Allahabad High Court
Smt. Sunita Srivastava vs G.M. U.P.S.R.T.C. on 14 December, 2012
Author: Sunil Ambwani
Bench: Sunil Ambwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 04.12.2012 Delivered on 14.12.2012 Case :- FIRST APPEAL FROM ORDER No. - 308 of 2002 Petitioner :- Smt. Sunita Srivastava Respondent :- G.M. U.P.S.R.T.C. Petitioner Counsel :- M.A. Qadeer, Ashok Trivedi Respondent Counsel :- Ajay Singh AND Case :- FIRST APPEAL FROM ORDER No. - 2613 of 2002 Petitioner :- U.P. State Road Transport Corporation Thru G.M. Lucknow Respondent :- Smt. Sunita Srivastava & Others Petitioner Counsel :- Ajay Singh Respondent Counsel :- Ashok Trivedi Hon'ble Sunil Ambwani,J.
Hon'ble Aditya Nath Mittal,J.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Both these first appeals from order are directed against the judgment and award dated 10.1.2002 passed by Motor Accident Claim Tribunal/Additional District Judge, Court No.2, Gorakhpur in M.A.C.T. No.503 of 1996.
2. The Tribunal after recording evidence of both the parties has awarded a sum of Rs.50,000/- under Section 140 of the Motor Vehicles Act along with interest of 9% per annum.
3. The deceased Satya Prakash Srivastava was travelling in Bus No.U.P.-33-A-1681, owned by U.P. State Road Transport Corporation, Raebareli Depot from Gorakhpur to Vikramjeet, District Basti on 13.8.1996. The driver of the Bus was driving the Bus rashly and negligently, due to which at about 08:00 a.m. near Village Kalesar under Police Station Sahjanwa, Gorakhpur-Basti Road, District Gorakhpur, fell down into a ditch filled with water and the deceased and other passengers sustained injuries. The deceased was taken out from the water with the help of driver of a Jeep and was brought to his residence at Gorakhpur, from where he was taken to M.M. Nursing Home by his family members but the doctors refused to entertain the patient being accidental case. The patient was rushed to Medical College, Gorakhpur but because his condition was critical so he was referred to Medical College, Lucknow on 15.8.1996 in the Ambulance of Sahara India but before reaching Mohalla Alhadadpur, the deceased died in between 10:15 to 10:30 p.m. on 15.8.1996.
4. The dependants of the deceased preferred the Motor Accident Claim and examined eight witnesses. The Tribunal after considering the evidence on record came to the conclusion that the dependants of the deceased are entitled to get maximum of Rs.50,000/- as compensation under Section 140 of the Motor Vehicles Act and they are not entitled to get any compensation under Section 163-A because it was not proved that the deceased was travelling in the ill-fated Roadways Bus. The Tribunal also held that the brother of the deceased is an Advocate and the action taken by him is an after thought to complete the chain of events.
5. The claimants have challenged the award on the ground that the deceased was carrying valid ticket issued by the Corporation which was proved in accordance with law but the Tribunal has wrongly discarded the same by observing that it has not been proved by summoning the original record. The Tribunal has wrongly discarded the testimony of the witnesses of the claimants while P.W.-4 Chhotu Khan and P.W.-6 Patiram have proved that the deceased was travelling in ill-fated Bus. By awarding compensation under Section 140 of the Act, the Tribunal has admitted the liability of respondent corporation and has accepted the cause of death by accident by the vehicle as pleaded.
6. The U.P. State Road Transport Corporation has challenged the award by a separate appeal on the ground that findings regarding rash and negligent driving are perverse. The accident took place due to fault of steering of the Bus in which only three persons were injured and Satya Prakash Srivastava, the deceased was not injured. The Tribunal has wrongly awarded a sum of Rs.50,000/- as compensation hence the award is liable to be set-aside.
7. Heard learned counsel for the parties and perused the record.
8. The main question for consideration is whether Satya Prakash Srivastava (the deceased) was travelling in the ill-fated Bus on 13.8.1996 or not.
9. It is admitted to both the parties that the ill-fated Bus no. U.P.33-A-1681 met with the alleged accident due to mechanical defect and fell down in a ditch filled with water due to which the driver of the Bus and other passengers sustained injuries. It is also admitted that deceased Satya Prakash Srivastava died on 15.8.1996 regarding which the death certificate has also been filed by the claimants.
10. In the documentary evidence, apart from other papers, the claimants filed Paper No.52-Ga which is photo copy of the ticket issued by the Corporation to the deceased. This paper has been discarded in the evidence on the ground that it was a photo copy and the original record was not summoned. In these circumstances it becomes necessary to re-appreciate the oral evidence adduced by the claimants.
11. Smt. Sunita Srivastava, who is wife of the deceased although not a witness of fact of the accident but has deposed that on 13.8.1996 at about 09:00 a.m. her husband in the injured position was brought to home from where he was taken to M.M. Nursing Home and then after primary treatment he was referred to Medical College, Gorakhpur where he remained admitted from 13.8.1996 to 15.8.1996 but the condition of the patient was deteriorating hence he was referred to Medical College, Lucknow but on the way to Medical College, Lucknow he expired. This witness has further stated that there was dispute regarding post-mortem between two police stations and ultimately it was told that the F.I.R. has already been lodged hence there was no need of post-mortem.
