Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., while addressing the matter observed that:

“…where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide the same.” 

The instant appeal was at the behest of the claimants preferred against the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

An accident took place on 26-02-2009 when the deceased along with her husband and another person namely Harendra Singh and others were travelling. The car was being driven by the claimant i.e. the husband. Further, it has been stated that a tanker coming from the opposite direction very negligently and carelessly turned to the right side of the road and rammed into the car causing an accident in which the wife of Harendra Singh, wife of claimant 1 and one other person namely child sustained multiple injuries.

Harendra Singh’s wife died due to the injuries and claimant’s wife suffered pain for almost about 3 months due to which she was hospitalised and later died.

Tribunal

Tribunal framed several issues and came to the conclusion that the husband of the deceased namely claimant 1 who was equally negligent and written the finding of the contributory negligence thereby halving the compensation awarded to the claimants.

Matter being considered in the High Court

In the above-background, the instant matter requires to be considered. the appellants are the legal heirs of the deceased.

Legal representatives rather heirs of the deceased felt aggrieved with the tribunals’ finding on the issue of negligence and compensation as far as the decision of the tribunal on other issues was concerned they attained finality.

Out of the said accident, as has been stated above, one other claim petition was being preferred by Harinder Singh v. Kamal Singh, MACP No. 104 of 2009 under Section 166 of the Motor Vehicles Act, 1988. This matter was tried before another tribunal wherein it was decided that the driver of the truck was solely negligent and claimants were to be compensated.

The above-stated decision was placed before the tribunal whose order is impugned.

Analysis and Decision

The truck rammed into the car causing 3 casualties of persons travelling in the Maruti van and caused injuries to other inmates of the car.

Supreme Court in the decision of Sudarsan Puhan v. Jayanta Mohanty, (2018) 10 SCC 552 and UPSRTC v. Mamta, (2016) 4 SCC 172 held that the appeal is a continuation of the earlier proceedings and High Court is under the legal obligation to decide all the issues of lis and decide it by giving reasons.

Bench stated that the tribunal has committed an error which is apparent on the face of the record and is against the settled principles of law.

Court dealt with the issue in the instant case under separate heads:

Issue of Negligence even in absence of applicability of the doctrine of res judicata and whether the same was rightly decided by the tribunal

Negligence: It means the 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.

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.

Contributory Negligence: A person who either contributes or is co-author of the accident would be liable for his contribution to the accident having taken place.

Supreme Court recently in the decision of Archit Saini v. Oriental Insurance Company Ltd., (2018) 3 SCC 365, considered the principles of negligence.

In the decision of Khenyei v. New India Assurance Company Ltd., 2015 LawSuit (SC) 469, the question of joint and several liability was considered.

In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas, in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of the combination of the negligence of two or more other persons.

Hence, it can be seen that there is a difference between contributory and composite negligence.

Supreme Court in the decision of T.O. Anthony v. Karvarnan, (2008) 3 SCC 748 has held that in case of composite negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately.

Qua applicability Of Doctrine Of Res Judicata where Decision On Negligence Was Decided By competent Tribunal in Claim Arising Out Of The Same Accident :

Doctrine of res judicata applies even if the decision by the earlier court is right or wrong but if it has attained finality between parties the doctrine shall apply and issues decided.

In light of the Gujarat High Court’s decision in United India Insurance Co. Ltd. v. Lajibhia Hamirbhai, the issue of negligence will operate as res judicata.

It is held in the said case that where the parties in two petitions are same, except the claimant, the decision by the tribunal in petition decided earlier, would operate as ‘res judicata’ as far as the issue of negligence is concerned in a subsequent petition.

Supreme Court’s decision in Ishwardas v. State of M.P., (1979) 4 SCC 163, it was held that in order to sustain the plea of res judicata, it is not necessary that all the parties to the litigations must be common. All that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed.

In the instant case, the claimants were being heirs of the deceased who succumbed to the injuries and qua them even if the tribunal was of the opinion that the driver of the car was negligent therefore it was a case of composite negligence.

