Uttar Pradesh State Road ... vs Gajraj Singh & Ors.
2008 Latest Caselaw 1442 Del

*      HIGH COURT OF DELHI : NEW DELHI

                    MAC App. No.368 of 2005

%            Judgment reserved on: 18th August, 2008

             Judgment delivered on:26th August, 2008


Uttar Pradesh State Road Transport
Corporation
(U.P.S.R.T.C) Through its
Regional Manager,
Gaziabad (U.P.)                  ....Appellant

                    Through: Mr.Rakesh Sachdeva, Adv.

                        Versus
1.Gajraj Singh S/o Chiddu Singh

2.Smt.Munni Devi, W/o Gajraj Singh

Both r/o V-151, Arvind Mohalla,
Near Jindal Factory,
Ghonda,Delhi-110053

3.Sh.Vijender Kumar s/o Chotey Lal (driver)
Through Depot Manager,
U.P.Roadways, Loni Depot
Ghaziabad, U.P.                  ...Respondents.
               Through: Mr.Sanjay Mishra, Adv. for
                        respondents 1 & 2.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

MAC App.No.368 of 2005                         Page 1 of 23
 3. Whether the judgment should be reported
   in the Digest?                                            Yes

V.B.Gupta, J.

The appellant who is the owner of offending bus

has filed the present appeal against impugned order

dated 31st January, 2005 passed by Ms.Bimla Kumari,

Judge, MACT, Delhi vide which she awarded

compensation to the tune of Rs.3,40,500/- in favour of

respondent No.2 Smt.Munni Devi, mother of the

deceased.

2. Brief facts of this case are that on 17th March,

2003, deceased was returning to his home on his

bicycle. At about 11.45 A.M., when he reached near

Indrapuri Police Chowki, Sahibabad, a bus UP bearing

No.UP-14B-4854 came from opposite side and firstly, it

hit a scooter No.DL-75-T-5969 and then rammed into

the bicycle of deceased. As a result of the impact, the

deceased fell down on the road and received grievous

injuries and was removed to GTB Hospital where

doctor declared him brought dead. It has been alleged

that this accident was caused due to rash and

negligent driving of the offending bus by respondent

No.3, Vijender Kumar.

3. The appellant as well as driver of the bus filed

their joint written statements before the Tribunal

alleging that the F.I.R. lodged against bus driver is

false and fabricated and there was no fault of the bus

driver in the alleged accident. However, it was

admitted that the respondent No.3, the driver on the

given date and time was driving the bus and the speed

of the bus was hardly 20 km per hour. All of a sudden,

deceased while driving his bicycle in a rash and

negligent manner came from opposite side and struck

against a scooter and then he came in the channel of

the Bus and sustained injuries. The accident occurred

due to negligence of the deceased and it is a case of

contributory negligence.

4. It has been contended by learned counsel for the

appellant that the Tribunal wrongly concluded that the

accident had taken place due to the fault of the bus

driver. It was the deceased who had hit the scooter in

the first instance and thereafter came into the channel

of the bus and, thus, was guilty of contributory

negligence.

5. The other contention made by the learned counsel

for the appellant is that the Tribunal has erred in

taking the annual income as Rs.36,000/- after having

itself observed that the minimum wages rates

applicable to Delhi in the year 1993 was

Rs.2783.90.p.m. In fact, notional income of

Rs.15,000/- per annum as per Second Schedule of the

Motor Vehicles Act, 1988 (for short as „Act‟) should

have been considered for calculating the income of the

deceased.

6. Another contention made by learned counsel for

the appellant is that the Tribunal has wrongly applied

multiplier of 15 whereas, the claimants would have

been dependant on deceased for not more than a

further period of five years considering the fact that

deceased would have been married and had started

living separately in another five years.

7. Lastly, it is contended that the father of deceased

has himself deposed that his another son is labourer

and earning Rs.3,000/- per month and he himself is

earning Rs 3,000/- per month and, thus, the claimants

were not dependant on the deceased.

8. On the other hand, it has been argued by learned

counsel for respondents 1 & 2 that the petition filed

earlier under Section 166 read with Section 140 of the

Act was converted into under Section 163A of the Act

and this question of negligence is not to be gone into

and the compensation and the multiplier has been

given as per the Second Schedule of the Act which is

on the lower side.

