Vimla Singh And 4 Ors Vs Rakesh Kumar Gupta And Anr (Allahabad High Court)
The Allahabad High Court decided two appeals arising from the same motor accident involving the deaths of Radhey Shyam Singh, who was driving the motorcycle, and Tarri alias Aasir Ali, who was the pillion rider. The appeals were filed by the legal heirs of both deceased persons against the judgment and award dated 1.2.2018 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Kanpur Nagar.
The accident occurred on 16.11.2015 at about 12.15 when Radhey Shyam Singh, along with his friend Tarri alias Aasir Ali, was travelling on Motorcycle No. UP 95 A2393 from Village Gadheva towards his home. Near Village Harbanspur, an Eco Car bearing registration No. U.P.77 L 077 allegedly came from the wrong side while being driven rashly and negligently and collided with the motorcycle. Radhey Shyam Singh suffered fatal injuries and died on the spot.
Claims were filed against the owner of the Eco Car and its Insurance Company. The respondents denied involvement of the vehicle and stated that the accident involved a truck. The claimants produced documents including the First Information Report, voter identity card, site plan and other evidence.
The appellants challenged the Tribunal’s findings mainly on two grounds: the finding regarding negligence and the quantum of compensation. They argued that the Tribunal wrongly attributed negligence to the deceased and awarded lower compensation.
The High Court examined the principles relating to negligence, contributory negligence and composite negligence. It observed that negligence means failure to exercise the degree of care expected from a reasonable person and that contributory negligence applies where the injured person has contributed to the accident. The Court referred to the principle that where the victim has not contributed to the accident but the accident results from the negligence of others, the matter involves composite negligence.
The Court relied upon the principles laid down in Khenyei Vs. New India Assurance Company Limited & Others, regarding the distinction between composite and contributory negligence. It noted that in composite negligence, the claimant can recover the entire compensation from joint tort-feasors and deduction cannot be made from compensation payable to a person who was not responsible for the accident.
The High Court found that the Tribunal had only recorded that the vehicles had a head-on collision and had not provided reasons for holding the deceased motorcycle driver 50% negligent. From the site plan, the Court found that the car came from the wrong side and collided with the motorcycle. It also noted that the car driver did not appear as a witness and no rebuttal evidence was produced.
The Court held that deceased Radhey Shyam Singh, who was driving the motorcycle, was negligent to the extent of 20%. However, for deceased Tarri alias Aasir Ali, who was only a pillion rider, the case was one of composite negligence and deduction on account of negligence was not permissible.
Regarding compensation for Tarri alias Aasir Ali, the Court enhanced the monthly income from Rs.3,000/- considered by the Tribunal to Rs.5,000/-. It upheld the addition of 40% towards future prospects, deduction of 1/4th towards personal expenses and multiplier of 15. The Court awarded additional amounts under non-pecuniary heads and granted Rs.50,000/- each to six minor children towards love and affection.
The compensation calculation for Tarri alias Aasir Ali was:
- Monthly income: Rs.5,000/-
- Future prospects at 40%: Rs.2,000/-
- Total income: Rs.7,000/-
- After 1/4th deduction: Rs.5,250/-
- Annual income: Rs.63,000/-
- Multiplier: 15
- Loss of dependency: Rs.9,45,000/-
- Non-pecuniary heads: Rs.1,00,000/-
- Amount for children towards love and affection: Rs.3,00,000/-
- Total compensation: Rs.14,80,000/-
For Radhey Shyam Singh, the Court noted that the Tribunal had considered monthly income of Rs.38,249/-, added 30% towards future prospects and deducted 1/4th. The Court maintained the calculation principles but directed recalculation after applying 20% negligence of the deceased. It also granted additional amounts under non-pecuniary heads and Rs.50,000/- each to three minor children towards love and affection.
The Court held that interest should be paid at 7.5% per annum from the date of filing of the claim petition until deposit, following the principle referred to in National Insurance Co. Ltd. Vs. Mannat Johal and Others.
The appeals were partly allowed. The Tribunal’s award was modified accordingly. The Insurance Company was directed to deposit the difference amount within 12 weeks with interest at 7.5% per annum. The Tribunal was directed to prepare a fresh award and follow the directions regarding disbursement of compensation. The record was ordered to be sent back to the Tribunal.
