Uttar Pradesh State Road vs Baby Sakshi Yadav & Ors.
2008 Latest Caselaw 1196 Del

*            HIGH COURT OF DELHI : NEW DELHI

      MAC App. No.464/2007 & MAC App.466/2007

%                          Judgment reserved on:17th July, 2008

                           Judgment delivered on:31st July, 2008

1.MAC App. No.464/2007

Uttar Pradesh State Road
Transport Corporation
Navyug Market
Gaziabad (UP)                                   ... Appellant.

                           Through: Mr. Rakesh Sachdeva, Adv.
                    Vs.

1. Baby Sakshi Yadav
   Daughter of Late Parmender Yadav
   Through her guardian and next friend
   Hamnedra Yadav R/o. H.No. 34, Krishan Kunj
   Laxmi Nagar, Delhi

2. Shri Hemandera Yadav
   S/o. Sri. Har Swaroop Yadav
   R/o. H.No. 34, Krishan Kunj
   Laxmi Nagar, Delhi

3. Sanju Yadav
   W/o. Sh. Parveen Yadav
   D/o. Late Shri Har Swaroop Yadav,
   R/o. H.No. 1/5149, Gali No.5
   Balbir Nagar, Shahadra Delhi.

4. Seema Yadav
   W/o. Sh. Anil Yadav
   D/o. Late Shri Har Swaroop Yadav
   R/o. H.No. 837 Old Palam Gurgaon Road,
   Opposite Fun & Food,
   Village Kapasera, Delhi                 ... Respondents
                      Through: Mr. J.S. Kanwar, Adv. for
                               R-1 to 4.




MAC App. Nos.464/2007 & 466/2007                      Page 1 of 12
 2.MAC App.466/2007

Uttar Pradesh State Road
Transport Corporation                           ....Appellant

                           Through: Mr. Rakesh Sachdeva, Adv.

                           Versus

1. Har Swaroop Yadav
   Dead Through LRs:

1A. Shri Hemandera Yadav
  S/o. Sri Har swaroop Yadav
  R/o. H.No. 34, Krishan Kunj
  Laxmi Nagar, Delhi

1B. Sanju Yadav
  W/o. Sh. Parveen Yadav
  D/o. Late Shri Har Swaroop Yadav,
  R/o. H.No. 1/5149, Gali No.5,
  Balbir Nagar, Shahadra Delhi

1C. Seema Yadav
  W/o. Sh. Anil Yadav
  D/o. Late Shri Har Swaroop Yadav
  R/o. H.No. 837, Old Palam Gurgaon Road,
  Opposite Fun & Food,
  Village Kapasera, Delhi               ....Respondents.

                           Through: Mr. J.S. Kanwar, Adv. for
                                    R-1 to 4.

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

3. Whether the judgment should be reported
in the Digest?                                              Yes



MAC App. Nos.464/2007 & 466/2007                      Page 2 of 12
 V.B. GUPTA, J.

By this common judgment, two appeals arising

out of one accident are being disposed of.

2. The appellant has filed both the appeals under

Section 173 challenging the impugned order dated 9th

April, 2007 passed by Sh. A.S.Jayachandra, Judge,

MACT, Karkardooma Court, Delhi.

3. The brief facts common to both the cases are that

on 13th May, 2003, one Parmender Yadav, his wife Rita

Yadav and father of Parmender Yadav, Sh. Harswaroop

Yadav and other family members were coming in a

Maruti Van bearing No. DL1C-2981 from their village

at Bulandshehar, U.P. and were going towards Delhi.

4. Around 9.40 a.m., when this Maruti Van reached

village Bisauli, a U.P. roadways bus bearing No.UP 78-

N-372 driven by its driver, Aditya Prakash in a rash

and negligent manner, hit the Maruti Van.

5. In the said accident, Parmender, aged 27 years

and his wife Rita Yadav, aged 21 years expired. A

criminal case was registered against the driver.

6. Vide impugned judgment, the learned Tribunal

awarded a sum of Rs.5,04,600/- to the LR's of the

deceased Rita Yadav and Rs.5,33,400/- were awarded

to the LR's of the deceased Parmender Yadav along

with 7.5% interest p.a., from the date of the petition till

the date of award (excepting for the periods not

specifically allowed).

7. It is contended by learned counsel for the

appellant that the accident in this case has taken place

due to the fault of the driver of the Maruti Van and it

is a head-on collusion and at the most this case falls

under the category of composite negligence.

8. Regarding non appearance of the bus driver it is

contended that the bus driver died during the

pendency of the trial.

9. It is further argued that claimants in their petition

have claimed that deceased Rita Yadav was a house

wife but during the course of evidence they have taken

the plea that she was working in a Coaching Centre

and was a graduate. This contradictory plea does not

inspire any confidence and the Tribunal could not have

awarded a huge sum of compensation to the claimants.

10. The other contention is that evidence of PW1

cannot be relied upon since he being the father-in-law

of the deceased was an interested witness and no

independent witness has been produced. Further, the

interest, if any, should have been awarded from the

date when the claimants had closed their evidence,

and not from the date of filing of the claim petition and

the interest awarded is excessive since the present

applicable rate of interest is 6% p.a.

11. In the case of death of Parmender Yadav, besides

the above contentions, it is also contended that the

Tribunal has wrongly awarded loss of dependency

taking the excessive monthly income of the deceased

as Rs.3,600/- p.m. particularly when there were no

proof of income of the deceased.

