Chanderwati & Ors. vs Sat Narain & Ors.
2012 Latest Caselaw 97 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     FAO 379/1999


CHANDERWATI & ORS.                               ..... Appellants
                Through:              Mr. Navneet Goyal, Advocate

                  versus

SAT NARAIN & ORS.                                  ..... Respondents
                           Through:   Mr. Pankaj Seth, Advocate for
                                      the Insurance Company

%                          Date of Decision : January 05, 2012

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 is directed against the judgment and award of the

Motor Accidents Claims Tribunal, Delhi dated 03.05.1999 passed in

Suit No.1003/1988.

2. The factual matrix is that on 18.08.1988 at about 7.30 p.m., one

Mathura Prasad was travelling in bus bearing No.DBP 2569 going

towards his residence and when the said bus reached the old Rohtak

Road near Daya Basti Railway Colony Quarters, the driver of the bus

applied the brakes suddenly causing a big jerk, as a result of which

Mathura Prasad fell from the bus and sustained fatal injuries to which

he succumbed on the same day. The said bus was being driven by the

respondent No.1, was owned by the respondent No.2 and insured with

the respondent No.3-M/s. New India Assurance Co. Ltd. A Claim

Petition claiming compensation under Sections 110A and 92A of the

Motor Vehicles Act, 1939 was filed by the legal representatives of

Mathura Prasad (hereinafter referred to as "the deceased"), being his

widow, his two minor sons and parents.

3. The respondents No.1 and 2, in the joint written statement filed

by them, did not deny the factum of the accident, but alleged that the

said accident was caused due to the negligence of the deceased

himself, inasmuch as he was trying to board a running bus. The

respondent No.3-Insurance Company took the specific plea that the

liability of the Insurance Company was limited to ` 15,000/- as per

the terms and conditions of the policy and the provisions of the Motor

Vehicles Act, 1939.

4. The Motor Accidents Claims Tribunal by its impugned award

dated 03.05.1999 came to the conclusion that the deceased died in his

attempt to board the running bus, and held that the accident was the

outcome of the negligence of the driver of the offending bus, and also

of the negligence on the part of the deceased himself, to the extent of

fifty percent each.

5. On the aspect of quantum of compensation payable to the legal

representatives of the deceased, the learned Tribunal assessed the

monthly income of the deceased to be in the sum of ` 1,200/- per

month and after deducting one-third (1/3rd) from the aforesaid amount

towards the personal expenses of the deceased, assessed the loss of

dependency of the appellants to be in the sum of ` 800/- per month,

or say, ` 9,600/- per annum. To augment the said multiplicand, the

Tribunal applied the multiplier of 15 and assessed the total loss of

dependency of the appellants to be in the sum of ` 1,44,000/- (that is,

` 9,600/- x 15). The learned Tribunal, however, reduced the same by

fifty percent on account of its finding as to the contributory

negligence on the part of the deceased, thereby holding the appellants

entitled to an award of ` 72,000/- (including ` 15,000/- awarded to

the appellants as interim compensation) along with interest at the rate

of 10% per annum from the date of the filing of the petition till

realisation. It was further held by the learned Tribunal that the

liability of the respondent No.3 was limited to the extent of ` 15,000/-

in the case of a passenger, and it accordingly held the respondents

No.1 and 2 jointly and severally liable to pay to the appellants the

amount in excess of ` 15,000/-, that is, ` 57,000/- along with

proportionate interest thereon.

6. Aggrieved by the aforesaid judgment and award of the learned

Tribunal, the present appeal has been preferred by the appellants on

the following grounds:

(a) The learned Tribunal grossly erred in not believing the

testimonies of PW1, PW3 and PW4 and in holding that there

was contributory negligence on the part of the deceased to the

extent of 50%, though the evidence adduced by the appellants

clearly proved that the deceased had fallen from the offending

bus due to the rash and negligent driving of the respondent

No.1.

