Allahabad High Court
U.P.S.R.T.C. vs Smt. Kamla Bhargava And Others on 2 February, 2018
Author: Saral Srivastava
Bench: Amreshwar Pratap Sahi, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 30.11.2017 Judgment Delivered on 02.02.2018 AFR Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 1289 of 1991 Appellant :- U.P.S.R.T.C. Respondent :- Smt. Kamla Bhargava And Others Counsel for Appellant :- S.K. Sharma,Vishesh Kumar Gupta Counsel for Respondent :- R.B.D. Mishra,R.K. Jain,S. Nandan,S.K. Kakkar,Vinay Khare And Case :- FIRST APPEAL FROM ORDER No. - 857 of 1988 Appellant :- Smt. K. Bhargava Respondent :- Kumar Trading Comp. Counsel for Appellant :- R.K. Jain,Ram Singh,S.P. Srivastava Counsel for Respondent :- A.K.Shukla,J.N. Singh,Shashi Nandan,V.K. Gupta,Vijay Khare Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Saral Srivastava,J.
(Delivered by Saral Srivastava J.) Heard learned counsel for the parties in both the appeals.
First Appeal From Order No. 1289 of 1991 has been filed by U.P.S.R.T.C.; and First Appeal From Order No. 857 of 1988 has been filed by claimant Smt. K. Bhargava. Since both the appeals arise out of the judgment and order dated 27.05.1988 passed by the Motor Accident Claims Tribunal (Ist Additional District Judge), Rampur, therefore, they are being heard together. The brief facts giving rise to the institution of M.A.C.P. No. 3 of 1980 are that on 11.08.1979 one K.N. Bhargava boarded on the Bus No. U.S.C. 8136 from Bareilly and was going to Moradabad. At about 12:45 P.M., when the bus reached near village Mehdi Nagar, District Rampur, a truck no. U.T.L. 7160 coming from opposite direction dashed with the bus. As a result of the said accident, K. N. Bhargava died on the spot. He was aged about 50 years at the time of the accident, and was employed as General Manager, Continental Pump Ghaziabad. He was drawing salary of Rs.3,600/- per month. The widow and legal heirs prayed for a compensation of Rs.8,00,000/-.
The owner of the bus namely U.P.S.R.T.C. filed written statement admitting that K.N. Bhargava was travelling on Bus No. U.S.C. 8136. It further stated that the accident was not caused due to negligence of the driver of the bus, rather the accident was caused due to rash and negligent driving of the driver of the truck.
The owner and driver of truck also filed written statement stating therein that the claim petition was not filed in the proper form. It was further stated that the accident had taken place due to rash and negligent driving of the driver of the Bus No. U.S.C. 8136. They denied the fact that the truck was driven in rash and negligent manner; further denied their liability to pay any compensation.
New India Assurance Company, the insurer of the truck no. U.T.L. 7160, also denied its liability to pay any compensation.
On the basis of the pleadings between the parties, the Tribunal framed several issues. The owner of the Bus No. U.S.C. 8136 has challenged the finding on the issue of negligence in its appeal; and the claimants have challenged the finding on the issue of quantification of compensation. Besides, the above finding on other issues have not been assailed.
We would first deal with the submission of the counsel for the U.P.S.R.T.C., on the issue of contributory negligence raised in FAFO No.- 1289 of 1991.
The counsel for the appellant has urged that the Tribunal has erred in law in holding 67% negligence of the bus. He submits that the appellants have proved that the accident had occurred due to sole negligence of the driver of the bus, and therefore finding of the tribunal holding 67% negligence of the Bus in the accident is based on misreading of evidence on record and is liable to be set aside.
Refuting the submission of the counsel for the appellant, the counsel for the claimants submitted that the Tribunal after appreciating the entire evidence on record recorded that both the vehicles were on the National Highway, and there was no obstruction in their way; the Tribunal further recorded that the driver of the bus applied the brake suddenly, due to which bus had tilted and slanted as a result of which K.N. Bhargava dashed with the iron rod of the front seat which caused fatal injury. He submit that the Tribunal on the basis of evidence on record found the negligence of both the vehicles in the accident, and thereafter, correctly apportioned the negligence of driver of the bus to the extent of 67%, and the driver of the truck to the extent of 33%. There is no perversity in the finding of the Tribunal, and the finding of fact do not call for any interference by this Court.
