First Appeal From Order No.225 of 2002,First Appeal From Order No.226 of 2002,First Appeal From Order No.339 of 2002

28th February, 2019.

Petitioner Counsel: ANAND KUMAR SINHA, R.O.V.S. CHAUHAN, SHARVE SINGH
Respondent Counsel: R.K. PORWAL, A.K. PARWAL, NEERJA SINGH, R.O.V.S. CHAUHAN, SHARVE SINGH, AJIT SINGH, NEERAJ SINGH,A.K. SINHA, R.K. PORWAL

Cases Cited:
Sudarsan Puhan Vs. Jayanta Ku. Mohanty and another etc., 2018 ALL SCR 1909=AIR 2018 SC 4662 [Para 11]
UPSRTC Vs. Km. Mamta and others, 2016 ALL SCR 802=AIR 2016 SC 948 [Para 11]
Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(4) ALL MR 429 (S.C.)=2009(2) TAC 677 (SC) : 2009 ACJ 1298 [Para 13,27,29,44]
Manjuri Bera (Smt) Vs. Oriental Insurance Company Ltd., 2007 ALL SCR 1617=(2007) 10 SCC 643 [Para 14,19,20,21,29]
Pawan Kumar & Anr Vs. M/S Harkishan Dass Mohan Lal & Ors., 2014(2) ALL MR 954 (S.C.)=Dt.29.1.2014 (SC) [Para 32]
Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others, First Appeal From Order No.1818/2012, Dt.19.7.2016 (All.) [Para 33]
Vimla Devi and others Vs. Chaman and others, 1992 ACJ 1048 [Para 38]
U.P. State Road Transport Corporation Vs. Krishna Gopal Agarwal and anr., First Appeal From Order No.75/2005 (All.) [Para 38]
2010 LawSuit (SC) 1081 [Para 38]
National Insurance Company Limited Vs. Pranay Setthi and others, 2018 ALL SCR 953=2017(0) Supreme (SC) 1050 [Para 40,41,44]
Mahant Dhangir and another Vs. Madan Mohan and others, 1987 ALLMR ONLINE 674 (S.C.) : 1987 (Supp) SCC 528 [Para 40]
Jitendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others, 2015 ALL SCR 1115=2015 (1) TAC 673 (SC) [Para 40]
New India Assurance Company Ltd. Vs. Resha Devi and others, 2017 (2) AICC 1808 [Para 40]
Surendra Singh and another Vs. Vijay Singh and others, 2018 (3) TAC 226 (All.) [Para 40]
Shri Nagar Mal and others Vs. Oriental Insurance Company and others, 2018 ALL SCR 358=AIR 2018 (SC) 568 [Para 41]

JUDGMENT

Dr. Kaushal Jayendra Thaker, J.:- Heard Shri Anand Kumar Sinha-Advocate appearing for the appellant Insurance Company and Shri Sharve Singh, learned counsel for the respondent nos. 7 and 8 ( in First Appeal From Orders No.225 of 2002 and 226 of 2002); namely, widow and child of the deceased, none else has appeared. Though this Court waited till the third round of revision of the Board. Heard Shri Sharve Singh, learned counsel for appellant in First Appeal From Order No. 339 of 2002 (his name has wrongly been shown for respondent) Shri A.K. Sinha-Advocate appears for respondent-Insurance Company and has opposed the enhancement of compensation filed by the widow and the minor child.

2. It is not known form the record whether the earlier Advocate Shri R.O.V.S. Chauhan who has absented himself had consented to part with the matter to Shri Sharve Singh as on the Vakalatnama/ no objection is not on record in any of the three matters.

3. The three appeals raise peculiar facts and circumstances. On the death of Vivek Gupta a claim petition came to be filed by his widow and eight month old daughter being MACP No. 314 of 1999 and later on by his father Shailendra Kumar Gupta on his behalf and for four minor children being brother and sister of the deceased being MACP No.28 of 2000. MACP claim first in point was made by the widow and the eight months old daughter. The Tribunal decided both these claims petition by a common judgment rendered on 26.11.2001. The Tribunal awarded a sum of Rs.10,22,500/- with 9% rate of interest from the date of filing of claim petition till the amount was deposited. The Tribunal apportioned the amount by granting a sum of Rs.2,82,500/- in favour of the father of the deceased namely, Saket Gupta and brother of the deceased namely, Sharad Gupta.

