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Judgment
The present petition is filed against the award dated 03.02.2021 (hereafter ‘the impugned award’) passed by the learned Presiding Officer, Motor Accidents Claim Tribunal, Saket Court, New Delhi in MACT No. 598/2018.
By the impugned award, the learned Tribunal awarded compensation of ₹11,83,371/- to Respondent No. 1 along with @9% interest per annum from the date of filing of the claim petition till the realization.
The brief facts of the case are that on 04.11.2017, at about 8:00 PM, Respondent No. 1 was travelling in a bus and was going to Indraprastha Hotel Meerut from Mavana Meerut. It is alleged that the bus was being driven in a rash and negligent manner. It is alleged that thereafter when the said bus reached near Indraprastha Hotel, and stopped for deboarding of the passengers, Respondent No. 2 drove the said bus while Respondent No. 1 was in the process of alighting the bus.
Consequently, Respondent No. 1 fell down on the road, and the rear wheel of the said bus ran over the right leg of Respondent No. 1. Consequently, Respondent No. 1 sustained grievous injuries in his right leg, and other injuries all over his body. Respondent No. 1 suffered 40% permanent physical disability in relation to his right lower limb.
Subsequently, FIR No. 701/2017 dated 30.11.2017 was registered at Police Station Mavana for offences under Sections 279/337 of the Indian Penal Code, 1860 (‘IPC’) against Respondent No. 2.
The learned Tribunal noted that Respondent No. 1 had deposed regarding the manner of accident and that the accident had occurred due to the negligence of Respondent No. 2. It was noted that no question had been asked from Respondent No. 1 in relation to travelling in the bus without a ticket. It was noted that charge sheet under Sections 279/337 of the IPC had been filed against Respondent No. 2. Consequently, in view of the evidence adduced by Respondent No. 1 coupled with the fact that charge sheet had been filed against Respondent No. 2, the learned tribunal awarded compensation for a sum of ₹11,83,371/- to Respondent No. 1 along with @9% interest from the date of filing of claim petition till its realization.
The learned counsel for the appellant submitted that the learned Tribunal erred in passing the impugned award. He submitted that the accident had occurred due to the negligence of Respondent No. 1, and not due to the failure of Respondent No. 2 to exercise due care and caution. He submitted that Respondent No.1 was travelling without any bus ticket. He submitted that when the conductor of the bus asked Respondent No. 1 to produce the bus ticket, Respondent No. 1, in fear, tried to run away and alighted the bus while it was still moving. He consequently submitted that the accident occurred due the negligence of Respondent No. 1.
In arguendo, the learned counsel for the appellant submitted that some amount of compensation should be deducted on account of the contributory negligence of Respondent No. 1.
He further submitted that the learned Tribunal erred in assessing the function disability of Respondent No. 1 at 20% while calculating compensation. He submitted that Respondent No. 1 was an interior designer by profession, and a 40% permanent disability in his right lower limb does not hinder the livelihood of Respondent No. 1. He consequently submitted that the assessment of loss of future income at 20% functional disability is without any basis.
Per contra, the learned counsel for Respondent No. 1 submitted that the learned Tribunal rightly passed the impugned award. He submitted that the accident occurred due to the rash and negligent driving of Respondent No. 2. He submitted that Respondent No. 2 drove the bus while Respondent No. 1 was in the process of alighting thereby leading to the injuries sustained by Respondent No. 1. He consequently submitted that no ground to warrant an interference with the impugned order is made out and that the present appeal should be dismissed.
Analysis
The appellant has essentially premised his challenge to the impugned award on two grounds:
Since Respondent No. 1 was travelling without a valid bus ticket, and in fear, had alighted from the bus while it was still moving, no liability could have been fastened on Respondent No. 2.
In arguendo, some amount of compensation should have been deducted on account of contributory negligence;
The assessment of 20% functional disability of Respondent No. 1 made by the learned Tribunal is incorrect.
Negligence of Respondent No. 2
It is pertinent to note that while ascertaining the rash and negligent act of the driver, the strict principles of evidence and standard of proof as in criminal trial are not applicable in cases related to motor accident claims. The standard of proof in cases related to motor vehicles claims is one of ‘preponderance of probabilities’ as opposed to ‘beyond reasonable doubt’ in criminal trials. For this reason, while assessing the claim of rashness and negligence, Courts are only required to analyse the material placed on record by both the parties to determine whether the claimant’s version is more likely or not.
In the present case, Respondent No. 1 deposed about the manner of accident and that the same had occurred on account of the rash and negligent driving of Respondent No. 2. The ground taken by the appellant to challenge the impugned award is that since Respondent No. 1 was travelling the bus without any valid ticket, and had himself alighted the bus in haste, no liability could have been fastened on Respondent No. 2 for being rash or negligent.