We have heard the rival submissions of the parties. We have perused the findings recorded by the Tribunal on the issue of negligence. What we find from the finding recorded by the Tribunal is that the Tribunal after appreciating each and every evidence on record in detail has held the negligence of both the vehicles in the accident. The apportionment of the negligence by the Tribunal on the basis of evidence on record is correct. Learned counsel for the U.P.S.R.T.C could not point out any perversity or misreading of evidence by the tribunal in recording the finding of negligence of both the vehicles in the accident. Thus, we do not find any good ground to interfere with the finding of the Tribunal on the issue of negligence. Consequently, we uphold the finding of the tribunal on the issue of negligence.
Thus, First Appeal From Order No. 1289 of 1991 preferred by the U.P.S.R.T.C lacks merit and is accordingly dismissed.
Now, we would deal with the appeal preferred by the claimants for enhancement of the compensation.
The counsel for the claimants has submitted that as per the settled law 1/3rd should be deducted from the income of deceased towards his personal expenses, whereas, the Tribunal has illegally deducted Rs.1,000/- per month out of the assessed income of Rs.2,300/- per month towards personal and living expenses of the deceased. His further submission is that the age of deceased was 50 years and therefore, the Tribunal has erred in law in applying the multiplier of 10 instead of 13 which is applicable to the persons aged between 45 to 50 years.
He further contends that the deceased was in a permanent job and was aged about 50 Yrs., therefore, the claimants are entitled to 30% towards future prospect, in view of the judgment of the Apex Court in the case of (Sarla Verma and others Vs. Delhi Transport Corporation and others) 2009 (6) SCC 121. He further submits that the Tribunal has erred in law in not awarding any amount towards pain and suffering, funeral expenses and loss of consortium.
The counsel for the claimants-appellants further urged that the deceased was travelling in the bus and it was a case of composite negligence, therefore, it is the choice of the claimants to recover compensation from any of the tortfeasor. In case the amount of compensation is enhanced, a direction be issued to the U.P.S.R.T.C to pay the enhanced compensation and thereafter, it can recover the amount from the owner of truck to the extent of the liability of the truck. In this regard, he has placed reliance upon a judgment of the Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd & Others 2015 Law Suit (SC) 469.
Per contra, counsel for the U.P.S.R.T.C has submitted that a compensation awarded by the Tribunal is just and proper in the facts and circumstances of the case. He submits that the compensation is to be assessed on the basis of law applicable on the date of the accident for determination of compensation. He further submits that the Tribunal has awarded 12% interest which is on higher side.
We have heard the submissions of the parties. We find that there is no evidence on record to establish that the deceased was spending Rs.1,000/- per month on himself. It is settled principle of law that 1/3rd should be deducted towards personal and living expenses of deceased from the assessed income of the deceased for computing the compensation. Thus, deduction of Rs.1,000/- from the assessed income of Rs.2,300/- P.M. of the deceased towards personal and living expenses is wrong and is set-aside. Consequently, we provide that 1/3rd should be deducted from the assessed income of deceased towards personal expenses for computing the compensation.
There is no dispute that the age of deceased was 50 years and therefore, in view of the judgment of the Apex Court in the case of Sarla Verma (Supra), the multiplier of 13 is applicable. We find that the Tribunal on its own assumption without giving any cogent reason has applied the multiplier of 10 for computing the compensation. Thus, we provide that the compensation should be computed by applying the multiplier of 13.
With regard to the submission of the counsel for the appellant regarding future prospect, it is evident from the record that deceased was in a permanent job. Therefore, considering the age of the deceased, the claimants are entitled for 30% future prospect in view of the judgment of the Apex Court in the case of Sarla Verma (Supra).