4. The National Insurance Company has challenged the award by filing two different appeals being FAFO No. 225 of 2002 and FAFO No. 226 of 2002. The destitute widow and minor child who had attained the age of four years when the claim petition came to be decided by the Tribunal has also brought in challenge the compensation awarded as well as the disbursement to the father and the brothers by filing FAFO No.319 of 1999. It would be relevant for this Court first to decide the appeals preferred by National Insurance Company being FAFO No.225 of 2002.

5. This Court has passed the following order on 5.3.2003 which reads as under :-

"Shri R.K. Poorwar, who appears for respondents no. 1, 4 and 5 prays for and is granted three weeks' time to file counter affidavit.

Issue notice to the respondents no. 2, 3, 6, 7 and 8.

The execution of the judgment and award dated 26.11.2001 in PAC No. 28 of 2000 given by Motor Accident Claims Tribunal, Etawah, shall remain stayed, provided the appellant deposits Rs.50,000/- with the Tribunal within two months. The amount of Rs.25,000/- deposited in this Court shall be transmitted to the Tribunal and shall also be taken into consideration. The claimant - respondent no. 1 will be entitled to withdraw the amount."

6. A further order was passed on the Stay Application in FAFO No. 225 of 2002 as well as stay vacation application that order reads as follows :

"Heard.

The stay order dated 5.3.2003 is confirmed. Subject to the modifiication that execution of the award shall remain stayed provided the appellant further deposits a sum of Rs.50,000/- within period of two months from today, failing which stay order shall stand automatically vacated. The amount thus deposited, cab be withdrawn by the claimant respondent without furnishing any security."

7. The facts as narrated in F.A.F.O. No.225 of 2002 are that the deceased Vivek Gupta was the son of claimant no. 1 and brother of claimant No. 2 to 5. It is not in dispute that the death occurred on 4.10.1998. The involvement of truck being Truck No. HR-26/6431 is not in dispute. It is not disputed that the deceased was driving maruti car bearing Car No. CH-01 S-1532. The deceased was 27 years of age on the date of accident and he was serving with Swarna Bhumi Forest India Limited and was earning salary of Rs.7,000/- per month. The appellant - Insurance Company filed its reply and contended that the driver of the truck was a necessary party. The second defence was that the claimant were not legal heirs and representative of the deceased as the widow had already filed the claim petition. They had further averred that the salary certificate of deceased was forged. The owner of the truck filed his written statement and averred that the accident never occurred with the truck owned by him and that the truck driver was a skilled driver and even without admitting that the accident occurred it was due to sole negligence of the driver of maruti car. It was contended that the salary slip showed that the basic salary of deceased was Rs.3,100/- per month and, therefore, the addition of other allowance has been wrongly made and that should not be the basis of calculation.

8. The pleadings of the parties under challenge in FAFO No. 225 of 2002 are considered, it is contended by the appellants that the deceased himself was driving the maruti car and, therefore, he was the author of the accident as he did not have driving licnece. In the alternative, it is submitted that the deceased was driver of maruti car and the Court has wrongly held the driver of the truck negligent. It was a head on collision and, therefore, the Tribunal erred in not considering the deceased also equally negligent. It is further contended that the claimants had strained relation with the deceased and deceased was staying separately with his wife which is clear deposition of the widow who had filed a separate claim petition being FAFO No. 314 of 1999. The father of the deceased was not dependent on the deceased as he was Advocate and brother of the deceased was major and, therefore, they cannot be said to be dependents or legal representative.

9. The Insurance Company has also challenged the compensation awarded to the widow and the minor child who have also preferred FAFO No.314 of 1999 for enhancement. The learned Advocate for the Insurance Company has submitted that the challenge to the compensation as raised in FAFO No. 226 of 2002 are the same and it has been submitted that the Company of the deceased came to be closed in the year 1999 after one year of the accident and the deceased would have been unemployed after the closer of the company if he had survived. Hence, income may be assessed on those basis.

