Rama Shanker Sharma & Others vs U.P.S.R.T.C. Thru. Regional ...
2017 Latest Caselaw 7816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 

 
A.F.R.
 
Judgment Reserved on 08.11.2017
 
Judgment Delivered on 08.12.2017
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1092 of 2004
 

 
Appellant :- Rama Shanker Sharma & Others
 
Respondent :- U.P.S.R.T.C. Thru. Regional Manager
 
Counsel for Appellant :- V.B.Kesharwani,Nigamendra Shukla
 
Counsel for Respondent :- Kuldeep Kumar,Ramanuj Pandey,S.K.Mishra
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered By Saral Srivastava, J.)

The claimant/appellant has preferred the present appeal challenging the judgment and order dated 09.01.2004 passed in Motor Accident Claims Tribunal, Court No.- 4 Bulandshahar whereby the Tribunal has awarded Rs. 50,000/- under Section 140 of the Motor Vehicles Act.

The claimant/appellant instituted the claim petition stating therein that Sanjay Shanker Sharma was waiting for a Bus at about 6:00 P.m. near the roadways Bus stand, Bulandshahar and he was hit by Bus No- U.P. 14-N-1596 driven by its driver rashly and negligently. Sri Sharma suffered injuries in the accident and died. He was working as ''Officer (Commercial)' in Mill India Ltd. and was drawing a salary of Rs. 8,000/- per month. The claimant/appellant prayed for compensation of Rs. 20,80,000/-.

The respondent U.P.S.R.T.C. filed a written statement wherein it has admitted the factum of the accident. It was further stated in the written statement that the Bus was driven carefully, and as soon as the Bus reached the gate of the Bus Stand, the passengers waiting for the Bus tried to enter the Bus through windows, and in the process the glass of one of the windows broke and the deceased came under the wheel of the Bus due to his own negligence. The respondent stated that the compensation prayed for by the claimant/appellant is on the higher side. The respondent prayed for dismissal of the claim petition.

On the basis of the pleadings between the parties the Tribunal framed several issues. Issue no.-1 and 2 is with regard to the negligence of the deceased as well as driver of the Bus in the accident, and issue no.- 3 with regard to the quantification of compensation.

The Tribunal on the issue of negligence has considered the testimony of the witnesses of the claimant as well as testimony of witnesses of the respondent, and came to the conclusion that the claimant/appellant had failed to establish the negligence of the driver of the Bus in the accident. Interestingly, the Tribunal also held that it was not established that the accident was a result of the negligence of the deceased himself. Thus, as per the finding recorded by the Tribunal there was no negligence of the driver of the Bus or the deceased in the accident. On the issue of quantification of compensation, the Tribunal held that since there was no fault or negligence of the driver of the Bus in the accident therefore, Tribunal awarded a compensation of Rs.50,000/- under Section 140 of the Motor Vehicles Act.

The counsel for the appellant has urged that the finding of the Tribunal that the driver of the Bus was not negligent in the accident is based on a misreading of evidence. He submits that the father of the deceased Rama Shanker Sharma (PW-1) was an eye witness of the accident, and he had deposed before the Tribunal that the accident was the result of rash and negligent driving of the driver of the Bus. He submits that PW-1 had denied the fact that his son tried to enter the Bus through the window and as the glass of the window broke down, his son fell down and came under the Bus. The counsel for the appellant further submits that Ishwar Singh (D.W.-1) the driver of the Bus, in his testimony has categorically stated that when the Bus stopped, the passengers tried to enter the Bus through the window, and after some time he came to know that somebody had died. The submission of the learned counsel for the appellant is that even, if presuming without admitting the case of the respondent that the deceased tried to enter the Bus through a window, the fact remains, as is evident from the testimony of D.W.-1, that the deceased tried to enter the Bus through the window, when the Bus was stationary, and thereafter the driver suddenly had put the Bus in motion. In view of the testimony of D.W.-1, it is evident that there was negligence of the driver of the Bus in the accident inasmuch as once he had stopped the Bus, and he knew that the passengers are entering the Bus, he should have been careful in putting the Bus in motion again. Thus, it is evident from own case of the respondent that the driver of the Bus was also negligent. Therefore, in the facts of the present case, negligence of the driver of the Bus in the accident should be fixed to the extent of 50%.

On the quantification of compensation, he submits that the claimant had filed a certificate of salary of the deceased in the form of a notarized affidavit of S.R. Binyani Director, Finance of Mill India Ltd.(paper no.-214/1) which proved that the deceased was getting a salary of Rs. 8,000/- P.M.. He further submits that S.R. Binyani, Director, Finance by letter dated 24th September, 2007 (Paper No.- 214/1) addressed to Additional District Judge, Bulandshahar authorized Sri K.M. Shankar Nambiar to submit necessary information to the Court. Being authorised by the Director, Finance ,Mill India Ltd., K.M. Shankar Nambiar appeared as P.W.-2  and proved the salary certificate indicating the salary of deceased Rs. 8,000/- per month. Thus, the counsel for the appellant submits that the income of deceased was proved inasmuch as there was no evidence led by respondents contradicting or rebutting the salary certificate and the testimony of P.W.-2 with regard to the salary of the deceased. He further submits that the deceased was on fixed income and therefore, claimants are entitled to 40% towards future prospect as the age of the deceased was 34 years on the date of accident. The counsel submitted that the claimants are 6 in number, and therefore, 1/4th should be deducted towards personal expenses of the deceased for computing the compensation. He also submitted that the claimants are also entitled to Rs. 15,000/ towards funeral expenses, Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards loss of estate. The counsel for the appellant has placed reliance upon a Constitution Bench Judgment of the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Others in Special Leave Petition (Civil) No. 25590 of 2014 decided on 31.10.2017 on the issue of grant of future prospect, deduction towards personal expenses of deceased, award under conventional heads namely funeral expenses, loss of consortium and loss of the estate.

