Delhi High Court
Oriental Insurance Co. Ltd vs Urmila Devi & Ors on 19 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th April, 2012
Pronounced on: 19th April, 2012
+ MAC.APP. 325/2011
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Ms. Manjusha Wadhwa,
Advocate
versus
URMILA DEVI & ORS. ..... Respondents
Through Mr. S.N. Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Oriental Insurance Company Limited impugns a
judgment dated 16.12.2010 whereby a compensation of
`12,92,400/- was awarded for the death of Babu Lal, who died
in a motor accident which occurred on 01.05.2007.
2. The contentions raised on behalf of the Appellant are:-
(i) The deceased himself was standing near the rear gate of
the bus and had fallen off the bus on account of a jerk. He
himself contributed to the accident. The compensation is
liable to be reduced by 50% on account of contributory
negligence.
(ii) The Motor Accident Claims Tribunal (the Claims
Tribunal) assumed the deceased's potential income as a
student of MCA to be `27,000/- per month. In the
absence of any evidence as to the actual placement, the
income taken was highly excessive or exorbitant. The
compensation should have been awarded on the basis of
the existing income of ` 5367/- per month.
NEGLIGENCE
3. It is urged by the learned Counsel for the Appellant that as per
the Claimants' version, the deceased was standing in the over
crowded bus. Since he was not seated on the seat he was guilty
of contributory negligence and the compensation payable has to
be reduced according to his negligence.
4. It may be noted that while driving a public transport it is the
duty of the driver and the conductor of the bus to ensure that the
occupants of the bus whether seated or standing is carried safely
to their destination. If the driver and the conductor find it to be
unsafe, the driver should not permit overcrowding of the bus
and should not allow anybody to travel while standing in the
bus.
5. In Bhaskaran v. Ravindran & Ors., 1900 ACJ 1032 a Division
Bench of the Kerala High Court had the occasion to deal with
the question of passengers standing on the footboard while
travelling in a bus. The Division Bench held as under:-
"16. The correct principle appears to be what we have
already indicated. It is the duty of the conductor to see
that the bus is set in motion only after all alighting
passengers have alighted and passengers intending to
travel in the bus board the bus. Boarding a bus does not
mean merely entering the footboard. Boarding the bus
means getting inside the bus and either sitting in a seat
or standing in the space reserved for standing
passengers. A conductor has a statutory duty to see that
there are no footboard passengers. If a passenger is on
the footboard and there is no space at all for him to sit or
stand inside the bus, he must be asked to get down and
the bus can be set in motion only after he alights. When
there is sitting or standing space inside the bus, it is the
duty of the conductor to see that a passenger who is on
the footboard gets inside the bus and seats himself or
stands in the space reserved for standing passengers
before giving signal for the bus to start. This corresponds
with the driver's duty to ensure that bus is moved only
after ensuring safe travel conditions. In the discharge of
his duty he is largely guided by the instructions of the
conductor. If a bus with no vacant seat and no standing
space is started when a passenger is on the footboard
and he is not asked to alight from the bus or not
cautioned against travel on footboard and accident takes
place and the footboard passenger sustains injury,
wholely or partly on account of his position on the
footboard, he cannot be held to be guilty of contributory
negligence. It may be that if he refuses to alight in spite
of the direction by the conductor or if he is cautioned
about the risk he is undertaking by travel on footboard, it
is not possible to absolve him of the responsibility in the
accident. We, therefore, hold that the claimant was not
guilty of contributory negligence."
6. It was the duty of the driver and conductor of the bus to take
care that the passengers do not stand near the rear gate of the
bus. If a driver permits a passenger to stand near the gate of the
bus, he cannot be absolved of negligence as it is the bounden
duty of the driver to carry the passengers safely. Thus, it cannot
be said that the deceased himself contributed to the accident by
standing near the rear gate in an overcrowded bus.
7. In my view, the Claims Tribunal rightly held that rashness and
culpable negligence on the part of Respondent No.3 was
established.
QUANTUM OF COMPENSATION
8. It is proved on record that the deceased joined as Team Member
- Trainee with Pantaloon Retail (India) Limited w.e.f.
18.06.2005 on a Gross salary of `48,046/- per annum. Within a
period of six months, he was confirmed in the service and his
salary was increased to ` 54,691/-. By another letter Ex.PW-3/4
dated 08.08.2006 his performance was adjudged as 'excellent'
and his salary was increased to `70,239/- per annum. The
Certificate Ex.PW-3/8 shows that he was a permanent and
confirmed employee and was entitled to an average hike in the
salary at the rate of 10%. Thus, the deceased's parents
(Respondents No.1 and 2) were entitled to a compensation with
an increase of 50% in the revised salary of ` 70,239/- which
comes to `1,05,358/-.
