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2017 DIGILAW 693 (ALL)

M. D. , U. P. S. R. T. C. v. SARITA PANDEY

2017-03-06

PANKAJ MITHAL, SHASHI KANT

body2017
JUDGMENT By the Court.—Heard Sri Dinkar Mani Tripathi, learned counsel appearing for the appellants i.e. U.P. State Road Transport Corporation and Sri Kunal Ravi Singh, learned counsel for claimant-respondents. Respondent No. 5 is only a proforma party. 2. The appeal is directed against the judgment, order and award dated 24.5.2011 passed by Motor Accident Claims Tribunal by which compensation of Rs. 6,19,000/- has been awarded to the claimant-respondents with 6% simple interest per annum from the date of filing of the claim petition till its actual payment. 3. On 2.1.2009, a head on collusion took place between a U.P. Roadways bus and a Tata Sumo. One Sunil Kumar Pandey was riding a motorcycle and was quite at a distance from the Tata Sumo but due to the aforesaid accident, he also dashed with the Tata Sumo and died. 4. Several claim petitions were preferred by the injured, who were traveling in the Tata Sumo, but, it is informed that all those claim petitions were referred to the Lok Adalat and were decided in terms of the compromise. 5. The deceased was a school teacher in S.S. Public School, Babatpur and was stated to be drawing salary of Rs. 9,100/- per month. He had additional income from coaching as well. He was aged about 34 years. He left behind his father, a widowed wife and two minor daughters. 6. All the dependents jointly preferred a claim petition and the same has been allowed holding age of the deceased to be 34 years, his income to be Rs. 4,500/- per month only and compensation has been determined by applying multiplier of 17. 7. Learned counsel for the appellants has argued that it was a case of contributory negligence and, therefore, the entire amount cannot be recovered from the appellants. The claimant-respondents were not able to prove actual income of the deceased and therefore, the Tribunal has committed error in taking Rs. 4,500/- as his income. Lastly, the Tribunal has wrongly applied multiplier of 17 as per Second Schedule to Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) though multiplier of 16, as per the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , was applicable. 8. 4,500/- as his income. Lastly, the Tribunal has wrongly applied multiplier of 17 as per Second Schedule to Section 163A of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) though multiplier of 16, as per the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , was applicable. 8. On the other hand, submission of Sri Kunal Ravi Singh, Advocate is that even though it may be a case of contributory negligence on the part of the driver of both the vehicles, but, as the deceased had not contributed to the accident, the claimant-respondents are entitled to recover the entire amount from one of the tortfeasors. 9. The claimant-respondents have preferred cross-objections, which are in time, to the effect that income of the deceased was proved to be Rs. 9,100/- per month and, as such, the Tribunal had erred in only taking Rs. 4,500/- as monthly income of the deceased without any proper basis. 10. There is no dispute to the fact that according to the High School certificate of the deceased on record, his date of birth was 7.3.1976 and, therefore, at the time of accident, he was actually 33 years of age. It is also not disputed that he was in teaching job in a private school. In order to prove his income, the claimant-respondents have produced Kamlesh Kumar Singh, Clerk of the Institution, as PW-2, who has attended the Court with salary register of the Institution. He has proved that he has brought the original salary register of the Institution and according to the said register, the deceased was drawing salary of Rs. 9,100/- per month. 