Rajasthan State Road Transport ... vs Usha Rani
2011 Latest Caselaw 4410 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              MAC. A. No.15 OF 2006

                                        Reserved on: 5th August, 2011
%                                 Pronounced on: 9th September, 2011


      RAJASTHAN STATE ROAD
      TRANSPORT CORPORATION                              . . . APPELLANT

                                     Through:    Ms. Ritu     Bharadwaj,
                                                 Advocate.

                               VERSUS

      USHA RANI                                        . . .RESPONDENT

                                     Through:    Nemo.


CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. Arguments in this appeal were heard on 5th August, 2011.

Only counsel for the appellant was present, who made her

submissions. As nobody appeared on behalf of the respondent,

while reserving the judgment, one week time was granted to

both the parties to file their written submissions. Though this

Court has waited for almost one month, no written submission

on behalf of the respondent has been filed. However, written

submission on behalf of the appellant has been filed. Thus,

without waiting any further, it is deemed proper to proceed

with the judgment on the basis of written and oral submissions

of the appellant, pleadings in the appeal and trial court record.

2. The respondent No.1, Usha Rani is the mother of, Vipin Kumar

(hereinafter referred to as „the deceased‟), who died in a road

accident on 5th December, 2000. The deceased was coming

from Balaji to Delhi on the fateful day in TATA Sumo, bearing

No.DLP5C-3316. This TATA Sumo met with an accident when

it was hit by a bus bearing No. RA-05-P-0590, which belongs to

the appellant, viz., Rajasthan State Transport Corporation. In

this accident, the deceased received serious injury. Even other

persons sitting in Sumo received injuries on their persons. All

of them were moved to a hospital. However, the deceased

died as a result of injuries suffered by him.

3. Mother of the deceased, i.e., respondent No.1 filed claim for

compensation of `10 lacs along with interest at bank rates till

the realization of the amount in the Motor Accident Claims

Tribunal (hereinafter referred to as „MACT‟). As per the

averments in the said petition, at about 9.45 a.m. when Tata

Sumo reached at NH-11 near Sehta Mahuhaya, a bus bearing

No.RA-05-P-0590 being driven by the respondent No.3, Rajvir

Singh at a very high speed and in a rash and negligent manner

came from behind and forcibly hit TATA Sumo of the deceased

turned turtle. All the persons sitting in TATA Suma received

injuries on their persons. All of them were moved to Mahuya

Hospital Rajasthan. The deceased received serious injuries and

he was referred to Savai Man Singh Hospital, Jaipur where he

died.

4. The allegation of the respondent No.1 was that accident

occurred due to rash and negligent driving of bus by Rajvir

Singh, who was driving the said bus. The appellant was

impleaded as the respondent No.2. Under the control and

supervision of respondent No.2., the bus was driven by Rajvir

Singh. The Oriental Insurance Company was impleaded as the

respondent No.3 However, the name of Oriental Insurance

Company was dated on 3rd June, 2003 from array of

respondents, as no claim was received against this Insurance

company. The appellant herein contested the petition stating

that the driver of the bus was holding a valid driving license

and he was driving the bus with proper care and caution. As

per the defence, the accident took place due to rash and

negligent driving by the deceased himself, who was driving the

TATA Sumo without caring for the traffic rules. He applied

unwarranted brakes without giving any signals to the vehicle

that was following. Thus, the entire negligence was attributed

to the deceased and on this ground, the appellant denied any

liability. Rajvir Singh admitted the written submission filed by

the appellant. Based on the pleadings of the parties, the

following issues were raised:

"1. Whether Sh. Vipin Kumar died in an accident involving vehicle No.RJ-05-P-0590 caused due to rash and negligent driving on the part of respondent No.1?

2. Whether the accident was caused due to the contributed negligence on the part of driver of TATA Sumo No. DL5C-B-3316 and respondent No.1?

