SMT. MAYA DEVI and OTHERS V. UNION OF INDIA

FAFO/1043/1992

AI Insights

This case involves an appeal by Smt. Maya Devi and others against the Union of India, challenging the Motor Accident Claims Tribunal's decision which denied compensation for the death of Thakur Das in a vehicular accident. The accident occurred on 12.03.1987, and the Tribunal had dismissed the claim on grounds that the accident did not involve the military jeep in question and that the evidence was not credible. The High Court found that the Tribunal had erred in its assessment of the evidence and in its interpretation of the First Information Report (FIR), leading to a decision that was not supported by the facts or the law. The court referenced several precedents to emphasize that the burden of proof regarding the involvement of the vehicle and the negligence of the driver was not adequately met by the Tribunal's findings.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 724716 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 28-03-2022
• Assessment Year: misc
• Other Referred Cases: Varinderjit Singh Vs. Tajinder Singh & others, Devi Prasad Vs. Zahur Khan, Bhanwar Lal Verma Vs. Sharad Dholiya, Vimla Devi and others Vs. National Insurance Company Limited and another, Anita Sharma v. New India Assurance Co. Ltd., Jacob Mathew V/s. State of Punjab, Kusum Lata, Saroj and Vimla Devi, National Insurance Company Limited Vs. Pranay Sethi and Others, Sarla Verma Vs. Delhi Transport Corporation, A.V. Padma V/s. Venugopal, Smt. Hansagauri P. Ladhani v/s The Oriental Insurance Company Ltd., Smt. Sudesna and others Vs. Hari Singh and another, National Insurance Co. Ltd. Vs. Mannat Johal and Others
• Laws Referred To: Motor Vehicle Act, 1988, Fatal Accidents Act, 1855
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C S CHATURVEDI
• Assessee Lawyers: RAMESH SINGH
• Keywords: Compensation; Motor Accident; Negligence; Military Jeep; Accidental Injuries
• Section: 110A; 110B

