Uttar Pradesh State Road Transport Corporation vs Smt. Sulbha Chandel and Others

Rajesh Tandon, J.—Head Sri A.N. Sharma, counsel for the Appellant.

By the present A.O. filed u/s 173 of the Motor Vehicles Act, 1988, Appellant has prayed for setting aside the award dated 7-6-2003 passed by the Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar in Accident Claim Petition No. 58 of 2001 Smt. Sulbha Chandel and Ors. v. Uttar Pradesh State Road Transport Corporation, whereby a sum of Rs. 1,79,776.88 has been awarded to the claimants towards compensation along with interest(r) 12% per annum.

Briefly stated, a claim petition was filed by the claimants being M.A.C.P. No. 58 of 2001 Smt. Sulbha Chandel and Ors. v. Uttar Pradesh State Road Transport Corporation claiming a sum of Rs. 51,50,000/- along with interest @ 16% per annum pendentelite and future interest.

According to the claimants, on 14th March, 2000, at about 10-15 when Surendra Nath Singh, who was Doctor, (hereinafter referred to as deceased) was going Kashipur to Jaspur driving the Scooter along with one Rajesh (pillion rider), all of a sudden a Bus No. U.P. 20-1721 related to U.P. Road Transport Corporation, which was coming from Jaspur and being driven rashly and negligently by its driver dashed the Scooter of the deceased, whereby deceased as well as Rajesh received grievous injuries. Both were admitted at L.D. Bhatt Hospital but due to the grievous injuries, they were thereafter admitted to Prashant Nurshing Home, Kashipur. A huge amount was spent on the medical treatment of the deceased and he became permanent disabled to the extent of 40%.

Opposite party has contested the case by filing written statement, where it has been stated that on the date of accident, the Bus in question was coming from Dehradun to Ranikhet, but seeing a truck coming from the Link Road, the truck driver parked the Bus left side, but a Scooter, on which two persons were sitting and which was being driven rashly and negligently dashed the front of the standing Bus, whereby both the persons received grievous injuries. When the driver of the Bus visited the Scooterers, they told that as the break-wire had been broken, therefore, the accident has caused. On humanitarian ground, both persons were carried to the Hospital by the Conductor and Driver of the Bus with the help of the Police. Further it has been stated in the written argument that the Insurer of the Scooter has not been made party to the claim petition and the claim petition is liable to be rejected.

During the pendency of the proceedings, the deceased died and his wife and children were substituted with the permission of the Court on 10-9-2000.

On the pleadings of the parties, Claims Tribunal has framed following issues:

On behalf of the claimants, Smt. Subhla Chandel has been examined as P.W.1, who has stated in her statement that her affidavit is based on the story narrated by her husband about the accident occurred on 14-3-2000. She has denied the exaggeration of bill. Towards documentary evidence, typed Information dated 15-3-2000, which was presented by Vipin Sood in Kotwali Kashipur, which was registered as Case Crime No. 368/2000 u/s 279/338 of Indian Penal Code, per List 5Ga photocopy of Driving Licence of Surendra Nath Chandel, photocopy of the Disability Certificate of Surendra Nath Chandel, photocopy of the certificate of Scooter Claim, per List 24Ga 38 papers i.e. medical bills and papers, photocopy of the decision given in M.A.C.P. No. 100/2000 Rajni Devi v. U.RS.R.T.C. Ranikhet Depot and Ors., where Surendranath Chandel has been made party.

On behalf of the opposite party, no documentary evidence has been produced. Towards oral evidence, Kailash Chandra Budhani - driver of the UP. State Road Transport Corporation has been examined, who has stated that the Scooter No. UP. 04-3269 on which two persons were sitting dashed the standing bus, whereby they received grievous injuries and they were brought to the Hospital. He has further stated that in the statement taken in M.A.C.P. No. 100 of 2000 Rajni v. U.P.S.R.T.C., the driver of the Bus has stated that he had got injured in an accident, and from March, 2001, he is on leave and living in his house. In that accident a number of persons had got injured. The accident had taken place due to passing his vehicle fast from the speed breaker and getting it uncontrolled.

While deciding the Issue No. 1 as to whether on 14-3-2000 at about 10-15 due to rash and negligent driving of the driver of UP. 20-1721, the accident had taken place near Kashipur Jaspur Road, Kunda Chauraha, in which Surendra Nath Singh - Scooterist received injuries, claims tribunal has placed reliance on the statement of Surendra Nath Chandel, which were taken in M.A.C.T. Case No. 100 of 2000 Smt. Rajni Devi v. UP.S.R.T.C., where he has stated that on 14-3-2000, when he was going to Raipur on his scooter along with one Rajesh, near Kunda Chauraha, a Bus No. UP. 02D-1721, which was being driven rashly and negligently passed the Speed-breaker very fast due to which the Bus got disbalanced and dashed the Scooter of the deceased and both of them got unconscious due to injuries received in the accident and later on Sri Rajesh died due to injuries received in the accident. He has stated that he was driving his Scooter left side and wire of the break had not broken. The claims tribunal has thus recorded a finding that the accident had taken place due to rash and negligent driving of the Bus driver, where by the deceased got injured and ultimately died.