10. It is submitted by Shri Sharve Singh counsel for the appellant in MACP No. 314 of 1999 that the widow with her eight months child has also claimed enhancement and also submitted that the apportionment in favour of the father of the deceased is bad. The deceased was the only earning member of the family which consists of the widow and the child. The deceased and the father had strained relations. It is further submitted by Shri Sharve Singh that it is duly established that the respondent no. 3 who is the father of deceased Vivek Gupta is a owner of a big house at Etawah and the appellant no. 1 solemnized the inter caste marriage with Shri Vivek Gupta. Thus the relation of father with Vivek Gupta and his family were very strained and deceased Vivek Gupta was residing as a tenant in other house at Etawah along with appellants. As such the respondent no. 3 and his other son's have no concern with the appellant's family and they have severed relations with all the appellants, his sons are not entitled for any award and has claimed enhancement of compensation to the tune of Rs.12,89,500/-. It is submitted that the deceased-Vivek Gupta was working as Area Manager. The Tribunal did not consider the future income of the deceased. The award passed by the Tribunal and divided in favour of Shailendra Kumar Gupta and Saket Gupta and Sharad Gupta is wholly illegal and the appellants are heir and successor of deceased Vivek Gupta as such the appellants are entitle for entire award. The learned Tribunal awarded interest at 9% per annum but the appellant is entitled for 18% interest per annum from the date of filing of claim petition.

11. All the three appeals raise similar issues and as per the judgment of Apex Court in Sudarsan Puhan Versus Jayanta Ku. Mohanty and another etc. AIR 2018 SC 4662 : [2018 ALL SCR 1909] which has reiterated, the judgment of the Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948 : [2016 ALL SCR 802] wherein it has been held that the issues raised in appeal and argued on all those issues will have to be deiced.

12. Hence, the issues which are raised for decision by the Insurance Company are that the father, brother and sister could not have been granted any amount as they are neither legal representative nor they are dependents of the deceased this ground is taken in appeal No. 225 of 2002.

13. Shri Anand Kumar Sinha has heavily relied on the decision of Apex Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009(2) TAC 677 (SC) : [2009(4) ALL MR 429 (S.C.)] and in paragraph 31 of the judgment of Smt. Sarla Verma [2009(4) ALL MR 429 (S.C.)] (supra), it is submitted that the petition itself was not maintainable as the widow and the minor child were the legal representatives / dependents and, therefore, apportionment in favour of the father and brother is bad and the Insurance Company's appeal requires to be allowed against them.

14. In the alternative, it is submitted that even if this Court comes to the conclusion that the father is a legal representative, he would like to rely on the case of Manjuri Bera (Smt) Vs. Oriental Insurance Company Ltd., (2007) 10 SCC 643 : [2007 ALL SCR 1617] and submit that the amount cannot have been more than the amount admissible under Section 140(2) of Act, 1988. He further submits that at the most if this Court comes to the conclusion that they were legal heirs, apart from the amount already deposited in FAFO No. 225 of 2002, no further amount be ordered to be apportioned/ deposited by this Hon'ble Court as the father has his own income as he is Advocate by profession.

15. The further issue raised by the Insurance Company is regarding the finding of fact on contributory negligence of the deceased it is submitted that as the vehicles have dashed with each other and that there is head on collusion between the maturi car and truck, the Tribunal has fallen in error in not considering the driver of maruti car negligent and in the alternative contributory to the accident.

16. As far as quantum is concerned, it is submitted by Advocate for the insurance company that the income considered at Rs.7,000/- per month is against the record and it should have been Rs.3,000/- per month only and also notional income if at all was to be taken and certain deductions have not been considered by the Tribunal.

17. As far as the widow and the minor child are concerned, they have brought in challenge the compensation awarded and the apportionment.

The first contention, therefore, to be decided would be whether the father and the brother can claim apportionment and whether the finding of Tribunal on the said issue is bad in eye of law.

