U.P. State Road Transport Corpn. vs Jyotsana Yadav & Ors.
2011 Latest Caselaw 4101 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+           FAO 748/2003 and CM No.7136/2004


U.P. STATE ROAD TANSPORT CORPN.        ..... Appellant
                   Through: Ms. Garima Prashad and
                            Ms. Laxmibai, Advocates

                  versus


JYOTSANA YADAV & ORS.                             ..... Respondents
                 Through:             Mr. Rajesh Banati, Mr. Hari
                                      Mohan and Mr. Arpit
                                      Bhargava, Advocates


%                          Date of Decision : August   24, 2011

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.

1. This appeal under Section 173 of the Motor Vehicles Act,1988

seeks to impugn the judgment and award of the Motor Accidents

Claims Tribunal, Delhi dated 8th July, 2003 whereby the learned

Tribunal awarded a sum of ` 39,86,064/- (Rupees Thirty Nine Lakh

Eighty Six Thousand and Sixty Four Only) to the respondents No.1 to

4 with interest thereon at the rate of 12% per annum.

2. The facts pertinent for the decision of the present appeal may

be briefly delineated as follows.

3. On 28.05.1999, one Shri Sanjay Kumar Yadav, at about 5.45

p.m., was commuting in his Maruti car No.UP-15F-8501 on the

Delhi-Meerut road when a bus belonging to the U.P. State Road

Transport Corporation, bearing No.UHN-2624 (hereinafter referred to

as "the offending bus") came from the opposite direction at a very

fast speed, driven in a rash and negligent manner by the respondent

No.5, and hit against the car of the deceased head-on causing fatal

injuries to the deceased. As a result of the aforesaid impact of the

accident, the car of the deceased was pushed back from the place of

accident and completely smashed. The deceased was crushed to

death and his dead body was extricated from the smashed car by one

Shiv Kumar, an eye-witness to the accident. The respondent No.1 is

the young wife of the deceased, the respondent No.2 is the daughter

of the deceased, aged one and a half years at the time of the accident,

and the respondents No.3 and 4 are the father and the mother

respectively of the deceased. The aforesaid legal representatives of

the deceased filed a Claim Petition under Section 166 of the Act and

an enquiry was conducted by the Claims Tribunal culminating in the

award aforementioned. Aggrieved therefrom, the present appeal has

been preferred by the U.P. State Road Transport Corporation (for

short "U.P.S.R.T.C.").

4. I have heard Ms. Garima Prashad, the learned counsel for the

appellant and Mr. Rajesh Banati, the learned counsel for the

respondents No.1 to 4 at length and scrutinized the records. The

respondent No.5, the driver of the offending bus remained

unrepresented.

5. Ms. Garima Prashad, the counsel for the appellant has assailed

the award primarily on two grounds:

(i) The accident was the outcome of the rash and negligent

driving of the deceased who was guilty of contributory

negligence in the causation of the accident, but the

learned Tribunal had erroneously passed the award

against the appellant.

(ii) The award of a huge sum of ` 39,86,064/- with interest

thereon was wholly unjustified and disproportionately

excessive when compared with the income of the

deceased. The rate of interest awarded is also excessive

and the award deserves to be scaled down so as to give

reasonable damages and not to create a windfall resulting

in unjust enrichment.

6. Mr. Rajesh Banati, the learned counsel for the respondents

No.1 to 4, on the other hand, sought to support the award on both the

aforesaid counts. On the first aspect viz., contributory negligence of

the deceased, he contended that the learned Tribunal has threadbare

discussed the evidence of the eye witness to the accident, namely,

PW1 Shiv Kumar and rightly rejected the testimonies of RW1 Puran

Singh, the driver of the offending bus and RW2 Jai Karan, who

claimed to be a passenger in the bus at the time of the accident and

quite clearly was a planted witness. On the second aspect, he urged

that the learned Tribunal in computing the income of the deceased

had gone by the salary certificate proved on record by the employer

of the deceased, rather than by the job offers received by the deceased

from foreign countries offering him handsome amounts of

remuneration payable in U.S. dollars. The loss of dependency

assessed by the learned Tribunal on the basis of the salary certificate

was on the lower side and deserved to be enhanced.

