In the case of Laxman Iyer, Hon'ble Apex Court has referred to the doctrine of last opportunity. Underlying principle of the doctrine is that when both parties are careless, party which has the last opportunity of avoiding the result of other's carelessness alone is liable. This doctrine on facts of the instant case cannot be said to be applicable here and what could be applicable is causation test as held in Laxman Iyer's case. According to this test, cause or causes of damage are to be seen and if it is found that one party's negligence together with other party's negligence was the proximate cause of the accident, the accident would be the result of contributory negligence. In the instant case, deceased Sk.Umar was indeed careless in his act of sleeping at a place neither suitable nor used ordinarily for sleeping. Added to it was the fact that the area was not well lit and so the driver of the offending vehicle could not have had any opportunity of avoiding the accident altogether. Of course, further damage could have been avoided by him, but, for that matter, liability in equal measure has also been fixed on the driver by the Tribunal, and rightly so.
Equivalent Citation: 2015(3)ALLMR565
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
First Appeal No. 1023 of 2013
Decided On: 20.11.2014
Shahana
Vs.
Sureshsingh Thakur Gajrajsingh Thakur
Vs.
Sureshsingh Thakur Gajrajsingh Thakur
1. Heard. Admit. Heard finally by consent of learned counsel for the parties.
2. This appeal challenges that portion of the judgment and award dated 11.10.2011 delivered in Claim Petition No. 221/06 by the learned Member, Motor Accident Claims Tribunal, Amravati, which grants compensation at the rate and for the heads not acceptable to the appellants, who are the original claimants.
3. It so happened that in the night between 14.7.2002 and 15.7.2002, deceased Sk. Umar Sk. Farooq, the husband of appellant no.1, father of appellant no. 2 and son of appellant no. 3 was sleeping in an open ground in front of parking area of S.T. Bus stand, Railway Station Badnera. When he was so sleeping, at about 4 to 4-30 a.m., one jeep bearing registration No.MH-27/C-5103 came from Chandani Chowk and entered the open ground where Sk. Umar was sleeping. As it took a turn there, it rolled over the deceased. The deceased started raising shouts, but it appears that the jeep driver did not hear them and again rolled over his jeep over the body of the deceased, leaving him grievously injured. He was taken to a hospital but on 19.7.2002 he succumbed to the injuries he had sustained in the accident. According to the claimants, the driver was rash and negligent in driving the vehicle. It was owned by respondent no. 1 and insured with respondent no. 2. The appellants, therefore, preferred a claim petition under Section 166 of Motor Vehicles Act against the driver, owner as well as the insurer.
4. Although the driver was impleaded as party-respondent, his name was deleted. The owner-respondent no. 1 resisted the claim contending that the jeep was not involved in the accident. It was also submitted by him that the deceased was sleeping at a place where no one should sleep and, therefore, he himself was responsible for his untimely death.
5. The Insurer-Respondent no. 2 also resisted the petition contending that there was no insurance policy issued on the date on which the accident occurred.
6. Upon consideration of the evidence adduced by the parties and the rival arguments, learned Member of the Tribunal found that jeep was not insured with respondent no. 2 on the date of the accident and, therefore, exonerated it of its liability to pay compensation. However, the learned Member found that the accident occurred due to contributory negligence of both the parties and, therefore, held that deceased as well as the driver and owner of the jeep should take equal responsibility for the accident and accordingly determined the liability of respondent no. 1 to be at Rs.02,04,000/-, being 50% of the total dependency An additional amount of Rs.5,000/-towards funeral expenses was also granted. Thus, respondent no. 1 was directed to pay Rs.2,09,000/-. Not satisfied with the same, appellants are before this Court in this appeal.
7. I have heard Shri Kasat, learned counsel for the appellants, Shri Tapadia, learned counsel for respondent no. 1 and Shri Ahmed, learned counsel for respondent no. 2. I have carefully perused the impugned judgment and award and also record of the case. Now, the following points arise for my determination :
(i) Whether the finding recorded by the Tribunal that there was contributory negligence on the part of the deceased as well as the driver of the offending vehicle and it was in the proportion of 50 : 50, is legal and correct?
(ii) Whether the compensation granted by the Tribunal to the appellants is just and proper?
(iii) What order?
