High Court
Case Details
[1] Neutral Citation No. - 2023:AHC:131806 Court No. - 44 Case :- FIRST APPEAL FROM ORDER No. - 616 of 1994 Appellant :- Divisional Manager Uia Respondent :- Smt. Sunita Gupta Counsel for Appellant :- Ashok Kumar Srivastava, S.K.Yogeshwar Hon'ble Dr. Kaushal Jayendra Thaker,J. Order on Civil Misc. Delay Condonation Application This is an application seeking condonation of delay in filing the restoration application. Cause shown for the delay is sufficient. Delay is condoned. This application is allowed. Order on Civil Misc. Restoration Application Heard. This is an application seeking recall of order dated 22.3.2023 dismissing the appeal for default. Cause shown for the absence is sufficient. The order dated 22.3.2023 is recalled. Let the appeal be restored to its original Order on Appeal 1.
Legal Reasoning
Heard Sri Vibhuti Narain, learned counsel for the appellant and perused the judgment and order impugned. None has appeared for the respondent. 2. This appeal which is of the year 1994 is taken up for final
Decision
disposal as it can be disposed of under Order 41 Rule 11 C.P.C. 3. By way of this appeal, the United India Insurance Co. Ltd. has challenged the judgment and award dated 15.3.1994 passed by Motor Accident Claims Tribunal/II Additional District Judge, Etawah in [2] Claim Petition No. 86 of 1991 whereby the Tribunal has awarded sum of Rs. 5,76,000/- with interest at the rate of 12%. 4. The award of the Tribunal has been challenged on the ground that the incident took place on the negligent driving of the driver of the Maruti Car and not of the negligent driving of the driver of the bus; the driver of the vehicle did not have proper driving license; the multiplier granted by the Tribunal is on the higher side namely of 24 for the death of a person who was 25 years of age and that the interest at the rate of 12% should not have been granted. 5. It is submitted that the claim petition was not maintainable as the Insurance Company was not arrayed as party and it is the officer of Insurance Company who was made party. This hyper technical ground was never raised before the Tribunal and, therefore, the said ground is not available to the appellant before this Court which is dealing with a beneficial piece of legislation. 6. To appreciate the contention of the counsel for the appellant about the contributory negligence, principle of negligence and the judgment of the Apex Court will have to be appreciated. 7. 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. [3] 8. The issue 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. 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, [4] 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 9. Looking to the factual averments, the principle for deciding negligence has been properly evaluated. The evidence adduced by the appellant did not show that the driver of the bus was driving the vehicle cautiously. The Tribunal while deciding the issue of negligence has held that the incident took place because of the negligent driving of the driver of the bus and the bus driver was [5] driving the bigger vehicle should have been more vigilant. The evidence of witnesses have also supported the case of claimants. While going through the judgment impugned, it is clear that the driver of the Maruti Car was driving the car on its correct side and the driver of the bus being the driver of bigger vehicle should have taken proper care which he had not done. Hence, the finding of the Tribunal as far as negligence is concerned, cannot be interfered with. 10. The Insurance Company seeks to avoid its liability on the ground that the driving license of the driver of bus was not a valid driving license and has relied on the decision in Kashi Ram Yadav vs. Oriental Fire and General Insurance Co., AIR 1989 SC 2002. However, the said judgment has been distinguished by the later decision of the Apex Court the decision of this Court in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557, and it is for the Insurance Company to prove that it was not a valid driving license. The license have not been verified by the Insurance Company. The finding of facts by the Tribunal is very clear, hence, this ground cannot sustained. 11. This takes this Court to the aspect of compensation. This Court is in agreement with learned counsel for the appellant that multiplier of 24 & interest at the rate of 12% could not have been granted but it is also evident that the Tribunal has not granted any amount towards future loss of income of the deceased and the amount awarded under non-pecuniary heads is also on the lower side. 12. Even if this Court recalculate the compensation the new figure come would be equal or more than the amount awarded by the Tribunal. Hence, the finding of the Tribunal as far as compensation is concerned is not disturbed. 13. In view of the above, this appeal is dismissed. [6] 14. A copy of this order be sent to the Tribunal who shall disburse the amount to the claimants forthwith, if the same has not yet been disbursed. 15. This Court is thankful to Sri Vibhuti Narain, learned counsel for the appellant who has ably assisted this Court for getting this old matter disposed of. Order Date :- 4.7.2023 DKS Digitally signed by :- DEEPAK KUMAR SRIVASTWA High Court of Judicature at Allahabad