= 6,52,000/- in case of F.A.F.O No. 3189 of 2003 and in F.A.F.O. No. 3188 of 2003 Rs.36,000X18=40,000=6,88,000/-.

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21. However, the rate of interest which is 6% would be 7.5% in view of the latest decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

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"13. The aforesaid features equally apply to the contentions urged on behalf of the claimants as regards the rate of interest. The Tribunal had awarded interest at the rate of 12% p.a. but the same had been too high a rate in comparison to what is ordinarily envisaged in these matters. The High Court, after making a substantial enhancement in the award amount, modified the interest component at a reasonable rate of 7.5% p.a. and we find no reason to allow the interest in this matter at any rate higher than that allowed by High Court."

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22. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be calculated and deposited with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount be deposited within a period of 12 weeks from today.

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23. As far as the claimants of F.A.F,O No.3189 of 2003 who are the

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heirs of Prem Singh and who had preferred M.A.C.P. No. 45 of 2000 can recover the amount from any of the tort-fessor as Prem Singh was a pillion rider and the insurance company may recover 10 per cent from the insurance company and owner of the scooter. F.A.F. No. 3188 of 2003 the owner and the insurance company of the Tatasumo to deposit 90 per cent of the awarded amount as driver Jagmohan is held to be 10 per cent negligent and that amount will have to be deducted.

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24. The record and proceedings be send back to the Tribunal forthwith.

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Order Date :- 06.09.2019

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Krishna

Smt Bitti and Others v. Abdul Farooq @ Kallu and Others

Case brief

What is this about?

What did the court decide?

Smt Bitti and Others v. Abdul Farooq @ Kallu and Others

Case brief

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What the court decided

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