Delhi Transport Corporation And ... vs Veera Bai And Ors.
1994 Latest Caselaw 564 Del

JUDGMENT

Mohd. Shamim, J.

1. The appellants through the present appeal have taken exception to the judgment and order dated December 8,1980 passed by Shri S.N. Kapur, Judge, Motor Accident Claims Tribunal, Delhi, whereby he made an award in favor of the respondents herein to the tune of Rs. 30,600/- and held the appellants jointly and severally liable to clear the same.

2. It would be necessary to state in brief the facts of the present case in order to fully and properly appreciate the points involved herein. The deceased Wazir Chand on October 11, 1975 was going on a cycle to Irwin Hospital in order to meet and see his daughter-in-law who was admitted over there. While he had almost crossed the Ring Road towards Darya Ganj and reached near Shantivana a bus bearing No. DLP 1932 of Route No. 42, Faridabad--Delhi, hit the cycle of the deceased with such force that the deceased fell on the road at a distance of about 8 feet as a corollary whereof the deceased sustained grievous injuries. His collar bone and chest bone were fractured and he became unconscious. He was removed to the hospital. He did not regain consciousness till his death. The said bus was being driven rashly and negligently by respondent No. 1. Respondent No. 1 stopped the bus only on being pressurised by the passengers of the bus when they raised a hue and cry.

3. The deceased was the husband of respondent No. 1 and father of the other respondents. He was a fruit vendor by profession. His monthly income was Rs. 500/-. He would have lived for 40 years more but for the said accident. Hence, the respondents claimed compensation to the tune of Rs. one lac from the appellants, being the owner and driver respectively of the bus involved in the accident.

4. Appellants Nos. 1 and 2 have put in contest. They traversed all the allegations and averments through their written statements fastening liabilities on their heads. However, it has not been challenged that the deceased Wazir Chand met with an accident on the, aforesaid date and time. It is also not disputed that the respondent No. 1 was driving the above said ill-fated bus. ownership of the impugned vehicle is also not denied. However, according to the appellants, the respondents are not entitled to any amount of compensation.

5. The learned lower Court came to the conclusion that the bus No. DLP 1932 was involved in the accident. Same was being driven rashly and negligently by appellant No. 2 Chaman Lal and the same hit the deceased as a result whereof the deceased sustained injuries and later on succumbed to the same on October 15, 1975. In view of the above, the Court below assessed the compensation amount at Rs. 30,600/- and held the appellants jointly and severally liable to clear the same along with interest at the rate of 6% per annum from the date of the filing of the petition till the realisation of the awarded amount.

6. Aggrieved with the said judgment and award the appellants have come up in appeal before this Court.

7. The respondents filed cross objections to the said appeal. They have assailed the legality and the validity of the impugned judgment through the said cross-objections. According to them, the award is unreasonable and unjustified. The same is contrary to law. They have, as such, prayed for enhancement of the compensation with interest at the rate of 18% p.a.

8. According to the learned Counsel for the appellants, the sheet anchor of the defense version as put forward by Mr. Aggarwal, through his arguments is that the bus bearing No. DLP 1932 was not involved in the accident which led to the death of deceased Wazir Chand. In fact, a truck was responsible for the said accident which flew away from the spot after causing the fatal accident. The award amount is excessive and unjust. The dependency period has been fixed at a much higher side. It could not have been more than five years in the circumstances of the present case.

9. Learned Counsel for the respondents Mr. Verma has urged to the contrary.

10. It is manifest from the arguments of the Counsel for the appellants reproduced above that the appellants want this Court to conclude from the evidence on record that the impugned bus owned by the appellant No. 1 was not involved in the accident. In fact, the accident was caused by a truck which left the spot after doing so. The learned Counsel in order to substantiate the above plea has taken me through the statement of RW1 Shri Chaman Lal who has deposed to the fact that he was on duty on bus No. DLP 1932 on October 11, 1975 and while he was coming from Faridabad to I.S.B.T. he saw a truck coming from the opposite direction near Shantivana. The said truck hit against a cyclist as a corollary whereof he fell down on the road. Some of the passengers from the bus got down at the site of the accident and asked him to remove the injured to the hospital. To the same effect is the statement of RW 2 Shri Prabhu Dayal, Conductor of the bus. The learned Counsel thus wants this Court to infer from the above evidence that the appellants are not at all responsible for the fatal accident and, as such, they could not be held liable to pay any compensation amount.