In the opinion of this Court, the ground raised by the appellant appears to be paradoxical in nature. On one hand, it is the appellant’s entire case that Respondent No. 1 was travelling the bus without any ticket, and had alighted from the bus in fear while the bus was still moving which led to the injuries. However, on the other hand, no evidence has been brought forth by the appellants to corroborate that Respondent No. 1 was travelling the bus without ticket. Furthermore, no suggestion or question had been put forth to Respondent No. 1 that he was travelling in the bus without ticket.
It is pertinent to note that charge sheet had already been filed against Respondent No. 2 under Sections 279/337 of the IPC. This Court is further guided by the decision of the Hon’ble Apex Court in Ranjeet & Anr. v. Abdul Kayam Neb & Anr : Arising out of SLP (C) No. 10351/2019 wherein it was reiterated that the filing of the chargesheet was sufficient to prove the negligence of the driver. The finding of the learned Tribunal that Respondent No. 2 was rash and negligent, therefore, warrants no interference by this Court.
Contributory Negligence
Alternatively, the appellant has urged that some amount of compensation ought to be deducted on account of contributory negligence of Respondent No. 2.
It is trite that in order to establish contributory negligence, some act or omission that materially contributed to the accident ought to be attributed to the person against whom the same is alleged. The Hon’ble Apex Court in Prem Lal Anand v. Narendra Kumar : (2024) 9 SCC 441 while delineating the standard of contributory negligence observed as under:
10.In Municipal Corpn., Greater Bombay v. Laxman Iyer [Municipal Corpn., Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 : 2004 SCC (Cri) 252] , this Court discussed the concept of negligence and its types i.e. composite and contributory, in the following terms : (SCC pp. 736-37, para 6) “6. … Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence.… Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. .… It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable.”
11.This Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak [Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak, (2002) 6 SCC 455 : 2002 SCC (Cri) 1355] observed : (SCC pp. 458-59, para 9) “9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of the defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of a defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd. [Astley v. Austrust Ltd., (1999) 73 ALJR 403 (Aust)] is worthy of quoting: ‘A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.’”
Consequently, in order to establish contributory negligence some act or omission ought to be attributed to the victim to show that such act or omission materially contributed to the accident. As noted above, no evidence had been brought forth to suggest that Respondent No. 1 was travelling the bus without a ticket, and had alighted the bus in haste which led to the injuries. Further, no suggestion was made to the victim that he was travelling the bus without ticket. This Court, thus, does not find any merit in the challenge made by the appellant on this account.
Functional Disability
The only other ground raised by the appellant to challenge the impugned award is that the learned Tribunal erred in assessing the functional disability of Respondent No. 1. Respondent No. 1 undisputedly suffered 40% permanent disability in relation to his right lower limb.
It is contended that Respondent No. 1 himself admitted that he was an interior designer by profession. It is further argued that 40% permanent disability would not come in the way of the earning capacity or livelihood of Respondent No. 1. It has consequently been urged that the learned Tribunal’s assessment of 20% functional disability is incorrect. This Court does not find any merit in the contention raised by the appellant.
It is pertinent to note that in the absence of clear evidence to indicate the impact of permanent disability on the earning capacity of the victim, Courts and Tribunals generally assess the functional disability of the victim to be approximately half of the permanent disability suffered by the victim. For this reason, the Hon’ble Apex Court in the case of Raj Kumar v. Ajay Kumar : (2011) 1 SCC 343 while noting that there existed no clear evidence to indicate the impact of permanent disability suffered by the victim on his functionality and earning capacity, however, considering that the same would impede his smooth functioning, had assessed the functional disability of the body as 25% where the victim suffered a permanently disability of 45% with respect to the left lower limb.
Consequently, this Court in a catena of decisions including a recent decision in the case of Rajender Singh v. Bajaj Allianz General Insurance Co. Ltd. : 2024 SCC OnLine Del 8839 while noting that the victim had failed to lead evidence to show the impact of permanent disability on his earning capacity, however considering the nature of injuries and the general impact of the disability on the functioning of the victim, had upheld the assessment of 33% functional disability where the victim had suffered permanent disability of 66%.
In the present case, it has been urged that 40% permanent disability would not come in the way of the earning capacity or livelihood of Respondent No. 1. It is not disputed that as a consequence of the accident, Respondent No. 1 sustained injuries resulting in 40% permanent disability in relation to his right lower limb. While Respondent No. 1 is stated to be an interior designer, it cannot be denied that the same in addition to requiring intellectual and creative skills would also require some degree of physical mobility. Further, while the avocation does not per se depend on manual labour, this Court cannot lose sight of the fact that as a consequence of the injuries sustained, Respondent No. 1 would face some difficulties in carrying out tasks that would demand prolonged physical activity or mobility. The assessment of functional disability at 20%, in the opinion of this Court, is reasonable and merits no interference.
Conclusion
Upon a consideration of the totality of facts and circumstances, this Court does not find any ground to warrant an interference with the impugned award, and the same cannot be faulted with.
The present appeal is accordingly dismissed. Pending application also stands disposed of.