Court concluded that there was no rebuttable evidence before the tribunal to hold the driver of the car also negligent. Tribunal misdirected itself in venturing to decide the issue afresh without discussing why he would not follow the earlier decision, therefore the said decision required modification.

Question of Legal Representative 

Section 2 (11) of the Code of Civil Procedure defines the term ‘legal representative’.

In the Supreme Court decision of GSRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, it was held that for claiming compensation under either of the Acts the term legal cannot be given a narrow meaning as ascribed in Fatal Accidents Act 1855. Major, married son & earning son of the deceased can claim compensation. Dependency is not basic criteria for relief in accident cases to the claimants if they are a legal heir or legal representative of the deceased.

Legal Representative of Owner of Vehicle

Claimants before this Court and tribunal are the legal representatives of the deceased as they are husband and children who fall in Class-I heirship.

Hence, in view of the above, the deduction of compensation of claimant 1 by the tribunal cannot be sustained as he was claiming as an heir and not the driver or injured.

Compensation

Relying on the decision of the Supreme Court in Laxmidhar Nayak v. Jugal Kishore Behera, (2018) 1 SCC 746, it was held that the income of the housewife in the year 2009 would be Rs 4,000 per month, the amount would be Rs 48,000 per annum, to which as the deceased was 38 years of age, 25% will have to be added as she was self-employed.

Hence, the appeal was partly allowed and the Judgment and Decree passed by the tribunal shall stand modified to the aforesaid extent.

While parting with the judgment, the Court held that a direction is required to be given to all tribunals in the State that where there are multiple claims, MACT should place all the matters before the same Tribunal and the same tribunal should consolidate the matter and decide so that the situation as it arose in the present matter may not arise.[Dharam Veer v. Kamal Singh, 2020 SCC OnLine All 1404, decided on 26-11-2020]


Advocates who appeared for the matter:

Counsel for Appellant:- Mohan Srivastav
Counsel for Respondent:- Rahul Sahai, K.K.D

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., directed the insurance company to indemnify the claimants of the deceased who died in an accident, subject, inter alia, to recovery/deduction of 10% of the amount since the present is a case of contributory negligence.

 Present appeal arose from the accident which injured the family of the deceased (late District Judge) and in which the sole bread earner of the family lost his life in the accident. It has been stated that both the driver of the car and owner of the car died whereas the driver of the truck also lost his life.

Claimants preferred the present appeal against the judgment and award passed by Additional District Judge/Motor Accident Claims Tribunal, Allahabad.

Insurance company challenged the grant of compensation in Durga Verma v. Ranno Devi, FAFO No. 1359 of 2001 and FAFO No. 1365 of 2001 whereby the insurance company challenged the judgments qua quantum and alleged breach of policy condition and have also challenged the finding of the tribunal as far as negligence attributed to the driver of the truck was concerned.

Facts that lead to the present appeals

Husband and father of the claimants respectively died in an accident which occurred in the year 1994. The car which the deceased was driving dashed with another vehicle (a truck) causing the death of drivers of both the vehicles who succumbed to injuries caused by the said accident.

The insurance company contested that the vehicle in which the Fiat car dashed was not involved in the accident and the insurance company was not liable and the driver was not having a valid driving license, hence there was a breach of a policy condition. Insurance company contended that it was a case of contributory negligence on the part of the driver of the car.

Insurance Company preferred two appeals against the award in favour of the heirs of driver of Fiat car and heirs of owner of Fiat car. The injured and heirs of both driver and owner have also filed appeals for enhancement.

Analysis & Decision

The Bench stated that it will advert to the principles of negligence: both contributory as well as composite negligence. Further, it added that it is a case of composite negligence but qua the driver of the Fiat car, it can be a case of contributory negligence.

Relying on the decision of Supreme Court in Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208 and Sant Lal v. Rajesh, (2017) 8 SCC 590, the Bench stated that the liability would arise if a number of the licence was given and issuing authorities whereabouts were given in absence of the same, the insurance company has to be granted recovery rights from the owner of the truck to recover subject to the procedure suggested in the above two cases.