Per Contra, the counsel for the respondent has urged that D.W.-1 has categorically stated that the passengers had tried to enter the Bus through windows, and he came to know that somebody had died when the window was broken. He submits that the window was not a passage to enter into the Bus, and one can go into the Bus only through the entry gate of the Bus. Thus, in the facts of the present case as is evident from the record that the deceased was trying to enter the Bus through a window, the deceased himself was negligent and solely responsible for the untoward incident, and therefore, the finding of the Tribunal that there was no negligence of the driver of the Bus in the accident is correct and based on proper appreciation of facts on record. On the issue of quantification of compensation the counsel for the respondent submitted that the compensation of Rs. 50,000/- awarded by the Tribunal is just and proper in the facts of the present case. The counsel for the respondent further submitted that the claimants have utterly failed to prove the income of deceased. 

We have heard rival submissions of the parties and perused the record of the appeal as well as the original record of the claim petition. We find from the record of the case that driver of the Bus had stated that when the Bus stopped, passengers began to enter the Bus through the window, and this fact had been corroborated by the testimony of Dw-2 who had stated that the Bus was stationary near the gate when the passengers started entering the Bus through window. Thus, from the testimony of DW-1 and DW-2, it is established that the Bus was stationary when the deceased tried to enter the Bus through the window, and the driver of the Bus had suddenly put the Bus in motion due to which the deceased fell and came under the Bus. Thus, it is evident that the driver of the Bus was also negligent in the accident inasmuch as once he had stopped the Bus, he should have been careful when he had put the Bus in motion, and had he taken proper care, the accident could have been avoided. Thus, in the facts of the present case as is evident from the record, the driver of the Bus was negligent in the accident. We find from the record that the deceased was also negligent inasmuch as the deceased should not have tried to enter the Bus through the window. Therefore, in the facts of the present case, we hold the negligence of the driver of the Bus and the negligence of the deceased to be in equal proportion, and accordingly the finding of the Tribunal that the driver of the Bus was not negligent in the accident is set aside. Consequently, we hold the negligence of the driver of the Bus in the accident to the extent of 50%.

The Tribunal had not decided the issue of quantification of compensation on the ground that the issue of negligence was decided against the claimant. Normally, we would have remanded the matter to the Tribunal for the determination of compensation, but we cannot loose sight of the fact that the accident had taken place in the year 2003, and more than 14 years have passed. The claimants have not received any compensation. Since we are hearing the appeal, and the appeal being a continuation of the original proceeding, therefore, we can decide the issue of compensation as parties have led evidence before the tribunal regarding income of deceased. We find from the record that the claimants had filed salary certificate, bank statements of deceased which was proved by Pw-2. The respondent U.P.S.R.T.C. had ample opportunity to rebut the evidence of claimant regarding income of the deceased, but no evidence was led by them in this regard. Thus, in this backdrop, we proceed to decide issue of compensation.

The claimants have filed the salary certificate in the form of a notarized affidavit of S.R. Binyani, Director,Finance, Mill India Ltd. indicating the salary of deceased to be Rs. 8,000/- per month. The salary certificate was duly proved by Pw-2 K.M. Shankar, and in the absence of any evidence to the contrary to contradict the evidence led by claimants regarding income of the deceased, we hold that the deceased was drawing a salary of Rs. 8,000/- per month .

Further in view of the judgment of Apex Court in National Insurance Company (Supra), we hold that the claimants are entitled to 40% future prospect and multiplier of 16 should be applied for computing the compensation as the age of the deceased was 34 years on the date of the accident. We also provide that 1/4th should be deducted towards personal and living expenses from the salary of the deceased.

We also award Rs. 15,000/- towards funeral expenses, Rs. 40,000/- towards loss of consortium and Rs. 15,000/- towards loss of estate following the dictum of Apex Court in the case of National Insurance Company (Supra) . The compensation is computed as follows:

S.I. No.

Heads

Calculation

(I)

Salary

Rs.8,000/- per month

(ii)

Less 50% of salary for negligence of deceased

(Rs.8,000 - 4,000 = Rs.4,000/- P.M.)

(iii)

Salary of deceased for computation of compensation

Rs.4000/-

(iv)

50% of(iii) above to be added as future prospect

(Rs.4,000+Rs.2,000 = Rs.6,000/-

(v)

1/4th of (iv) to be deducted towards personal expenses

(Rs.6,000 -Rs.1,500)= Rs.4,500/-

(vi)

Compensation after multiplier of 16 is applied

(Rs.4,500 X 12 X 16) Rs.8,64,000/-

(vii)

Loss of consortium

Rs.40,000/-

(viii)

Loss of estate

Rs.15,000/-

(ix)

Loss of Funeral Expenses

Rs.15,000/-

Total Compensation Awarded.

Rs.9,43000/-

Out of the compensation awarded, Rs.50,000/- will be paid to the mother Smt. Kailashi Devi and father Rama Shanker Sharma, Rs.4,43,000/- will be paid to the widow Smt. Sunita Sharma, and Rs.1,00,000/- will be paid to each of the appellants Nishant Shanker Sharma, Km. Chavvi Sharma and Pappu.

We also provide that the claimants are entitled for 7% interest on the amount of compensation from the date of institution of the claim petition.

Accordingly, the order of the Tribunal dated 09.01.2004 is set aside and the appeal is partly allowed to the extent indicated above. The respondent U.P.S.R.T.C. is directed to pay the compensation to the claimants/appellants within a period of three months after adjusting the amount, if any, already paid to the claimants/appellants.

There shall be no order as to costs.

Order Date :- 08.12.2017

Israr