Partly allowed

Smt.Monika Arora and Another v. Sri Shyam Singh Tomar and Others

Allahabad HC5 Jan 2022FAFO/764/2010

Case brief

AI extract

What is this about?

This appeal challenged a Motor Accident Claims Tribunal order finding the deceased 75% contributorily negligent. The High Court reduced the negligence to 40% due to rash driving by the dumper driver, enhanced future income prospects to 40%, increased non-pecuniary damages to Rs.1 lakh, and fixed interest at 7.5%. The award was partly allowed and modified.

What did the court decide?

Tribunal judgment modified to award Rs.14,88,000 plus interest at 7.5% from date of filing till deposit.

Smt.Monika Arora and Another Vs Sri Shyam Singh Tomar and Others — Insurance | Allahabad HC (2022)

¶1

[1]

¶2

Court No. - 2

¶3

Case :- FIRST APPEAL FROM ORDER No. - 764 of 2010 Appellant :- Smt.Monika Arora And Another Respondent :- Sri Shyam Singh Tomar And Others Counsel for Appellant :- Madhav Jain Counsel for Respondent :- Amaresh Sinha

¶4

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

¶5

(Oral : Hon'ble Dr. Kaushal Jayendra Thaker, J.)

¶6

Heard Sri Madhav Jain, learned counsel for the appellants and Sri Amaresh Sinha, learned counsel for the respondent.

¶7

This appeal, at the behest of the claimants, challenges the judgment and award dated 28.10.2009 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Agra (hereinafter referred to as 'Tribunal') in M.A.C. P. No. 330 of 2007.

¶8

Brief facts of the case are that on 2.1.2007 the deceased-Kamal Arora along with one other person was going from Kanpur to Agra by Alto Car which was being driven by deceased-Kamal Arora. At about 6.30 a.m. when they reached near Baba Ki Shala, at Kanpur Agra Road under Sikohabad Police Station, the deceased-Kamal Arora tried to over take the Dumper No. MP 07/ HB 0323 by giving dipper to the driver of the dumper, they dashed with the dumper. Kamal Arora died on the spot and the alto car entirely got damaged.

¶9

Deceased-Kamal Arora was 32 years of the age at the time of accident and was doing transport business and was earning Rs.8,42,500/- annually. The deceased-Kamal Arora was survived by his widow and minor daughter and mother. The Tribunal has considered his income to be Rs.1,50,000/- per annum, deducted 1/3rd towards personal expenses of the deceased, granted multiplier of 17, granted Rs.7,000/- under non-pecuniary heads and ultimately assessed

¶10

[2]

¶11

the total compensation to be Rs.17,07,000/-. The Tribunal held the deceased-Kamal Aroro who was driving the Car negligent to the tune of 75% deducted the amount of compensation to the tune of 75%. The claimants were therefore granted amount of Rs.4,32,000/- as compensation with interest at the rate of 6%.

¶12

It is submitted by learned counsel for the appellants that the Tribunal has fallen in error in holding the deceased negligent to the tune of 75%. It is submitted that the Tribunal has failed to consider the evidence on record which proves that the accident in question was caused due to rash and negligent driving of the driver of Dumper No. MP 07/HB 0323 and that the Tribunal has failed to consider the pleadings as well as evidence which clearly establishe that the deceased was driving car carefully and cautiously.

¶13

It is further submitted by learned counsel for the appellants that Tribunal did not grant any amount for future loss of income of the deceased and also the amount awarded under non-pecuniary heads granted by the Tribunal is on the lower side and should be enhanced in view of the the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 105. Lastly, learned counsel for the appellant has submitted that the interest as awarded by the Tribunal is on the lower side and requires to be enhanced.

¶14

As against this, Sri Amaresh Sinha, learned counsel for the respondent-Insurance Company submits that as far as the issue of negligence is concerned, the Tribunal has rightly held the deceased negligent to the tune of 75% as the car dashed the dumber from behind and therefore, it cannot be said that the driver of the dumper was solely negligent.

¶15

[3]

¶16

It is further submitted by Sri Sinha that the quantum of compensation and the interest awarded by the Tribunal is just and proper and does not call for any interference by this Court.

¶17

Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.

¶18

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.

¶19

The principle of contributory negligence has been discussed time and again. A person who either contributes or is co author of the accident would be liable for his contribution to the accident having taken place and that amount will be deducted from the compensation payable to him if he is injured and to legal representatives if he dies in the accident.