9. It is evident from the record that initially this

petition was filed under Section 166 read with Section

140 of the Act and thereafter the claimants got

converted their petition into under Section 163A of the

Act.

10. Section 163A of the Act reads as under;

"163A. Special provisions as to payment of compensation on structured formula basis.

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation.- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant

shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."

11. In Rukmani Devi v. New India Assurance Co.

Ltd. & Anr., III (2008) ACC 68, this Court has

observed as under;

"The provisions with regard to the no fault liability were inserted having regard to the fact that road accidents in India have reached an alarming proportion and in many of the cases it could be noticed that the victims were being deprived of the compensation amount in the absence of proving rash or negligent driving due to inability in producing any independent witness. To come to the rescue of such victims, earlier Section 140 was brought on the Statute book whereby the provision was made to pay a fixed sum of Rs. 50,000/- (through an amendment by Act 54 of 1994 to substitute the amount of Rs. 25,000/- by Rs. 50,000/-) in respect of the death of any person and a fixed sum of Rs. 25,000/- (through an amendment by Act 54 of 1994

to substitute the amount of Rs. 12,000/- to Rs. 25,000/-) is payable in respect of the permanent disablement of any person on the principle of no fault liability. This right given under Section 140 of the Motor Vehicles Act was in addition to the right to claim compensation in respect of any such death or permanent disablement under any other provisions of Act or of any other law for the time being in force. Section 163-A was introduced in the Act again by way of a social security scheme. It would be evident from the objects and reasons of the Motor Vehicles (Amendment) Act, 1994 that after the enactment of 1988 Act several representations and suggestions were made by the State Governments, transport operators and members of public in relation to certain provisions thereof and after taking note of the said suggestions made by the various Courts and the difficulties experienced in implementing the various provisions of the Motor Vehicles Act, the Government of India appointed a Review Committee. The Review Committee appointed by the Government in its report made the following recommendations:

"The 1988 Act provides for enhanced compensation for hit and run cases as well as for no fault liability cases. It also provides for payment of compensation on proof-of-fault basis to the extent of actual liability incurred which ultimately means an unlimited liability in accident cases. It is found that the determination of compensation takes a long time. According to information available, in Delhi alone there are 11214 claims

pending before the Motor Vehicle Accidents Tribunals, as on 31.3.1990. Proposals have been made from time to time that the finalisation of compensation claims would be greatly facilitated to the advantage of the claimant, the vehicle owner as well as the Insurance Company if a system of structured compensation can be introduced. Under such a system of structured compensation that is payable for different clauses of cases depending upon the age of the deceased, the monthly income at the time of death, the earning potential in the case of the minor, loss of income on account of loss of limb etc., can be notified. The affected party can then have the option of either accepting the lump sum compensation as is notified in that scheme of structured compensation or of pursuing his claim through the normal channels. The General Insurance Company with whom the matter was taken up, is agreeable in principle to a scheme of structured compensation for settlement of claims on "fault liability" in respect of third party liability under Chapter XI of M.V. Act, 1988. They have suggested that the claimants should first file their Claims with Motor Accident Claims Tribunals and then the insurers may be allowed six months‟ time to confirm their prima facie liability subject to the defences available under Motor Vehicles Act, 1988.

After such confirmations of prima facie liability by the insurers the claimants should be required to exercise their option for conciliation under structured compensation formula within a stipulated time."

40. The recommendations of the Review Committee and representations from public were placed before the Transport Development Council for seeking their views pursuant whereto several sections were amended. Section 163A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Government from time to time."

12. Section 163B of the Act reads as under;

"163B. Option to file claim in certain cases.

Where a person is entitled to claim compensation under section 140 and section 163A, he shall file the claim under either of the said sections and not under both."

13. The embargo under Section 163B of the Act gives

an option to file claim petition either under Section

140 or under Section 163A of the Act and not under

both the provisions, but no such restriction has been

placed under the Act in choosing either of the two

remedies i.e. under Section 166 of the Act or under

Section 163A of the Act. Section 140 of the Act deals

with grant of interim compensation, but Section 163A

provides for a situation to grant a pre-determined sum

without insisting on a long drawn trial or without proof

of negligence in causing the accident. The said Section

163A was a kind of new mechanism evolved by the

legislature so as to grant quick and efficacious relief to

the victims falling within the specified category, which

was not available to the victims under Section 166 of

the Act.

