Delhi Transport Corporation vs Kartari Devi & Ors.
2015 Latest Caselaw 3267 Del

$-10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Decided on: 23rd April, 2015
+        MAC.APP. 342/2011

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


                           versus


         KARTARI DEVI & ORS.                              ..... Respondents
                           Through:     Mr. O.P. Mannie, Adv. for R-1 to R-4.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                               JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appellant impugns the judgment dated 31.11.2010 passed by the

Motor Accident Claims Tribunal (the Claims Tribunal) whereby

compensation of `6,73,123/- was awarded in favour of Respondents

no.1 to 5 for the death of Shri Ram Mehar Singh, who suffered fatal

injuries in a motor vehicular accident which occurred on the night

intervening 17-18.08.1994.

2. On appreciation of evidence, the Claims Tribunal found that the

accident was caused on account of rash and negligent driving of Delhi

Transport Corporation (DTC) bus driver. The Claims Tribunal

accepted the income of the deceased to be `3636/- per month, made

addition of 30% towards future prospects and adopted the multiplier of

15 to compute the loss of dependency. The Claims Tribunal further

awarded a sum of `35,000/- towards non-pecuniary damages to

compute the overall compensation of `6,73,123/-.

3. The following contentions are raised on behalf of the Appellant:-

(i) Respondents no.1 to 5 failed to establish negligence on the part

of the DTC bus driver. The DTC is therefore, not liable to pay

any compensation; and

(ii) Widow of the deceased was given employment on

compassionate ground, this fact would consequently reduce the

compensation payable to Respondents no.1 to 5.

4. On the other hand, the learned counsel for Respondents no.1 to 5

states that negligence was duly established on the touchstone of

preponderance of probability. It is stated that the compensation

awarded is on the lower side as addition of 50% ought to have been

made towards future prospects. The compensation awarded under non-

pecuniary heads is also on the lower side.

NEGLIGENCE

5. It is urged by Mr. J.N. Aggarwal, learned counsel for the DTC that

Ram Kumar, driver of the DTC bus was acquitted in the criminal case.

It is also contended that initially by an order dated 25.10.1999, the

Claims Tribunal had found that there was no negligence on the part of

the DTC bus driver. It is urged that the conclusion reached by the

Claims Tribunal by order dated 25.10.1999 was more logical. The

earlier findings of the Claims Tribunal coupled with Ram Kumar's

acquittal in the criminal case sufficiently establishes that there was no

negligence on the part of the DTC bus driver. Infact, the bus in

question was not at all involved in the accident which fact was also

testified by driver Ram Kumar appearing as R1W1.

6. While dealing with the issue of negligence, all these aspects were gone

into in detail by the Claims Tribunal. The relevant parts of the

impugned award are extracted hereunder:-

"The petitioners have examined PW1 Om Prakash who has stated that the accident had taken place due to rash and negligent driving of DTC bus bearing registration no.DL 1P 9685 on 17/08/1994 at 12.00 midnight. It is true that he has not stated that he had seen Ram Kumar i.e respondent no.2 driving the said vehicle, however, respondent no.2 himself appeared in the witness box and had admitted that the bus was being

driven by him at the time of accident though he has denied that it was at the place of accident. Even during investigation, no contrary evidence came before the police who must have enquired from the concerned office regarding the duty of the driver concerned from the DTC Office that the offending vehicle was being driven by respondent no.2 at the time of accident. The eyewitness Om Prakash has clearly mentioned the registration number of the vehicle which had hit the deceased due to which he had died. He has mentioned that he had chased the bus to a distance and was therefore able to note down its number. The witness is not related to the deceased or to his family to prove that he is an interested witness. Even before the court of ld.Metropolitan Magistrate, he has stated that the DTC bus was being driven at high speed and was coming from the wrong side and had committed the accident.

Ld. counsel for the respondents stated that the identity of the driver has not been established and since the driver of the offending vehicle has been acquitted by the court of Ld. Metropolitan Magistrate as PW Om Prakash had turned hostile, the petitioners have failed to prove rash and negligent driving on the part of respondent no.2 and therefore, the claim petition be dismissed.

