Allahabad High Court
U.P.S.R.T.C. Thru. R.M. vs Sri Ram Lakhan Singh And 2 Others on 8 April, 2015
Equivalent citations: 2015 AAC 2073 (ALL), (2015) 152 ALLINDCAS 908 (ALL), 2015 (3) ALL LJ 659, (2015) 3 TAC 546, (2015) 5 ADJ 248 (ALL), (2015) 3 ALL WC 2940, (2015) 4 ACC 384, (2015) 111 ALL LR 40
Author: Krishna Murari
Bench: Krishna Murari, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 881 of 2015 Appellant :- U.P.S.R.T.C. Thru. R.M. Respondent :- Sri Ram Lakhan Singh And 2 Others Counsel for Appellant :- Dinkar Mani Tripathi Counsel for Respondent :- S.D. Ojha Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
The instant appeal is directed against the judgment and award dated 11.12.2014 passed by Shri Babu Prasad, Motor Accident Claims Tribunal/ Additional District Judge, Bansi, District Siddharth Nagar in M.A.C.P. No.104 of 2010 (Ram Lakhan Singh and another Vs. U.P.S.R.T.C and another), whereby the claimants/ respondent nos.1 and 2 ( hereinafter referred as 'the respondent nos.1 and 2') have been awarded Rs.9,92,000/- as compensation along with 7% simple interest per annum payable by opposite party no.1/ appellant ( hereinafter referred as 'the appellant').
Heard Shri Dinkar Mani Tripathi, learned counsel for the appellant, Shri S.D. Ojha, learned counsel for the respondent nos. 1 and 2 and perused the record.
Learned counsel for the appellant has contended that evidence of the respondent nos. 1 and 2 has been wrongly relied on by the learned tribunal, the accident had not occurred due to rash and negligent driving by opposite party no.2/ respondent no.3 ( hereinafter referred as 'respondent no.3') driver of Bus No.U.P.53/AT-7247.
Learned counsel further submits that their eye witness account is not trustworthy, documentary evidence is inadequate to support the finding recorded by the learned tribunal on issue no.1. He further submits that income of the deceased could not be proved but excessive amount has been awarded arbitrarily. The impugned judgment and award are against the material of record and law, therefore perse illegal, hence deserve to be set aside.
Shri S.D. Ojha, learned counsel for the respondent Nos.1 and 2 while replying the above arguments has contended that the judgment and award suffers neither any actually material irregularity nor any illegality. The grounds raised by the appellant have no substance. The appeal deserves to be dismissed.
Before analyzing the arguments for their proper appreciation, we would like to notice the facts involved in the matter in hand. According to claim petition averments, respondent no.1 is aged about 40 years, respondent no.2 is aged about 39 years, deceased Sanjiv Kumar Singh aged about 20 years was their son. At the time of his death, he was employed in Raghuwar Prasad Jaiswal Saraswati Shishu Mandir Inter College, Tetri Bazar, Siddharthnagar at the salary of Rs.9,000/- per month. On 18.3.2010 at about 3.00 A.M. when the deceased was going from Allahabad to Gorakhpur by appellant's Bus No.U.P.-53/AT-7247 near village Ranjit Patti, P.S. Gambhirpur, District Azamgarh due to rash and negligent driving by the respondent no.3, the said bus had collided with a truck, which was standing stationary on the patri of the road. In the accident some passengers were injured, out of them deceased died. Postmortem was conducted at District Hospital Azamgarh. The deceased was an outstanding athlete. He was awarded National Level Prize in Shotput. He had a bright future and would have become World Champion. F.I.R was registered at P.S. Gambhirpur, whereupon respondent no.3 has been charge-sheeted. Being employer, appellant is liable to pay compensation Rs.22,08,000/- on various heads.
On behalf of respondent no.1 contesting the claim petition, a written statement was filed, whereby most of the averments made in the claim petition have been denied and it is stated that the said bus on 18.3.2010 was going from Allahabad to Gorakhpur and respondent no.3 was the driver, Ashok Kumar Yadav was its conductor when the said bus reached to near village Ranjit Patti, suddenly one Maruti Car came from the opposite side at high speed when he reached near the bus, Maruti Car driver in order to save his vehicle turned his car towards right hand side and the bus driver for avoiding the collision turned his bus towards right hand - against the stationary truck. The accident had occurred, not due to fault of the bus driver, only in order to save collision with Maruti Car. The respondent no.3 is an experienced and skilled driver. For the accident, driver of Maruti Car was responsible. The compensation has been excessively claimed on imaginary grounds. Award is not maintainable, hence deserves to be dismissed.