7. It is proposed to deal first with the contention of the counsel for

the appellant with regard to the contributory negligence of the

deceased in causing the accident. In this regard, PW1 Shiv Kumar, an

eye witness to the accident stated that on 28.05.1999, he alongwith

his brother and one Akhilesh was going to Meerut by car bearing

registration No.DL-2CB-0795. Another Maruti car bearing No.UP-

15F-8501 driven by the deceased was going ahead of the car in which

he was travelling, when from the opposite direction a bus belonging

to the U.P.S.R.T.C. bearing registration No.UHN-2624 driven at a

high speed and in a rash and negligent manner was seen coming. The

said bus hit the Maruti car going ahead of his car. It was a head-on

collision, in which the car was completely smashed and the driver of

the car, Sanjay Kumar Yadav died at the spot. The witness further

stated that he had informed the police and with great difficulty had

taken out the dead body from inside the car. The police had recorded

his statement. He categorically stated that the accident had taken

place due to the fault of the bus driver. Though extensively cross-

examined by the counsel for the appellant, the witness stuck to the

version of the accident given by him. In his cross-examination, in

answer to a query put to him, he stated that he was a distant relative

of the deceased who happened to meet the deceased per chance at

Modi Nagar. He stated that he did not know the locality where the

office of the deceased was located. The car of the deceased was

ahead of him the entire distance of 25 kms. from Modi Nagar till the

place of the accident and was at a distance of about 12 feet from his

car. According to this witness, the width of the road was about 40

feet and the road was without a divider. The speed of the car of the

deceased was 40 to 50 kms. and the car was being driven on the

correct side of the road. He stated that there was no vehicle ahead of

the car driven by the deceased, and categorically denied the

suggestion that in the process of overtaking a truck the car went on

the wrong side of the road and struck against the bus. He further

stated that he had noticed the offending bus about 2 or 3 meters ahead

prior to the accident. He also stated that the car of the deceased was

pushed back by one and a half feet on account of the collision.

8. To counter the evidence of PW1 Shiv Kumar and to prove its

case, the appellant (the respondent No.2 in the Claim Petition)

examined RW1 Puran Singh, the driver of the offending bus and

RW2 Jai Karan, alleged to be one of the passengers of the offending

bus. RW1 deposed that on the date of the accident he was driving the

bus from Khatoli to Delhi. After dropping some passengers at the

police check post near Mahiuddin pur, he had started his bus when all

of a sudden a Maruti car emerged from the opposite direction from

behind a truck, which, in the process of overtaking the truck came on

the wrong side, and in order to avoid the accident he took his bus

towards the left side on the kachha road. Since the driver of the

Maruti car had lost control of the car, it struck against the front right

portion of the bus despite his efforts to avoid the accident. After the

accident, he had informed his superiors and taken photographs

Ex.RW1/1 to Ex.RW1/7, the negatives of which were Ex.RW1/8.

9. In the course of his cross-examination, in answer to a query put

to him, RW1 Puran Singh admitted that he was driving the bus from

Khatoli at a speed of 60 kms. per hour. He also admitted that the

photographs had been taken by him later on in the evening when the

police had already removed the car from the place of the accident.

Significantly, the witness stated in cross-examination that he did not

see the car before the accident, thereby completely belying the story

that he had seen the car and made an attempt to avoid the accident. In

answer to a query put to him in cross-examination, he stated that the

road was a four lane road and the truck was being driven in the third

lane of the road. I pause here to notice that as observed by the

learned Tribunal, this statement of the witness that the road was a four

lane road is completely falsified by the photographs taken by the

witness himself. As observed by the learned Tribunal, had it been so,

there would have been no need for the deceased to overtake the truck

from the right side of the truck when the deceased could have quite

conveniently overtaken the truck from the left side. Then again, the

photographs Ex.RW1/1 to RW1/7 clearly show that at the time when

the said photographs were taken not only the car was removed by the

police but the bus too had been removed before the photographs were

taken. The bus in fact is shown right in front of an electric pole with

huge bushes/trees. From the photographs, it is apparent that there

could not have been any vehicle between the offending bus and the

pole. At the risk of repetition, it is stated that the photographs relied

upon by RW1 himself also falsify his statement that the road was a

four lane road in which the truck was being driven in the third lane.