11. The Tribunal disbelieved the said salary register as the same was not proved by Principal of the College or by the Management. There is no such requirement in law that salary register must be proved by Head or Management of the Institution. Nothing material has come out from the cross-examination of the aforesaid witness, which may cast doubt on the authenticity of the salary register produced by him. Secondly, the Tribunal was not justified in disbelieving the salary register for the reason that salary to the deceased was being paid in cash. 12. Nothing material has come out from the cross-examination of the aforesaid witness, which may cast doubt on the authenticity of the salary register produced by him. Secondly, the Tribunal was not justified in disbelieving the salary register for the reason that salary to the deceased was being paid in cash. 12. In view of the aforesaid facts and circumstances, we are of the considered opinion that according to salary register of the institution, where the deceased was working, his salary was proved to be Rs. 9,100/- per month. 13. In addition to the above, it has been laid down in the catena of authorities of the Supreme Court that where the deceased is of young age, some addition in his actual salary should also be made for future prospects, which principle has been incorporated under Rule 220-A of U.P. Motor Vehicles Rules, 1998 (hereinafter referred to as “the Rules”) and it has been provided that if a person is below 40 years of age, 50% of his income should be added to his actual salary. Accordingly, Rs. 4,550/- i.e. 50% of Rs. 9,100/- are liable to be added for future prospects in the above salary of the deceased. 14. The deceased has left behind him four dependents. Therefore, in view of Sarla Verms’s case (supra), one-third of his monthly income is liable to be deducted towards his personal expenses and rest will be available for the family. 15. Now coming to the question of applicability of the multiplier. 16. Since the deceased, at the time of the accident, was aged about 33-34 years as per his high school certificate on record, which is not disputed, according to the Sarla Verma’s case (supra) multiplier of 16 would have been applicable. The Tribunal, therefore, wrongly applied the multiplier of 17 as per the Second Schedule to Section 163A of the Act. 17. Accordingly, compensation payable to the claimant-respondents is worked out as under : Actual Salary Rs. 9,100/- p.m. x 12 Rs. 1,09,200/- p.a. Addition towards Future Prospects 50% of Rs. 1,09,200/- Rs. 54,600/- Total Salary Rs. 1,09,200 + Rs. 54,600 Rs. 1,63,800/- p.a. 1/3rd deduction on account of personal expenses Rs. 1,63,800 x 1/3 Rs. 54,600/- Dependency Rs. 1,63,800 - Rs. 54,600 Rs. 1,09,200/- p.a. Multiplier 16 Compensation Rs. 1,09,200 x 16 Rs. 17,47,200/- Funeral Expenses As awarded by the Tribunal Rs. 1,09,200/- Rs. 54,600/- Total Salary Rs. 1,09,200 + Rs. 54,600 Rs. 1,63,800/- p.a. 1/3rd deduction on account of personal expenses Rs. 1,63,800 x 1/3 Rs. 54,600/- Dependency Rs. 1,63,800 - Rs. 54,600 Rs. 1,09,200/- p.a. Multiplier 16 Compensation Rs. 1,09,200 x 16 Rs. 17,47,200/- Funeral Expenses As awarded by the Tribunal Rs. 2,000/- Loss of consortium As awarded by the Tribunal Rs. 5,000/- Total Compensation Rs. 17,54,200/- 18. The argument that it was a case of contributory negligence and therefore, entire amount cannot be recovered from the appellants has no substance. The aforesaid controversy is no longer res integra in view of three Judges bench judgment of Supreme Court in Khenyei v. New India Assurance Company Limited and others, (2015) 9 SCC 273 , wherein it has been laid down that in case of joint tortfeasors, it is open to the claimants to sue both the tortfeasors or any one of them and to recover the entire damages from one of them. In case both tortfeasors are party to the claim petition and apportionment/extent of their negligence is done by the Tribunal, the one tortfeasor can recover the part of the amount from the other in the execution proceedings and if not party, by bringing an independent suit. 19. In view of the aforesaid decision, if the claimant-respondents have not arrayed the owner or driver or even the Insurance Company of the other joint tortfeasor i.e. Tata Sumo vehicle, no illegality has been committed. 20. Accordingly, the appeal is dismissed. Cross objection No. 62273 of 2012 is allowed to the above extent and the compensation awarded by the Tribunal is enhanced from Rs. 6,19,000/- to Rs. 17,54,200/- alongwith interest, as allowed by the Tribunal, which at the first instance will be payable by the appellants subject to right of recovery from the other joint tortfeasor in accordance with law, as stated above.