First Appeal From Order No.3098 of 2016,First Appeal From Order No.3097 of 2016

7th November, 2016.

Petitioner Counsel: ARVIND KUMAR
Respondent Counsel: SATYA DEO OJHA

Cases Cited:
Smt. Sarla Verma & ors. Vs. Delhi Transport Corporation and another, 2009(4) ALL MR 429 (S.C.)=2009 ACJ 1298 [Para 6]
Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, 2006(4) ALL MR 92 (S.C.)=2006 (1) TAC 969 (S.C.) [Para 7]
New India Insurance Co. Ltd. Vs. Virendra Kumar Sharma and others, 2013 (3) TAC 497 (All.) [Para 9]
Rylands Vs. Fletcher, (1868) 3 HL (LR) 330 [Para 15]
Jacob Mathew Vs. State of Punjab, 2005 ALL MR (Cri) 2567 (S.C.)=2005 ACJ (SC) 1840 [Para 17]
Smt. Sheela Pandey and others Vs. New India Insurance Co. Ltd., 2015 (1) ACCD 276 (All) [Para 21]

JUDGMENT

JUDGMENT :- Heard learned counsels for parties.

2. Insurance company felt aggrieved by judgment and award passed by Motor Accident Claims Tribunal, Court no.15, Meerut, in Motor Accident Claim No.1156 of 2014.

3. Both these appeals arise out of same accident and same judgment and order passed by Tribunal. Both Insurance company and claimants are before us. Insurance company has felt aggrieved by judgment and decree dated 20.7.2016 in M.A.C. No.1156 of 2014.

4. Parties are referred as Claimants and Insurance Company.

5. Brief facts leading to filing of present petition are that on 29.7.2014 when deceased was going on his motorcycle, he was hit by an Indica Car, which was coming from opposite direction. Deceased suffered grave injuries due to said accident. Deceased died during treatment and after 28 days of accident. Claim petition claiming a sum of Rs.50,51,403/- was filed before Tribunal. In reply filed by owner of vehicle i.e. Indica Car, the factum of accident with the vehicle of deceased was denied. Insurance company also filed its written statement denying liability of payment on various grounds mainly contending that there was breach of policy. Claimants led evidence orally as well as by documentary evidence. They examined Vimla as PW- 1 and Sri Aman Deep as PW2. One Anand Singh, who was investigator of Company, was examined by Insurance company.

6. Learned Counsel for Insurance company has contended that F.I.R. was lodged after 11 days of accident having taken place which causes doubt about involvement of vehicle. Second aspect is that deceased did not die due to accidental injuries but died by Septicemia and, therefore, it cannot be said that death was due to accident as cause was Septicemia and shock. Learned Counsel for Insurance company even contended that if it is believed that vehicle was involved then accident arose due to sole negligence of driver of said vehicle of the deceased. Learned Counsel for appellant has submitted that negligence attributed to deceased was on lesser side. He was sole negligent if not sole negligent, his contributory negligence be considered at 50% or more. Against this, counsel for claimants has submitted that he was not at all negligent. Indica Car is a bigger Car, his negligence should be held more than 60% and it was his sole negligence. As far as issue of quantum is concerned, it is submitted by counsel for Insurance company that 1/3rd instead of 1/4th should have been deducted towards the personal expenses of deceased. It is further submitted that quantum awarded is much higher than what should have been awarded as per principles enunciated in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 : [2009(4) ALL MR 429 (S.C.)]. It is submitted that income considered at Rs.6000/- per month and adding 30% per month as future loss is also bad in eye of law.

7. Learned Counsel for claimants has submitted that negligence of deceased has been computed on much higher side. It cannot be said that he was in any way negligent. The evidence proved before Tribunal is otherwise and in absence of any evidence to consider deceased as 40% negligent without assigning any reason is also bad. It is submitted that Tribunal has misinterpreted decision in Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others, 2006 (1) TAC 969 (S.C.) : [2006(4) ALL MR 92 (S.C.)]. It is further submitted that quantum awarded is on lesser side. Tribunal has not added any amount towards future income. It is further submitted that amount of awarded under head of consortium and love of affection is also on lower side. It is submitted that compensation requires to be enhanced and finding of negligence requires to be interfered by this Court.

8. We have heard learned counsels for parties.

9. First submission of appellant about delay in filing F.I.R. has been answered by Tribunal and we concur with the same as a person would see that his family members gets treatment, the delay in filing of F.I.R. would not disentitle claimants from claiming compensation. Tribunal has sought support on the decision in New India Insurance Co. Ltd. Vs. Virendra Kumar Sharma and others, 2013 (3) TAC 497 (All.). The delay in lodging of F.I.R. would not be fatal if accident is proved. In this case, charge-sheet is also laid against driver of Indica car, who has not stepped into witness box. PW-2 has seen the accident and proved that Indica car was involved in the accident.

