Hon'ble Ajai Tyagi,J.

1. Heard learned counsel for the appellants and learned counsel for the respondents. Perused the record.

2. This appeal has been preferred by appellants/claimants against the judgment and award dated 13.01.2017 passed by Motor Accident Claims Tribunal, Court No.3, Mathura (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No.268 of 2015 ( Smt. Rajni Singh and Others v. Iffco Tokiyo General Insurance Co. Ltd. and Others ) by which the claim petition of appellants was rejected by learned tribunal.

3. The brief facts as culled out from the record are that on 06.03.2015 at about 03:30 p.m. (night), deceased Jitendra Singh was coming to his Village Virzapur from Mandi Samiti on foot, when he reached on NH-2 near Jai Gurudev Ashram within the jurisdiction of Police Station Highway Mathura, a EON Car bearing No.UP 85 AF 2955 came from behind and hit him (deceased). The driver of the car was driving the vehicle rashly and negligently. In this accident, the deceased sustained serious injuries. The deceased was admitted in Prabha Hospital, Mathura, but due to serious condition of the deceased, he was referred to Kamayani Hospital, Agra where he was admitted from 06.03.2015 to 11.03.2015, when the condition of the deceased became more serious, he was admitted to Rainbow Hospital, Agra on 11.03.2015 and for better treatment he was carried to Delhi, but on the way he died on 23.03.2015, namely, after 20 days of the accident having taken place.

4. The Apex Court in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SC 948, has held that all the issues raised in the memo of appeal are required to be addressed and decided by the first appellate court.

5. It is an admitted position of fact that deceased was a married person and the claimants are the legal representatives of the deceased, namely, widow, two minor sons and one minor daughter, the mother of the deceased was also dependent on him. The multiplier would be as per the judgment of Sarla Verma (infra), which would have to be as per the age of the deceased.

6. Learned counsel for claimants submitted that at the time of accident, deceased was Assistant Teacher in Primary School. Hence, the monthly income of the deceased was Rs.28,528/-. Learned counsel for claimants also submitted that for the future loss of income, 50% of the income should have been added by the learned tribunal which has not been added.

7. Learned counsel for the appellants has submitted that this case is covered by the judgment of this Court in Smt. Meenakshi Srivastava and others vs. Dhiraj Pandey and others , 2022 LawSuit All.247.

8. Learned counsel for the appellants has cited the following judgments so as to substantiate his written arguments:-

9. Learned counsel for Insurance Company vehemently objected the submissions made by appellant and further submitted that learned tribunal has considered each and every aspect while awarding compensation and has awarded just compensation. Hence, the impugned judgment does not call for any interference by this Court.

10. The facts as revealed which are not disputed are that the vehicle in question was involved in the accident is accepted by the owner of the said vehicle. The decision of this Bench in Ranjeet Singh v. The Oriental Insurance Co. Ltd. and others., First Appeal From Order No.1902 of 2010 decided on 04.03.2022. The judgment of this Court in Deen Dayal and others v Nishan Singh and others , First Appeal From Order No.1556 of 2002 decided on 23.3.2022 will also enure for the benefit of the appellant herein. The judgment of Prabha Sharma and others v. The New India Assurance Co. Ltd. and others , First Appeal From Order No.3602 of 2021 dated 24.09.2021 will also enure for the benefit of the owner. In our case, it is also accepted that the accident having taken place.

11. In Vinita Kesarwani and others v. The Oriental Insurance Co. Ltd and others , First Appeal From Order No.316 of 2012 decided on 01.04.2022 which judgment penned by one of us also will apply for the benefit of the appellants. In this backdrop, can it be said that the finding of the learned tribunal while rejecting the claim petition that it was not proved that vehicle was involved and that the appellants did not specify in which hospital the deceased was first moved for treatment. The second ground of rejection by the tribunal is that the First Information Report was belatedly lodged. The factual scenario as it goes enumerates that deceased after meeting with the accident was hospitalized, the family so busy looking after the injured so as to see that he survives, he was advised to be shifted from one hospital to another and the FIR was lodged immediately on his breathing last at the place of accident having taken place. The tribunal has not taken a holistic view of the beneficial piece of legislation.