11. The contention of the learned Counsel appears to be a puerile one to say the least even at the first blush. The appellants herein filed a written statement before the learned Tribunal on February 20, 1978. Surprisingly enough his aforesaid contention does not find a mention therein. Had the respondents been serious with regard to the said plea, they would have admittedly relied upon the same in their written statement. Curiously enough the said plea is found missing there from. Hence it appears to be an after-thought. This is all the more so, when we cast a glance on the reply preferred by appellant No. 2 Chaman Lal to the application of the petitioner under Section 110A of the Motor Accident Claims Act dated October 12,1977. The appellant had stated therein, (vide para 15 of the sad reply) that the accident in fact took place with a truck as it was known later on. It implies thereby that the appellant No. 2 was aware of the alleged factum of the accident of the deceased with the truck as far back as October 12, 1977. The written statement as it has been observed above, was filed on February 20, 1978. Hence had there been any grain of truth in the above said plea it must have been mentioned in the written statement.

12. Furthermore, the appellant No. 2 as per his reply (vide para 15) states that the accident in fact was caused by a truck as he came to know later on. It thus can be inferred from above that the appellant No. 2 is not an ocular witness of the said accident as he came to know with regard thereto later on. The above statement in the reply is contradictory and inconsistent with his statement on oath before the Tribunal inasmuch as according to him, the accident took place before his eyes.

13. Admittedly, it was the appellant No. 2 who took the deceased to the hospital for some distance in his bus and thereafter in a taxi. This conduct of the appellant No. 2 is not that of a reasonable and prudent man viewed in the circumstances of the present case inasmuch as the respondent No. 2 was on duty on the said date i.e. October 11, 1975 on bus No. DLP 1932. He was bringing passengers from Faridabad to Delhi. Had he not been involved in the accident he could not have been pressurised by the passengers of the said bus to take the deceased to the hospital and he himself could not have abandoned the bus to take the deceased to the hospital. He could have very well put forward the excuse that he was on duty and was taking the passengers to the I.S.B.T. This again goes to show and prove that the bus No. DLP 1932 which was being driven by appellant No. 2 was involved in the accident.

14. Moreover, neither RW1 Chaman Lal (appellant No. 2) nor RW2 Prabhu Dayal (Conductor of the bus) was in a position to give out number of the truck. In fact, RW2 Prabhu Dayal has admitted on being cross-examined that he did not note down the number of the truck.

15. PW 7 Man Mohan Kumar has deposed to the fact that he was coming from Faridabad on October 11, 1975 at about 5.30 p.m. by bus No. DLP 1932 of DTC which hit a cyclist near Vijay Ghat. The said bus was being driven, by the respondent No. 2 Shri Chaman Lal at a very fast speed. No suggestion was put to this witness during the course of his cross examination that the accident was not caused by the above said bus. Consequently, his statement goes unchallenged and remains uncontroverter. PW 7 Man Mohan Kumar is an independent witness inasmuch as he is a member of the public. He was traveling at the relevant time by the above said bus. He has in connection therewith placed on record three tickets Ex. PW 7/A, PW 7/C and PW 7/D in order to substantiate his averment that in fact he travelled by the said bus. RW 2 Prabhu Dayal has admitted that the said tickets were issued by him while he was working as a conductor in the above said bus, Thus, there is no iota of doubt that PW 7 Man Mohan Kumar was traveling by the ill-fated bus on the said date, time and place and it was the said bus which caused the fatal accident which resulted in the death of the deceased Wazir Chand.

16. In the above circumstances it can be safely concluded that the impugned accident was caused by the bus bearing No. DLP 1932 which was being driven by the appellant No. 2 and owned by the appellant No. 1.

