U.P. State Road Transport ... vs Madan Singh & Ors.
2016 Latest Caselaw 3192 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                 Date of Decision: 03.05. 2016
+      MAC.APP. 484/2013
       U.P. STATE ROAD TRANSPORT CORPORATION
                                                                 ..... Appellant
                        Through:       Ms.Garima Prasad, Adv.

                        versus

       MADAN SINGH & ORS.                                ..... Respondents
                   Through:            Mr. Baldev Raj, Adv. for R-1,2,4,5
                                       and 7.
                                       Mr.Kulbhushan Arora, Adv. for R-3
                                       and 6.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                        JUDGMENT

R.K.GAUBA, J (ORAL):

1. Mr.Amar Singh, then aged 31 years, employed as driver on motor vehicle described as Tavera SUV bearing registration No. DL-8C-L-3164 (Tavera) was driving it on 27.11.2009 in the direction of Haridwar when in the area of Nai Mandi Muzaffar Nagar, U.P. he met with an accident involving bus number UP-11T-3410 (the bus) of Uttar Pradesh State Road Transport Corporation (UPSRTC). As a result of the injuries, consequently suffered, Amar Singh died on the spot. The local police registered a First Information Report (FIR) No. 2095/2009 in police station Nai Mandi, Muzaffar Nagar, U.P. The dependant family members of Amar Singh, first to seventh respondents (the claimants), instituted an accident claim case

(No. 101/2010) on 08.04.2010 before the motor accident claims tribunal (tribunal) under Sections 166 and 140 of the Motor Vehicle Act 1988 (the MV Act) impleading as respondents UPSRTC and Jagpal Singh, the driver of the bus, who had appeared at inquiry as witness (R1W1). The Tribunal, by judgment dated 28.02.2013, upheld the claimants' case that the death had occurred due to accident caused on account of negligent driving of the bus by Jagpal Singh. It awarded the compensation in the sum of `17,68,000/- with interest @ 7.5% per annum from the date of filing of the petition till realization, the said amount inclusive of ` 17,28,000/- towards loss of dependency, `25,000/- towards loss of love and affection and consortium and `15,000/- towards funeral expenses. The appellant (UPSRTC) was directed to satisfy the award by making the payment to the claimants in terms of the apportionments made.

2. The appellant questions the finding on the issue of negligence also challenging the quantum of compensation on the ground that income was wrongly taken as `9,000/- without proper evidence and that the element of future prospects to the extent of 50% increase was wrongly added. Per contra, the claimants submit that the awards under the non-pecuniary heads and the rate of interest are low.

3. Having heard counsel on both sides and having gone through the tribunal's record, this court does not find any merit in the first contention, i.e. the submission on the issue of negligence. The driver of the bus, appearing as R1W1, had taken the position that carriage-way of the road meant for vehicles moving from Haridwar to Delhi was under repairs and for this reason the traffic had been diverted on to the lane meant for the opposite direction. This contention, however, does not find support from

any other material on the record. The claimants had relied upon the evidence of Atma Singh (PW-4) who was an eye-witness. It does appear that PW-4 is on record to state that he was travelling in another car which was moving behind the bus when the collision took place. From this, the counsel for the appellant seeks to show that the bus driver had full justification for driving the vehicle on the lane meant for the traffic for the opposite direction. The argument, however, defies logic. PW-4 is categorical in denying that there was any part of road under repairs or that the entire traffic had been diverted to one lane only. The fact that the vehicle in which PW-4 was travelling was behind the bus may point out to the possibility that even the other motorist was negligent in driving his vehicle on to a wrong lane. But this does not mean that there was any justification for the bus driver in doing so. The accident had occurred when the two vehicles collided head- on. The bus was clearly in the wrong lane. In this view, the burden was on the bus driver to explain. No justification having been brought on record, the finding about the negligence, does not call for any interference.

4. There is merit in the submission that the salary was not strictly proved. Though salary certificate (Ex.PW-3/A) was submitted during testimony of Wazeer Singh (PW-3) his cross-examination having been deferred on 23.09.2011, the witness was not tendered again thereafter. In fact, on the very next date, the claimants closed their evidence submitting that no further witness was to be examined. The learned counsel for the claimants now fairly concedes that the evidence of PW-3 cannot be read or relied upon, but his submission is that given the fact that the deceased was working as a driver, there is nothing wrong in the conclusion of the Tribunal that his income was in the region of `9,000/- per month. The appellant,

however, argues that the claim about income cannot be accepted only on oral word. Better guidance is available in the form of minimum wages. Having regard to the facts and circumstances of the case, including the fact that the deceased was working as driver, it is a fit case where minimum wages of a skilled worker (i.e. `4377/-) should be adopted as the benchmark to calculate the loss of dependency.

5. In the case reported as Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled that the element of future prospects of increase in income will not be granted in cases where the deceased was "self employed" or was working on a "fixed salary". Though this view was affirmed by a bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views, as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was later referred to a larger bench, inter-alia, by order dated 02.07.2014 in National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.

6. Against the above backdrop, by judgment dated 22.01.2016 passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.), this Court has found it proper to follow the view taken earlier by a learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the decision in Reshma Kumari (Supra) as the binding precedent, till such time the law on the subject of future prospects for those who are "self-employed" or engaged in gainful employment at a "fixed salary" is clarified by a larger bench of the Supreme Court.

7. Since there is no proof of any regular income or employment, much less proof of any progressive rise in income, the loss of dependency has to be concluded on the above notional income only. As the dependent family members were seven in number, 1/5th is deducted for personal and living expenses. The deceased was 31 years old and, therefore, the multiplier of 16 was correctly applied [Sarla Verma (surpa)]. Thus, the total loss of dependency comes to (Rs.4377x4/5x12x16) Rs.6,72,307/- rounded off to Rs.6,73,000/-.

8. The contention of the claimants about the inadequacy of non- pecuniary damages and the rate of interest is correct. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150, awards of Rs.1 lac each towards loss of love & affection and loss of consortium and Rs.25,000/- each towards funeral expenses and loss to estate are granted. In the result, the total compensation in the case comes to (Rs.6,73,000+2,50,000/-) Rs.9,23,000/-. Following the consistent view taken by this court, the rate of interest is increased to 9% per annum from the date of filing of the petition till realization. [see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.]. Needless to add that the amount of Rs.50,000/- paid under the interim award shall be adjusted. The award is modified accordingly.

9. The Tribunal had apportioned the compensation by specifying the amounts in favour of the claimants. By order dated 24.05.2013, the appellant had been directed to deposit the entire awarded amount with the Registrar General and out of the same 80% was allowed to be released, the

balance to be kept in fixed deposit. Since the award has been reduced, it appears more than due has been released. The Registrar General shall calculate the amount payable to the claimants. If excess has been paid, the claimants shall be liable to refund the same. The amount deposited in excess of its liability shall be refunded forthwith to the appellant.

10. The appeal is disposed of in the above terms.

R.K. GAUBA

(JUDGE) MAY 03, 2016 mr