18. At the outset, the provisions of Sections 166 and 168 of the Act, 1988 will have to be countenanced by this Court which are as follows :-

"166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.

(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:

Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.

(3) [ * * * ]

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."

19. The decision of the Apex Court in Manjuri Bera (Smt) [2007 ALL SCR 1617] (supra) which is pressed into service has held that "legal representative" would be entitled to compensation. In Manjuri Bera [2007 ALL SCR 1617] (supra), a married daughter of the victim filed the claim praying for statutory compensation under Section 140 of Act, 1988 on account of death of her father. The liability in terms of Sections 165 and 163A will also have to be looked into.

20. The right to apply for compensation and entitlement to compensation are enunciated in the judgment of Manjuri Bera (Smt) [2007 ALL SCR 1617] (supra) which goes to show that the term "dependent" is nowhere mentioned in Section 166 of Act, 1988. The term is 'legal representative' and the term 'legal representative' is defined in Section 2(11) of the Code of Civil Procedure, 1908. The term 'dependent' has been considered by the Court in the case of Manjuri Bera [2007 ALL SCR 1617] (supra). The term dependent has been considered by the Court in the case of Manjuri Bera (Smt) [2007 ALL SCR 1617] (supra) under Section 168 of Act, 1988 reads as under :

"168. Award of the Claims Tribunal.-On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."

21. The paragraph no. 12 of the judgment of Manjuri Bera [2007 ALL SCR 1617] (supra) reads as follows :

"12. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae."

22. A 'legal representative' will be one who suffers on account of death of person due to motor accident and need not necessarily be a wife, husband and child. There may not be any dependency.

23. The parties are Hindu by religion, therefore, an advertence to the provisions of Hindu Succession Act, 1956 ( hereinafter referred to as "Act, 1956"), more particularly the definition of term 'heirs' given in Section 3 (f) (g) reads as follows is necessary:

(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;

(g) "intestate"-a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;

24. The provision of Chapter -II of the Act, 1956 applied to intestate succession. The heirs in Class-I and Class-II are governed by Section 8 which reads as follows :

"8. General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased."

25. The daughter and widow would come in Class-I, father comes in Class-II and brothers and sisters also come in Class-II(ii). In this case, it is very clear that firstly the heirs of Class-I would be entitled to the amount and thereafter only a person in Class -II would be entitled.

26. I am in complete agreement with the submission made by Shri A.K. Sinha -Advocate and Shri Sharve Singh -Advocate and respondent no. 7 and 8, widow and daughter, that in view of the provisions of Act, 1956, once the widow has claimed and the claim petition is prior in time, the father or the brothers will not be entitled to the right however, as a concession as it is stated and held by the Tribunal that the father who was a practicing Advocate had a lot of love may be prior to the marriage towards the deceased would be entitled to the sum already deposited, namely, Rs.1,25,000/- which was if deposited with interest, nothing further can be paid to them, they being in Class-II heirship though they may be falling within the definition of term 'legal representative'.

27. For the time being, the term 'legal representative' which has to be applied has been settled in paragraphs 31 by Apex Court in Sarla Verma and Ors. Versus Delhi Transport Corporation : [2009(4) ALL MR 429 (S.C.)] (supra) and the same reads as under:-

"31. But where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. IN regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the motor alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father."

28. The mother would be considered to be dependent. The father even in the said matter was considered not to be entitled, however, as a special case as the father must now be in his retired life having lost his son who was in his youth, is considered to be entitled for certain amount.

29. None of the judgments throw light on a situation where the claimants are at variance. In this case, therefore, the appeal of the Insurance Company will have to succeed in part.

However, as a special case, the decisions in the cases of Manjuri Bera [2007 ALL SCR 1617] (supra) and Sarla Verma and Ors. Versus Delhi Transport Corporation [2009(4) ALL MR 429 (S.C.)] (supra) where it has been held as a cardinal principle of law that the father and brothers are entitled to compensation as legal representatives under the head of loss to dependency provided they prove their dependency on the deceased. In this case the deceased was staying separately from the brother, sister and his father. He was recently married, according to the widow who has withstood the oral testimony and the cross examination that she had strained relations with her in-laws. The deceased also was not having cordial relation with his father.

