Allahabad High Court
Netrapal Singh vs U.P.S.R.T.C. And Anr. on 30 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1087
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 12.2.2020 Delivered on 30.5.2020 Case :- FIRST APPEAL FROM ORDER No. - 860 of 1996 Appellant :- Netrapal Singh Respondent :- U.P.S.R.T.C. And Anr. Counsel for Appellant :- ,Yogendra Pal Singh Counsel for Respondent :- Sanjeev Kumar Yadav Connected with Case :- FIRST APPEAL FROM ORDER No. - 3375 of 2009 Appellant :- U.P.S.R.T.C. Respondent :- Netrapal Singh And another Counsel for Appellant :- S.Sharma,Sanjeev Kumar Yadav Counsel for Respondent :- Siddharth,Yogendra Pal Singh Hon'ble Vipin Chandra Dixit,J.
Both the First Appeals From Orders have been filed under Section 173 of Motor Vehicle Act, 1988(hereinafter referred as 'Act, 1988') against the judgment and award dated 13.9.1996 passed by Motor Accident Claims Tribunal/Vth Additional District Judge, Bulandshahr(hereinafter referred as 'Tribunal') in Motor Accident Claim Petition No. 88 of 1992 by which compensation of Rs.2,02,000/- alongwith 12% interest had been awarded to the claimant Netrapal Singh on account of injuries received by him in a road accident. Both the appeals were connected and with the consent of counsel for the parties are being decided by common judgment.
Brief facts of the case are that the claimant Netrapal Singh had filed claim petition under section 140 and 166 of Act, 1988 claiming compensation of Rs.9,75,000/- alongwith 18% interest on account of injuries received by him in a road accident which had occurred on 16.1.1992. It is alleged in the claim petition that the claimant is owner and driver of mini bus bearing no. DL-5C-4895 and was going to Meerut from village Pittobans, District Bulandshahr and about 6:30- 7:00 a.m. on 16.1.1992 when he reached near 'pullia' of village Kaithala at Bulandshahr-Gulawathi road, all of a sudden Roadways bus bearing no. UGE-705 driven by its driver rashly and negligently came from the opposite direction (Gulawathi side) and dashed the mini bus of claimant who received grievous injuries in the accident. It is also alleged in the claim petition that on account of injuries the claimant has become permanent disabled and as per disability certificate issued by Chief Medical Officer, Meerut he has become permanent disabled to the extent of 58%. The FIR was lodged on 17.1.1992 at 10 A.M. regarding the accident at Gulawathi Police Station. The age of the claimant was 26 years at the time of accident and his income was Rs.6000/- per month from transport business but on account of disability he is unable to do anything.
The opposite party/U.P. State Road Transport Corporation(hereinafter referred as "Corporation") had put in appearance and filed its written statement denying the claim allegations and it was pleaded in the written statement that there was fog in the morning and the claimant who was driving mini bus came from wrong side without blowing light and collided with the bus and there was no negligence on the part of driver of the Corporation and the accident was occurred on account of sole negligence of the claimant himself. It was also pleaded that owner and insurance company of mini bus was not impleaded as a party.
The Tribunal had framed five issues for determination regarding negligence of the driver of the Corporation, contributory negligence of the claimant, non-impleadment of necessary parties as well as quantum of compensation. The claimant himself had appeared as P.W.-1 and had also produced one eye witness Narendra Singh as P.W.2, Dharamveer Singh(father of the claimant) as P.W.-3, Vijay Daleep, General Manager of Priya Hospital as P.W.-4 and Naveen Kumar, Junior Clerk of C.M.O. office Meerut as P.W.-5,whereas the driver of the Corporation had appeared as D.W.-1 and Narendra Mohan Sharma, Junior Station Incharge of Bulandshahr Depo had appeared as D.W.-2.
The Tribunal had recorded the finding while deciding issue nos. 1 and 2 that both the vehicles were coming from opposite directions and both the drivers were driving their vehicles rashly and negligently and were responsible for the accident and hold 40% negligence of claimant who was driving the mini bus and 60% negligence of the driver of the Corporation. The issue no.3 regarding non impleadment of parties was decided against the claimant holding that owner and insurance company of mini bus were necessary parties and since they are not impleaded as a party in the claim petition, the claimant is not entitled for 40% amount of compensation.
