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2011 DIGILAW 531 (ORI)

K. KALYANI SUBUDHI v. UNION OF INDIA

2011-10-21

V.GOPALA GOWDA

body2011
JUDGMENT V.GOPALA GOWDA, C.J. This appeal is filed by the claimants as they are aggrieved of the finding recorded at paragraph-11 & 12 reducing the compensation by 50%, from 21,24,336/-to `10,62,168/-holding both the driver of the offending vehicle and deceased negligent in answering the contention issue no.3 regarding contributory negligence. Mr. Choudhury, learned counsel for the appellants contended that the learned M.A.C.T. has not properly appreciated the undisputed fact that the deceased was a scientist and was aged about 45 years at the time of his death. The deceased had another fifteen years of long tenure of service. During that period, he would have got promotion. There would have been revision of pay scale at least for thrice. If he would have been alive, the salary must have been doubled. Therefore, determining the monthly salary of the deceased at `17,606/-is wrong. 2. In support of his contention he has placed reliance upon the decision of the apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and another, AIR 2009 SC 3104 . In paragraph-15 thereof principle has been laid down as to what could be the annual income to be taken for determining the just and reasonable compensation in respect of a person who is earning a stable salary out of his public employment. If that principle is applied, according to the learned counsel for the appellant, after deducting 1/3rd, out of ` 17,606/-, it would be ` 11,735/-which amount is to be added for the purpose of taking the monthly income to determine the annual income which will be the correct multiplier and it should be applied by the Tribunal. As the M.A.C.T. has applied only 12 as the multipliler, the same is contrary to the decision of Sarla Verma (supra) as well as to the second schedule to the Motor Vehicles Act, 1988. In said judgment a comparative table has been provided at paragraph-19 regarding the multiplier applied in different cases with reference to the second schedule to the Motor Vehicles Act, 1988. Mr. Choudhury submits that the award in so far as finding on the question of contriburoty negligence has been apportioned at 50%. The same being not correct, liable to set aside and the compensation on the correct salary structure is to be awarded on the basis of the multiplier applied in the earlier case. Mr. Choudhury submits that the award in so far as finding on the question of contriburoty negligence has been apportioned at 50%. The same being not correct, liable to set aside and the compensation on the correct salary structure is to be awarded on the basis of the multiplier applied in the earlier case. Therefore, the compensation would have been ` 40,12,920/-. 3. Mr. Das, learned counsel appearing for the respondent sought to justify the finding on the contentious issue no.3 holding that there is negligence both on the part of the driver of the offending vehicle and the deceased as the deceased was coming from the by-lane to the main road, he ought to have been more careful while taking left hand side curve to the main road. The said finding of the Tribunal is supported by the evidence of P.W.1 driver of the offending vehicle. He has stated that he had applied brake of the bus, for which it skidded for about 5 feet which goes to show that he was driving the bus in a low speed in the crucial juncture, the meeting point of the lane and the main road. He has further deposed that the deceased scooterist did not wear a helmet. If would have wore the helmet, even accident would have occurred, there would not have been severe head injury and the deceased scooterist would not have succumbed to the said injury. Therefore, Mr. Das submitted that the said finding is based on proper appreciation of the evidence on record. Mr. Das further submitted that the learned Presiding Officer of the Tribunal has accepted the evidence of the interested witness-P.W.1-the driver of the offending vehicle including the evidence of P.W.2 who is an eye witness to the accident though he is not a charge-sheeted witness. Further the Tribunal had not considered the charge-sheet filed by the Investigating Officer after conducting the investigation and had not examined the report of the M.V.I. (Ext.3). He further submitted that there being negligence on the part of the deceased scooterist, apportionment of contributory negligence at 50% is on the higher side and it should be 25% which should be taken by the Tribunal and on that basis, just and reasonable compensation would have been awarded. He further submitted that there being negligence on the part of the deceased scooterist, apportionment of contributory