U.P. Roadways vs Smt. Vijay Devi And Ors.
2007 Latest Caselaw 1038 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Appellant, Uttar Pradesh Roadways challenges the award dated 5.10.1993. Vide CM No. 779/1994, claimants have filed cross objections praying that compensation awarded be enhanced.

2. On 10.6.1987, the deceased Gauri Shankar traveling on his two wheeler scooter met with a road accident involving bus No. UGP-4485 owned by U.P. Roadways Corporation. He died.

3. Claimants filed claim petition under Section 110-A read with Section 92-A of the M.V. Act, 1939 claiming compensation in sum of Rs. 4 lacs on account of death of the deceased in the said road accident.

4. Parties were at variance as to the manner in which the accident in question took place.

5. Case set up by the claimants was that accident in question occurred when deceased who was driving his two wheeler scooter was hit from behind by the bus driven by Sadiq Hussain, respondent No. 2.

6. owner and driver of the bus on the other hand pleaded that accident occurred when the deceased who was moving between private bus and their bus tried to overtake the private bus but in the process struck the private bus and fell from his scooter behind their bus. They further pleaded that due to the impact of the fall, deceased sustained injuries and died. They denied their involvement in the accident.

7. To prove their version, the claimants examined Shri Krishan Gopal, PW-1 and Shri Madho Ram, PW-6 who claimed to be eye witnesses to the said accident. Driver and owner of the bus examined the driver of the bus as RW-1 to prove their version.

8. Tribunal disbelieved the testimony of Shri Krishan Gopal, PW-1 for the reason his presence at the time of the accident was not proved. However, Tribunal believed the testimony of Madho Ram, PW-6. Testimony of the driver of the bus was rejected holding that he was an interested witness.

9. Relying upon the testimony of Madho Ram, PW-6, Tribunal has held that the accident in question was caused due to rash and negligent act of the driver of the bus bearing No. UGP-4485.

10. Aggrieved by the said finding of the Tribunal, appellant U.P. Roadways have filed the present appeal.

11. Learned Counsel for the appellants contended that Tribunal erred in relying upon the testimony of Madho Ram, PW-6 and rejecting the testimony of the driver of the bus.

12. Testimony of Madho Ram, PW-6 is pitted against the testimony of driver, RW-1. Word of mouth of an independent witness is pitted against word of mouth of an interested witness.

13. It is a principle of law of evidence that testimony of an interested witness needs to be scrutinized more carefully than that of an independent witness for there is greater possibility of taint in the testimony of an interested witness.

14. After appreciating respective testimonies of Madho Ram, PW-6 and driver, RW-1 and noting above mentioned principle, Tribunal believed the testimony of Madho Ram, PW-6 and came to the conclusion that accident in question was caused due to rash and negligent act of the driver of the bus bearing No. UGP-4485.

15. It is a settled principle of law that an appellate court has no power to reappreciate the evidence unless the finding of the trial court is perverse or against the rules of justice.

16. After analyzing the respective testimonies, Tribunal has attached more importance to the testimony of Madho Ram, PW-6. Therefore, the finding of the Tribunal which is arrived at after appreciation of evidence cannot be faulted with.

17. Be that as it may, I note a relevant fact which suggests that the accident in question was caused due to the rash and negligent act by the driver of the bus bearing No. UGP-4485.

18. It is not in dispute that after the accident, it was the driver of the bus who had taken the deceased to the hospital.

19. Driver of the bus in his testimony as RW-1 had deposed that deceased after being struck by the private bus had fallen behind the bus which he was driving. If that had been the case, there was no reason for the driver of the bus to stop the bus and to take the deceased to the hospital.

20. Driver had tried to explain his act of taking the deceased to the hospital by deposing that people who were present at the time of the accident misunderstood that accident was caused by him and forced him to stop his bus and to take deceased to the hospital. If the private bus was also involved in the accident as deposed by the driver of the bus, then people would have stopped the private bus as well.

21. In my opinion, the fact that driver of the bus had taken deceased to the hospital leads to an inference that the accident in question was caused due to the rash and negligent act of the driver of the bus.