10. RW2 Jai Karan, who claimed to be one of the passengers of the

offending bus, reiterated the version of the accident given by RW1.

A close scrutiny of his evidence, however, shows that it is highly

doubtful that he was a passenger in the offending bus. If, as deposed

by RW2, he had given his name and particulars to the officials of the

bus of the U.P.S.R.T.C., they would have immediately taken into

possession his ticket or at least impressed upon him to preserve the

same for being produced before the Tribunal. He stated that he was a

summoned witness and in the same breath he stated that he had

received a letter from the U.P.S.R.T.C. to appear in the Court. This

was obviously stated by him as it is on the record that no summons

were issued to him.

11. The cross-examination of the aforesaid witness is relevant. In

his cross-examination, he stated that he had not given any statement

to the police that there was no negligence on the part of the driver of

the offending bus. He also stated that he could not tell the speed of

the bus immediately before the accident. Significantly also, he stated

that he did not see the Maruti car before the accident. If he could not

see the car of the deceased prior to the accident, his statement made in

his examination-in-chief to the effect that the car of the deceased

emerged on the road after overtaking the truck from the opposite side

and that the car was at a fast speed cannot be relied upon. His further

statement that the deceased had lost control over the car and caused

the accident also cannot be relied upon. Though earlier, in his cross-

examination, he stated that he had occupied the seat just behind the

seat of the driver of the bus, on a query put to him in cross-

examination, he stated that he had boarded the bus from Meerut only

5 or 7 minutes before the accident. On a further query put to him, he

stated that the distance between the place in Meerut from where he

had boarded the bus and the place of the accident was about 10 to 12

kms. If he is to be believed that the bus had covered 10 to 12 kms.

within 5 or 7 minutes, the necessary inference is that the bus was

being driven at a fast speed.

12. From the aforesaid evidence on record, in my opinion, it stands

established on record that it was the driver of the offending bus who

had caused the accident by his high speed, rash and negligent driving.

The presence of PW1 Shiv Kumar at the time of the accident cannot

be doubted as he was the person who, as set out above, had extricated

the dead body from the smashed car and informed the police about

the accident. It was on his statement that the First Information Report

was prepared. No motive for his deposing falsely has emerged on

record and in fact his testimony has emerged unscathed after cross-

examination. The testimonies of RW1 and RW2, on the other hand,

are replete with loopholes. Insofar as RW1 is concerned, he himself

admitted that he was driving the bus at a speed of 60 kms. per hour

and that he did not see the car prior to the accident. The presence of

RW2 at the time of the accident also appears to be highly doubtful.

Even assuming that RW2 was travelling in the offending bus on the

date of the accident, his testimony does not establish on record that

the accident was caused due to the rash and negligent driving of the

Maruti car by the deceased.

13. The entire version of the appellant that the car was trying to

overtake a truck at the time of the accident also could not be

corroborated in evidence. In the site plan, the bus is shown to be

parked on the kachha part of the road and in front of the bus is a pole

with trees and bushes on the side. It is evident that the accident did

not take place on the kachha part of the road, as with the pole in front

of the bus there was no space for the car. Evidently also, the driver,

who absconded from the spot (though later on he appeared at the spot

for the purpose of taking photographs), had removed the bus from the

place of the accident and parked it on the kachha side of the road,

possibly to substantiate his version that he had moved to the kachha

part of the road to avoid the accident. The only other possibility may

be that after hitting the car, the bus which was out of control of its

driver moved to the kachha part of the road. Even otherwise, the fact

that the car did not get entangled with the bus shows that it was the

bus which was out of control rather than the car. If the car rammed

into the bus, it would, most certainly have got entangled with the bus.

The contention of the learned counsel for the appellant that the

learned Tribunal erroneously did not hold the deceased to be guilty of

contributory negligence is, therefore, devoid of merit. The finding of

the Tribunal that the accident was the outcome of the high speed, rash

and negligent driving of the bus driver is accordingly affirmed.

