Smt. Prakashwati and ors. Vs. D.T.C. and ors. - Court Judgment

S.K. Mahajan, J.

1. Since both these appeals arise from the same order passed by the Motor Accident Claims Tribunal, they are being disposed of by this common order. F.A.O. No. 417/2002 is the appeal filed by the appellants for enhancement of compensation for the death of Mr. Baldev Singh, husband of appellant No. 1 and father of appellants 2 to 5, who died in a road accident alleged to have been caused by the rash and negligent driving of the bus owned by respondent No. 1 and being driven by respondent No. 2. The second appeal is filed by the Delhi Transport Corporation for setting aside the award of the Tribunal. A few facts relevant for deciding tis appeal are :

One Mr. Baldev Singh was employed as Head Constable with the Delhi Police; that on the intervening night of 10/11th September, 1999 at about 00.05 a.m. when he was waiting for a bus at Najafgarh road in front of fish market near T point Uttam Nagar and was standing besides a DTC bus parked alongside the road a little ahead of Uttam Nagar bus terminal, another DTC bus bearing No. DL1P 9418 being driven by respondent No. 2 in a rash and negligent manner without blowing any horn and in contravention of traffic rules came at a very fast speed and sandwiched the deceased between the parked bus and the aforesaid speeding DTC bus. After causing accident, the DTC bus is alleged to have fled from the scene. The deceased received severe injuries and was immediately removed to hospital where he succumbed to the injuries. FIR was registered at PS Uttam Nagar against the driver of the bus. The deceased was 37 years of age at the time of his death, his date of birth being 12th March, 1962. Deceased at the time of his death was drawing a salary of approximately Rs. 9,000/- p.m. Claiming that the accident was caused due to the rash and negligent driving of the bus by its driver, the appellants, who are the legal heirs of the deceased, filed an application before the Motor Accident Claims Tribunal claiming compensation of Rs. 25 lacs from the respondents.

2. In the joint written statement filed by the respondents, it was denied by them that the accident was caused due to the rash and negligent driving of the bus by its driver. Respondents have in fact even denied the involvement of the bus in the accident. It is submitted in the written statement by them that no accident had taken place on the date and time at the place mentioned in the claim petition and the question, thereforee, of paying any compensation to the appellants did not arise. On the pleadings of the parties, the following issues were framed :-

1. Whether the deceased received fatal injuries on account of rash and negligent driving of bus No. DL1P 9418 by R-2?

2. Whether the petitioners are entitled for compensation and if so, to what amount and from whom?

3. Relief.

3. After the evidence was led by the parties before the Tribunal and arguments were heard, the Tribunal by the impugned award held Issue No. 1 in favor of the appellant. It was held by the Tribunal that the accident was caused due to the rash and negligent driving of the bus owned by respondent No. 1. While deciding issue No. 2, it was held by the Tribunal that as the deceased had died because of the injuries sustained in the accident caused by the rash and negligent driving of the bus by its driver, the appellants who were the legal heirs of the deceased, were entitled to compensation from the respondents. Taking income of the deceased at Rs. 7.226/- p.m. and taking the age of the deceased as 40 years, the Tribunal applied the multiplier of 14 and awarded compensation of Rs. 14,56,896/- in favor of the appellants which included a sum of Rs. 50,000/- already paid by way of interim compensation. As already mentioned above, this award has now been challenged by filing the present appeal for enhancement of compensation. The respondents have also filed appeal against the impugned award on the ground that the Tribunal has wrongly held that the accident was caused due to the rash and negligent driving of the bus by its driver. The respondent has also challenged the quantum of compensation awarded by the Tribunal in favor of the appellants. Along with the appeal, the respondent DTC has also field an application under Order 41 Rule 27 CPC for permission to lead additional evidence.

4. I would like to first deal with the application of the respondent-DTC for leading additional evidence before I decide other issues. There is also a delay of 82 days in filing the appeal by the respondent-DTC. Since I have heard the matter on merits on behalf of both the parties, delay in filing the appeal is condoned. Application under Order 41 Rule 27 CPC is filed by the DTC for an opportunity to be given to it to lead evidence for purposes of proving that the bus was not involved in the accident. It is stated in the application that the driver of the bus had appeared as a witness before the Tribunal and he had only tried to save himself so that he may not be required to pay compensation. It is stated that the application for compensation was filed against the Corporation only to seek compensation as the deceased was working in the Delhi Police at the relevant time. It is stated that as per the FIR no eye witness was present when the injured was taken to the hospital and the FIR was not recorded at the instance of PW-2 but the case was registered by the police after 20 days and no mechanical inspection of the vehicle was conducted at any time. It is stated that the FIR does not even mention that the bus in question was involved in the accident and PW-2 is a planted witness. The DTC has, thereforee, prayed for an opportunity to lead evidence to prove that the bus was not involved in the accident.