3. Whether the petitioner is entitled to claim compensation? If so, to what extent and from which of the respondents?

4. Relief."

5. In order to prove her case, the claimant, Usha Rani examined

two eyewitnesses, viz., Sunil Kumar (PW-2), who was also

travelling in the said TATA Sumo at the time of accident as well

as Sachin Kumar (PW-3), who was the brother of the deceased

and was also travelling in TATA Sumo. Both of them deposed

to the fact that the deceased was travelling in the vehicle with

due care and caution following traffic rules. At about 9.45 AM

when they reached at NH-11 near Sehtadiya Mahuya, the

offending bus being driven by Rajvir Singh came from behind

at a very high speed and in a rash and negligent manner and

forcibly hit the TATA Sumo, due to which TATA Sumo turned

turtle. All the passengers sitting in TAT Sumo received injuries

on their persons. They were removed to Mohuya Hospital,

Rajasthan where they were medically examined. The deceased

received serious injuries and he was referred to Savai Man

Singh Hospital, Jaipur where he died. A criminal case was

registered in respect of offences under Section 279, 337, 304-

A, Indian Penal Code at Police Station, Mohuya vide F.I.R.

No.360/2000. He further deposed that the accident took place

due to rash and negligent driving of Rajasthan bus No.RJ-P-

0590.

6. In rebuttal, the driver of the bus Rajvir Singh appeared as RW-

1. His version was that he was going from Jaipur to Bharatpur.

When he reached near Mahuya near Rohkaria village, one TATA

Sumo DL-5C-3316 suddenly over took his bus and suddenly

applied brakes. The bus was full of passengers. He also

applied brakes. Due to sudden brakes applied by TATA Sumo,

he could not control his bus and it struck against TATA Sumo.

The TATA Sumo went on the wrong side and it struck against a

tree. The driver of the TATA Sumo was under the influence of

liquor at that time. He was not driving the TATA Sumo

carefully. The accident occurred due to rash and negligent

driving of TATA Sumo. He had given hand signal to the driver

of TATA Sumo. Police did not lodge any report. In cross-

examination by the learned counsel for the claimant, RW-1

denied that TATA Sumo was going ahead of his bus. The driver

of TATA Sumo told him and other people present on the spot

that he was under the influence of liquor, so he applied brakes

suddenly. He took the passengers of TATA Sumo in that TATA

Sumo to the hospital. He further admitted that the police case

was registered against him.

7. Learned MACT, after analyzing the aforesaid evidence,

recorded its finding that the testimony of the RW-1 was not

trustworthy, as it was contrary to the site plan, which was

prepared at the time of accident and it showed that the bus in

question was behind TATA Sumo and hit TATA Sumo from

behind. After hitting, TATA Sumo went in front of Theka

Agnreji Sharab, situated on the left side of road, turned turtle

after accident and went on his right side of the road at point

„C‟. It did not show that TATA Sumo struck against a tree after

it was hit by the bus in question from behind. RW-1 had

deposed that the deceased was in drunken condition at the

time of accident, but no such plea recorded in written

submission. On the contrary, the testimony of PW-2 & RW3

remained unchanged which was corroborated by the certified

copy of F.I.R. This F.I.R. was registered against the driver of

the bus on the complaint lodged by Monoj Kumar, who was

travelling in the same TATA Sumo. Chargesheet (Ex. P-3) was

submitted against R-! after investigation of the case by S.H.O.,

P.S. Mahuya, District - Dosa, Rajasthan, the postmortem

report (Ex. P. - 2) further supported the case of the claimant

as in the said report, cause of death was mentioned as "shock

brought about as a result of antemortem injuries sufficient to

cause death in the ordinary course of nature‟.

8. On this basis, issue Nos. 1 & 2 were decided in favour of the

claimant and against the driver, Rajveer Singh.

9. Under issue No.3, the quantum of compensation was discussed

by the learned MACT. The claimant had appeared as PW-1 and

deposed that her son was running business under the name

and style of M/s. Styale Gift Palace and was earning more than

`4,000/- per month. He used to give her `4,000/- per month

for household expenses and was maintaining the family.

However, no proof of business or income was produced by the

claimant. In the absence of this record, the MACT took into

consideration Minimum Wages rates as applicable in Delhi to an

unskilled worker, which on the relevant date, was `2,524/- per

month. On this basis, yearly income was worked out at

`30,288/-. The MACT took future prospects into consideration

and added 50% to the aforesaid thereby treating the income co

the deceased at `3786/- per month or `45,432/- per annum.