14. The object of section 163A and the Second

Schedule of the Act is to avoid long-drawn litigation

and to avoid delay in payment of compensation to the

victim or his heirs who needs urgent relief, and

therefore, the Courts have been permitting the

claimants to make application under section 163A of

the Act at any stage of the proceedings, so long as no

order is passed on the application under section 140 of

the Act.

15. The object with which section 163A of the Act has

been inserted and the non-obstant clause with which

sub-section (1) of section 163A of the Act commences

clearly indicate that the legislature did not intend to

prevent the claimant from getting compensation as per

the structured formula merely because in his original

claim petition he had prayed for compensation on the

basis of "fault liability" principle. There is no

prohibition in any provision of the Act against the

claimant praying for compensation as per the

structured formula after his having filed a claim

petition under section 166 of the Act.

16. Remedy for payment of compensation both under

sections 163A and 166 being final and independent of

each other as statutorily provided, a claimant cannot

pursue his remedies there under simultaneously. One

thus, must opt/elect to go either for a proceeding

under section 163A or under section 166 of the Act,

but not under both.

17. Taking a purposive interpretation of Section 163A

of the Act, the clear intendment of the legislation was

to come to the rescue of all those who in the absence

of an evidence are not in a position to file a claim

petition under Section 166 of the Act where death of

the victim or permanent disablement of the victim is

required to be proved by establishing the factum of

negligence involving the offending vehicle resulting in

to causing the accident but under Section 163A, the

requirement of proving the negligence has been

dispensed with.

18. In the present case, since the petition has been

decided by the Tribunal under section 163A of the Act,

the claimants need not prove that the death of the

deceased was caused due to any wrongful act or

neglect or default of the owner of the vehicle or of any

other person. The claimants have only to prove that

their son died in the alleged accident on account of

involvement of offending bus.

19. To prove the involvement of the offending vehicle,

the claimant no.1 has examined himself as PW-1 and

Sh. Ramdhan Singh as PW-3 who has placed on record

the postmortem Ex.PW3/1 of the deceased. The

postmortem report of the deceased shows that body of

the deceased was sent for postmortem with alleged

history of road traffic accident. The cause of the death

as mentioned in the postmortem report is shock due to

anti-mortem injury to head resulting cranio-cerebral

damage produced by blunt force impact. From the

copy of charge sheet Ex.PW1/1 the involvement of the

offending bus in the alleged accident is proved. The

charge sheet has been submitted against Respondent

no.3. From the testimony of PW-1 coupled with the

postmortem report and copy of charge sheet, the

involvement of the offending bus in the alleged

accident is proved. Thus, the contention of the

appellant regarding negligence is rejected.

20. The next question which arises for consideration

is as to what multiplier should be adopted to calculate

the compensation?

21. The Apex Court in the case of U.P. State Road

Transport Corpn. v. Krishna Bala & Ors., III (2006)

ACC 361 (SC), has highlighted the manner of fixing the

appropriate multiplier and computation of

compensation and has observed as under:

"6. Certain principles were highlighted by this Court in the case of Municipal Corporation of Delhi v. Subhagwanti, 1966 (3) SCR 649 in the matter of fixing the appropriate multiplier and computation of compensation. In a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. "How much has the widow and family lost by the father's death?" The answer to this lies in the oft-quoted passage from the opinion of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., All ER p.665 A-B, which says:-

"The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure

which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt."

7. There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance v. British Columbia Electric Railway Co. Ltd., 1951 (2) All ER 448.

8. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In, ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."

Further Court held that;

"10. In regard to the choice of the multiplicand the Halsbury's Laws of England in Vol. 34, Para 98 states the principle thus:

"98. Assessment of damages under the Fatal Accidents Act 1976- The courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.

The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have elapsed between the death and the trial is deducted from a multiplier based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased's working life at the date of death."

11. As to the multiplier, Halsbury states: "However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependants can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds,

the intention being that the dependants will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high tax payer. The multiplicand is based on the rate of wages at the date of trial. No interest is allowed on the total figure."