Insurance company did not file any documentary evidence, however, subject to the fact that the driver of the truck did not possess a proper driving license, they are granted recovery rights from the owner.

Negligence

Negligence means failure to exercise the required degree of care expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate the 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.

What may be negligence in one case may not be so in another.

Well-Settled Law

At the intersection where two roads cross each other, it is the duty of a fast-moving vehicle to slow down and if the driver did not slow down at the 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 conclusion that vehicle was being driven by him rashly as well as negligently.

In the instant matter, the Bench observed that:

“Merely, because the driver of the truck was driving a vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches the intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.”

Court added that, even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits [per three-Judge Bench in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

It was held that 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 the other side. In the present case, the vehicles are of unequal magnitude: one is a fiat car and the other a truck; the oral testimony of the witnesses go to show that the truck driver driving the vehicle at an exorbitant speed could not control itself, but at the same time if the driver of the Fiat car would also had been cautious, he would have averted the accident taking place and therefore he is held to be also “co-author” of the accident but to the tune of 10%.

Bench held that, it is case of composite negligence as far as the other inmates of Fiat car are concerned and therefore the insurance company will have to indemnify the claimants however it may recover the said amount to the tune of 10% from the owner-driver and insurance company of the Fiat car. As far as the claimant is concerned who is the widow of the driver of the Fiat car the compensation would be lessened to the tune of 10% as the driver has been held to be negligent to that effect. The driver of the Fiat car should have also taken proper caution and having not done so some negligence is attributed to him also.

Hence, the appeals preferred by the insurance company are decided likewise.

Appeals of claimants were partly allowed. [National Insurance Co. Ltd. v. Durga Verma,  2019 SCC OnLine All 6696, decided on 10-12-2019]

Case BriefsHigh Courts

Bombay High Court: The Bench of Sunil K. Kotwal, J. dismissed an appeal while modifying the award passed by the Motor Accident Claims Tribunal, Latur (MACT).

The present appeal was filed by the New India Assurance Company Ltd. – respondent 2 against the judgment and award passed by Motor Accident Claims Tribunal, Latur. Tribunal had awarded total compensation of Rs 5,96,000 inclusive of “no-fault liability” compensation; with interest thereon @7.5% p.a.

Facts of the case are that the deceased while proceeding on his motorcyclye along with his friend was dashed by the offending tractor from the opposite direction which resulted in his death. It has been stated that the accident occurred due to rash and negligent driving, due to which the claim petition for compensation under Section 166 Motor Vehicles Act was filed.

Mr S.G. Chapalgaonkar, counsel for the appellant submitted that the present challenge for the award is preferred on two grounds that the accident occurred due to contributory negligence of the deceased and exorbitant compensation has been awarded by the Tribunal. Further, it has been stated by the counsel for the appellant that, Tribunal without any evidence assessed the notional income of the deceased to be Rs 4,500 per month and awarded exorbitant compensation. As no cross-objection or cross-appeal was filed, the Court cannot enhance the compensation and only determine fair and reasonable compensation. He cited the decision of the Supreme Court in Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar; (2015) 4 SCC 237, and stated that, Supreme Court exercise jurisdiction under Article 142 of the Constitution of India while enhancing compensation in absence of cross-objection and cross-appeal by the claimant.

Further counsel for the claimants Mr N.D. Kendre, Advocate submitted that the Tribunal erroneously applied the multiplier of “16” when the deceased was only 30 years old and as per the decision in Sarla Verma v. DTC, (2009) 6 SCC 121, multiplier of “17” is applicable.

Thus the High Court examined all the contentions place before it and further analysed and noted that, the insurance company did not examine any eye witness of the accident which leaves them to examine the police papers in order to determine if the plea for contributory negligence by the insurance company can be accepted or not.  Court through the FIR copy found out that the accident occurred due to rash and negligent driving by the driver of the offending tractor.

“While deciding quantum of compensation, the age of the deceased plays an important role.”