Respondent No.3 did not put his appearance before the tribunal.
On the basis of the pleadings of the parties, 4 issues were framed after taking documentary as well as oral evidence of the parties and after hearing of the counsel for the parties, the impugned judgment and award have been passed. In the documentary evidence, inter alia, copies of F.I.R, charge-sheet, original pay certificate of the deceased, copies of postmortem report, site plan, educational and athletic certificates have been filed. Ram Lakhan Singh, PW-1, Ram Chandra, PW-2 and Prem Chandra Gaur, PW-3 have been examined on behalf of appellant nos.1 and 2.
On behalf of appellant, two witnesses namely, Awdhesh Shahi as DW-1 driver of the bus and Ashok Kumar Yadav as DW-2 conductor of the bus have been examined.
On issue no.1 regarding accident resulting in the death of Sanjiv Kumar Singh due to rash and negligent driving by the driver of the truck is concerned, the learned tribunal has concluded that the said accident had occurred due to rash and negligent driving by the respondent no.3, driver of the said bus wherein a passenger Sanjiv Kumar Singh sustained grievous injuries besides others and died. As a result thereon, in reference to issue framed on the basis of paragraph no.25 of the written statement, the learned tribunal has recorded its finding that accident had not occurred in the manner as stated in paragraph no.25 of the written statement. While deciding issue no.3, the learned tribunal has opined that being parents of the deceased Sanjiv Kumar Singh, respondent Nos. 1 and 2 are his legal representatives. On issue no.4, the learned tribunal has held that the age of the deceased was 21 years as recorded by the doctor in postmortem report and determined his income Rs.9,000/- per month. The learned tribunal on account of deceased being unmarried deducted 50% income towards his personal expenses and assessed Rs.54,000/- per annum as loss of dependency of his legal representatives. Thereafter multiplier of 18 was used and Rs.9,72,000 have been determined as loss of dependency of respondent nos. 1 and 2. In other heads, Rs.15,000/- have been awarded and thus claim petition was partly allowed and respondent nos.1 and 2 were awarded Rs.9,92,000/- as compensation along with 7% simple interest payable by the appellant.
The grounds taken in the appeal and arguments advanced in support thereof may be broadly classified under two heads, first how the accident had occurred, wherein deceased had lost his life and secondly amount of compensation.
Under first head, there are two versions - according to respondent nos. 1 and 2, accident had occurred due to rash and negligent driving by the driver of the bus in question and the other is as alleged by the appellant that accident had occurred due to rash negligent driving by the driver of the Maruti Car, which came from the opposite direction at very high speed, while taking evasive action, the bus had collided with the back side of the truck, which was standing there in a stationary condition without switching on indicators. The learned tribunal has appreciated eye witnesses accounts of both the sides, and on the basis of oral testimony of Ram Chandra (Roop Chandra ?), PW-2, co-passenger corroborated by the site plan believed the version of the respondent nos. 1 and 2 and discarded the version of the appellant and recorded detailed reasons.
Therefore, now we are called upon to judge, which version is nearer the truth.
The testimony of Ram Chandra (Roop Chandra ?), PW-2 has been impeached by the appellant on the ground that he could not produce ticket to show that at the time of accident, he was travelling in the said bus. Copy of the statement of Ram Chandra (Roop Chandra ?), PW-2 has been annexed with the supporting affidavit as Annexure No.3. He is not related to the deceased, before the accident he did not know the deceased. He has gave a vivid description of the accident and frankly stated that at the time of his examination before the tribunal, he possesses no document to show that on the fatal night he was traveling in the bus. According to him in the accident all papers were lost. Copy of the site plan Annexure no.4 duly corroborates the statement given by Ram Chandra (Roop Chandra ?), PW-2, whereas version of the appellant is improbable and unbelievable. According to him at the time of accident, the bus was proceeding from the side of Jaunpur to Azamgarh and Maruti Car came from the opposite direction. According to appellant's witnesses, Maruti Car driver turned his car towards the right side and bus driver turned his bus towards his left side. These two vehicles were proceeding from opposite directions, therefore, right side of the Maruti Car driver and left side of the bus driver would take them on the same side of the road. Such an action is highly improbable because it would lead to inevitable accident between these two vehicles. Second witness examined by the appellant states that first they had seen the Maruti Car at the distance of 15' - 20', if the version of the appellant is right head on collusion between the bus and Maruti Car would have occurred at the spot. Noticing this improbability and agreeing with the reasons assigned by the tribunal, we are of the opinion that the version of the respondent nos. 1 and 2 about the accident is nearer to the truth and it truly depicts the events which led to the accident between stationary truck standing on the left side of the road and the bus in question. Place of the accident shows that at the time of the collision bus must be travelling at a high speed and it was beyond control of the driver. The necessary inference is that, i.e., accident had occurred due to rash and negligent driving by the driver of the bus which resulted the death of Sanjiv Kumar.
