Piyush minor and Nirmal Yadav V. The New India Assurance Co. Ltd.

FAO/1837/2010

AI Insights

The appeals arose from a tragic accident on December 24, 2006, involving a family traveling in a Wagon-R car, which collided with a tree after the driver swerved to avoid stray cattle. The accident resulted in multiple fatalities and injuries. The Motor Accident Claims Tribunal, Hisar, had dismissed the claim petitions filed by the victims' families, leading to these appeals. The High Court examined the circumstances of the accident, including the sudden appearance of stray cattle and the subsequent actions of the driver. The court reversed the Tribunal's decision, attributing negligence to the driver for not maintaining control of the vehicle under sudden circumstances and awarded compensation to the appellants in varying amounts based on the individual circumstances of each victim.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 692493 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 03-04-2012
• Assessment Year: misc
• Other Referred Cases: Yadwinder Sharma vs. Pepsu Road Transport Corporation and others, Krishna Bus Service Ltd. vs. Smt. Mangli and others, R.K.Malik and another vs. Kiran Pal and others, Oriental Insurance Co. Ltd. vs. Saroj Devi and others, Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another
• Laws Referred To: Motor Vehicles Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: VINOD MEHANDROO
• Assessee Lawyers: VIVEK KHATRI
• Keywords: Compensation; Motor Accident Claims Tribunal; Negligent driving; Rash Driving; Sudden appearance of stray cattle
• Section: 166; 163-A

Judgement Text

"FAO Nos.1837 to 1841 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.1837 of 2010 (in case No.67 MACT) Date of decision: 3.4.2012 Piyush minor ...Appellant Versus The New India Assurance Co. Ltd. ...Respondent 2. FAO No.1838 of 2010 (in case No.66 MACT) Date of decision: 3.4.2012 Nirmal Yadav ...Appellant Versus The New India Assurance Co. Ltd. ...Respondent 3. FAO No.1839 of 2010 (in case No.65 MACT) Date of decision: 3.4.2012 Piyush minor ...Appellant Versus The New India Assurance Co. Ltd. ...Respondent 4. FAO No.1840 of 2010 (in case No.68 MACT) Date of decision: 3.4.2012 Piyush minor ...Appellant Versus The New India Assurance Co. Ltd. FAO Nos.1837 to 1841 of 2010 2 ...Respondent 5. FAO No.1841 of 2010 (in case No.69 MACT) Date of decision: 3.4.2012 Piyush minor ...Appellant Versus The New India Assurance Co. Ltd. ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Vivek Khatri, Advocate for the appellant (in all the appeals) Mr.Vinod Mehandroo, Advocate for the respondent **** Jitendra Chauhan, J. (Oral) This judgment shall dispose of all the aforementioned appeals, having arisen out of the same accident, challenging the common award dated 17.11.2009, passed by the learned Motor Accident Claims Tribunal, Hisar (for short 'the Tribunal'), whereby the claim petitions filed by the appellants were dismissed. The brief facts of the case are that on 24.12.2006, Piyush ( appellant) alongwith his parents Dr. Krishan Kumar, Sudesh Yadav, brother Mayank and cousin Arun was going in a Wagon-R bearing registration No. HR 20J-1563 from Hiar to village Rajpura, District Mahendergarh. When they reached near village Biran, Tehsil Tosham, FAO Nos.1837 to 1841 of 2010 3 Krishan Kumar, who was driving the car, in order to save some cattle, standing on the road, suddenly took a right turn, due to which, the car lost its balance and struck against a Kiker tree. As a result thereof, all the occupants suffered multiple grievous injuries. Krishan Kumar and Sudesh Yadav succumbed to their injuries on the spot, whereas Mayank and Arun died in the hospitals. The appellant also suffered multiple injuries and he was rushed to Government Hospital at Bhiwani. The separate claim petitions were filed, which were consolidated vide order dated 2.4.2009. Upon notice, the respondent filed written statement denying the accident. From the pleadings of the parties, the following issues were framed:- “1. Whether Arun Yadav, Sudesh Yadav, Mayank, Dr.Krishan Kumar Yadav, died in the accident occurred on 24.12.2006 due to rash and negligent driving of driver of offending vehicle bearing registration No.HR 20J-1563, if so to what amount of compensation and from whom the petitioners are entitled to recover?OPP 2. Whether petition is not maintainable?OPR 3. Whether there was willful violation of terms and conditions of Insurance policy, if so to that effect?OPR 4. Relief. After analysing