negligence at 50% is on the higher side and it should be 25% which should be taken by the Tribunal and on that basis, just and reasonable compensation would have been awarded. In support of his contention he has placed reliance upon the decisions of the Division Bench of Himachal Pradesh High Court in the case of Punjab Roadways, Hoshiarpur and others v. Smt. Satya Devi and others, 1993(1) T.A.C. 402 and Delhi High Court in the case of Dr. (Mrs.) Sudha Nangia and etc. v. Ibrahim etc., 1994(1) T.A.C. 89. Mr. Das has also placed reliance upon the affidavit sworn by one Sri Prafulla Kumar Mohapatra, Scientist ‘F’, Joint Director in Proof and Experimental Establishment, Chandipur, Balasore (Orissa) who has stated at paragraph-4 as thus : “That after award dated 13.6.2003 was passed there was a settlement between the appellants and respondent and on 14.7.2003 the respondent paid a sum of `12,85,223/-to Smt. K. Kalyani Subudhi, Appellant No.1 towards the awarded amount and in token of full and final settlement of the learned Tribunal’s award dated 13.6.2003. That the appellant received the amount in shape of two A/C payee drafts bearing No. 711940 dated 12/07/2003 for ` 3,85,223/-and No. 711941 dated 12.7.2003 for ` 9,00,000/-. The appellants also filed a Memo-cum-Receipt dated 14.7.2003 before the Ist MACT-cum-District Jude, Berhampur in MAC No. 224/2001 in token of such payment specifically admitting that the above payment is towards the final settlement of all claims arising out of the award dated 13.6.2003 of the learned Tribunal. A copy of the Receipt dated 14.7.2003 is enclosed herewith as Annexure-A.” In view of the above settlement, the respondent respectfully submits that the present appeal is not maintainable. 4. Relying on the contention of the affidavit, Mr. Das prays for dismissal of the appeal contending that the awarding compensation and apportionment of negligence is perfectly based on the facts and legal evidence on record. The same does not call for any interference by this Court in exercise of its appellate jurisdiction. 5. With reference to the above said rival legal contentions the following points would arise for consideration : (i) whether the finding on the question of negligence and apportioning 50% negligence on the part of the deceased scooterist, is legal and valid ? The same does not call for any interference by this Court in exercise of its appellate jurisdiction. 5. With reference to the above said rival legal contentions the following points would arise for consideration : (i) whether the finding on the question of negligence and apportioning 50% negligence on the part of the deceased scooterist, is legal and valid ? (ii) if not legal and valid, what should be apportionment of contributory negligence on the part of the deceased scooterist ? (iii) whether the compensation determined having regard to the undisputed fact that the deceased was a Scientist in Defence which is a stable employment taking the monthly income at ` 17,606/-on the date of death is just and reasonable. If it is not reasonable compensation, what should be the just and reasonable compensation ? (iv) what award ? 6. The first point is required to be modified partially in favour of the appellants for the following reasons. It is an undisputed fact that the accident took place on the fatal day of 16.11.2003 while the scooterist was coming from the lane to the main road. The evidence of P.W.2 has not been properly appreciated by the Tribunal for the reason recorded at paragraph-8 of the impugned award that he was not a charge-sheeted witness. To determine the contributory negligence on the part of the driver of the offending vehicle and the deceased scooterist, the Tribunal ought to have taken into consideration the documentary evidence, viz., the charge-sheet (Ext.3) in G.R. Case No. 1268/2000. The I.O. after conducting investigation, seeing the spot of accident and drawing the sketch of the scene of accident, has filed the charge-sheet against the driver of the offending vehicle opining negligence on the part of the driver. Non-consideration of the charge-sheet, the M.V.I. report, evidence of P.Ws.2-the eye witness, accepting the interested testimony of P.W.1-driver of the offending vehicle and apportioning the contributory negligence on the part of the deceased scooterist at 50%, is an erroneous approach on the part of the learned Member of the Tribunal and finding recorded on issue no.3 while apportioning negligence of the deceased at 50% is on the higher side. The same is required to be reduced for the reason that the P.W.1 has deposed that the scooterist was not wearing helmet. The same is required to be reduced for the reason that the P.W.1 has deposed that the scooterist was not wearing helmet. Therefore, there