Smt. Sat Preet Kaur vs Raju Singh Rawat
2008 Latest Caselaw 587 Del

JUDGMENT

Kailash Gambhir, J.

1. The present appeal arises out of the award dated 30th January 2004 of the Motor Accident Claims Tribunal, whereby the Tribunal awarded a sum of Rs. 6,00,000/- along with interest @ 8% per annum to the appellant from the date of filing of the petition.

2. Background facts in nutshell are as follows:

Sh. Surjeet Singh, aged 30 yrs doing business of interior decorator in the name and style of M/s Jeet Interior Decorator, on 29th November 1994 was coming in the car, bearing registration No. DL 2C C 1416 from Faridabad towards Tilak Nagar via Ring Road along with his brother-in-law, Sh. Surinderpal Singh.

3. At the Ring Road, Mayapuri Flyover, Naraina, New Delhi a truck bearing registration No. HYA 2855 was stationed in a most reckless manner near the central pattri and no parking light or any other backlight or any stone marking around the truck was made. At about 11:40 pm the said maruti van reached Mayapuri flyover and by the time the deceased Sh. Surjit Singh who was on the driving wheel when realized that the said truck was stationary and not moving, he tried to avoid the collision with the truck but the right front portion of the van hit the rear portion of the truck with such a force that Sh. Surjit Singh died on the spot. The claims petition was filed on 7/4/1995 and award was made on 30th January 2004 Aggrieved with the said award present appeal has been preferred by the appellants.

4. Sh. Rajiv Kochar, counsel for the appellant vehemently contended that the learned tribunal has committed grave error in taking income of the deceased @ Rs. 9,500/- p.m. The court did not consider the future increase in the income while calculating monthly income of the deceased. The counsel stated that had the tribunal applied the law laid down in the celebrated decision of the Hon ble Apex Court in Sarla Dixit v. Balwant Yadav and U.P. State Road Transport Corpn. v. Trilok Chandra , the gross average income would come out as Rs. 13,500 per month in place of mere Rs. 9,500 per month as assessed by the tribunal. It was further maintained by the counsel that upon deducting 1/3rd personal expenses the monthly dependency would come out as Rs. 9,000 per month in place of Rs. 6,500 per month as determined by the Tribunal. The counsel further averred that the learned Tribunal should have applied the multiplier of 20 in place of 15, as the deceased died at the age of 30 years when the appellant Nos. 1 to 3 were of very young age. It was also pointed out by the counsel that the family of the deceased has a history of longevity of life, which is clear from the fact that the father of the deceased is still alive and therefore, the tribunal should have applied the multiplier of 20. The counsel averred that the tribunal ought to have awarded the amount claimed i.e. Rs. 30 lacs with costs and interest as compensation to the appellants. The counsel also submitted that the learned Tribunal should have awarded interest @ 18% per annum in place of 8% per annum. Assailing the findings further, it was contended that the conclusions drawn by the tribunal were incorrect as the deceased was not negligent, rather he tried to avert the collision with the truck which was unauthorizedly and illegally parked on the road, therefore, the tribunal erred in deducting 50% of the compensation i.e. Rs. 6 Lacs towards contributory negligence of the deceased. The counsel also urged that looking at the age of the appellants the tribunal ought to have awarded Rs. 10 lacs towards pain and suffering, 10 lacs towards loss of estate and another 5 lacs towards loss of consortium.

5. Counsel for the appellants relied on following judgments in support of his submissions:

1. Hardev Kaur v. Rajasthan State Road Transport Corporation ;

2. Dr. Nagendra Ghosh Gupta v. Lekhi Ram ;

3. New India Assurance Co. Ltd. v. Maya Wati and Ors.

6. Per Contra, Sh. P.K. Seth, counsel for the respondent No. 3 while refuting the contentions raised by the counsel for appellants submitted that the tribunal has granted just and fair compensation in the facts and circumstances of the case. The counsel maintained that the tribunal gave correct observation that the deceased driver of the van was equally responsible and equally contributed to the negligence and hence the tribunal is correct in awarding Rs. 6 lacs as compensation. Counsel also urged that the multiplier, income and dependency calculated by the tribunal does not suffer from any error. Further it was submitted by the counsel that there was nothing on record to prove future prospects of the deceased, therefore, tribunal has correctly taken income at Rs. 9,500, which was supported by the appellants/claimants witnesses PW2 i.e. appellant No. 1 herself and PW4 i.e. Accounts Manager of the firm Asea Brown Boveri Ltd., the company with whom the deceased was working. The counsel has relied on the judgment of the Apex Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. in this regard. The counsel further stated that the tribunal has committed no error in applying the multiplier and did not give any wrong finding.

