Smt. Chand Mehta and Others vs Umed Singh and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 1st September 1993 of the Motor Accident Claims Tribunal whereby the Tribunal awarded a sum of Rs. 1,54,000 along with interest @ 12% per annum to the claimants.

The brief conspectus of the facts is as follows: The deceased Radhey Sham Mehta, aged about 30 yrs met with an accident on 6th December 1983 while he was crossing the road on Boulward Road, opposite Tis Hazari Courts, a DTC bus bearing registration No. DLP- 1425 hit the deceased causing serious injuries to him. The deceased succumbed to the injuries on 8th December 1985.

A claim petition was filed on 25th February 1986 and an award was passed on 1st September 1993. Aggrieved with the said award enhancement is claimed by way of the present appeal.

The appellants have assailed the said award on various grounds. Mr. Y.R. Sharma, Counsel for the appellants contended that the tribunal erred in assessing the income of the deceased at Rs. 800/- per month whereas after looking at the facts and circumstances of the case the tribunal should have assessed the income of the deceased at Rs. 1,500/- per month. The counsel further maintained that the tribunal erred in computing the annual dependency of the appellants at Rs. 7,600/-. The counsel submitted that the tribunal has erroneously applied the multiplier of 25 while computing compensation when according to the facts and circumstances of the case multiplier of 45 should have been applied. It was urged by the counsel that the tribunal erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased would have earned much more in near future as he was of 30 yrs of age only and would have lived for another 45 yrs had he not met with the accident. The counsel also stated that the Tribunal erred in holding that the accident occurred due to contributory negligence of the deceased to the extent of 30% where as the said accident was caused due to the sole negligence of the rash and negligent driving of the driver of DTC bus only and thus no deduction on account of contributory negligence should have been made. It was also submitted by the counsel that the tribunal erred in fixing half of the share of the amount awarded to the appellant No. 1. to be put in fixed deposit for a period of 5 years. Such defer payment should not be there when there has been a huge time lapse in the disposal of appeal itself. The counsel also raised the contention that the rate of interest allowed by the tribunal is on the lower side and the tribunal should have allowed simple interest @ 18% per annum in place of only 12% per annum. The counsel contended that the tribunal has erred in not awarding compensation towards loss of love & affection, funeral expenses, loss of estate, loss of consortium, mental pain and sufferings and the loss of services, which were being rendered by the deceased to the appellants.

Nobody has been appearing for the respondents.

I have heard the learned Counsel for the appellants and perused the record.

The appellants claimants had produced many witnesses, including the employer of the deceased. As per the deposition of Sh. Kamal Kapoor his employer, PW4, and his wife, PW5, he was in a private service and was earning an amount of Rs 800/- pm and regarding this salary certificate, Ex. PW 4/A, of the deceased was proved on record. According to the said certificate, he was employed as an assistant on retainership basis with PW4. It was also the case of the appellants that the deceased was also earning Rs. 700/- pm from part time job of teaching etc. But no evidence in this regard was brought on record. The tribunal observed in the award that Pw4 also deposed that the deceased was working with him from 10:00-6:00 pm; therefore, it cannot be possible for the deceased to do any other part time job.

It is no more res integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record. In the absence of proof of part time job done by the deceased for the purpose of income reliance can only be placed on Ex.PW4/A.

After considering all these factors I am of the view that the tribunal has not erred in assessing the income of the deceased at Rs. 800 pm.

As regards the future prospects I am of the view that there is no sufficient material on record to award future prospects. Therefore, the tribunal committed no error in not granting future prospects in the facts and circumstances of the case.

As regards the contention that the tribunal erred in calculating loss of dependency of Rs. 7,600/- p.a, I do not feel that the same needs to be interfered. Out of Rs. 9600/- p.a. obviously the deceased must be spending Rs. 2000/- p.a. on himself. Be that as it may, if we apply unit method then the deduction towards personal expenses would come to Rs. 2,000/-. Therefore, I do not feel inclined to interfere with the award on this count.