Leaving aside the finding recorded by the learned tribunal and also by us hereinabove in respect of sole negligence of the driver of the bus, i.e., rash and negligent driving, we would like also to add here that though presence of Maruti Car at the time of accident on spot has not been found by the Investigating Officer and also by the judicial forums. If for the sake of argument the version of the appellant in this regard is taken to be correct that had the Maruti Car not come there at great speed the accident would not have occurred, even in spite of that the driver of the said bus can not be absolved from the negligence on his part. This presumption at the most would make the present case of composite negligence; drivers of both the vehicles being negligent. In such situation, the driver of the said bus and appellant would remain guilty and responsible to compensate the contesting respondents. The Hon'ble Apex Court in the case of T.O. Anthony Vs. Karvarnan, 2008(3) SCC 748 has observed what composite negligence means in paragraph 6 of the report, which is extracted as below;
" 6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."
Further in reference to liability of joint tort-feasors in the case of A.P.S.R.T.C and another Vs. K. Hemalatha and Ors, AIR 2008 SC 2851, the Hon'ble Apex Court, in paragraph no.10 of the report has observed following:-
" 10. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the Court to determine the extent of liability of each wrong- doer separately......................"
In view of the above, the claimants are not required to array driver, owner and insurer of both the vehicles. They are entitled to seek their remedy against the wrongdoer whom they choose.
The quantum of compensation has been questioned on two grounds; first, wrong application of multiplier, i.e., 18 and determination of income of the deceased. Certificate awarded to the deceased and filed before the tribunal, it is clear that deceased was an outstanding athlete, he had won National Award for Shotput, he had participated in World Championship for junior athletics. From the pay certificate and the statement of Prem Chandra Gaur, PW-3 income of the deceased was duly proved. PW-3 was the employer of the deceased and before the tribunal produced the pay register also. His evidence is of unimpeachable nature, therefore, tribunal has rightly relied it.
So far as wrong application of multiplier is concerned, according to the appellant deceased was held to be aged about 21 years according to II Schedule of the Motor Vehicles Act, 1988, multiplier 17 should have been applied.
The present claim petition was filed by the respondent nos.1 and 2, under Section 166 of the Motor Vehicle Act, 1988. The multiplier prescribed by II Schedule of 1988 Act is not determinative, it is meant only to be used, while deciding claim petition filed under Section 166 of the 1988 Act as guide vide U.P.S.R.T.C Vs. Trilok Chandra, 1996, ACJ 831 (SC). There is a difference between health of an ordinary person and athletes.
In view of his brilliancy in athlete the age of the deceased cannot be made a paramount factor. In this peculiar back ground, we are of the opinion that the learned tribunal has not erred in using multiplier of 18 instead of 17. The Hon'ble Apex Court in the case of UPSRTC Vs. Krishna Bala, 2006 (6) SCC 249 has expressed the view that multiplier is to be adopted taking note of the present banking rate of interest. In the year 2006, the Hon'ble Apex Court in that case has observed that interest rate has declined. The multiplier has to consequently be raised. The Hon'ble Apex Court has held that for the persons between the age group of 21 years to 25 years multiplier 18 should be used.
In view of the opinion expressed by the Hon'ble Apex Court, the use of multiplier of 18 for determining the loss of dependency occurred due to the death of deceased is held to be correct.
Arguments advanced on behalf of appellant are without substance remain unsubstantiated from the record, therefore, deserves to be rejected.
Resultantly appeal fails.
Accordingly, appeal is dismissed.
Order Date :- 8 .4.2015 SFH