8. According to learned counsel for the appellants, in this case, evidence would show that there is absolutely no negligence on the part of the deceased inasmuch as sleeping on pavements and open grounds being a common scene in a country like India, it cannot be considered to be an act of negligence. He also submits that in the case of Bishan Devi & ors. v. Sirbaksh Singh & anr. reported in MANU/SC/0592/1979 : (1980) 1 SCC 273 also, the deceased was sleeping on a cot on a kuchcha road when the offending vehicle after being diverted from the pucca road came on the kuchcha road and dashed against the cot thereby causing injury to the deceased and Hon'ble Apex Court found that there was no contributory negligence on the part of the deceased. He also submits that even if the case is considered to be one of contributory negligence, the doctrine of last opportunity would be applicable as held in the case of Municipal Corporation of Greater Bombay v. Laxman Iyer & anr. reported in MANU/SC/0836/2003 : (2003) 8 SCC 731.
9. According to learned counsel for respondent no. 1, the Tribunal has rightly held that contributory negligence on the part of both the parties was equal and this is clear from a bare perusal of evidence brought on record. He also submits that the accident had occurred in between 4 and 4-30 a.m. when there was no sufficient light available and ordinarily no person driving a vehicle would imagine that some persons are sleeping in open ground. Therefore, this would not be a case wherein there was available last opportunity to avoid the accident or to avoid the result of carelessness of the other party.
10. The evidence available on record indicates that accident had taken place very early in the morning when usually it is dark. There is no evidence available from which it can be said with any amount of certainty that the place where the deceased chose to sleep on was well lit, thereby giving an opportunity to others to see the ground and things or persons on it from quite a distance. Ordinarily, an open ground is not a place to sleep on and, therefore, as rightly submitted by learned counsel for respondent no.1, the driver of the offending vehicle could not have imagined while taking his jeep into the open ground that his jeep would be running over a living person. Therefore, when the jeep hit the deceased for the first time no negligence could be attributed to the jeep driver. But, the matter does not end here. The evidence also suggests that offending vehicle had rolled over Sk.Umar not only once but again even as the deceased had raised some shouts after getting a first hit. The second rolling over took place when the jeep was being moved in reverse direction. This could have been avoided as by that time the shouts should have alerted the driver and if not, at least the tremors that must have been felt inside the jeep after it rolled over the body of the deceased should have rung the alarm bells for the driver. Sadly, that was not to be. Therefore, I am of the opinion that the learned Member has correctly found that there was negligence and carelessness of both the parties in occurrence of the accident and in such a case the proportion of negligence had to be of 50 : 50, as rightly found by him.
11. In the case of Bishan Devi, supra, the deceased was sleeping in an open space situated right in front of a Truck Union Office, and it does not appear to be an open ground as the one in the instant case. The deceased was also sleeping on a cot, a visible object, unlike deceased Sk. Umar who was sleeping on the ground, an object comparatively less visible. Therefore, in the case of Bishan Devi there was a great possibility of the driver of the offending vehicle seeing a person sleeping on the cot, which possibility was very weak in the instant case. In my respectful submission, these facts of Bishan Devi's case are distinguishable from the facts of the instant case, and, therefore, it would not come to the aid of learned counsel for the appellants when he submits that in the instant case also no contributory negligence could be attributed to deceased Sk. Umar.
12. In the case of Laxman Iyer, Hon'ble Apex Court has referred to the doctrine of last opportunity. Underlying principle of the doctrine is that when both parties are careless, party which has the last opportunity of avoiding the result of other's carelessness alone is liable. This doctrine on facts of the instant case cannot be said to be applicable here and what could be applicable is causation test as held in Laxman Iyer's case. According to this test, cause or causes of damage are to be seen and if it is found that one party's negligence together with other party's negligence was the proximate cause of the accident, the accident would be the result of contributory negligence. In the instant case, deceased Sk.Umar was indeed careless in his act of sleeping at a place neither suitable nor used ordinarily for sleeping. Added to it was the fact that the area was not well lit and so the driver of the offending vehicle could not have had any opportunity of avoiding the accident altogether. Of course, further damage could have been avoided by him, but, for that matter, liability in equal measure has also been fixed on the driver by the Tribunal, and rightly so.
13. In view of the above discussion, I find that the Tribunal has rightly fixed the extent of negligence on deceased Sk. Umar as well as driver of the offending vehicle to be in the ratio of 50 : 50. The first point is, therefore, answered as in the affirmative.
