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2014 DIGILAW 1534 (ALL)

Ram Devi v. U. P. S. R. T. C.

2014-05-12

DINESH GUPTA, RAJES KUMAR

body2014
JUDGMENT Rajes Kumar & Dinesh Gupta,JJ.: - This first appeal from order is preferred against the award dated 20.3.1991 passed by VIII A.D.J./Motor Accident Claim Tribunal, Saharanpur in Motor Accident Claim petition no.81 of 1989. 2. The brief facts giving rise to this appeal are that : The appellant-claimant, hereinafter, called 'the appellant' filed a claim petition for grant of compensation against the opposite party-respondent, hereinafter called the respondent for death of Kushal Pal Singh in an accident. 3. As per the claim petition on 20th January, 1989 at about 8.30 P.M. when the deceased, Kushal Pal Singh was going from Ghantaghar to his residence on hi vickey situate at church road and when he reached near Dehradun lane one bus bearing no.U.G.A.9015 which was driven rashly and negligently by respondent no.2 dashed the deceased Kushal Pal Singh and due to that accident the deceased suffered grievous injuries causing his death. F.I.R. was lodged by one Jagdish Chandra and criminal case was registered against driver of the offending bus. At the time of the accident the deceased was an employee in the bank and was receiving Rs.4300/- as salary and he was of 43 years of age. The claim of Rs.10,50,000/- was claimed in the petition. 4. Opposite party respondent no.1 filed his written statement and stated that the owner and the insurance company of the vickey involved in the accident have not been impleaded by the petitioner who were necessary parties, further the accident has not been caused by the driver of the bus who was driving his bus very slowly and very carefully and infact when driver reached the place of accident the deceased who was driving the vickey tried to overtake the bus from the left side and due to some confusion himself dashed against the bus and deceased came beneath left side back Tyre and died on the spot. 5. After considering the evidence and document evidence on record the trial court arrived at conclusion that both the vehicle i.e. offending bus and the vickey were equally responsible for the accident and the claimant is only entitled to claim 50% of the compensation from the opposite party. 6. So far as on the point of quantum the court awarded a sum of Rs.1,68,000/- compensation and partly allowed the claim petition awarding Rs.1,68,000/- as compensation vide its order dated 20.3.1991. 7. 6. So far as on the point of quantum the court awarded a sum of Rs.1,68,000/- compensation and partly allowed the claim petition awarding Rs.1,68,000/- as compensation vide its order dated 20.3.1991. 7. Feeling aggrieved the claimant appellant preferred this appeal. 8. The respondent also preferred F.A.F.O. which was also registered as F.A.F.O. no.665 of 1991 challenging the award passed by the Tribunal and said appeal was dismissed for non prosecution on 23.9.2013 by this Court. 9. The notice was issued to the opposite parties and Sri S.K. Mishra. Learned counsel for the respondent put in appearance. However, he has failed to appear on the date fixed later on. 10. Heard learned counsel for the appellant. 11. The counsel for the appellant submitted that finding of the tribunal on the issue no.1 that the accident has taken place due to the composite negligence of both the vehicle i.e. vickey as well as bus is erroneous and the Tribunal has erred in awarding only 50% compensation to the claimants. 12. That the oral testimony adduced by the respondent to establish the fact that the accident has taken place due to composite negligence of the bus driver as well as vickey driver has been completely disbelieved by the Tribunal and, therefore, the Tribunal has erred in imposing the liability on the bus driver as well as on the vickey driver. 13. That the finding of the Tribunal with regard to the composite negligence of both the drivers of the vehicle vitiated by substantial and manifest error of law and has been recorded without their being any evidence on record. 14. That even if Tribunal has arrived on a finding that the accident is due to the composite negligence of both the driver even then the court has committed manifest error of law in adopting the rule of apportionment of liability. 15. That the Tribunal has committed manifest error of law in making their apportion of the decree of negligence between driver of the bus and vickey in the ratio of 50-50. 16. That the Tribunal while assessing the compensation has wrongly deducted an amount of Rs.186.36 which was paid towards house rent allowance to the deceased. 