General Manager, Haryana ... vs Savitri Devi & Ors.
2011 Latest Caselaw 4102 Del

                                     UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    MAC. APP.249/2007


GENERAL MANAGER, HARYANA ROADWAYS
            ..... Appellant
                    Through: Mr. Yashpal Rangi, Advocate

                     versus

SAVITRI DEVI & ORS.                           ..... Respondents
                              Through:   Mr. Navneet Goyal, Advocate


+                    MAC. APP.           /2011


SAVITRI DEVI & ORS.                                 ..... Appellants
                              Through:   Mr. Navneet Goyal, Advocate

                     versus

GENERAL MANAGER, HARYANA
ROADWAYS & ANR.                     ..... Respondents
                Through: Mr. Yashpal Rangi, Advocate


%                             Date of Decision :   August 24, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed


MAC. APP.249 /2007                                        Page 1 of 21
    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.

MAC. APP.249/2007 and MAC. APP._____/2011 (to be numbered)

1. By this common judgment, it is proposed to decide both the

aforesaid appeals as common questions of fact and law are involved

in both the appeals.

2. The concise facts leading to the filing of the appeals are that on

11.07.2005 one Naresh Kumar met with a road accident while

crossing the road at the Gopalpur Wazirabad Crossing, Outer Ring

Road, Delhi, when he was hit by a Haryana Roadways bus bearing

No.HR-62-0359 being driven at a high speed, rashly and negligently,

and in complete violation of the traffic rules. On account of the

forceful impact, the said Naresh Kumar (hereinafter referred to as

"the deceased") fell at some distance on the road and sustained fatal

injuries. A criminal case bearing FIR No.341/2005 under Sections

279/304A IPC was registered at Police Station Timarpur against the

driver of the offending bus on the statement of an eye-witness, Head

Constable Ramphal. A suit bearing No.294/06 claiming compensation

in the sum of ` 25 lakhs for the untimely demise of the deceased in

the aforesaid accident was filed by his legal representatives, viz. his

widow, four sons and father, which culminated in the passing of the

impugned judgment and award whereby and whereunder the Motor

Accident Claims Tribunal awarded a total compensation of

` 9,85,216/- (Rupees Nine Lakh Eighty Five Thousand Two Hundred

and Sixteen Only) to the legal representatives of the deceased payable

by Haryana Roadways alongwith interest at the rate of 7.5% per

annum from the date of filing of the petition. Aggrieved therefrom,

the Haryana Roadways filed an appeal, being MAC. APP.

No.249/2007 for scaling down of the amount awarded by the learned

Motor Accidents Claims Tribunal and a cross-appeal thereto was filed

by the claimants seeking enhancement of the same.

3. I have heard Shri Yashpal Rangi, the learned counsel for the

Haryana Roadways and Mr. Navneet Goyal, the learned counsel for

the claimants and scrutinized the records. It is proposed to deal first

with the contentions of Mr. Yashpal Rangi, who represents the

appellant in MAC. APP. No.249/2007.

MAC. APP.249/2007 titled as "General Manager, Haryana Roadways vs. Savitri Devi & Ors."

4. Mr. Yashpal Rangi, the learned counsel for the appellant, has

assailed the quantum of compensation awarded by the learned

Tribunal by raising a two-fold contention. His first contention is that

the learned Tribunal failed to consider that the widow of the

deceased, namely, Smt. Savitri Devi, subsequent to the death of her

husband, is getting pension of ` 1,500/- per month from the

Government Department where the deceased was working. The

learned Tribunal, therefore, ought to have deducted the same while

calculating the loss of dependency of the claimants (the respondents

No. 1 to 6 herein). This would have scaled down the award amount

to ` 6,50,000/- only.

5. The second contention raised by Mr. Rangi is that the deceased

himself was guilty of contributory negligence in causing the accident,

and this factor was not considered by the learned Tribunal while

computing the award amount. It is submitted by the learned counsel

that the deceased himself had crossed the road negligently, inasmuch

as there was no zebra crossing at the place of the accident. It deserves

to be mentioned at this juncture that the second contention has not

been raised in the grounds of appeal at all and the words

"contributory negligence" are not mentioned therein. All that is

stated is that the accident took place entirely due to the negligence of

the cyclist himself.

