Excerpt
In the present case, the Petitioners- Claimants previously had filed one claim petition before the Tribunal but were later not satisfied with the decision given by the Tribunal, and hence the present petition was made. Moreover, the Respondents were also not in the favour of the decision. So, to solve the dispute the Court examined the various aspects of the case namely; negligence, compensation, liability, interest, disbursement, and Tax at Source. And finally, the Court reversed the decision made by the Tribunal and directed the Respondents to pay the additional amount within 12 weeks with an interest rate of 7.5%. and lastly modified the apportionment as 60% to the parents and 40% to the young widow of the additional amount.
Facts of the Case
In the present case, the Petitioners-Claimants of the deceased had previously filed one claim petition being MACP (Modified Assured Career Progression Scheme) No. 471 of 2015 before the Tribunal claiming a sum of Rs.3,40,50,000/- for the death of Somesh Agrawal, as according to the Claimants the accident took place on account of rash and negligent driving of the driver of the truck bearing No. UP 55 T 5151. The genesis of the accident as narrated in the claim petition and the record indicated that the accident had occurred when the deceased was plying on his motorcycle bearing No.UP 93Z/7103 and was going to his factory at Pratappura, near Pratappur Gas Agency, and thereby the truck in question was being driven rashly and negligently dashed the motorcycle of deceased from behind. Because of this, the deceased died out of accidental injuries on the same evening. The Petitioners- Claimants were the legal heirs, namely, widow and parents of the deceased who died in the vehicular accident which occurred on 2.8.2015 at 2:00 p.m. Further, in this claim petition, it was also stated that the deceased was of 28 years and was earning Rs.25,00,000/- per annum as he was a qualified engineer and was engaged in the business of construction work for U.P. Power Corporation. Added, the truck in question was insured with the National Insurance Co. Ltd. Then the claimants subsequently tried to prove ‘negligence’ as is required under Section 166 of Motor Vehicles Act, 198. Further, To support their argument they even relied upon the produced documentary evidence and on the leading evidence. The fact that the vehicle in question was insured with the National Insurance Co. Ltd. was proved by the documents filed by the owner of the said vehicle, who had filed a reply and driving license of the driver as 17C-1/6. However, the Insurance company very eccentrically filed a document indicating that the driver was not authorized to drive the transport vehicle and the said license had expired but did not produce any such documentary evidence to convincingly prove that the vehicle was being driven by an unauthorized person. The compensation prayed by the Claimants was based on two subjects first is that the claimants were the parents and the widow namely they were legal representatives of the deceased and the second is that the deceased had taken a loan of Rs.1 crore and was setting up a factory at Pratappura. Besides, The claimants had also claimed that the deceased was earning Rs.25,00,000/- per year and for which they have filed before the Tribunal educational certificates, training certificates, loan approval certificate, land allocation certificate, Income Tax Return and copies of bank accounts of the deceased for the relevant period. The income of the deceased was objected to by the Insurance Company. Responding to this, The Tribunal considered the income of the deceased based on the Income Tax Return for the year, which was filed before his death. The Tribunal had considered his income to be Rs.6,78,950/- per annum out of which it deducted tax and interest and considered income to be Rs.6,09,749/-, deducted 1/3rd from the same, granted multiplier of 17 as the deceased was in the age group of 26-30 years and added Rs.60,000/- for non-pecuniary damages. Further, The Tribunal refused to grant future loss of income as according to it the deceased was not in employment and he was about to set up a factory and, therefore, there was no question of future loss of income was the finding of the Tribunal. Thus, the Tribunal mulcted the liability on the owner but directed the compensation to be paid by the Insurance Company as the vehicle was insured. But both parties were not satisfied and thus filed this petition.
Petitioner’s Arguments
Sri Shukla, Learned Counsel for the Claimants submitted that the deceased was rightly considered as not negligent because he was driving a smaller vehicle and while driving the said vehicle he had taken all care and caution. And thereby the driver of the truck was rightly held negligent and there was no need to upturn the finding of facts. Moreover, The submission that P.W.2 was not an eye-witness is denied from the fact that his name has been shown in the F.I.R. and the Charge-sheet. The truck dashed the motorcycle from behind. And The delay caused in the F.I.R. was because the deceased was in the hospital, he had a young widow and parents who had come in trauma on hearing the said accident to their son and, therefore, the delay had been rightly not considered to be fatal. Moreover, the Claimants felt aggrieved as the Tribunal had not considered any amount for future loss of income. As the Tribunal while granting compensation has not granted proper interest and that the Tribunal has committed an error in directing 2/3rd of the compensation to be paid to the parents and 1/3rd to the widow. At the outset, the issue of negligence was raised, the contention was made that the deceased was driving the motorcycle on the middle of the road, was also denied by the Learned Counsel with proper shreds of evidence.
