DELHI TRANSPORT CORPORATION v. PUSHPA CHOPRA — 1980 DIGILAW 184 (DEL)

P. Narain ( 1 ) KEWAL Krishan Chopra aged about 39 years died as a result of an accident on May 26, 1963. He left surviving him a widow and three minor children. The accident, it is stated, occurred when Chopra was going at 6. 30 p. m. on his scooter. He took a turn to the right from the New Market Road on to the Military Road. A bus belonging to the Delhi Transport Undertaking was coming down Military Road. Chopra s scooter was hit from behind by the bus and he was crushed to death. A report was lodged with the police and a case was registered against Joginder Singh, driver. The heirs and dependants of Chopra, namely, his widow and children then filed a petition under section 110/110a of the Motor Vehicles Act in the Motor Accidents Claims Tribunal, Delhi claiming compensation of Rs. 3,00,000. 00. The contention of the petitioners was that the bus belonging to the Municipal Corporation of Delhi and the Delhi Transport Undertaking was so rashly and negligently driven by its driver Joginder Singh that it resulted in an accident in which Chopra lost his life. The respondent in the petition were the Municipal Corporation of Delhi, the Delhi Transport Undertaking of the Municipal Corporation and Joginder Singh, driver. The claim as made was resisted. It was pleaded that there was no negligence on the part of Joginder Singh but in fact it was on account of the negligence of Chopra that the accident occurred. On the pleading of the parties the Tribunal framed five issues. These are as under : " (I) Whether the motor vehicles of Delhi Road Transport Authority, respondent No. 2, are exempt from the provisions of chapter VIII of the Motor Vehicles Act, if so, its effect ? (2) Whether the death of Shri Kewal Krishan Chopra was caused due to rash and negligent driving of respondent No. 3 ? (3) Whether the accused was guilty of contributory negligence and its effect ? (4) Whether the petitioners are legal heirs of the deceased ? (5) To what amount of compensation, if any, are the petitioners entitled to recover ?" ( 2 ) THE Tribunal decided all the issues in favour of the petitioners. On a conspectus of the evidence it came to the conclusion that the petitioners were entitled to a net compensation of Rs. 65,000. 00. (5) To what amount of compensation, if any, are the petitioners entitled to recover ?" ( 2 ) THE Tribunal decided all the issues in favour of the petitioners. On a conspectus of the evidence it came to the conclusion that the petitioners were entitled to a net compensation of Rs. 65,000. 00. Both parties to the matter appealed to this court. Petitioners before the Tribunal in their appeal (F. A. O. No. 227-D of 1964) contended that the deductions made by the Tribunal from the amount of compensation found to be due were not admissible or permissible whereas the Municipal Corporation and the Transport Undertaking in their appeal (F. A. O. No. 192-D of 1964) contended that the case of contributory negligence of Chopra stood fully proved and the Tribunal wrongly rejected it. The Municipal Corporation and the Transport Undertaking also averred that the quantum of compensation as fixed by the Tribunal was not correctly fixed. ( 3 ) BOTH the appeals came up before a learned single Judge of this Court. The appeals were disposed of by a common judgment. Our learned brother agreed with the Tribunal that Joginder Singh did drive the bus in question rashly and negligently which resulted in the accident. Our learned brother also accepted the basis of the calculations of the Tribunal in fixing the compensation. He, however, came to the conclusion that two deductions made by the Tribunal from the compensation arrived at were not admissible. He also held that Chopra could be held guilty of contributory negligence. In consequence our learned brother added back the deductions which according to him were wrongly made by the Tribunal and held that the compensation admissible would be Rs. 74,000. 00. For contributory negligence of Chopra a somewhat rough and ready method was adopted and 1/3rd was deducted resulting in Rs. 50,000. 00 being awarded to the heirs of the deceased. The Delhi Transport Undertaking has since ceased to exist and has been substituted by Delhi Transport Corporation. The Delhi Transport Undertaking is no longer a department of the Municipal Corporation of Delhi. Therefore, the Delhi Transport Corporation has filed an appeal under clause 10 of the Letters Patent against the judgment of learned single Judge. What is challenged is the finding of the learned single Judge on issues 2, 3, 4 and 5. The Delhi Transport Undertaking is no longer a department of the Municipal Corporation of Delhi. Therefore, the Delhi Transport Corporation has filed an appeal under clause 10 of the Letters Patent against the judgment of learned single Judge. What is challenged is the finding of the learned single Judge on issues 2, 3, 4 and 5. ( 4 ) THE heirs of the deceased have not filed any appeal from the decision given in their appeal, namely, F. A. O. No. 227-D of 1964. They have, however, filed cross- objections and asserted that no deductions were at all permissible and the finding of learned single Judge regarding contributory negligence is not sustainable. ( 5 ) ALTHOUGH Mr. S. N. Chopra has argued the case of the appellant with his usual eloquence, we are unable to agree with him that the basis of computation of compensation by the Tribunal, upheld by the learned single Judge, can be interfered with. It is not necessary to again repeat what the learned single Judge has said about the evidence on this point. We agree with him completely. Further, by merely looking at the plaint of the site of accident proved on the record it stands proved that Joginder Singh was negligent. This plan is Exhibit AW 2/1. The correctness of the plan is not in dispute. On looking at this plan we find that Chopra had more than completed his right turn coming into the Military Road when the bus struck his scooter from. behind. The position of the bus itself shows