AO/193/2013 of Uttarakhand Transport Corporation Vs Smt Sushma Jain AND OTHERS

Judgment Reserved on: 24.07.2017 Judgment Delivered on: 27.11.2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No.193 of 2013

Uttarakhand Transport Corporation

… Appellant

Smt. Sushma Jain & others

… Respondents

AND

Appeal from Order No.467 of 2013

Smt. Sushma Jain & others … Appellants

Uttarakhand Transport Corporation & another

… Respondents

Mr. Aditya Pratap Singh, Advocate present for the claimants (appellants in AO No. 467 of 2013). Mr. Ashish Joshi, Advocate present for the Uttarakhand Transport Corporation.

Hon’ble Lok Pal Singh, J.

1.Since both the appeals are arising out of the common impugned judgment and award dated 16.02.2013, hence, both the appeals are being decided together by this common judgment and order for the sake of brevity and convenience.

2.Appeal from Order (A.O.) No.193 of 2013 has been filed by the Uttarakhand Trasport Corporation being aggrieved against the judgment and award dated 16.02.2013 passed the Additional District Judge/Motor Accident Claim Tribunal, Roorkee Haridwar in M.A.C. Case no.98 of 2012 titled as Smt. Sushma Jain & Others vs. Praveen Kumar & Another, whereby sum of Rs. 26,77,732/- was awarded to the claimants as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of realization. So far as the A.O.

No.467 of 2013 is concerned, the same has been filed by the claimants for enhancement of compensation.

3.Brief facts of the case for determining the controversy involved in the matter are that claim petition was filed by the claimants (i.e. unfortunate wife and two children of the deceased) alleging therein that on 21.05.2012 Neeraj Kumar Jain (deceased) was coming from Haridwar to Roorkee by his car No. UA-08E-3140 at about 3:00 PM. When he reached near Anpurna Restaurant, the driver of Uttarakhand Transport Bus No. UK-08PA-0251 who was coming from Roorkee to Haridwar on wrong side was driving the bus rashly and negligently dashed the car of the deceased, as result of which, Neeraj Kumar Jain, succumbed to injuries on the spot. It is contended that the accident occurred due to rash and negligent driving of the offending bus. At the time of accident, the deceased was posted in the Punjab National Bank as senior manager and earning salary of Rs.59, 449/-.

4.The claim petition was filed against the Uttarakhand Transport Corporation and its driver Praveen Kumar, but despite service upon the driver, he did not appear to contest the claim petition and the claim petition proceeded ex-parte against him.

5.The appellant-Uttarakhand Transport Corporation filed its written statement and denied most of the averments of the claim petition and contended that on the date of accident, the vehicle was being driven with normal speed by its driver in accordance with the rules and also contended that when the vehicle reached near Bahadarabad, the car driver (deceased) while trying to overtake the other vehicles suddenly came in front of the bus, the accident took place due to the overtaking by the car driver and there is no fault of the bus driver. It is also contended that the insurance company of car No. UA-08E-3140 has not been impleaded as party respondent. Thus the claim petition is barred by non-joinder of parties.

6.On the basis of pleadings of the parties, the tribunal has formulated the following issues:

1. Whether on 21.05.2012 at about 3:00 PM near Anupurna restaurant on Haridwar/Roorkee road at Bahadarabad within the jurisdiction of Police station Rishikesh District Haridwar, deceased Neeraj Kumar Jain in his car No. UA-08E-3140 was coming from Haridwar to Roorkee, he reached in front of Anupunra restaurant then the bus No. UK-08PA-0251, which was being driven by its driver rashly and negligently and dashed the car, and he died on spot due to injuries sustained by him?

2. Whether the accident occurred due to the rash and negligent driving of the car No. UA-08E-3140, which was being driven by the deceased himself, as stated by the opposite party No. 2 in its written statement?

3. Whether the claim petition is bad in non-joinder of owner and insurance company of car No. UA-08E-3140 as stated in the written statement of respondent No. 2? 4. Whether the claimants are entitled to any compensation? If so, and how much from which party?