(b) The amount of compensation awarded by the Tribunal

deserves to be enhanced, in as much as the learned Tribunal

erred in assessing the income of the deceased to be in the sum

of ` 1,200/- per month only, while as per the deposition of the

widow of the deceased, he used to give her ` 2,000/- per

month, and in not making any addition to the income of the

deceased towards the future prospects of the deceased.

(c) The learned Tribunal erred in deducting one-third of the

income of the deceased towards his personal expenses, while in

the facts of the case, a deduction of not more than one-fourth

was justified.

(d) The multiplier of 15 adopted by the learned Tribunal to

augment the multiplicand constituting the loss of dependency

of the appellants was on the lower side, in view of the fact that

the deceased was of 27 years of age and fell in the age group of

victims between 26 to 30 years of age for which the Supreme

Court has approved the multiplier of 17 as the appropriate

multiplier.

(e) The learned Tribunal did not award any amount

whatsoever to the appellants under the various heads of non-

pecuniary damages.

(f) The learned Tribunal erred in holding that the liability of

the Insurance Company was limited to the extent of ` 15,000/-

only.

7. As regards the manner in which the accident took place, Mr.

Navneet Goyal, the learned counsel for the appellants has taken me

through the testimonies of PW1 Ram Prakash, a passenger in the

offending bus, PW3 Suraj Mal, an autorickshaw driver, and PW4

Shankar Lal, an independent witness, all of whom claimed to have

witnessed the accident.

8. PW1 Ram Prakash deposed that on the fateful day, he was

travelling in bus bearing No.DBP 2569, plying on route No.817, from

Kauriya Pul to Najafgarh. The deceased boarded the bus from Sarai

Basti and was standing near the front window of the bus. The bus

driver was driving the bus in a rash and negligent manner as a result

of which the deceased fell from the window onto the road. In his

cross-examination, this witness clarified that the deceased was

standing on the footboard and that the speed of the bus was 60/70

kilometers per hour. He denied the suggestion that the deceased was

not travelling in the bus and also the suggestion that the deceased had

tried to board the bus while running.

9. The testimony of the aforesaid witness is corroborated by the

testimony of PW3 Suraj Mal, who deposed that on the date of the

accident, while he was waiting for passengers for his three-wheeler

scooter, a bus bearing No.DBP 2569 came from the Azad Market side

going towards Najafgarh at a speed of 75 kilometers per hour. The

bus driver applied the brakes suddenly and a passenger fell down

from the front door of the bus. He went to the Police Station to

inform the police regarding the accident and his statement was

recorded by the police. The accident was caused due to the negligence

of the bus driver. In his cross-examination, he categorically denied

the suggestion that the deceased was trying to board a running bus

and in the process his hand slipped from the handle of the bus and he

fell down and sustained injuries. He also denied the suggestion that

he was deposing falsely at the instance of the petitioners.

10. The testimony of PW4 Shankar Lal further corroborates the

case of the petitioners. The said witness deposed that on 18.08.1988,

while he was waiting on the Old Rohtak Road to cross the road, a bus

bearing No.DBP 2569 came from the Azad Market side at a very fast

speed, and a person fell down from the front door of the bus. He

further deposed that a three-wheeler scooter driver went to inform the

police and another three-wheeler scooter took the injured to the

hospital. In his cross-examination, he clarified that he was standing

on the same side of the road from which the bus was coming. He

further stated that the bus was running at the speed of 60-70

kilometers per hour in the middle of the road and the driver turned

towards the left side of the road. The passenger fell due to the jerk

received by him. He also denied the suggestion that the deceased

tried to board a running bus and in the process he fell down.

11. Mr. Goyal, the learned counsel for the appellants, also relied

upon the testimonies of PW2 Dr. Bharat Singh, who proved the post-

mortem report of the deceased as Ex.PW2/1; PW5 Head Constable

Subedin, who proved the F.I.R. as Ex.PW6/1; and PW7 SI Mohan

Singh, the Investigating Officer, who filed the challan and also

proved the site plan as Ex.PW7/1, Recovery Memo as Ex.PW7/2 and

Mechanical Inspection Report as Ex.PW7/3.