Respondent’s Arguments
Learned Counsel for the Respondents – Insurance Company firstly challenged the Tribunal because the deceased was a contributor to the accident having taken place, that the income considered by the Tribunal was on the higher side and same would not have been made the basis of compensation and that the driver of the said vehicle did not have a proper driving license when the accident took place as it was proved by documentary evidence produced from the R.T.O. that the driver did not have the license to drive a transport vehicle. furthermore, it was submitted that the evidence produced by the owner also suffers from the vice of not being given by the authority which is said to have issued the license. Besides this, the Learned Counsel for Insurance Company stated that the vehicle was not even involved in the accident as the F.I.R. was lodged after two days by the father of the deceased and that the technical report of both the vehicles does not corroborate the manner of the accident as alleged. Moreover, the technical report also substantiates that the truck did not hit any vehicle. The evidence of P.W.2 is full of contradiction and his presence at the place of the accident was doubtful. Alternatively, it was submitted that even if the accident occurred involving truck No. UP 55 T5151, negligence on part of the deceased in driving the motorcycle was maximum and the negligence should have been apportioned between the authors of the accident.
Court’s Observation
The Court in this case firstly observed the concept of negligence from the perspective of the law laid down. For this, the Court gave reference to the case namely, Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others. And concluded that the burden of proof for contributory negligence on the part of the deceased has to be discharged by the opponents. The driver of the offending vehicle must explain the accident. It is well-settled law that at the intersection where two roads cross each other, a fast-moving vehicle must slow down and if the driver did not slow down at an 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 the deduction that vehicle was being driven by him rashly as well as negligently. Moving further the Court observed the 10th Schedule appended to the Motor Vehicle Act which consisted of the statutory regulations for driving of motor vehicles that also form part of every Driving License. Further, the Court gave a reference to the case of Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From this case the Court concluded that 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 the principle of social justice should have any meaning at all.
Besides the Court came to the question of Liability of the Insurance Company. For this, the Court observed Sections 147 and 149 of the Act and also inspected the documentary evidence. The court then gave reference to some prominent cases namely, Nirmala Kothari Vs. United India Insurance Co. Ltd., (2020) 4 SCC 49.; Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557. And concluded that In the view of the matter, on the facts and the law, it cannot be said that the owner has committed a breach of policy conditions.
Further, the Court came to the issue of compensation which has aggrieved the claimants and the Insurance Company. The Court firstly gave a vision to the submission of Sri Amist and concluded that it cannot be accepted as the Tribunal has rightly considered the annual income based on Income Tax Return filed for the year 2014-2015 and discarding the return for the period 1.4.2015 to 31.3.2016 which was preceding the year of his death. Further, the Court referred to the case of Shashikala; Subhalakshmi; Sangita Arya; Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050.; Pranay Sethi. Then the Court came to the question of interest wherein, it referred to a case namely, National Insurance Co. Ltd.Vs. Mannat Johat and Others, 2019 [19] T.A.C.705 (S.C.). next was the question of disbursement and tax at source. The Court once again relied on the following judgments, A.V. Padma and others Vs. R. Venugopal, 2012 (3) SCC 378, Trivandrum Vs. Susamma Thomas and others, AIR 1994 SC 1631., Zeemal Bano and others Vs. Insurance Company, 2020 TAC (2) 118, Smt. Sudesna and others Vs. Hari Singh and another, F.A.F.O. No.23 of 2001. The Court at the end concluded that the Insurance Company should not deduct any amount under T.D.S.
Court’s Decision
The Court decided that the appeals preferred by the claimants were to be partly allowed and the appeal preferred by the Insurance Company were to be dismissed. Furthermore, the Award and decree passed by the Tribunal shall stand modified to the aforesaid extent. Moreover, the Respondents shall jointly and severally liable to pay an additional amount within 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. Also, In the view of the above case, it was directed that on deposit of the amount, the Tribunal shall disburse the entire amount by way of account payee cheque or by way of RTGS to the account of the claimants within 12 weeks from the date the amounts are deposited by the respondents. Record be sent back to the Tribunal. Lastly, the Court modified the apportionment as 60% to the parents and 40% to the young widow of the additional amounts.
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