6. In order to rebut the aforesaid contentions of Mr. Yashpal

Rangi, Mr. Goyal, the learned counsel for the claimants, submits that

the law is well settled that the pension drawn by the widow of the

deceased cannot be taken into account for the purpose of computation

of the loss of dependency of his legal representatives. As regards the

aspect of contributory negligence, Mr. Goyal points out that the

appellant has nowhere pleaded contributory negligence on the part of

the deceased and that such a plea is not even raised in the grounds of

appeal. The argument with regard to contributory negligence was,

therefore, nothing but a last-ditch attempt to wriggle out of the

judgment and award passed by the Motor Accidents Claims Tribunal,

whereby the liability of the award amount has been put at the door of

the appellant.

7. Insofar as the argument with regard to deduction of pension is

concerned, I find substance in the argument of Mr. Goyal that the

pension amount cannot be deducted while computing the loss of

dependency of the claimants. The Supreme Court, in a number of

decisions, has drawn a distinction between amounts which are

deductible from the compensation assessed on account of the

accidental death of a person and those which are not so deductible,

and has unequivocally laid down that the Motor Vehicles Act

envisages and takes into account payment of compensation to the

claimants only on account of accidental injury or death in a road

accident, not on account of any other death. Thus, for instance, if

there is natural death or death by suicide or serious illness or even

death by accidents through train or air flight not involving a motor

vehicle and any amount/s is received by the legal representatives of

the deceased on account of such death, it would not be deductible

under the Motor Vehicles Act. In the case of Helen C. Rebello

(Mrs.) and Others vs. Maharashtra State Road Transport

Corporation and Anr., (1999) 1 SCC 90, the law was enunciated as

follows:

"33. Thus, it would not include that which claimant receives on account of other form of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. However, our legislature has taken note of such contingency, through the proviso of Section 95. Under it, the liability of the insurer is excluded in respect of injury or death, arising out of, in the course of employment of an employee.

34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is

significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the "pecuniary gain" only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicle Act. There is no co- relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.

35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act

is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co- relation between the two. Similarly, life insurance policy is received either by the insured, or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-

relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual."

8. From the above, it is amply clear that the pension received by

the widow of the deceased, which is payable irrespective of the cause

of death, has no correlation with the amount received under the Motor

Vehicles Act, which is occasioned only on account of death arising

out of a motor vehicular accident. This being so, there can be no

question of deducting the pension amount from the amount awardable

to the claimants on account of loss of dependency of their bread

earner. The first contention of Mr. Yashpal Rangi, the learned

counsel for the appellant, is accordingly devoid of merit and is,

therefore, rejected.

9. As regards the aspect of contributory negligence, it may be

mentioned at the outset that the First Information Report in the

present case was registered by the Police of P.S. Timarpur on the

information of H.C. Ramphal, who, on the date of the accident, was

on patrolling duty alongwith Ct. Sohan Singh at the Gopalpur

Wazirabad Crossing and an eye-witness to the accident. His version

of the accident as set out in the First Information Report is identical

with his testimony in the witness-box, where he appeared as PW4 to

depose with regard to the manner in which the accident took place. In

his deposition, PW4 H.C. Ramphal deposed that while patrolling at

the crossing of Gopalpur Wazirabad, Outer Ring Road, after parking

his motorcycle, he had seen a Haryana Roadways bus bearing

No.HR-62-0359 coming from the Burari Chowk at a very high speed

and when the said bus reached the Gopalpur Wazirabad Crossing, it

hit a person named Naresh who was crossing the road from the

Gopalpur side to the Wazirabad side. As a result of the forceful

impact, the said Naresh had fallen on the divider of the road. PW4

further testified that it was he who had stopped the bus and had

apprehended the driver of the bus.

10. PW4 H.C. Ramphal was cross-examined by the counsel for the

appellant, but, as noted by the learned Tribunal, nothing emerged in

his cross-examination to impeach his credit worthiness, and his

testimony remained unblemished even after the cross-examination. In

his cross-examination, he categorically denied the suggestion put to

him that the accident had taken place due to the carelessness and

negligence of the deceased Naresh or that the driver of the offending

bus was driving his vehicle at a normal speed and in his own lane.

On a query put to him, PW4 categorically stated that the speed of the

bus at the time of the accident was 55 to 60 kms. per hour and that the

speed limit at the place of the accident was 40 kms. per hour.

