Partly allowed

Smt. Geeta Devi and Others v. U.P. State Road Transport Corporation through M.D.and Others

Allahabad HC6 Sept 2019FAFO/3382/2003

Case brief

AI extract

What is this about?

On appeal against a motor accident award, the High Court rejected the 'act of God' defense regarding a handicapped pedestrian's death. Applying negligence principles and res ipsa loquitur, the court recalculated compensation for future income and enhanced non-pecuniary damages, while modifying the interest rate to 7.5% per annum as per Apex Court guidance.

What did the court decide?

Compensation enhanced to Rs.4,54,080 plus Rs.30,000 non-pecuniary damages. Interest set at 7.5% p.a. Amount to be deposited within 12 weeks.

Smt. Geeta Devi and Others Vs U.P. State Road… — Motor Accident Claims | Allahabad HC (2019)

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A.F.R.

Court No. - 33

Case :- FIRST APPEAL FROM ORDER No. - 3382 of 2003 Appellant :- Smt. Geeta Devi And Others Respondent :- U.P. State Road Transport Corporation Through M.D.And Others Counsel for Appellant :- H.P. Gupta,Ramesh Rai Counsel for Respondent :- Dinkar Mani Tripathi

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Hon'ble Dr. Kaushal Jayendra Thaker,J.

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1. Heard Sri Serve Singh assisted by Sri Harish Prasad Gupta, learned counsel for the appellants and Sri Dinkar Mani Tripathi, learned counsel for the U.P.S.T.C..

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2. This appeal, at the behest of the claimants, challenges the judgment and award dated 04.09.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Gorakpur (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 03 of 2002.

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3. The grounds raised in the memo of appeal for claiming higher compensation are as enumerated in para 4, 5, 6,7 which read as follows:-

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“(4). The deceased was business man and has been earning more than 150 per day and was only aged about 35 years, being survived by 2 minor sons, 1 minor daughter, 1 wife, mother and one brother and all are the dependent of the deceased, and there is much loss to the deceased family, after the death of deceased, and the learned Tribunal has ignored this aspect of the matter, while making the award.

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(5). The appellants have fully established their case for multiplying the claim according to the earning of the deceased, and of his age, but the learned Tribunal illegally and erroneous did not multiplier the claim of the appellants, hence award is wholly wrong liable be to interfered by the Hon'ble Court.

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(6). Only on the grounds of being handicap a various liabilities should not be sifted, as has been done in the impugned award, by the learned Tribunal, hence the impugned award is wholly illegal, erroneous and liable to be interfered by the Hon'ble Court.

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(7). The learned Tribunal erroneously and manifestly misinterpretated the evidence made by the appellants, and recorded

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[2]

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of perverse findings of no fault case. Hence the impugned order is wholly illegal, erroneous, and illegal.”

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The learned Advocate for the appellants has cited the following judgments in the case of Smt. Gulshan Jahan and Others Vs. Om Prakash and Another [2011 (2) ADJ 12 (DB)] decided on 7^th January, 2011, Smt. Kaushnuma Begum & Ors. Vs. The New India Assurance Co. Ltd. & Ors [2001 (1) SCC 5 decided on 03.01.2001 and has contended that the finding of the Commissioner of the Motor Accidental Claims Tribunal is bad and has contended that the Tribunal has granted a paltry sum of Rs.55,000/- for the death of person aged 35 and was having his own business of stationary he was survived by six persons and was earning Rs.3,000/- per month. It has further contended that the finding of fact that as the deceased was handicapped and was unable to cross the road it was an act of God and he was person responsible for the accident having taken place. Though the Tribunal believed that the bus was involved in the accident belonging to U.P.S.R.T.C. it granted only Rs.55,000/- as compensation.

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4. 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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5. 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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6. 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.

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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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7. The term 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.

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8. 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 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 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,

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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, 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

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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 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 9. The deceased was a handicapped person and trying to cross the road and at that juncture met with an accident. The claims Tribunal held that not been able to cross the road and meeting with an accident as he was a handicapped person it was an act of God and therefore held that the deceased was himself negligent and granted the amount under no fault liability to the claimants and added Rs.5,000/- towards non-pecuniary damages. The question is whether the said accident would fall within the definition of act of God. The answer is no. In this case the driver of the bus has disputed his liability rather the driver of the bus and the owner have come out with a another story that the deceased was hit by some other vehicle and they have been illegally roped in. While going through the record it is clear that the accident occurred by the involvement of the bus as F.I.R. and charge sheet were laid against the driver of the bus. Death occurred due to the involvement of the bus. The deceased being handicapped person the driver of the bus should have taken proper cure and caution in driving the bus on the public road. At the most if we hold the deceased not able to cross the road, he can be held to be 20 per cent negligent whereas a driver driving a bus in such a area should have been cautious which he has failed to follow and therefore, not granting proper compensation is bad in eye of law. The compensation will have to be reevaluated as it cannot be said that the deceased died by the act

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of God. The decisions cited by the counsel for claimants namely Smt. Gulshan Jahan and Others Vs. Om Prakash and Another (supra) and Smt. Kaushnuma Begum & Ors. Vs. The New India Assurance Co. Ltd. & Ors (supra) will apply in full force and therefore the amount is recalculated.

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10. After hearing the learned counsel for the parties and perusing the judgment and order impugned, this Court feels that the income of the deceased, in the year of accident, should have been at least Rs.3,000/- per month namely Rs.36,000/- per year, to which as the deceased was below 35 years of age, 40% of the income i.e. Rs.14,400/- requires to be added as future income which would come to Rs.36,000+14,400=50,400/-. The deduction of 1/3 towards personal expenses of the deceased would be just and proper as he was survived by six dependents. Hence, after deduction of 1/3, the annual datum figure available to the family would be Rs.33,600/-. The multiplier of 16 requires to be granted looking to the age of the deceased is just and proper . Rs.5,000/- granted by the Tribunal under the head of nonpecuniary damages is required to be enhanced. Hence, the claimants are entitled to a total compensation of Rs.33,600X16+30,000= 5,67,600-Rs.1,13,520= Rs.4,54,080/-.

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11. However, the rate of interest which is 8% 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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12. In view of the above, the appeal is partly allowed. Judgment

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and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be recalculated 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. The amount already deposited be deducted from the amount to be deposited.

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13. 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. Geeta Devi and Others v. U.P. State Road Transport Corporation through M.D.and Others

Case brief

What is this about?

What did the court decide?

Smt. Geeta Devi and Others v. U.P. State Road Transport Corporation through M.D.and Others

Case brief

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What did the court decide?

What the court decided

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