22. The deceased was 20 years of age at the time of

occurrence of the accident and he was survived by his

parents, aged 45 years and 40 years. Thus, the age of

deceased parents has to be taken into account in

choosing the appropriate multiplier and for this

purpose, there could be no better measure then the

Second Schedule of the Act.

23. Keeping in view, the age of both parents, the

average age comes to 42 years (45 + 40 / 2) and as per

the Second Schedule of the Act, the appropriate

multiplier for the age group 40 but not exceeding 45

years is 15. Thus, the Tribunal has rightly applied the

multiplier of 15.

24. As regards to the question of compensation, the

Tribunal held as under;

"So far as the question of quantum of compensation is concerned, the petition has to be decided according to the II schedule as per provision contained in section 163A of the M.V. Act for which annual income of the deceased at the time of the accident has to be taken into consideration. PW-1 has deposed that deceased Rohtas Singh was earning Rs.3,000/- per month. He was a daily labourer. In cross-examination PW-1 has deposed that he cannot show any proof that his son was earning Rs.3,000/- per month. In the claim petition, the income of deceased has been mentioned Rs.100/- per day. The accident in this case took place on 17.03.32003. the Minimum Wages

Rates applicable to Delhi to an unskilled worker in the year 2003 are Rs.2783.90/-. As Minimum Wages Rates as applicable to an unskilled worker in the year 2003 are almost equal to the income of income. I am taking the annual income of deceased Rohtas Singh Rs.36,000/- for the purpose of this claim (3000 x 12=36000)."

25. The accident has taken place on 17.03.03 and at

that time, the minimum wages of an unskilled worker

was Rs.2793.90/- p.m. There is not much difference

between the income claimed in the claim petition and

under the minimum wages. Thus, in the absence of any

other proof, the Tribunal has rightly applied the

minimum wages of unskilled worker and take the

monthly income of the deceased.

26. Therefore, in these circumstances, the Tribunal

has rightly awarded the compensation on account of

loss of dependency after applying the multiplier of 15.

27. As regards to the contention that the claimants

would have been dependant on deceased for not more

than a further period of five years considering the fact

that deceased would have been married and had

started living separately in another five years, in

Fakeerappa and Anr. v. Karnataka Cement Pipe

Factory and Ors., (2004) 2 SCC 473, the deceased

was an unmarried person, aged 27 years and was

getting Rs. 2,000/- per month. The Tribunal in this case

had applied multiplier of 18 and directed deduction to

the tune of 50% of income towards personal expenses.

The appeal filed against the order of the Tribunal was

dismissed by the High Court and thereafter the Apex

Court after taking into consideration the facts and

circumstances of the case, felt it appropriate to restrict

the deduction towards personal expenses only to the

extent of 1/3rd monthly income of the deceased. It

would be relevant to refer to the following para from

the said judgment;

"What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would

have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction."

28. Thus, in view of the above decision, this

contention of the Appellant is also rejected.

29. The compensation awarded by the Tribunal to the

Legal Heir‟s of the deceased is just, fair and equitable.

However, the Tribunal granted the compensation only

in favour of Respondent no.2 i.e. mother of the

deceased.

30. The compensation under section 163A of the Act

is awarded to the claimants of the deceased. The view

taken by the Tribunal in respect of legal heir is clearly

erroneous because, the compensation payable in a

claim petition under section 163A of the Act is to legal

heirs. The fact that the claimants are the parents of the

deceased is not denied or disputed, so they would be

the legal heirs to the estate of the deceased and thus

are entitled to get the compensation. However,

Respondent No.1 Gajraj Singh, the father of the

deceased has not filed any appeal.

31. So the entire compensation amount as ordered by

the Tribunal is payable to the mother of the deceased

who is Respondent No.2 in this case.

32. Thus, I do not find any infirmity or illegality in the

impugned judgment of the learned Tribunal and no

ground is made out for interference with the award

passed in this case. The compensation amount

awarded by learned Tribunal is just and fair.

33. The present appeal is thus not maintainable and is

dismissed.

34. No order as to costs.

35. Trial court record be sent back.

August 26, 2008                      V.B.GUPTA, J.
Bisht