Rajasthan Roadways Transport ... vs Smt. Mukesh And Others
2010 Latest Caselaw 5572 Del

                                  REPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+            MAC.APP. No. 385/2008


RAJASTHAN ROADWAYS TRANSPORT CORPORATION
                                             ..... Appellant
                 Through: Ms. Ritu Bhardwaj, Advocate.

             versus


SMT. MUKESH AND ORS.                               ..... Respondents
                  Through:             Mr. M.B. Singh, Advocate.

%                         Date of Decision : December 7, 2010

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

                          JUDGMENT

: REVA KHETRAPAL, J.

By way of this appeal, the Rajasthan Roadways Transport

Corporation seeks to assail the judgment and award of the Motor

Accident Claims Tribunal passed in a claim petition under Section

166 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the

Act') filed by the respondents no.1 to 5 herein seeking compensation

of ` 35,00,000/- for the death of their bread-earner Inderjeet, who

sustained fatal injuries while driving a Maruti Esteem car, on account

of the rash and negligent driving of a bus bearing no. RJ-06P-0947

belonging to the appellant herein and driven by the respondent no.6

Rattan Giri. The Motor Accident Claims Tribunal after considering

the evidence adduced by the parties awarded compensation in the sum

of ` 20,80,000/- inclusive of the interim award, with interest @ 7%

per annum from the date of the filing of the petition till its realization,

and held the appellant and the respondent no.6, jointly and severally

liable to pay the same to the respondents no.1 to 5.

2. Aggrieved by the said award, the present appeal has been

preferred by the appellant on two grounds. The first ground of

challenge by the appellant is that the driver of the bus (the respondent

no.6 herein) was not negligent and the appellant is therefore, not

liable to pay any compensation. The second ground of challenge is

that the amount awarded by the learned Tribunal is on the higher side.

3. It is contended by Ms. Ritu Bhardwaj on behalf of the appellant

Transport Corporation that there is no cogent evidence on record to

justify the finding of the Tribunal that the respondent no.1 by his

rashness and negligence had caused the fatality in the instant case.

The counsel referred to the evidence of RW1, Jai Dev Singh, the

conductor of the offending bus on the date of the accident, to buttress

her submission that the appellant could not have been held liable by

the learned Tribunal. As regards the quantum of compensation

awarded to the legal representatives of the deceased, it is the

submission of Ms. Ritu Bhardwaj that the amount of the award is

highly excessive, the legal representatives of the deceased having

failed to establish on record the salary of the deceased.

4. Mr. M.V. Singh, the counsel for the respondents no.1 to 5, on

the other hand, sought to support the award as just and proper except

to contend that keeping in view the fact that the deceased had five

dependent members, the Tribunal erred in deducting 1/3rd of the

income of the deceased towards his maintenance and personal

expenses instead of 1/4th.

5. As regards the first ground of challenge, I find no merit in the

same. There is on the record the statement of the eye-witness PW2,

Sandeep, who stated on oath that on 2nd March, 2002 he was

travelling in a Maruti Esteem car with his wife, which was driven by

the deceased Inderjeet Yadav, and they were returning from

Chittorgarh/Ajmer side to Gurgaon. The deceased was driving the

Esteem car at a normal speed on the left side of the road and at about

3-4 p.m. when they reached near Mauza Kabelian, District Bhilwara,

a bus bearing no. RJ-06P-0947 came from the front side which being

driven at a very fast speed and in a rash and negligent manner, after

overtaking a truck, hit against their car, dragging the car for some

distance. Due to the impact, the deceased sustained grievous injuries

while he (PW3) sustained simple injuries on his left hand and left leg

and his wife suffered fracture of left leg. In the cross-examination of

this witness, his testimony remained unshaken and as a matter of fact

the witness clarified that the accident was caused by the bus while

encroaching on their side of the road, when the said bus tried to

overtake the truck.

6. The respondents, as stated above, examined RW1, Jai Dev

Singh, the conductor of the offending bus, who in his testimony stated

that he was a conductor on the Rajasthan Roadways bus going from

Ajmer to Bhilwara, driven by Rattan Giri. According to him, the bus

was being driven at a normal speed when a car came from the

opposite direction at a very fast speed and collided against the bus.

The accident took place on a curve.

