Delhi High Court
Rajasthan State Road Transport ... vs Virender Kumar on 12 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 12, 2017
(i) + MAC. APP. 401/2009
RAJASTHAN STATE ROAD TRANSPORT CORPORATION &
ORS. ..... Appellants
Through: Dr. Ritu Bhardwaj, Standing
Counsel for appellant-RSRTC
versus
VIRENDER KUMAR ..... Respondent
Through: Mr. S N Parashar, Advocate
(ii) + MAC. APP. 274/2017
VIRENDER KUMAR ..... Appellant
Through: Mr. S N Parashar, Advocate
versus
RAJASTHAN STATE ROAD TRANSPORT CORPORATION &
ORS. .....Respondents
Through: Dr. Ritu Bhardwaj, Standing
Counsel for respondent-RSRTC
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
The above-captioned two appeals arise out of common impugned
Award of 24th March, 2009 vide which Motor Accident Claim Tribunal,
Delhi (hereinafter referred to as „The Tribunal‟) has granted
compensation of `8,08,600/- with interest @ 7.5% p.a. on account of
injuries sustained by Claimant-Virender in a road accident on 26th
December, 2005. In the above-captioned first appeal, the owner of bus in
question seeks reduction of quantum of compensation while asserting that
it is a case of contributory negligence whereas, in the above-captioned
second appeal, Claimant-Injured seeks enhancement of compensation.
As per order of 27th October, 2009, service is complete in these two
Appeals. With the consent of learned counsel for the parties, these two
appeals have been heard together and are being decided by this common
judgment. The factual narration as noted in the impugned Award is as
under:-
"Brief facts giving rise to the present claim petition are that
on 26/12/2005 at about 4.00 pm, the injured/petitioner Virender
was travelling in the offending bus bearing registration no.RJ
32PA 0018 from Delhi to Sohna. When we had reached at Rajeev
Chowk, Gurgaon, Hariyana and was alighting from the offending
bus, all of a sudden, the driver of the offending bus had driven the
bus at high speed in rash and negligent manner. As a result
thereof, the petitioner had fallen down on the road and the rear
wheel of the offending bus had passed over his right leg. He was
taken to Safdarjung Hospital where he had remained hospitalised
and is still under treatment."
Suffice to note that the Tribunal has taken the age of Claimant-
Injured as 38 years on the day of accident in question and has noted that
he was earning his livelihood by selling toys and was earning `8,000/-
per month. As per copy of Disability Certificate (Ex.PW-1/7), the
permanent disability of Claimant-Injured is assessed as 80% in right
lower limb due to amputation of right leg above knee. Claimant-Injured
has relied upon Estimate (EX PW-1/24) from TECHNOMED (INDIA)
PRIVATE LIMITED indicating that cost of obtaining an artificial limb in
January, 2006 was `2,35,000/-. Apart from the evidence of Claimant-
Injured, the Tribunal has taken into consideration the evidence of Ram
Singh (R-1/W1), driver of bus in question, to render the impugned Award.
While entertaining the appeal by Rajasthan State Road Transport
Corporation-owner of the bus in question (hereinafter referred to as
owner-RSRTC), a direction was issued to deposit the awarded
compensation and it has been done. In terms of order of 27 th October,
2009, out of the deposited compensation, amount of `1,75,000/- has been
released to Claimant-Injured and rest of the deposited amount is lying in
fixed deposit receipts.
Learned counsel for owner of bus in question submits that it is
evident from the evidence of driver of bus in question that Claimant-
Injured was negligent and even the bus-conductor had given his version
to the police to the effect that injured had tried to get down from the bus
when it was moving and in the process, injured's bags got stuck in the
door, due to which he fell down and sustained injuries. So, it is submitted
by counsel for bus owner that negligence was of Injured and not of bus
driver and so, owner of bus in question is not liable to pay awarded
compensation.
It is next contended by counsel for owner-RSRTC that the
compensation granted is on the higher side as the multiplier of 16 has
been applied whereas applicable multiplier as per Supreme Court's
decision in Sarla Verma & Others Vs. DTC & Another, (2009) 6 SCC
121 is of 15 as Injured was aged 40 years on the day of accident. It is
pointed out that as per ration card produced by Claimant-Injured, he was
aged 40 years then.
On the contrary, learned counsel for Claimant-Injured submits that
no compensation has been granted for purchase of artificial limb and the
compensation granted under the non-pecuniary heads is on the lower side
and so, it needs to be suitably enhanced. Nothing else is urged on behalf
of either side.