While deciding the Issue No. 2 as to whether the accident had taken place due to negligence of Surendra Nath Chandel, Claims Tribunal reiterated the findings recorded in Issue No. 1 and has decided the same accordingly.

While deciding the Issue No. 3 as to whether the claimants are entitled to get any amount of compensation, the Claims Tribunal has calculated the entire compensation on the following heads:

The claims tribunal has come to the conclusion that the claimants are entitled for Rs. 1,79,776.58.

I have perused the medical bills, which have been given per List 24-Ga /1, the details of which are given below:

Counsel for the Appellant Sri A.N. Sharma has disputed these bills only on the ground that since the doctor has not been examined in the case, therefore, the said bills are not admissible in evidence. He has referred the judgment date 30-11-2006 of this Court Kashmir Singh v. Santosh Singh Patiner 2006 (2) U.D. 693. In paragraph 12 of the said judgment, it has been stated that the Tribunal had to follow the summary procedure and tribunal also possessed the power of the Civil Court mentioned in the above provisions. In paragraph 13 of the judgment, it has been stated that if the claimant files a claim petition before the Tribunal and he does not adduce any evidence, the claim petition cannot be allowed without supporting evidence of the claimant, there may be cases where certain documents are produced. If those documents had not been connected by any oral evidence, it cannot be said that those documents are genuine. The general principle of evidence would guide the Tribunal while deciding the claim petition. The Bench has also observed that in the event a certificate of medical Board was produced before the Tribunal certifying the disability of the claimant and he did not pray for production of the certified copy of document and insists the Tribunal to read it in evidence without proving its genuineness, the genuineness of the said document without examining the doctor, who allegedly issued the said certificate cannot be accepted. The observation are quoted below:

Supposing a certificate of medical board was produced before the Tribunal certifying the disability of the claimant and he did not pray for production of the certified copy or document and insists the Tribunal to read it in evidence without proving its genuineness. In case, the contention of the claimant is accepted the Tribunal would not only accept genuineness of the said document but also rely upon its contents without examining the doctors who allegedly issued such certificate. If any document is public document, in such a case, by production of a certified copy, the contents of the document or part of the document can be proved. It is also settled position by now that merely providing the handwriting of the person who had written a document, the veracity of the statement made in the said document cannot be proved. Such person must depose before the Court in support of the contents and would face cross examination of the opponent. Otherwise such document can merely be taken into consideration for the purposes of showing that such document was issued once its genuineness is proved. But whether the contents of the certificate are correct or not, such facts cannot go into the evidence unless the author of the document deposes before Court and faces cross examination. The contents of a document without examining the author are worst pieces of hearsay evidence. 24. Before parting with the case, we would like to lay down certain guidelines for the Tribunal for hearing of the claim petition. We have noticed during the hearing of some cases that the bills filed by the claimant were not properly proved. Even in some cases the claimants had not produced the direct evidence to prove their claims.

In the aforesaid judgment, therefore, the reference has been made for disability certificate.

The said judgment has also come up for interpretation in The Oriental Insurance Company Limited v. Shri Sandeep Singh and Anr. 2007 (2) U.D. 36, wherein Paragraph 14 it has been observed by the Division Bench as under:

It is well settled position of law that mere filing of the photocopy of the original document is not sufficient to prove the contents of the document. The claimant should have filed the original disability certificate before the learned Tribunal. He should have called the doctor before the learned Tribunal so that his statement could have been recorded and the veracity of the contents of the document made in the said document could be proved. This Court had already discussed this aspect in detail in Kashmir Singh (Supra) by relying upon the judgment of the Hon''ble Apex Court rendered in A.P. SRTC v. P. Thirupal Reddy 2005 (12) SCC 189. The learned Tribunal had already awarded the compensation to the claimant on the ground of disability. If this Court proceeds to examine the doctor and direct the claimants to produce the original disability certificate and if any order is passed against the parties to the claim petition after appreciation of such evidence, the parties would be deprived of their right of first appeal against the said finding.

In the aforesaid reference, it has been stated that the Tribunal had awarded the compensation on the ground of disability, if this Court proceeds to examine the doctor directing him to provide original disability certificate and if any order is passed in the claim petition in that connection reference has been made with regard to Kashmir Singh.

However, in another decision in Ishwari Singh Bisht v. United India Insurance Company Ltd. and Ors. 2007 (2) U.D. 41, the Bench has observed as under:

The claimant has filed the medical bills of Rs. 2,22,350/-. The Tribunal while awarding the medical expenses to the claimant has also considered that the claimant had to go outside his native place for treatment and awarded a sum of Rs. 2,50,000/- on this score. We do not find any fault in the approach of the Tribunal in awarding a sum of Rs. 2,50,000/- towards the medical expenses of the claimant.

