Partly allowed

Smt.Pratima Singh and Others v. Rajendra Singh and Others

Allahabad HC4 Jan 2022FAFO/265/2011

Case brief

AI extract

What is this about?

The High Court allowed the appellants appeal against the Motor Accident Claims Tribunal order. It held the Tribunal erred in apportioning liability between joint tortfeasors, ruling the compensation claim was one of composite negligence. The Court enhanced the compensation quantum, added minor daughters to the beneficiary list, and fixed the interest rate at 7.5%.

What did the court decide?

United India Insurance Company Ltd. ordered to deposit total enhanced compensation with interest at 7.5% p.a. from filing date until deposit.

Smt.Pratima Singh and Others Vs Rajendra Singh and… — Motor Accident Claims | Allahabad HC (2022)

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A.F.R.

Court No. - 2

Case :- FIRST APPEAL FROM ORDER No. - 265 of 2011

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Appellant :- Smt.Pratima Singh And Others Respondent :- Rajendra Singh And Others Counsel for Appellant :- Satyendra Narayan Singh,Chandra Prakash Mishra,Gyanendra Bahadur Rai,Hari Bhawan Pandey,Vivek Saran Counsel for Respondent :- Arun Kumar Mishra

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

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(Per: Hon'ble Ajai Tyagi, J.)

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By way of this appeal, the claimants have challenged the judgment and award dated 02.11.2010 passed by Motor Accident Claims Tribunal/Additional District Judge, Varanasi (herein after referred to as ‘Tribunal’) in M.A.C.P. No.110 of 2008 awarding sum of Rs.29,98,950/- as compensation to the claimants with interest at the rate of 6% per annum.

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The brief facts of the case are that aforesaid claim petition was filed before learned Tribunal with the averments that the deceased Bharat Singh was husband of appellant/claimant No.1, namely, Pratima Singh, who died in road-accident at the age of 38 years. The deceased was well-educated Software Engineer and he had served Indian Navy also. After retirement from Navy, he was working in Pune (Maharashtra) Based Geometry Software as operational head. Regarding the factum of accident, it is averred in the petition that on 28.4.2008, he was going from Varanasi to his place of service in Pune by his Indica Car bearing No.MH-12-CR-3962. At about 9:00 p.m., 4 km. away

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from Rewa (MP), the Truck No.MBJ 2099 dashed the aforesaid car, when the truck was being reversed by its driver at a very high speed without blinking the indicator-light and horn. In this accident, deceased-Bharat Singh sustained serious injuries due to which he died during the treatment in Sanjay Gandhi Hospital at Rewa (MP).

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Heard Shri S.D.Ojha, learned counsel for the appellantsclaimants and Shri Arun Kumar Mishra, learned counsel for the respondent No.3-United India Insurance Co.Ltd. Perused the record.

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Before us, the accident is not in dispute. In this case, learned Tribunal has fixed 50% contributory negligence of the driver of the car and 50% contributory negligence of the driver of the truck. Tribunal has made apportionment of the claim between tortfeasors and only 50% amount of the compensation to be paid by the Insurance Company of the offending truck, which is respondent No.3 and awarded the same is vehemently objected by the appellants and argued this point along with quantum fixed by the Tribunal.

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The driver and the owner of the offending truck did not appear before the learned Tribunal. The Insurance Companyrespondent No.3 filed its written statement.

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On the point of negligence, learned counsel for the appellants submitted that learned Tribunal has fixed 50% contributory negligence of the driver of the car and 50% contributory negligence of the driver of the truck, but the deceased was travelling in the car. He was not driving the car at the time of accident. Therefore, as far as the deceased is

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concerned, it is a case of composite negligence and appellants are entitled to recover the entire amount of compensation from any of the tortfeasor, but the learned Tribunal has allowed only 50% amount of compensation to be paid by the Insurance Company of the Truck, which is illegal.

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Per contra, Shri Mishra, learned counsel appearing on behalf of Insurance Company, has submitted that since the driver of the truck was only negligent to the extent of 50%, therefore, the Insurance Co. of the truck is liable to pay 50% of the quantum and learned Tribunal has committed no error in this regard and there is no illegality or infirmity in the impugned judgment. Hence, it does not call for any interference by this Court.

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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 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

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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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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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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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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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These provisions (section 110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They

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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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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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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 Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (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 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 defendant."

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Perusal of the impugned judgment shows that learned Tribunal has held that respondents shall be liable jointly and severely for making the payments of compensation, but contributory negligence of drivers of car and truck is fixed to the extent of 50-50% and the Insurance Company of the car is not made party in the petition, hence Insurance Company of the truck would be liable to pay only 50% amount of compensation. This finding of learned Tribunal is erroneous. Learned Tribunal has not understood the law relating to composite negligence. As far as the compensation regarding the death of the deceased is concerned, it is not a case of contributory negligence, but it is a case of composite negligence. There is difference between the law relating to contributory negligence and composite negligence.

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In case of composite negligence, legal representatives of the deceased or injured, as the case may be, are at liberty to seek total compensation from the owner of either of the vehicles or from the owners of the both the vehicles because liability is joint and several. As held by Hon'ble Apex Court in Khenyei (supra), the extent of negligence of joint tortfeasors is immaterial for the satisfaction of the claim of the claimants. However, in case, the joint tortfeasors are before the Court, it may determine the extent of their liability for the purpose of adjusting inter se equities between them. But, in the case in hand, the owner and the Insurance Company of the car involved in accident were not before the Tribunal, hence it was not open for the Tribunal to make apportionment of the compensation between the tortfeasors.