One third, out of this, was deducted towards his personal

expenses and remaining amount of `30,288 was treated as

annual loss of income caused to the claimant. The deceased

was 22 years of age at the time of accident. Learned MACT

applied multiplier of 17 and calculated compensation at

`5,14,896/- (`30,288 x 17). Another sum of `20,000/- was

added to its award, on account of suffering mental pain, agony,

love and affection. `2,000/- was given as funeral expenses

and `2,500/- towards loss of estate.

10. Thus, total amount awarded to the claimant was `5,39,396/-

along with interest @ 7% from the date of filing of petition till

realization.

11. Since the finding of the MACT was that the accident took place

on account of rash and negligent driving of the offending

vehicle driven by Rajveer Singh, it is held that both the

appellant and Rajveer Singh are jointly and severally liable to

pay the compensation to the claimant. Out of the awarded

amount, 30% along with proportionate interest was directed to

be released to the petitioner and remaining amount was to be

kept in the F.D.R. for a period of five years in her name in a

bank of her choice.

12. This appeal is preferred against the aforesaid award dated 27th

October, 2004 of the learned MACT. In this appeal, orders

were passed on 1st September, 2006 directing the appellant to

deposit 50% of the awarded amount within eight weeks along

with interest amount in this Court and subject to the said

deposit, operation of the impugned award was stayed. The

claimant (who is impleaded as respondent No.1 in this appeal)

could not be served in the ordinary course. Application for

substituted service was filed by the appellant, which was

allowed on 20th December, 2007 directing the respondent No.1

to be served by publication in „Statesman‟ (Delhi Edition). The

citation was duly published, still there was no appearance on

behalf of the claimant, respondent No.1. In these

circumstances, this appeal was admitted on 28th May, 2008.

Trial Court Record was summoned. The matter was also

referred to the Continuous Lok Adalat. The said Lok Adalat

issued notice to the respondents. This time, before Lok Adalat,

respondent No.1 was appeared through Mr. Yashpal, Advocate.

However, the matter could not be settled in the Lok Adalat and

therefore, it was directed to be listed on its turn in the Regular

List. This is how the matter was heard on 5th August, 2011, as

pointed out in the beginning.

13. It may be stated at the outset that the appellant has not

disputed the findings arrived at by the learned MACT on issue

Nos.1 & 2 except to a limited extent noted at the appropriate

stage. The entire thrust of the arguments of the appellant was

only on the quantum proceedings awarded by the MACT. It

was argued that Multiplier 17 is wrongly applied by the MACT.

The MACT has failed to appreciate that the claim of the

claimant before it, was under Sections 140 and 166 of the

Motor Accident Claim Act (hereinafter referred to as „the Act‟)

whereas using the formula provided in Schedule - II is in those

cases when the claim petition is filed under Section 163A of the

Act and not in the other cases. It was further submitted by the

learned counsel for the appellant that the age of the deceased

was wrongly stated as 22 years. In fact, he was 30 years of

age and therefore, Multiplier of 15 was applicable instead of

Multiplier 17. It was also argued that the MACT ought to have

appreciated that the deceased was earning `4,000/- per month

and out of this earning, he might be paying the rent for shop

and other incidental expenditures. Therefore, the MACT

committed an error in holding that he was paying `3,500/- to

his mother. According to the appellant, since the MACT itself

stated that the maximum income of the deceased was `30,288

per annum after deducting 1/3rd thereof, the contribution of the

deceased to the claimant should have been `20,000/- per

annum by applying Multiplier of 15 thereupon, the

compensation should have been worked at `3 lacs.

14. Learned counsel had also taken a faint plea that the MACT

failed to appreciate that the deceased was not a professional

driver and was ferrying passengers in TATA Sumo by someone

else. Further, the claim of the claimant was not supported by

any independent witness. It was argued that it was a case of

contributory negligence.

15. At the end, it was submitted that liability, if any, was that of

Insurance company which had insured TATA Sumo, as on the

part of the deceased, but the said Insurance company was not

impleaded as respondent by the claimant and therefore, claim

of the claimant should have been rejected on this ground.

16. I do not find any merit in any of these submissions. No such

case that the deceased was driving as a professional driver and

ferrying passenger in TAT Sumo, was set up by the appellant in

the Court below, it is not permissible for the appellant to set up

a totally new case more particularly when in support of such

case, no evidence is laid. Further, it is misconceived on the

part of the appellant to allege that independent witness was

not produced. No doubt, brother of the deceased appeared as

PW-3. However, he was also travelling in the same TATA

Sumo along with the deceased and therefore, he was an eye-

witness. Merely because he happened to be a brother of the

deceased, would not mean that he cannot be a competent

witness. The appellant alleges that the appellant has not been

able to show that his testimony is not trustworthy. It is also

forgotten by the appellant that another person, viz., Shri Sunil

Kumar had appeared as PW-1, who was also an eye-witness

and not related to the deceased.