I however do not agree with the contention of ld. counsel for the respondents since the evidentiary value and the weightage which is to be given in the criminal case pertaining to an accident and before the Tribunal is different. The Tribunal is only required to conduct an enquiry to be prima facie satisfied that the accident had taken place involving a particular vehicle driven by a particular person. In the present case, though PW Om Prakash has not identified the driver of the offending vehicle, he has clearly mentioned the registration number of the offending vehicle and respondent no.2 himself has admitted that he was driving the said vehicle in the

midnight of 17/08/1994 when the accident had taken place.

The petitioners have filed on record copy of FIR as well as certified copies of the challan. The police investigation, on the other hand, which has been proved on record has also concluded that the accident in this case had taken place due to rash and negligent driving of respondent no.2 who was driving the said offending vehicle at the time of accident. For the purpose of conducting an enquiry, the conclusion of the investigation report filed by the police and the fact that eyewitness has correctly stated that the number of the offending vehicle and particularly in the present case, respondent no.2 has admitted that he was driving it on the date and time of accident; I have no hesitation to reach a conclusion that for the purpose of enquiry before the Tribunal, the petitioners succeeded in proving that the accident had prima facie taken place due to rash and negligent driving of offending vehicle by respondent no.2 in rash and negligent manner.

The postmortem report, on the other hand, also reflects that the injuries are of the nature which could have been caused due to injuries sustained in road traffic accident.

PW1 Om Prakash who is the eyewitness of the case has also stated that the accident had taken place due to rash and negligent driving of the driver of the offending vehicle bearing registration no.DL 1P 9685.

Therefore, the testimony of PW1 and PW2 considered alongwith the other documents i.e. charge sheet as well as FIR registered in this case, postmortem report, I am of the opinion that deceased Shri Ram Mehar Singh had died in road traffic accident due to involvement of vehicle bearing registration No. DL 1P 9685 driven by respondent no.2 in rash and negligent manner....."

7. It is well settled that the judgment of the criminal case is relevant only

to the extent that the driver was acquitted in the criminal case. It may

be noted that the standard of proof required in criminal cases is

'beyond shadow of all reasonable doubt' whereas the standard of

proof required in a petition under the Motor Vehicles Act, 1988 is on

the touchstone of preponderance of probability. (See: Bimla Devi and

Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC

530).

8. PW-1 Om Prakash boldly stood the test of cross-examination. Of

course, the number of DTC bus was not mentioned in the FIR which

was recorded on the statement of one Virender Singh. In fact PW-1

Om Prakash had contacted the police himself and his statement under

Section 161 Cr.P.C. was recorded after a couple of days. The Claims

Tribunal reasoned that there was no ground to disbelieve the testimony

of PW-1 Om Prakash and that the statement of driver Ram Kumar

could not be preferred over that of Om Prakash.

9. I fully agree with the view taken by the Claims Tribunal for several

reasons. One, it was established that the accident was caused by the

DTC bus. Second, there was no reason for PW-1 Om Prakash to

falsely involve DTC bus bearing registration no.DL-1P-9685 in the

accident. Thirdly, the conductor and other staff of the DTC bus

alleged to be involved in the accident were not produced in support of

the Appellant's plea that the bus was not involved in the accident. The

finding on negligence therefore, cannot be faulted.

10. The plea of the deceased's widow or children getting employment in

DESU on compassionate ground was gone into by this Court in

Oriental Insurance Company Limited v. Arun Bala & Ors, MAC

APP.359/2004, decided on 31.08.2015. This Court referred to the

judgment in Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State

Road Transport Corporation and Anr., (1999)1 SCC 90 and United

India Insurance Co. Ltd. & Ors. v. Patricia Jean Mahajan & Ors.,

(2002) 6 SCC 281 and in paras 15 to 18, this Court held as under:-

15. In Helen C. Rebello (supra), the question before the Supreme Court was whether the amount received under Life Insurance Policy was liable to be deducted on the principle of balancing the loss and gain. The Supreme Court referred to the Law of Torts by Fleming and differentiated between the amount received under the Life Insurance Policy and an Accident Insurance Policy. It was, thus held that the payment received under the Life Insurance Policy was not deductible whereas the payment received under the Personal Accident Insurance was deductible. The reason was that in case of payment received under the Accident Insurance Policy, the amount was receivable only on account of death in an accident and not otherwise, whereas in case of Life Insurance Policy, the amount was receivable irrespective of the death. Thus, the fact that the payment was made under

an independent contract of insurance was not of much importance. Moreover, the use of the word "just" in Section 168 of the Act, confers wider discretion to the Claims Tribunal. The Claims Tribunal, therefore, has to see that the compensation awarded is neither niggardly nor a source of profit. Paras 26, 27, 28, 32, 33 and 34 of the report in Helen C. Rebello (supra) are extracted hereunder:

"26. This Court, in this case did observe, though did not decide, to which we refer that the use of the words, "which appears to it to be just" under Section 110-B gives wider power to the Tribunal in the matter of determination of compensation under the 1939 Act. There is another case of this Court in which there is a passing reference to the deduction out of the compensation payable under the Motor Vehicles Act. In N. Sivammal v. Managing Director, Pandian Roadways Corpn. this Court held that the deduction of Rs 10,000 receivable as monetary benefit to the widow of the pension amount, was not justified. So, though deduction of the widow's pension was not accepted but for this, no principle was discussed therein. However, having given our full consideration, we find there is a deliberate change in the language in the later Act, revealing the intent of the legislature, viz., to confer wider discretion on the Tribunal which is not to be found in the earlier Act. Thus, any decision based on the principle applicable to the earlier Act, would not be applicable while adjudicating the compensation payable to the claimant in the later Act.

27. Fleming, in his classic work on the Law of Torts, has summed up the law on the subject in these words. This is also referred to in Sushila Devi v. Ibrahim:

"The pecuniary loss of such dependant can only be ascertained by balancing, on the one hand, the loss to him of future pecuniary benefit, and, on the other, any pecuniary advantage which, from whatever source, comes to him by reason of the death. ... There is a vital distinction between the receipt of moneys under accident insurance and life assurance policies. In the case of accident policies, the full value is deductible on the ground that there was no

certainty, or even a reasonable probability, that the insured would ever suffer an accident. But since man is certain to die, it would not be justifiable to set off the whole proceeds from a life assurance policy, since it is legitimate to assume that the widow would have received some benefit, if her husband had pre-deceased her during the currency of the policy or if the policy had matured during their joint lives. The exact extent of permissible reduction, however, is still a matter of uncertainty...." (emphasis supplied)

28. Fleming has also expressed that the deduction or set-off of the life insurance could not be justifiable. When he uses the words "not be justifiable" he refers to one's conscience, fairness and contrary to what is just. In this context, the use of the word "just", which was neither in the English 1846 Act nor in the Indian 1855 Act, now brought in under the 1939 Act, gains importance. This shows that the word "just" was deliberately brought in Section 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that the principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decisions, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of the 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based their interpretation on the principles of these two Acts, viz., the English 1846 Act and the Indian 1855 Act to hold that deductions were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these courts by giving a restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell

into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having the force of law..........."

x x x x x x x x x x

32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz.,

accidental. If the words "pecuniary advantage" from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the "pecuniary advantage" resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states:

"... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, ...".

33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the "pecuniary advantage", liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out

of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee."

34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family which such person knows under the law has to go to his heirs after his death either by succession or under a Will could be said to be the "pecuniary gain" only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no corelation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any corelation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law."

16. In para 33 of the report, the Supreme Court clarified that it would not include the pecuniary advantage which the Claimant receives on account of other forms of death. In other words, any pecuniary advantage received by the legal representatives which had no co-relation with the accidental

death, was not to be deducted from the pecuniary loss suffered by the Claimants.

17. Similarly, in Patricia Jean Mahajan (supra), the Supreme Court while not deducting the sum received on account of family pension and social security had in its mind that these payments had no co-relation between the compensation payable on account of accidental death and death on account of illness or otherwise. The Supreme Court emphasized that the principle of balancing between losses and gains must have some co-relation with the accidental death by reason of which alone the Claimant had received the amounts. Paras 34 and 36 of the report are extracted hereunder:

"34. Shri P.P. Rao, learned counsel appearing for the claimants submitted that the scope of the provisions relating to award of compensation under the Motor Vehicles Act is wider as compared to the provisions of the Fatal Accidents Acts. It is further indicated that Gobald case is a case under the Fatal Accidents Acts. For the above contention he has relied upon the observation made in Rebello case. It has also been submitted that only such benefits, which accrued to the claimants by reason of death, occurred due to an accident and not otherwise, can be deducted. Apart from drawing a distinction between the scope of provisions of the two Acts, namely, the Motor Vehicles Act and the Fatal Accidents Act, this Court in Helen Rebello case accepted the argument that the amount of insurance policies would be payable to the insured, the death may be accidental or otherwise, and even where the death may not occur the amount will be payable on its maturity. The insured chooses to have insurance policy and he keeps on paying the premium for the same, during all the time till maturity or his death. It has been held that such a pecuniary benefit by reason of death would not be such as may be deductible from the amount of compensation.

