Balbir Singh vs U.P.S.R.T.C. & Others
2017 Latest Caselaw 2054 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on : 21.03.2017
 
Delivered on : 07.07.2017
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 46 of 2012
 
Appellant :- Balbir Singh
 
Respondent :- U.P.S.R.T.C. & Others
 
Counsel for Appellant :- Jagdish Prasad,Siddharth
 
Counsel for Respondent :- Avanish Mishra,Bhual Vishwakarma,Rakesh Bagga,Sunil Kumar Mishra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard Sri Siddharth, learned counsel for appellant and Sri Avanish Mishra, learned counsel for Insurance Company.

2. Appellant-original claimant who had suffered disability due to accident which took place between bus owned by Uttar Pradesh State Road Transport Corporation (hereinafter referred to as "UPSRTC") and the oil tanker owned by respondent no. 3.

3. Appeal was filed way back in 1987 but was allotted number in 2012. 36 years have passed after the accident took place. The young man is suffering though has now reached his prime in life

4. Appellant has preferred this appeal challenging order dated 4.9.1986 passed by IVth Additional District Judge, Meerut in M.A.C.T. No.47 of 1981 by which an award of Rs. 49,560/- as against a claim of Rs. 1,92,000/-has been passed.

5. Appellant was posted at the Fruit and Vegetable Consumer Cooperative Federation Ltd., New Delhi and he was drawing Rs. 950/- per month as salary and at the time of incident the age of the appellant was 47 years. As a result of accident, he was removed from his job.

6. Facts as narrated are that on 4.9.1980 appellant was going from Delhi to Khatauli in bus no. U.T.G. 9748 owned by opposite party no.1. Vehicle was being driven by opposite party no.2. Bus reached near Diwan Rubber Factory, Meerut at about 3.30. P.M., at that time an oil tanker No. U.S.L. 9791 owned by opposite party no.3 and insured with opposite party no.4 came from opposite direction, drivers of both these vehicles were driving their respective vehicles in a rash and negligent manner, and consequently, both these vehicles collided at that place. The appellant sustained grievous injuries on his right knee. He had to undergo treatment in the All India Medical Institute, New Delhi and at Safdarganj Hospital, New Delhi.

7. Opposite party nos. 1 and 2 pleaded that accident had taken place at about 4.30 P.M. and that there was no negligence on the part of driver of bus no. U.T.G. 9748. Actually driver of oil tanker was driving vehicle in a very rash and negligent manner and he collided with bus. Driver and eight passengers of bus received injuries in this accident. They were brought to P.L. Sharma Hospital, Meerut and were discharged after first aid. Appellant was not injured in that accident. If he had been injured, he would also have been taken to P.L. Sharma Hospital, Meerut and given first aid and compensation of Rs. 1,500/-. The claim is exaggerated. The claimant was not a bonafide passenger in the bus.

8. The opposite party no.3 pleaded that the accident took place on account of rash and negligent driving of the bus driven by opposite party no.2. He pleaded that the driver of the tanker was driving it with due care and caution and it was due to fault of the driver of the bus due to which the accident took place and driver of the tanker died in that accident. The claim made by him is excessive.

9. Opposite party no.4 supported the case of opposite party no.3 in his written statement and further pleaded that the driver of the tanker did not hold a valid driving licence and so the Insurance Company is not liable to pay any amount. Opposite party no.4 admitted that the oil tanker was insured but pleaded that the maximum liability under the insurance policy is limited to Rs. 50,000/- only. It was further pleaded that there was no fault of the driver of the oil tanker and the accident had taken place due to negligence of the driver of the bus but in case it is found to be a case of composite negligence, in that case also the amount of compensation should be apportioned in the ratio of respective negligence of both the drivers.

10. Sri Sunil Kumar learned counsel for UPSRTC has vehemently submitted that Tribunal has committed no error in awarding the compensation. Deduction of 25% from lumpsum amount is also not bad.

11. Sri Sunil Kumar learned counsel for UPSRTC has vehemently submitted that Tribunal has committed no error in awarding the compensation. Deduction of 25% from lumpsum amount is also not bad.

12. Following issues were framed by the tribunal:-

(1) Whether the accident was caused due to rash and negligent driving of tanker no. U.S.L. 9791 or Bus No. U.T.G. 9748 or by both their respective drivers? If so, its effect?

(2) What is the liability, if any, of the two respective drivers of tanker No. U.S.L. 9791 and Bus No. U.T.G. 9748?

(3) Whether the appellant was a bonafide passenger in Bus No. U.T.G. 9748?

(4) Whether the appellant suffer injury, if any, in the accident in question?

(5) Whether the claim is not legally maintainable?

(6) To what amount of compensation, if any, is the appellant entitled and from whom?

13. In issue no.1 and 2 have been held that the accident took place due to the rash and negligent driving of both the vehicles and the drivers and owners of the vehicles are equally liable for the accident.