7. The claimants filed the documentary evidence i.e. First Information Report, charge sheet submitted against the driver of the bus, post mortem report, inquest report, pan card, I-card, salary slip, driving licence and High School certificate to prove the age of the deceased.

8. Claimant Smt. Sushma Jain PW-1 examined herself to prove the averments of claim petition. She was cross-examined, with regard to her presence at the time of incident. Ajay Kumar PW-2 is the eye witness of the incident, who proved the fact that the driver of bus No. UK-08PA-0251 was driving the vehicle rashly and negligently on the wrong side and he dashed the car No. UA-08E-3140. Ajeet Kumar Garg PW-3 Manager of Punjab National Bank was produced to prove the salary of the deceased. 9. On behalf of the opposite parties, driver Praveen Kumar was examined as DW-1. He was impleaded as opposite party in the claim petition, but he did not file his written statement, though he appeared as defence witness to prove, that the accident occurred due to the rash and negligent driving of the deceased

and it was not his fault. He was cross examined and he made statement that after the incident, he fled away from the spot and also admitted that he has been charge-sheeted by the Police in rash and negligent driving of the bus at the time of accident.

10. Learned Tribunal decided issue Nos. 1 and 2 and recorded its findings that the PW-2 Ajay Kumar (eye witness) has proved that accident occurred due to rash and negligent driving of the bus driver and also recorded the findings that Neeraj Kumar Jain died due to the injuries sustained by him in the accident. The findings also recorded on issue No. 3 to the effect that the claimants have filed the registration certificate of car No. UA-08E-3140, which was registered in the name of Neeraj Kumar Jain (deceased) and the car was insured with the insurance company and there was no occasion for the claimants to implead the insurance company of car as party respondent and have not sought any relief against the insurance company of Car No. UA-08E-3140.

11. Learned tribunal has decided the issue No.4, which pertains to the compensation to the claimants. Learned tribunal held that at the time of death, the age of the deceased was 57 years and while applying the principle laid down by the Hon’ble Apex Court in the case of Sarla Verma & others vs. Delhi Transport Corporation & another reported in (2009) 6 SCC 121 applied the multiplier of ‘9’. The salary of the deceased was assessed as Rs.59,449/- per month and after deducting income tax personal benefits available to the salaried employee while placing reliance upon the judgment of Hon’be Apex court in the case of National Insurance Company vs. Indra Srivastava in 2008 SCW-143, the learned tribunal has held that after all deductions, the salary of the deceased comes to Rs. 59,449/- per month.

12. The Tribunal, after considering the evidence led by the parties, assessed the income of the deceased at Rs.59, 449/- per month. Accordingly, the annual income came to Rs.7,13,388/- (i.e. Rs.59,449 x 12) after deducting income tax, personal benefits etc. of Rs. 70,000/- +Rs. 8,691/-. After deducting one-third of the monthly salary of the deceased towards the expenses which he would have incurred towards maintaining himself had he been alive, the claimants’ dependency was assessed at Rs.4,23,132/- per annum (Rs.6,34,697 - Rs. 2,11,565).By multiplying the annual dependency of Rs. 4,23,132/- with the multiplier of ‘9’, the compensation was worked out to Rs.38,08,188/- (Rs. 4,23,132 x 9= Rs. 38,08,188/-). The tribunal has deducted 30% for contributory negligence of the deceased, which comes to Rs. 26,65,732/-(Rs.38,08188/- 30% of annual income).Besides this, the Tribunal has awarded sum of Rs.5,000/- for loss of consortium and Rs. 5,000/- for loss of love and affection and Rs. 2,000/- towards the funeral expenses along with 6% interest from the date of filing of claim petition till the realization of awarded amount. It is pertinent to mention here that neither any issue was framed by the learned trial court in regard to the alleged contributory negligence of the driver of the car nor any evidence was lead by the respondents in this regard but the learned tribunal has recorded the perverse findings that there was contributory negligence of driver of the car as he could avoid the accident. These findings of the learned trial court are not sustainable and set aside. It is held that there was no contributory negligence on the part of the driver of the car. 13. Learned Tribunal while recording the findings that the driver of Alto car was having an opportunity to avoid the accident, but he did not do so, therefore, both the drivers were held liable for contributory negligence and it appears that the bus driver was more negligent. Therefore, 70 percent liability was

fastened upon the driver of the bus, while 30 percent negligence has been attributed to the driver of car.

