R.S.R.T.Corpn.Ltd. vs K.S.Mohana Kumar & Ors.
2012 Latest Caselaw 5848 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Reserved on: 6th September, 2012
                                                     Pronounced on: 28th September, 2012
+        MAC.APP. 224/2004

         R.S.R.T.CORPN.LTD.                                         ..... Appellant
                        Through:               Mr.Kailash Vasdev, Sr.Advocate with
                                               Ms. Ritu Bhardwaj, Advocate
                                               Mr.S.Singhvi, Advocate
                           versus

         K.S.MOHANA KUMAR & ORS.                  ..... Respondents
                      Through: Mr.Ashok Popli, Advocate

+        MAC.APP. 100/2009

         RAJASTHAN STATE ROAD TRANSPORT
         CORPORATION LTD.                           ..... Appellant
                      Through: Mr.Kailash Vasdev, Sr.Advocate with
                               Ms. Ritu Bhardwaj, Advocate
                               Mr.S.Singhvi, Advocate

                           versus

         K.S. MOHANA & ORS.                                      .... Respondents
                       Through:                Mr.Ashok Popli, Advocate

+        MAC.APP. 101/2009

         RAJASTHAN STATE ROAD TRANSPORT
         CORPORATION LTD.                             ..... Appellant
                        Through: Mr.Kailash Vasdev, Sr.Advocate with
                                 Ms. Ritu Bhardwaj, Advocate
                                 Mr.S.Singhvi, Advocate
                 versus

         A.G. PRASANNA                                            ..... Respondent
                                    Through:   Mr.Ashok Popli, Advocate

MAC APP 224/2004, 100 & 102/2009                                       Page 1 of 16
          CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                                   JUDGMENT

G. P. MITTAL, J.

1. These three Appeals MAC APP.224/2004, MAC APP.100/2009 and MAC APP.101/2009 arise out of a common judgment dated 17.04.2004 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation was awarded in favour of the legal representatives of deceased Smt. Jolly Mohan and Dr. (Smt.) Vasantha Kumari, and to injured K. S. Mohana Kumar for having suffered injuries in a motor vehicle accident which occurred on 23.07.1995. Injuries suffered by Smt. Jolly Mohan and Dr. (Smt.) Vasantha Kumari proved fatal while K.S. Mohana Kumar survived.

2. The Appellant Insurance Company filed a consolidated Appeal for the three Claim Petitions registered as Suit No.144/2003, 145/2003 and 146/2003. Subsequently, separate Appeals No. 100/2009 and 101/2009 were filed in Suit No.144/2003 and 145/2003. Thus, MAC APP.224/2004 shall be treated as the Appeal in Suit No.146/2003.

3. For the sake of convenience various Petitioners before the Claims Tribunal shall be referred to as the Claimants. Appellant Rajasthan State Road Transport Corporation Ltd. shall be referred to as the Appellant.

4. On 23.07.1995 at about 9:30 P.M. injured K.S. Mohana Kumar along with his wife Smt. Jolly Mohan (the deceased), Dr. Vasantha Prasannan (the deceased), Ms. Anuradha and Mrs. Shanthi, was returning to Delhi from Agra in an Ambassador car No.KL-7E-6095. It is alleged that the driver of the Ambassador car (Respondent No.4 herein) was driving it in a rash and

negligent manner. When the car reached near village Baghola, Palwal, a Rajasthan Roadways bus no.RJ-14P-0106 was parked on the left side of the road without any indication of its presence in the stationary condition.

5. Respondent No.4 rammed his Ambassador car into Appellant's bus. As a result of the forceful impact, the Ambassador car, particularly, its left side (both the windows) was totally smashed. There was damage on the rear side of the Rajasthan Roadways bus. Smt. Jolly Mohan and Dr. Vasantha Prasannan suffered fatal injuries, whereas K.S. Mohana survived in spite of the serious injuries suffered by him. The injured were removed to Govt. Hospital, Palwal and were then shifted to Safdarjung Hospital.

