Netaji Subhash Inst. Of ... vs Alka Ahuja & Ors.
2009 Latest Caselaw 3298 Del

22 and 23
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 21st August, 2009


                          +    MAC.APP. 836/2006


      NETAJI SUBHASH INST. OF TECHNOLOGY ..... Appellant
                    Through : Ms. Avnish Ahlawat, Adv.

                    versus

      ALKA AHUJA & ORS.          ..... Respondents
                    Through : Mr. R.N. Sharma, Adv.


                      +       MAC.APP. 884-86/2006


      ALKA AHUJA & ORS.           ..... Appellants
                    Through : Mr. R.N. Sharma, Adv.

                    versus

      NETAJI SUBHASH INST. OF TECHNOLOGY ..... Respondent
                    Through : Ms. Avnish Ahlawat, Adv.


CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                   YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                  YES

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

                              JUDGMENT (Oral)

1. The appellants have challenged the award of the learned

Tribunal whereby compensation of Rs.12,51,500/- has been

awarded to the claimants. The appellant in

MAC.APP.No.836/2006 is seeking reduction of the award amount

on the ground that deceased was contributory negligent for the

accident whereas the appellants in MAC.APP.No.884-86/2006 are

seeking enhancement of the award amount.

2. The accident dated 5th September, 2003 resulted in the

death of Krishan Kumar Ahuja. The deceased was survived by his

widow, a minor son and mother who filed the claim petition

before the learned Tribunal.

3. The deceased was aged 38 years at the time of the accident

and was working as Senior Stenographer with Netaji Subhash

Institute of Technology, Sector - 3, Dwarka, New Delhi. The

accident occurred inside the complex of Netaji Subhash Institute

of Technology. On 5th September, 2003, the deceased was driving

his two - wheeler scooter while going out of the Institute when he

was hit by offending bus of the Institute bearing No.DL-1V-4504

which was coming inside the Institute. The accident occurred on

the private road inside the complex. The accident was witnessed

by independent eye - witness, Constable Bhim Singh who was on

duty near the accident site and he registered the FIR. Bhim Singh

reported to the police that he was on duty near the accident site

when the mini bus bearing No.DL-1V-4504 hit the scooter driven

by the deceased and the deceased was thrown at a considerable

distance. Bhim Singh also reported to the police that the

accident occurred due to the fast speed and rash and negligent

driving of the mini bus by its driver. The driver was apprehended

at the spot and a case under Section 279/304-A IPC was

registered against the driver of the bus. The case was

investigated by the police and the charge sheet was filed by the

police against the driver under Section 279/304-A IPC. The FIR,

site plan and the charge sheet were placed on record before the

learned Tribunal. The site plan shows that the accident occurred

at Point 'A' shown in the site plan and Bhim Singh was on duty at

Point 'B'. The site plan also shows that there is a blind turn at the

site of the accident.

4. Bhim Singh appeared before the learned Tribunal as PW-5

and deposed that the offending bus entered the complex and

took a turn and hit the scooter which was going out of the

complex due to which the scooter was thrown at a distance. The

police arrived at the spot and the driver of the bus was arrested

by the Investigating Officer and the statement of PW-5 was

recorded by the Investigating Officer at the spot. PW-5 further

deposed that the accident occurred due to the rash and negligent

driving of the bus by its driver.

5. The driver of the bus appeared in the witness box as RW-3

and deposed that the bus was at a slow speed of about

10-15 kms/hr whereas the scooter came from the wrong side at a

very high and speed and the accident occurred due to the

negligence of the scooterist. Ashok Kumar was the helper on the

bus who appeared as RW-2 and deposed that the scooter came

from the wrong side at a high speed and hit the bus whereas the

bus was at a very slow speed and had just crossed two speed

breakers. The appellants produced Sanjeev Chopra, Pharmacist

as RW-1 who reached the site after the accident. RW-1 deposed

that there was no policeman present at the site and the injured

was lying in the pool of blood.

6. The learned counsel for the appellant has submitted that

PW-5 was not present at the site of the accident. The learned

counsel refers to the statement of RW-1, RW-2 and RW-3 in

support of this argument. The learned counsel for the appellant

further submits that speed of the bus at the time of the accident

was very slow that is about 10-15 kms/hr. The learned counsel

further submits that the bus was on the correct side and the

scooter was on the wrong side of the road.

