REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI

Transcription

1 REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP. No. 385/2008 RAJASTHAN ROADWAYS TRANSPORT CORPORATION... Appellant Through: Ms. Ritu Bhardwaj, Advocate. versus SMT. MUKESH AND ORS. Through:... Respondents Mr. M.B. Singh, Advocate. % Date of Decision : December 7, 2010 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : REVA KHETRAPAL, J. J U D G M E N T By way of this appeal, the Rajasthan Roadways Transport Corporation seeks to assail the judgment and award of the Motor Accident Claims Tribunal passed in a claim petition under Section MAC APP. NO. 385/2008 Page 1 of 9

2 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act ) filed by the respondents no.1 to 5 herein seeking compensation of ` 35,00,000/- for the death of their bread-earner Inderjeet, who sustained fatal injuries while driving a Maruti Esteem car, on account of the rash and negligent driving of a bus bearing no. RJ-06P-0947 belonging to the appellant herein and driven by the respondent no.6 Rattan Giri. The Motor Accident Claims Tribunal after considering the evidence adduced by the parties awarded compensation in the sum of ` 20,80,000/- inclusive of the interim award, with 7% per annum from the date of the filing of the petition till its realization, and held the appellant and the respondent no.6, jointly and severally liable to pay the same to the respondents no.1 to Aggrieved by the said award, the present appeal has been preferred by the appellant on two grounds. The first ground of challenge by the appellant is that the driver of the bus (the respondent no.6 herein) was not negligent and the appellant is therefore, not liable to pay any compensation. The second ground of challenge is that the amount awarded by the learned Tribunal is on the higher side. MAC APP. NO. 385/2008 Page 2 of 9

3 3. It is contended by Ms. Ritu Bhardwaj on behalf of the appellant Transport Corporation that there is no cogent evidence on record to justify the finding of the Tribunal that the respondent no.1 by his rashness and negligence had caused the fatality in the instant case. The counsel referred to the evidence of RW1, Jai Dev Singh, the conductor of the offending bus on the date of the accident, to buttress her submission that the appellant could not have been held liable by the learned Tribunal. As regards the quantum of compensation awarded to the legal representatives of the deceased, it is the submission of Ms. Ritu Bhardwaj that the amount of the award is highly excessive, the legal representatives of the deceased having failed to establish on record the salary of the deceased. 4. Mr. M.V. Singh, the counsel for the respondents no.1 to 5, on the other hand, sought to support the award as just and proper except to contend that keeping in view the fact that the deceased had five dependent members, the Tribunal erred in deducting 1/3 rd of the income of the deceased towards his maintenance and personal expenses instead of 1/4 th. MAC APP. NO. 385/2008 Page 3 of 9

4 5. As regards the first ground of challenge, I find no merit in the same. There is on the record the statement of the eye-witness PW2, Sandeep, who stated on oath that on 2 nd March, 2002 he was travelling in a Maruti Esteem car with his wife, which was driven by the deceased Inderjeet Yadav, and they were returning from Chittorgarh/Ajmer side to Gurgaon. The deceased was driving the Esteem car at a normal speed on the left side of the road and at about 3-4 p.m. when they reached near Mauza Kabelian, District Bhilwara, a bus bearing no. RJ-06P-0947 came from the front side which being driven at a very fast speed and in a rash and negligent manner, after overtaking a truck, hit against their car, dragging the car for some distance. Due to the impact, the deceased sustained grievous injuries while he (PW3) sustained simple injuries on his left hand and left leg and his wife suffered fracture of left leg. In the cross-examination of this witness, his testimony remained unshaken and as a matter of fact the witness clarified that the accident was caused by the bus while encroaching on their side of the road, when the said bus tried to overtake the truck. MAC APP. NO. 385/2008 Page 4 of 9

5 6. The respondents, as stated above, examined RW1, Jai Dev Singh, the conductor of the offending bus, who in his testimony stated that he was a conductor on the Rajasthan Roadways bus going from Ajmer to Bhilwara, driven by Rattan Giri. According to him, the bus was being driven at a normal speed when a car came from the opposite direction at a very fast speed and collided against the bus. The accident took place on a curve. 7. It deserves to be noticed at this juncture that the appellant- Transport Corporation, which was arrayed as the respondent no.1 in the claim petition, in the written statement filed by it, had emphatically denied the involvement of the bus in the accident. Yet, RW1, Jai Dev Singh, alleged to be the conductor of the bus at the time of the accident has been produced in the witness box by the appellant to delineate the manner in which the accident took place. Significantly, also the driver of the bus, Rattan Giri (the respondent no.6 herein) chose to keep away from the witness box. It is settled law that where the driver of the offending vehicle chooses to shun the MAC APP. NO. 385/2008 Page 5 of 9