14. Now comes the question as to whether or not the compensation determined by the Tribunal is just and proper. According to learned counsel for the appellants, it is required to be enhanced and in the submission of learned counsel for respondent no. 1, it is necessary that it is brought down considerably. Respondent no. 2 has already been exonerated of its liability. The only submission of learned counsel for respondent no. 2 is that the insurance policy being not effective on the date of accident, no interference with the finding recorded in this regard by the Tribunal could be made. I agree with him as insurance policy was not effective on the date of accident.
15. Learned counsel for the appellants submits that notional income considered by the Tribunal at Rs.3,000/-per month is based on the evidence of the parties and, therefore, there is no need to substitute the amount of notional income by any other amount. In support, he has taken me through the evidence available on record. However, respondent no. 1 would not agree. He submits that the evidence adduced by the parties is not sufficient to come to a reasonable conclusion that the income of the deceased was of Rs.3,000/-per month. He submits that when there is no other evidence available on record showing the income of the deceased, the criterion, specified in clause 6 of 2nd Schedule, even in a case initiated under Section 166 of Motor Vehicles Act, can be relied upon. In support, he refers to the cases of Arun Kumar Agrawal & anr. v. National Insurance Co. Ltd. & ors. reported in MANU/SC/0507/2010 : (2010) 9 SCC 218 and R.K. Malik & anr. v. Kiran Pal & ors. reported in MANU/SC/0809/2009 : (2009) 14 SCC 1.
16. There is no dispute about the principle laid down in above-stated cases that even in proceedings initiated under Section 166 of Motor Vehicles Act, the criterion of structured formula as mentioned in 2nd Schedule can be considered. But, this principle of law also tells us that notional income given in clause 6 of 2nd Schedule is only for guidance and if there is any other evidence available on record, the other evidence must also be taken into account. In the instant matter, there is evidence led by the appellants that deceased Sk. Umar was earning income of Rs.1,500/-per month by selling wigs. Although, this has been denied by respondent no. 2, mere denial is not enough. Some circumstances should have been brought on record to controvert the same. But, that is not the case here. At the same time, Tribunal has also not accepted the bald statement of the appellants that income of the deceased was Rs.1,500/-per month. The Tribunal has only considered the effect of the statement by inferring that the deceased was doing some business and indeed earning some income. Therefore, by way of some approximation, the Tribunal considered the income of the deceased on notional basis and found it to be of Rs.3,000/-per month. I do not see any illegality in the finding so recorded by the Tribunal. Thus, I find that the income of the deceased can be taken to be at Rs.3,000/-per month for calculating the loss of dependency.
17. The Tribunal has deducted 1/3rd for personal expenses from the income of Rs.36,000/-per annum , and by applying the multiplier of 17, which was the multiplier applicable in this case, has correctly found the loss of dependency to be at Rs.04,08,000/-. Since 50% amount was to be deducted from the total amount of loss of dependency on account of equal contributory negligence of the deceased, the loss of dependency has been rightly found by the Tribunal to be at Rs.02,04,000/-.
18. The Tribunal has also granted expenses of Rs.5,000/-towards funeral of the deceased. However, this amount seems to be on the lower side if one considers the proposition of law spelt out in the cases of Kala Devi & ors. v. Bhagwan Das Chauhan & ors. by Hon'ble Apex Court on 31.10.2014 in SLP (C) No. 2339 of 2014 reported in MANU/SC/0985/2014 : 2014(12) SCALE 513 and Rajesh & ors. v. Rajbir Singh & ors. reported in MANU/SC/0480/2013 : (2013) 9 SCC 54 which have been discussed in subsequent paragraph.
19. It is also seen from the impugned judgment and award that although the appellants were widow, son and mother of the deceased, no compensation on such heads as loss of consortium, loss of love and affection, loss of estate and loss of expectation of life have been granted by the Tribunal. Relying upon the principles laid down in the case of Kala Devi & ors. (supra), Juju Kuruvila v. Kunjujamma Mohan reported in MANU/SC/0615/2013 : (2013) 9 SCC 166, Rajesh v. Rajbir Singh & ors. MANU/SC/0480/2013 : -(2013) 9 SCC 54 and Kalpanaraj v. Tamil Nadu State Transport Corporation reported in MANU/SC/0345/2014 : 2014(5) SCALE 479, further amounts as laid down in these cases would be due and payable to the appellants. The cases of Kala Devi and Juju Kuruvila lay down principles relating to grant of compensation towards loss of consortium and loss of love and affection and the amount that has been awarded in these cases under these heads is Rs.1,00,000/-each. In the case of Kalpanaraj compensation for such additional heads as loss of estate and loss of expectation of life has been granted and it is of Rs. 1,00,000/-for each of them. In the case of Rajesh, which has been followed in Kala Devi, Hon'ble Apex Court observed that while granting funeral expenses, the Tribunal should not be frugal as there are many connected expenses and accordingly held that in the absence of evidence to the contrary, funeral expenses of at least Rs.25,000/-should be granted. Relying on the observations in the afore-stated cases, which I find are applicable to the facts of the instant case, further compensation on the said counts, not given by the Tribunal, would have to be given to the appellants.