6. On the statement of Kishan Lal, (Respondent No.6) the driver of Rajasthan Roadways bus, a case FIR No.345/1995, was registered against the Respondent No.4 (driver of the Ambassador car) in Police Station Sadar Palwal. The Appellant and Respondent No.6 (Respondents No.3 and 4 before the Claims Tribunal) filed a joint written statement denying any negligence on the part of Respondent No.6. They took up the plea that Respondent No.6 had parked the bus on the road with due caution and the parking lights were on. He had also put some stones five meters away around the bus. He (Respondent No.6) was repairing the bus (while lying under it) and the conductor Eshad Khan was arranging the lights. In the meanwhile, the Ambassador car being driven by Respondent No.4 at a very high speed struck against the stationary bus due to which Respondent No.6 also suffered injuries and was admitted in Civil Hospital, Palwal. It was stated that he (Respondent No.6) filed an application under Section 166 and Section 140 of the Motor Vehicles Act, 1988 (the Act), which was pending at the time of filing of the written statement by Respondent No.6 (the Claim

Petition has been subsequently decided by MACT, Faridabad and compensation in favour of the Respondent No.6 was awarded).

7. Respondents No.4 and 5 (the driver and owner of the Ambassador car) were not traceable. They were ordered to be served by publication and were proceeded ex-parte.

8. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of composite negligence on the part of the driver of Ambassador car as also the driver of the Rajasthan Roadways bus. The Claims Tribunal awarded compensation of `6,69,136/- (in Suit No.144/2003), `13,320/- (in Suit No.145/2003) and `1,26,92,800/- (in Suit No.146/2003).

9. By these instant Appeals, the Appellant challenges the finding on negligence in all the three Appeals and the quantum of compensation in Appeal No.224/2004 (arising out of Suit No.146/2003) for the death of Dr. Vasantha Prasannan.

10. Mr. Kailash Vasdev, learned senior counsel for the Appellant raised following arguments:-

(i) It was not a case of composite negligence on the part of both the drivers of Ambassador car and Rajasthan Roadways bus. Rather, the accident was caused solely on account of rash and negligent driving on the part of Ambassador car driver (Respondent No.4). Thus, the Appellant was not liable to pay any compensation.

(ii) The compensation awarded for the death of Dr. Vasantha Prasannan is excessive and exorbitant. The Claimants merely produced a salary certificate Ex.P-21 to show that deceased Dr. Vasantha Prasannan was getting 7,000/- Riyal at the time of her death in the accident. The

deceased's employer was not produced nor the contract of employment was proved. No evidence was led by the Claimants with regard to the deceased's liability towards income tax.

11. On the other hand, Mr. Ashok Popli, learned counsel for the Claimants argued that the FIR was registered on the basis of statement made by Respondent No.6. It was no where mentioned in the FIR that there was any indication regarding the parking/repair of the bus on the road. The story of giving an indication regarding the bus being out of order (with the parking lights on) was subsequently introduced to avoid the liability. It is urged that the Claims Tribunal's finding on negligence and quantum of compensation is well reasoned and does not call for any interference.

NEGLIGENCE:-

12. The learned senior counsel has taken me through the pleadings of the parties and the evidence led by them. He contends that from the pleading and evidence, it is established that there was no negligence whatsoever on the part of Respondent No.6 in parking the bus on the road because of a breakdown.

13. In Para 23 (i) of the Claim Petition, the Claimants stated as under:-

"(i) That on 23.7.1995, the deceased along with her relatives, was coming from Agra in a Car bearing No.KL-7E-6095 which was being driven by respondent no.1 when at about 9.30 P.M. the car while proceeding along G.T. Road reached within the limits of village Baghola a bus bearing No.RJ-14-PO-106 which was parked on the road without any indication or parking lights on, the respondent no.1 could not see the bus and the car rammed into the said parked bus with the result all the occupants of the car sustained grievous injuries. The deceased and another lady Smt. Vasantha Kumari died on the spot due to the injuries sustained in the accident. The respondent no.1 was driving the car at such a fast speed that he could not see the

parked bus on the road and had the respondent no.1 was driving the car vigilantly and carefully and at a slow speed, he could control the car and could avoid the impact with the stationary bus. The respondent no.2 was also negligent in parking the bus on the road side without any indication or parking lights on, in order to warn other road users that there is obstruction on the road. Thus, both the respondents No.1 and 3 were negligent and due to their negligent act, two ladies have lost their lives and other persons travelling in the car sustained grievous injuries. Thus the accident was caused due to the composite negligence on the part of the respondents no.1 and 3." (Respondent No.1 was the driver of Ambassador car and Respondent No.3 was the driver of Rajasthan Roadways bus before the Claims Tribunal).