Upon hearing and on perusal of impugned Award, the evidence on
record and Supreme Court's decision in Sarla Verma (Supra), I find that
the manner of taking place of accident in question is clearly depicted in
Claimant-Injured's initial version given to police, on basis of which, FIR
regarding this accident was registered. The initial version put forth by
Claimant-Injured, as contained in Exhibit-PX, clearly shows that when
Claimant-Injured was in the process of getting down from the bus in
question, his bags were stuck in the door and the bus driver drove away
the bus, due to which he fell down and had sustained grievous injuries on
his leg. Pertinently, this version does not get diluted in the cross-
examination. It is relevant to note that the so-called version of bus-
conductor is not on record and has not been put to Claimant-Injured and
so, on its basis, no inference of contributory negligence can be raised.
There is no site plan of the spot on record. Apart from self-serving
statement of bus driver, there is no tangible evidence on record to impute
any contributory negligence to Claimant-Injured.
It is reiterated by Supreme Court in National Insurance Company
Limited v. Sinitha & Others, (2012) 2 SCC 356 that onus to prove
contributory negligence remains on insurer/owner of vehicle in question.
In the instant case, owner-RSRTC has failed to discharge its onus. So,
argument of owner-RSRTC's counsel of contributory negligence is
negated. Negligence of bus driver is quite apparent and so, Tribunal's
finding on this aspect is affirmed.
As regards application of multiplier, I find that Claimant-Injured
was aged 40 years as per his age given in the ration card and in view of
Supreme Court's decision in Sarla Verma (Supra), applicable multiplier
for the age group of 36 to 40 years is 15. The Tribunal has erred in
applying the multiplier of 16. By applying multiplier of 15, the „loss of
earning capacity‟ due to injuries suffered is re-assessed as under:-
`3200/- p.m. X 12 X 15 X 80/100 = `4,60,800/-
Accordingly, the compensation granted under this head by the
Tribunal is reduced from `4,92,000/- to `4,60,800/-.
So far as compensation granted under the non-pecuniary heads is
concerned, I find that the compensation of `35,000/- granted under the
head of „pain and suffering‟ is on the lower side. Supreme Court in
Sanjay Kumar Vs. Ashok Kumar and Another, (2014) 5 SCC 330, while
dealing with the case of an Embroiderer, who had suffered 70%
permanent disability, has granted compensation of `1,50,000/- under the
head of „mental agony, pain and suffering‟ in relation to an accident
which took place in September, 2005. Supreme Court in Sanjay Kumar
(supra) has also granted compensation of `1lac for „loss of amenities of
life‟ whereas the Tribunal in the impugned Award has not granted any
compensation under this head. Accordingly, compensation of `1lac under
the head „loss of amenities of life‟, is granted to the Claimant-Injured and
compensation under the head of „pain and suffering‟ is enhanced from
`35,000/- to `1,50,000/-.
Although there is un-rebutted evidence on record that Claimant-
Injured requires a sum of `2,35,000/- for obtaining artificial limb, the
learned Tribunal has erred in not granting any compensation for obtaining
an artificial limb. In view of the Estimate (EX PW 1/24), for obtaining
artificial limb, compensation of `2,35,000/- is granted to Claimant-
Injured to obtain the artificial limb.
In the light of the aforesaid, the compensation payable to Claimant-
Injured is re-assessed as under:-
Loss of income `25,600/-
Loss of earning capacity `4,60,800/-
due to disability
Medicines and medical `2,42,000/-
treatment
Pain and sufferings `1,50,000/-
Loss of amenities `1,00,000/-
Cost of artificial limb `2,35,000/-
Conveyance and special diet `14,000/-
Total `12,27,400/-
Consequentially, the enhanced compensation of `12,27,400/- shall
carry interest @ 9% p.a. from the date of filing of the claim petition till
the date of deposit/realization in view of Supreme Court's decision in
Shivakumar M. Vs. Managing Director, BMTC 2017 SCC Online SC 148.
Owner-RSRTC is granted six weeks' time to deposit the enhanced
compensation of `4,18,800/- with interest @ 9% p.a. as well as the
differential interest, in the Bank Account of Claimant-Injured with UCO
Bank, Delhi High Court Branch, New Delhi. Thereafter, the deposited
amount be released to Claimant-Injured in the manner indicated in the
impugned Award. By way of abundant caution, the concerned Bank
Manager shall insist upon personal appearance of Claimant-Injured and
thereafter only, release the deposited amount and if anything is found
amiss, then it shall be brought to the notice of this Court.
Statutory deposit, if any, be refunded to owner-RSRTC, as per
Rules.
With aforesaid directions, the above captioned appeals are disposed
of while modifying the impugned Award in terms indicated above.
(SUNIL GAUR)
JUDGE
APRIL 12, 2017
P