negligence. The bus was being driven not in the left lane but some-what to the right of the centre of the road. The point of impact is also to the right of the centre of the road. Obviously, therefore, it has to be held that the bus was in the wrong lane. Furthermore, it is an elementary rule of the road that the traffic coming in from the right has precedence. Chopra s scooter was coming from the right of the bus in question. Therefore, negligence stands fully established. ( 6 ) COMING now to the question of contributory negligence, here we find our-selves unable to agree with the findings of the learned single Judge. Chopra s scooter was coming from the right of the bus in question. Therefore, negligence stands fully established. ( 6 ) COMING now to the question of contributory negligence, here we find our-selves unable to agree with the findings of the learned single Judge. The basis of the finding of our learned brother are (a) Chopra should have also seen whether any traffic was approaching the inter-section and if the bus was driven at a high speed he should have permitted it to cross the inter-section before attempting to turn into Military Road, (b) Chopra must have been driving fast and must have been in a hurry and so possibly rash because he had two cinema tickets for the evening show in his pocket and it was already 6. 30 p. m. when the accident took place. In our opinion neither of these two reasons can be discerned from the evidence on record. It would amount to guess work if we accept these two reasons to hold Chopra to be also rash or negligent. Chopra had the rightof way. Indeed he had already made the turn and crossed the inter-section half way when the impact took place. He was hit from behind by the front portion of the bus and not that he struck the bus. His scooter and body were dragged to 15 feet from the point of impact, from where the bus struck, to the place where it came to a stop. Merely because he had two cinema tickets for the evening show does not mean that Chopra was rash or negligent. Therefore, the deductions made by the learned single Judge from the total amount held as admissible cannot be upheld. ( 7 ) THE Tribunal had come to the conclusion that the total emoluments of Chopra for 16 years would come to Rs. 1,81,125. 00. From this he deducted the personal expenses of Chopra at the rate of Rs. 60. 00 per month. He also made certain other deductions and specially four major items as under :- " (1) Rs. 11,367-00 representing the income-tax which the deceased would have paid on his income for this period ; (2) Rs. 10,000. 00 representing the amount for which the deceased had insured his life; (3) Rs. 12. 000. 00 representing the provident fund payable to the deceased; and (4) 10,000. 11,367-00 representing the income-tax which the deceased would have paid on his income for this period ; (2) Rs. 10,000. 00 representing the amount for which the deceased had insured his life; (3) Rs. 12. 000. 00 representing the provident fund payable to the deceased; and (4) 10,000. 00 by way of consideration for receiving the compensation in lumpsum. "it came to the conclusion that from the total gross income of Chopra the total deductions should be Rs. 1,05,817. 00 leaving a balance of Rs. 75,308. 00. This was with-out the sum of Rs. 10,308. 00 deducted for lump sum payment of compensation. The Tribubal deducted Rs. 10,308. 00 from Rs. 75. 308. 00 and finally awarded a net compensation of Rs. 65,000. 00. Agreeing with our learned brother we would hold that the Tribunal was not entitled to deduct Rs. 11,367. 00 towards income-tax or Rs. 10,308. 00 for lump sum payment of compensation. If we add back these amounts, the compensation payable would become Rs. 86,675. 00 say Rs. 86,000. 00. Incidentally we may mention that the learned single Judge in arriving at the figure of Rs. 74,000. 00 committed an arithmetical mistake. The correct figure is what we have observed. ( 8 ) MR. Chopra urged that as the Code of Civil Procedure is not applicable to appeals under clause 10 of the Letters Patent, cross-objections are not maintainable. Mr. Malhotra appearing for the respondents has, however, invited our attention to a Bench decision of Lahore High Court in Lala Khazanchi Shah v. Haji Niaz Ali1. A point was specifically raised in the appeal before the Lahore High Court that Order 41 rule 22, Civil Procedure Code is not applicable and so no cross-objections lie to a Letters Patent appeal. The bench negatived the contention. Relying on Mt. Sabitri Thakurain v. Savi2, and decisions of some other High Courts like Allahabad and Madras it was held that cross-objections were maintainable. We, therefore, hold that the objection on behalf of the appeallant that no cross-objections lie cannot be sustained. ( 9 ) IN view of what we have observed above, the appeal filed by the Delhi Transport Corporation is dismissed, the cross-objections are partly allowed and an order is made in favour of the respondents and against the appellant that the former are entitled to a compensation of Rs. 86,000. ( 9 ) IN view of what we have observed above, the appeal filed by the Delhi Transport Corporation is dismissed, the cross-objections are partly allowed and an order is made in favour of the respondents and against the appellant that the former are entitled to a compensation of Rs. 86,000. 00 and that they be paid the same by the appellant. Mr. Malhotra states that the respondents have already received Rs. 50,000. 00 towards compensation from the appellant or its predecessor in interest. We order and direct that the balance amount of Rs. 36,000. 00 be paid by the appellant to the respondents. At the request of learned counsel for the appellant we grant the appellant one month s time to pay the amount. ( 10 ) MR. Malhotra points out that the respondents have given security for restitution in the sum of Rs. 30,000. 00 when they. received compensation to the extent of Rs. 50,000. 00. We order the discharge of the surety and the security. ( 11 ) THE respondents will be entitled to costs of this appeal. Counsel s fee Rs. 550. 00.