Delhi High Court
Up State Road Transport Corporation vs Mamta & Ors on 29 August, 2014
Author: Jayant Nath
Bench: Jayant Nath
$~A-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29.08.2014
+ MAC.APP. 910/2011
UP STATE ROAD TRANSPORT CORPORATION..... Appellant
Through Ms.Garima Parshad and Mr.Shadab
Khan, Advocates
versus
MAMTA & ORS ..... Respondent
Through Mr.O.P.Mannie, Advocate for R-1 to
R-4
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed by the appellant seeking to impugn the Award dated 19.05.2011. The claim petition was filed by respondents No.1 to 4 herein under Section 166 and 140 of the Motor Vehicles Act, 1988. The brief facts are that Bhopal Ram slipped from the platform at ISBT Anand Vihar. A bus belonging to the appellant said to be driven in a rash and negligent manner suddenly took a sharp U turn and the left rear wheel of the bus ran over the head of the deceased. The deceased died due to the injuries sustained.
2. The Tribunal concluded from the evidence on record that the death of the deceased took place due to the rash and negligent driving of the bus belonging to the appellant and its driver Shri Ramvir Singh.
3. On the issue of compensation the Tribunal awarded the following compensation:-
Mac.App. 910.2011 Page 1 of 6"1.Loss of dependency Rs.9,07,188.00
2. Loss of consortium, loss of love Rs.40,000.00 & affection, loss of estate and funeral expenses Total Rs.9,47,188.00
4. Learned counsel for the appellant has made two submissions to challenge the compensation awarded. She firstly submits that the findings of the Tribunal that the accident took place due to the rash and negligent driving of the driver of the appellant is misplaced. She relies upon the post mortem report on record to submit that the nature of injuries as stated in the post mortem report do not show that the deceased died on account of any accident with the bus of the appellant corporation. She submits that the death appears to have occurred on account of some brain haemorrhage not connected with the accident in any manner whatsoever. She secondly submits that the quantum of compensation awarded by the Tribunal is far in excess. She submits that a perusal of the record would show that respondents have claimed that respondent No.3 was also a dependent whereas in fact respondent No.3 was the father of the deceased. She submits that as per settled law the father is normally not taken to be a dependent on the deceased. Based on this error, she submits that the Tribunal has deducted only 1/4th of the assessed income on account of expenditure incurred on the deceased whereas keeping in mind the fact that there were actually three dependents, deduction for expenditure on himself by the deceased should have been deducted at 1/3rd of his income.
5. Coming to the first contention of learned counsel for the appellant, the crucial evidence on record which points out to the details of the accident is that of PW-2 Shri Naresh Kumar, Constable, Police Station Mandawali, Delhi who was on duty at PP ISBT, Anand Vihar on the date of the accident. He has in his evidence as PW2 deposed as follows:-
Mac.App. 910.2011 Page 2 of 6"On that day at about 4.40 pm when I was present at D Platform counter no. 120 of ISBT I saw one person was crossing the road and slipped and fell in between B and C Platform. When I was moving towards him for about 283 steps meanwhile one UP Roadways bus no.UP-12J-3149 came at a fast speed and took a U turn in between C and D platform of the bus stand. Since it was at a fast speed the left rear wheel of the bus crushed the head of the person falling in between the platform. The driver try to run away from the spot. I first noted down the bus number and then ran behind him. Because of the traffic jam this bus got struck there. The driver after getting down from the bus tried to flee away from there I ran behind him and overpowered him and brought him back to the spot of the accident."
In his cross-examination he has stated as follows:-
"I had seen the injured from a distance of 4-5 steps only. It is correct that at about 4.40 pm this platform has a huge rush of people at that very place. It is incorrect to suggest that injured in this case suffered injuries of his own falling and not by crushing by the bus involved in the accident. It is incorrect to suggest that driver of the offending bus was not driving the vehicle at a high speed. After the incident the first thing I did was to note down the number of the offending bus when he was trying to flee away from the spot and then I ran behind the bus and caught hold the driver who had tried to flee away from the bus when it got stuck up in a nearby jam after 10-15 steps from the spot."