It was clear by placing reliance on the above-stated decision of the Supreme Court in Sarla Verma v. DTC, (2009) 6 SCC 121, that multiplier of “17” would be applicable in the present set of circumstances.

Further, while keeping in consideration the age and personal skill of the deceased, notional income as determined by the tribunal was just and reasonable. Taking up the decision from the case National Insurance Co. Ltd. v. Pranay Sethi; (2017) 16 SCC 680, 40% income is to be added in the annual income of the deceased towards loss of future prospect.

As the appeal was filed by the Insurance Company, fruits of awards passed by the Tribunal won’t be received by the claimant, which leads them to an entitlement of compensation only at 9% p.a. interest.

Therefore, the conclusion that comes out from the present case is that the High Court cannot exercise jurisdiction under Article 142 of the Constitution of India as done by the Apex Court stated above, the only jurisdiction that can be exercised by the High Court is under Order 41 Rule 33 CPC, which would enhance the rate of interest to the extent of 9% p.a and the same to be modified by the tribunal in the present case.[New India Assurance Co. Ltd. v. Sunita, 2019 SCC OnLine Bom 2, decided on 04-1-2019]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: Plaintiff had approached this court before a Single Judge Bench of E. Revelas, J., for grant of damages against the defendant for injuries sustained by him during a motor vehicle accident.

Counsel of defendant, Advocate Paterson conceded that in absence of any contrary version the plaintiff’s account of the accident had to be accepted but since plaintiff did not apply brakes shows his negligence and that there was contributory negligence on his part.

High Court was of the view that even if some other driver would have reacted differently in the same circumstances, it does not mean that the plaintiff’s responses and actions were negligent. It was noticed that if the plaintiff had applied brakes it could have caused the vehicle to skid into other traffic and could have then resulted in contributory negligence. Court found the other colliding vehicle’s driver to be aggressive, reckless and inconsiderate and the one to be wholly blamed. Therefore, the defendant was directed to pay 100% of damages to the plaintiff. [Nicholas v. Road Accident Fund, Case No. 3880 of 2015, decided on 27-11-2018]

 

Case BriefsForeign Courts

High Court of Australia: In the instant case, the respondent sustained serious spinal injuries which rendered her paraplegic, when she was thrown from the back seat of a car being driven by the appellant who was drunk at the time of the accident. The issue for determination was whether the respondent was contributorily negligent  for choosing to travel in the car driven by the appellant when she ought to have known that he was intoxicated and, secondly, for failing to engage her seatbelt.

The trial Judge rejected the contention of the respondent that the appellant’s erratic driving had prevented her from fastening her seatbelt and held that failure to wear a seatbelt constitutes contributory negligence under Section 49 of the Civil Liability Act 1936. The Judge further held that the exception in Section 47(2)(b) of the Act applies in the present case as the respondent could not reasonably be expected to have avoided the risk of riding with the appellant in the circumstances. On appeal, a majority of the Full Court of the Supreme Court of South Australia dismissed the appellant’s appeal on the Section 47(2)(b) issue, and allowed the respondent’s cross-appeal on the issue of Section 49 and held that her failure to fasten her seatbelt was a result of her direct and natural response to the appellant’s erratic driving.

The appellant appealed to the High Court on both issues. A bench of French CJ, Kiefel, Bell, Keane And Gordon JJ unanimously dismissed the appeal on the Section 47(2)(b) issue and held that the respondent, who suffered major injuries as a result of a motor vehicle accident, was not contributorily negligent under Section 47 of the Civil Liability Act 1936 for travelling in a car driven by an intoxicated driver, as according to the facts of the case, she could not reasonably be expected to have avoided the risk of travelling with the appellant. However, the Court allowed the appeal and affirmed the trial judge’s finding that the appellant’s driving did not prevent the respondent from fastening her seatbelt and accordingly held that the respondent was contributorily negligent under Section 49 of the Act for failing to wear the seatbelt. [Alex Allen v. Danielle Louise Chadwick, decided on 9-12-2015]