12. Mr. Pankaj Seth, the learned counsel for the respondent No.3-

Insurance Company, on the other hand, relied upon the testimonies of

RW1 Sat Narain and RW2 Shri Nath, the driver and the conductor of

the offending bus respectively, to which I shall presently advert, to

contend that there was no infirmity in the award of the learned

Tribunal.

13. Having heard the learned counsel for the parties and perused

the records of the learned Tribunal, I am not inclined to uphold the

findings of the learned Tribunal as regards the manner in which the

accident took place. The testimonies of the petitioner's witnesses,

namely, PW1, PW3 and PW4 having emerged unscathed after cross-

examination, in my view, the learned Tribunal was not justified in

holding that the deceased was trying to board a running bus, in which

process he fell and sustained fatal injuries. The said witnesses

examined by the petitioners/appellants are independent witnesses who

were present on the spot at the time of the accident. All these

witnesses in one voice deposed that the bus was being driven at a

high speed of 60-70 kilometers per hour and the driver had stopped

the bus suddenly with a jerk, as a result of which the deceased who

was travelling in the bus fell from the bus and sustained fatal injuries.

The suggestions put to them that the deceased was trying to catch a

running bus or that he was not a passenger in the bus have been

denied by them.

14. The evidence of the respondents' witnesses, on the other hand,

can only be called self-serving as no independent witness has been

examined, and only the driver and the conductor appeared in the

witness-box to depose that the deceased was trying to board a running

bus. It is also noteworthy that the driver of the offending bus, who

appeared in the witness-box as RW1, stated in his cross-examination

that the name of the conductor was Raj Kumar. However, it is some

Shri Nath (RW2) who has been examined as the conductor of the bus.

The findings of the learned Tribunal, as regards the manner in which

the accident took place, in my opinion, therefore, cannot be upheld

and no negligence can be attributed to the deceased.

15. Adverting now to the aspect of quantum of compensation, it is

contended by Mr. Goyal, the learned counsel for the appellants that

the Tribunal ought to have taken the income of the deceased to be in

the sum of ` 2,000/- in view of the testimony of PW6 Chanderwati,

the widow of the deceased, and the testimonies of PW8 Puran Chand

Sharma, PW9 Santosh Kumar Sharma, PW10 Jai Prakash and PW11

Mahabir Prasad. Mr. Goyal further contended that the future

prospects of increase in the income of the deceased should also have

been given due consideration while computing the loss of dependency

of the appellants. I am unable to agree with the said contention of the

learned counsel for the appellants for the reason that though all the

witnesses examined by the petitioners viz., PW6 and PWs 8 to 11

stated that the deceased was self-employed as a dye-maker, their

statements with regard to the earnings of the deceased from his said

occupation were not consistent and each of the aforesaid witness gave

his own estimation of the income of the deceased. No documentary

evidence in the form of any receipts, etc. having been placed on

record by the appellants to prove the income of the deceased, the

assessment of the income made by the learned Tribunal in the

circumstances cannot be faulted.

16. The third and fourth contentions of the learned counsel for the

appellants pertain to the deduction of one-third (1/3rd) made by the

learned Tribunal towards the personal expenses of the deceased and

the multiplier adopted by the learned Tribunal. Mr. Goyal contended

that in view of the fact that the deceased was survived by five legal

representatives being his widow, his two minor sons and his parents,

a deduction of not more than one-fourth towards the personal

expenses of the deceased was justified and this would also be in

consonance with the judgment of the Hon'ble Supreme Court in the

case of Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation

and Anr. (2009) 6 SCC 12. Then again, according to him, the

appropriate multiplier to be adopted in the instant case would be the

multiplier of 17 and not the multiplier of 15 adopted by the learned

Tribunal. I am inclined to accept both the aforesaid contentions of the

learned counsel for the appellant.

