The Rajasthan High Court (Jaipur Bench) has held that in a motor accident claim, negligence is to be determined on the basis of preponderance of probabilities, and the MACT or Court may rely on police records such as the FIR, site plan and charge-sheet for that purpose. Where the evidence shows that one vehicle was being driven rashly and negligently and the other vehicle, though parked on the roadside, was left without warning signals or precautionary measures, both drivers can be held negligent, and liability can be apportioned inter se between their insurers according to their respective negligence.
The Court laid down that where the deceased or injured was not himself negligent, the case is one of composite negligence, and the claimants are entitled to recover the compensation from any of the joint tortfeasors or their insurers, notwithstanding apportionment of liability between them. It also affirmed that, for computation of compensation, income should be determined on the basis of income tax returns where available, age should be determined on the basis of more reliable contemporaneous government documents such as driving licence and PAN card rather than estimated age in a post-mortem report, and each eligible claimant is entitled to consortium.
A Single Judge Bench of Justice Sandeep Taneja examined the FIR, the site plan (Naksha Mauka), the charge-sheet, the pleadings in the claim petitions, and the testimony of the eye-witnesses who were themselves occupants of the car. It observed that the first version in the FIR showed that the truck was standing on the roadside and that the accident occurred due to negligence of the car driver. The site plan also showed the truck on the roadside. The police found rash and negligent driving prima facie against the car driver, while the truck driver was proceeded against for obstruction in a public way.
The Bench further observed that in the claim petitions and in examination-in-chief, the claimants themselves had consistently stated that the car was being driven at high speed, rashly and negligently, and hit the stationary truck from behind, though they also alleged that the truck was standing in the middle of the road. The Court treated the latter assertion as contradictory to the FIR and site plan. In cross-examination, the eye-witnesses stated that the truck was 1–2 feet or 2–3 feet from the side of the road, that there was space on the road, and that the accident might have been avoided if the car driver had applied brakes or driven slowly. They also stated that warning indicators by the truck driver could have prevented the accident.
The Bench reiterated that motor accident claims are to be decided on the touchstone of preponderance of probabilities and that police records such as the charge-sheet may be looked into by the Tribunal. Applying that principle, the Bench held that the evidence at every stage consistently established rash and negligent driving by the car driver. At the same time, it also held that the truck was parked on the roadside without warning signals, indicators or precautionary measures, and therefore the truck driver was also negligent.
Accordingly, the Bench dismissed the three appeals filed by United India Insurance Company and upheld the MACT’s finding that the accident occurred due to negligence of both drivers, with primary liability of the car driver and apportionment of liability between the insurers in the ratio of 75:25.
In the claimants’ enhancement appeal, the Bench noted that the claimants had produced the deceased’s income tax returns for assessment years 2008-2009, 2009-2010 and 2010-2011, and that the return for AY 2010-2011 reflected the highest income, namely Rs.1,74,395 per annum. The Bench held that income tax returns are legally admissible and reliable documents for determining income.
On age, the Bench found that the MACT erred in relying on the post-mortem report to assess the age of the deceased as 48 years. The driving licence and PAN card on record showed the deceased’s date of birth as Nov 08, 1969, making him 41 years old on the date of the accident. The Bench held that these documents issued by government agencies carried a higher degree of reliability than the estimated age recorded in the post-mortem report.
On consortium, the Bench held that each claimant was entitled to Rs.40,000. Since the deceased was 41 years old, the Bench added 25% towards future prospects. On the question of liability, the Bench held that this was a case of composite negligence because the deceased was not the driver of either vehicle. It observed that in such a case each wrongdoer is jointly and severally liable and the claimants are entitled to recover compensation from any of them, notwithstanding inter se apportionment.
Accordingly, the compensation payable to the claimants in the death case of Santosh Kumar Sharma was consequently re-assessed by taking annual income at Rs.1.74 lakhs, applying multiplier 14, adding 25% towards future prospects, deducting one-fourth towards personal expenses, and awarding consortium of Rs.40,000 to each of the four dependants, along with Rs.15,000 each towards loss of estate and funeral expenses. The total compensation was determined at Rs.24.78 lakhs.
Since the Tribunal had awarded Rs.8.85 lakhs, the enhanced amount came to Rs.15.93 lakhs. The insurers were directed to deposit the enhanced amount within two months, with interest in terms of the Tribunal’s award from the date of filing of the claim petition. The enhancement appeal was partly allowed and the rest of the award was left intact.
Briefly, an accident occurred on Jan 07, 2011, when a Scorpio car, in which Jagdish Prasad, Santosh Kumar Sharma, Giriraj Prasad, Vinod Kumar and Lalit Kumar were travelling from Lalsot to Delhi, collided with a stationary truck near Jajor on the Alwar–Bhiwadi Highway. Jagdish Prasad and Santosh Kumar Sharma died on the spot, and Giriraj Prasad, Vinod Kumar and Lalit Kumar sustained grievous injuries. The truck was insured with New India Insurance Company and the car was insured with United India Insurance Company.
An FIR was lodged by injured passenger Lalit Kumar. After investigation, the police filed a charge-sheet under Section 283 IPC against the truck driver and under Sections 279, 337, 338 and 304A IPC against the car driver. The Motor Accident Claims Tribunal (MACT), after considering the oral and documentary evidence, held that both drivers were negligent and apportioned liability in the ratio of 75% to the insurer of the car and 25% to the insurer of the truck.
On appeals filed by United India Insurance Company, the principal contention was that the accident occurred solely because the truck had been parked on the road without indicator, signal, light or warning sign, particularly in conditions of dense fog, and therefore the insurer of the car should not have been held liable.
Appearances:
Archana Mantri, for Appellants
Gunjan Pathak, Ritesh Jain, Dr. Ramdeo Arya, Ram Singh Bhati, Ravindra Kumar Paliwal, Abhishek Paliwal, Rahul Sharma, Anjali Sharma, Mukesh Kumar Goyal, Naman Gurjar, K.K. Bhinda, for Respondents
