Delhi Transport Corporation vs Usha Rani And Ors.
2011 Latest Caselaw 1322 Del

                                          REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+ FAO No.151/1999


DELHI TRANSPORT CORPORATION           ..... Appellant
                 Through: Mr. J.N. Aggarwal, Advocate.

                   versus

USHA RANI AND ORS.                                  ..... Respondents
                            Through:   Mr. V.P. Chaudhary, Sr.Advocate
                                       With Mr. Nitinjya Chaudhary and
                                       Ms. Sushma, Advocates.


%                           Date of Decision : March 07, 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?

                            O R D E R (ORAL)

: REVA KHETRAPAL, J.

1. By way of this order, it is proposed to decide the appeal filed by

the Delhi Transport Corporation against the judgment and award of

the Motor Accident Claims Tribunal dated 18.12.98 and the cross-

objections filed on behalf of the respondents Nos.1 to 5 under

Order 41 Rule 22 of the Code of Civil Procedure, 1908.

2. Briefly delineated, the facts leading to the filing of the appeal are

that on the fateful day, that is, on 05.03.1990 one Mr.

Chandershekhar (hereinafter referred to as "the deceased") was

sitting on his scooter bearing No. DNU 2530, which was stationary

at the red light signal, when a DTC bus No. DLP 1255 came from

behind and struck against the scooter. As a result of this, the

deceased (scooterist) got sandwitched between DTC bus No. DLP

8762 standing in front of the scooter and the bus No. DLP 1255,

which had hit his scooter from behind.

3. The aforesaid version of the accident recorded in FIR No. 108/90

at Police Station Connaught Place, Exhibit PW1/1 on the basis of

DD No.9A is, however, denied by the appellant/DTC. According

to the version of the DTC, which contested the Claim Petition filed

by the widow and the children of the deceased (the respondents

No.1 to 5 herein), bus No. DLP 1255 was proceeding from

Shaheed Bhagat Singh Terminal towards Tilak Nagar on route No.

851. At about 10.05 hours, when the said bus reached the Outer

Circle, Connaught Place, there was a heavy rush on the road on

account of peak hours. The driver of the DTC bus was driving his

bus very cautiously, following the traffic going ahead, when the

deceased who was driving a two wheeler scooter, rashly and

negligently, and at a very fast speed, came from behind and tried to

enter in between the two buses. He could not control his scooter

and hit against the stationary bus, which was standing at the red

light signal. After hitting the stationary bus, he fell down while

bus No. DLP 1255, which was coming from behind at a dead slow

speed and was also going to stop, crushed the fallen scooter of the

deceased. Thus, there was no negligence on the part of the bus

driver and the accident was caused due to the sole negligence of

the deceased himself.

4. The learned Claims Tribunal relying upon the testimony of PW-2,

Sh.R.K. Bhatia, who witnessed the accident, and discarding the

testimony of the DTC bus driver- RW-1 that the scooterist came

from behind and tried to enter between the buses on the ground

that his aforesaid testimony was at variance with his own

statements made before the DTC authorities, held that the accident

was caused due to the negligent driving of the driver of bus No.

DLP 1255 and, therefore, DTC and its driver were liable to pay

compensation to the family of the deceased.

5. The Tribunal then proceeded to assess the loss of dependency of

the respondents Nos. 1 to 5 and after considering the evidence of

PW-3, Sh. T.R. Arora, the Bank Manager of the Oriental Bank of

Commerce where the deceased was working and PW-4, Smt. Usha,

the widow of the deceased arrived at the following conclusions:-

"4. The evidence of PW3 and PW4 wife of the deceased shows that deceased was only 32 years of age and was working in Oriental Bank of Commerce as a Typist and getting salary of Rs.2499.52p, was a graduate and his salary would have gone up in future from time to time. As a grade I, he would have got salary of Rs.4192/- as deposed by PW3. He left behind two children and both the parents.(sic.)

5. I have assessed the dependency of the family on the deceased. Keeping in view the principle laid down by SC, in the case of Sarla Dixit Vs. B.R. Yadav to determine the average future emoluments, his last drawn salary of Rs.2499.92, can be taken as the dependency of the family, if we take the average of the salary and its double, and then deduct 1/3rd towards his own maintenance. The annual dependency of the family is thus assessed at Rs.2500 x 12 = 30,000/-. The deceased being only 32 years of age and wife being younger, maximum multiplier of 16 yrs. is deserved in the case. The capitalised multiplicand thus comes to Rs.30,000 x 16 = 4,80,000/-. In my view, this sum if invested by the family, would bring to the family a sum of Rs. 4800 p.m., which would equal his salary, if he had been provided as grade I, as deposed by PW3.

6. In the light of above discussion, I award a compensation of Rs. 4,80,000/- (including Rs. 25,000/- already granted) with interest @ 12% p.a. from the date of petition till its realization."

6. Aggrieved by the aforesaid judgment and award, the appellant -

Delhi Transport Corporation has preferred the present appeal for

setting aside the award, to which cross-objections have been

preferred by the respondents Nos. 1 to 5 for enhancement of the

award amount from ` 4,80,000/- to at least ` 10,00,000/- with

interest @ 15% per annum from the date of petition till realization.

7. Arguments were addressed by Mr. J.N. Aggarwal, Advocate on

behalf of the appellant and by Mr. V.P. Chaudhary, Senior

Advocate on behalf of the respondents Nos. 1 to 5. Mr. J.N.

