Allahabad High Court
Smt. Kusum Lata And 2 Ors. vs U.P.S.R.T.C. And Another on 22 September, 2017
Bench: Satyendra Singh Chauhan, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Court No. - 41
Case :- FIRST APPEAL FROM ORDER No. - 1612 of 2014
Appellant :- Smt. Kusum Lata And 2 Ors.
Respondent :- U.P.S.R.T.C. And Another
Counsel for Appellant :- Arun K. Singh-I
Counsel for Respondent :- Adil Khan,Vishesh Kumar Gupta
Connected With
Case :- FIRST APPEAL FROM ORDER No. - 1549 of 2014
Appellant :- U.P.S.R.T.C.
Respondent :- Kusum Lata And 3 Ors.
Counsel for Appellant :- Vishesh Kumar Gupta, Adil Khan
Counsel for Respondent :- Arun K. Singh-I
Hon'ble Satyendra Singh Chauhan,J.
Hon'ble Krishna Singh,J.
(Delivered by Hon'ble Krishna Singh,J.)
FAFO 1612 of 2014 has been filed by the claimants being aggrieved against the impugned judgment and award dated 5.3.2014 passed by the Motor Accident Claims Tribunal / Additional District Judge, Bijnor in MACP No.23 of 2013 (Smt Kusum Lata and others vs U.P. State Road Transport Corporation & another) awarding compensation to the tune of Rs.16,50,330/- along with 6% interest per annum inter-alia on the ground that compensation awarded by the Tribunal is inadequate and also that the Tribunal has not worked out compensation as contemplated in law.
Per contra FAFO No.1549 of 2014 has been filed by the UPSRTC, owner of the offending roadways bus against the said impugned judgment and award on the ground that compensation awarded by the Tribunal is excessive and also that the Tribunal has not calculated the compensation as contemplated in law.
The facts in short are that on 9.12.2012 deceased Harkesh Singh was going to Syohara from Dhampur by riding on his motor-cycle and when he reached near Village-Jhilla Devra Nursery at about 10:45 A.M., a roadways bus bearing registration No.UP 23-T-2065, which was driven rashly and negligently with a very high speed came from opposite side and dashed motor-cycle as a result of which deceased sustained grievous injuries, thereafter, he was immediately shifted to Government Hospital, Syohara for treatment. Since, the condition of the deceased was very serious, therefore, he was taken to Moradabad by his family members but in the way he died. FIR of the said accident was lodged at Police Station-Syohara, District-Bijnor under Sections-279, 304A and 427 of the Indian Penal Code against the unknown vehicle. After investigation in the case police has submitted the charge-sheet against the driver of the said roadways bus under Sections- 279, 304A and 427 of the Indian Penal Code. Post-mortem of the deceased was conducted by the Doctor. The deceased was aged about 34 years. At the time of accident deceased was posted as Lecturer at Shanti Niketan Institute of Technology, Rahu, Nangli and getting salary of Rs.25,000/- per month. Claimants are the legal representative and dependent of the deceased.
The claim petition was contested by the appellant UPSRTC and driver of the said roadways bus denying the allegations by filing written statement wherein it was pleaded that claim has been filed on false and concocted story. Accident in question had not occured by the rash and negligent driving of the driver of the said roadways bus. It appears that deceased met with an accident from unknown vehicle due to his negligence.
To support allegation made in the claim petition, claimant Smt. Kusum Lata has examined herself as PW-1 and also produced Subhan as PW-2 and Sonu Sharma as PW-3. Claimant has also filed a copy of FIR, charge-sheet, site plan, technical inspection report of the offending roadways bus and motor-cycle, educational certificate, driving license and salary certificate of the deceased.
To support allegation made in the written statement driver of the said offending roadways bus Nazir Ali has examined himself as DW-1.
We have heard learned counsel for the parties and perused the record.
As the controversy involved in these appeals is identical, the same are being heard together and decided by a common judgment and order.
Learned counsel for the claimants has submitted that deceased was aged about 34 years and qualified teacher. At the time of accident, deceased was posted as Lecturer at Shanti Niketan Institute of Technology, Rahu, Nangli and getting salary of Rs.25,000/- per month and his future was bright. While awarding compensation, the Tribunal has not taken into account the future prospects of the deceased and in view of the Rule 220A (3) of UP Motor Vehicles Rules, 1998, 50% compensation towards future prospects ought to have been awarded by the Tribunal. Learned counsel for the claimants has further submitted that it is proved from the evidence available on record that accicent in question had occured due to rash and negligent driving of the driver of the said roadways bus, deceased had not contributed to the accident. Tribunal without considering the case in proper perspective held that there was head on collision, therefore, deceased was also liable for contributory negligence to the extent of 50% and deducted 50% of compensation determined by the impugned judgment and award. Learned counsel for the claimants has further submitted that compensation awarded by the Tribunal is inadequate, the award therefore, is liable to be enhanced.