the evidence and hearing the learned counsel for the parties, the learned Tribunal decided issue No.1 in favour of the respondents by observing that the accident was not caused due to rash and negligent driving of the driver. The remaining issues were not pressed by FAO Nos.1837 to 1841 of 2010 4 the parties. Aggrieved against the said award, the appellant-claimants filed the present appeals. Learned counsel for the appellants contends that the accident occurred on account of sudden appearance of the stray cattle on the road. The driver of the vehicle suddenly applied strong brakes as a result thereof, the car struck against a kikker tree. Except the factum of sudden appearance of stray cattle, there is nothing on the record that any other act of the driver could have contributed in the occurrence of the accident or pvoed that the driver was negligent. Learned counsel for the respondent submits that in the absence of allegations of negligence on the part of the driver, the present claim petitions are not maintainable. He refers to Section 166 and Section 163-A of the Motor Vehicles Act to buttress his arguments. He further states that the FIR was lodged by the brother of the the deceased-driver, who also in his statement deposed that the accident occurred due to sudden appearance of the stray cattle and not due to rash and negligent driving. I have heard the learned counsel for the parties and perused the record carefully. From the perusal of the record, this Court feels that as the accident has not occurred due to any mechanical failure but sudden appearance of stray cattle on road before the vehicle, as per the FIR. The same stands corroborated by the version given by Piyush, the appellant, who was one of the victims of the accident. In the present case, the FIR was FAO Nos.1837 to 1841 of 2010 5 lodged by the brother of the deceased-driver. In Yadwinder Sharma vs. Pepsu Road Transport Corporation and others 2007(1) RCR (civil), 610, this Court in similar circumstances has observed as under:- “9. After hearing learned counsel for the parties, I am of the view that the crucial question which requires determination is as to whether in the ordinary course of things, such an accident could take place or not. From the pleadings and evidence on record led by both the parties, it can be safely inferred that when the car was approaching Ghanda Kheri bridge of Bhakra canal on the Rajpura -Patiala road, no unusual event of sudden impact took place which could result in loss of control by the driver over the vehicle. Sudden crossing of the road by a human being or a child; sudden presence of a stray animal on the road; bursting of tyre due to some alien sharp edge article lying on the road; sudden collapse of the bridge; fall of electric wires; tornado; storm; flush of rain water from cloud burst, etc. are a few illustrative circumstances in which driver of a vehicle can possibly lose control. In any such like sudden events, the drive would try to control the vehicle and may apply sudden brakes, which, instead of stopping the vehicle, may over turn it or cause slip thereby the vehicle might go out of the driver's control. Such kind of accident, happening of FAO Nos.1837 to 1841 of 2010 6 which is beyond the control of a driver, may be termed as an “act of God”. 10. However, where the vehicle was in sound roadworthy condition and was driven with an ordinary care, it shall always be expected that it will not go out of control of the driver, yet if any such thing happens, heavy onus shall lie upon either the driver or the owner of the vehicle to divulge that special knowledge of the relevant facts to explain as to why and how the vehicle went out of control of the driver. In the absence of any such explanation, the maxim res ipsa loquitur would undoubtedly be attracted, as held by their Lordships of the Supreme Court in Krishna Bus Service Ltd. vs. Smt. Mangli and others AIR 1976 SC 700. 