12. The FIR cannot be said to be belated and holding that filing of charge sheet is not conclusive proof also belies the decisions of the Apex Court in catena of judgments. This Court time and again has held that filing of charge sheet is prima facie proof of accident having taken place. The charge sheet was laid and, therefore, it cannot be said that it was not proved that the vehicle was not involved in the accident, this hyper technical finding of fact cannot be accepted.

13. The burden of proof as far as motor accident claims cases are concerned, the civil jurisdiction that the tribunal should not go by what a known as strict proof of civil evidence rather filing of an FIR sine qua non for filing claim petition.

14. The eye witnesses have categorically mentioned that the accident took place. The two decades old judgment of the Himachal Pradesh reported in Brestu Ram v. Anant Ram & others , 1990 ACJ 333 (HP) and the decision of this Court in F.A.F.O. No.2190 of 2010 (All), ICICI Lombard General Insurance Co. Ltd v. Smt. Reena Tyagi and ors. and also the judgment of Mangla Ram (supra) will apply in full force and the claim petition could not have been dismissed in the manner in which the tribunal has dismissed the same.

15. The evidence of PWs-2 and 3 have been brushed aside, the evidence of PW-1 and 3 is very important just because the documentary evidence of Prabhu Hospital is not filed, it cannot be said that the accident has not taken place. The judgment of Jai Prakash (supra) would apply in full force just because the number of vehicle was not mentioned by the informant will not make any difference of the Apex Court in Jai Prakash (supra) ought to have been applied by the learned tribunal and just because some persons did not inform the police about the number of the Car does not make it a doubtful propositions. The learned tribunal in its order to dismiss the claim petition as proceed the entire investigation papers, namely, post mortem report will goes to show that injuries were because of the accidental injuries, there were medical reports which were filed of several hospitals.

16. Paragraph 4 of the judgment itself is self contradictory, once the owner who is respondent no.2 files his reply can it be said that it is not proved that the accident occurred with the involvement of EON Car.

17. This takes us to the next issue orally mentioned by counsel for the State that the tribunal has not decided the issue of negligence. They may be permitted to raise even the issue of negligence if this Court comes to the conclusion that the vehicle was involved in the accident. We have permitted to same in view of propositions of Order 43 Rule 1 of the Code of Civil Procedure .

18. As far as the liability of the insurance company is concerned, while deciding issue No.2, the driving licence is found to be valid, the policy was produced and it is proved that the vehicle was insured on the said date of accident.

19. As far as issue No.4 is concerned, as the tribunal has held that against the claimants for issue No.1, it did not grant any compensation. The inquest report and the post mortem report are substantive piece of evidence and absence of rebuttal evidence being brought on record, the tribunal should not have decided the matter in the manner it has done.

20. As the issue of negligence is raised by Insurance company in this appeal contending that as this is a statutory appeal, the insurance company can raise objection even without filing appeal, would have to be decided, who was negligent whether the deceased had contributed in the accident having taken place will have to be evaluated on the fact and circumstances of the case.

21. The term Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate 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. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.

22. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at 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 conclusion that vehicle was being driven by him rashly as well as negligently.

23. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.

24. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. 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 principle of social justice should have any meaning at all.

25. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855 . New situations and new dangers require new strategies and new remedies.

26. In the light of the above discussion, we are of the view 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/s. State of Punjab, 2005 0 ACJ(SC) 1840).

27. 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.

28. The next issue which arises is that the matter has remained pending for long, the record and proceedings are before this Court and the matter whether be remanded to the Tribunal or decided here? The answer is in the affirmative as per the judgments of the Apex Court in Bithika Mazumdar and another Vs. Sagar Pal and others , (2017) 2 SCC 748 and of this Court in F.A.F.O. No. 1999 of 2007 (Oriental Insurance Company Limited vs. Smt. Ummida Begum and others) and in F.A.F.O. No. 1404 of 1999 ( Smt. Ragini Devi and others Vs. United India Insurance Company Limited and another ) decided on 17.4.2019 where in it has been held that if the record is with the appellate Court, it can decide compensation instead of relegating the parties to the Tribunal.