6. The said witness is an independent witness. He is a police constable who was on duty on that day at the Bus Terminal.
7. In fact based on his statement FIR has been registered which is dated 25.1.2010. A perusal of the FIR shows that a similar statement was made by him on the basis of which the FIR was registered. Relevant portion of the translated copy of FIR reads as under:-
Mac.App. 910.2011 Page 3 of 6"Today on 25.01.10 I was on patrolling duty at ISBT Anand Vihar from 8.00AM to 8 PM. Around 4.40 pm, I was standing at D Plate Form near Counter No.120 when a person while getting off from the platform slipped and fell on the road between Counter No.120 D Platform and Counter No.119 D Platform. I walked 2-3 steps towards him to help him stand when the bus driver of the U.P. Roadways bus bearing registration No.UP-12-J-3149 while driving very fast, rashly and negligently maneuvered the bus suddenly between the two platforms. I shouted in order to stop the bus but the bus driver did not stop the bus and the rear tyre towards the left side of the bus ran over the head of the person who had fallen down due to which that person started throbbing in pain and his head started to bleed. The bus driver drove the bus further away. But I chased the bus and the bus got stuck in the jam. Then the bus driver started fleeing away leaving the bus behind who was chased down and overpowered by me and he was taken to the spot by me and the PCR van was taking the injured person in the van when you came to the spot. There as lots of blood lying on the spot."
8. In view of the testimony of this independent witness the negligence of the driver of the offending vehicle belonging to the appellant is obvious.
9. Coming to the post mortem report, the relevant portion of the post mortem report which is relied upon by the learned counsel for the appellant reads as follows:-
"External examination (injuries etc.) "(1)Lacerated wound above (LR) Eyebrow measuring 2.5 cm x 0.5 cm = 6cm deep, Underlying fracture bone, visible surrounding abrasions tissue present (2) Abrasion below (LR) eye measuring 2cm x 2cm (3) Multiple abrasion present at (R1) hand Anterior side with sizes varying from 2cm x 1 cm to 0.5 cm x 0.5 cm (4) Multiple abrasion present at (R1) knee joint (4) Fracture between Maxilla present (5) Fracture nasal bone present Mac.App. 910.2011 Page 4 of 6 No other external injury present."
10. A suggestion had been made to PW-2 that the injury was caused on account of fall and not by the bus, he has denied the said suggestion. The appellant has failed to place on record any evidence of any expert witness to show that the injuries as noted in the post mortem report were not as a result of any accident with the bus or/and could have been caused only on account of a mere fall.
11. In view of the above facts and circumstances, there is no merit in the first submission of learned counsel for the appellant.
12. I will now deal with the second submission of the learned counsel for the appellant about deduction of 1/4th income for personal expenditure of the deceased. Learned counsel appearing for the respondents has on this issue submitted that even if for a moment, the contention of the appellant is accepted, the compensation as awarded by the Tribunal for non-pecuniary heads is on an extremely lower side and is contrary to various judgments passed by the Supreme Court. He points out that only Rs,40,000/- has been awarded for loss of consortium, loss of love and affection, loss of estate and funeral expenses. He points out that normally courts are nowadays awarding Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for loss of love and affection and Rs.25,000/- for funeral expenses and an additional sum of Rs.10,000/- for loss of estate.
13. It is true that the claimant/respondent No.1 has not filed any cross- appeal. However, the Supreme Court in the case of Ranjana Prakash & Ors. vs. Divisional Manager & Anr., 2011 ACJ 2418 has held that where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal by pointing Mac.App. 910.2011 Page 5 of 6 out other errors or omissions in the Award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. The fact that the claimants did not independently challenge the Award will not come in the way of their defending the compensation awarded on other grounds. Of course, in a claim by the owner/insurer, the claimant will not be entitled to seek enhancement of compensation by leading any new ground in the absence of a cross-appeal or cross-objections.
14. A perusal of the Award shows that the Tribunal has simply noted that there are four dependents and hence 1/4th amount of earning is to be deducted. The Tribunal has not given any reasons as to why the father of the deceased has been considered as a dependent of the deceased. Accordingly to that extent, there is merit in the submissions of learned counsel for the appellant that the appropriate deduction for personal expenditure should have been confined only to 1/3rd and not 1/4th.
15. However, I am not inclined to reduce the Award amount in view of the fact that the Tribunal has awarded much lesser amount on account of non-pecuniary compensation. The Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 had awarded a sum of Rs.1,00,000/- for loss of consortium, Rs.1,00,000/- for love and affection, Rs.25,000/- for funeral expenses and Rs.10,000/- for loss of estate.
16. In view of the above, there is no merit in the present appeal. Same is dismissed. Statutory amount lying deposited, if any, which may have been filed by the appellant may be refunded to the appellant.
JAYANT NATH, J AUGUST 29, 2014 n Mac.App. 910.2011 Page 6 of 6