14. Issue no.3 has been answered in favour of the appellant that he was a bonafide passenger in Bus No. U.T.G. 9748.

15. In issue no. 4 it has been held that inspite of the fact that the right knee cap of the appellant has been removed, he has not been permanently disabled, and he can move without the aid of any other support. It is held that there is certainly some adverse effect of removal of right knee cap upon his efficiency to earn and it is held that there is no permanent disability.

16. As far as issue no.6 is considered, it has been held by Tribunal that the claimant was aged 47 years at the time of the accident, as stated by him in his claim petition. If the accident had not taken place, he would have remained employed upto the age of 58 years. Thus, there has been loss of earnings for 11 years at the rate of Rs. 350 per month which comes to Rs. 46,200/-. After making the deduction of 25% because the amount is being paid in  lump sum, it has been further held that a sum of Rs. 34,659/- should be awarded to the claimant under the head of loss of earnings. This amount also covers the compensation under the head of disability and the appellant is entitled to recover Rs. 34,650+10,000+2500+2500, in all Rs. 49,650 as compensation. 

17. It is not in dispute that as per the recent affidavit filed by appellant that after said accident due to removal of his knee, he has lost his job and is unable to get a job from 1986 till date now he has reached the age of about 79 years and he was even present before this Court.

18. So far as the issue no. 1, 2, 3 and 5 are concerned as answer is in favour of appellant by Tribunal and not brought in challenge before this Court they stand affirmed.

19. Learned counsel for respondent- UPSRTC could not dispute that appellant had sustained injuries due to accident in question.

20. The finding of fact by learned Judge as far as issue no. 4 and 6 has also not been brought in challenge before this Court. The driver of tanker died in accident. The owner of tanker has examined the employer. Babu Lal-DW-2, Ram Kishan-PW-3 and Swaran Singh-PW-4 who had traveling in bus also deposed in favour of petitioner that petitioner was travelling in bus but there was no corroborative evidence who substantiate the stand of UPSRTC and, therefore, without delving further this issue is also answered against respondent.

21. This takes this Court to findings reached about compensation to which claimant is entitled to receive compensation for the injuries caused to him in the accident, but question is what amount should be awarded to him as compensation. He has claimed a sum of RS.1,92,000/- under the following heads :

(1) Permanent disablement 			Rs.50,000/-
 
(2) Loss earnings 				Rs.1,25,000/-
 
(3) Medical treatment				Rs.2,500/-
 
(4) Special diet					Rs.2,500/-
 
(5) Attendant					Rs.2,000/-
 
(6) Pain and sufferings			Rs.10,000/-
 
			Total 			Rs.1,92,000/-
 

22. He has lost his job is evident from his evidence. He was moving before the Trial Court without any help as is apparent from the statement of Dr. Sardar Singh ( PW-1). There has certainly been some loss of efficiency to move on account of removal of knee cap, and though he cannot perform field job, yet he can perform a job in office. Under these circumstances he could get an office job and could earn Rs.500/- to Rs.600/- per month and I am of the view that the loss of earning capacity should be assessed at Rs.350/- per month only keeping into consideration that he could perform the office job and could earn up Rs.600/- per month. The claimant was aged 47 years at the time of the accident as stated by him in his claim petition. If the accident had not taken place, he would have remained employed upto the age of 58 years. Thus, there has been loss of earnings for 11 years at the rate of Rs.350/- per month which comes to Rs.46,200/-.

23. Recently Apex Court in Shiv Kumar M. Vs. Managing Director, Bengaluru Metropolitan Transport Corporation, (2017) 5 SCC 79 has laid down the principles for deciding quantum and the disability of a person who has sustained injuries. Rather functional disability has to be seen on the facts of the case, in this case appellant had knee cap removed which means that the vocation which he was doing, he would in future not be able to undertake and thereby his livelihood as a wage labourer has been taken away. The submission of learned counsel for respondent that for the transport corporation it would be said that the disability was been wrongly assessed . I am enable to accept the same and I am fortified in my view by recent judgment in Lal Singh Marabi Vs. National Insurance Company Ltd., (2017) 5 SCC 82.

24. Thus, the said finding as far as quantum is concerned in view of settled legal position enunciated by Apex Court in Jakir Hussein Vs. Sabir and others, (2015) 7 SCC 252 and the functional disability would have to assessed on the these principles as he was unable to get any job after accident and was terminated. Under the head of pain shock suffering as the accident took place in the year 1987 and due to his prolonged illness which has continued for 36 years and hence according to this Court, this Court feels that adequate compensation under the head of mental shock suffering would be Rs.50,000/-.

25. This takes this Court to fact as to whether it can be said that he had 100% disability if not then and what would be the disability the person who is unable to work can be said to have suffered.