17. There is another aspect of the matter. It is a well settled principle of law that no amount of evidence with regard to a particular fact, in the absence of a pleading on a particular point, can be taken into consideration and the same is liable to be ignored and cannot come to the rescue of the party raising the said plea. Admittedly, there is no pleading in the written statement that the accident was caused by a truck, hence the evidence with regard thereto cannot be read in evidence in the present case.

18. PW 7 Man Mohan Kumar as already observed above has very categorically stated in his averment on oath that the above said bus was being driven at a very fast speed. The said witness for the best reasons known to the appellants was not challenged on the above point during the course of his cross-examination with the result that his statement on the said point goes unchallenged and remains un-controverter. Needless to say over again as I have already observed above that the said witness is an independent and material witness inasmuch as he was traveling by the said bus at the relevant time. There is absolutely nothing in his cross-examination to render his testimony unworthy of credence.

19. It is manifest from above that the bus was being driven at a fast speed. Now the question is what are the guidelines for the drivers to be observed while driving? I am tempted here to cite-Regulation No. 6 of the Xth Schedule of the Motor Vehicles Act which lays down the guidelines for the drivers to drive on the road. It lays down "The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safely of the persons thereon". Thus, a duty has been cast on the shoulders of drivers to be on their tiptoe and guard, to be vigilant and cautious while driving on the road. They should approach a road intersection, a road junction or a road comer only when they are cocksure of the fact that thereby they will not endanger the safety of the other persons i.e. pedestrians or vehicles plying on the road. Rule 5 of the Traffic Rules Signs and Signals, framed under Delhi Motor Vehicles Rules and Taxation Rules envisages as under:

A clear road shall be no justification for lack of indulgence. The driver of a motor vehicle shall at all times be on the look out for pedestrians or traffic coming on to the road unexpectedly.

20. Admittedly this is not the defense of the appellants that the deceased cyclist was at fault and contributed in any way to the impugned accident. Their defense is simpliciter denial. According to them, the bus in question was not involved in the said accident. The said defense they have miserably failed to substantiate. In view of the above evidence, this Court is of the view that the appellant No. 2 was driving the bus rashly and negligently at a fast speed. He did not observe the proper vigilance which he was under an obligation to observe. He violated the mandatory traffic rules and regulations and, as such, is responsible for the accident.

21. This brings me to the point as to what amount of compensation is to be awarded in the circumstances of the present case?

22. The respondents herein have claimed Rs. one lac by way of compensation. The came amount they have claimed through their cross-objections. In order to find out as to what amount of compensation is to be paid to the respondents, this Court will be called upon to ascertain as to what was the income of the deceased during the relevant period? Admittedly, the deceased was a hawker by profession. He used to sell fruits on a Rehri at Gandhi Nagar, Delhi (vide statement of PW 4 Smt. Veera Bai, PW 5 Bishan Dass and PW 6 Dharamvir). All the above named three PWs have given different versions with regard to the income of the deceased. PW 4 Smt. Veera Bai has deposed to the fact that the deceased was earning Rs. 500/- to Rs. 600/- per month. According to PW 5, Bishan Dass the deceased was earning Rs. 400/- to Rs. 500/- per month. PW 6 Dharamvir, on the other hand, has averred that his father was earning Rs. 500/- to Rs. 600/- per month. Thus, there are different versions with regard to the income of the deceased. In the above circumstances I find that the income of the deceased was Rs. 450/- per month as held by the Tribunal.

23. The next question which arises for determination for the just and suitable compensation to be awarded to the respondents would be as to what was the age of the deceased at the time of his death. The respondents did not put any document on record with regard to the age of the deceased. According to PW 4 Smt. Veera Bai the deceased was 56 years of age at the time of the accident. PW 5 Shri Bishan Dass son of Shri Wazir Chand has got this to say on this point that the deceased was 53 years of age at the time he breathed his last whereas the age of the deceased, according to PW 6 Dharamvir, was 52 or 53 years at the time of his death. PW 7 Dr. Vishnu Kumar on the other hand has given out the age of the deceased as 60 years. Thus, there are different statements and different versions with regard to the age of the deceased. However, the appellants themselves suggested to PW 5 Shri Bishan Dass during the course of his cross examination that the age of his father at the time of his death was 60 years. It thus can be inferred from the said suggestion that the appellants also took the age of the deceased as 60 years at the time of his death. I need not dilate in view of the above, on this point any further. I thus find myself in perfect agreement with the conclusion of the learned Tribunal that the deceased was 60 years of age at the time of his death.