22. In view of above discussion, I uphold the finding of the Tribunal that accident in question was caused due to rash and negligent act of driver of bus bearing No. UGP-4485.

23. Vide award dated 15.10.1993, learned Tribunal awarded compensation in sum of Rs. 2,01,600/- to the claimants of the deceased.

24. Aggrieved by the amount of compensation awarded by the learned Tribunal, claimants have filed the cross-objections, i.e. CM No. 779/1994.

25. Relevant facts necessary for adjudication of said issue are as follows:

(a) Deceased was aged 43 years as on the date of the accident.

(b) He was survived by his wife, 3 minor sons and one minor daughter.

(c) He was employed as ASI in Delhi Police and was drawing a salary of Rs. 1878/- per month at the time of the accident.

(d) Deceased had another 14 years of service left at the time of his death in the accident.

26. Taking salary of the deceased as Rs. 1878/- per month and deducting 1/3rd for his personal spending, loss of dependence has been determined by the Tribunal at Rs. 1200/- per month. Applying multiplier of 14, total compensation has been determined at Rs. 1200 x 12 x 14 = Rs. 2,01,600/-.

27. A perusal of the award shows that the award is faulty on 2 counts.

28. By virtue of recommendations of Vth Pay Commission in the year 1996, pay scales of the government employees were revised. It is a reality that pursuant to recommendations of Vth Pay Commission, salaries of the government employees have considerably increased. Considering that the deceased was in a stable government job, Tribunal ought to have considered the prospects of future increase in the income of the deceased while determining loss of dependence.

29. No evidence has been led to show the increments in salary which were to be earned by the deceased. However, considering that deceased would have got the benefit of Vth Pay Commission, I consider it reasonable to assume that salary of the deceased would have increased by 2.5 times by the time he would have left gainful employment. Thus, mean average income of the deceased comes to Rs. 4225/- per month. (Rs.6573 + Rs. 1878 ÷ 2 = Rs. 4225/-)

30. Noting the extended family of the deceased and the fact that all his children were minor, deduction of 1/3rd made by the Tribunal for the personal spending of the deceased is excessive. In so holding, I note the principle, larger is the family, less is the presumed expenses on self and the second principle that lesser is the income, less is the presumed expenses on self. I consider deduction of 1/4 the for the personal spending of the deceased as appropriate. Thus, loss of dependence comes to Rs. 3,169/- per month.

31. Considering that deceased was aged 43 years at the time of the accident, multiplier of 14 is on the higher side. In so holding, I note the undermentioned judgments:

(i) U.P. State Road Transport Corporation v. Krishna Bala and Ors.

(ii) Managing Director, TNSTC Ltd. v. K.I. Bindu .

(iii) T.N. State Transport Corporation Ltd. v. S. Rajapriya .

(iv) Municipal Corpn. of Greater Bombay v. Laxman Iyer .

(v) State of Haryana v. Jasbir Kaur .

(vi) New India Assurance Company Ltd. v. Smt. Kalpana and Ors.

(vii) New India Assurance Co. Ltd. v. Satendar and Ors. .

32. On the basis of aforenoted judgments, I consider of multiplier of 10 as reasonable. Applying multiplier of 10, total loss of dependence comes to Rs. 3,169/- x 12 x 10 = Rs. 3,80,280/-

33. Noting that Tribunal has awarded no compensation under the head 'non-pecuniary damages' and that accident in question took place in the year 1987, I award Rs. 10,000/- under the head 'non-pecuniary damages'. Thus, total compensation comes to Rs. 3,90,280/-.

34. Tribunal has awarded compensation in sum of Rs. 2,01,600/-. Therefore, compensation is further enhanced by a sum of Rs. 1,88,680/-.

35. CM 779/1994 is accordingly disposed of by enhancing the compensation by a further sum of 1,88,680/-.

36. I direct that enhanced compensation shall be paid together with interest at 6% p.a. from date of claim petition till date of realisation. I further direct that enhanced compensation shall be paid only to the widow of the deceased, i.e., Vijay Devi, respondent No. 1.

37. FAO No. 58/1994 is accordingly dismissed as per para 22 above.

38. CM No. 779/1994 is allowed in terms of paras 35 and 36 above.

39. No costs.