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It is not necessary to join both the tortfeasors in the

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petition because claimants absolute right in asking for the compensation from any of the joint tortfeasors and if it is so, the total amount of compensation shall be paid by the joint tortfeasor, who has made party to the petition. Claimants have the right to recover entire amount from one tortfeasor, hence learned Tribunal has committed grave error by making apportionment of compensation between the tortfeasors and limiting the liability of Insurance Company of the truck to the extent of 50% only. Hence, total amount of compensation shall be paid to the claimants/appellants by respondent No.3Insurance Company of the offending truck, but since the owner and the Insurance Company of the car are not before us, respondent No.3 may recover 50% of the amount of compensation from the owner/Insurance Company of the car.

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There is one more important aspect in this appeal, which is neither pointed out nor argued by any of the parties, but we threadbare analyzed the evidence on record and by perusing the record as well, we find that the deceased-Bharat Singh is survived by two daughters also, namely, Kumari Akshita Singh and Kumari Ayushi aged about 11 years and 7 years respectively as shown in column No.7 of the petition. However, they are not shown in the array of the parties, but even then when it was on record before the Tribunal that the deceased is survived by two daughters also, the Tribunal was duty-bound to settle the share of daughters' compensation also, but the Tribunal overlooked this legal and factual position. Hence, since the daughters of the deceased are on record, we direct that the daughters of the deceased, as shown in column No.7 of the petition, should be paid reasonable amount out of total amount awarded as

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compensation, which may be required for their higher education or marriage etc. because they would have become major by now. Therefore, as per the law laid down by Hon'ble Apex Court in A.V. Padma and others vs. R. Venugopal and others, 2012 (1) GLH (SC) 442, the order of investment is not passed as the claimants are neither illiterate nor rustic villagers and moreover more than 13 years have been elapsed when the accident in question had taken place. Now the only issue to be decided is the quantum of compensation awarded by the Tribunal.

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Learned counsel for the appellant has submitted that the deceased was in service and his salary was Rs.1,10,000/- per month, but the Tribunal has assessed the salary as only Rs.46,800/-. It is also submitted that no amount towards 'future loss of income' is considered by the learned Tribunal and the amount granted under 'non-pecuniary heads' is also at a lowerside.

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Per contra, learned counsel appearing on behalf of Insurance Company objected and submitted that learned Tribunal has rightly assessed the monthly income of the deceased as Rs.46,800/- because amount under heads of basicpay and HRA are not admissible.

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Perusal of records shows that the appellants have filed the appointment letter of the deceased, which is annexed with the salary break-up to be paid. This letter is dated 19.4.2007, which shows that basic-pay of the deceased was Rs.31,200/- and HRA was Rs.15,600/-. Apart from these, special allowances, transport allowances are mentioned, which are not payable. Therefore, we

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are of the opinion that learned Tribunal has rightly considered the salary of the deceased at Rs.31,200/- + Rs.15,600/- = Rs.46,800/-, which we do not disturb. Learned Tribunal has not awarded any sum towards 'loss of future income'. The deceased was salaried person and admittedly his age was below 40 years, therefore, as per the judgment of National Insurance Co.Ltd. vs. Pranay Sethi, 2014 (4) TAC 637 (SC), 50% of the income shall be added towards 'future prospects. Wife, mother and two daughters of the deceased were dependent on the deceased. Both the daughters were minor at the time of accident, therefore, they shall be treated as one unit. Hence, keeping in view the number of dependents, 1/3 of the income shall be deducted for personal expenses of the deceased. It is admitted in the petition that the age of the deceased was 38 years, therefore, as per the judgment of the Hon'ble Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 ACJ 1298, multiplier of 15 shall be applied to arrive at 'loss of dependency'. Appellants shall get Rs.15,000/- for 'loss of estate' and Rs.15,000/- for 'funeral expenses'. Apart from it, the wife of deceased shall get Rs.40,000/- towards 'loss of consortium' and mother of the deceased and both the daughters ( Kumari Akshita Singh and Kumari Ayushi) shall get Rs.40,000/- each, as 'filial consortium'.

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Hence, the total compensation payable to the appellants and daughters of the deceased as per the discussion above is recomputed herein below:

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i. Monthly Income : Rs.46,800/-

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ii. Percentage towards future prospects : 50%, namely, Rs.23,400/-

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iii. Total income : Rs.46,800/- + Rs.23,400/- =

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Rs.70,200/-

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iv. Income after deduction of 1/3 : Rs.70,200/- - Rs.23,400/- = Rs.46,800/-

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v. Annual income : Rs.46,800 x 12 = Rs.5,61,600/vi. Multiplier applicable : 15 vii. Loss of dependency: Rs.5,61,600 x 15 = Rs.84,24,000/-

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viii. Amount under non-pecuniary heads : Rs.15,000/- + Rs.15,000/- + Rs.40,000/- + Rs.40,000/- + Rs.40,000/=Rs.1,50,000/-

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ix. Total compensation : Rs.84,24,000/- + Rs.1,50,000/- = Rs.85,74,000/-

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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:

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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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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.

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In view of the above, the appeal is partly allowed. Judgment and award passed by the Tribunal is modified to the aforesaid extent. United India Insurance Company Limitedrespondent No.3 shall deposit the entire amount within a period of 12 weeks from today with interest @ 7.5% per annum from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the

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amount to be deposited.

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In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansagori P. Ladhani vs. The Oriental Insurance Company Ltd., [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.

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(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)

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Order Date :- 04.01.2022 LN Tripathi

Smt.Pratima Singh and Others v. Rajendra Singh and Others

Case brief

What is this about?

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Smt.Pratima Singh and Others v. Rajendra Singh and Others

Case brief

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