In this case as held above if the father feels, from his share of Rs.1,25,000/- which the Insurance Company has deposited with the Tribunal as per the orders of this Court, he may give to his other son who are legal representatives but have not proved their dependency and fall in Class-II heirship of Act, 1956. It is true that respondents fall in Class -II of the heirship but the fact that the father has lost his son who was the eldest major son, would permit this Court to grant him the certain amount and that amount has been granted as herein above.

The Insurance Company need not deposit any further amount as per the apportionment which is now reduced to amount already deposited with interest with the father. Appeal No. 225 of 2002 is partly allowed.

Negligence:-

30. This takes this Court to next issue about contributory negligence as the finding of negligence will have to be decided as it has been contended by counsel for Insurance Company that the Tribunal committed an error apparent on the face of record and has overlooked the written statement filed by the owner of the vehicle.

31. 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.

32. The 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. The Apex Court in Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors, [2014(2) ALL MR 954 (S.C.)] decided on 29 January, 2014 has held as follows:

7. Where the plaintiff/claimant himself is found to be a party to the negligence the question of joint and several liability cannot arise and the plaintiff's claim to the extent of his own negligence, as may be quantified, will have to be severed. In such a situation the plaintiff can only be held entitled to such part of damages/compensation that is not attributable to his own negligence. The above principle has been explained in T.O. Anthony (supra) followed in K. Hemlatha & Ors. (supra). Paras 6 and 7 of T.O. Anthony (supra) which are relevant may be extracted hereinbelow:

"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 wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer 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 wrongdoer 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 on 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 stand reduced in proportion to his contributory negligence.

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 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."

33. 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 which has held as under :

"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.

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.

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.

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.

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.

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).

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."

34. The Tribunal has held that on 4.10.1998 at about 10.00. p.m. near Rangeela Hospital on the Lucknow Kanpur Road Vivek Gupta, Area Manager of Swarna Bhumi Forest India Limited while driving the vehicle whether he was driving the vehicle rashly and negligently and that is how the accident occurred.

35. The Tribunal has considered the fact that the deceased was travelling rather driving maruti Car No. CH-01 S-1532 and was plying on Lucknow Kanpur Road and when he reached Etawah, truck bearing Truck No. HR-26/6431 dashed with the said maruti car. PW- 1-Mauli Gupta widow of deceased and PW-2-Hardev Singh are the eye witnesses as they were traveling in the said vehicle, she has deposed on oath that the vehicle was being driven at moderate speed and when they reached Rangeela Hospital, at that time one truck came from absolute wrong side and dashed with the maruti car. The driver of the Maruti Car was driving the car on its correct side. The impact was such that the deceased Vivek Gupta died on the spot. PW-1 was sitting on the front seat next to the driver, namely, her husband. It is her say that her husband tried to save the accident and even took car on the unpaved road and the driver of the truck lost his balance, came on the wrong side and dashed with the maruti car. Similar is the evidence given by PW-2 Hardev Singh who is the father-in-law of the deceased and father of the Mauli Gupta, the widow. The driver of the said vehicle left the truck and went away. The accident occurred on the left side of the road. PW-2 has also stated that the accident occurred due to the sole negligence of the driver of the truck. Similar is the version given by widow who has filed the report. The charge sheet was laid against Bhishma Sharma. The postmortum report shows that the death was due to the accidental injuries. The Tribunal has considered the site plan and has come to the conclusion that accident occurred on extreme left and the truck driver came on his wrong side and dashed the maruti car. The question of learned counsel appearing on behalf of Insurance Company that the maruti car was being driven at the speed of more than 100 km. per hour has been negatived by both the eye witnesses. Further best person to have deposed was the driver of the truck who has not been produced as a witness either by the owner or by the Insurance Company.