12. Ram Sumer Pandey, P.W.-3 has been examined as witness of fact, who has stated that on 13.8.1996 he was travelling by his own Jeep No.MH-03-A-971 from Khalilgawad to Gorakhpur and when his Jeep arrived near Village Kalesar he saw that Roadways Bus No.U.P.-33-A-1681 was being driven rashly and negligently and when he was at a distance of 50 ft. behind the Bus, it fell into a ditch on the left side of the road and the passengers fell into water of the ditch. Meanwhile several other persons reached the spot and the passengers were brought out from the water. Satya Prakash Srivastava was also brought out from the water by his driver along with 2-3 persons who was in the senses and had told his name and name of his brother and the address of his home. After that Satya Prakash Srivastava was sent in his Jeep to his residence where his family members arranged another vehicle and transported Satya Prakash Srivastava to a Nursing Home.
13. This witness Ram Sumer Pandey is neither related to the deceased nor appears to be interested person and has narrated the whole story in a natural way. Nothing has come in his cross examination so as to presume that he is a pocket witness or an interested witness.
14. Pati Ram, P.W.-6, who was going to Gorakhpur at the time of incident, has narrated the same story that at about 08:00 a.m. the Roadways Bus was being driven rashly and negligently which fell into a ditch and he along with other villagers rescued the passengers in which Satya Prakash Srivastava was also included. This witness has also stated the number of Bus as well as the number of Jeep in which the deceased was brought to his home. This witness has also been cross examined at length and nothing adverse has come in his cross examination to disbelieve him. Both these witnesses are witnesses of fact who were present on the spot at the time of accident and nothing adverse has come in their cross examination so as to disbelieve them being interested witnesses or related witnesses.
15. The photo copy of the travelling ticket was produced by the claimants which has been discarded on the ground that it was a photo copy and the original record has not been summoned. As mentioned earlier the factum of the accident of the ill-fated Bus on the alleged date and time is not disputed. More over Mohd. Ansari, D.W.-3, who was Conductor on the ill-fated Bus has also admitted the fact of accident and in the cross examination he has admitted that Paper No.52-Ga which is the photo copy of the travelling ticket appears to contain his signature. This witness has not denied his signatures clearly. The witnesses of the Corporation have failed to narrate the names of other passengers. It appears that learned Tribunal has relied upon the news paper cutting in which the names of three passengers has been written. It has come in evidence clearly that the police has reached the spot after sometime and the names of the injured persons were told to the police. It appears that before coming of the police on spot, the deceased was already rescued by the driver of the Jeep owned by Ram Sumer Pandey, P.W.-3 and was brought to his home due to which the name of deceased Satya Prakash Srivastava was not told to the police.
16. Apart from the direct evidence, the chain of bringing the deceased to his home and then to Nursing Home and then to Medical College has also been proved by the claimants. The driver of the Ambulance of Sahara India has proved the fact that in the departmental ambulance the deceased was being carried to Medical College, Lucknow but he expired on the way and after that they went to Sahjanwa Police Station and Cantt. Police Station and after that back to home of the deceased.
17. In these circumstances, there was ample evidence on record to prove that on 13.8.1996 the deceased was travelling by the ill-fated Corporation Bus which met with an accident and deceased Satya Prakash Srivastava was badly injured in that accident who was given treatment but could not be saved and ultimately expired on 15.8.1996 due to injuries of the accident. The involvement of the Corporation Bus is fully proved. In these circumstances, the claimants were entitled to get the compensation under Motor Vehicles Act.
18. Section 140 of the Motor Vehicles Act, 1988 provides for no fault liability and the claimants are not required to plead and establish any wrongful act, negligent or default of the owner of the vehicle. Whereas Section 163A provides special provision as to payment of compensation on a structured formula basis which begins with non-obstente clause that notwithstanding anything contained in this Act or in any other law for the time being in force, the owner of the motor vehicle or the authorised insurer shall be liable to pay compensation for death or permanent disablement due to accident arising out of the use of motor vehicle. For award under Section 166, the claimant is required to prove the wrongful act, negligence or default of the owner or driver of the vehicle. The claim petition in this case was filed under Sections 140, 165 and 166 of Motor Vehicles Act and in our opinion learned Tribunal has erred in not granting the compensation as per the provisions of Section 166 and has wrongly limited the compensation to Rs.50,000/- under Section 140 of the Motor Vehicles Act. The mere fact that the deceased's brother is an Advocate and the action taken by him is an after thought is not justified at all to deny the compensation in genuine cases. Accordingly, we hold that the claimants are entitled to get compensation under Section 166 of the Motor Vehicles Act.
19. The age of the deceased at the time of death has been mentioned as 36 years and the claimants have filed the High-school certificate of the deceased according to which his date of birth was 20.7.1960. The same date of birth has been mentioned in the claim petition. Accordingly, on the date of accident the deceased had completed 36 years of age and he was running in 37th year. As per Second Schedule of the Motor Vehicles Act, the multiplier of 16 should have been applied.