9. The question for consideration is whether Respondents No.1
and 2 were entitled to compensation on the basis of the
deceased's potential income as he had joined MCA from the
Indira Gandhi National Open University after completing his
Graduation. On the basis of the documents Ex.PW-1/2 to PW-
1/6 it is proved on record that the deceased had joined MCA by
enrollment No.072100228 in the year 2006. He had also
obtained Diploma in Computer Software (O level) from Delhi
SC/ST/OBC/Minorities/Handicapped Financial Development
Corporation Limited, (an Undertaking of GNCT of Delhi). The
deceased would have completed his MCA in another two years
and would have got employment on a higher salary. There are a
number of judgments of the Superior Courts where the potential
income of the deceased has been considered for awarding loss
of dependency to the legal representatives.
10. In the case of Haji Zainullah Khan (Dead) by Lrs. v. Nagar
Mahapalika, Allahabad, 1994 (5) SCC 667, death of a young
boy, aged 20 years took place in an accident which happened in
the year 1972. The deceased was a student of B.Sc Ist year
(Biology), a compensation of `1,46,900/- was increased and
rounded off to ` 1,50,000/-.
11. In Ganga Devi & Ors. v. New India Assurance Co. Ltd. & Ors.,
MAC APP. 359/2008, decided by this Court on 23.11.2009,
which related to the death of a student (studying medicine) who
was doing internship and was to be awarded MBBS degree in a
short time, the Tribunal awarded a compensation of ` 9,35,352/-
on the basis of the minimum wages of a Graduate. This Court
observed that although the deceased was getting a stipend of `
5,000/- per month at the time of his death in the accident, he
would have ultimately joined as a doctor at a salary ranging
between ` 16,000/- per month to ` 25,000/- per month. Thus,
the average monthly income of the deceased was taken as `
18,000/- and after adding 50% towards future prospects, the
compensation was enhanced to ` 21,36,000/-.
12. The Claims Tribunal relied on a judgment of this Court in
Ramesh Chand Joshi v. New India Assurance Company MAC
APP.212-213/2006 decided on 20.01.2010 where the potential
income of a BE (Bio-Technology) First year student was
considered to be ` 38,333/- per month. The Claims Tribunal
relied on Draupadi Devi v. Inder Kumar 1998 ACJ 418;
Divisional Manager v. T.Chelladurai 2010 ACJ 382; and B.
Ramulamma v. Venkatesh Bus Union, 1 (2010) ACC 563, where
the future income after completion of the course was taken into
consideration for awarding loss of dependency.
13. It is borne out from the record that the deceased was a dedicated
employee and that is why he earned two increments during the
short span of two years with M/s. Pantaloon Retail (India)
Limited. It has to be borne in mind that he(the deceased) did his
Graduation from Delhi University in Third Division only. He
was pursuing MCA from IGNOU by correspondence. Yet, the
potential income of a laborious worker can be taken at least
15,000/- per month. The Claims Tribunal, however, was not
justified in accepting the potential income to be ` 27,000/- per
month along with future prospects. Since the deceased was not
pursuing the MCA from any Prestigious University, I would
take his potential income to be about ` 15,000/- per month only
to award the loss of dependency.
14. The loss of dependency comes to ` 9,35,000/- (15,000/- x 12 -
10,000/- (income tax) x 1/2 (deduction in case of a bachelor) x
11).
15. On adding notional sums of ` 25,000/- towards Loss of Love
and Affection, ` 10,000/- towards Funeral Expenses and `
10,000/- towards Loss to Estate, the overall compensation
comes to ` 9,80,000/-.
16. The overall compensation is, thus, reduced from ` 12,92,400/-
to ` 9,80,000/-.
17. The compensation shall carry interest @ 7.5% per annum from
the date of filing of the Petition till the date of deposit of the
compensation with the Registrar General of this Court.
18. The excess amount of ` 3,12,400/- along with the proportionate
interest and the interest accrued, if any, during the pendency of
the Appeal shall be refunded to the Appellant Oriental
Insurance Company Limited.
19. The compensation awarded shall be released in favour of the
Respondents No.1 and 2 in terms of the impugned judgment.
20. The Appeal is allowed in above terms.
21. The statutory amount of ` 25,000/- shall also be refunded to the
Appellant Insurance Company.
22. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
APRIL 19, 2012
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