5. In the application it is not stated as to what evidence is required to be led by the DTC. Under Order 41 Rule 27 CPC, the parties to an appeal are not entitled to produce additional evidence but if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. The DTC has not mentioned in the application as to what evidence it wants to produce. It is also not stated in the application that the evidence which is now sought to be produced was not within its knowledge or could not after the exercise of due diligence be produced by it before the Tribunal. It is also not stated that any application was made before the Tribunal to admit such evidence or that the same had been refused arbitrarily by the Tribunal. No reasons whatsoever in fact have been given in the application as to why the evidence which is now sought to be produced could not be produced before the Tribunal. Moreover, it is not even stated as to what is the relevancy of the evidence which is now sought to be produced. The application, in my opinion, is wholly vague in nature and no grounds whatsoever have been made out for granting permission to the DTC to lead additional evidence. The application is, accordingly, dismissed.

ISSUE NO. 1.

6. Contention of learned counsel for the DTC is that since the FIR was registered after 20 days of the date of the accident and no number of any bus allegedly involved in the accident was given, the case has been falsely framed against the Corporation just to obtain compensation to help the family of the deceased who was employed in the Delhi Police. It is also submitted by learned counsel for the respondent-DTC that the Tribunal itself has found the alleged eye witness untrustworthy and, thereforee, no reliance ought to have been placed upon his statement to hold that the accident was caused due to the rash and negligent driving of the DTC bus by its driver. PW-2 Onkar claims to be the only eye witness of the accident. In his statement before the Tribunal, it is stated by PW-2 that the accident in question had occurred at 12/05 am on 10/11th September, 1999 and he was standing at the bus stop Uttam Nagar and was waiting for a bus to go to his village. He has stated that a DTC bus was parked there; that another DTC bus bearing No. DL1P 9418 came from the side of Tilak Nagar and went on scratching against the deceased between it and the stationary bus; that after scratching the deceased between it and the stationary bus, the driver of the bus fled from the place of the accident. He further stated that the accident had taken place due to the rash and negligent driving of the DTC bus by its driver. According to the witness shortly after a PCR van arrived at the place of accident which took the deceased to the hospital and he went to the deceased house to inform his family members about the accident. He stated that after informing the wife of the deceased, he along with her went to the D.D.U. Hospital and on the following day the deceased expired at about 11.00 A.M. In his cross-examination, it is stated by the witness that besides the deceased and himself, 15/20 persons were standing at the bus stop; that he had seen the DTC bus before the accident and it was coming at a high speed but he could not say whether the speed was 100 Km/ph, 50 Km/ph or 10 Km/ph. He stated that he saw the bus for the first time when it was at a distance of 15-20 feet from him. He also could not say as to how many passengers were sitting in the bus at that time. He also was not aware as to after how much time the PCR van came at the spot. He stated that his statement was recorded by the police on the same day at about 3 or 4 A.M. He denied the suggestion that accident did not take place with the DTC bus.

7. The respondents have examined only the driver of the offending bus. In his statement RW-1, the driver of the offending bus, has stated that on 10/11th September, 1999 he was driving bus No. DL1P 9418 as a staff bus from Hari Nagar Depot to Dhansa Border and that during his duty hours no accident had taken place. He stated that the police had filed a false case against him which was still pending. In his cross-examination, he admitted that at the given date and time he had passed through the spot where the accident had alleged to have taken place. However, he denied that any person was hit by his bus or had died because of the injuries sustained in the accident. Besides the statement of these two witnesses, the criminal Court record has also been proved as Ex. P-1 to P-7. Ex. P-7 is the certified copy of the FIR. After concluding investigations, the police had filed charge sheet against the driver of the bus in the Court of the Metropolitan Magistrate. The certified copy of the charge sheet has been proved as Ex. P-1. PW-2 who had appeared as a witness before the Tribunal was also cited as a witness in the charge sheet. The Tribunal on the basis of the evidence and the documents produced on record was of the view that though bus number is not recorded in the FIR, however, on the basis of the investigations carried out by the police and on the basis of the statement made by PW-2 it was well established that the bus in question was involved in the accident and the same had taken place due to the rash and negligent driving of the DTC bus by its driver.

8. I have heard learned counsel for the parties and have also examined the record. While it is true that the DTC and the driver who was driving the offending vehicle have denied the involvement of the bus in the accident on the fateful day and it has also been denied by them that the deceased had died because of the injuries sustained in the alleged accident, however, a fact which cannot be overlooked is that the DTC has not produced any other witness except the driver of the bus to testify that the bus was not involved in the accident. It is not the case of the DTC that when the bus was going from Hari Nagar Depot to Dhansa Boarder, no person was sitting in the bus. It was a staff bus and besides the driver and the conductor, some other persons must have been sitting in the bus to drop them at their respective places. No Explanationn has been given as to why none of the persons sitting in the bus was produced to testify that the bus in question was not involved in the accident. Non recording of bus number in the FIR will not mean that the bus was not involved in the accident.

9. It was held by the Supreme Court in N.K.V. Bros. (Private) Limited Vs . M. Karumai Ammal and Others, : [1980]3SCR101 , that the accidents tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. Some of the observations of the Supreme Court which are relevant for the present case were :-

'Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of rest ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation.'

