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. {Para 17}
IN THE HIGH COURT OF ALLAHABAD
First Appeal From Order No. 1726 of 2001
Decided On: 04.08.2023
U.P.S.R.T.C. Ghaziabad Vs. Neerja Bhatiya and Ors.
Hon'ble Judges/Coram:
Dr. Kaushal Jayendra Thaker, J.
Citation: MANU/UP/2024/2023,2023:AHC:158461.
1. Heard Sri Sunil Kumar Misra, learned counsel for appellant and Sri Rajneesh Tripathi, learned counsel for the claimants. None has appeared for co-respondent.
2. By way of this appeal, the UPSRTC has felt aggrieved by the judgment and decree dated 20.8.2001 passed by the Motor Accident Claims Tribunal/XI Additional District Judge, Bulandshahar whereby the respondent-claimants No. 1 to 3 had preferred M.A.C.T. Case No. 95 of 1999 claiming compensation for the death of sole breadwinner. The parties are referred as claimants-and appellants-UPSRTC. The tribunal granted a sum of Rs. 24,85,012/-with interest at the rate of 9%.
3. At the outset in view of the Judgment of Apex Court in UPSRTC Vs. Km. Mamta and others, reported in MANU/SC/0185/2016 : AIR 2016 SC 948, all the issues which are raised before the appellate court must be decided.
4. The facts as they unfurl from the judgment and record appears that the claimants had preferred the claim petition for damages but inadvertently in caption mentioned petition under Section 163A of the Motor Vehicles Act, 1988 as was mentioned in the caption of the claim petition. The other averments and claim petition was preferred under Section 166 of Motor Vehicles Act, 1988 ( hereinafter referred to as 'Act, 1988').
5. The claimants are the legal representatives of the deceased-Rakesh Chandra who died in the vehicular accident. Rakesh Chandra Bhatia, according to claimants was a senior assistant engineer posted in Harduaganj Power Station, Kashimpur, District Aligarh under the U.P. State Electricity Department. This monthly income when the accident occurred was Rs. 23,803/-per month. He was survived by his widow and two daughters.
6. The accident took place on 28.1.1999 at 1:30 p.m. at National Highway in the vicinity of village Sikandrabad, just ahead of Idgah between Sikandrabad and Dadri in the district of Bulandshahar. The deceased was in fiat car No. DL-2 C-3693 which met with the bus belonging to UPSRTC bearing No. U.G.U.7161. It is averred that the before the deceased breath his last he had sustained multiple accidental injury. The deceased was moved to Sikandrabad Government Hospital where he was declared dead. The deceased succumbed to the accidental injuries sustained during the accident. The claimants claimed that they were legal representatives of the deceased as one was widow and two and three were his children ( daughter).
7. The claimants claimed a sum of Rs. 31,29,500/-. The deceased along with the claimants was going from Aligarh to Delhi in his fiat car No. DL-2 C-3693 the parents of the deceased later on were impleaded as proforma parties as opponents. The parents have supported the claim of the petitioner and have also claimed their share. The appellant-UPSRTC filed reply through its Regional Manager denying the claims made in paragraph no. 1 to 10 of the claim petition, they admitted the averment made in paragraph no. 11, 12 and 13 but again as far as paragraph no.13 and 14 the appellant did not admit as the appellant had no knowledge about the said facts.
8. In the additional reply it is contended by appellants that the claimants are not entitled to get any amount. The appellants pleaded mis-joinder of the parties. The appellants have even denied the factum of manner in which the accident occurred. It is stated that there was rain on the said date. Para 13 of the reply when translated it states that the accident is accepted but the car when it reached the place of occurrence tired to overtake one other vehicle and that is how it came and dashed the bus and, therefore, it is averred that the the deceased was totally negligent whereas the driver of the bus was skilled driver and there was no negligence in driving on his part. It was averred that the insurance company of the car having not been made party, the claim petition required to be dismissed.
9. The parties led evidence and the Tribunal though the petition was captioned to under Section 163A of the Motor Vehicles Act, 1988 treated it to be under Section 166 of Motor Vehicles Act, 1988 which is culled out from the issues raised by the Tribunal. The Tribunal raised five issues first was regarding negligence in driving by the drivers involved in the accident. The second issue raised was whether the deceased died out of injuries caused in the accident. The third issue was whether the claim petition was bad for non joinder of the owner and the insurance company of fiat car D.L.2 C-3693 and whether the claimants were entitled to any amount or not and lastly the issue no. 5 related to proving as to whether the respondents-appellants herein was liable to pay compensation or not and how much.
10. The Tribunal considered the claim petition as if it was under Section 166 of Motor Vehicles Act,1988 the reason being as far as issue no. 1 is concerned, it decided the issue of negligence which under Section 163A of Motor Vehicles Act, 1988 is not required to be decided as parties led evidence to that effect. As far as issue no. 5 is concerned, the Tribunal has considered the salary as Rs. 23803/-per month and has considered the income also as per Section 166 of the Act, 1988 and not as stipulated under Section 163A of the Motor Vehicles Act, 1988. From the record it is culled out that when the issues were framed the appellant herein did not raise any objection to the matter being considered as one under Section 166 of Motor Vehicles Act, 1988. The Act is a beneficial piece of legislation just because of misnomer in heading it cannot be detrimental to the widow and minor daughters.