26. The finding of fact goes to shows that he has lost his job. Tribunal held that there is no loss of income, only Rs.350/- per month as he could perform office job is perverse and against the facts as he has not been able to get any job, would permit this Court to award what is said to be 100% functional disability. Rs.900 x 12 x 13 = Rs. 1,17,000/-. Looking to the age of injured as per decision of Supreme Court in Sarla Verma Vs. DTC, (2009) 6 SCC 121 he would be entitled to multiplier 13 and not 11. As per judgment of Jakir Hussein Vs. Sabir and others ( supra) court held that in Raj Kumar Vs. Ajay Kumar, (2011) 1 SCC (Cri) 1161, Apex Court specifically gave the illustration "of a driver who had permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence, the loss of earning is determined by us at Rs.54,000/- per annum. Thus, by applying the appropriate multiplier as per the principles laid down by the Court in Sarla Verma Vs. DTC (supra), the total loss of future earnings of the appellant will be at Rs.54,000 X 16 = Rs.8,64,000".

27. As far as medical treatment is concerned, he is entitled to Rs.25,000/-. So far as other aspect are concerned, this Court awards a lump-sum amount of Rs.25,000/- under the other heads and no deduction of lump sum amount should be deducted from the compensation awardable to claimant.

28. Issue of composite negligence as decided by Trial Court is accepted. Respondent-Insurance Company would pay its proportion along with interest as it has to be paid, if not yet paid.

29. So far as issue of composite negligent is concerned, the finding is not disturbed and if Insurance Company has already deposited its proportion they need not further deposit its liability was only Rs.50,000/-.

30. This takes this Court to grant of interest, Tribunal has not granted interest on the compensation but has made it conditional that if amount is not deposited within time then 9% interest will be paid. This has to be appreciated in the light of recent trend. The Apex Court has recently held that such order could not have been passed which can be termed to be against the mandate of Motor Vehicles Act, 1988 , and therefore, what would be rate of interest will have to be seen.

31. In Neeta Vs The Divisional Manager, MSRTC (2015) 3 SCC 590 where accident took place on 22.03.2011, Court allowed 9% rate of interest and held that interest awarded by Tribunal at 8% was erroneous. Para-11 of the judgment reads as under:-

"The appellants are also entitled to the interest on the compensation awarded by this Court in these appeals at the rate of 9% per annum along with the amount under the different heads as indicated above. The Courts below have erred in awarding the interest at the rate of 8 % per annum on the compensation awarded by them to the Appellants without following the decision of this Court in Municipal Corporation of Delhi, Delhi Vs. Uphaar Tragedy Victims Association and Ors. MANU/SC/1255/2011: (2011) 14SCC 481. Accordingly, we award the interest at the rate of 9% per annum on the compensation determined in these appeals from the date of filing of the application till the date of payment."

32. In Kanhsingh Vs. Tukaram, 2015 (1) SCALE 366 where accident had taken place on 02.07.2006 but tribunal awarded no interest. Court held that this is erroneous and 9 % interest should have been allowed in view of the principles laid down in Municipal Corporation of Delhi Vs Association of Victims of Uphaar Tragedy (2011) 14 SCC 481.

33. In Kalpanaraj and Others Vs Tamil Nadu State Transport Corporation (2015) 2 SCC where accident took place on or before 1994, High Court had awarded interest at the rate of 9 % per annum which was challenged that it is on higher side. Court upheld said rate of interest.

34. In Shashikala and Others Vs Gangalakshmamma and Another (2015) 9 SCC 150, where accident had taken place on 14.12.2006, Court allowed 9 % rate of interest from the date of claim petition till the date of realization.

35. In Asha Verman and Ors Vs Maharaj Singh & Ors, 2015 (4) SCALE 329, High Court awarded interest at the rate of 8 % . Accident took place on 27.11.2016. It was held that 8 % interest is on lower side and it should be 9 %.

36. In Surit Gupta Vs United India Insurance Company (2015) 11 SCC 457, accident took place in July, 1990. Punjab and Haryana High Court had awarded interest at the rate of 6 %. Court held that it is on lower side and it should be 9 %.

37. In Chanderi Devi and another Vs Jaspal Singh and others (2015) 11 SCC 703, date of accident is September 2006 and the incumbent died on 04.10.2006. Court awarded 9 % interest.

38. In Jitendra Khimshankar Trivedi Vs Kasam Daud Kumbhar and Others (2015) 4 SCC 237, incident was on 21.09.1990. Tribunal awarded 15 % interest which was reduced to 12% by Gujrat High Court. Court held that it is on higher side and awarded 9 % interest following its decisions in Amresh Kumari Vs Niranjan Lal Jagdish Parshad Jain 2010 ACJ 551 (SC) and Mohinder Kaur Vs Hira Nand Sindhi (2007) ACJ 2123 (SC).

39. Recently, Courts have held that appropriate rate of interest should be 9%.

40. The award of interest cannot be subject to certain fact contingency and or depending on depositing of compensation or not in time whether the same would be paid within time or not. Compensation would cover with it 9% annual interest, hence on the entire amount, 9% interest from the date of claim petition i.e. 6.2.1981 till date be paid to claimant.

41. In these circumstances, appellant-claimant is entitled to get Rs.2,17,000/- along with interest at the rate of 9% per annum from the date of filing of claim petition. Appeal allowed. Decree be modified.

Order Date :- 7.7.2017

MT**/Mukesh