is no negligence on the part of the scooterist and the finding recorded on issue no.3 while apportioning negligence of the deceased at 50%, is not correct. Therefore, it would suffice for this Court to reduce the contributory negligence from 50% to 40% on the part of the scooterist. While entering from the lane negotiating towards his left side, he should have taken all possible care as to whether any vehicle is moving in the main road or not and not wearing helmet is one more important fact in this case to justify the finding recorded by the Tribunal that there is contributory negligence on the part of the scooterist deceased but it would suffice to fix the contributory negligence to 40% and not 50%. To that effect, the impugned judgment is modified. The second point is also answered. 7. The point nos. 3and 4 are required to be answered in favour of the appellant for the following reasons. It is an undisputed fact that the deceased was a Scientist and he was drawing ` 17,606/-as indicated in Ext.1-the salary certificate, which is not disputed by the respondent. But the Tribunal was not right in determining the annual income as he had another 15 years of service since he was of 45 years at the time of his death as borne out from the post-mortem report (Ext.4) and in these 15 years there would have been three revision of pay scales. Therefore, reliance is placed upon the decision of the Sarala Verma (supra) for the purpose of determining just and reasonable compensation. As per law laid down therein, addition in income for future prospects would be as follows : (a) An addition of 50% of actual salary to the actual salary income of deceased towards future prospects where the deceased had a permanent job and was below 40 years. (b) Addition should be only 30% if the age of the deceased was 40 to 50 years. 8. In the present case the deceased was aged about 45 years and at the time of death his actual salary was `17,606/-. As per decision of the Hon’ble Supreme Court 30% would be added to the actual income towards future prospects which comes to ` 5281.80. 8. In the present case the deceased was aged about 45 years and at the time of death his actual salary was `17,606/-. As per decision of the Hon’ble Supreme Court 30% would be added to the actual income towards future prospects which comes to ` 5281.80. Hence the total comes to ` 17606 + ` 5281.80 = ` 22,888 as monthly income. 9. The Tribunal assessed the contribution to the family on the basis of “Unit system” relying upon the decision of the Supreme Court in the case of U.P.S.R.T.C. and ors. V. Trilok Chandra and others, 1996(2) T.A.C. 286(SC). The Tribunal held the total 11.5 nit including the deceased. On the basis of the monthly income of the deceased at ` 22,888 /-, and the share per Unit comes to ` 1990/-and monthly dependency/contribution comes to ` 1990 x 9.5 = `18,905 and annual dependency comes to ` 18,905 x 12 = ` 2,26,870/-. As the deceased was aged about 45 years, as per the IInd Schedule of the Motor Vehicle Act, 1988, 15 multiplier is to be applied and accordingly the compensation comes to ` 2,26,870.00 x 15 = ` 34,03,050. 10. Mr. Das submitted that full and final settlement of 12 lakh is received. The said contention cannot be accepted. The payment of the deposit amount cannot be accepted as full and final settlement particularly in view of the stand taken by the first appellant-the wife of the deceased that she has not accepted any receipt stating that she has accepted payment upon deposit towards full and final settlement of the amount. Therefore, the appellants are entitled to the aforesaid enhanced amount of ` 34,03,050 with interest @ 7% from the date of application till the date of deposit or payment of the same. 11. It is noticed that there are three minor children and at her young age, the first appellant has lost her husband. Therefore, ` 30,000/-awarded by the Tribunal towards loss of consortium and other expenses, is on the lower side and it is a fit case for awarding another ` 20,000/-in view of the judgment of the apex Court in the General Manager, Kerala Road Transport Corporation, Trivandrum v. Mrs. Susama Thomas and others, AIR 1994 SC 1631 . The said amount is added towards dependency. Susama Thomas and others, AIR 1994 SC 1631 . The said amount is added towards dependency. Therefore, the total amount of compensation would be ` 34,03,050 + ` 50,000/-, which comes to ` 34,53,050/-. 12. Since the contributory negligence is 60%. The appellants are entitled to 60% of the amount of ` 34,53,050/-along with interest as directed which shall be deposited before the Tribunal or paid by DD to the appellant no.1 on the same proportion as has been awarded by the Tribunal. The MACA is disposed of accordingly. Appeal disposed of.