U.P. State R.T.C. vs Premwati and Others

N.L. Ganguly, J.—These F.A.F.Os. by U.P. State Road Transport Corporation and Smt. Premwati and 2 minors heirs and legal representatives dependants of deceased victim are directed against the judgment and order dated 24.5.80 in Motor Accident Claim Petition u/s 110-A of Motor Vehicle Act, 1939 by the II Addl. District Judge/Claims Tribunal, Meerut. The Tribunal awarded a consolidated amount of Rs. 38,000/- as compensation with 6% simple interest per annum thereon till date of payment to the claimants. The Corporation in their appeal sought for setting aside the award of compensation on the ground that there was no negligent and rash driving of the bus, it was due to sudden latent defect and mechanical failure of the brakes, principles of Res-ipsa locuitor was not applicable. Alternatively, it was said that compensation awarded was excessive without any rational basis. The claimants in their appeal claimed that award of compensation is wholly inadequate and he enhanced.

Prakash Chand was a Typist by occupation. On 24.12.1975 he was going on a bicycle to his village Bhoor Bharal at about 4:50 P.M. Bhurey Ram was also going with him and was sitting on the cycle carrier. They had reached about a kilometer from Partapur''Railway level crossing towards Delhi. The watchman had closed the gate of railway crossing, Deceased Prakash Chand had peddled 50 yards on the kachcha patri when a U.P.S.R.T.C. Bus No. 5048 came at very high speed from the opposite direction. The driver was so rash and negligent that he drove the bus to the extreme right side colliding with a bicycle of Prakash Chand. Prakash Chand deceased was crushed and dragged. He died on account of the rash and negligent driving of the UPSRTC Bus at the spot. The other person Bhurey Ram who was the carrier of the cycle received grevious injuries in the accident.

The claimants namely the widow and two minor children of deceased filed the petition claiming total amount of Rs. 1,79,000/- as compensation. The appellants filed the written statement and contested the claim. It was pleaded that the accident had not taken place on account of rash and negligent driving of appellant''s bus. It was stated that bus was going to Bijnor and Khalil Ahmad was the driver. When the bus had reached near the Pratapur Railway Level Crossing, he saw the railway gate was closed at the time of accident. A number of vehicles were standing in queue. The bus driver applied his brakes to stop the bus to avoid collusion. The brakes failed accidently, resulting in accident.

The Corporation-appellants led evidence in the case in order to show that accident was due to sudden mechanical failure of the brakes and there was no negligence and rash driving. Appellants had examined DW 2 Khalil Ahmad and J.C. Jain (DW1) to establish that appellants were regularly maintaining and keeping the vehicle in perfect condition and the Bus was not driven with high speed rashly. The learned Tribunal after assessing the evidence on record found that appellants had failed to prove that vehicle was properly maintained and checked up time to time. It was rather found that vehicle was negligently kept without care. The defence put by the appellant was not believed. The learned Counsel for the Corporation Sri S.K. Sharma placed the evidence of P.Ws. Sunder Lal, Udai Narain, Bhurey Ram, eye witnesses and Sub-Inspector Mahipal examined before the Tribunal and also the evidence of D.Ws. J. C. Jain and Khalil Ahmad driver. We have also examined the statement of J.C. Jain (DW 1) and Khalil Ahmad (DW2) and we are also of the view that the learned Tribunal below was legally correct in holding that appellants were negligent in not keeping the vehicle in proper condition, brakes were with cracked break shoes and the brake oil was also found leaking. Thus, appellants were negligent in maintaining the bus in proper running order. Further the evidence of the witnesses show that since the bus was driven so rashly that even after the accident the deceased was dragged. The driver was rashly and negligently trying to go ahead of the queue of vehicles waiting on account of the closure of the gate, so that he may cross the gate first. The bus was driven rashly and negligently causing the accident and death of the deceased. The appellant failed to establish that accident was due to mechanical defect in the bus or latent mechanical error.

The deceased at the time of accident was aged about 30 years. The claimants pleaded that deceased had an income of Rs. 500/- per month. He possessed good health. The longevity in the family of deceased was said to be upto 80 years. Had he not died in the accident, he would have lied for another 50 years.

The Tribunal while dealing with the issue of age span in the family of the deceased, assessed on an average age of 60 years. Since the statement of Smt. Premwati, the widow of the deceased that the monthly income was Rs. 500/- per month was not corroborated by any documentary or other reliable evidence, the Tribunal estimated Rs. 300/- as monthly income of deceased who was a typist by occupation. A sum of Rs. 50/- was excluded as personal expenses of the deceased. It was estimated that Rs. 3000/- was the annual dependency. The Tribunal applied 12 years multiplier in assessing the compensation calculated 3000/- x 12 = Rs. 36,000/-. Rs. 2000/- awarded for loss of consortium. Thus, total award given is Rs. 38,000/- with 6% simple interest.

The learned Counsel for the Corporation submitted that the amount of compensation assessed on Rs. 300/- p.m. is excessive and not supported on basis of any reliable evidence and Rs. 2000/- for compensation for loss of consortium is also excessive, based on no rational basis. On the contrary Sri Siddharth, the learned Counsel for the claimants submitted that the award of compensation is meager and inadequate. There was no justification for applying 12 years multiplier while calculating the amount of compensation. He submitted that the monthly contribution by the deceased was Rs. 500/- p.m. and the Tribunal erroneously took the figure of Rs. 300/- p.m. minus Rs. 50/- for his personal expenses.