24. Now a days the average age of an Indian is considered to be 70 years. Thus, the deceased would have continued to live and support his family for ten years more but for the accident which was caused by the ill-fated bus. Thus, the dependency often years would be quite just and proper in the circumstances of the present case.

25. It is on the record that S/Shri Bishan Dass and Dhairamvir PW 5 and PW 6, i.e. the sons of the deceased, were not dependent on the deceased for their bread and butter inasmuch as they have started earning during the lifetime of the deceased. It is manifest from above, that the deceased was earning Rs. 450/- per month at the time of his death. He must be spending near about Rs. 50/- on himself and the rest of the amount he must have been spending on his other family members. In view of the above, had the deceased continued to live for ten years more he would have contributed at the rate of Rs. 400/- per month towards the income of his family which will come to Rs. 48,000/-.

26. Now the question which comes to the tip of the tongue is as to whether any deduction is required to be made out of the said amount. The learned Tribunal has deducted at the rate of 15% out of the compensation amount awarded to the respondent vide the impugned judgment on account of lump sum payment and uncertainties of life. To my mind, the learned Tribunal was not justified in doing so. The accident in the instant case took place on October 11, 1975. The claim for compensation was made on December 16, 1975. Since then the respondents have been fighting for the compensation amount. The presents appeal is being decided in the year 1994 i.e. almost after 19 years. The value of the money has been dwindling so rapidly that it is hardly in a position to keep pace with the rising prices. The prices of the essential commodities are soaring with the result that it has become a hard nut to crack to keep one's body and soul together with limited income at one's disposal. I am supported in my above view by the observations of their Lordships of the Supreme Court as reported in Hardeo Kaur and Ors. v. Rajasthan State Road Transport Corporation and Anr. "...that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Motor owners Insurance Co. Ltd. V. .J.K. Modi 1981 ACJ 507 (SC), held that the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago less than quarter of its value when it is received after such a long time. In Manjushri Raha v. B.L. Gupta 1977 ACJ 134 (SC) this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the Courts below were not justified in making lump sum deduction in this case."

27. Furthermore, the Hon'ble Supreme Court was of the view that the Courts while granting compensation must be liberal and magnanimous and not close fisted since in a democratic free country due value should be attached to the life and property of a man. The observations of the Hon'ble Supreme Court on this point can be adverted to with profit as reported in Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC). The determination of the quantum must be liberal, not niggardly since the law values life and. limb in a free country in generous scales. Thus, this Court would decline to make any deductions on account of lump sum payment and other uncertainties of life.

28. The Tribunal while making the award granted interest at the rate of 6% per annum from the date of the filing of the application till the date of realisation. The respondents have claimed interest, on the other hand, at the rate of 18% per annum through their cross objections. It has already been observed above, that there is considerable depreciation in the value of the rupee. The interest rates have also considerably gone up. Thus, it would be just and proper to grant interest at the rate of 12% per annum from the date of application till the date of realisation. To the same effect are the observations of their Lordships of the Supreme Court as reported in Hardeo Kaur and Others (supra). "The Tribunal has awarded interest at the rate of 6% per annum from the date of filing of the application till the date of realisation. In Chameli Watt v. Delhi Municipal Corporation, this Court awarded interest at the rate of 12% per annum from the date of the application. Similarly, in Jagbir Singh v. General Manager, Punjab Roadways 1985 ACJ 645 (SC), this Court enhanced the interest from 6% per annum to 12% per annum. We, therefore, hold that apart from the damages the appellants are entitled to claim interest at the rate of 12% per annum instead of 6% awarded by the Tribunal."

29. In the above stated circumstances the appeal is hereby dismissed with costs. The cross objections are allowed to the above extent only.