Partly allowed

Smt. Anju Jaiswal and 2 Others v. Bileshvar and 3 Others

Allahabad HC13 Dec 2021FAFO/3113/2014

Case brief

AI extract

What is this about?

This court partly allowed an appeal against a Motor Accident Claims Tribunal's award of Rs.16,04,500. The court set aside the Tribunal's finding of contributory negligence but maintained it based on composite negligence law. Compensation payable was recalculated to Rs.26,89,000 using an 11x multiplier and future prospects, with interest fixed at 7.5% p.a.

What did the court decide?

Compensation enhanced to Rs. 26,89,000 with interest at 7.5% per annum calculated from the date of filing the claim petition.

Smt. Anju Jaiswal and 2 Others Vs Bileshvar and 3 Others — Insurance | Allahabad HC (2021)

¶1

Court No. - 21

¶2

Case :- FIRST APPEAL FROM ORDER No. - 3113 of 2014

¶3

Appellant :- Smt. Anju Jaiswal And 2 Others Respondent :- Bileshvar And 3 Others Counsel for Appellant :- Ram Tiwari Counsel for Respondent :- O.P.Mishra,Rajesh Kumar Singh

¶4

Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J.

¶5

(Oral Judgment by Hon’ble Ajai Tyagi, J.)

¶6

1. By way of this appeal, the claimants have challenged the judgment and order dated 05.08.2014 passed by Motor Accident Claims Tribunal/Additional District & Sessions Judge, Sonbhadra (hereinafter referred to as ‘Tribunal’) in M.A.C.P. No.190 of 2010 awarding sum of Rs.16,04,500/- as compensation to the claimants with interest at the rate of 7% per annum.

¶7

2. Heard Mr. Ram Tiwari, learned counsel for the appellants and Mr. Rajesh Kumar Singh, learned counsel for the respondents. Perused the record.

¶8

3. The accident is not in dispute. The Bajaj Allianz General Insurance Company Ltd. (hereinafter referred to as “Insurance Company”) has not challenged the liability on it. In this case, learned Tribunal has fixed 50% contributory negligence of the deceased which the appellants have objected vehemently and argued this point along with quantum fixed by learned Tribunal.

¶9

4. Brief facts of the case are that claimants-appellants filed Motor Accident Claim Petition before the Tribunal with the averments that on 0509.2009 the deceased Ranjan Jaiswal was traveling in Maruti car bearing No.U.P. 64 C 2121 from Dudhi to Renukut. At about 4:30 PM when he reached at Varanasi-Shaktinagar road near village

¶10

¶11

Khadpathar within the area of Police Station Pipari, District Sonbhadra, a truck bearing no. U.P. 64 H 2157 came from opposite side and hit the aforesaid car, the truck was being driven by its driver in a very rash and negligent manner. Accident took place due to rash and negligent driving of truck driver.

¶12

5. The owner and driver of offending truck did not appear before the learned Tribunal. The Insurance Company of car and truck filed their respective written statements, in which the Insurance Company of car blamed the rash and negligent driving of truck driver for accident while the Insurance Company of truck blamed the rash and negligent driving of car driver.

¶13

6. Learned counsel for the appellants has submitted that deceased was not negligent in accident. He was driving car on the right side of the road with reasonable speed and the offending truck driver while driving rashly and negligently, hit the car of the deceased, in which he sustained fatal injuries. It is also em-pathetically submitted by learned counsel for the appellant that Tribunal has fixed contributory negligence of the deceased, driving the car, 50% while he was not at all negligent. He driving the car on left side of the road, hence, learned Tribunal has committed gross error by imposing contributory negligence to the tune of 50% on the part of the deceased.

¶14

7. Per contra, learned counsel for the Insurance Company has submitted that site plan was prepared by Investigating Officer which shows that at the time of accident offending truck was on its left side of the road and deceased’s car was coming from opposite side and at the site of accident, car came towards the right side direction and hit the truck. Hence, learned Tribunal has rightly assessed 50% contributory negligence of the deceased. Learned counsel for the respondents has also submitted that the judgment and order passed by

¶15

¶16

Tribunal also does not suffer from any such infirmity or illegality which may call for any interference by this court.

¶17

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 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.

¶18

9. The principle of 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.

¶19

10. 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:

¶20

"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

¶21

¶22

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.

¶23

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.

¶24

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.

¶25

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.

¶26

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

¶27

¶28

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.

¶29

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).

¶30

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."

¶31

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

¶32

"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 inter-se 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

¶33

¶34

defendant.”

¶35

12. Perusal of record shows that learned Tribunal has fixed contributory negligence of drivers of both vehicles namely car and truck to the tune of 50% each. Keeping in view the aforesaid discussed law we threadbare perused the reasoning narrated by the Tribunal with reference to contributory negligence. Learned Tribunal has held that both the vehicles were coming from opposite direction at the time of accident. The deceased, who was driving the car, all of sudden came in the middle of the road and it is also the fact that truck driver is also driving the truck very rashly and negligent at a very high speed. After appreciating the evidence, learned Tribunal has held that both the drivers were negligent and their contributory negligence was fixed 50% each. We do not reassess the evidence regarding the factum of contributory negligence and finding of Tribunal in this regard is maintained.