20. The present appeal has although being filed under Section 166 of the Motor Vehicles Act and the multiplier has been provided for the petition filed under Section 163(A). It is settled law that a Tribunal can take guidance from the table provided in the Second Schedule of the Motor Vehicles Act. The multipliers have been provided depending upon the age of the victim and not on the age of the dependents. There were different pronouncement of the Hon'ble Supreme Court regarding adoption of the multiplier and this question was again taken in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, AIR 2009 SC 3104, in which Hon'ble the Apex Court, considering the various judgments and principles laid down therein, held that:-
"The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) :
Age of the deceased (1) Multiplier scale as envisaged in Susamma Thomas (2) Multiplier scale as adopted by Trilok Chandra (3) Multiplier scale in Trilok Chandra as clarified in Charlie (4) Multiplier specified in second column in the Table in II Schedule to MV Act (5) Multiplier actually used in Second Schedule to MV Act (as seen from the quantum of compensation) (6) Upto 15 yrs
-
.
.
15 20 15to20yrs.
16 18 18 16 19
21 to 25 yrs.
15 17 18 17 1826 to 30 yrs.
14 16 17 18 1731 to 35 yrs.
13 15 16 17 1636 to 40 yrs.
12 14 15 16 1541 to 45 yrs.
11 13 14 15 1446 to 50 yrs.
10 12 13 13 1251 to 55 yrs.
9 11 11 11 1056 to 60 yrs.
8 10 09 8 861 to 65 yrs.
6 08 07 5 6Above 65 yrs 5 05 05 5 5
20. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above); and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
Accordingly, in this case the multiplier of 15 should be applied.
21. As far as the income of the deceased is concerned, it has been proved that the deceased was working as Branch Manager in Sahara India Office at Vikramajeet, District Basti and was drawing his salary of Rs.3980/- per month. The documents regarding salary of the deceased have been filed by the claimants before the Tribunal and Abhay Kumar, P.W.-7, who is the Assistant Sector Worker of Sahara India, Gorakhpur and looks after the work of accounts, has proved the salary slip of Satya Prakash Srivastava and has deposed clearly that at the time of death the deceased was drawing a salary of Rs.3980/- per month. This witness has been cross examined by the Advocate for Corporation but nothing adverse has come in the cross examination so as to disbelieve the oral statement as well as the salary slips of deceased Satya Prakash Srivastava. Accordingly, it is proved that at the time of death he was drawing the salary of Rs.3980/- per month. It is admitted that deceased was married and was having two minor children and father Sri Shravanjang Srivastava but subsequently he has expired thus the wife and two children are surviving.
22. As per law laid down in Amrit Bhanu Shali and others Versus National Insurance Co. Ltd. and others, in Civil Appeal No.3397 of 2012 decided on 4.4.2012, the multiplier as suggested in Sarla Verma's case has been reiterated and for a deceased aged between 36-40 years the multiplier of 15 should be applied. Where the deceased is married and the number of dependants family members is 2-3 then the deduction towards personal and living expenses of the deceased should be 1/3.
23. Accordingly the net monthly income comes to Rs.3980-1327=Rs.2653X12=31836/- per year. The multiplier of 15 has to be applied thus the amount of compensation comes to Rs.31836X15=477540/-. Apart from it the claimants are also entitled for Rs.2000/- as funeral expenses, Rs.5,000/- as loss of consortium and Rs.2500/- as loss of estate. A sum of Rs.6,000/- has been claimed as medical expenses. It has proved that the deceased was treated at M.M. Nursing Home and Medical College hence this amount appears to be a reasonable thus the claimants are also entitled to get Rs.6,000/- as medical expenses.
24. In this way the claimants are entitled for total compensation of Rs.4,77,540+2000+5000+2500+6000=4,93,040/-. Accordingly, the F.A.F.O. filed by the claimants is liable to be allowed and the F.A.F.O. filed by the U.P. State Road Transport Corporation is liable to be dismissed.
25. The F.A.F.O. No.308 of 2002 is allowed. The judgment and award dated 10.1.2002 passed by the Motor Accident Claims Tribunal, Gorakhpur is modified. The claimants are awarded a sum of Rs.4,93,040/, out of which Smt. Sunita Srivastava (the widow) will get 1/2 of the amount, rest 1/2 of the amount shall be paid to Km. Arpita Srivastava and Km. Archita Prakash, the daughters of the deceased. The respondents U.P. State Road Transport Corporation are directed to deposit the said amount before the Motor Accident Claim Tribunal, Gorakhpur within a period of three months. Because the appeal has remained pending for a considerable period before this Court hence it is directed that if the aforesaid amount is paid within three months from today, the claimants shall not be entitled to any interest. In case the aforesaid amount is not paid within three months, then the claimants shall be entitled for an interest @ 7.5% per annum from the date of petition till the date of actual payment. The statutory deposit of Rs.25,000/- shall be remitted back to the Tribunal to be adjusted in the award amount.
26. The F.A.F.O. No.2613 of 2002 is accordingly dismissed.
Order Date :- 14.12.2012 Kpy