11. In the present case, the driver of the vehicle also unfortunately died in the same accident. The only survivor, namely Iqbal Singh was an Officer of the PRTC. He was the best person to come and depose if at all he had some knowledge as to how the driver of the car lost control over it. The appellants, who were minors at the time when their father died in the accident, might not have been able to trace out Iqbal Singh or persuade him to inter the witness box, but he being an Officer of PRTC, could certainly be produced by the respondents to FAO Nos.1837 to 1841 of 2010 7 divulge the special knowledge, if any, pertaining to the cause of the accident. As the manner in which the accident took place, gives rise to a presumption that it must have taken place due to careless or negligence of the car driver, the onus stood shifted upon the PRTC to prove otherwise. It, however, failed to lead any evidence to discharge the said onus. 12. The Tribunal unfortunately misdirected itself in relying upon the alleged statement of the brother of the deceased which is incorporated in the police report Ex.A4. The brother of the deceased neither witnessed the accident nor was he travelling in the same car. In the said report, he has mentioned what he must have heard from others. Even in that report also, except the fact regarding occurrence of the accident, no other unforeseen circumstance which might have caused the accident, has been explained. Consequently, I hold that the manner in which the accident took place, the same must have occurred only due to carelessness or negligent driving of the car driver.” In the case in hand,, the accident occurred due to sudden appearance of stray cattle. The FIR was lodged by the brother of the deceased, who was not a witness to the accident. The accident occurred due to applying sudden brakes on appearance of stray cattle. Relying upon FAO Nos.1837 to 1841 of 2010 8 the ratio of case referred to above, negligence of driver stands proved in as much as he was not driving the vehicle in a manner in which, he could control the same effectively. In these circumstances, the onus shifts upon the respondents to prove it otherwise. In view of the above, the findings regarding the negligence on the part of the driver is reversed and the impugned award is set aside. The driver (since deceased), of the offending car is held liable for causing the accident. Now let us come to the issue of compensation. In FAO No. 1837 In this case, the injured was a student of 7th Class. He suffered multiple injuries and remained hospitalised from 24.12.2006 to 28.12.2006. As per Ex.P6, the details of the expenditure incurred on treatment, a sum of Rs. 17,013/- has been incurred on treatment. He must have undergone a lot of pain and mental agony during hospitalisation. There is no proof of disability. Therefore, keeping in view this fact, this Court grants a sum of Rs.20,000/- towards pain and suffering, special diet, attendant charges and transportation charges. The appellant is further granted a sum of Rs.18,000/- towards medical expenses incurred by him. Accordingly, the total compensation amount i.e. Rs.38,000/- shall be paid to the appellant, in the manner indicated in the impugned Award, within 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellant shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation. FAO Nos.1837 to 1841 of 2010 9 In view of the above, the present appeal is partly allowed and the impugned Award is modified to the above extent. In FAO No. 1838 of 2010 In this case, the deceased was a student of 11th standard. He was 16 years of age at the time of death. In view of R.K.Malik and another vs. Kiran Pal and others 2009(3) RCR (Civil), 403, this Court feels that the ends of justice would be met, if a sum of Rs.2,75,000/- is granted to the appellant. Ordered accordingly. Accordingly, the total compensation amount i.e. Rs.2,75,000/- shall be paid to the claimant-appellant, in the manner indicated in the impugned Award, within 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellant shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation. In view of the above, the present appeal is partly allowed and the impugned Award is modified to the above extent. In FAO No. 1839 of 2010 In this case, the deceased, who was the father of the claimant- appellant, was the driver as well as the owner of the offending car. In view of the fact that he has been held liable for causing the accident due to rash and negligent driving, the present appeal is dismissed. In FAO No. 1840 of 2010 In this case, the deceased was the brother of the claimant- appellant. He was a student of 10th Class. He was 15 years of age at the time FAO Nos.1837 to 1841 of 2010 10 of accident. In view of R.K.Malik and another vs. Kiran Pal and others 2009(3) RCR (Civil), 403, this Court feels that the ends of justice would be met, if a sum of Rs.2,75,000/- is granted to the appellant. Ordered accordingly. Accordingly, the total compensation amount i.e. Rs.2,75,000/- shall be paid to the claimant-appellant, in the manner indicated in the impugned Award, within 