Now we would deal with the submission of the counsel for the respondent on the strength of the judgment of the Apex Court in the case of Kerala State Electricity Board and another Vs. Valsala K. and another (1999) 8 SCC 254 that the compensation is to be assessed on the basis of law prevailing on the date of accident, and therefore, the judgment of Apex Court in the case of Sarla Verma (Supra) with regard to grant of future prospect is not applicable.
In the case of Kerala State Electricity Board Kerala State Electricity Board (Supra), the Apex Court has held that the amendment in Section 4 and 4A of the Workmen's Compensation Act, 1923, was made with effect from 15.9.1995, whereby, the rates of the compensation and interest was enhanced. The apex court held that the amendment is not applicable, where the accident had taken place prior to the date of amendment, though the case was decided subsequent to the date of amendment.
The Apex Court In the case of Kerala State Electricity Board Kerala State Electricity Board (Supra) was considering the effect of the amendment in a statute for the purposes of granting the compensation. There is no dispute with the preposition that the claimants are entitled for compensation as per law prevalent on the date of the accident.
Compensation under the heading of future prospect is awarded for the loss suffered by the dependents for the future increase in the income of the deceased, and thus it is a part of compensation which the claimants are entitled to on the date of the death of the deceased. The apex court in the case of Sarla verma (Supra) has standardized the addition of future prospects in the income of deceased for computing the compensation in case of personas who are on the fixed job. The constitution bench of apex court in the case of National Insurance Company Vs. Pranay Sethi 2017(4) TAC 673 (S.C.), National Insurance Company Ltd. Vs. Pranay Sethi while affirming the judgment of Sarla Verma has approved the addition in income towards future prospect in the case of persons who were self employed or on fixed wages.
Thus, the contention of the counsel for the respondent on the strength of the judgment of the Apex Court in the case of Kerala State Electricity Board Kerala State Electricity Board (Supra) is not sustainable for the reasons; firstly that the claimants are entitled for future prospect on the date of accident being part of compensation, and secondly the law declared by the Supreme court is law of the land and would be applicable to all pending proceedings unless the apex court declares its applicability prospectively. The judgement of the Apex Court in the case of Pranay Sethi (Supra) declares the limits of compensation to be given in matters arising out of insurance claims. The declaration is by a Constitution Bench and can be clearly co-related to Articles 141, 142 and 144 of the Constitution of India. It will, therefore apply to all the pending proceedings either before this Court or before the Tribunal and to that extent it would be binding. The Apex Court has nowhere indicated that the said judgement would apply only in cases relating to accidents having occurred after the date of the judgement. In the absence of any such indication, it is not for the High Court to deny the benefit of the said judgement in pending cases including the present one.
Thus, we hold that the claimants are entitled for 30% future prospect. We find that the Tribunal has not awarded any amount towards funeral expenses, loss of consortium, and loss of estate. Since, the accident had taken place in the year 1979, and therefore, we award Rs.5,000/- towards funeral expenses, Rs.10,000/- towards loss of consortium, and Rs.5,000/- for the loss of estate.
In the case in hand, since the deceased was travelling in a bus, the accident had occurred between the bus and the truck causing fatal injury to the deceased. Thus, there was no negligence of the deceased in the accident; hence, it is a case of composite negligence. Thus, it is the choice of the claimants to recover the compensation from any of the tortfeasor.
Thus, following the law laid down by the Apex Court in the case of Khenyei (Supra), we direct that the enhanced amount of compensation shall be paid by the U.P.S.R.T.C., and thereafter it can recover the amount to the extent of the liability of the Truck from the owner of the truck.
We find that 12% interest awarded by the Tribunal is on higher side. Thus, we provide that the enhanced amount of compensation shall carry 7% interest from the date of the institution of the claim petition.
The appeal of the claimants is allowed to the extent indicated above. The U.P.S.R.T.C is directed to pay the enhanced amount of compensation within a period of three months.
Consequently, the First Appeal From Order No. 1289 of 1991 lacks merit and is dismissed, and First Appeal From Order No. 857 of 1988 is allowed to the extent indicated above.
There shall be no order as to costs.
Order Date :- 02.02.2018 Ishan