¶20

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 :

¶21

“ 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

¶22

[4]

¶23

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.

¶24

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.

¶25

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.

¶26

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.

¶27

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.

¶28

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) .

¶29

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.”

¶30

emphasis added

¶31

[5]

¶32

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

¶33

“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.

¶34

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 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 :

¶35

“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 wrongdoer 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.

¶36

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

¶37

[6]

¶38

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.”

¶39

18. This Court in Challa Bharathamma &Nanjappan (supra) 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 trailor-truck 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.

¶40

What emerges from the aforesaid discussion is as follows :

¶41

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

¶42

(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.

¶43

(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.

¶44

(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.”

¶45

emphasis added

¶46

The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimised if he had taken care.

¶47

[7]

¶48

The Alto Car dashed the rear side of the dumper. But the fact is that the car rammed into the dumper. Statements of P.W.1, Monika Arora and P.W.2, Umesh Chaddha have shown that the dumper was being driven in zigzag manner and when the deceased asked for passover, on giving passover, the dumper immediately came right side and immediately applied breaks. That is how, the accident occurred. The charge-sheet was also laid against the driver of the dumper. The driver of the dumper did not appear before the Tribunal. Hence, the finding that the driver of the dumper was negligent only to the tune of 25% is a bad view. Recently the Apex Court in Smt. K. Anusha and others v. Regional Manager, Shriram General Insurance Co. Ltd., 2021 (4) T.A.C. 341 (SC) has reversed the finding of the Tribunal and High Court in holding the driver of the car negligent to the tune of 50%. Facts are similar but in the case in hand, the driver of the car has to be also held to be driving the vehicle rashly and negligently. In the case in hand, the witnesses have categorically mentioned that the driver of the dumper after giving side so as to permit the deceased to overtake it, all of a sudden applied break and came on the right side which caused the accident. Hence, the driver of the car can be said to be 40% negligent and not 75% as held by the Tribunal.

¶49

This takes this Court now to the issue of compensation. The income of the deceased as assessed by the Tribunal is not in dispute. To which as the deceased was below the age of 40 years and was having his own business, 40% of the income will have to be added in view of the decision of the Apex Court in Pranay Sethi (Supra). As far as the amount under the head of non-pecuniary damages is concerned, it should be Rs.70,000/- + 10% increase every three years as per the decision of the Apex Court in Pranay Sethi (Supra) hence, the lump sum amount under this head would be Rs.1,00,000/-.

¶50

Hence, the total compensation payable to the appellants is

¶51

[8]

¶52

computed herein below:

¶53

i. Annual Income Rs.1,50,000/- (as decided by the Tribunal)

¶54

ii. Percentage towards future prospects : 40% namely Rs.60,000/-

¶55

iii. Total income : Rs. 1,50,000 + 60,000 = Rs.2,10,000/-

¶56

iv. Income after deduction of 1/3rd : Rs.1,40,000/-

¶57

vi. Multiplier applicable : 17

¶58

vii. Loss of dependency: Rs.1,40,000 x 17 = Rs.23,80,000/-

¶59

viii. Amount under non-pecuniary head : 1,00,000/-

¶60

ix. Total compensation : 24,80,000/-

¶61

x. Compensation payable to claimants after deductions of 40% negligence on the part of the deceased : 14,88,000/-

¶62

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 :

¶63

"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."

¶64

No other grounds are urged orally when the matter was heard.

¶65

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

¶66

On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any.

¶67

[9]

¶68

Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442 , the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers.

¶69

In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291 , 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 claimant 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) while disbursing the amount.

¶70

Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra) . The same is to be applied looking to the facts of each case.

¶71

Order Date :- 5.1.2022 DKS

Smt.Monika Arora and Another v. Sri Shyam Singh Tomar and Others

Case brief

What is this about?

What did the court decide?

Smt.Monika Arora and Another v. Sri Shyam Singh Tomar and 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

Dr. Ram Tirath Patel Vs Dinesh Chandra Agnihotri and Another

Roop Lal Adult and Another Vs Suresh Kumar Yadav and 2 Others

Smt.Pratima Singh and Others Vs Rajendra Singh and Others

Vinod Panjiyar Vs State of U.P. and 3 Others

Rakesh Verma and Another Vs Bareilly Development Authority and 3 Others

Jaskaran Singh Vs State of U.P. and 3 Others