Cases Discussed
- National Insurance Co. Ltd. Vs. Mannat Johal and Others (Supreme Court), 2019 (2) T.A.C. 705 (S.C.)
- Khenyei Vs. New India Assurance Company Limited & Others (Supreme Court), 2015 LawSuit (SC) 469
- Archit Saini and Another Vs. Oriental Insurance Company Limited (Supreme Court), AIR 2018 SC 1143
- Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others (Allahabad High Court), First Appeal From Order No. 1818 of 2012 decided on 19.7.2016
- National Insurance Company Ltd. v. Chamudeswari and Others (Supreme Court), 2021 (4) T.A.C. 367 (SC)
- New India Assurance Company Ltd. Vs. Rakesh Kumar Vishwakarma and others (Allahabad High Court), 2007 (4) T.A.C. 156 (All)
- United India Insurance Co. Ltd. v. Smt. Puti Mahato and others (Calcutta High Court), 2007 (4) TAC 161 (Cal.)
- Kumari Kiran thr. her father Harinarayan v. Sajjan Singh & Others (Supreme Court), 2014 0 Supreme (SC) 666
- Sunil Sharma and others v. Bachitar Singh and others (Supreme Court), 2011 LawSuit (SC) 456
- Vimal Kanwar and Others v. Kishore Dan and others (Gujarat High Court), 2013 (2) G.L.H. 42
- New India Assurance Co. Ltd. v. Somwati and others (Supreme Court), 2020 LawSuit (SC) 559
- T.O. Anthony v. Karvarnan & Ors. (Supreme Court), 2008 (3) SCC 748
- Jacob Mathew V/s. State of Punjab (Supreme Court), 2005 0 ACJ(SC) 1840
- Challa Bharathamma & Nanjappan (Supreme Court)
- Rylands V/s. Fletcher (House of Lords), (1868) 3 HL (LR) 330
- A.V. Padma V/s. Venugopal (Supreme Court), 2012 (1) GLH (SC), 442
- Hansagauri P. Ladhani v/s The Oriental Insurance Company Ltd. (Gujarat High Court), 2007(2) GLH 291
- Smt. Sudesna and others Vs. Hari Singh and another (Allahabad High Court), Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Heard Sri Shreesh Srivastava, learned counsel for the appellants, Mohammad Farooque Ansari, learned counsel for the respondents.
2. Both these appeals arise out of the same accident causing death of the Radhey Shyam Singh, who was driving the motor cycle and Tarri alias Aasir Ali, who was the pillion rider.
3. First Appeal From Order No. 2119 of 2018 (arising out of MACP No. 1374 of 2015) has been preferred by the legal heirs of the deceased-Radhey Shyam Singh and First Appeal From Order No. 2120 of 2018 (arising out of MACP No. 1373 of 2015) has been preferred by the legal heirs of deceased-Tarri alias Aasir Ali who was not the tort-feasor. Both these appeals challenge the judgment and award dated 1.2.2018 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 6, Kanpur Nagar.
4. The factual data as it emerges from the record and the judgment of the Tribunal are that on 16.11.2015 at about 12.15, Radhey Shyam Singh along with his friend was going from Village Gadheva to his home by plying his Motorcycle No. UP 95 A2393 and as soon as they reached near Village Harbanspur, a vehicle being Eco Car No. U.P.77 L 077 which was being driven rashly and negligently came on the wrong side and dashed with motorcycle. Radhey Shyam Singh sustained sever injuries an died on the spot. The claim petition was filed against the owner of the said car and its Insurance Company, reply was filed which was only of denial. According to the reply, the vehicle did not involve in the accident. The vehicle involved was truck. Respondent No.2 also filed reply of denial. The claimants filed First Information Report, Vote ID Card, Site Plan and other documentary evidence. We do not delve into the same at this juncture as it would burden the judgment. We are constrained with deduction of compensation in the case of non tort-feasor and the negligence aspect.
5. These are the claimants appeal whereby twin issues raised before us relate to negligence attributed to the deceased and the compensation awarded in both matters.
6. The claimants-appellants has challenged the award of the Tribunal mainly on the ground that the issue of negligence decided by the Tribunal is bad in the eye of law and that the quantum of compensation awarded is on the lower side.