Per contra, learned counsel for the UPSRTC has submitted that accident in question had not occured due to rash and negligent driving of the driver of the said roadways bus. Deceased met with an accident from unknown vehicle due to his own negligence. FIR of the accident was lodged by the brother of the deceased against the unknown vehicle. It appears that after investigation in the case Police with the collusion of the claimants has submitted the charge-sheet against the driver of the said roadways bus. Learned counsel for the UPSRTC has further submitted that Subhan PW-2 is said to be an eye-witness of the accident, but his name is not mentioned in the FIR as well as charge-sheet. Therefore, reliance should not have been placed by the Tribunal upon the testimony of the said witness. Learned counsel for UPSRTC has further submitted that driver of the said roadways bus Nazir Ali DW-1 has stated in his statement on oath that accident in question had not occured due to his rash and negligent driving. While passing the impugned judgment and award, Tribunal disbelieved the statement of the said witness without cogent reason. Learned counsel has further submitted that impugned judgment and award passed by the Tribunal is liable to be setaside.
The Tribunal on consideration of the materials on record and evidence adduced on behalf of the parties has held that accident in question was a result of contributory negligence. Drivers of both the vehicles were responsible to have contributed equally to the accident. In view of the matter that deceased was also guilty of 50% contributory negligence, the Tribunal found that the claimants are entitled only half of the assessed amount of compensation i.e. Rs.16,43,330/-. Other claims were also awarded by the Tribunal being Rs.2,000/- for funeral expenses, Rs.5,000/- for loss of consortium. Thus a total sum of Rs.16,50,330/- was awarded as compensation to the claimants along with interest at the rate of 6% per annum.
It is not in dispute that after investigation in the case police has submittted the charge-sheet No.13 of 2013 against the driver Nazir Ali DW-1 of the said roadways bus under Sections-279, 304A and 427 of the Indian Penal Code, upon which cognizance has been taken by the concerned Additional Chief Judicial Magistrate. It is evident from the statement on oath of eye-witness Subhan PW-2 and circumstances shown in the site plan prepared by the Police / Investigating Officer that at the time of accident deceased was going Syohara by riding on his motor-cycle on the left side of the road and when he reached near Devra Nursery said roadways bus, which was being driven rashly and negligently with a very high speed coming from opposite side dashed the motor-cycle on 'X' point as a result of which deceased sustained grievous injuries. It is also not in dispute that during treatment deceased succumed to the injuries.
In our opinion, it is abundantly clear from the statement of PW-2 Subhan and site plan that at the time of accident deceased was going on Left side of the road according to traffic rules while driver of the said roadways bus was going on Right side of the road in contravention of traffic rules and it was incumbent upon the driver of the said roadways bus to remain at his left side of the road. Since, it was a case of head on collision and it is not proved from the evidence adduced by the claimants that at the time of accident sincere efforts were being made by the deceased to avoid the accident and deceased was wearing the helmet. In view of the above and considering the entire facts and circumstances of the case, we are of the considered view that accident in question was a result of contributory negligence for which deceased was responsible of 20% contributory negligence and driver of the said roadways bus was responsible of 80% conributory negligence. Therefore, claimants are entitled to get 80% of compensation assessed by the Tribunal / Court. In the facts and circumstances of the case, we feel that finding recorded by the Tribunal in respect of percentage of contributory negligence of deceased and driver of the said roadways bus is not based on proper appreciation of evidence available on record.
It is evident from the record that after investigation in the case, Police has submitted the charge-sheet under Sections- 279, 304A and 427 of the Indian Penal Code against Nazir Ali DW-1, driver of the said roadways bus upon which cognizance has been taken by the concerned Additional Chief Judicial Magistrate. In our opinion Nazir Ali DW-1 is an interested witness, whereas evidence adduced by the claimants in respect of accident is reliable, in view of the above, we find that statement made by Nazir Ali DW-1 in respect of accident is not trustworthy.
It is true that name of the eye-witness Subhan PW-2 is not mentioned in FIR as well as charge-sheet, but testimony of the said witness cannot be discarded on this ground alone because he has no motive to make false statement. In our opinion, he is an independent witness and his statement appears to be trustworthy. Accordingly, we relied upon the statement of the said witness.
It is also true that FIR of the accident in question was lodged against the unknown vehicle but on this ground, we see no reason to discard the claimants version that accident in question had occured due to rash and negligent driving of the driver of the said roadways bus because the informant was not an eye-witness and after investigation in the case Police has submitted the charge-sheet against the driver of the said roadways bus.
It is not in dispute that deceased was aged about 34 years and M.Sc. (Mathematics) MEd. It is also not in dispute that deceased was a qualified teacher and at the time of accident he was posted as Lecturer at Shanti Niketan Institute of Technology, Rahu, Nangli and getting salary of Rs.25,000/- per month. The evidence adduced by the claimants goes to indicate that future of the deceased was bright while awarding compensation, the Tribunal has not taken into account the future prospects of the deceased. In view of Rule 220-A (3) of Uttar Pradesh Motor Vehicle Rules, 1998, we are of the considered view that 50% of the actual salary ought to have been added in the salary income of the deceased by the Tribunal for awarding future prospects of the deceased. We accordingly provide that 50% of actual salary should be added in the salary income of the deceased towards future prospects.