Judgement Text

"A.F.R. Court No. - 2 Case :- FIRST APPEAL FROM ORDER No. - 1043 of 1992 Appellant :- Smt. Maya Devi And Others Respondent :- Union of India Counsel for Appellant :- Ramesh Singh Counsel for Respondent :- C.S. Chaturvedi Hon'ble Dr. Kaushal Jayendra Thaker,J. 1. Heard Shri Ramesh Singh, learned counsel for the appellants; Shri C.S. Chaturvedi, learned counsel for the respondents; and perused the record. 2. This appeal, at the behest of the claimants, challenges the judgment dated 18.3.1992 passed by Motor Accident Claims Tribunal/XIth Additional District Judge, Agra (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No.150 of 1987 rejecting the same and not awarding any compensation. 3. The brief facts as culled out from the record are that the deceased met with an accident on 12.3.1987 at about 09.40 hrs. The informant alongwith the deceased was going towards the Agra City, i.e., Agra Fort and the alleged Jeep and the Scooter were coming fro m the Agra City, i.e., Agra Fort. On notice being issued, the Insurance company appeared and filed their reply. The driver and owner accepted the accident having taken place but contended that the accident occurred due to negligence of the deceased herein. 4. Learned Counsel Sri Ramesh Singh has contended that the petition has been dismissed by assigning reasons which are not germane for the facts. 5. The Tribunal framed 3 issues and rejected the claim petition holding that it was not proved that the accident occurred with the military jeep in question. The Tribunal disbelieved PW-1, who is claimant and eye witness. 1 of 10 The F.I.R. categorically mentions about the truck. Just because the final report was filed will not conclusively prove that the vehicle was not involved. The Tribunal on surmises and conjectures disbelieved PW1 and PW2 only on the ground that there was a delay in filing the F.I.R. The written statement of the owner ought to have been looked into by the Tribunal before brushing aside the judgment and not relying on the authoritative pronouncements in Varinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana, Devi Prasad Vs. Zahur Khan, 2001 (2) TAC 419 Madhya Pradesh, and Bhanwar Lal Verma Vs. Sharad Dholiya, 2007 ACJ 52. 6. It is further submitted that the appellant has challenged impugned award and decision dated 18.3.1992 on the following amongst grounds: (i) The order passed by the Tribunal is illegal, perverse and against the evidence on record and based on conjectures and surmises and, as such, the same is liable to be quashed. (ii) It is fully proved by the evidence on record that the accident occurred due to rash and negligent driving of the vehicle No.25879-B, 17947 PCL (Military Jeep), the learned tribunal erred in holding otherwise. (iii) It is apparent fro the First Information Report and the evidence of PW-1 that the informant alongwith the deceased was going towards the Agra City i.e. Agra Fort and the alleged Jeep and the Scooter were coming from the Agra City i.e. Agra Fort, the tribunal erred in interpreting the words used in First Information Report. (iv) The Learned Tribunal has suo moto added the word \"se\" in a sentence written in First Information Report i.e. \"jaise hi hum log Agra Fort ki taraf se chalte huye satsang Ashram...............\" while the word \"se\" is not used in the said sentence in the manner interpreted by the tribunal written in the First Information Report and, as such, the learned Tribunal erred by misreading the First Information Report by adding himself the word \"se\" and by returning adverse finding as far as negligence and involvement is concerned. 2 of 10 (v) The Tribunal erred by misreading the testimony of scooter driver Akhlak Hussain i.e. \"wah scooter se kile ke taraf purani mandi taj ganj ja raha tha\", while the Akhlak Hussaini Scooter Driver has said in his evidence that \"main apne scooter se Agra kila se purani mandi Tajganj ja raha tha\". (vi) The photographs-Exhibits No.3 to 6, fully prove that the Military Jeep (No.25879-B-1794 PCL) was involved in the accident, the learned Tribunal erred in holding otherwise and wrongly rejected the claimants claim petition. (vii) The learned Tribunal erred in returning the finding about non involvement of vehicle which is not supported by the evidence on record. 7. The evidence of the witnesses has not been accepted which is also against the judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186 and therefore this court are obliged to hold that the deceased died due to the accidental injuries. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the fact of this case. 8. Once the owner admits before the tribunal that the vehicle was involved (2) the final report was filed would not conclusively prove that the vehicle is not involved (3) insurance company has not proved that the vehicle was not involved and it is a fake claim the tribunal could not dispose of the claim when it was not proved by the insurance company that the claimants and owner and driver were in collusion, this is the main issue involved in this appeal. 9. It is submitted by Sri C.S. Chaturvedi for insurance company that the petition was rightly dismissed as the F.I.R. culminated into a report and there was no objection raised to that. The owner has colluded with the petitioners and, therefore, also there is no reason to not concur with the Tribunal. 10. The Insurance company did not examine in person nor was the owner of the vehicle, which is alleged to be involved in the accident, put to any cross-examination as he did not appear before the Tribunal nor did the 3 of 10 Insurance company examine him as its witness after the filed written statement. The Tribunal dismissed the claim petition holding that it was not proved by cogent evidence that the accident occurred with the vehicle in question and that the evidence on record conclusively proves that the vehicle was involved in the accident. 