U.P.State Roadways Transport ... vs Sukh Pali & Ors.
2009 Latest Caselaw 456 Del

31

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                   +          FAO No.103/2003


                                 Reserved on : 19th January, 2009
%                             Date of decision: 9th February, 2009



       U.P.STATE ROADWAYS TRANSPORT
       CORPORATION                           ..... Appellant
                     Through : Mr. S.K. Srivastava, Adv.

                   versus

       SUKH PALI & ORS.                   ..... Respondents
                     Through : Mr. Vasdev Lalwani and
                               Mr. Jai Bir Sharma, Advs.


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

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

2.       To be referred to the Reporter or not?

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



J.R. Midha, J.

1. The appellant has assailed the award dated 1 st

November, 2002 passed by the learned Tribunal whereby the

learned Tribunal has awarded the compensation of

Rs.8,00,000/- to respondents No.1 to 3.

2. The appellant is the owner and respondent No.4 is the

driver of UP Roadways Bus bearing No.UP-33-N-1064 which hit

the Maruti Car bearing No.DDC-686 on 4th February, 1998 on

G.T. Road near Bank of India, Secunderabad. Late Jagdish

Parshad was driving the car who received grievous injuries

and died on the spot.

3. Deceased Jagdish Parshad was survived by his mother

aged 60 years, two minor children aged 13 and 11 years at

the time of the accident, who filed the claim petition before

the learned Tribunal against the driver (respondent No.4) and

the owner (the appellant) of the offending bus claiming the

compensation of Rs.15,37,400/-.

4. The appellant and respondent No.4 contested the

petition on the ground that the deceased was responsible for

the accident as he came on the wrong side of the road and

dashed into the bus and, therefore, no compensation was

payable to respondent Nos.1 to 3.

5. At the trial, PW - 1 Dhiraj Singh deposed that he was

traveling with the deceased in the car and the accident

occurred due to the rash and negligent driving of the driver of

the bus. PW-1 lodged the FIR - Ex.PW1/1. He further deposed

that there was no traffic going ahead of the bus.

6. Smt. Sukh Pali appeared as PW-2. She is the mother of

the deceased. She proved the age, income and other

dependents of the deceased. The deceased had divorced his

wife during his lifetime. PW-2 proved the decree of divorce -

Ex.PW2/1. She further proved that the deceased was

employed with the Delhi Police and was drawing a salary of

Rs.4,922/-. The income certificate was proved as Ex.PW2/2.

PW-2 also proved the driving licence, date of birth of the

children and post-mortem report as PW2/4, PW2/6 and PW2/7

respectively.

7. The appellant produced two witnesses. The driver

appeared as RW-1 and deposed that he was driving the bus at

a slow speed and on the correct side of the road and the car

suddenly came on the wrong side, i.e., extreme right side and

on seeing the car coming towards the wrong side, RW-1 took

the bus towards Kaccha Patri to avoid the accident but despite

that the accident occurred. RW-1 further deposed that he

took the bus to the left and applied the brakes but the

accident could not be avoided due to the rash and negligent

driving of the driver of Maruti car. RW-1 produced the copy of

the site plan marked A. The appellant produced second

witness-RW2 who is employee of the appellant and he visited

the spot after the accident and prepared the site plan-

Ex.RW2/1. He also produced the photographs of the accident

site.

8. The learned Tribunal held the driver of the bus to be

rash and negligent. The learned Tribunal held the site plan

prepared by the police to be correct according to which the

driver of the bus was negligent. The site plan prepared by the

police clearly shows that the car was on the left side of the

road and the bus which was coming from the opposite

direction came to its right side and hit the car. The learned

Tribunal did not accept the site plan prepared by the appellant

to be correct.

9. I have examined both the site plans. The site plan

prepared by the police appears to be correct. On the other

hand, the site plan prepared by the appellant does not inspire

confidence. First of all, the place of the accident has not been

correctly shown. As per PW-1 who was travelling in the car

and the site plan prepared by the police, the bus came on its

right side to hit the car which was on the left side of the road

whereas the site plan filed by the appellant shows the

accident on the extreme left side of the bus. Secondly, the

site plan prepared by the police has been prepared by an

independent investigating agency whereas the site plan filed

by the appellant has been prepared by RW-2 who was not

present at the time of the accident and he is not an expert in

preparing the site plan. I, therefore, agree with the reasons

given by the learned Tribunal that the accident occurred due

to the rash and negligent driving of the bus by respondent

No.4.

10. The second ground of challenge in this appeal is that

the award of the Tribunal is on a higher side and the multiplier

should not have been more than 6. The deceased was aged

34 years at the time of his death. He was working as a Head

Constable with The Delhi Police and drawing a salary of

Rs.4,922/- per month which has been proved by Ex.PW2/2.

The learned Tribunal deducted the personal allowances of

Rs.160/- and held his salary to be Rs.4,762/- per month.

Taking the future prospects into consideration, the average

gross monthly salary was worked out at Rs.7,143/- per month

[(Rs.4,762/- + Rs.9,524)/2]. The deduction of 1/3rd, that is,

Rs.2,381/- was made towards the personal expenses of the

deceased and the dependency of the claimants was held to be

Rs.4,762/- per month. The annual dependency was calculated

at Rs.57,144/- (Rs.4,762/- x 12). The learned Tribunal applied

the multiplier of 14 and arrived at a figure of Rs.8,00,016/-

which was rounded to be Rs.8,00,000/-. The learned Tribunal

awarded the interest @9% per annum on the said

compensation.

10. The appellant's argument that the multiplier of 6

should have been adopted is absolutely misconceived and

unsustainable. As per the Second Schedule of the Motor

Vehicles Act, the appropriate multiplier in this case would

have been 17. The learned Tribunal has applied a lower

multiplier. However, since the claimants have not come up in

appeal, the higher multiplier cannot be applied. I, therefore,

uphold the multiplier of 14 applied by the learned Tribunal to

compute the compensation payable to the claimants. The

Tribunal has also not awarded any compensation towards the

loss of love and affection, funeral expenses and loss of estate

but again since the claimants have not come up in appeal, no

amount can be awarded on this account to the claimants.

11. No other ground has been urged in the present appeal.

12. The appeal is devoid of merits and is, therefore,

dismissed.

13. The appeal is dismissed with costs.

J.R. MIDHA, J

February 9, 2009 aj