7. It deserves to be noticed at this juncture that the appellant-

Transport Corporation, which was arrayed as the respondent no.1 in

the claim petition, in the written statement filed by it, had

emphatically denied the involvement of the bus in the accident. Yet,

RW1, Jai Dev Singh, alleged to be the conductor of the bus at the

time of the accident has been produced in the witness box by the

appellant to delineate the manner in which the accident took place.

Significantly, also the driver of the bus, Rattan Giri (the respondent

no.6 herein) chose to keep away from the witness box. It is settled

law that where the driver of the offending vehicle chooses to shun the

witness box, adverse inference of rash and negligent driving must be

drawn against him.

8. In any case, I see no reason to doubt the testimony of PW3,

Sandeep, an eye-witness to the accident who was also injured in the

accident along with his wife. The Tribunal has rightly held that the

involvement of the vehicle and the factum of accident have been duly

proved on record and that in view of the evidence of PW3, it must be

held that the deceased suffered fatal injuries in a road accident caused

by the respondent no.6, driving the offending bus in a rash and

negligent manner. A glance at the site plan and the photographs,

Ex.RW1/1 to RW1/3 further corroborates the fact that the accident

was the outcome of the negligence of the respondent no.6 in driving

his vehicle.

9. Adverting to the second ground of challenge, I find no merit in

the same for the following reason:

The salary certificate of the deceased has been duly proved on

record by his employer Sh.Hari Radheshwar, PW1, Director of Asia

Pacific Delphi Corporation vide certificate Ex.PW1/1. PW1 has

categorically stated that the said certificate bears his signatures. PW1

has also placed on record the receipts of payment to the deceased

Inderjeet, who he testified, had been employed to drive his car. This

witness has not been cross-examined at all and accordingly the

certificate Ex.PW1/1 signed by the witness must be taken to be

authentic and trustworthy. A perusal of the certificate shows that the

deceased was drawing a salary of ` 11,500/-, i.e. the basic salary of

` 7500/- plus other benefits. The learned Tribunal, in these

circumstances, has rightly observed that as per Ex.PW1/1, the carry

home salary of the deceased is shown as ` 11,500/- ; and has taken

the income of the deceased at the time of his death to be ` 10,000/-

per month.

10. Taking into consideration the future prospects of the deceased,

the Tribunal has taken his income to be ` 15,000/- per month. Out of

this 1/3rd has been deducted on account of the personal expenses of

the deceased and the average annual dependency of the claimants

ascertained to be in the sum of 1,20,000/- per annum. To this the

Tribunal has applied the multiplier of 17, keeping in view the fact that

the age of the deceased at the time of the accident was 30 years.

Thus, the compensation has been calculated to be ` 1,20,000/- x 17 =

20,40,000/-. After adding the non-pecuniary damages for loss of

consortium and funeral expenses, the total compensation has been

worked out to be in the sum of ` 20,80,000/-, for which an award

has been passed with interest @ 7% p.a.

11. The guidelines for the award of compensation have been laid

down in a recent judgment of the Supreme Court rendered in Sarla

Verma and Ors. vs. DTC and Anr. (2009)6 SCC 121. In the said

case the Hon'ble Supreme Court has laid down that generally the

annual income of the deceased is the starting point for calculating the

compensation and that in view of the imponderables and

uncertainities, an addition of 50% of the actual salary to the annual

salary of the deceased towards the future prospects is warranted

where the deceased has a permanent job and is below 40 years of age.

It is further held that where the deceased was married, the deduction

towards the personal and living expenses of the deceased, where the

number of the dependent family members is 4-6 should be 1/4th . In

paragraph 19 of the judgment a chart has been worked out for the

guidance of the courts setting out the appropriate multiplier for

different age groups. As per the said chart the appropriate multiplier

in the instant case is 17 for the age group of 26-30 years. Thus, it is

amply clear that the quantum of compensation worked out by the

learned Tribunal squarely falls within the guidelines laid down by the

Hon'ble Supreme Court and no fault can be found with the

computation thereof. In view of the aforesaid, there is no merit in the

appeal and the same is accordingly dismissed.

12. The award amount, which is lying in this Court, shall be

released to the respondents no.1 to 5 in terms of the award of the

learned Tribunal, except the amount directed to be kept in the Fixed

Deposit Receipt.

13. The appeal stands disposed of accordingly.

REVA KHETRAPAL (JUDGE) December 7, 2010 sk