11. Evidence in rebuttal was led by the appellant by examining the

respondent No.7 Surjit Singh, the driver of the offending bus, as

R2W1. To be noted that the said witness in his entire testimony did

not dispute the factum of accident and that it was he who was driving

the bus of the Haryana Roadways bearing No.HR-62-0359 at the

relevant time. His version of the accident as narrated in his affidavit

by way of evidence (which evidently was got prepared by the

appellant herein) is, however, at complete variance with the First

Information Report as well as the testimony of PW4 - H.C. Ramphal,

inasmuch as he stated that the bus driven by him had knocked down a

cyclist.

12. It may be recapitulated that the case of the claimants as well as

of the Police is that the bus had hit a pedestrian. Significantly also, in

the written statement filed by the respondent No.7 (R2W1) before the

Tribunal, it was not denied by him that he had hit the deceased while

he was crossing the road near the divider of the road and that is why

the contention has been raised by the learned counsel for the Haryana

Roadways before this Court that the deceased who was a pedestrian

was not crossing the road at the zebra crossing, and hence guilty of

contributory negligence. Apparently, R2W1 in his affidavit by way

of evidence sought to toe the line of the Haryana Roadways, which, in

its written statement, had made out a case that the bus had hit a cyclist

and not a pedestrian, which is wholly contrary to the case of the

police and the facts as recorded in the First Information Report.

13. It is, thus, amply clear that no clear cut evidence has been

brought on record by the appellant with regard to contributory

negligence on the part of the deceased. On the other hand, in his

testimony PW-4 Ramphal stood his ground, and categorically stated

that the deceased was crossing the road at the zebra crossing where

there was blinking light signal. I see no reason to disbelieve the

statement of this witness.

14. I pause here to notice that this zebra crossing is not shown in

the site plan Ex.PW-4/B, but the site plan is a classic example of the

careless and haphazard manner in which the police carries on

investigation in road accident cases. The foot note under the site plan

mentions "Point A" as the place of accident, "Point B" as the place

where the deceased was stated to have fallen after being hit by the

offending vehicle and "Point C" as the place where H.C. Ramphal

and Ct. Sohan Singh were standing, but there is no corresponding

marking of Points "A", "B" and "C" in the site plan.

15. In view of the aforesaid, the findings of the learned Tribunal in

respect of the rash and negligent driving of the driver of the offending

Haryana Raodways bus are affirmed. Consequently, the appeal is

dismissed.

MAC. APP._______/2011 titled as "Savitri Devi & Ors. vs. General Manager, Haryana Roadways and Anr."

16. The appellants in this appeal are the claimants who seek

enhancement of the compensation awarded to them by the learned

Tribunal on the ground that, in law, they are entitled to receive a sum

of ` 29,83,392/- (Rupees Twenty Nine Lakh Eighty Three Thousand

Three Hundred and Ninety Two Only) with costs and interest, if the

guidelines laid down by the Hon'ble Supreme Court in the case of

Sarla Dixit vs. Balwant Yadav reported as AIR 1996 SC 1274 are

followed.

17. In the course of arguments, Mr. Navneet Goyal, the learned

counsel for the appellants, contends that the learned Motor Accidents

Claims Tribunal, for the purpose of computing the loss of dependency

of the appellants, erroneously assessed the salary of the deceased to

be in the sum of ` 7,269/- per month, when the deceased was

employed as a sewer-man in the Municipal Corporation of Delhi on a

gross salary of ` 8,179/- per month at the time of the accident. He

further contends that the learned Tribunal calculated the average

monthly income of the deceased without taking into account the

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

increase was inevitable keeping in view the fact that the deceased had

a permanent and stable job with the Municipal Corporation.

18. It is next contended by Mr. Goyal that the deceased left behind

him six legal representatives, being his widow, four sons and father

and, in such circumstances, the learned Tribunal ought not to have

deducted one-third of the income of the deceased towards his

personal expenses and maintenance. Referring to the judgment of the

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

Transport Corporation and Anr., (2009) 6 SCC 121, Mr. Goyal

contends that the deduction for the personal expenses of the deceased

can at the most be one-fourth in a case where the number of

dependent family members are between four to six.

19. Mr. Rangi, the learned counsel for the Haryana Roadways, on

the other hand, sought to support the award insofar as the assessment

of compensation is concerned and contended that no enhancement in

the award amount was either warranted or called for.