10. This takes us to next ground of challenge namely deceased was sole negligent person or he was more negligent. Tribunal has held that driver of motorcycle was 40% negligent whereas driver of Indica Car was held to be 60% negligent.

11. As far as contributory negligence is concerned, the negligence in not wearing helmet and allowing the children to ride on the back seat, common with most of lower middle class families travelling on two wheelers cannot be taken as composite or contributory negligence on the part of the deceased, when it is found that he was liable for any wrong doing in driving or otherwise on account of which accident was caused. The breach of rules in driving two wheeler without helmet and driving it with three pillion riders, by itself cannot be treated as composite or contribution to negligence on his part.

12. The aspect which we are required to look into is regarding issue of negligence raised before us. The term 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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 ACJ (SC) 1840 : [2005 ALL MR (Cri) 2567 (S.C.)]).

18. 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 of driver of another vehicle.

19. The finding of the Tribunal is that the driver of Indica Car was rash and negligent in driving the car. It is not uncommon for a person in our country to ride two wheelers with his wife and children. Though more than one pillion rider is not permitted, he cannot be said to have contributed to accident taking place especially in this case when Indica car was found negligent in taking a sudden turn towards right and colliding with motor cycle. The negligence of Indica car was proved by evidence. While going through entire record as is produced before us, deceased had injuries on head. All injuries are above eyebrow as is evident from postmortem report at page 99 of Paper-book. Going through evidence, both vehicles were of unequal magnitude is an admitted position of fact. PW-1 has withstood the cross-examination to show that driver of Indica Car was driving vehicle at speed of about 70 kms. per hour. This fact is borne out from record that driver of motorcycle was driving his vehicle slowly. Finding of fact of Tribunal holding that deceased was 40% negligent is not only bad but perverse as cross-examination of PW-2 would go to show that he withstood cross-examination as to whether accident occurred in middle of road, his answer was no and, therefore, submission that there was a head on collision on middle of road is belied by testimony of eye-witnesses. He has mentioned that vehicle involved was Indica Car which was being driven on it's wrong side. However, going through evidence of DW-1 also it is not proved that there was any negligence of driver of motorcycle i.e. deceased as has been proved by evidence of PW-2. No rebuttal evidence has come on record from driver of Indica Car nor it is borne out from evidence of DW-1 that deceased was in any way negligent and, therefore, question of contributory negligence as held by Tribunal is not only bad on facts but is misreading of evidence and hence liable to be reversed. It cannot be held that deceased was in any way responsible for the cause of accident. The accident has been proved. Having gone through principles of negligence, finding of fact cannot be found faulted with looking to impact of accident of eyewitnesses.

20. Death has taken place due to septicemia will not permit this appellate court to disturb findings of fact as under Section 166, death occurred due to accident. The accident has been proved. The death was after some days and hence this ground is also rejected and we concur with finding of Tribunal as far as said aspect is concerned. The cause of death shown is septicemia. Accident was the root cause of deceased being admitted and, therefore, submission that he died due to Septicemia and not out of accident is rejected.

21. Going through record, we find that deceased was survived by five dependents and Tribunal has considered income looking to his income-tax return. However, we are unable to accept submission of counsel for claimant that income should have been considered at Rs.30,000/- per month as it is found that except income tax return no other documentary evidence was produced. Tribunal after considering decision of this Court in Smt. Sheela Pandey and others Vs. New India Insurance Co. Ltd., 2015 (1) ACCD 276 (All). Amount considered as income of Rs.6000/- per month cannot be found fault with and deduction 1/4th is as per rule 220 (A) (2) (ii) and, therefore, multiplier after deduction of 1/4th was just and proper. The same cannot be interfered with and as far as that aspect is concerned we are in agreement with the finding of fact of Tribunal.

22. As far as appeal of claimants is concerned, question of non-addition of future income was given up by counsel when it was pointed out that 30% was already added to income assessed. The next issue, which was raised, was that amount of consortium and amount towards love and affection was on lower side. There is substance in argument of learned Counsel looking to present trend and accident having taken place on 29.7.2014, we feel that Rs.50,000/- be added to the amount under said head.

23. Appeal of Insurance company, being First Appeal From Order No.3098 of 2016, is dismissed under Order XLI Rule 11 of C.P. Code.

24. Appeal of claimants, being First Appeal From Order No.3097 of 2016, is allowed and it is held that driver of Indica Car was solely negligent and, therefore, the amount deducted by Tribunal will have to be paid with interest at the rate as given by Tribunal. Additional amount of Rs.50,000/- be paid to claimants under head of love and affection with 7% interest as directed by Tribunal.

Ordered accordingly.