14. The learned counsel for the appellant, as noticed above, has

also assailed the quantum of compensation awarded to the

respondents No.1 to 4 on two grounds viz., that the multiplier adopted

by the learned Tribunal for augmenting the multiplicand constituting

the loss of dependency of the respondents No.1 to 4 was not the

appropriate multiplier and the rate of interest awarded by the Tribunal

was too high.

15. As regards the quantum of compensation awarded to the

respondents No.1 to 4, there is on record the salary certificate of the

deceased Ex.PW2/1, which was proved on record by his employer.

The total salary of the deceased as per the salary certificate was `

17,829/- per month at the time of the accident. However, there are

also on record job offers made to the deceased by various firms in the

United States offering a salary of U.S. dollars 50,000/- to 55,000/- to

the deceased (Ex.PW3/19, Ex.PW3/20 and Ex.PW3/22). The

contention of the counsel for the respondents No.1 to 4 is that the

learned Tribunal while assessing the income of the deceased did not

take into account the aforesaid job offers received by the deceased. It

was further contended by the counsel that though PW2, Satya Narain

Sharma, Senior Executive (Finance), Centre for Development of

Telematics, the organization where the deceased was working, had

deposed in the witness box that the deceased, who was drawing a

salary of ` 17,829/- per month at the time of accident, would have

been promoted as Executive Director by the time of his retirement in

the year 2030 and would have been entitled to the salary of ` 46,680/-

per month, the learned Tribunal did not take into account the fact that

the salary of the deceased at the time of his superannuation would be

in the sum of ` 46,680/- per month. Instead, the Tribunal assessed

the average monthly income of the deceased to be in the sum of

` 26,743.50 by applying the dictum laid down in the case of Sarla

Dixit vs. Balwant Yadav, AIR 1996 SC 1274, that is to say, the

learned Tribunal took the monthly income of the deceased and added

to the same double the amount of his salary and then divided the sum

total by two (` 17,829/- + ` 35,658/- ÷ 2 = ` 26,743.50).

16. The learned counsel for the respondents No.1 to 4 submitted

that when there was specific evidence on record depicting the bright

future prospects of increase in the income of the deceased, the learned

Tribunal was not justified in assessing the average monthly income of

the deceased in the aforesaid manner. The learned counsel for the

respondents No1. to 4 also contended that for the purpose of

calculating the monthly dependency of the respondents No.1 to 4, the

learned Tribunal ought to have deducted not more than one-fourth of

the income of the deceased towards the personal expenses of the

deceased keeping in view the fact that the deceased had four

dependent family members.

17. Indisputably, the deceased was employed as an Engineer in the

Centre for Development of Telematics, Telecom Technology Centre

of the Government of India and his monthly remuneration as per his

salary certificate was ` 17,829/-, i.e., ` 2,13,948/- per annum and

after deduction of income tax was ` 1,88,948/- per annum according

to the testimony of his employer - PW2. Besides the said salary,

PW2 has deposed that the deceased was also getting book allowance

at the rate of ` 2,000/- per month, newspaper allowance at the rate of

` 150/- per month, ` 3,912/- per annum as lease maintenance, leave

encashment of one month salary every year and LTC encashment in

four years. Indisputably also, the deceased had very good job offers

from different firms in the United States. PW2 has deposed that at

the end of his career, the deceased, had he remained in his existing

job, would have drawn a salary of ` 46,680/- per month. It is also not

in dispute that the deceased died at the very young age of 28 years,

his date of birth being 30.11.1970. There is, thus, no manner of doubt

that the deceased had bright future prospects and a long span of

working life ahead of him had he not met with the unfortunate

accident.

18. The learned Tribunal in its award, however, adhered to the

guidelines laid down by the Supreme Court with regard to the manner

of calculating the future increase in the income of a deceased person

whose life span is cut short by a vehicular accident. The Tribunal had

thus taken the average monthly income of the deceased to be his

actual income at the time of the accident with 50% increase. Though

the Tribunal for the aforesaid purpose cited and relied upon the

decision in the case of Sarla Dixit (supra), I find that this addition is

also in consonance with the guidelines laid down by the Supreme

Court in the case of Smt. Sarla Verma and Ors. vs. Delhi Transport

Corporation and Anr., (2009) 6 SCC 121. Consequently, I see no

reason to differ with the learned Tribunal in this regard. The average

annual income of the deceased is thus taken to be in the sum of

` 1,88,948/- (average annual income on the date of the accident) plus

` 94,474/- (50% increase) is equal to ` 2,83,422/- (Rupees two lakh

eighty three thousand four hundred and twenty two only). However, I

am of the view that the learned Tribunal ought to have deducted only

one-fourth of the income of the deceased towards his personal

expenses keeping in view the fact that the deceased had four

dependant family members. Deducting one-fourth of the income of

the deceased towards his personal expenses, the loss of dependency of

the respondents No.1 to 4 comes to ` 2,12,566/- per annum (Rupees

two lakh twelve thousand five hundred and sixty six only).