6 witness box, adverse inference of rash and negligent driving must be drawn against him. 8. In any case, I see no reason to doubt the testimony of PW3, Sandeep, an eye-witness to the accident who was also injured in the accident along with his wife. The Tribunal has rightly held that the involvement of the vehicle and the factum of accident have been duly proved on record and that in view of the evidence of PW3, it must be held that the deceased suffered fatal injuries in a road accident caused by the respondent no.6, driving the offending bus in a rash and negligent manner. A glance at the site plan and the photographs, Ex.RW1/1 to RW1/3 further corroborates the fact that the accident was the outcome of the negligence of the respondent no.6 in driving his vehicle. 9. Adverting to the second ground of challenge, I find no merit in the same for the following reason: The salary certificate of the deceased has been duly proved on record by his employer Sh.Hari Radheshwar, PW1, Director of Asia Pacific Delphi Corporation vide certificate Ex.PW1/1. PW1 has MAC APP. NO. 385/2008 Page 6 of 9

7 categorically stated that the said certificate bears his signatures. PW1 has also placed on record the receipts of payment to the deceased Inderjeet, who he testified, had been employed to drive his car. This witness has not been cross-examined at all and accordingly the certificate Ex.PW1/1 signed by the witness must be taken to be authentic and trustworthy. A perusal of the certificate shows that the deceased was drawing a salary of ` 11,500/-, i.e. the basic salary of ` 7500/- plus other benefits. The learned Tribunal, in these circumstances, has rightly observed that as per Ex.PW1/1, the carry home salary of the deceased is shown as ` 11,500/- ; and has taken the income of the deceased at the time of his death to be ` 10,000/- per month. 10. Taking into consideration the future prospects of the deceased, the Tribunal has taken his income to be ` 15,000/- per month. Out of this 1/3 rd has been deducted on account of the personal expenses of the deceased and the average annual dependency of the claimants ascertained to be in the sum of 1,20,000/- per annum. To this the Tribunal has applied the multiplier of 17, keeping in view the fact that MAC APP. NO. 385/2008 Page 7 of 9

8 the age of the deceased at the time of the accident was 30 years. Thus, the compensation has been calculated to be ` 1,20,000/- x 17 = 20,40,000/-. After adding the non-pecuniary damages for loss of consortium and funeral expenses, the total compensation has been worked out to be in the sum of ` 20,80,000/-, for which an award has been passed with 7% p.a. 11. The guidelines for the award of compensation have been laid down in a recent judgment of the Supreme Court rendered in Sarla Verma and Ors. vs. DTC and Anr. (2009)6 SCC 121. In the said case the Hon ble Supreme Court has laid down that generally the annual income of the deceased is the starting point for calculating the compensation and that in view of the imponderables and uncertainities, an addition of 50% of the actual salary to the annual salary of the deceased towards the future prospects is warranted where the deceased has a permanent job and is below 40 years of age. It is further held that where the deceased was married, the deduction towards the personal and living expenses of the deceased, where the number of the dependent family members is 4-6 should be 1/4 th. In MAC APP. NO. 385/2008 Page 8 of 9

9 paragraph 19 of the judgment a chart has been worked out for the guidance of the courts setting out the appropriate multiplier for different age groups. As per the said chart the appropriate multiplier in the instant case is 17 for the age group of years. Thus, it is amply clear that the quantum of compensation worked out by the learned Tribunal squarely falls within the guidelines laid down by the Hon ble Supreme Court and no fault can be found with the computation thereof. In view of the aforesaid, there is no merit in the appeal and the same is accordingly dismissed. 12. The award amount, which is lying in this Court, shall be released to the respondents no.1 to 5 in terms of the award of the learned Tribunal, except the amount directed to be kept in the Fixed Deposit Receipt. 13. The appeal stands disposed of accordingly. December 7, 2010 sk REVA KHETRAPAL (JUDGE) MAC APP. NO. 385/2008 Page 9 of 9