Aggarwal contended that the Tribunal had committed an error

apparent on the face of the record by relying upon the deposition of

PW-1, ASI Ram Niwas from Police Station Connaught Place, who

was not even a direct witness to the occurrence of the accident and

had wrongly accepted and relied upon the testimony of PW-2,

Sh.R.K. Bhatia. He pointed out that PW-2, Sh. R.K. Bhatia,

though he stated that he saw the accident and narrated the whole

incident in his examination-in-chief, but in his cross-examination

he admitted that he had neither taken leave from his office nor any

written permission, but had simply gone to the accident site and

then to the hospital, which showed that he had cooked up the story

with the police. Further, this witness had contradicted his

statement by stating that when he reached the hospital, he saw that

the deceased was conscious but later on he said that he was not

fully conscious. He also stated that he had a talk with the deceased

whereas PW-1, ASI Ram Niwas, who was the author of the FIR,

stated that the injured was unfit for making statement.

8. Mr. V.P. Chaudhary, the learned senior counsel for the respondents

on the other hand has taken me through the testimony of PW-2,

Sh.R.K. Bhatia in support of his contention that a bare reading of

the testimony of this witness would suffice to show that it was

entirely creditworthy. I am inclined to agree for the reason that the

witness clearly stated in his examination-in-chief that the accident

took place while he was standing at the Regal Crossing near Khadi

Gram Udyog, and that his office was situated in G-Block,

Connaught Place and he was going to his office when the accident

took place at around 10.00 A.M. In cross-examination he stated

that he did not take any leave on that day from his Bank, nor had

he taken written permission from the Bank but he had simply gone

to the Bank and after informing them about the accident, he went

back to the spot, and thereafter to the hospital. The testimony of

this witness is corroborated by the testimony of PW1, ASI Ram

Niwas of Police Station Connaught Place, who stated that the

injured had already been removed to the hospital when he reached

the spot. On reaching the spot, he recorded the statement of the

Traffic Constable, Kiran Singh posted with Police Station

Parliament Street, Traffic Line and thereafter of the eye-witness

before going to the hospital. There is thus, in my view, ample

evidence on the record to show that the accident occurred as a

result of the rash and negligent driving of bus No. DLP 1255

belonging to the Delhi Transport Corporation and no fault can be

found with the findings of the learned Tribunal in this regard.

9. Adverting now to the cross-objections filed by the respondents

No.1 to 5, who have sought enhancement of the award amount.

Although a number of cross-objections were raised in CMP No.

12014/08, a two-fold submission is made by Mr. Chaudhary, the

learned senior counsel for the respondents Nos. 1 to 5 at the time

of hearing. The first contention of the learned senior counsel is

that keeping in view the fact that the deceased was survived by his

widow, Smt. Usha Devi, his two minor children and his parents,

the Tribunal erred in deducting 1/3rd of the income of the deceased

towards his personal expenses and maintenance instead of 1/4 th

thereof. I find substance in this contention for the reason that it is

not conceivable that with such a large family to support, the

deceased could have spent 1/3rd of his earnings on his own

maintenance and personal expenses.

10.The second contention of Mr. Chaudhary, the learned counsel for

the respondents Nos.1 to 5 is that admittedly the deceased was

working in a Nationalized Bank on a salary of ` 2,499.52 per

month and was a graduate, but the learned Tribunal failed to take

notice of the fact that with the implementation of the

recommendation of the Fifth Pay Commission, the income of the

deceased, had he remained alive, would have more than doubled in

the year 1998 itself, and the income of the deceased at the time of

his retirement would not have been less than ` 15,000/- p.m. I find

merit in this contention as well. Admittedly, the deceased was

working in the Oriental Bank of Commerce as a typist and getting

a salary of ` 2,499.5 rounded off to ` 2,500/- per month. In due

course of time, he would have made advancement in his career,

and his salary most certainly would have increased with the

passage of time. The Supreme Court in the case of Sarla Verma

(Smt.) and Ors. Vs. Delhi Transport Corporation and Anr.

(2009) 6 SCC 121 has laid down certain guidelines to be followed

by all Tribunals and Courts in the country for assessment of the

future prospects of a victim in a fatal accident case. Since the

assessment of the salary of the deceased is not based thereon by the

learned Tribunal in the present case, I proceed to re-calculate the

compensation to be awarded to his legal representatives for their

loss of dependency in consonance with the said guidelines laid

down in Sarla Verma's case (Supra). The deceased being 32

years of age on the date of accident, for the purpose of assessment

of his average annual income, an addition of 50% towards future

prospects must be made to the salary being drawn by him at the

time of the accident. Thus computed, the average annual income

of the deceased works out to ` 2,500/- + ` 1,250/- = ` 3,750/-

per month. Deducting 1/4th therefrom towards the personal

expenses of the deceased, the contribution of the deceased towards

the family expenses comes to ` 2,812.50 per month i.e. ` 33,750/-

per annum. By applying the multiplier of „16‟ to the aforesaid

multiplicand, the total loss of dependency of the respondents

works out to ` 5,40,000/-. Adding non-pecuniary damages of `

10,000/- towards loss of love and affection, ` 10,000/- towards

loss of consortium, ` 10,000/- towards loss of estate and `

10,000/- towards funeral expenses, the total amount of

compensation payable by the appellant to the respondents No.1 to

5 comes out to ` 5,80,000/-. The respondents are accordingly held

entitled to the aforesaid amount with interest @ 12% per annum

from the date of the filing of the petition till its realization as

awarded by the Tribunal.

11.Seventy per cent of the award amount shall enure to the benefit of

respondent No.1, Smt. Usha Devi, the widow of the deceased, and

the balance 30% shall be equally apportioned between the

respondents Nos. 2, 3 and 5 being the children and the mother of

the deceased. The appellant is directed to make the payment of the

aforesaid amount to the respondents within a period of 30 days

from the date of the receipt of the order.

12.The appeal is disposed of accordingly. A copy of this order be sent

to the counsel for appellant for compliance.

REVA KHETRAPAL (JUDGE) March 07, 2011 sk