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellant shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation. In view of the above, the present appeal is partly allowed and the impugned Award is modified to the above extent. in FAO No. 1841 of 2010 In this case, the deceased was the mother of the claimant- appellant. She was Science Mistress in Govt. Girls Sr. Sec.School, Aryanagar (Hisar). As per Ex.P3, her salary was Rs.21377/- per month without deducting income tax. However, this Court feels that his income after deducting the income tax, would have been Rs.20,500/-. As per her date of birth i.e. 20.5.1968, her age was about 39 years at the time of accident. She left behind her only son. Therefore, the in view of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 (3) RCR (Civil) 77, the dependency of 1/2 ought to have been taken. In view of the parameters laid down in FAO No.589 of 2010 titled as “Oriental Insurance Co. Ltd. vs. Saroj Devi and others” decided on 21.12.2011 by this FAO Nos.1837 to 1841 of 2010 11 Court, this Court grants the compensation as under:- 1 2 3 4 6 7 8 9 10 Monthly income in Rupees). Actual age of the deceased Notional age (Actual age of the deceased+ the number of years of full last drawn salary as per Compassionate Rules) Increase in future Income as per Sarla Verma Annual dependency Multiplier as per Sarla Verma (to be broken into 2 parts if multiplier spills over the age of 58 yrs. Before + after superannuation) Compensa tion for full Salary period i.e. upto 58 yrs. (rounded off) Compensa tion for Pension Period i.e. after 58 years (rounded off) Total compensati on : (column 8+ column 9 + convention al heads i.e. Rs.20,000) 20500 39 39+12 = 51 Nil 1/2 x 12 11 (7+4) 8,61,000 2,46,000 11,27,000 The compensation amount of Rs. 11,27,000/- shall be paid to the claimant-appellant, in the manner indicated in the impugned Award, within 45 days from the date of the receipt of the certified copy of the judgment, failing which, the appellant shall be entitled to get interest @ 7.5% per annum from the date of the filing of the appeal till its realisation. In view of the above, the present appeal is partly allowed and the impugned Award is modified to the above extent. In view of the above, the FAO No. 1837, 1838, 1940, 1841 of 2010 are allowed and FAO No. 1839 of 2010 is dismissed. The Award passed by the learned Tribunal is set aside. The offending vehicle was insured with the respondent -Insurance Company. The application filed for dismissal of the claim petitions, as the insured has not been impleaded as a party, has already been dismissed by the learned Tribunal vide order dated 23.3.2009 by observing as under:- “... On account of death of Insured the Insurance Company cannot absolve their liability to pay the compensation to the claimant. The owner driver of offending vehicle himself died in the accident and deceased Smt.Sudesh Yadav mother of Piyush petitioner FAO Nos.1837 to 1841 of 2010 12 died in the accident. The offending vehicle was insured with the insurance company at the time of accident. Therefore, the rights of insurance company do not come to an end by the death of owner/ driver in this case. Both the parties are bound by the terms and conditions of the policy. Deceased Krishan Yadav was in his own car being driven by him. As per the pleadings his act of negligence resulted into accident and it would invite the liability of insurance company. The owner of the vehicle happens to be at the wheel of vehicle at the time of accident and the necessary implication is that the person to whom the vehicle belongs is also intended driver for the same and would be covered under the risk clause of the policy. The terms of the policy, therefore, are of extreme importance for ascertaining the liability of insurance policy. According to the policy compulsory PA cover premium and legal liability (WC) to driver has been proved. The petitioner Piyush son of Krishan Yadav is the sole survivor of the accident and filed the four claim petitions on account of death of his father Krishan Yadav, mother Smt.Sudesh Yadav, brother Mayank and the fourth for injuries sustained by him the accident. 15. Thus considering the totality of the facts, the application is bereft of merit and the same is hereby FAO Nos.1837 to 1841 of 2010 13 dismissed with no order as to cost.” Therefore, the Insurance Company being the Insurer of the offending vehicle is held liable to pay the compensation to the claimants as stated above. 3.4.2012 (JITENDRA CHAUHAN) gsv JUDGE "