7. In support of his arguments learned counsel for the appellants has relied on the decisions in National Insurance Company Ltd. v. Chamudeswari and Others, 2021 (4) T.A.C. 367 (SC), New India Assurance Company Ltd. Vs. Rakesh Kumar Vishwakarma and others, 2007 (4) T.A.C. 156 (All), United India Insurance Co. Ltd. v. Smt. Puti Mahato and others, 2007 (4) TAC 161 (Cal.), Kumari Kiran thr. her father Harinarayan v. Sajjan Singh & Others, 2014 0 Supreme (SC) 666, Khenyei v. New India Assurance Co. Ltd. and others, (2015) 9 SCC 273, Sunil Sharma and others v. Bachitar Singh and others, 2011 LawSuit (SC) 456, Vimal Kanwar and Others v. Kishore Dan and others, 2013 (2) G.L.H. 42, New India Assurance Co. Ltd. v. Somwati and others, 2020 LawSuit (SC) 559.
8. Having heard the learned counsel for the parties, let us consider the negligence from the perspective of the law laid down.
9. 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.
10. 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.
11. 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, (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.”
emphasis added
12. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
“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.
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 :
“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.
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.”
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.
What emerges from the aforesaid discussion is as follows :
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.
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.
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.
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.”
emphasis added
13. 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.
14. A similar view has been taken by the Apex Court in Archit Saini and Another Vs. Oriental Insurance Company Limited, AIR 2018 SC 1143 wherein the finding of the Tribunal was upheld by adverting to the same more particularly the Apex Court has upheld the finding in paragraph 21 to 27 in its judgment. The paragraph 5 of the said Apex Court’s judgment is reproduced hereinbelow:
“5.The respondents had opposed the claim petition and denied their liability but did not lead any evidence on the relevant issue to dispel the relevant fact. The Tribunal after analysing the evidence, including the site map (Ext. P-45) produced on record along with charge-sheet filed against the driver of the Gas Tanker and the arguments of the respondents, answered Issue 1 against the respondents in the following words:
“21. Our own Hon’ble High Court in a case captioned Lakhu Singh v. Uday Singh [Lakhu Singh v. Uday Singh, 2007 SCC OnLine P&H 865 : PLR (2007) 4 P&H 507] held that while considering a claim petition, the Tribunal is required to hold an enquiry and act not as criminal court so as to find whether the claimants have established the occurrence beyond shadow of any reasonable doubt. In the enquiry, if there is prima facie evidence of the occurrence there is no reason to disbelieve such evidence. The statements coupled with the facts of registration of FIR and trial of the accused in a criminal court are sufficient to arrive at a conclusion that the accident has taken place. Likewise, in Kusum Lata v. Satbir [Kusum Lata v. Satbir, (2011) 3 SCC 646 : (2011) 2 SCC (Civ) 37 : (2011) 2 SCC (Cri) 18 : (2011) 2 RCR (Civil) 379] the Hon’ble Apex Court has held that in a case relating to motor accident claims, the claimants are not required to rove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.
22. After considering the submissions made by both the parties, I find that PW 7 Sohan Lal eyewitness to the occurrence has specifically stated in his affidavit Ext. PW 7/A tendered in his evidence that on 15-12-2011 at about 20.30 p.m. he along with PHG Ajit Singh was present near Sanjha Chulha Dhaba on the National Highway leading to Jammu. All the traffic of road was diverted on the eastern side of the road on account of closure of road on western side due to construction work. In the meantime a Maruti car bearing No. HR 02 K 0448 came from Jammu side and struck against the back of Gas Tanker as the driver of the car could not spot the parked tanker due to the flashlights of the oncoming traffic from front side. Then they rushed towards the spot of accident and noticed that the said tanker was standing parked in the middle of the road without any indicators or parking lights.
23. The statement of this witness clearly establishes that this was the sole negligence on the part of the driver of the Gas Tanker especially when the accident was caused on 15-12-2011 that too at about 10.30 p.m. which is generally time of pitch darkness. In this way, the driver of the car cannot be held in any way negligent in this accident. Moreover, as per Rule 15 of the Road Regulations, 1989 no vehicle is to be parked on busy road.
