The Allahabad High Court set aside an order of the Motor Accident Claims Tribunal and directed the insurance company to pay Rs 46,02,120 to the petitioner.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Vivek Varma passed this order while hearing a petition filed by Minakshi Srivastava And 3 Others.
By way of the appeal, the appellants have felt aggrieved by the order passed by Claims Tribunal, whereby the Claims tribunal dismissed the claim petition being M.A.C.P No 21 of 2015.
The facts of the case are that, on 23.11.2014 at about 6.30 p.m when the deceased was plying his Hero Honda motorcycle and was going from Pathkhura to his house near Paramhans Ashram, respondent no 2 (driver) drove minibus rashly and negligently hit the motorcycle. The deceased came under the bus and his motorcycle was also damaged. People around him called the ambulance and he was sent to Rajgarh Community Centre but as he was serious he was sent to Sadar Hospital, Mirzapur, there also he was not treated but he was sent to Popular Hospital, Varanasi where he was admitted but as his health did not improve he was moved to BHU Hospital, where during treatment on 25th November 2014, he succumbed to his injuries. On his death, his family was under shock, they could not lodge the FIR in time.
The FIR was lodged by his brother on filing of the claim petition the respondent, Dheeraj Pandey and driver filed their reply, which was one of negation contending that the vehicle was not involved in the accident and that the vehicle was permitted to ply between Mirzapur to Ghazipur and his vehicle could not have been at the place where the accident took place. The police took the vehicle and filed the charge-sheet. Later on, the driver of the minibus was charge-sheeted and he was released on bail, an admitted position of fact which has been brushed aside by the Tribunal. The respondent no 3, (insurance company) on the contrary took a stand that it was the deceased who was negligent and he collided with the bus.
The appellants have challenged the decision on the grounds that the order passed by the Tribunal is illegal, arbitrary, without application of mind and cannot be sustained in the eyes of law.
It is submitted by counsel for the appellants that the court below has failed to consider, while passing the impugned order, that the insurance company of the vehicle/ respondent no 3 admitted that the accident took place by his vehicle but contended that accident occurred due to negligence of the deceased.
It is further submitted in reply that it was the driver of the motorcycle, who was driving the vehicle rashly and negligently. The facts prove that the vehicle minibus was involved in the accident.
The Court noted that,
The claimants examined the widow of the deceased, an eyewitness, Ikbal Ahmad, and Kamlesh Kumar Srivastava, who had lodged the FIR. As far as the respondents are concerned, the defence witness has been examined. The appellants filed Chick FIR, post-mortem report, report of the Panchnama, the release memo of the Mini Bus, death certificate of the deceased, medical certificate of Mirzapur doctor, Popular Hospital and death certificate by Tehsildar of Chunar.
The voter ID and all other documentary evidence to prove involvement of vehicle and the income of the deceased were also produced. The respondent filed the fitness certificate, permit, insurance and the driving licence of the driver.
The respondent no 3 did not examine any witness. The Tribunal has dismissed the claim petition despite the fact that the respondent insurance company had taken the plea that the accident occurred due to the negligence of the driver, who had lost his balance. The Tribunal did not believe the testimony of the wife as she did not disclose who gave her the number of minibus. It is held that Ikbal Ahmad cannot be accepted as an eye witness as he also did not give the number of the bus and that the first information report was against an unknown vehicle and therefore, the charge-sheet was not acceptable.
The evidence on record which has been brushed aside by the Tribunal is without any basis. The defence witness did not give the name, number of vehicles involved. The chick FIR did not give the number of minibus and that the Kamlesh Kumar Srivastava, who registered the FIR also did not give the number of minibus. The fact that the evidence of all these three witnesses have not been controverted even except the filing of a written statement by the owner. The driver of the vehicle never complained that he was falsely implicated.
The Court further noted that the FIR also states that a minibus was involved in the accident. The charge-sheet is a prima facie proof of involvement of the vehicle, the owner nowhere contends that his bus was not on the road.
The Court held that,
On the contrary, while going through the record, it is very clear that the vehicle had permission to ply at the place where the accident occurred and therefore, the statement of the owner could not have been believed.
The route permit discussed by the Tribunal also goes to show that the vehicle was having a permit to ply on the road which is in the accident. The fitness certificate and permit is there from Mirzapur to Ghazipur via Chunar Varanasi Saidpur and therefore, they contend that the vehicle did not have permit to ply on the said road is also a wrong statement on the record made by the owner against whose driver charge-sheet is led, thus on preponderance of probability the finding of the Tribunal cannot be accepted. We quantified our view by the judgment of Apex Court in the case of Sunita (Supra).
In view of the above, we cannot concur with the Judge that it was not proved that the driver of the mini bus had not driven the bus rashly and negligently. The injuries suggest that the driver of Minibus was driving the vehicle rashly and negligently. Hence, the said issue is answered in the positive and in favour of the appellants.
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.
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.
The Court observed that,
Hence, as far as quantum is concerned, this Court after hearing the counsels for the parties and perusing the judgment and order impugned, finds that the deceased was even hospitalised for quite some time and he was earning Rs 33,523 per month by way salary as he was Lekhpal, namely Rs 4,02,276 per year. To which, as the deceased was 47 years of age, 30% of the income is required to be added in view of the decision in National Insurance Company Limited Vs Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Further, one third requires it to be deducted as his personal expenses as he was survived by his wife and three minor daughters aged about 19, 16 and 13 years. As the deceased was in the age bracket of 47 years, the applicable multiplier would be 13 in view of the decision in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to that, Rs 75,000 is granted towards conventional heads. Hence, the total compensation payable to the appellants is computed herein below:
(i) Income : Rs.33,523/- (Rs.4,02,276/- per year)
(ii) Percentage towards future prospects : 30% namely Rs.10,057/- (rounded up)
(iii) Total income : Rs.33,523 + 10,057 = Rs.43,530/-
(iv) Income after deduction of 1/3rd towards personal expenses of the deceased : Rs.29,020/-
(v) Annual income : Rs.29,020 x 12 = Rs.3,48,240/-
(vi) Multiplier applicable : 13
(vii) Loss of dependency: Rs.3,48,240 x 13 = Rs.45,27,120/-
(vii) Amount under non pecuniary damages : Rs.75,000/-
(viii) Total compensation : Rs.46,02,120/-
The court ordered that,
In view of the above, the appeal is allowed. Judgment and order passed by the Tribunal is set aside. The respondent-Insurance Company shall deposit the 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. The amount already deposited will be deducted from the amount to be deposited.
On depositing the amount in the Registry of Tribunal, the Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Apex Court in the case of A.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.