20. Having heard the counsel for the parties and scrutinized the

records of the Tribunal, I am inclined to agree with the learned

counsel for the appellants that the assessment of the income of the

deceased as made by the learned Tribunal is not in accordance with

law, for the reason that the law is well settled that while assessing the

income of the deceased any deductions shown in the salary certificate

as deductions towards GPF, life insurance premium, repayment of

loans, etc., should not be excluded from the income of the deceased

for the purpose of ascertaining the loss of dependency of the

claimants. It has been so held in the case of Shyamwati Sharma and

Others vs. Karam Singh and Others, 2010 (112) SCC 378, where the

Supreme Court observed as follows: (SCC, Page 380)

"We, however, make it clear that while ascertaining the income of the deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance

premium, repayments of loans, etc., should not be excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased."

21. Thus, in the present case, the deductions made by the learned

Tribunal towards GPF, GIS and GPF loan cannot be sustained and the

income of the deceased is accordingly assessed at ` 8,179/- per

month. Indisputably also, the deceased was in a stable job as a sewer-

man in the Municipal Corporation of Delhi, and it is also proved on

record that deceased was only 35 years of age at the time of the

accident. Thus, the future prospects of increase in the income of the

deceased also cannot be ignored. In the case of Sarla Verma (supra),

it has been laid down that as a rule of thumb where the age of the

deceased is below 40 years and the deceased is in a permanent and

stable job, a 50% increase in the income of the deceased is justified

while assessing his income. The average monthly income of the

deceased is, thus, assessed to be in the sum of ` 12,268.50 per month

[` 8,179/- per month (actual income at the time of the accident) plus

` 4,089.50 per month (anticipated earnings of the deceased)].

22. As regards the deduction to be made towards the personal and

living expenses of the deceased, where the deceased is married and

the number of dependents of the deceased are between four to six in

number, it has been laid down by the Supreme Court in the case of

Sarla Verma (supra) as follows:

"Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 2 to 3; one-fourth (1/4th) where the number of dependent family members if 4 to 6; and one- fifth (1/5th) where the number of the dependent family members exceed six."

23. Thus, in view of the fact that the deceased in the present case

left behind him six legal representatives, a deduction of one-fourth of

the income of the deceased would be just and proper, leaving a

balance of ` 9,201/- per month as the monthly loss of dependency of

the appellants or say, ` 1,10,412/- as their annual loss of dependency.

The said annual loss of dependency constitutes the multiplicand

which has to be augmented by an appropriate multiplier. The learned

Tribunal has adopted the multiplier of 16, and the said multiplier is

also the tabulated multiplier for the age groups of victims between 31

to 35 years of age, approved of by the Supreme Court in case of Smt.

Sarla Verma (supra). Thus calculated, the total loss of dependency

of the appellants works out to ` 17,66,592/- (that is, ` 1,10,412/- x 16

= ` 17,66,592/-) [Rupees Seventeen Lakh Sixty Six Thousand Five

Hundred and Ninety Two Only].

24. In addition to the aforesaid sum awarded towards the loss of

dependency, the learned Tribunal has held the appellant No.1 entitled

to a sum of ` 10,000/- towards the loss of consortium, and all the

appellants entitled to a sum of ` 10,000/- towards the loss of love and

affection of the deceased, ` 10,000/- towards the loss of expectancy

of life of the deceased and ` 10,000/- towards the funeral expenses of

the deceased. The award of the aforesaid damages under the

aforesaid heads is upheld with the exception of the award of

` 10,000/- under the head of loss of expectancy of life of the

deceased, which amount shall now be treated to be awarded under the

head of loss of estate of the deceased. The appellants are, thus, held

entitled to a total compensation of ` 18,06,592/- (Rupees Eighteen

Lakh Six Thousand Five Hundred and Ninety Two Only).

25. Accordingly the award amount stands enhanced by a sum of

` 8,21,376/-, which may be rounded off to ` 8,21,400/- (Rupees Eight

Lakh Twenty One Thousand and Four Hundred Only) to be paid by

the respondent-Haryana Roadways alongwith interest thereon at the

rate of 7.5% per annum from the date of the petition till realization

within a period of 4 weeks from the date of the passing of the order.

Needless to state that award amount is inclusive of the amount of the

interim award.

26. The award is modified to the aforesaid extent.

27. To conclude, "the appeal of the Haryana Roadways is

dismissed and the appeal of the claimants is allowed to the extent

stated above. There will be no order as to costs.

28. Records of the Claims Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) August 24, 2011 km