17. Another question arises as to whether there was any

contributory negligence on the part of the deceased. Again,

this is a ground which is taken for the first time in this appeal.

When this argument is taken, it implies that the appellant

accepts that the bus driver was negligent and at the same

time, it is claimed that the deceased who was driving TATA

Sumo was also negligent. However, in the Court below, the

appellant was harping that only the deceased was negligent

and insofar as the bus driver is concerned, he was driving

vehicle with due care and caution. This plea of the appellant

has not been accepted, and rightly so. When it is found that

the accident took place squarely and exclusively due to

negligence of the bus driver, it does not behove the appellant

now to plead the case of contributory negligence which appears

to be an argument in desperation.

18. I do not find any infirmity in the finding of the MACT insofar as

issue Nos. 1 & 2 are concerned, more particularly when the

learned counsel for the appellant has not even questioned the

reasons given by the MACT in support of its findings based not

only on the testimony of PW-2 and PW-3, but also on the basis

of documentary evidence in the form of site plan, F.I.R.,

Challan submitted by the S.H.O. Since accident took place due

to negligence of the bus driver, who was driving under the

supervision and control of the appellant, the MACT has righly

fastened the liability on the appellant as well as bus driver.

Question of impleading the insurer of the TATA Sumo, in these

circumstances, would not arise. With this, we advert to the

quantum of compensation.

19. First aspect which needs discussion relates to the age of the

deceased. The contention of the appellant that the deceased

was 30 years of age is based on the MLC report (Ex. P.-12)

where the age of the deceased is mentioned as 30 years.

However, the claimant specifically deposed that the deceased

was 22 years of age at the time of accident. Likewise, in the

death certificate, the age of the deceased is mentioned as 22

years. In the postmortem report (Ex. P.-2), the age of the

deceased is, likewise, shown as 22 years. In these

circumstances, the MACT has rightly taken age of deceased as

22 years. It appears that in M.L.C. inadvertent mistake

occurred in mentioning the age of the deceased as 30 years.

20. Insofar as income of the deceased is concerned, the argument

of the appellant that annual income of the deceased is taken as

`30,288/- and adjusting 1/3rd thereof the contribution of the

claimant would be `20,000/- does not cut the ice. What is

glossed over in the process is that the MACT has taken into

consideration future prospects and increased the annual

income by 50% on that basis. This aspect is not questioned,

but conveniently skipped over. No argument is advanced as to

why this future prospect should not have been taken into

consideration. In the absence of any argument or challenge to

the approach of the MACT taking into consideration future

prospect, the said part of the MACT‟s order is not to be

interfered with. The MACT, thus, rightly held that the annual

income of the deceased was to be taken as `45,432/- and after

adjusting 1/3rd thereof, the contribution of the deceased to the

claimant was `30,288/- per annum.

21. With this, I come to the Multiplier. As per the appellant

Multiplier of 15 is to be taken. However, this submission is on

the supposition that the deceased was 30 years of age. When

the age of the deceased is found to be 22 years, as per the

decision of the Supreme Court in the case of Sarla Verma Vs.

Delhi Transport Corporation, 2009 ACJ 1298, Multiplier of

16 is to be adopted. To this extent, order of the MACT

applying Multiplier of 17 needs interference. On that basis,

compensation payable to the claimants would be 30,288 x 16,

which comes to a total amount of `4,84,608/-.

22. The order of the Tribunal is modified to this extent. Therefore,

this appeal is partly allowed as aforesaid. However, as nobody

has appeared on behalf of the respondent, no cost is awarded

against the appellant. The appellant had deposited 50%

amount along with interest which shall be released in favour of

the respondent No.1/claimant. Balance amount shall be paid

by the appellant to the claimant/respondent No.1 within four

weeks, failing which it will carry interest @ 7% from the date of

this award.

(A.K. SIKRI) JUDGE

SEPTEMBER 09, 2011 pmc