7. On careful examination of the FIR, site plan, charge sheet,

statements of PW-5, RW-1, RW-2 and RW-3 and applying the

principles laid down in Section 114 of the Indian Evidence Act,

this Court is of the view that the accident occurred due to the

rash and negligent driving of the bus by its driver. The accident

occurred inside the complex of Netaji Subhash Institute of

Technology. Admittedly there was a blind turn and the bus was

taking right turn. If the speed of the bus had been 10- 15 kms/hr

as stated by RW-3, the accident would not have at all occurred.

The natural presumption is that the offending bus was being

driven at a very high speed and that the driver of the bus did not

take due care and caution. The statement of RW-3 that the bus

was being driven at a very slow speed is incorrect. RW-1, RW-2

and RW-3 have made false statements on oath that there was no

policeman at the spot. Admittedly, the FIR has been registered

on the report of PW-5. PW-5 was also examined by the police as a

witness and the charge sheet has been filed by the police against

the driver of the bus. There is no evidence on record that the

road where the accident occurred was meant only for moving of

traffic in one direction. PW-5 is independent witness posted at a

place of the accident and is a public officer. The testimony of

PW-5 is, therefore, accepted and it is held that the accident

occurred due to the rash and negligent driving of the bus by its

driver. The finding of the learned Tribunal contributing 20%

negligence to the deceased is set aside.

8. The learned counsel for the appellant also challenges the

quantum of compensation awarded to the claimants on the

ground that the monthly emoluments in the form of family

pension received by the claimants be deducted from the income

of the deceased while computing the compensation. It is

submitted that the claimants are receiving family pension of

Rs.4,452/-. The learned counsel submits that if the future

prospects have to be taken into consideration then the family

pension and other benefits to the claimants be deducted while

computing the compensation. In this regard, it is noted that the

principles for computation of compensation and the future

prospects are well settled by the recent judgment of the Hon'ble

Supreme Court in the case of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129 and no deduction on any

account including family pension is permissible according to the

said judgment. The ground raised by learned counsel for the

appellant in this regard is, therefore, rejected.

9. There is merit or substance in MAC.APP.No.836/2006 which

is dismissed.

10. The claimants are seeking enhancement of compensation in

MAC.APP.No.884-86/2006. The deceased was aged 38 years at

the time of the accident and was working as a Senior

Stenographer with Netaji Subhash Institute of Technology earning

Rs.10,560/- per month. The learned Tribunal added 50% towards

future prospects and deducted 1/3rd towards personal expenses

of the deceased and applied the multiplier of 12 to compute the

loss of dependency at Rs.15,20,640/-. Rs.35,000/- has been

awarded towards loss of consortium, loss of love and affection

and funeral expenses. The total compensation awarded is

Rs.12,51,500/-.

11. The learned counsel for the appellant is seeking

enhancement on the following grounds.

      (i)     The multiplier be enhanced from 12 to 15.

      (ii)    The compensation be awarded for loss of estate.

(iii) The deduction of 20% towards contributory negligence

be set aside.

12. With respect to the contributory negligence, it has already

been held that the driver of the offending bus was rash and

negligent. The deduction of 20% towards contributory

negligence of the deceased is, therefore, set aside. With respect

to the multiplier, the Hon'ble Supreme Court in the case of Sarla

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129

has held that the appropriate multiplier at the age of 38 years is

15. The multiplier is, therefore, enhanced from 12 to 15. The

loss of dependency by applying the multiplier of 15 is computed

to be Rs.19,00,800/- [(Rs.10,560 + 50% of Rs.10,560) x 2/3 x 12

x 15). The learned Tribunal has not awarded any compensation

towards loss of estate. Rs.10,000/- is awarded towards loss of

estate. The total compensation payable to the claimants is

computed to be Rs.19,45,800/- (Rs.19,00,800 + Rs.35,000 +

Rs.10,000).

14. The MAC.APP.No.884-86/2006 is allowed and the award

amount is enhanced from Rs.12,51,500/- to Rs.19,45,800/- along

with interest @ 7.5% per annum.

15. The enhanced award amount along with interest be

deposited by the appellant in MAC.APP.No.884-86/2006 with the

learned Tribunal within 30 days. Upon such deposit being made,

the learned Tribunal shall disburse the same to the claimants in

the mode and manner as per the original award.

16. Copy of this order be given 'Dasti' to learned counsel for the

parties under the signature of Court Master.

J.R. MIDHA, J

AUGUST 21, 2009 aj