7. I have heard learned Counsel for the parties and have perused the records.

8. The first contention of the counsel pertains to the income of the deceased. It has been alleged by the counsel that the gross average income of the deceased was Rs. 13,500/- per month and not Rs. 9,500/- as taken by the Tribunal for the purpose of calculation. It is no more res integra that the mere assertion as to the income earned by the deceased at the time of accident is not sufficient and it should be supported with some reliable evidence may be in the shape of income tax returns, account books, balance sheets, and bank statements etc. In this regard the Hon'ble Apex Court has given following observations in Oriental Insurance Co. Ltd. v. Meena Variyal :

It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence We think not. Here again, the position that the Motor Vehicles Act vis--vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability andestablishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.

9. On perusal of the Award it is manifest that the permission was granted to the insurance company to take over the defense of the owner insured but it failed to examine any witness. In the instant appeal no cross-objections have also been filed challenging the income of the deceased at Rs. 9,500/- p.m. as assessed by the tribunal. In the absence of any challenge made by the insurer even after being granted the permission and also on failure to file any cross- objections, I am not inclined to interfere with the Award on this account.

10. The other contention of the counsel pertaining to future prospects is without any force as nothing has been brought on record to consider the future prospects of life and career of deceased. In Bijoy Kumar Dugar's case (supra), it has been clearly stated by the Apex Court that there must be something cogent on record to give benefit of future prospects to the claimants, the relevant para of the said judgment is reproduced below:

The mere assertion of the claimants that the deceased would have earned more than Rs 8000 to Rs 10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be.

11. The payment from Brown Boveri Ltd. was only one time payment and of not much use to establish future prospects of the deceased. Although in her deposition, Smt. Sat Preet Kaur averred that her deceased husband was 12th pass but still nothing was brought on record to prove the same. Therefore, I find no infirmity in the award of the Tribunal refusing to grant benefit of future prospects. On the contention pertaining to the multiplier, I feel that multiplier of 15 as applied by the tribunal is on the lower side. Definitely, the multiplier of 20 years cannot be allowed and it is settled by the Hon'ble Apex Court that the highest multiplier to be applied is 18 and it is for the age group of 21 years to 25 years and the lowest multiplier would be in respect of senior citizens i.e. in the age group of 60 to 70 or upwards. In this regard the Apex Court has observed as under, in the judgment of U.P. State Road Transport Corporation v. Krishna Bala and Ors. :

However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age ground of 60 to 70, which the normal retirement age.

12. I feel that multiplier of 17 as per the IInd Schedule should have been applied in the facts and circumstances of the present case as it has been observed by the Hon'ble Apex Court that structured formula as provided under the IInd Schedule would be a safe guide to calculate the amount of just compensation and deviation may be permissible only under exceptional circumstances. In this regard in the judgment of Abati Bezbaruah v. Dy. Director General, Geological Survey of India The Hon'ble Apex Court has given following observations:

11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.

13. The learned tribunal has not given any reasoning for deviating from the said schedule. Hence, the multiplier of 17 as per the IInd Schedule should be applied.

14. Next contention of the counsel for the appellants pertains to the rate of interest. On the issue of rate of interest, the Apex Court has observed as under in Abati Bezbaruah's case (supra):

6. The question as to what should be the rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time.

18. No ratio has been laid down in any of the decisions in regard to the rate of interest and the rate of interest was awarded on the amount of compensation as a matter of judicial discretion. The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. Varying rates of interest are being awarded by Tribunals, High Courts and the Supreme Court. Interest can be granted even if a claimant does not specifically plead for the same, as it is consequential in the eye of law. Interest is compensation for forbearance or detention of money and that interest being awarded to a party only for being kept out of the money, which ought to have been paid to him. No principle could be deduced nor can any rate of interest be fixed to have a general application in motor accident claim cases having regard to the nature of provision under Section 171 giving discretion to the Tribunal in such matter. In other matters, awarding of interest depends upon the statutory provisions, mercantile usage and doctrine of equity. Neither Section 34 CPC nor Section 4A(3) of the Workmen's Compensation Act are applicable in the matter of fixing rate of interest in a claim under the Motor Vehicles Act. The courts have awarded the interest at different rates depending upon the facts and circumstances of each case.