As regards the contention of the counsel for the appellant that the tribunal erred in applying the multiplier of 25 in the facts and circumstances of the case, I feel that the tribunal has committed error. This case pertains to the year 1985 and at that time II schedule to the Motor Vehicles Act was not brought on the statute book. The said schedule came on the statute book in the year 1994 and prior to 1994 the law of the land was as laid down by the Hon''ble Apex Court in 1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In the said judgment it was observed by the Court that maximum multiplier of 16 could be applied by the Courts, which after coming in to force of the II schedule has risen to 18. The deceased was of 30 years, his widow wife was aged 28 years and his two children were aged 9 1/2 and 5 1/2 years at the time of the death of the deceased. In the facts of the present case I am of the view that after looking at the age of the claimants and the deceased the multiplier of 15 should have been applied. Therefore, in the facts of the instant case the multiplier of 15 could be more appropriate. But in the interest of justice and in the absence of any defence been taken by the respondents, I do not feel inclined to interfere with the award on this account, therefore, the multiplier of 25 shall be applied in the instant case.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 18% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon''ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and taking in to consideration relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.

On the contention regarding that the tribunal has erred in not granting adequate compensation towards loss of love & affection and loss of consortium and whereas, no compensation has been granted towards the loss of services, which were being rendered by the deceased to the appellants, funeral expenses and loss of estate. In this regard compensation towards loss of love and affection is enhanced to Rs. 20,000/-; compensation towards funeral expenses is awarded at Rs. 5,000/- and compensation towards loss of estate is awarded at Rs. 10,000/-. Further, Rs. 50,000/- is awarded towards loss of consortium in place of Rs. 15,000/-.

As far as the contention pertaining to the award of amount towards mental pain and sufferings caused to the appellants due to the sudden demise of the deceased and the loss of services, which were being rendered by the deceased to the appellants is concerned, I do not feel inclined to award any amount as compensation towards the same as the same are not conventional heads of damages.

The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage.

The contention of the appellants is that the tribunal erred in holding that the deceased was also 30% liable for the accident. On perusal of the award it becomes manifest that the offending bus was at the bus stop outside the Tis Hazari Courts and there was a heavy traffic and many buses were also standing. It is a matter of fact that at around 10:30 am on weekday the area around the Tis Hazari Court Complex is crowded and there is a lot of hustle bustle. According to the respondents the offending bus was behind another bus and the moment it started after the passengers boarded the bus, the deceased alighted from the bus standing ahead of the impugned bus and he came in front of the offending bus and due to short distance even after applying the brakes he could not be saved. On perusal of the award it comes in to light that there are certain loopholes in the testimony of PW3, the eyewitness produced by the appellants. It is evident that the deceased was crossing the road just in front of the bus stop and was going towards the other side of the bus stop. A great duty of care is on the drivers of the vehicle near the bus stops for usually people cross the road in a hurry in order to catch the bus and cross the road etc. Even the tribunal noticed that it is not uncommon that on the bus stops sometimes several buses reach at one and the same time and stand one behind the other and passengers alight from one bus and run to board another bus and while doing so, the passengers who alight from a bus come in front of the bus behind the bus from which they alighted. Thus, I do not find any infirmity as regards the 30% liability of the deceased.

As regards the contention of the appellant that the tribunal erred in fixing half of the share of the amount awarded to the appellant No. 1 widow of the deceased, to be put in fixed deposit for a period of 5 years, it would be relevant to peruse the judgment of the Hon''ble Apex Court in Lilaben Udesing Gohel, Shyamala Shashidharan Nayyar and Others, Pramilaben Narendra Bhai Patel and Others, Ramabhai Shankarbhai Chavda, Lilaben and Others, Kantaben Anil Kumar Patel and Others, Motor Vahan Durghatna Sanghthan, Nadiad and Others and Shardaben Chandubhai Patel and Others Vs. Oriental Insurance Company Ltd. and Others, Hemraj Loduram Rajpur and Another, Nandubhai Ambalal Thakkar and Others, Ganibhai Ambabhai Vora and Another, Kaji Gulam Nabi Sheikh and Others, Gujarat State Road Transport Corpn. and Others, State of Gujarat and Others and Bachusha Dadusha and Others, wherein having regard to the fact that day in and day out thousands of rupees are paid by way of compensation to various categories of claimants, the Hon''ble Apex Court indicated few broad guidelines which the Claims Tribunals may follow while disposing of claim applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money:

(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long-term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn; (ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any moveable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money; (iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid; (iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order; (v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above; (vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long-term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be; (viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated. In view of the above, I do not feel inclined to interfere with the award in this regard.

In view of the above discussion, the total compensation is enhanced to Rs. 1,92,500/- from Rs. 1,54,000/- with interest @ 7.5% per annum as the enhanced compensation from the date of filing of the petition till realisation and the same should be paid to the appellant by the respondents.

With the above direction, the present appeal is disposed of.