14. In reply to para 23 (i) in their joint written statement, the Appellant and Respondent No.6 stated as under:-

"23 (i) That it is incorrect, wrong hence denied that the Bus bearing no.RJ-14-PO-106 was parked on the road without any indications and parking lights on. It is pertinent to mention here that the respondent no.3 parked the said Bus with parking lights on and put stones 6 mts away around the Bus. It is correct that the respondent no.1 was driving the car at such a fast speed that he could not see the parked Bus and had the respondent no.1 was driving the car vigilantly and carefully and at a slow speed, he could control the car and could avoid the impact with the stationary Bus. Rest of the para under reply is incorrect and wrong. It is specifically denied that the respondent no.2 is also negligent in parking the bus on the road side without any indication or parking lights on in order to warn other road users that there is obstruction on the road. It is also wrong and denied that the accident was caused due to the composite negligent on the part of the respondent no.3. It is submitted that the respondent no.3 parked the Bus on the road side with due caution and parking lights on and he also put stones 5 mts. away around the Bus. That the respondent no.3 was repairing the Bus lying under the Bus and conductor Shri Eshad Khan was arranging the lights for him meanwhile a car which was coming a very high speed and the respondent no.1 has driving it very high speed in negligent manner struck against the stationary bus and due to this accident Shri Kishan Lal Respondent no.3 sustained grievous injuries and he was admitted in Civil Hospital Palwal. It is

relevant to mention here that respondent no.3 has filed an application u/s. 166 and 140 against the Respondent no.1 and 2 which is still pending adjudication before the Judge, MACT Faridabad."

15. The learned senior counsel for the Appellant urges that PW-1 made improvements during his statement before the Claims Tribunal as he denied the suggestion that Respondent No.4 was driving the car in a rash and negligent manner. He pointed out that PW-1 admitted that the bus was parked at a distance of 5 ft. from the left edge of the road. Thus, it was amply proved that the bus was off the road. In the Claim Petition filed by Respondent No.6 the MACT, Faridabad also found that the accident was caused on account of rash and negligent driving of the Ambassador car. Thus, the Appellant is liable to be absolved of its liability. In the circumstances, no negligence could be attributed to the driver of a bus if it is parked on the kacha portion of the road (away from the metal road) with due indication.

16. As stated earlier FIR in this case was registered on the basis of the statement made by the Rajasthan Roadway bus driver. I have before me the Trial Court record in respect of the FIR registered before the Police Station Sadar Palwal. Respondent No.6 (Kishan Lal) informed the IO that the accident was caused because of rash and negligent driving of Ambassador car No.KL- 7E-6095 by its driver (Respondent No.4). He stated that the bus was parked on the left side of the road. He was completely silent about any indication given for parking of the bus on the road or that the parking lights of the bus were on. Similarly, the Appellant and Respondent No.6 (the bus driver) in the joint written statement stated that the bus was parked on the road with due caution and parking lights were on. They did not state that the bus was parked on the road. Of course, PW-1 has stated in his cross-examination that

the bus was parked after a distance of about 5 ft. from the left edge of the road. From this part of PW-1's testimony, no inference can be drawn that the right side of the bus was away from the left edge of the road by 5 ft. Rather, what can be inferred is that the bus was parked 5 ft. away from the left edge of the road, meaning thereby that about 5 ft. of the portion of the bus (in its width) was away from the road, whereas rest of the bus was on the road. This is also supported from the site plan filed in the criminal case which shows that the bus was standing at Point A which was on the left side of the road. Thus, some part of the bus must be on the kachcha portion.

17. Similarly, it cannot be said that PW-1 made an improvement in his case while making a statement as PW-1 before the Claims Tribunal. PW-1 did not deny that there was any negligence on the part of the car driver. It was a composite suggestion that there was negligence on the part of the car driver who was solely responsible for the accident, which was denied by PW-1.

18. PW-1 had nothing personal against the driver of Rajasthan Roadways bus.

In the Claim Petition he attributed negligence on the part of both the drivers. He stuck to his stand in his deposition in the Court and did not try to save the Ambassador car driver completely.

19. The finding on negligence reached by the MACT Faridabad is not relevant here as the Claimants were not party to that Petition and the driver and the owner were ex-parte.

20. Learned senior counsel for the Appellant places reliance on T.O. Anthony v.

Karvarnan & Ors., (2008) 3 SCC 748 in support of the proposition that negligence has to be apportioned. Paras 6 and 7 of the report are extracted hereunder:-

"6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of "composite negligence" will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

21. In T.O. Anthony, the Supreme Court distinguished between composite negligence and contributory negligence and ruled that in case of composite negligence, the Claims Tribunal/Courts are not required to apportion the negligence whereas in case of contributory negligence the extent of

negligence on the part of Claimants who contributed to the accident must be apportioned as that will affect the payment of compensation.