24. The arguments of the learned counsel for the respondent that PW 7 Sohan Lal has stated in his cross-examination that there was no fog at that time and there were lights on the Dhaba and the truck was visible to him due to light of Dhaba and he was standing at the distance of 70 ft from the truck being road between him and the truck and he noticed at the car when he heard voice/sound caused by the accident so Respondent 1 is not at all negligent in this accident but these submissions will not make the car driver to be in any way negligent and cannot give clean chit to the driver of the Gas Tanker because there is a difference between the visibility of a standing vehicle from a place where the person is standing and by a person who is coming driving the vehicle because due to flashlights of vehicles coming from front side the vehicle coming from opposite side cannot generally spot the standing vehicle in the road that too in night-time when there is neither any indicator or parking lights nor blinking lights nor any other indication given on the back of the stationed vehicle, therefore, the driver of the car cannot be held to be in any way negligent rather it is the sole negligence on the part of the driver of the offending Gas Tanker as held inGinni Devi case [Ginni Devi v. Union of India, 2007 SCC OnLine P&H 126 : 2008 ACJ 1572] , Mohan Lal case [New India Assurance Co. Ltd. v. Mohan Lal, 2006 SCC OnLine All 459 : (2007) 1 ACC 785 (All)] . It is not the case of the respondent that the parking lights of the standing truck were on or there were any other indication on the backside of the vehicle standing on the road to enable the coming vehicle to see the standing truck. The other arguments of the learned counsel for Respondent 3 that the road was sufficient wide road and that the car driver could have avoided the accident, so the driver of the car was himself negligent in causing the accident cannot be accepted when it has already been held that the accident has been caused due to sole negligence of the driver of the offending stationed truck in the busy road. The proposition of law laid down in Harbans Kaur case [New India Assurance Co. Ltd. v. Harbans Kaur, 2010 SCC OnLine P&H 7441 : (2010) 4 PLR 422 (P&H)] and T.M. Chayapathi case [New India Assurance Co. Ltd. v. T.M. Chayapathi, 2004 SCC OnLine AP 484 : (2005) 4 ACC 61] is not disputed at all but these authorities are not helpful to the respondents being not applicable on the facts and circumstances of the present case. Likewise, non-examination of minor children of the age of 14 and 9 years who lost their father and mother in the accident cannot be held to be in any way detrimental to the case of the claimants when eyewitness to the occurrence has proved the accident having been caused by the negligence of Respondent 1 driver of the offending vehicle.
25. Moreover, in Girdhari Lal v. Radhey Shyam [Girdhari Lal v. Radhey Shyam, 1993 SCC OnLine P&H 194 : PLR (1993) 104 P&H 109] , Sudama Devi v. Kewal Ram [Sudama Devi v.Kewal Ram, 2007 SCC OnLine P&H 1208 : PLR (2008) 149 P&H 444] andPazhaniammal case [New India Assurance Co. Ltd. v. Pazhaniammal, 2011 SCC OnLine Ker 1881 : 2012 ACJ 1370] our own Hon’ble High Court has held that ‘it is, prima facie safe to conclude in claim cases that the accident has occurred on account of rash or negligent driving of the driver, if the driver is facing the criminal trial on account of rash or negligent driving.’
26. Moreover, Respondent 1 driver of the offending vehicle has not appeared in the witness box to deny the accident having been caused by him, therefore, I am inclined to draw an adverse inference against Respondent 1. In this context, I draw support from a judgment of the Hon’ble Punjab & Haryana High Court reported asBhagwani Devi v. Krishan Kumar Saini[Bhagwani Devi v. Krishan Kumar Saini, 1986 SCC OnLine P&H 274 : 1986 ACJ 331] . Moreover, Respondent 1 has also not filed any complaint to higher authorities about his false implication in the criminal case so it cannot be accepted that Respondent 1 has been falsely implicated in this case.
27. In view of above discussion, it is held that the claimants have proved that the accident has been caused by Respondent 1 by parking the offending vehicle bearing No. HR 02 AF 8590 in the middle of the road in a negligent manner wherein Vinod Saini and Smt Mamta Saini have died and claimants Archit Saini and Gauri Saini have received injuries on their person. Shri Vinod Saini, deceased who was driving ill-fated car on that day cannot be held to be negligent in any way. Accordingly, this issue is decided in favour of claimants.”