10. As per the eye witness immediately after the accident the bus had fled from the spot. It is not unnatural that when a vehicle after hitting a person does not stop at the place of the accident, the persons who were standing at the spot may not be able to note down the number of the vehicle as their attention at that time is towards the victim of the accident. PW-2 had no enmity with the driver of the bus and there was, thereforee, no reason as to why he should involve the DTC bus which admittedly had passed through the spot at the relevant time. In case, the appellants were to file a false case claiming compensation, they could have given the number of any other bus. The mere fact that the bus in question had passed through the spot at the relevant time and the fact that neither the appellant nor PW-2 had any enmity either with the driver or with the respondent DTC and the number of the bus has been recorded after investigation as per the charge sheet filed before the criminal Court clearly shows that the bus in question was involved in the accident.

11. I, thereforee, do not find any infirmity with the findings of the Tribunal wherein it is held that the accident was caused due to the rash and negligent driving of the DTC bus by its driver.

ISSUE NO. 2

12. The submission of learned counsel for the appellants/claimants is that two salary certificates from the department were filed by them before the Tribunal. While as per one of those certificates, the salary of the deceased was Rs. 8,758/- p.m., as per the other certificate, the salary was Rs. 8,993/- p.m. It is, thereforee, submitted that in view of these certificates, there was no reason as to why the salary of the deceased should have been taken by the Tribunal at Rs. 7,226/- p.m. It is also contended by learned counsel for the appellants that age of the deceased at the time of accident was only 37 years and the Tribunal, thereforee, for purposes of arriving at just compensation payable to the family of the deceased ought to have considered the future prospects in the life and career of the deceased and ought to have decided the loss of dependency after taking into consideration the future prospects. It is also submitted that the deceased being only of 37 years of age, the correct multiplier to be applied in terms of Second Schedule to the Motor Vehicles Act to arrive at just compensation was 16 and the Tribunal has thus clearly erred in applying the multiplier of 14. The contention of learned counsel for the respondent-DTC, however, is that nothing had been produced before the Tribunal to prove as to what was the age of the deceased and consequently the Tribunal ought not have applied even the multiplier of 14 to arrive at the compensation payable to the family of the deceased.

13. A perusal of the trial Court file shows that in one of the salary certificates for the month of May, 1999, total pay has been shown to be Rs. 7,226/- p.m., however, after adding certain figures by hand total gross salary has been shown to be Rs. 8,758/- p.m. In another pay slip for the month of August, 1999 which is also duly certified by the Office of the Assistant Commissioner of Police, the salary for the month of August, 1999 has been shown to be Rs. 8,993/- p.m. The wife of the deceased had also made a statement in Court that the salary of the deceased was Rs. 9,000/- p.m. In view of the salary certificate for the month of August, 1999 being on record showing that the salary of the deceased was Rs. 8,993/- p.m. per month, I am of the opinion that salary of the deceased at the time of his death was Rs. 8,993/-. In the claim petition, date of birth of the deceased was given as 12th March, 1962. Nothing has been produced to show that that was not the date of birth of the deceased. In the absence of any contradictory evidence and in view of the statement of the wife of the deceased and what had been stated in the claim petition, I am of the opinion that age of the deceased was not more than 40 yea Rs. Assuming the age of the deceased to be 40 years, he would have served for about 20 years more with the Delhi Police. The deceased was in the permanent service of the Government of India and had a stable income. The Tribunal after applying the principles laid down in Sarla Dixit Vs . Balvant Yadav, : (1993)IILLJ664SC , has arrived at the average income of the deceased at Rs. 10,839/-. This has been arrived at after taking the salary of the deceased at Rs. 7,226/- p.m. as in May, 1999. However, as the salary of the deceased was Rs. 8,993/- p.m. as in August, 1999, this Court on applying the principles laid down in Sarla Dixit v. Balwant Yadav, will not be in error in taking the average income of the deceased at Rs. 13,000/- p.m. Taking into consideration the family of the deceased which consisted of himself, his wife, three minor daughters, one minor son and old aged father, the Tribunal has observed that the deceased must be spending 1/5th on his own upkeep. thereforee, deducting 1/5th from the income of the deceased towards his personal expenses, the loss of dependency to the family comes to Rs. 10,400/- p.m. or say Rs. 1,24,800/- per annum. Taking the age of the deceased to be 40 years, the multiplier of 16 has to be applied in this case. Applying the multiplier of 16, the appellants would be entitled to a sum of Rs. 19,96,800/- towards the loss of dependency. The appellants, in my opinion, are also entitled to non-pecuniary damages for loss of love and affection, funeral expenses, loss of estate, etc. I consider a sum of Rs. 35,000/- to be reasonable amount payable to the family of the deceased towards non-pecuniary damages. Adding this sum of Rs. 35,000/- to the loss of dependency the appellants will be entitled to a total compensation of Rs. 20,31,800/- which includes Rs. 50,000/- paid as interim relief.

14. I, accordingly, allow this appeal filed by the claimants, modify the award and direct that the appellants are entitled to a sum of Rs. 20,31,800/- by way of compensation. The appellants will also be entitled to interest @ 9% p.a. on the amount of enhanced compensation from the date of the application filed before the Tribunal till realisation. The appeal filed by the respondent Delhi Transport Corporation is, however, dismissed with no orders as to costs.