11. While admitting this appeal, this Court directed the issuance of notice. From 2001 till 2003 no steps had been taken to see that the respondents are served. The appellants herein were directed to deposit a sum of Rs. 15,00,000/-with the claims Tribunal within three weeks and the respondent no.1 was entitled to withdraw Rs. 5,00,000/-. This order is dated 26.11.2001 and we are in the year 2023 today. The challenge to the issues on the basis of judgment of Deepal Girishbhai Soni and Ors. Vs. United India Insurance Company Limited, Baroda, MANU/SC/0246/2004 : AIR 2004 SC 2017 is also not raised before the Tribunal.
12. The UPSRTC preferred the appeal before the Apex Court against the interim order. The said appeal before the Apex Court came to be decided on 15.7.2002, twenty one years thereafter deciding this appeal.
13. Even in the grounds of challenge against the award of tribunal the UPSRTC has contended in one ground that the petition was under Section 163A not under Section 166 of the Motor Vehicles Act, 1988. The parties before the Tribunal and this Court have accepted the fact that the Tribunal had considered the matter under Section 166 of the Act when it decided what is known as the issue of negligence. As far as the issue of compensation is concerned the amount under the IInd Schedule it is not argued that maximum amount admissible where claim could be filed if maximum income of deceased was Rs. 40,000/-per month as the income of the deceased. The IInd Schedule is not applicable to the fatal cases. Section 163A of the Motor Vehicles Act, 1988 which read as under :
"163A. Special provisions as to payment of compensation on structured formula basis.-
(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.]"
14. In that view of the matter when the parties have accepted both before the Tribunal and also before this Court that the the claim petition was to be decided as per provision of Section 166 of Motor Vehicles Act, 1988 no such ground can now be raised before this Court that it was a petition under Section 163A of the Act. The mention of Section was only in the caption that it was petition under Section 163A that it was mentioned as under Section 163A of the Act. In the pleadings before Tribunal and even in the reply by the appellant it is not objected that the issues were wrongly framed and the issues are required to be recast. Thus the appellant herein with full knowledge had contested the litigation even before the Apex Court nor before this Court and though it is raised as a ground in the memo of appeal, therefore, this Court would also decide this litigation as it was under Section 166 of the Motor Vehicles Act, 1988.
15. The grounds of objection raised as grounds no. 1 to 7 to the award reads as follows
"1. Because, the Corporation bus was being driven at a moderate speed with due care and caution and the view taken by the claims tribunal to the contrary is erroneous.
2. Because, the accident had taken place solely due to the rash and negligent driving of the fiat car no. DL 2C/3693 being driven by the deceased Sri Rakesh Chandra Bhatiya, hence the Corporation was not liable to pay any compensation.
3. Because the Claims Tribunal placed undue emphasis on the evidence adduced on behalf of the claimants and is not fully appreciating the evidence adduced on behalf of the Corporation.
4. Because, the evidence adduced on behalf of the claimant by Smt. Neerja Bhatiya PW-1 ( claimant herself ) was not trust worthy as she was a highly interested witness and the Claims Tribunal erred in placing undue reliance on the same.
5. Because, the evidence adduced on behalf of the Corporation by Gajraj Singh D.W.-1 ( driver of the Corporation bus) and Sangam Lal ( conductor of the bus) were most trust worthy and the Claims Tribunal erred in not relying on the same.
6. Because, in the facts and the circumstances of the case it was evident that the deceased rashly and negligently had tried to overtake another vehicle without taking into account that the Corporation bus was being coming from the opposite direction and as such despite beset efforts of the Corporation bus driver to avert the accident, yet the accident was caused.
7. Because, in the facts and the circumstances of the case, the Claims Tribunal clearly erred in taking the view that even if the fiat car had suddenly tried to over take a vehicle, yet it was the responsibility of the heavier oncoming vehicle to be cautious so as to avoid the accident.."
16. In ground no. 12 for the first time it is averred as follows :
'12. Because, the Claims Tribunal erred in awarding compensation under Section 163A of the Motor Vehicle Act, 1988, wherein the Tribunal went beyond the maximum income as provided under the second schedule appended to Section 163A to the Act, while taking the annual income of the deceased as Rs. 2,85,636 per year. '
17. This ground is not available to the appellant and the judgments relied by the appellant would not apply to the facts of this case once the appellants have contested litigation as a litigation under Section 166 of the Motor Vehicles Act. It was only passing heading in the memo of claim petition that the wrong section was mentioned, the Section of 166 of the Motor Vehicles Act that the parties were well aware that the matter was to proceed as the petition under Section 166 of the Motor Vehicles Act. Even before the Apex Court it was never raised as an issue, hence the said ground fails and is rejected.