In the present case, the claimants have claimed the amount towards medical expenditure and since Dr. Chandel, who met with an accident and is not alive, therefore, disability certificate has no relevance in the present case. Perusal of the statement Smt. Sulbha Chandel shows as under:

In the present case, a certificate has been issued by the Chief Medical Officer to the following effect:

Handicap Certificate:

[In accordance with the GO. No. 7-4-1971 Karmik-2 dated 20 May 1978] We examined Sri Dr. S.N. Singh Chandel, aged about 44 yrs/M, S/o R.N. Singh Chandel, R/o Bagpur Road, Kashipur, U.S. Nagar, whose passport size photograph duly attested is given below and certify that he is a case of Yraumatic injury both Collateral lig. & ant. Cruciate lig. Rt. Knee disability 40% (Forty).

We certify that he is permanently physically handicapped person.

Orthopaedic Surgeon (Member)

Eye Specialist (Member)

Chief Medical Officer, Udham Singh Nagar.

Since original copy of the disability certificate has been filed, no further proof is required. In the case of Kashmiri Lal certified copy of the certificate had been filed, as such the observations have been made by the Division Bench for examination of the doctor in accordance with the Evidence Act.

While filing the bills, the claimant has also filed the application Paper No. 23Ga. The same is quoted below:

Sir,

The claimant who is wife of injured/deceased could not file the different receipt of medicine & bills of Doctors. These are necessary for the hearing & decision of the petition.

Whereof it is prayed that the claimant may kindly be allowed to file the document including the judgment etc.

Application of Sulbha Chandel

In the affidavit filed by the Sulbha Chandel, she has duly supported the medical bills in paragraph 3,4, 6 and 10 of the affidavit. She was cross examined but no question has been asked regarding the medical bills by the owner of the offending vehicle. She has also been cross examined, the bills have already been submitted and they are not exaggerated anyway.

The Apex Court in Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and Ors. 2005 (4) Supreme 87 has observed as under:

The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that the deceased may not have lived or the dependants may not life up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.

The manner of arriving at the damages is to ascertain the net income of deceased available for the support of himselfand his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year''s purchase.

Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess the best as it can the loss suffered.

There were two methods adopted to determine and for calculation of compensation in fatal accident actions, the first the multiplier mentioned in Davies case (supra) and the second in Nance v. British Columbia Electric Railway Company Ltd. 1951 (2) All ER 448.

The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be held to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last 1.

The considerations generally relevant in the selection of multiplicand and multiplier were adverted to by Lord Diplock in his speech in Mallett v. Mc Mongle 1969 (2) All ER 178 where the deceased was aged 25 and left behind his widow of about the same age and three minor children. On the question of selection of multiplicand Lord Diplock observed:

The starting point in any estimate of the amount of the dependency is annual value of the material benefits provided for the dependants out of the earnings of the deceased at the date of his death. But... .there are many factors which might have led to variations up or down in the future. His earnings might have increased and with them the amount provided by him for his dependents. They might have diminished with a recession in trade or he might have had spells or unemployment. As his children grew up and became independent the proportion of his earnignds spent on his dependants would have been likely to fall. But in considering the effect to be given in the award of damages to possible variations in the dependency there are two factors to be borne in mind. The first is that the more remote in the future is the anticipated change the less confidence there can be in the chances of its occurring and the smaller the allowance to be made for it in the assessment. The second is that as a matter of the arithmetic of the calculation of present value, the later the change takes place the less will be its effect upon the total award of damages. Thus at interest rates of 4-1/2% the present value of an annuity for 20 years of which the first ten years are at $100 per annum and the second ten years at $200 per annum, is about 12 years'' purchase of the arithmetic average annuity of $150 per annum, whereas if the first ten years are at $200 per annum and the second ten years at $100 per annum the present value is about 14 years'' purchase of the arithmetical mean of $150 per annum. If therefore the chances of variations in the dependency are to be reflected in the multiplicand of which the years'' purchase is the multiplier, variations in the dependency which are not expected to take place until after ten years should have only a relatively small effect in increasing or diminishing the ''dependency'' used for the purpose of assessing the damages.

In view of the findings on the record regarding medical bills which have been fully corroborated by the oral as well as documentary evidence, I do not find any illegality in the award passed by the claims tribunal.

Further counsel for the Appellant has submitted that the interest is on higher side.

In Managing Director, T.N.S.T.C. v. Sripriya and Ors. 2007 (67) ALR 813 Supreme Court, the Apex Court has observed as under:

In regard to choice of the multiplicand the Halsbury''s Laws of England in Vol. 34, para 98 stats the principle thus:

Assessment of damages under the Fatal Accidents Act, 1976. - The Courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage-earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses.

The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-half the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased''s working life at the date of death.

Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs. 5,76,000. The other expenses awarded unaltered. In other words, total entitlement of the claimant is fixed at Rs. 6,00,000. It would be appropriate to fix the rate of interest at 7.5% instead of 9% as done by the Tribunal and maintained by the High Court.

In view of the above, Appellant shall be liable to pay interest on the amount of compensation to the extent of 7.5% instead of 12% per annum.

With the aforesaid modification in the rate of interest, appeal is dismissed with costs.