While deciding issue nos. 4 & 5 regarding quantum of compensation, the Tribunal had disbelieved the income of Rs.6000/- per month as alleged by the claimant and it was accepted as Rs.3000/- per month and deducting 1/3rd towards personal expenses and the multiplier of 18 was applied accepting the age of claimant as 28 years. The future loss of earning was accepted as 58% of the income accepting 58% permanent disability discloses in the disability certificate and assessed the amount of compensation as Rs.3,36,560 including medical expenses and other non pecuniary damages. The amount of compensation was reduced to the extent of 40% on account of 40% contributory negligence and compensation of Rs.2,02,000/- alongwith 12 % interest was awarded vide judgment and award dated 13.9.1996 which is impugned in both the appeals.
FAFO No. 860 of 1996 was filed by the claimant for enhancement of compensation on the ground that 40% amount has wrongly been deducted towards contributory negligence, the amount of compensation granted for the pain and agony suffered by the claimant is too low, the income of the claimant has wrongly been assessed as Rs.3000/- per month in place of Rs.6000/- per month and Tribunal has also erred in accepting 58% loss of earning capacity on account of 58% disability whereas on account of disability the claimant/appellant has become unfit for any job and there is 100% loss of earning.
FAFO No. 3375 of 2009(Old Defective No. 56 of 1997) has been filed by the Corporation against the same award on the ground that the accident occurred on account of rash and negligent driving of the claimant himself who was driving the mini bus and there was no negligence on the part of driver of the Corporation and 60% liability has wrongly been imposed upon the Corporation holding 60% negligence of driver of Corporation and a very excessive amount of compensation has been awarded and the rate of interest as 12 % is also on higher side.
Heard Sri Yogendra Pal Singh, learned counsel for claimant Netrapal Singh and Sri Sanjeev Kumar Yadav, learned counsel for U.P. State Road Transport Corporation and perused the record.
The factum of accident has not been disputed by the parties but only the rash and negligence has been disputed by both the parties. The Tribunal had decided the issue of negligence holding that the drivers of both the vehicles were negligent and responsible for the accident and 60% liability has been fixed upon Corporation holding 60% negligence of driver of Corporation and 40% of the claimant holding his contributory negligence. The learned counsel for the Corporation has submitted that the accident had occurred on account of sole negligence of claimant and there was no negligence of Corporation driver. On the other hand, the learned counsel for claimant has submitted that the driver of Corporation was sole negligent and responsible for the accident.
The principles for deciding negligence and contributory negligence had been discussed by the Division Bench of this Court in FAFO No. 1818 of 2012 Bajaj Allianz General Insurance Co. Ltd. vs. Smt. Renu Singh and others decided on 19.7.2016. The relevant paragraph nos. 16,19,22 and 25 are reproduced herein below:-
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part of driver of another vehicle.
25. Truck is a very big vehicle where as a car is relatively a very small vehicle. The driver of truck should have taken proper care which he has not taken and therefore, it cannot be said that the driver of truck was not solely negligent. We find no reason to accept the submission of learned counsel for appellant that driver of truck was not solely negligent."
In view of the ratio of the above decision, obviously the liability of the heavy vehicle appears to be more. The Tribunal is not justified in confining it to 60%. Taking into account of the entire evidence on record and the fact that the bus of the corporation had hit the mini bus from front slightly on the wrong side, the interest of justice would require the apportionment of negligence in the ratio of 70% and 30% respectively.
So far as quantum of compensation is concerned, the claimant had not produced any authentic evidence regarding his income and no income tax return was filed and even he had failed to produce any document regarding ownership of the mini bus and as such the Claims Tribunal has rightly accepted the notional income of the claimant as Rs.3000/- per month.