22. Learned senior counsel relies on Mohd. Hanif v. H.P.Road Transport Corporation, (2005) 13 SCC 694 in support of his contention that if somebody collides against a stationary vehicle, the driver and owner of the stationary vehicle would not be liable.

23. In Mohd. Hanif the Claimant's case was that the bus was being driven in a rash, negligent and reckless manner as a result of which deceased Abdul Kadir sustained serious injuries resulting in his death. During evidence, it was proved that the bus at the time of the accident was stationary and that the cyclist dashed against the bus and fell down. The Claimant's case of rash and negligent driving of the bus was thus not established. It was not laid down as a proposition of law that there cannot be negligence even if a bus is parked on a highway without any indication.

24. Here it is consistent case of the Claimants that the bus was parked on a highway at night (9:30 P.M) without any indication. I see no reason to disbelieve PW-1's testimony that there was no indication for parking of the bus on the left side of the road, (even if 5 ft. of the bus was on Kachcha portion) and that too at 9:30 P.M.

25. In New India Assurance Company Ltd. v. Harbans Kaur & Ors., 2011 ACJ 2677, a truck was parked on the left side of the road without adequate signals or parking lights. The car driver in an attempt to save himself from hitting the oncoming vehicle hit against the truck. It was held that there was contributory negligence on the part of truck as well as car driver.

26. In The New India Assurance Company Limited v. Smt. Shobha & Ors., 2011 ACJ 855, the driver of a Jeep driving it at a high speed knocked the rear side

of the stationary truck parked on the highway with its tail lights off. The driver of the Jeep and the truck were held guilty of composite negligence.

27. In United India Insurance Co. Ltd. v. Mustkeem and Ors. 2012 ACJ 145, a truck was parked on the road without any indication resulting in death of passengers in the Jeep which was being driven rashly. The Chhattisgarh High Court referred to Rule 15 of the Road Regulations Rules, 1989 and held that there was negligence on the part of truck driver also, as three-fourth portion of the truck was on the road causing danger to other road users.

28. In view of the above discussion, I am of the view that the accident was caused because of parking of the truck on the left side of the road without giving any indication and the rash and negligent driving of Ambassador car by Respondent No.4. Thus, the drivers of both the vehicles, that is, Ambassador car and the Rajasthan Roadways bus are guilty of composite negligence and their owners are vicariously liable for the act of their servants.

29. I do not find any ground to set aside the finding on negligence reached by the Claims Tribunal, which has been rendered after due appreciation of the evidence on record.

QUANTUM OF COMPENSATION:-

30. The quantum of compensation awarded by the Claims Tribunal has not been challenged in MAC APP.224/2004 titled R.S.R.T. Corporation Ltd. v. K.S. Mohana Kumar & Ors., and MAC APP.100/2009 titled Rajasthan State Road Transport Corporation Ltd. v. K.S. Mohana & Ors.

31. In MAC APP.101/2009 titled Rajasthan State Road Transport Corporation Ltd. v. A.G. Prasanna, a compensation of ` 1,26,92,800/- has been awarded for the death of Dr. (Smt.) Vasantha Prasannan.

32. It is urged by the learned senior counsel for the Appellant that the deceased Dr. (Smt.) Vasantha Prasannan must be working in Damman Medical Dispensary, Saudi Arabia on some contractual assignment. No evidence was produced with regard to the period of contract and thus, the salary of 7,000/- Riyals accepted by the Claims Tribunal was not appropriate to award the loss of dependency.

33. It is urged that since the multiplicand is very high, the multiplier must be reduced to award just compensation as while awarding compensation in a motor vehicle accident the legal representatives of the deceased must not be over compensated. In support of his contention, the learned senior counsel places reliance on United India Insurance Co. Ltd. & Ors. v. Patricia Jean Mahajan & Ors., (2002) 6 SCC 281.

34. To determine the loss of dependency, it would be apposite to refer to PW-2 A.G. Prasannan's (the deceased's husband) testimony. He testified that his wife on the date of the accident was just more than 43 years. She left behind a minor daughter and him as her only legal heirs. He deposed that the deceased was a Gynaecologist and was employed in Damman Medical Dispensary, Saudi Arabia. She was getting a salary of 7,000/- Riyals (Saudi) which was about `60,000/- in Indian currency. He deposed that the deceased was also getting HRA, Food Allowance, Transport Allowance and an air ticket to visit India once in a year. PW-2 was cross-examined on Appellant's behalf. No question was put to him that deceased Dr. (Smt.) Vasantha Prasannan was in contractual employment. No question was asked about the duration or the period of that employment. PW-2 in cross-examination stated that the deceased used to spend about 4,000/- Riyals on household. He added that they were keeping their savings in a bank in India.

