Allahabad High Court quashed an order of the Motor Accident Claims Tribunal and ordered the insurance company to pay Rs 46,02,120 to the claimant.
The Divisional Bench of Judge Kaushal Jayendra Thaker and Judge Vivek Varma adopted this order while hearing a motion filed by Minakshi Srivastava and 3 others.
By way of appeal, the appellants felt aggrieved by the order made by the Claims Tribunal, whereby the Claims Tribunal dismissed the application for claim being MACP No. 21 of 2015.
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The facts of the case are that on 23.11.2014 at around 6:30 p.m., while the deceased was riding his Hero Honda motorbike and traveling from Pathkhura to his house near Paramhans Ashram, Respondent No. 2 (driver) drove the minibus recklessly and accidentally hit the motorbike. The deceased went under the bus and his motorcycle was also damaged. People around him called the ambulance and he was sent to community center in Rajgarh but as he was serious he was sent to Sadar Hospital, Mirzapur, there too he was not treated but he was sent to Varanasi People’s Hospital where he was admitted but as his health did not improve he was transferred to BHU Hospital, where during treatment on November 25, 2014 he succumbed to his injuries . When he died, his family was in shock, they were unable to house the FIR in time.
The FIR was filed by his brother when filing the claim, the respondent, Dheeraj Pandey and the driver filed their response which was a denial claiming that the vehicle was not involved in the accident and that the vehicle was licensed to shuttle between Mirzapur and Ghazipur and his vehicle could not be at the location where the accident took place. The police took the vehicle and filed the indictment. Later, the minibus driver was charged and released on bail, an accepted factual position that was dismissed by the Court. Respondent no. 3, (insurance company) on the contrary argued that it was the deceased who acted negligently and that he collided with the bus.
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The Appellants challenged the decision on the ground that the Tribunal’s order is illegal, arbitrary, void of spirit and cannot be upheld in the eyes of the law.
Counsel for the appellants submits that the lower court did not consider, in making the order under appeal, that the vehicle insurance company/respondent 3 admitted that the accident occurred by his vehicle, but maintained that the accident occurred due to negligence by the deceased.
It is further argued in response that it was the driver of the motorcycle who drove the vehicle recklessly and negligently. The facts prove that the minibus vehicle was involved in the accident.
The Court noted that,
Plaintiffs examined the widow of the deceased, an eyewitness, Ikbal Ahmad, and Kamlesh Kumar Srivastava, who had filed the FIR. With regard to the respondents, the defense witness was questioned. Appellants filed Chick FIR, Autopsy Report, Panchnama Report, Mini Bus Discharge Note, Death Certificate of Deceased, Medical Certificate from Mirzapur Doctor, People’s Hospital and Death Certificate of Tehsildar of Chunar.
The voter’s ID card and all other supporting documents proving vehicle involvement and the deceased’s income were also produced. The Respondent filed the driver’s certificate of competency, license, insurance and driver’s license.
Respondent #3 did not question any witnesses. The Court dismissed the claim despite the fact that the respondent insurance company had argued that the accident had occurred due to the negligence of the driver, who had lost his balance. The Tribunal did not believe the wife’s testimony as she did not reveal who gave her the minibus number. It is ruled that Ikbal Ahmad cannot be accepted as an eyewitness because he also did not give the number of the bus and that the first information report concerned an unknown vehicle and that, therefore, the act of accusation was not acceptable.
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The evidence in the record that has been swept away by the Tribunal is completely unfounded. The defense witness did not give the name, the number of vehicles involved. The FIR chick did not give the minibus number and the Kamlesh Kumar Srivastava, who registered the FIR also did not give the minibus number. The fact that the testimony of these three witnesses has not been challenged even except for the filing of a written statement by the owner. The driver of the vehicle never complained of having been falsely implicated.
The Court further noted that the FIR also indicates that a minibus was involved in the accident. The charge sheet is prima facie evidence of the vehicle’s involvement, the owner nowhere claims that his bus was not on the road.
The Court held that,
On the contrary, by going through the file, it is very clear that the vehicle was authorized to circulate 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 Court also shows that the vehicle had a permit to travel on the road which is in the accident. The certificate of fitness and permit are there from Mirzapur to Ghazipur via Chunar Varanasi Saidpur and hence they claim that the vehicle had no permit to run on the said road is also a wrong statement on the record made by the owner against which the driver is charged-sheet is directed, thus, on a balance of probability, the finding of the Tribunal cannot be accepted. We have quantified our view by the judgment of Apex Court in the Sunita (Supra) case.
In view of the above, we cannot agree with the judge that it has not been proven that the driver of the minibus did not drive the bus recklessly and negligently. The injuries suggest that the driver of the minibus was driving the vehicle recklessly and negligently. Therefore, said question is answered in the affirmative and in favor of the appellants.
The term negligence means failing to exercise care for others that a reasonable and prudent person would in the circumstances or to take action that such a reasonable person would not do. Negligence can be both intentional or accidental, which is normally accidental. Most notably, it involves reckless driving, and the injured must always prove that one or the other side is negligent. If the injury rather than the death is caused by something owned or controlled by the negligent party, then it is directly responsible, otherwise the principle of “res ipsa loquitur” thus meaning “things speak for themselves” would apply .
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The principle of contributory negligence has been debated many times. A person who contributes or who is the author of the accident would be responsible for his contribution to the accident having taken place.
The Court observed that,
Therefore, with regard to the quantum, this Court, after having heard the lawyers for the parties and having taken cognizance of the impugned judgment and order, concludes that the deceased was even hospitalized for a certain period of time and that he earned Rs 33,523 per month as salary as he was Lekhpal i.e. Rs 4,02,276 per year. To which, as the deceased was 47 years old, 30% of the income must be added in view of the decision in National Insurance Company Limited Vs Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. Further, a third party demands that she be deducted as his personal expenses as he is survived by his wife and three minor daughters aged approximately 19, 16 and 13. As the deceased was in the age bracket of 47, the applicable multiplier would be 13 considering the decision Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121. In addition to this, Rs 75,000 is awarded with conventional heads. Therefore, the total compensation payable to the appellants is calculated below:
(i) Income: Rs.33,523/- (Rs.4,02,276/- per year)
(ii) Percentage towards Future Prospects: 30% i.e. Rs.10,057/- (rounded)
(iii) Total income: Rs.33,523 + 10,057 = Rs.43,530/-
(iv) Income after deduction of 1/3 for personal expenses of deceased: Rs.29,020/-
(v) Annual income: Rs.29,020 x 12 = Rs.3,48,240/-
(vi) Applicable multiplier: 13
(vii) Loss of dependency: Rs.3,48,240 x 13 = Rs.45,27,120/-
(vii) Amount for non-pecuniary damages: Rs.75,000/-
(viii) Total Remuneration: Rs.46,02,120/-
The court ordered that,
In view of the foregoing, the appeal is allowed. The judgment and order rendered by the Tribunal are set aside. The respondent insurance company will deposit the amount within 12 weeks from today with interest at the rate of 7.5% from the date the claim is filed until the amount is deposited. The amount already deposited will be deducted from the amount to be deposited.
When filing the amount with the Court Registry, the Registry must first deduct the amount of the court costs underpayment, if any. In view of the ratio established by the Supreme Court in AV Padma V/s Venugopal case, reported in 2012 (1) GLH (SC), 442, the investment order is not passed because the plaintiffs/plaintiffs do not are neither illiterate nor rustic villagers.