Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 679

IN THE HIGH COURT OF ALLAHABAD
Dr. Kaushal Jayendra Thaker, Subhash Chand, JJ.
Smt. Chandrakala And 7 Others – Appellant
Versus
Imtiyaz And 2 Others – Respondent
FIRST APPEAL FROM ORDER DEFECTIVE No. 355 of 2018
Decided On : 29-07-2021

Advocates Appeared:
For the Appellant : Anubhav Sinha
For the Respondent: Pradeep Kumar Rai, Brijesh Chandra Naik

Point of law: 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.

Headnote:
Motor Act, 1988 – Section 110A , 110B - Fatal Accidents Act, 1855 – Negligence - Res ipsa loquitur - Appellants submit deceased was 26 years of age at the time of accident. He was in job, but he was not a permanent employee, therefore, the Tribunal did not grant any amount under the head of future loss of income, as the job was only for seven months - Respondents submit in view of the fact that an appeal is continuation of proceedings though the Insurance Company has not challenged the findings, as far as negligence of the driver is concerned, he can raise the same as held by this High Court - As far as issue of negligence is concerned, it is submitted by appellants, that the deceased was held not at all negligent - According to him, the accident was between two vehicles of unequal magnitude and the deceased cannot be said to have contributed to the accident having taken place.
Finding of the court: 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 - The factual scenario will also not permit us to up turn the finding of the Tribunal as far the issue of negligence is concerned, therefore, no negligence can be attributed to the deceased - It cannot be said that the deceased was in any way negligent. The site plan as discussed by the Tribunal will also not permit us to take a different view - Further aspect that requires to be appreciated is that the charge-sheet was laid against the driver of the Dumpher - The other oral submission that the driver and owner of the other vehicle has not been joined as party is not required to be decided as the driver of the other vehicle has died and his heirs have claimed the compensation hence this submission is also rejected.
Result: Appeal partly allowed.

JUDGMENT :

Subhash Chand, J.

1. We are taking up this defective appeal for final disposal and directing the office to give regular number, as we have condoned the delay today.

2. Heard Sri Anubhav Sinha, learned counsel for the appellants and Sri Brijesh Chandra Naik, learned counsel for the respondent no.3 (Insurance Company). None appears for owner and driver.

3. This appeal, at the behest of the claimants, challenges the judgment and award dated 30.03.2017 passed by Motor Accident Claims Tribunal/Additional District Judge II, Gautam Budh Nagar (hereinafter referred to as 'Tribunal') in M.A.C.P. Case No.24 of 2014 awarding a sum of Rs.9,31,625/- as compensation.

4. This appeal is of the year 2018 and both the counsels have agreed with our suggestion for getting the matter finally disposed of without record so that the liability to pay interest is lessened as the only issue to be decided is quantum assessed.

5. It is submitted by learned counsel for the appellants that the deceased was 26 years of age at the time of accident. He was in job, but he was not a permanent employee, therefore, the Tribunal did not grant any amount under the head of future loss of income, as the job was only for seven months. The Tribunal has considered his income to be Rs.4500/-per month. It is submitted by learned counsel for the appellants that the income of the deceased should have been considered to be between Rs.7,000/-to Rs. 8,000/-per month as it was proved by leading evidence to which, the deceased being 26 years, 40% of the income should be added and as he was survived by his widow and two minor sons and parents. 1/4th of the amount should be deducted towards personal expenses of the deceased. As far as multiplier is concerned, there is no dispute between the parties. It is also submitted that the interest should be granted at the rate higher than 7% and Rs.70,000/-with increase by 10% for three years should granted under the head of non-pecuniary damages.

6. Sri Naik, learned Advocate appearing for the respondent-Insurance Company has contended that in the absence of any proof of income of Rs.7000/-per month cannot be considered to be income of the deceased and the Tribunal has rightly considered the income of the deceased to be Rs.4500/-. It is further submitted by Sri Naik that in view of the fact that an appeal is continuation of proceedings though the Insurance Company has not challenged the findings, as far as negligence of the driver is concerned, he can raise the same as held by this High Court in case of National Insurance Company Ltd. Vs. Smt. Vidyawati Devi and two others decided on 27.07.2016 in First Appeal From Order No. 2389 of 2016. We permit Sri Naik to raise the said issue of negligence. It is submitted by Sri Naik that it a case of head on collusion and therefore, the deceased should also be held negligent and is requested to this Court to up turn the finding on the issue of negligence by holding that the deceased to be negligent and dismiss the claim petition.

7. Sri Naik, learned counsel for the Insurance Company in oral reply to the submissions of learned counsel for the appellants on negligence contends that this being a case of head on collision, the deceased should also be held negligent and requested this Court to upturn the finding on issue of negligence.

8. As far as issue of negligence is concerned, it is vehemently submitted by learned counsel for the appellants, that the deceased was held not at all negligent. According to him, the accident was between two vehicles of unequal magnitude and, therefore, the deceased cannot be said to have contributed to the accident having taken place.

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 inju