36. The principles of contributory negligence referred herein above would go to show that the deceased cannot be said to be author or co-author of the accident. He cannot be said to have played any role or added in the tortious act of the driver of the truck. The principles for considering his negligence have been properly discussed by the Tribunal which are reiterated and this Court is not persuaded to take a different view than that taken by the Tribunal as it cannot be said that there was head on collusion. The collusion was by the truck driver who left his own side negligently and came on the wrong side, despite all care and caution taken by the driver of maruti car, caused the accident.

37. The fact that the vehicles involved were of different magnitude namely the truck which is of higher magnitude and the Maruti Car- 800, hence for this reason also I am unable to concur with the submission of Shri Anand Kumar Sinha-Advocate that the deceased should be held to have contributed to the accident.

Compensation as claimed in FAFO No. 339 of 2002 by the widow and minor.

38. This takes this Court to the third appeal preferred by the widow and the minor child the submission of Shri Sharve Singh as also, the submission made by Shri Anand Kumar Sinha-Advocate for Insurance Company will have to be answered to. Shri Sinha has submitted that the father-in-law namely, respondent/claimant in FAFO No.225 of 2002 has deposed on oath that he had learnt that the widow wanted to remarry and, therefore, no enhancement can be granted. The said submission has been countered by Shri Shavre Singh Advocate who has relied on the decision of Supreme Court in the case of United India Insurance Company Limited Versus Smt. Baby and Others, 2017(1) TAC 368 (All.) and Vimla Devi and others Versus Chaman and others, 1992 ACJ 1048 and has submitted that even if it is proved that the widow has remarried, it will not make any difference in the compensation to be awarded. It is further submitted by Shri Sarve Singh-Advocate on the decision of another reported in 2010 Law Suit (SC) 1081 and in First Appeal From Order No. 75 of 2005 (U.P. State Road Transport Corporation Vs. Krishna Gopal Agarwal and another and has contended that even if it is proved that the widow had in fact remarried then also the same cannot be made basis for not enhancing the compensation as submitted by Shri Anand Kumar Sinha-Advocate who had clarified that he is not submitting that the widow who may have remarried will not be entitled to the claim but she cannot claim for enhancement of compensation.

39. For all practical purposes an appeal is a continuation of the proceedings and once such is the situation, this Court will have to consider the question of grant of compensation on the touchstone of what is said to be dependency benefit at the time of accident having taken place.

40. While considering the objection raised by Shri Sinha-Advocate, this Court is obliged to decide the quantum on the touchstone of the decision in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 : [2009(4) ALL MR 429 (S.C.)] and National Insurance Company Limited Vs. Pranay Setthi and others, S.L.P. (Civil) No.25590 of 2014 : [2018 ALL SCR 953], decided on 31.10.2017. However, the multiplier would be of 18 and to which 40% will have to be added. This exercise is undertaken in view of the settled legal position enunciated in Mahant Dhangir and another Vs. Madan Mohan and others, 1987 (Supp) SCC 528 : [1987 ALLMR ONLINE 674 (S.C.)], Jitendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others, 2015 (1) TAC 673 (SC) : [2015 ALL SCR 1115], New India Assurance Company Ltd. Vs. Resha Devi and others, 2017 (2) AICC 1808, and Surendra Singh and another Vs. Vijay Singh and others, 2018 (3) TAC 226 (All.).

41. Therefore the submission of both the learned Advocates for the respective parties will have to be considered in the light of the judgment of Apex Court in Shri Nagar Mal and others Versus Oriental Insurance Company and others, AIR 2018 (SC) 568 : [2018 ALL SCR 358] following the jdugment of Pranay Shetthi [2018 ALL SCR 953] (Supra).

42. The Tribunal while awarding the compensation has taken the flat rate of Rs.7,000/- with monthly deduction is the submission of learned Advocate for the Insurance Company as against it Shri Sharve Singh has submitted that the oral testimony showed that the deceased was earning Rs.10,000/-. Going through the record it is beyond the record and not proved on record, therefore, the submission for the widow that the income should be considered at Rs.10,000/- per month cannot be accepted and has been rightly not believed.

43. While going through the salary certificate of the deceased, the breakup will permit this Court to hold that would be Rs.7,000/- as certain amount was deducted from his salary.