19. As regards the multiplier to be adopted for augmenting the

aforesaid multiplicand, though the Tribunal has applied the multiplier

of 18, in my view, the multiplier of 17 would be the appropriate

multiplier. In the case of Sarla Verma (supra), the Hon'ble Supreme

Court has tabulated the multipliers applicable to the various age

groups of deceased persons, and for the age group of 26 years to 30

years the appropriate multiplier is set out as the multiplier of 17.

Thus calculated, the total loss of dependency of the respondents No.1

to 4 comes to ` 36,13,622/- [Rupees Thirty Six Lakh Thirteen

Thousand Six Hundred and Twenty Two Only] (that is, ` 2,12,566/-.

X 17).

20. Apart from the pecuniary damages, the Tribunal has awarded to

the legal representatives of the deceased a sum of ` 20,000/- towards

loss of consortium, ` 15,000/- towards funeral expenses, ` 50,000/-

towards damage caused to the car of the deceased and ` 50,000/- to

the respondent No.2 exclusively over and above the total

compensation of ` 39,36,064/- for her education and marriage

expenses. I see no reason to interfere with the award of ` 20,000/-

towards the loss of consortium and ` 15,000/- towards funeral

expenses. However, in my view, it was not open to the learned

Tribunal to award ` 50,000/- as damages for the car of the deceased,

more so, as it is not known as to whether the respondents No.1 to 4

had received any insurance money for the damage caused to the car

from the insurer of the car. Likewise, in my view, it was not open to

the learned Tribunal to award the sum of ` 50,000/- towards the

education and marriage expenses of the respondent No.2. However,

in view of the fact that the learned Tribunal has not awarded any

amount whatsoever to the respondents No.1 to 4 for the loss of love

and affection of the deceased and loss of estate of the deceased, a sum

of ` 20,000/- each is awarded to the respondents No.1 to 4 towards

loss of love and affection and loss of estate of the deceased. Thus, in

all, a sum of ` 36,88,622/- is awarded to the respondents No.1 to 4,

which may be rounded off to ` 36,89,000/- (Rupees Thirty Six Lakh

Eighty Nine Thousand Only).

21. As regards the interest, the learned Tribunal has awarded to the

respondents No.1 to 4 interest at the rate of 12% per annum from the

date of the filing of the petition till 31.02.2001 (sic. 31.12.2001) and

thereafter at the rate of 9% per annum till the date of actual payment.

It was further directed by the Tribunal that in case the compensation

was not paid within a period of one month, the appellant shall be

liable to pay interest at the rate of 12% per annum from the date of the

petition till the date of actual payment. It is however deemed just and

fair to award interest at the uniform rate of 9% per annum from the

date of the institution of the petition till the date of payment.

22. In view of the aforesaid, the award stands modified to the

extent that the quantum of compensation payable to the respondents

No.1 to 4 is scaled down from ` 39,86,064/- to ` 36,89,000/- and the

interest rate is varied as set out hereinabove. Since the entire award

amount is lying deposited in this Court in accordance with the

directions issued by the Hon'ble Supreme Court, the Registry shall

release the amount of the award as modified hereinabove to the

respondents No.1 to 4 in the ratio apportioned by the learned

Tribunal. If after the calculation of interest there is a shortfall, the

appellant shall deposit the same within one month of the date

notifying the appellant of the shortfall by the Registry.

23. The appeal is partly allowed in the above terms. The appeal and

CM No.7136/2004 stand disposed of.

24. Records of the Claims Tribunal be sent back.

REVA KHETRAPAL (JUDGE) August 24, 2011 km