Sri Siddharth, learned Counsel for the claimants placed the evidence of Smt. Premwati who stated that deceased used to give her Rs. 450/- per month for meeting the expenses. The Tribunal had not accepted the sum of Rs. 450/- as monthly contribution in absence of any documentary evidence or any such other reliable corroborative evidence. We are also of the opinion that Tribunal was right in taking Rs. 300/- as monthly income of the deceased and Rs. 50/- was deducted for his personal expenses, leaving Rs. 250/- p.m. as contribution for family dependents.

We are to examine the point whether the Tribunal was legally correct in applying multiplier of 12 for determining the compensation on account of loss of pecuniary advantages. The learned Counsel for the claimant-appellant cited 1988 ACJ 283 (Raj.) Bhawan Lal and Ors. v. Munshi Ram and Ors. a case under fatal accident by motor the deceased was aged 30 years drawing Rs. 560/- p.m., 5 dependents, dependency assessed at Rs. 390/- p.m. A multiplier of 30 times adopted.

Gujarat State Road Transport Corporation Vs. Kanti Nagar and Others, where the deceased was 30 years of age assessed dependency of Rs. 400/- p.m., a multiplier of 40 times of annual amount applied.

1988 ACJ. 485 (Raj.) Sita Bai and Anr. v. Purshottam and Ors. deceased aged 28 years, the dependency assessed at Rs. 250/- p.m. multiplier of 32 adopted.

1988 ACJ 558 (Raj) New India Assurance Company Ltd. v. VidyaDevi and Ors. the deceased was 32 years dependency Rs. 400/- P.M. multiplier of 32 awarded.

Smt. Krishna Kumari Gupta and Others Vs. Gur Buxeesh Singh and Others, where the deceased was a Government Servant aged 30 years applied 16 times multiplier, relying two Division Benches of our Court 1978 ACJ 169 and 1982 ACJ 194 : 1991 A.L.J. 955.

A perusal of various case laws show that there can be no universal formula which may be made applicable in all cases for assessing compensation. The Hon''ble Supreme Court in Harijan Magha Jesha Vs. State of Gujarat, observed:

The jurisprudence of compensation of motor accidents must develop in the direction of no fault liability and determination of quantum must be liberal, not niggardly, since the law, values of life and limb in a free country in generals scale.

It has also to be borne in mind that the courts should not allow a misfortune to be turned into a windfall. The Hon''ble Supreme Court in Sheikhupura Transport Co. Ltd. Vs. Northern India Transport Insurance Co., observed as under:

In fixing compensation, the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death.

After hearing the learned Counsel for the Claimants-appellants, and perusing the case laws cited by Sri Siddharth, we are of the view that the Tribunal below was not justified in applying multiplier of 12 in the present case. The reported cases of Rajasthan High Court shows that a multiplier of 30 times or even 32 times and annual dependency was applied. Our Court in AIR 1985 All 185 (Supra) a Division Bench preferred to apply a multiplier of 16 in case where the age of deceased was 30 years without any deduction.

The Supreme Court in Municipal Corporation of Delhi Vs. Subhagwanti and Others, applied multiplier of 16 in cases where deceased was in his twenties. Multiplier of 15 was applied in cases when age of deceased was over 30 years. In 1981 A.LJ. 955 U.P. State Transport Corporation multiplier of 16 was held to be proper where the age of the deceased was below 30 years. There can be no hard and fast formula or rule in assessing the compensation, we consider that the proper, and adequate compensation to the Claimants payable would be by applying 16 years formula. Since the deceased was contributing Rs. 3000/- per annum towards the dependents--Rs. 3000/- x 16 = Rs. 48000/ -amount payable as compensation for the accidental death with interest @ 12% per annum.

The Tribunal awarded Rs. 2000/- for loss of consortium. There is no scale or measurement for determining the compensation for amount of loss of consortium. It is generally an estimated based on guess work. It is generally seen if the deceased and the dependents were of higher strate, the amount of consortium was slightly higher. There are number of cases on the point but none elucidate any special line for determining the same. In the present case Rs. 2000/- is awarded for loss of consortium. The reported cases cited show a trend that consortium compensation is generally 10% of the total amount of compensation payable to the dependents. In our opinion Rs. 2000/- of consortium is low and we consider Rs. 3000/- on this count would be adequate and sufficient with 12% simple interest per annum.

In view of the findings recorded above, the F.A.F.O. No. 558 of 1980 filed by U.P. State Transport Corporation is liable to be dismissed and F.A.F.O. No. 919 of 1982 filed by the claimants-appellants is partly allowed and the claimants-appellants are entitled to get compensation of Rs. 48,000/- & Rs. 3000/- from the opposite party--U.P. State Road Transport Corporation. The claimants shall get 12% interest per annum simple from the date of application till date of payment. The parties shall bear the cost of appeals themselves. Any amount already recovered by the claimants shall be liable to be adjusted while making final payments.

The interim stay orders passed in the appeal shall stand vacated.