29. We are fortified in our view by the decision of the Apex Court in Anita Sharma vs. New India Assurance Co.Ltd. , 2021 (1) SCC 171, in which it is held that standard of proof in claim petition under Motor Vehicles Act, 1988 cannot be equated with the standard of proof as it is in civil or criminal law. There is not requirement to decide the issue of accident in claim petitioners that it should be proved beyond all reasonable, but the standard of proof is much lesser and it should be decided on the basis of preponderance of probabilities keeping in mind the intent of legislature as this is benevolent piece of legislation.

30. The Division Bench of Madras High Court also held in Reliance General Insurance Co. Ltd. Vs. Subbulakshmi and Others , passed in C.MA. No. 1482 of 2017 [C.M.P. No. 7919 of 2017. (CMA Sr. No. 76893 of 2016)] has referred the case of Puspabai Purshottam Udeshi Vs. Ranjit Ginning and Pressing Co., 1977ACJ 343 (SC), in which it is observed that the normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident 'speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the management of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care.

Compensation :

31. Having heard learned counsels for the parties and considered the factual data, the accident occurred on 6.3.2015 causing death of Jitendra Singh who left behind him his wife, two sons, one daughter and mother. The Tribunal has not assessed the income of the deceased as per facts proved required to be granted to Rs.28,528/- per month. The age of the deceased was 30 years. Hence in the light of the judgment of Pranay Sethi (supra), 50% would be added as future loss of income.

32. In the judgment of Vimal Kanwar and others v. Kishore Dan and others , AIR 2013 SC 3830, the Hon'ble Apex Court held that it would be reasonable to say that a person who is self employed or is engaged on fixed wages will also get 50% increase in his total income for a period of time. Hence, 50% of the income shall be added for future loss of income. The appellant was of 30 years of age, hence multiplier of 17 would be applicable. There are five dependents on the deceased, hence 1/4 would be deducted for personal expenses in the light of the judgment of Sarla Verma Vs. Delhi Transport Corporation , (2009) 6 SCC 121.

33. As far as beneficial piece of legislation is concerned, the strict rules of Civil Procedure Code and Evidence Act are not required to adhered to.

34. In this backdrop we evaluate the income in view of the judgment of National Insurance Company Limited Vs. Pranay Sethi and Others , 2017 0 Supreme ( SC) 1050, Sarla Verma Vs. Delhi Transport Corporation , ( 2009) 6 SCC 121 and Kurvan Ansari Alias Kurvan Ali v. Shyam Kishore Murmu , 2010 (0) AIJEL SC 67995, the recalculation of compensation would be as follows:

35. As far as issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Apex Court in National 7 Insurance Co. Ltd. Vs. Mannat Johal and Others , 2019 (2) T.A.C. 705 (S.C.) wherein the Apex Court has held as under :

36. We deem it fit to rely on the judgment of the Apex Court in the case of A.V. Padma and others Vs. R. Venugopal , 2012 (3) SCC 378 wherein the Apex Court has considered the judgment rendered in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas and others , AIR 1994 SC 1631 for disbursement.

37. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma (supra), the order of investment is not passed because claimants are neither illiterate nor rustic villagers.

38. Recently the Gujarat High Court in case titled the Oriental Insurance Co. Ltd. v. Chief Commissioner of Income Tax (TDS), R/Special Civil Application No.4800 of 2021 decided on 05.04.2022, it is held that interest awarded by the tribunal or appellate court under Section 171 of Motor Vehicles Act is not taxable under the Income Tax Act , 1961

39. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunal shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and judgment of A.V. Padma (supra), the same is to be applied looking to the facts of each case.

40. In view of the above, both the appeals are partly allowed. Judgment and award passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount of Rs.68,17,176/- within a period of 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.

41. Record be transmitted to tribunal.

42. The Tribunal shall follow the guidelines issued by the Apex Court in Bajaj Allianz General Insurance Company Private Ltd. v. Union of India and others vide order dated 27.1.2022, as the purpose of keeping compensation is to safeguard the interest of the claimants. As 7 years have elapsed since occurrence of accident, the amount be deposited in the Saving Account of claimants in Nationalized Bank. The amount shall be credited in the said account with without investment as the case may be.

43. We are thankful to learned counsels for the parties for ably assisting this court in getting this old appeal disposed of.

Order Date :- 08.08.2022 A.N. Mishra