14. The learned tribunal reduced the quantum of compensation up to 30%, keeping in view the contributory negligence on the part of the driver of car.

15. It is specifically contended by the claimants that the accident occurred due to rash and negligent driving of the bus driver and the Insurance Company did not raise any plea in its written statement that there was contributory negligence on the part of the car driver, neither plea was raised by the respondent nor any issue was framed in regard to the contributory negligence of the car driver.

15. Thus, in the absence of pleadings or evidence, there was no occasion for learned tribunal to record the findings of contributory negligence on the part of the driver of car. Learned tribunal has committed illegality in recording the finding that it is case of contributory negligence and 30% negligence was found on the part of the car driver.

16. Learned counsel for the appellant has placed reliance upon the judgment of Hon’ble Apex Court in the case of Pramodkumar Rasikbhai Jhaveri vs Karmasey

Kunvargi Tak and Ors., reported in 2002 AIR SCC 2864.

The relevant paragraphs are reproduced hereunder:

6. The next question that arises for consideration is whether the High Court was justified in holding that there was contributory negligence on the part of the appellant. The Tribunal found that the accident happened due to the negligence of the truck drier but the High Court, by the impugned judgment held that the appellant was also partly negligent and thus, there was contributory negligence on his part and the total compensation payable to the appellant was reduced. 7. The High Court found that there was contributory negligence on the part of the appellant for two reasons. Firstly, the appellant who was driving the car did not slow down his vehicle when he saw that the truck coming at high speed from the opposite direction was trying to overtake another car ahead of the truck and, secondly, the High Court found that there was three feet width of the

road on the left side of the car of the appellant and on seeing the oncoming truck, the appellant could have swerved his vehicle to the left side.

8. We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimant’s part, which has materially contributed to the damage caused, and is of such nature that it may properly be described as ‘negligence’. Negligence ordinarily means breach of legal duty to care, but when used in the expression “contributory negligence” it does not mean breach of any duty. It only means the failure by person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an “author of his own wrong”.

17. Learned counsel for the appellant also placed reliance on the judgment of Hon’ble Apex Court in the case of Minu Rout

and Another vs Satya Pradyumna Mohapatraanad Others, reported in 2013 (31) LCD 2022 SC. The relevant paragraph is reproduced hereunder:

10. This point is required to be answered in favour of the appellants for the following reasons:-

It is an undisputed fact that the accident took place on 08.11.2004 at about 11:45 p.m. on account of head on collision between truck bearing registration No. OR09-C-7165 and the car driven by the deceased bearing registration no. OR 09-C-6463. the Jaipur Police Station has registered FIR against both the drivers of the offending vehicle and the car. After investigation of the case, charge-sheet Exh. 1 GR 114 of 2004 was filed before the S.D.J.M. Jaipur against the first respondent and the deceased, and on account of his death the case was abated and therefore, the Tribunal has committed error in law in coming to the conclusion in the absence of rebuttal evidence that there was contributory negligence of 50% on the part of the deceased.

18. The learned tribunal without framing any issue in regard to

the ‘contributory negligence’ and in cryptic manner has recorded the findings that since the driver of the car had an occasion to avoid the accident, the driver of the car was also held for contributory negligence. The findings are perverse and against the settled proposition of law. Since, the learned

tribunal has not framed any issue in regard to the contributory negligence on the part of the car driver and neither there were pleadings in this regard; therefore, the learned tribunal has committed an error in recording findings to the effect that there was contributory negligence on the part of the driver of car. 19. My view is fortified with the ratio of the judgment of Hon’ble Apex Court in the case of Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak and Ors., reported in 2002 AIR SCC 2864. Therefore, the learned tribunal has committed error in recording the findings that there was contributory negligence of 30% on the part of the driver of the car.

20. Since this Court has found that there was no contributory negligence on the part of the driver of car, therefore the accident occurred due to the rash and negligent driving of the bus. Thus, the appellant- Uttarakhand Transport Corporation is liable to pay the entire compensation.