17. The Supreme Court in the case of Sarla Verma (supra) laid

down the guiding principles to be followed by all the Courts and

Tribunals in computing the compensation payable to the victims

and/or their legal representatives, so as to avoid inconsistency and to

establish uniformity in the adjudication of claims by the Motor

Accident Claims Tribunals all over the country. The guidelines

contained therein inter-alia provide that where the deceased leaves

behind him four to six number of dependent family members, one-

fourth of his income may be deducted towards his personal and living

expenses. As regards the multiplier, the Supreme Court in the said

case approved of the multiplier of 17 for the victims falling in the

age group of 26 years to 30 years. Admittedly, the deceased, in the

present case was 27 years of age at the time of his accidental death

and as such the appropriate multiplier would be the multiplier of 17

and not the multiplier of 15.

18. In view of the above, the compensation payable to the

appellants needs to be re-computed and it is upon this exercise that I

now embark. Taking the average monthly income of the deceased to

be ` 1,200/- per month and deducting one-fourth towards his personal

expenses, the loss of dependency of the appellants thus works out to `

1,200/- X 12 X 3/4 = 10,800/- per annum. The said multiplicand

constituting the loss of dependency of the appellants needs to be

augumented by an appropriate multiplier. The appropriate multiplier

in the instant case being the multiplier of 17, the total loss of

dependency of the appellants comes to ` 1,83,600/- (` 10,800/- X 17).

In addition to the pecuniary loss of dependency, the appellants are

also held entitled to non-pecuniary damages in the sum of ` 5,000/-

each under the heads of loss of love and affection, loss of consortium,

loss of estate of the deceased and a further sum of ` 7,000/- towards

the funeral expenses of the deceased, that is, in all a sum of

` 2,05,600/- which may be rounded off to ` 2,05,000/- (Rupees Two

Lacs and Five Thousand only). Resultantly, the award amount stands

enhanced from a sum of ` 72,000/- to ` 2,05,000/-. Interest at the

uniform rate of 10% per annum shall be payable on the award amount

from the date of the filing of the petition till realisation.

19. The only aspect of the matter which remains for consideration

is the extent of the respective liability of the respondent Nos.1 to 3 to

pay compensation to the appellants. In view of the finding rendered

above that the deceased was travelling in the bus at the time of the

accident, it is clear that the deceased was a passenger in the bus. A

look at the insurance policy Exhibit RW3/A shows that premium in

respect of passengers was paid by the insured to the insurer at the rate

of ` 12/- per passenger and thus a total of ` 600/- was paid in respect

thereof. Accordingly, the liability of the Insurance Company must be

held limited to ` 15,000/- only with proportionate interest thereon.

However, in view of the fact that the insurance policy in the instant

case contains an Avoidance Clause under the heading of "Important

Notice", it is held that the Insurance Company is liable to satisfy the

entire award amount in favour of the appellants in the first instance

and thereafter recover the amount paid by it over and above the limits

of its liability from the driver and the owner of the offending bus,

namely, the respondents No.1 and 2. (See New Asiatic Insurance Co.

Ltd. vs. Pessumal Dhanamal Aswani and Others, 1958-65 ACJ 559;

Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 ACJ 531; Oriental

Insurance Co. Ltd. vs. Cheruvakkara Nafeessu and Others, 2001

ACJ 1; New India Assurance Co. Ltd. vs. Vimal Devi and Ors.,

2010 ACJ 2878 (SC); followed by this Court in the cases of

Gurcharan Kaur and Anr. vs. Raja Ram and Anr, 2011 (6) AD

(Delhi) 36; Lata Goel and Ors. vs. Rishipal and Ors., FAO

No.254/1993 decided on September 23, 2011; and Bimla Gupta and

Ors. vs. Mahinder Singh and Ors., FAO No.51/1991 decided on

September 26, 2011).

20. In view of the aforesaid, the Insurance Company is directed to

pay to the appellants the award amount as enhanced in paragraph 18

above by depositing the same within 30 days of the date of the

passing of this judgment with the Registrar General of this Court after

deducting the amount already paid, if any. The award amount so

deposited along with the proportionate interest thereon shall be

equally appropriated between the appellants.

21. The appeal is allowed to the aforesaid extent and in the above

terms. There shall be no order as to costs.

22. Record of the Claims Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) January 05, 2012