17. 15. That the Tribunal has committed manifest error of law in making their apportion of the decree of negligence between driver of the bus and vickey in the ratio of 50-50. 16. That the Tribunal while assessing the compensation has wrongly deducted an amount of Rs.186.36 which was paid towards house rent allowance to the deceased. 17. That the deceased was survived by his wife, four children and mother and he was looking after six dependents, therefore, the deduction of 1/3 from his salary as amount spent on personal expenses is excessive it should be ¼ of the income of the deceased which the Tribunal should deduct as amount spent on personal expences of the deceased. 18. That the Tribunal has wrongly applied multiplier of ten while it should be 14 without considering the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and others, 2009(2) T.A.C.677(S.C.). The counsel further submitted that the Tribunal has wrongly awarded the loss of consortium, loss of estate, funeral expences which have been awarded in the case of the death. 19. The Tribunal has not awarded any compensation in the above said head. 20. Further the counsel submitted that the Tribunal has failed to award interest on the compensation at all. While the Tribunal should have awarded 7% interest from the date of filing of the petition. 21. The argument raised by the learned counsel for the appellant has some force. 22. So far as the fastening of the liability on both the vehicle to the tune of 50-50 appears to be perverse and there is a clear misreading of the evidence adduced by the parties. 23. The defendant respondent had taken a specific case that the vickey driver himself dashed in the back side of the bus and deceased fell down beneath the left back side wheel of the bus. 24. The Tribunal after appreciation of the evidence completely ruled out the defence set up by the respondents. The claimant has also taken specific plea that after overtaking the vickey the bus suddenly came closure to the vickey and the left side of the back of the bus hit the vickey and the deceased fell on the foot path and died. 25. The P.W. 2, Jagdish Chandra and P.W. 3, Janeshwar Pal are the eye witness of the accident. 25. The P.W. 2, Jagdish Chandra and P.W. 3, Janeshwar Pal are the eye witness of the accident. The Jagdish Chandra clearly stated that when he was going towards Dehradun Road the offending bus which was driven negligently and rashly hit the vickey on his left side and the deceased fell down from the vickey and received grievous injuries and expired. In the cross objection he also stated that bus hit the dicky of the vickey and there was a carrier also fitted in the dicky. He denied the suggestions given by the respondent that the vickey tried to overtake the bus from the wrong side. The Janeshwar Pal is also an eye witness and also stated that it was the back side of the bus which hit the vickey. From the evidence it is clear that there can not be a case of composite negligence. 26. The Tribunal has wrongly arrived at conclusion that it is the case of composite negligence and then apportioned the liability of both vickey as well as the bus in the ratio of 50-50. 27. After considering the evidence we are of the view that the finding recorded by the Tribunal is perverse and completely misreading of the evidence of the witness adduced by the claimant. So far as the evidence of respondent is concerned, the Tribunal has disbelieved them and also the case set up by the respondent, then the only option left with the Tribunal is to consider the evidence adduced by the claimant's witness and on the reading of the statement of the witness of the claimant it has been clearly established that the accident is result of sole negligence of the driver of the offending bus. 28. Further, the court has not framed any issue on the contributory/composite negligence of the vehicle involved in the accident. Therefore, the finding of the tribunal so far as in respect of the composite negligence of the vehicle is also not tenable. We are of the view that the claimant has established that the accident has taken place due to the sole negligence of the driver of the bus and the tribunal finding regarding the contributory negligence is perverse and liable to be set aside and the claimants are entitled to the whole of the award without any apportionment. 29. We are of the view that the claimant has established that the accident has taken place due to the sole negligence of the driver of the bus and the tribunal finding regarding the contributory negligence is perverse and liable to be set aside and the claimants are entitled to the whole of the award without any apportionment. 