U.P. Roadways, U.P.S.R.T.C, Lal ... vs Mrs. Santosh Khurana & Ors.
2015 Latest Caselaw 5026 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No. 81/1994

                                          Decided on : 15th July, 2015

U.P. ROADWAYS,
U.P.S.R.T.C, LAL KOTHI LUCKNOW                  ..... Petitioner
                 Through: Mr. Shadab Khan, Advocate.


                     Versus

MRS. SANTOSH KHURANA & ORS.                       ..... Respondents

                   Through:    Mr. Anshuman Bal, Advocate for
                               Respondents No.1 to 4

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The present appeal has been filed under Section 173 of the Motor

Vehicles Act, 1988 (for short as "Act") against the award dated 8.11.1993

passed by MACT seeking to set aside the impugned award.

2. The brief facts of the case are that on 8.11.88 one Rattan Lal

Khurana was going on the pillion of a two wheeler scooter which was

being driven by Rakesh Kumar when they were hit from behind by the

offending bus bearing registration no. UHN-974, which was being driven

negligently at a very high speed by its driver Sobran Singh, resulting in

the death of Rattan Lal Khurana. A petition was filed on 4.10.88 by the

legal representatives of the deceased against the driver of the offending

bus and UP roadways being the owner claiming compensation of Rs. 10

lacs. The deceased was stated to be 48 yrs old and partner in M/s Kwality

Calender Co. Nai Sarak, Delhi having annual income of Rs. 56,000. Vide

award dated 8.11.1993 the learned Tribunal awarded a compensation to

the tune of Rs.3,60,000/- along with interest at 12% per annum from the

date of institution of the claim petition till the date of the award. Out of

the aforesaid amount Rs.1,88,000/- was directed to be released to the

widow of the deceased. From the balance amount a sum of Rs.80,000/-

was to be released to the daughter while Rs.50,000/- each to be given to

the two sons and the remaining Rs.20,000/- was to be given to the mother

of the deceased. Further 75% of the compensation awarded to the widow

was to be kept in FDR for a period of 10 years, to be released periodically

in terms of the award.

3. The appellant has assailed the impugned order mainly on three

grounds. Firstly it has contested the award on the ground of `no accident'

stating that the accident was caused due to negligent and rash driving of

the scooter driver as a result of which it collided with the central patri of

the road and the pillion rider fell near the rear right side of the bus and no

portion of the bus struck the scooter. In support of the aforesaid

contention the learned counsel for the appellant has pointed out that no

mechanical inspection report was brought on record by the respondents to

prove their case. Further during cross examination the two eye witnesses

being the driver of the scooter (PW- 3) and Sh. Vinod Kumar (PW-2)

were unable to give details of the offending vehicle with respect to the

color or which part of the offending bus had hit the two wheeler scooter.

It is urged that both PW-2 and PW-3 were related to the deceased and

therefore their testimony could not have been relied upon. As an alternate

argument the learned counsel for the appellant has pleaded contributory

negligence on behalf of the scooter driver.

4. Secondly the appellant has challenged the quantum of the

compensation and the interest awarded which is stated to be exorbitant

and arbitrary. The learned counsel for the appellant has contested that

neither the salary nor the age of the deceased was proved on record. It is

alleged that the multiplier determined by the learned MACT was perverse

and erroneous. The learned counsel for the appellant has requested that in

the light of the facts and circumstances of the case the rate of interest be

reduced to a reasonable amount.

5. Lastly the appellant states that the original claim petition in itself

was bad for non-joinder of necessary parties being the owner, driver and

insurer of the two wheeler scooter on which the deceased was travelling.

It is further stated that the learned MACT fell into an error by deciding

that the aforesaid was not a necessary requirement merely because no

defense of contributory negligence was pleaded by the appellant.

6. I have heard the learned counsel for the parties and perused the

record. In my considered opinion I do not find any discrepancy qua the

order/award passed by the learned Tribunal.

7. The story of no accident, woven by the appellants seems to be a

far-fetched theory. The offending bus was following the vehicle of the

deceased therefore, there could be hardly any occasion for any other

vehicle hitting the vehicle of the deceased. The credibility of the

witnesses cannot be denied merely on the ground that they were in

relation to the deceased. Since PW-3 was himself involved in this

accident and suffered injuries his presence and narration of the event is

beyond shadow of doubt. It is understandable that they were in shock and

could not recapitulate all the details. Further the impugned award itself

records that the statements of PW-2 and 3 were cogent, consistent and

convincing with regard to the circumstance of the accident. It is but

natural the victim of the accident would be under a shock and a mental

trauma and under such circumstances to remember or look for the color

of the offending vehicle or its registration would be expecting an absurd

and unnatural behavior from a victim. On the contrary the appellant did

not produce any witness other than the driver of the offending bus to

corroborate the theory of `no accident' or `contributory negligence' and

miserably failed to establish its case.

8. The defense of contributory negligence cannot be accepted at this

stage when the same was not pleaded before the learned Tribunal. I am in

agreement with the stand taken by the learned Tribunal on the aspect of

non-joinder of necessary party. When no allegation of contributory

negligence or rash and negligent driving was specifically pleaded against

the driver of the two wheeler scooter then no occasion arises for making

driver owner or the insurer of the two wheeler scooter a necessary party

of for their impleadment.

9. It is also surprising how the appellant has concocted the theory of

rash and negligent driving by the driver of the two wheeler scooter when

it has based its entire defense on the premise that no accident with the bus

took place.

10. The issue of rash and negligent driving by the bus drivers is an

everyday menace and even after repeated reprimands the same has not

been resolved. The bus drivers continue to drive heavy vehicles high

speed with no regard to the other road users and flouting all traffic norms.

The factum that the bus in the instant case is owned by the state transport

corporation which is a government body casts an additional responsibility

on its driver and all such who may be associated that their acts must be in

conformity with the laws and the state regulations and the roads are

rendered safe for the public.

11. The quantum of the compensation awarded by the learned MACT

is just and reasonable. The learned MACT has considered the previous

tax returns filed by the deceased to compute the salary and award the

compensation. With regard to the interest component the S. 110 CC of

the Motor Vehicle Act 1939 (old 'Act') and the S. 171 of the Motor

Vehicle Act 1988 (new 'Act') both stand crystallized on the aspect that

the power to award interest is a discretionary power of the court. But on

the same score it is trite law that the same must be just and reasonable

and determined not with a blanket approach but in keeping in mind the

facts and circumstances of each individual case which has been done in

the instant case.

12. In regard to the aforesaid I am of the view that the appellants have

not been able to show any discrepancy in the impugned award or prima

facie establish a case of material infirmity or patent illegality so as to

require any interference by this court.

13. Accordingly, the appeal stands disposed off. The appellants are

directed to deposit the awarded compensation amount with the MACT, if

so has not already been done, within four weeks. Once the aforesaid

amount has been deposited, the same shall be released forthwith to the

beneficiaries along with the interest in accordance with terms of the

award.

V.K. SHALI, J.

JULY 15, 2015 AD