44. The Tribunal has considered the income of Rs.7,000/- and annual dependency has been considered to be Rs.56,000/-. As the deceased was aged about 27 years, the multiplier of '18' has been granted. A sum of Rs.20,000/- under the pain shock suffering due to being widow at the age 22 years and Rs.2,000/- funeral expenses and a meager amount of Rs.2,500/- as loss to estate has been granted by the Tribunal.

The amount as submitted by counsel for Insurance Company and the original claimants will have to be re-calibrated as per the judgment of Sarla Verma (Smt) [2009(4) ALL MR 429 (S.C.)] (supra) National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017(0) Supreme (SC) 1050 : [2018 ALL SCR 953] and the subsequent judgments of the Apex Court, the deduction of certain perks can be made and therefore, the total income of the deceased would not be Rs.10,000/- as claimed but would be Rs.7,000/- as held by the Tribunal . The amount would be Rs.7,000/- as certain amounts will have to be deducted from his salary. He being under the age group of below 30 years, namely he was 27 years of age, hence the multiplier applicable will be 17. 50% of the income will have to be added towards prospective income as he was in job which would come to Rs.10,500/- out of which 1/3rd would have to be deducted which would come to Rs.7,000/-. Hence, estate would be entitled to a sum of Rs.84,000 x 17 = Rs.14,28,000/- to that as the widow lost her husband at a young age, as per the recent decision, under all conventional heads a sum of Rs.70,000/- is awarded to her. The amount of Rs.14,98,000/-/- to which a sum of Rs. 50,000 additional to the minor child is ordered for loosing her father at the age of eight months Rs.14,98,000/- + Rs.50,000/- would be awardable and available to the corpus of the deceased namely all the legal representatives. Out of the aforesaid amount, a sum of Rs.1,25,000/- which has been already deposited in the case of father and brother is awarded to the father and the brother collectively.

45. The appeals filed by Insurance Company will have to be looked into on the touchstone of this judgment. The multiplier method will have to be applied. The reason being in our case the widow and the minor child of eight months had also filed the claim petition which was prior in time.

46. The submission of Shri Sinha that the deceased would have become jobless cannot be countenanced as he had already worked as an agent of Life Insurance Corporation before he joined the company in which he was working at the time of accident and, therefore just compensation would be as herein above decided. The submission that the maruti car driver had no driving licence has not been proved. Even if it is believed though not proved that he had no driving licence. This submission cannot be accepted as there was no colossal connection rather it has been proved that he had a proper driving licence to drive the maruti car. There was no rebuttal evidence except the ground taken in the memo of appeal, hence, the said ground also fails. No other ground regarding breach of policy condition was taken in any of the appeals.

47. The submission that the maruti car driver had no driving licence has not been proved. Even if it is believed though not proved that he had no driving licence. This submission cannot be accepted as there was no colossal connection rather it has been proved that he had a proper driving licence to drive the maruti car. There was no rebuttal evidence except the ground taken in the memo of appeal, hence, the said ground also fails. No other ground regarding breach of policy condition was taken in any of the appeals.

48. In result the FAFO No. 225 of 2002 is partly allowed. The Insurance Company is not required to deposit any further amount. The deposited amount, if yet not disbursed, be disbursed to the claimants as a special case. The operative portion and the finding shall stand modified to the aforesaid extent. The judgment and decree of the MACP No. 28 of 2000 shall modified to the aforesaid extent.

49. The FAFO No. 226 of 2002 is dismissed.

50. The FAFO No. 339 of 2002 is partly allowed. The difference of amount be deposited with 9% rate of interest till the date of award and 6% thereafter. The amount be deposited within 12 weeks from the date of this order.

51. This Court is thankful to Shri A.K. Sinha-Advocate appearing for Insurance Company and Shri Sharve Singh -Advocate appearing for the widow and the minor child for getting the old matter disposed of.

52. This Court has endlessly waited for Shri R.K. Porwal- and other advocates on the date mentioned in the cause list and on the date the matter was argued.

Ordered accordingly.