Veerpal Pawar & Anr vs Sushil Kumar & Ors
2009 Latest Caselaw 4811 Del

38
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.571/2009

                               Date of Decision: 25th November, 2009
%

      VEERPAL PAWAR & ANR               ..... Appellants
                   Through : Mr. R.K. Bachchan, Adv.

                      versus

    SUSHIL KUMAR & ORS                ..... Respondents
                  Through : Mr. Amit Kumar Pandey,
                             Adv. for R-3.
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)

CM No.16971/2009 (Exemption)

1. Allowed, subject to just exceptions.

2. CM stands disposed of.

MAC.APP. No.571/2009

1. Issue notice to respondent No.3.

2. Mr. A.K. Pandey, Advocate accepts notice on behalf of

respondent No.3.

3. This case involves a very short point and, therefore, the

LCR is not required. The matter is heard finally at admission

stage.

4. The appellants have challenged the award of the

learned Tribunal whereby compensation of Rs.12,36,000/-

has been awarded to the appellants. The appellants seek

enhancement of the award amount.

5. The accident dated 27th November, 2006 resulted in the

death of Master Sachin Pawar. The deceased was survived

by his parents who filed the claim petition before the learned

Tribunal. The deceased was aged 16 years at the time of the

accident and was a student of 11th standard. The deceased

had a brilliant academic record and the learned Tribunal

assumed that the deceased would have become a

professional and have earned Rs.50,000/- to Rs.60,000/- per

month. The learned Tribunal took the income of the

deceased as Rs.45,000/- per month, deducted 50% towards

the personal expenses and applied the multiplier of 15

according to the age of the parents to compute the loss of

dependency at Rs.40,50,000/-. Rs.10,000/- has been

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

expenses and Rs.50,000/- towards loss of love and affection.

The total compensation has been computed at

Rs.41,20,000/-.

6. The learned Tribunal has held the deceased to be

contributory negligent to the tune of 70% and, therefore, the

aforesaid compensation has been reduced by 70% and

Rs.12,36,000/- has been awarded by the learned Tribunal.

7. The only ground urged by learned counsel for the

appellants at the time of hearing of this appeal is that on 27 th

November, 2006 at about 7:25 a.m., the deceased was hit by

DTC bus bearing registration No.DL 1PB-2658 near Maujpur

bus stop. The deceased was waiting for the bus for going to

his school when the DTC bus came from Babarpur water

canal side and took a left turn towards Seelampur. As per

the site plan placed on record, the accident occurred in the

middle of the road. The learned Tribunal presumed that the

deceased was contributory negligent because he was in the

middle of the road and must have been attempting to board

the moving bus. However, the speed of the bus could not be

very high because it was a turn. The presumption drawn by

the learned Tribunal is not based on the evidence on record.

The finding of the learned Tribunal with respect to the

contributory negligent is, therefore, set aside and it is held

that the driver of the bus was rash and negligent.

8. The next contention of learned counsel for the

appellants is that the deduction of 70% of the compensation

towards the contributory negligence of the deceased be set

aside and the compensation of Rs.41,20,000/- be awarded to

the appellants.

9. The amount awarded by the learned Tribunal is just,

fair and reasonable and does not call for any interference.

The learned Tribunal has presumed the income of the

deceased to be Rs.45,000/- per month. It is well settled that

the compensation to be awarded in motor accident claim

cases has to be uniform and predictable. Principles of

uniformity and predictability are very important. There

should be some measure of uniformity in awards, and similar

decisions should be taken in similar cases; otherwise there

will be dis-satisfaction in the community and much criticism

of the administration of justice. Secondly, the parties should

be able to predict with some measure of accuracy the sum,

which is likely to be awarded in a particular case.

10. The deceased was a student of 11th standard and,

therefore, assuming the income of the deceased at

Rs.45,000/- per month is not justified. Considering the

brilliant academic record of the deceased, the income of the

deceased is presumed to be Rs.13,000/- per month, 50% is

deducted towards the personal expenses of the deceased

and the multiplier of 15 is applied and Rs.66,000/- is added

towards compensation for loss of love and affection,

compensation for loss of estate and funeral expenses. The

total compensation is computed to be Rs.12,36,000/-.

11. This case is squarely covered by Section 167 of the

Indian Evidence Act which is reproduced hereunder:-

"Section 167 - No new trial for improper admission or rejection of evidence -

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision."

12. Improper admission or rejection of evidence is not by

itself a ground for reversal of a decision, if there is other

evidence to support it. Where admissible evidence has been

improperly rejected or inadmissible evidence has been

admitted by the Judge, such improper reception or rejection

of evidence shall not of itself be a ground for new trial or

reversal of any decision in any case, unless substantial

wrong or miscarriage of justice has been thereby occasioned;

or, in other words, if the Court considers that after leaving

aside the evidence that has been improperly admitted, there

was enough evidence on the record to justify the decision of

the lower court, or that if the rejected evidence were

admitted the decision ought not have been affected thereby,

no Court of appeal should set it aside.

13. An objection to the proper admission of evidence is

material only if it can be shown that the exclusion of

evidence improperly admitted is fatal to the decision. A

finding will not, therefore, be disturbed if, throwing aside the

evidence which ought not to have been admitted, there, still

remains sufficient evidence to support the finding. Under

Section 167 of the Evidence Act, the improper admission of

evidence is not in itself ground for a new trial or reversal of

decision, if independently of the evidence of improperly

admitted there is sufficient evidence to justify the decision.

14. In Owners & Parties vs. Fernandeo Lopez, AIR

1989 SC 2206, the Hon‟ble Supreme Court held as under:-

"Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system." (Para 18)

15. In Emperor vs Ermanali & Ors., AIR 1930 Calcutta

212, Full Bench of Calcutta High Court held as under:-

"Rules and Regulations are intended to be the handmaid and not the mistress of the law, and that in criminal proceedings it is of the utmost importance that a decision just, and reasonable on the merits should not be disturbed because in the course of the proceedings some flaw can be detected that is not fundamental and which is not proved to have worked injustice to the accused, although it may constitute a breach of the rules of criminal procedure." (Para 33)

16. In John vs Sherthali Muncipality, AIR 1959 Kerala

323, the Kerala High Court held as under:-

"It is therefore clear that the learned Magistrate committed a grave error in examining the accused person without his request and against

his protest, to prove a fact which the prosecution should have established by other evidence. That, however, is in my opinion, no ground to quash the entire proceedings, Section 167, Indian Evidence Act, 1872 provides inter alia that improper admission of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. The question whether the prosecution was sustainable or the conviction was rightly made has therefore to be examined eschewing altogether the evidence furnished by the accused while under examination as a court witness."

17. Following Section 167 of the Indian Evidence Act, this

Court upholds the compensation of Rs.12,36,000/- awarded

by the learned Tribunal for the reasons stated above but not

for the reasons mentioned in the award.

18. For all the aforesaid reasons, the appeal is dismissed.

19. Copy of this order be given „Dasti‟ to learned counsel

for both the parties under signature of Court Master.

J.R. MIDHA, J

NOVEMBER 25, 2009 mk