35. As proved by the Claimants by a Certificate dated 22.10.2002 issued by the State Bank of Travancore (which is not disputed by the Appellant), the buying rates of Riyals was ` 7.90/-. Thus, in Indian currency, the deceased's salary was `55,300/- per month.

36. In Patricia Jean Mahajan, the Supreme Court observed that where the multiplicand is very high, a lower multiplier can be adopted to award just compensation. The Supreme Court observed that the deceased was a resident of USA and his parents were residing in India. The Supreme Court noticed the disparity in the economic conditions and affluence of the two places viz., the place where the victim belong to and the place where the compensation has to be paid, and stated that adoption of a lower multiplier in the circumstances would not be a departure from the Rule that the multiplier method is the best method to award the compensation.

37. In the instant case, as I have noted earlier the deceased's salary was not very high. She (the deceased) obtained her MBBS degree from Dibrugarh University in the year 1980. She obtained a Diploma in Gynaecology and Obstetrics from the College of Physicians and Surgeons of Bombay in January, 1983. She obtained a Post Graduate degree i.e. MD in Obstetrics and Gynaecology from Mangalore University in the year 1991 as is evident from the documents Exs.P-20, P-23 and P-24 on the Trial Court record. Some other documents were proved to show that the deceased attended some Post Graduate Academic Programmes in Kasturba Medical College, Manipal and various other places. The fact remains that the deceased was a highly qualified and experienced specialist in Gynaecology and Obstetrics. An income of about `55,300/- for a specialist doctor in the year 1995, particularly, with reference to the private hospitals could not be said to be on the higher side. In any case, in the absence of any evidence that the deceased

was a contractual employee, it would be unreasonable not to accept the proof of salary for the purpose of ascertaining the loss of dependency.

38. In Patricia Jean Mahajan, the Division Bench of this Court had awarded a compensation of `16.50 crores on the salary which had been proved. The compensation here would not be in crores but only in lacs. Thus, there is no justification to adopt a lower multiplier than the one suggested in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC

121.

39. Since the deceased was a specialist doctor in settled employment, she would be entitled to an addition of 30% on the principles as laid down in Sarla Verma. Even if, it is held that the deceased did not have any bright future prospects still an addition of 30% is required to be made on the basis of a later judgment of the Supreme Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

40. It is urged by the learned counsel for the Appellant that deduction towards income tax has to be made from the deceased's income to compute the loss of dependency. In this case, the Claimants did not produce any evidence with regard to deceased's liability towards income tax.

41. In New India Assurance Company Ltd. v. Harbans Kaur & Ors., 2011 ACJ 2677 relied on by the learned senior counsel for the Appellant in the absence of any evidence with regard to the liability towards income tax, a deduction of 35% in the income was made towards the tax liability. Thus, the loss of dependency comes to `52,33,592/- (7,000/- Riyals x 7.90 (conversion rate) = 55,330/- x 12 + 30% - 35% (income tax) x 2/3 x 14).

42. The award of compensation of `30,000/- towards funeral expenses as the dead body was embalmed and transported to the deceased's home town in Anand Bhawan Chamampathal, PO Kotayam, District Kerala is not disputed.

43. The Claims Tribunal awarded a sum of `25,000/- towards loss of consortium. Normally, only a sum of `5,000/- to `10,000/- is awarded towards loss of consortium. Since no compensation has been awarded towards loss of love and affection and loss to estate, the compensation of `25,000/- awarded by the Claims Tribunal is taken to be as award of compensation towards loss of love and affection, loss of consortium and loss to estate.

44. The overall compensation is thus reduced from `1,26,92,800/- to `52,88,592/-.

45. The amount awarded shall carry interest @ 12% per annum from the date of filing of the Petition till 31.03.2001 and then @ 6% per annum till the date of deposit of the compensation in this Court as awarded by the Claims Tribunal.

46. The Claimants shall be entitled to the interest accrued on the amount awarded as the amount was held in fixed deposit during the pendency of the Appeal.

47. The excess compensation of `74,04,208/- along with proportionate interest and the interest accrued during the pendency of the Appeal shall be refunded to the Appellant Rajasthan State Road Transport Corporation Ltd.

48. MAC APP.100/2009 and MAC APP.101/2009 stands dismissed and MAC APP.224/2004 is allowed in above terms.

49. The statutory deposit of `25,000/- be refunded to the Appellant.

50. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 28, 2012 vk