15. Therefore, in my opinion, there cannot be any hard-and-fast rule in awarding interest and the award of interest is solely on the discretion of the Tribunal or the High Court as indicated above. On the basis of the above discussion, I feel that the interest awarded by the learned Tribunal @ 8% pa requires no interference. Before considering the contentions of the parties in relation to negligence and contributory negligence, it would be important to reproduce Rule 15 of Rules of the Road Regulations, 1989 which provides for rules for parking of the vehicle:

15. Parking Of The Vehicle

(a) Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and if the manner of parking is indicated by any sign board or markings on the road side, he shall park the vehicle in such a manner.

(b) A driver of a motor vehicle shall not park his vehicle:

(i) at or near a road crossing, a bend, top of a hill or a humpbacked bridge;

(ii) on a footpath;

(iii) near a traffic light or pedestrian crossing;

(iv) in a main road or one carrying fast vehicle;

(v) opposite another parked vehicle or as obstruction to other vehicle;

(vi) alongside another parked vehicle;

(vii) on roads or at places where there is a continuous white line with or without a broken line;

(viii) near a bus stop, school or hospital entrance or blocking a traffic sign or entrance to a premises or a fire hydrant;

(ix) on the wrong side of the road;

(x) where parking is prohibited;

(xi) away from the edge of the footpath.

16. On the contention pertaining to contributory negligence, the counsel for the appellants submitted that the deceased was not negligent rather he tried to avert the collision with the truck which was parked negligently on the road, therefore, the tribunal erred in deducting 50% compensation i.e. to the tune of Rs. 6 lakhs towards contributory negligence of the deceased. I have perused the award of the tribunal and the Tribunal has rightly observed that it is not the case of the appellants claimants that at the time of accident, at the accident site there was a total dark on the road and that there was no electric light provision through the road side light poles. Further, one can take judicial notice of the fact that in a metropolitan city like Delhi, particularly, on a Ring Road, where traffic runs throughout the night there is provision for light by road side electricity poles and since the place of accident was admittedly a very wide road with 6 lanes, therefore, the truck which was parked close to the central verge must have become visible to any driver of the other vehicle from a considerable distance and in such a situation reasonable care and caution is expected from the vehicle in motion in order to avoid collision with the truck. Contributory negligence has been explained by the Supreme Court in Municipal Corpn. of Greater Bombay v. Laxman Iyer , as under:

To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other s negligence. Whichever party could have avoided the consequence of the other s negligence would be liable for the accident. If a person s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defense to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.

17. Hence, the learned tribunal was correct in holding the deceased also negligent. But I feel that holding deceased 50% negligent would not be correct, I feel that surely the deceased was negligent but certainly not to the extent of 50%. The contributory negligence on the part of the deceased is reduced from 50% to 30%.

18. On the basis of above discussion, it is clear that the income of the deceased shall be taken as Rs. 9,500/- per month, and the annual income shall be Rs. 114000/-. After making 1/3rd deductions towards personal expenses, the loss of dependency shall come out as Rs. 76000/- and after applying the multiplier of 17 the compensation shall come out as Rs. 12,92,000/-. Finally, enhancement is claimed for loss of estate, loss of consortium and for pain and sufferings. In the light of the decision in Mohinder Kaur and Ors. v. Hira Nand Sindhi (Ghoriwala) and Anr. 2007 ACJ 2123, wherein the Hon'ble Apex Court in addition to the award passed by the Tribunal allowed Rs. 50,000 towards loss of consortium with interest at the rate of 9% per annum from the date of order till realisation, enhancement is made in the amount towards loss of love and affection and loss of consortium from Rs. 15,000/- to 75,000/-.

19. I enhance compensation towards loss of consortium to the widow appellant and loss of love and affection to minor children and father of the deceased from Rs. 15,000/- to Rs. 75,000/-.

20. Therefore, the award is modified as explained above and the total compensation comes out to Rs. 13,67,000/- and after apportioning 30% towards contributory negligence, the liability comes out as Rs. 9,56,900/-.

21. On the basis of the above discussion, the respondent No. 3 shall pay the differential amount to the appellants with up to date interest @ 6% p.a. from the date of award till 31.12.1999 and @ 7.5% per annum w.e.f. 1.1.2000 till final realisation.

22. With these directions, the present appeal is remitted back to the Tribunal for apportionment of the differential amount of compensation in favor of appellants.