12. Learned counsel for the appellant in support of

his contentions cited various judgments namely:-

Mrs. Neera Tangri and Ors. v. Pritam Dass

Khurana and Ors. 1998(1) T.A.C. 440 (P&H),

Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors.

(2006) 3 SCC 242, Tatineni Meena v. Shaik

Mansoor Ali and Ors. 2007 (1) T.A.C. 546 (A.P.),

Shivaji Waman Eodase and Ors. v. Chandrapati

Ishwarsingh Dahiya and Ors. 2006 (3) T.A.C. 11

(Bom.), Gujrat State Road Transport Corportion v.

Hargovinddas R. Modi and Ors. 2007 ACJ 1198,

United India Insurance Co. Ltd. v. Babulal and

Anr. 2007 ACJ 999, United India Insurance Co.

Ltd. v. Annapurna Shandilya and Ors. 2007 ACJ

1168, Oriental Fire & General Insurance Co. Ltd.

v. Santosh and Ors. 2007 ACJ 865.

13. On the other hand, it has been contended by

learned counsel for the respondents that there is no

infirmity or illegality in the impugned orders passed by

the Tribunal. The bus driver has not appeared in this

case in the witness box and the Tribunal has rightly

drawn inference against him. Under these

circumstances, there is no merit in these appeals and

both these appeals are liable to be dismissed.

14. Factum of the accident in this case has not been

disputed by the appellant.

15. The main contention of learned counsel for the

appellant is that the accident took place due to

contributory negligence on the part of Maruti Van

driver.

16. Aditya Prakash, the bus driver after filing his

written statement did not appear in the trial court and

absented and as such he was proceeded Ex-Parte.

17. However, in his written statement, he took the

defence that he had not caused any accident knowingly

or deliberately. He was driving the bus in a slow and

controlled speed and as per rules by blowing the horn

on his right side when the bus driven by him reached

at the spot, then Maruti Van No.DL-1C-2981 came in a

very rash speed by overtaking from the front side and

dashed in to the bus and even after making best efforts

by him, the bus could not stop suddenly. Thus, no fault

of negligence is apparent on his part.

18. Admittedly, the bus driver has not appeared in the

witness box to prove his defence nor the death

certificate of the bus driver has been placed or proved

on record. Moreover, this fact has not even been

pleaded in the appeal. As such adverse inference has

to be drawn against him.

19. With regard to the negligence of the bus driver,

PW 1, Harswaroop Yadav, who was a passenger in the

Maruti Van had appeared in the witness box and has

stated that when the Maruti Van reached near Village

Bisauli, U.P. which was coming from Gaziabad side, at

that time one U.P.S.R.T.C. bus bearing No. UP-78-N-

0372 was coming in a rash and negligence manner and

it hit the Maruti Van and the driver fled away. In the

cross-examination, he had denied that his son was

driving Maruti Van at a high speed or tried to overtake

some vehicle and dashed against the bus.

20. There is nothing on record to show that PW 1 had

any enmity with the bus driver so as to falsely

implicate in this case. If it is a case of contributory

negligence, then the onus is also upon the bus driver to

prove his defence. However, the bus driver has failed

to discharge that onus.

21. So, there is no reason to discard the testimony of

PW 1, Harswaroop Yadav upon this issue. Thus, I do

not find any ground to upset the findings given by the

Tribunal on this point.

22. As far as quantum of compensation awarded in

this case is concerned, the Apex Court in plethora of

cases has held that while assessing the income of the

deceased in motor accident cases, the tribunals should

bear in mind that the same should be assessed on the

basis of the cogent and the reliable evidence produced

and duly proved on record.

23. In this regard the thumb rule is that where there

is no cogent evidence on record to prove the monthly

income at the time of accident, then the minimum

wages notified under the Minimum Wages Act

prevalent at the time of accident can be taken into

consideration.

24. In the present case, the deceased Rita Yadav was

a student of B.Ed and to prove this fact, document Ex.

PW 1/G was produced. In the absence of income proof,

the trial court has taken minimum wages for a

Graduate as prescribed under the Minimum Wages

Act. The Tribunal has rightly done so and further the

multiplier of 17 years was adopted in this case keeping

in view the age of the deceased being 21 years. As

such, no fault can be found with the findings of the

Tribunal on this count.

25. As far as deceased Parmender Yadav is

concerned, he was aged 27 years and was a diploma

holder in the trade of an Electrician, though he was

stated to be running a cyber cafe and earning

Rs.20,000/- p.m.

26. Since, no document in support of the income was

produced by the claimants, the Tribunal applied the

minimum wages for a graduate/diploma holder as

prescribed under the Minimum Wages Act. In the

absence of any income proof, the Tribunal rightly

assessed the income of the deceased Parmender,

under the Minimum Wages Act and no fault can be

found with the reasoning given by the learned

Tribunal.

27. Various decisions cited by the Ld. Counsel for the

Appellant, are not applicable to the facts of the present

case.

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

impugned judgments passed by the Tribunal.

29. The compensation awarded by the learned

Tribunal in both the cases is just, fair and equitable.

30. Accordingly, both these appeals filed by the

Appellant are hereby dismissed.

31. No order as to costs.

32. Trial court record be sent back.

V.B.GUPTA (JUDGE) July 31, 2008 rs