20. At this stage, learned counsel for respondent no. 1 submits that above referred cases do not lay down any principle of law and what is binding upon the parties and the Court is a precedent as held in the case of Indian Drugs & Pharmaceuticals Ltd. v. Worken, Indian Drugs & Pharmaceuticals Ltd. reported in MANU/SC/4993/2006 : (2007) 1 SCC 408. He also submits that the principle of circumstantial flexibility, while considering application of precedent, must be taken into account and if it is found that even one material fact is different from the facts of the case at hand then precedent cannot be applied. In support he has placed reliance upon the case of Union of India & anr. v. Major Bahadur Singh reported in MANU/SC/1961/2005 : (2006) 1 SCC 368. He further submits that the purpose of legislation like Motor Vehicles Act is not to allow parties to be profited from the claim proceedings. In support, he places his reliance on Reshma Kumari & ors. v. Madan Mohan & anr. reported in MANU/SC/0287/2013 : (2013) 9 SCC 65.
21. There is no difference of opinion about the principles of law laid down in the case of Indian Drugs Pharmaceuticals, Major Bahadur Singh and Reshma Kumari. There is no dispute that what is binding upon the Court and the parties is a precedent or principle of law which can be culled out from the observations and findings recorded in a cited case. There is also no quarrel for having circumstantial flexibility in applying a precedent in the sense that one additional or different fact may make a world of difference between conclusions in two cases. Similarly, the principle of non-profiting must be respected as the provisions relating to claim for compensation embedded in Motor Vehicles Act are not designed to put a claimant in a better financial position than what he would have been if accident had not occurred. But, as can be seen from the cases of Kala Devi, Juju Kuruvilla, Rajesh and Kalpanaraj, the Hon'ble Apex Court has held that compensation on account of such heads as loss of consortium, loss of love and affection, loss of estate and loss of expectations of life as well as reasonable funeral expenses should be granted in adequate measure keeping in view the modern trends of life. Therefore, it cannot be said that these cases do not lay down any principle of law so as to not bind the courts below. Similarly, it can also be not said that granting of additional compensation for the permissible heads within permissible limits would amount to enabling a party to profit from accident claim proceedings.
22. In the circumstances, I find that the compensation determined as due and payable to the appellants by the Tribunal is not just and proper and it needs to be enhanced further by awarding more compensation for the additional heads, such as loss of consortium for appellant no. 1, loss of love and affection for appellant no. 2, loss of estate for appellant no. 3 and loss of expectation of life in relation to the death of Sk. Umar at the rate of Rs. one lac for each of these heads, as awarded by the Hon'ble Apex Court in the afore-stated cases. Funeral expenses of Rs.20,000/-in addition to Rs.5,000/-already granted would also have to be allowed. Thus, the total compensation that would be payable to the appellants would come to Rs.6,29,000/-[Rs.4,20,000 + Rs. 2,09,000] and it will carry interest on the additional amount granted by this order at the rate of 6% per annum from the date of petition till the date of payment of compensation, by deducting interest for 1 1/2 years inclusive of no fault liability. The interest for the period of 1 1/2 years is not being granted for the same reasons, as stated in paragraph 10 of the impugned judgment and award. The appeal, therefore, deserves to be allowed as against respondent no. 1 in the aforesaid terms. The second point is answered accordingly. Nothing has been found due and payable from respondent no. 2.
23. The appeal is partly allowed. Respondent no. 1 shall pay an amount of Rs.06,29,000/-which is inclusive of no fault liability together with interest at the rate of 6% per annum from the date of filing of the petition, except for the period of 1 1/2 years, to the appellants till the date of payment. While making payment of compensation the amount that has already been received as compensation by the appellants, shall be deducted.
Additional Court-Fee shall be paid within two months from the date of order and upon payment of additional Court-Fee, the compensation, as directed by this order, shall be paid.
The impugned judgment and order stands modified in above terms. Parties to bear their own costs.
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