Decision on issue of Negligence
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 author of the accident would be liable for his contribution to the accident having taken place.
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 :
"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, MANU/UKHL/0001/1868 : (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 loquitur 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, MANU/SC/0457/2005 : 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."
21. Tribunal while deciding the issue of negligence has categorically given its finding on issue no.1 in favour of the claimants. The finding of facts is very clear that the bus dashed with fiat car on the right side. The instantaneous death goes to show that the Tribunal has not committed any error in holding that the driver of bus was the sole author of the accident. The witnesses have categorically mentioned that the driver of bus was driving the bus during monsoon in rash and negligent manner. However, this statement of PW-1, driver has been categorically refuted by the version of PW-1 that on that date there was no rain. The accident between two vehicles of unequal magnitude goes to show the bus dashed with fiat car and, therefore, the finding of fact cannot be found fault with.
22. As far as the question of considering the case under Section 163A of Motor Vehicles Act, 1988, the parties had to with open eyes when the issues were framed. Had the respondent-appellant herein objected immediately after the issues were framed. The claimant could have amended the heading as per the judgment of Hon'ble Gujrat High Court in Ram Dev Singh Vs. Chudasma Vs. Hans Raj Bhai Kodalo, MANU/GJ/0316/1998 : 1999 (2) TAC-331. Thus the grounds raised based of judgment of Deepal Girishbhai Soni and Ors. Vs. United India Insurance Company Limited, Baroda, MANU/SC/0246/2004 : AIR 2004 SC 2017 will not apply to the facts of this case. Hence, the grounds no. 12, 13, 14, and 15 could not have been pressed into service. This is nothing else but after thought. The said grounds are raised for the first time before this Court. The judgment of this Court in First Appeal From Order No. 3096 of 2004 (The New India Assurance Company Limited Vs. Rukshana Khatoon and others) decided on 3.5.2019 wherein a similar view is taken will enure for the benefit of claimants.
23. This takes this Court to the compensation awarded by the Tribunal, the Tribunal did not grant any amount under the head of future loss of income though the deceased was a salaried person. The income of the deceased was Rs. 23,803/-per month and which is proved by cogent evidence. The Tribunal has deducted 1/3rd towards personal expenses and granted multiplier of 13 as the deceased was 47 years of age. The Tribunal has granted Rs. 35000/-under the head of non pecuniary damages. It is contended by counsel for claimants that as per the decision of this Court in F.A.F.O. No. 2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 and the judgment of Apex Court in General Manager, Kerala S.R.T.C Versus Susamma Thomas, MANU/SC/0389/1994 : 1994 SCC (2) 176 .
24. The Appellate Court must grant just compensation even in absence of written cross objection by claimants. The Tribunal was under an obligation to grant what is known as future loss of income which has not been granted in view of the judgment of Gobald Motor Services Ltd. and another v. R.M.K. Velusamy, MANU/SC/0016/1961 : 1962 SCR (1) 929. Thus, it can be said that the Tribunal has erred in granting compensation nor the compensation is on the higher side.
25. Having heard learned counsel for the parties, the income of the deceased looking to his profession can be considered to be Rs. 23,803/-per month. To which, 25% to be added towards future loss of income. The deduction towards personal expenses of the deceased would be 1/3rd as the deceased was 47 years of age in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, MANU/SC/1366/2017 : 2017 0 Supreme (SC) 1050 . The deceased being 47 years of age, the multiplier applicable would be 13 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, MANU/SC/0606/2009 : (2009) 6 SCC 121. As far as amount under the head of non pecuniary damages are concerned, Rs. 70,000/-is granted.
26. Hence, the total compensation payable to the appellants is computed herein below:
i. Income per annum : Rs. 23803 x 12 = 2,85,636/-
ii. Percentage towards future prospects : 25% namely Rs. 71,409/-
iii. Total income : Rs. 2,85,636 + 71,409 = Rs. 3,57,045/-
iv. Income after deduction of 1/3 towards personal expenses : Rs. 36,000-
v. Multiplier applicable : 13 vi. Loss of dependency: Rs. 2,38,030 x 13 = Rs. 30,94,390/-
vii. Amount under non pecuniary heads : Rs. 70,000/-/-
viii. Total compensation : Rs. 31,64,390/-
27. As far as issue of rate of interest is concerned, the claimants would be entitled to 6% rate of interest on the enhanced compensation from the date of filing the claim petition till the amount is deposited. The rate of interest granted by the Tribunal on originally awarded amount is maintained.
28. In view of the above, the appeal sans merits and is dismissed. The oral cross objection is allowed as per the judgment of this Court passed in F.A.F.O. No. 2389 of 2016 (National Insurance Co. Ltd. Vs. Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016. The earlier amount be paid to the claimants after ascertaining their identity as more than 20 years have elapsed from the date of filing of this appeal.
29. Interim relief shall stand vacated forthwith. The record of the Tribunal be sent back forthwith.
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