x x x x x x x x x x

36. We are in full agreement with the observations made in the case of Helen Rebello that principle of balancing between losses and gains, by reason of death, to arrive at the amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some correlation with the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of distinction made between the provisions of the Fatal Accidents Act and the Motor Vehicles Act. (emphasis supplied). According to the decisions referred to in the earlier part of this judgment, it is clear that the amount on account of social security as may have been received must have a nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be some correlation between the amount received and the accidental death or it may be in the same sphere, absence (sic) the amount received shall not be deducted from the amount of compensation. Thus, the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to premature death of the insured. So far as other items in respect of which learned counsel for the Insurance Company has vehemently urged, for example some allowance paid to the children, and Mrs Patricia Mahajan under the social security system, no correlation of those receipts with the accidental death has been shown much less established. Apart from the fact that contribution comes from different sources for constituting the fund out of which payment on account of social security system is made, one of the constituents of the fund is tax which is deducted from income for the purpose. We feel that the High Court has rightly disallowed any deduction on account of receipts under the insurance policy and other receipts under the social security system which the claimant would have also otherwise been entitled to receive irrespective of accidental death of Dr Mahajan. If the proposition "receipts from whatever source" is interpreted so widely that it may cover all the receipts, which may come

into the hands of the claimants, in view of the mere death of the victim, it would only defeat the purpose of the Act providing for just compensation on account of accidental death. Such gains, maybe on account of savings or other investment etc. made by the deceased, would not go to the benefit of the wrongdoer and the claimant should not be left worse off, if he had never taken an insurance policy or had not made investments for future returns."

18. Thus, on the basis of the ratio in Helen C. Rebello (supra) and Patricia Jean Mahajan (supra), it can be safely concluded that only those amounts which are payable to the Claimant/Claimants only by reason of death or injury in an accident are liable to be deducted."

11. The salary which was being paid to the widow of the deceased for

working as an Attendant to serve water to the employees did not come

on record. Obviously, she was being paid salary for the work put in

by her and not on account of the accidental death of her husband.

Thus, the amount of salary paid to Respondent no.1 (widow) cannot

be deducted while considering the grant of loss of dependency.

12. Mr. O.P. Mannie, learned counsel for the Respondents no.1 to 5 urges

that the Claims Tribunal made an addition of 30% towards future

prospects. It ought to have been 50%.

13. The exact date of birth of the deceased was not brought on record.

PW-2 stated that the deceased was 40 years old. In the absence of

exact date of birth to show that the deceased was less than 40 years of

age, I am not inclined to interfere with the grant of 30% future

prospects.

14. The Claims Tribunal awarded a sum of ` 35,000/- towards loss of love

and affection, loss of consortium, loss to estate and funeral expenses.

Now, the trend is to award a much higher amount i.e. `1,00,000/- each

towards loss of love and affection and loss of consortium and

`25,000/- towards funeral expenses. (See: Rajesh & Ors. v. Rajbir

Singh & Ors., (2013) 9 SCC 54).

15. However, it may be noted that the accident in question had taken place

in the year 1994. There was manifold inflation since that time. In

view of this, I am not inclined to interfere with the amount of

compensation awarded towards non-pecuniary damages, particularly

when no cross-appeal has been preferred by the Respondents no.1 to

5.

16. The appeal preferred by the DTC, therefore, fails; the same is

accordingly dismissed.

17. This accident relates to the year 1994. The entire balance amount lying

deposited shall be paid to the Claimants in terms of the order passed

by the Claims Tribunal.

18. Respondent no.5, mother of the deceased has since expired. Her name

has already been deleted from the array of parties and amended memo

has been taken on record. The compensation payable to Respondent

no.5 shall now go to Respondent no.1, widow of the deceased.

19. Pending application also stands dispose of.

20. Statutory amount, if any, deposited shall be refunded to the Appellant

DTC.

(G.P. MITTAL) JUDGE APRIL 23, 2015 vk