¶36

13. Now, the only issue to be decided is, the quantum of compensation awarded by the Tribunal. The details of facts except for deciding compensation are not being narrated.

¶37

14. Learned counsel for the appellants has submitted that although the learned Tribunal was justified to assess the monthly income of the deceased as Rs.50,000/- but it did not award any sum under the head of future prospects. The deceased was aged about 54 years and was self employed and his future income could increase.

¶38

15. Other points of contention, which are argued by learned counsel for the appellants is that learned Tribunal has applied multiplier of 08 while it should have been 11 as per the judgment of the Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613. Lastly, it was contended that learned Tribunal has awarded interest at the rate of 7% per annum

¶39

¶40

and it should be increased.

¶41

16. No other arguments were placed regarding the fixation of quantum.

¶42

17. Perusal of record shows that learned Tribunal has assessed monthly income of deceased as Rs.50,000/- per month on the basis of income tax return, which is not disputed by the Insurance Company also.

¶43

18. It is also submitted by learned counsel for the appellant that learned Tribunal has not given any compensation under the head of future prospects. The age of the deceased was 54 years, hence in the light of the judgment of Apex Court in New India Assurance Co. Ltd. Vs. Urmila Shukla and Others, 2021 ACJ 2081, due to being self employed and having the age of 54 years, 20% shall be added towards future prospects in the income of the deceased.

¶44

19. Learned Tribunal has applied multiplier of 08 which is not in consonance with the decision of Pranay Sethi (Supra). In our opinion, the judgment of Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 LawSuit (SC) 613, would apply as the deceased was of 54 years, for the age band of 51-55, the multiplier of 11 should have been applied by the learned Tribunal. Appellants would be entitled to get Rs.15,000/- for loss of estate and Rs.15,000/- towards funeral expenses. Apart from it, wife of the deceased shall also be entitled to get Rs.40,000/- for loss of consortium. The claimants shall be entitled Rs.70,000/- under the head of non pecuniary damages with increase of 10% every three years as per the judgment of Apex Court in Pranay Sethi (Supra) .

¶45

20. Hence, the total compensation payable to the appellants in view of the decisions of the Apex Court in Sarla Verma and Others

¶46

¶47

(Supra) and Pranay Sethi (Supra) computed herein below:

¶48

(i) Annual income Rs.50,000/- per month X 12 = 6,00,000

¶49

(ii) Percentage towards future prospect : 20% = Rs.1,20,000/-

¶50

(iii) Total income : Rs.6,00,000 + Rs.1,20,000 = Rs.7,20,000/-

¶51

(iv) Income after deduction of 1/3rd : Rs.7,20,000 – 2,40,000 = 4,80,000/-

¶52

(v) Multiplier applicable : 11 :- Rs. 4,80,000 X 11 = 52,80,000/-

¶53

(vi) Amount under non pecuniary head : Rs.70,000/- + 28,000 = 98,000/-

¶54

(vii) Total compensation : Rs.52,80,000 + Rs.98,000/- = 53,78,000/-

¶55

(viii)Amount after 50% deduction towards contributory negligence : Rs.53,78,000 – 26,89,000 = Rs. 26,89,000/-.

¶56

21. As far as issue of rate of interest is concerned, it should 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:

¶57

"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."

¶58

22. Learned Tribunal has awarded rate of interest as 7% per annum but we are fixing the rate of interest as 7.5% in the light of the above judgment.

¶59

23. In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Bajaj Allianz General Insurance Company Ltd. (Insurance Company) shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of

¶60

¶61

filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited. Statutory amount be remitted to the Tribunal.

¶62

24. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 and this High Court in total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimants to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) and in First Appeal From Order No.2871 of 2016 (Tej Kumari Sharma v. Chola Mandlam M.S. General Insurance Co. Ltd.) decided on 19.3.2021 while disbursing the amount.

¶63

Order Date :- 13.12.2021 P.S.Parihar

¶64

(Hon'ble Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)

¶65

Smt. Anju Jaiswal and 2 Others v. Bileshvar and 3 Others

Case brief

What is this about?

What did the court decide?

Smt. Anju Jaiswal and 2 Others v. Bileshvar and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sukhpal Vs the New India Assurance Com. Ltd. and Others

Ashia Mehfooz and 2 Others Vs Sheikh Ethesham Uddin Ahmad and 3 Others

U.P. Financial Corporation Thru Its Director Vs Ashok Gupta and Others

Smt. Poonam Singh Raghuvanshi and Others Vs Jitendra Singh and Others

Darshan Lal Bohra Vs Noida and Another

Smt. Gyanesh and 2 Others Vs National Insurance Co. Ltd. and 2 Others