29. So far as the quantum of the compensation is concerned, we find some force in the argument raised by the counsel for the appellant. Admittedly, the deceased was an employee in the bank and on the date of accident he was getting Rs. 4423.36 per month which includes 185.74 paisa as his rent allowance, the Tribunal has wrongly deducted this allowance from the salary of the deceased. 30. In view of the decision of the Apex Court all the allowances should be included in the salary of the deceased while computing the compensation. Therefore, the Tribunal has wrongly deducted 185.74 paisa from the salary of the deceased and it should be for the computation Rs.4423.36 paisa per month. 31. Since the claimants who are wife and four children and one mother who were dependent on the deceased, are 6 in numbers, hence the deduction of ¼ is permissible as per the leading case of Smt. Sarla Verma (supra). The Tribunal has wrongly deducted 1/3 of salary the amounts which the deceased has spent on himself. 32. Further as per the case of Smt. Sarla Verma (supra) the deceased who was 43 years of age is also entitled to the compensation in respect of future prospects and the Tribunal should have considered 30% of the salary for the purpose of awarding the future prospects. 33. Since the deceased was 43 years of age and the Court has applied multiplier of ten instead of multiplier of 14 which should be the correct multiplier. 34. Further the Tribunal should have awarded benefits under non pecuniary head i.e. the loss of companionship, love, care and protection etc. Rajesh and others Vs Rajbir Singh and others 2013(2)ACCD 960(S.C.) the Court has considered and observed as under: "para 20 The ratio of a decision of this court on a legal issue is a precedent. 34. Further the Tribunal should have awarded benefits under non pecuniary head i.e. the loss of companionship, love, care and protection etc. Rajesh and others Vs Rajbir Singh and others 2013(2)ACCD 960(S.C.) the Court has considered and observed as under: "para 20 The ratio of a decision of this court on a legal issue is a precedent. But an observation made by this court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, an in fact ought to be, periodically revisted, as observed in Santosh Devi, 2012 ACJ 1428 (SC). We may, therefore, revisit the practice of awarding compensation under conventional heads: (i) loss of consortium to the spouse; (ii) loss of love, care and guidance to children and (iii) funeral expenses. It may be noted that the sum of Rs.2500 to Rs.10,000/- under those heads was fixed sveral decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case 2009 ACJ 1298 (SC), it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs. 10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comport, guidance, society, solace, affection and sexual relation with his or her mate. That non pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc. which the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the United States of Americal, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just asnd reasonable that the courts award at least Rs.1,00,000/- towards loss of consortium. Para-21 We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'funeral expenses'. The price index, it is a fact, has gone up in that regard also. The head funeral expenses, does not mean the fee paid in the crematorium or the fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'funeral expenses'. In the absence of evidence to the contrary for higher expenses, to wards at least an amount of Rs.25,000/- " . 35. Therefore, in view of the above the claimant is also entitled to get Rs. one lack as consortium and one lack as loss of love and care and 25,000/- as funeral expences. 36. On the basis of the above said observation now the claimants are entitled to the compensation as follows: (a) Salary Rs. 4423/- (b) 30% of the above to be added as future prospect 4420+1326 = Rs. 5746/- (c) ¼th deducted as personal expenses of the deceased Rs. 5746-1436 = 4310/- (d) Compensation after multiplier of 14 is applied Rs. 4310x12x14 = 7,24,080/- (e) Loss of consortium Rs. 1,00,000/- (f) Loss of care and guidance for minor children Rs. 1,00,000/- (g) Funeral expenses Rs. 25,000/- Total compensation awarded Rs. 9,49,080/- 37. The tribunal has failed to award any interest on this compensation to which the claimant are entitled @ 7% per annum from the date of filing of petition. 38. The appeal is allowed in part and the claimants are entitled to receive compensation as enumerated above in the table.