(emphasis supplied)”
15. The Tribunal has not given any finding except that vehicles had head on collision. From the site plan, it is clear that the car came from the wrong side and dashed with the motor cycle. The decision of the Apex Court in Archit Saini (Supra) will apply in full force. We are unable to subscribe to learned Advocate Sri Farooque Ansari that we should maintain negligence as decided by the Tribunal. The finding of the tribunal holding deceased to be 50% negligent is bad and is without any finding as to why oral testimony of eye-witness is not believed. The driver of the car has not stepped into witness box. No rebuttal evidence is filed. Driver of motorcycle died on the spot. We hold deceased-Radhey Shyam Singh, who was driving the motorcycle to be negligent to the tune of 20%. However, deceased-Tarri Alias Aasir Ali, who was the pillion rider, for him it was a case of composite negligence, hence, deduction is bad.
16. This takes us to the issue of quantum of compensation which are as under :
(F.A.F.O. No. 2120 of 2018)
17. As far as income of deceased- Tarri alias Aasir Ali is concerned, the Tribunal has considered his income to be Rs.3000/- per month which we enhance to Rs.5,000/- in view of the latest decision of the Apex Court. Addition of 40% towards future loss of income is just and proper. The deduction of 1/4th is not disturbed. The multiplier of 15 granted by the Tribunal is not disturbed. As far as amount under the non-pecuniary heads is concerned, it should be Rs.70,000/- plus 10% rise in every three years in view of the decision of the Apex Court in Pranay Sethi (Supra), hence, we award Rs.30,000/- (rounded figure) under this head over and above Rs.70,000/- awarded by the Tribunal. We award Rs.50,000/- each to minor children of the deceased towards love and affection who have lost their father at a very tender age and looking to the recent trends.
i. Monthly Income Rs.5,000/-
ii. Percentage towards future prospects : 40% namely Rs.2,000/-
iii. Total income : Rs. 5,000 + 2,000 = Rs.7,000/-
iv. Income after deduction of 1/4th : Rs.5250/-
v. Annual Income : 5250 x 12 = 63,000/-
vi. Multiplier applicable : 15
vii. Loss of dependency: Rs.63,000 x 15 = Rs.9,45,000/-
viii. Amount under non-pecuniary head : 1,00,000/-
ix. Amount to children under love and affection : 50,000 x 6 = 3,00,000/-
ix. Total compensation : 14,80,000/-
18. No deduction be made from the above compensation towards negligence as for the legal heirs of the deceased- Tarri alias Asir Ali, it is a case of composite negligence.
19. As far as quantum of compensation for the death of Radhey Shyam Singh is concerned, the income of the deceased was considered to be Rs.38,249/- per month, to which the Tribunal has added 30% towards future loss, deducted 1/4th towards is just. Amount of Rs.70,000/-awarded under non-pecuniary heads is just and proper. However, 10% rise in every three years in view of the decision of the Apex Court in Pranay Sethi (Supra), hence, we award Rs.30,000/- (rounded figure) under this head over and above Rs.70,000/- awarded by the Tribunal. We award Rs.50,000/- each to minor children of the deceased who are three in number towards love and affection who have lost their father at a very tender age and looking to the recent trends.
20. The amount be recalculated with fresh liability namely negligence to the tune of 20% upon deceased-Radhey Shyam Singh as earlier deduction is upturned with additional amount of Rs.30,000/-under non-pecuniary heads plus Rs. 1,50,000/- to the minor children towards love and affection with interest.
21. 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 :
“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.”
19. No other grounds are urged orally when the matter was heard.
20. In view of the above, the both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the difference 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.
21. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon’ble Apex Court in the case of 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.
22. In view of the ratio laid down by Hon’ble Gujarat High Court, in the case of Hansagauri 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.
23. 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.
24. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 7 years have elapsed, the amount be deposited in the Saving Account of claimants in Nationalized Bank without F.D.R.
25. Record be sent back to the Tribunal forthwith.
26. We are thankful to the learned Advocates for ably assisting the Court.