In order to appreciate the controversy for determination of compensation we have to advert to the provisions of Rule 220-A of the Motor Vehicles Rules, 1998 as under:-
"220-A Determination of compensation:-
(1) The multiplier for determination of loss of income payable as compensation in all the claims cases shall be applied as per Second Schedule proved in the Act.
(2) Deduction for personal and living expenses of a deceased, shall be as follows-
(i) The deduction towards personal expenses of a deceased unmarried shall be 50%. Where the family of a bachelor is large and dependent on the income of the deceased, the deduction shall be 1/3 (33.33%).
(ii) The deduction towards personal and living expenses of a married person deceased shall be 1/3rd where dependent family members are 2 to 3 in number, 1/4th where dependent family members are 4 to 6 in number and 1/5th where dependent family members are more than 6 in number.
(iii) For the purpose of calculation of number of family members in clause (ii) a minor dependent will be counted as half.
(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under-
(i) Below 40 years of age : 50% of the salary,
(ii) Between 40-50 years of age : 30% of the salary.
(iii) More than 50 years of age : 20% of the salary
(iv) When wages not sufficiently proved : 50% towards inflation and price index.
(4 ) The non-pecuniary damages shall also be payable in the compensation as follows-
(i) Compensation for loss of estate: Rs. 5000 to Rs. 10,000.
(ii) Compensation for loss of consortium: Rs. 5000 to Rs. 10,000.
(iii) Compensation for loss of love and affection: Rs. 5000 to Rs. 15,000.
(iv) Funeral expenses, costs of transportation of body : Rs. 5000 or actual expenses whichever is less.
(v) Medical expenses : actual expenses proved to the satisfaction of the Claims Tribunal.
(5) For determination of compensation in case of injuries, partial or permanent disability provisions of Second Schedule of the Act shall apply:
Provided that the Claims Tribunal may also award compensation for future prospects according to sub-rule (3) in case of permanent disability depending upon the nature, extent and its effect on the future of disabled claimants.
(6) The rate of interest shall be 7% pendente lite and future till the actual payment."
In view of discussion made above and after considering the entire facts and circumstances of the case, we feel that compensation awarded by the Tribunal is inadequate and needs to be enhanced. We are also of the view that FAFO 1549 of 2014 is devoid of merit and is liable to be dismissed.
Accordingly, the compensation payable to the appellants claimants is worked out as under:-
Annual Salary of the deceased Rs.3,00,000/-
Income Tax payable for the (F/A 2012-2013) A/Y (2013-2014)
Income Tax upto Rs.2,00,000/- Nil
From Rs.2,00,001 to Rs.3,00,000/- @ 10% Rs.20,000/-
Add 3% cess on Total Tax Rs. 600/-
Net Tax Payable Rs.20,600/-
(a)
Net annual salary of the deceased (after deduction of Income Tax)
Rs.3,00,000 - Rs.20,600 = Rs.2,79,400/-
(b)
Future prospects ( addition of 50% of actual salary to actual salary income of the deceased)
Rs.1,39,700/-
(c)
Total salary income of the deceased
Rs.2,79,400 + Rs.1,39,700 = Rs.4,19,100/-
(d)
1/3rd deduction towards personal and living expenses of the deceased.
Rs.Rs.4,19,100 - (1/3rd)= Rs.1,39,700
=Rs.2,79,400/-
(e)
Age of the deceased
About 34 years
(f)
Multiplier applied with reference to the age of deceased as per Second Schedule of Motor Vehicles Act, 1988
(g)
Loss of Dependency
Rs.2,79,400 x 17 = Rs.47,49,800/- its 80% is Rs.37,99,840/-
(h)
Compensation for loss of estate
Rs.5,000/-
(i)
Compensation awarded by the Tribunal
Rs.16,50,330/-
(j)
Amount enhanced by this Court
Rs.37,99,840 + Rs.5000 = Rs.38,04,840
-Rs.16,50,330
Rs.21,54,510/-
On the basis of discussion made above we are of the view that FAFO 1549 of 2014 is devoid of merit and is dismissed accordingly.
FAFO 1612 of 2014 is partly allowed by modifying the impugned judgment and award by increasing the compensation awarded from Rs.16,50,330/- to Rs.38,04,840/-. The claimants will be entitled to get enhanced amount of award Rs.21,54,510/- in addition to what is already awarded by the Tribunal along with interest at the rate of 7% per annum from the date of filing of the claim petition till its payment.
The increase in compensation as awarded by us will be taken by claimants. Since, the claimants Km. Jivika Pal and Chitranshipal are minor therefore, the amount of compensation payable to them shall be invested in fixed deposit till they attain majority. The amount of compensation payable to claimant Smt Kusum Lata shall be invested in fixed deposit for a period of three years.
The UPSRTC is directed to pay the enhanced amount of compensation to the claimant along with interest within a period of three months from the date of receipt of copy of this order in the form of account payee cheque.
Parties to bear respective costs.
(Krishna Singh, J.) (Satyendra Singh Chauhan,J.)
Order Date:-22.9.2017
S Rawat