11. The findings of the Tribunal that the vehicle was not involved in the accident is perverse on record and against the tenet of evidence and deserves to be reversed. The finding of fact that the truck was not involved in the accident is absurd. The driver of the truck has nowhere stated that the vehicle was not involved in the accident. Filing of final report is not a conclusive proof in view of the judgment of Varinderjit Singh Vs. Tajinder Singh & others, 2008 (4) TAC 250 Punjab and Haryana. The involvement is proved by cogent evidence nor these facts are brought on record. Just because protest petition was not filed, it does not mean that the vehicle was not involved in the accident. It cannot be said that the vehicle was not involved. The Tribunal believes that the death of the deceased was due to accidental injuries and, therefore, dismissing the claim petition is bad in the eye of law. Therefore, it cannot be said that it was a planted vehicle. 12. As far as issue of contributory negligence is concerned as alleged by the appellant, this Court will have to consider the principles for deciding the negligence. 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 4 of 10 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. 13. 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. 14. 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. 15. 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 5 of 10 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. 16. 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. 17. In Jacob Mathew V/s. State of Punjab, 2005 ACJ (SC) 1840), 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 of driver of another vehicle. 18. This Court cannot concur with the learned Tribunal that it was not proved that the truck driver had not driven the truck rashly and negligently. The injuries on deceased suggests that the truck driver on the bridge was driving the vehicle rashly and negligently. Hence, the said issue is answered in the positive and in favour of the appellant. The appreciation of evidence as held by the Apex Court in the case of Kusum Lata, Saroj and Vimla Devi (supra) will not permit this court to concur with the learned Tribunal. 19. The next issue which arises is that the matter has remained pending for long decade, the record and proceedings are before this Court and the matter whether be remanded to the Tribunal or decided here? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others, (2017) 2 SCC 748 and of this Court in F.A.F.O. No. 1999 of 2007 (Oriental Insurance Company 6 of 10 Limited vs. Smt. Ummida Begum and others) and in F.A.F.O. No. 1404 of 1999 (Smt. Ragini Devi and others Vs. United India Insurance Company Limited and another) decided on 17.4.2019 where in it has been held that if the record is with the appellate Court, it can decide compensation instead of relegating the parties to the Tribunal. Compensation 20. Having heard learned counsels for the parties and considered the factual data, this Court finds that the accident occurred on 12.03.1987 causing death of Thakur Das who was 28 years of age and left behind him, widow and four minor children. The deceased was milk vendor. The Tribunal has not granted any amount. The evidence of the witnesses has not been accepted which is also against the Judgment in the case of the Apex Court in Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186, and, therefore, we are obliged to hold that the deceased died due to the accidental injuries. The judgment of the Apex Court in Anita Sharma v. New India Assurance Co. Ltd. (2021), 1 SCC 171 would also apply to the facts of this case. 21. As far as beneficial piece of legislation is concerned, the strict rules of Civil Procedure Code and Evidence Act are no required to adhered to. 22. In view of the judgment of Vimal Kanwar and others v. Kishore Dan and others, AIR 2013 SC 3830 except income Tax no amount could have been deducted by the tribunal in the year of question, i.e., 1987, his income was below taxable income and hence we will have to consider the income at Rs.900/- per month of the deceased. The deceased was in age bracket of 26-30 years as Milk worker, 40% of the income will have to be added as future prospects in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. 18. In this backdrop this Court evaluates the compensation in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and 7 of 10 Others, 2017 0 Supreme (SC) 1050 and Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and, the recalculation of compensation would be as follows: i. Income Rs.900/- p.m. ii. Percentage towards future prospects : 40% namely Rs.360/- iii. Total income : Rs.900 + Rs.360= Rs.1260/- iv. Income after deduction of 1/4 : Rs.945/- v. Annual income : Rs.945 x 12 = Rs.11,340/- vi. Multiplier applicable : 17 (as the deceased was in the age bracket of 26- 30 years) vii. Loss of dependency: Rs.11,340 x 17 = Rs.1,92,780/- viii. Amount under non pecuniary heads = 50,000/- ix. Total compensation : Rs.2,42,780/- 23. 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 A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH 6 (SC), 442, the order of investment is not passed because applicants /claimants are neither illiterate or rustic villagers. 24. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. 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, 8 of 10 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. 25. 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 not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case. 26. 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 7 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.\" 27. In view of the above, the appeal is allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount along with additional 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 9 of 10 deposited. The amount already deposited be deducted from the amount to be deposited. 28. We are thankful to learned counsels for the parties for ably assisted the Court. 29. Record be sent back to court below forthwith, if any. 30. We are thankful to learned counsels for parties for ably assisting the Court. Order Date :- 2.3.2022 / A.N. Mishra 10 of 10 Digitally signed by AMARNATH MISHRA Date: 2022.03.28 16:35:09 IST Reason: Location: High Court of Judicature at Allahabad "