21. Learned counsel for the claimants placed reliance upon decision of Hon’ble Apex Court in Rajesh & others vs. Rajbir Singh & others reported in (2013) 9 SCC 54, wherein Hon’ble Apex Court has reassessed the compensation Rs.1 Lakh was awarded towards loss of care & guidance for minor children. 22. The arguments were heard in the appeal and judgment was reserved, but before the delivery of judgment of this Court, Five Judges Bench of the Hon’ble Apex Court has considered the principle of law laid down in the case of Reshma Kumari and Ors. Vs. Madan Mohan and Another reported on (2013) 9 SCC 65, Rajesh and Ors. vs. Rajbir Singh and Ors repoted in (2013) 9 SCC 54, Sarla Verma and Ors. vs. Delhi Transport Corporation and anr. reported in (2009)6 SCC 121, the Five Judges Bench of the Hon’ble Apex Court delivered the judgment on 31.10.2017 National Insurance Company Limited vs. Pranay Sethi and Ors., the principle of law laid down in regard to the future

prospects, application of multiplier, grant of general damages in case of death. The relevant part of the paragraph No. 54 of the judgment (supra), which is reproduced herein under:

“54……. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.”

23. In regard to the future prospects and multiplication

formula the Hon’ble Apex Court has held that in its judgment, the relevant part of the paragraph Nos. 56 & 60, which are reproduced herein under:

“59….. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had permanent job than person who is self-employed or on fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When person is in permanent job, there is always an enhancement due to one reason or the other. To lay down

as thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self- employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.”

24. The Hon’ble Apex Court in its recent judgment delivered on

31.10.2017, National Insurance Company Limited vs. Pranay Sethi and Ors. has held that the principle stated in the Reshma Kumari and Ors. Vs. Madan Mohan and Another case, which has concurred with the view expressed in the Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., case, being the dictum laid down in Reshma Kumari case being earlier in point of time would be binding precedent and not the decision in the Rajesh and Ors. vs. Rajbir Singh and Ors., therefore, Rajesh and Ors. vs. Rajbir Singh and Ors has no binding precedent and the same is not applicable as of now.

25. The Hon’ble Apex Court further laid down the principle of law in regard to the future prospects. The relevant part of the paragraph No. 61 of the judgment is reproduced herein under:

“61…. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.”

26. In view of the recent judgment of Hon’ble Apex Court (supra) the age of the deceased was 57 years, he was bank officials, therefore, the future prospects on his income is applicable of 15 %. After deducting one third from the salary of the deceased for his personal expenses, the monthly income comes to Rs.38,697/- (Rs.58,045/- Rs. 19,348/-), hence annual income of deceased comes to Rs. 4,64,364/- (Rs. 38,697/- X 12). By multiplying the annual dependency of Rs. 4,64,364/- with the multiplier of ‘9’, the compensation works out to Rs.41,79,276/- (Rs. 4,64,364/- X 9) . Since this Court as held that there was no contributory negligence on the part of the car driver, hence, deduction @ 30% for contributory negligence is not required to be made. In addition to the compensation, the claimants are entitled for loss of estates of Rs. 15,000/- and loss of consortium of Rs.40,000/- and Rs. 15,000/- for funeral expenses. In this way, the compensation and damages have to be reassessed as follows:

27. Compensation was awarded by the tribunal alongwith 6% interest from the date of filing the claim petition till the date of its realization. Findings recorded by the tribunal in grant of interest are not being upset. Therefore, the aforesaid compensation and damages as re-assessed by this Court shall carry the interest @ 6% per annum from the date of filing claim petition to its realization.

28. In view of above discussion, the appeal filed by the claimants is allowed. The claimants shall be paid sum of Rs. 42,49,276/-as compensation and damages by the Uttarakhand Transport Corporation along with interest @ 6% per annum. The amount already paid, if any, by the Insurance Company shall be adjusted. Statutory deposit alongwith interest, if any, occurred to it shall be remitted to the Tribunal concerned.

29. AO no.193 of 2013 filed by the Uttarakhand Transport Corporation stands dismissed accordingly. No order as to costs.

Dated 27.11. 2017

Balwant

(Lok Pal Singh, J.)