It is further submitted by the counsel for the claimant that the Claims Tribunal had erred in accepting 58% loss of earning on the basis of 58% permanent disability mentioned in the disability certificate issued by Chief Medical Officer whereas there was 100% loss of earning capacity. On the other hand, learned counsel for the Corporation has submitted that the loss of earning was accepted on higher side without recording any finding towards functional disability of whole body.
The Hon'ble Apex Court in Raj Kumar vs. Ajay Kumar reported in 2011 (1) TAC 785 has laid down the law in respect of assessment of future loss of income in the case of injury. The relevant paragraphs 8 and 18 are reproduced herein below:-
"8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.- 2010(10) SCALE 298 and Yadava Kumar v. D.M. National Insurance Co. Ltd. - 2010 (8) SCALE 567).
18. The Tribunal has proceeded on the basis that the permanent disability of the injured-claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor, though it might impede in his smooth functioning. Normally, the absence of clear and sufficient evidence would have necessitated remand of the case for further evidence on this aspect. However, instead of remanding the matter for a finding on this issue, at this distance of time after nearly two decades, on the facts and circumstances, to do complete justice, we propose to assess the permanent functional disability of the body as 25% and the loss of future earning capacity as 20%."
The Claims Tribunal while assessing the loss of earning capacity has failed to consider the actual functional disability and had erred in accepting 58% loss of earning capacity whereas on account of evidence adduced by the claimant the functional disability is accepted as 45% and loss of future earning capacity as 40%. While assessing the just compensation I found that the Tribunal had committed wrong in applying the multiplier of 18 accepting the age of the claimant as 28 years as the Hon'ble Apex Court in the case of Smt. Sarla Verma vs. Delhi Road Transport Corporation reported in 2009(2) TAC 677 has held that there are discrepancies/errors in the multiplier scale given in the second schedule and provided multiplier table. Para 21 is reproduced herein below:-
"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."
The multiplier table provided in the above decision was also affirmed by the Constitutional Bench of Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673.
The Hon'ble Apex Court has provided the multiplier of 17 for the age group of 26 to 30 years and as such the appropriate multiplier in the present case would be 17.
The Claims Tribunal had also erred in deducting 1/3rd towards personal expenses, which is applicable only in the case of death, as held by Hon'ble Apex Court in the case of Raj Kumar(supra). The paragraph 20 is reproduced herein below:-
"20. In the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to claimant, (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses."
The claims Tribunal had not awarded any amount towards future prospects, whereas the claimant is also entitled 40% future prospects in view of law laid down by the Constitutional Bench of Hon'ble Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi reported in 2017(4) T.A.C. 673.
In view of aforesaid discussion, the quantum of compensation has been reassessed as follows:-
1) Monthly income Rs.3000/-
2) Annual income Rs.3000/- X 12 = Rs. 36,000/-
3) Future prospects 40% = Rs.14,400/-
4) Total annual income = Rs.36000/- + Rs.14,400 =Rs.50,400/-
5) Loss of earning capacity 40% = Rs.20,160/-
6) Multiplier applicable -17 =Rs.20,160 x 17 = 3,42,720/-
7) Medical expenses Rs.60,000/-
8) Non-pecuniary damages Rs.25,000/-
Total Rs. 3,42,720/- + Rs.60,000/- + Rs.25,000/- =Rs.4,27,720/-
Since the claimant himself was found negligent to the extent of 30%; as such the amount of compensation is reduced to 30%(Rs. 4,27,720/- minus Rs.1,28,316/- =2,99,404/-). It is taken in round figure as Rs.3,00,000/-. The rate of interest as 12% is also on higher side. The Hon'ble Apex Court in a latest decision Civil Appeal No.242/243 of 2020 National Insurance Company Ltd. vs. Birender and others has awarded 9% interest.
In view of aforesaid discussion, both the appeals are hereby disposed off and award of the Tribunal is modified and compensation awarded by the Tribunal is enhanced from Rs.2,02,000/- to Rs.3,00,000/- with interest at the rate of 9% from the date of filing of claim petition. The corporation is directed to pay enhanced amount within two months.
No order as to costs.
Order Date :- 30.5.2020 P.P.