Court No. - 34 Case :- FIRST APPEAL FROM ORDER No. - 2211 of 2006 Petitioner :- U.P. State Road Transport Corporation Thru' Regional Manager Respondent :- Smt. Naima Rehman & Others Petitioner Counsel :- Avanish Mishra Respondent Counsel :- A.L. Jaiswal,Sharve Singh Hon'ble Prakash Chandra Verma,J.
Hon’ble Ram Autar Singh,J.
A.F.R. Court No.34
F.A.F. O. No. 2211 of 2006
U.P. State Road Transport Corporation,
through its Regional Manager Moradabad
Regional, Moradabad ————————Defendant-
Appellant
Vs.
Smt. Naima Rehman and others —————Claimant-
Respondents
Hon. Prakash Chandra Verma, J.
Hon. Ram Autar Singh, J.
(Delivered by Hon. R.A.Singh,J.
1. This First Appeal arises out of judgment and award dated
27.5.2006 passed by Shri P.K. Mishra, learned Additional
District Judge/Motor Accident Claims Tribunal (hereinafter
‘The Tribunal’), Rampur in M.A.C.P. No. 141 of 2004
whereunder the claim of Rs.12,5000/- as compensation
alongwith 4 % per annum interest from the date of filing of
the claim petition has been allowed.
2. Being aggrieved thereby the U.P.S.R.T.C. Appellant
(hereinafter the appellant) has preferred this appeal. The facts
of the case in a narrow compass are recapitulated herein
below:
3. The petition was moved by the claimant-respondents
against appellant and two others under section 166 of Motor
Vehicles Act, 1988, with this allegation that on 1.7.2004
Khalid Hussain, husband of the claimant Smt. Naima
Rehman alongwith his brother Kamran Ahmad was coming
from Dhamora to Rampur by Motorcycle No.U.P.22-C/0791
with moderate speed on left side of the road and when he
reached in front of Wings & Nest Hotel at about 11.30 A.M.,
the offending bus no. U.P.53L/9942 being driven by its driver
rashly and negligently came from opposite direction and its
driver without showing any indicator turned the said bus with
the same fast speed on wrong direction towards the said Hotel
and collided with motorcycle, in which Khalid Hussain,
driver of the motorcycle sustained grievous injuries and died
in District Hospital, Rampur due to his injuries, but pillion
rider Kamran Ahmad had narrow escape.
4. It has further been alleged that deceased Khalid Hussain
during his life time was working as A.G.-1(d) in Food
Corporation of India and drawing Rs.15,512/- per month as
salary, out of which he used to maintain his family and due to
his sudden death all the petitioners were deprived of the said
income of the deceased. The petitioner no.1 Smt. Naima
Rehman, wife of the deceased and petitioners no.2 and 3,
being son and daughter claimed themselves to be his legal
heirs and filed claim petition for a compensation of Rs.50
lacs.
5. The U.P.S.R.T.C. opposite party no.1 filed its written
statement alleging that on 1.7.2004 its bus no.U.P.53L/9942
was going from Delhi to Siddharth Nagar and its driver was
driving the same with moderate speed and when it reached
near Wings & Nest Hotel, Rampur at about 11 a.m., its driver
after giving signal turned the said bus towards the said hotel
and when it crossed half of pitch road, all of sudden a
motorcycle being driven by its driver negligently came from
opposite direction, lost control over the same and collided
with the bus, in which the driver of the motorcycle sustained
injuries and died in District Hospital, Rampur and thus the
accident took place due to negligence of deceased.
6. The opposite party no.2-United India Insurance Company
in its written statement expressed its ignorance about fact
relating to accident in question. The Insurance Company also
expressed his ignorance about the age, income and profession
of the deceased Khalid Hussain. It has been alleged by
opposite party no.2 that the said motorcycle was not insured
with the Insurance Company and it was unnecessarily
impleaded in the petition.
7. The opposite party no.3 claiming himself to be the owner
of the said motorcycle no. U.P.22-C/0791 filed his written
statement alleging that the said motorcycle no. U.P.22-
C/0791 was insured with opposite party no.2 on the date of
the accident and the deceased was having effective and valid
driving licence at that time. Admitting the allegations made in
the claim petition opposite party no.3 alleged that at the time
of accident motorcycle no. U.P.22-C/0791 of opposite party
no.3 was being driven by deceased with moderate speed and
when he reached in front of Wings & Nest Hotel, bus no.
U.P.53L/9942 being driven by its driver negligently and
rashly, came from opposite direction and all of sudden, driver
of the said bus turned the same towards the said hotel on
wrong direction and collided with the motorcycle, as a result
of which Khalid Hussain sustained grievous injuries and he
succumbed to same.
8. The learned tribunal framed following six issues on the
basis of pleading of parties.
1. Whether the accident took place due to rash and negligent
driving of bus no. U.P.53L/9942 on 1.7.2004 at 11.30 a.m. in
front of Wings & Nest Hotel within the circle of P.S. Civil
Lines, District Rampur, in which driver of the above bus
collided the same with motorcycle no. U.P.22-C/0791 being
driven by Khalid Hussain from Dhamora to Rampur in which
Khalid Hussain sustained injuries and ultimately died due to
his injuries
or
Whether the accident took place due to motorcycle being
driven by Khalid Hussain rashly and negligently, in which
Khalid Hussain succumbed to his injuries?
2. Whether the deceased Khalid Hussain driver of motorcycle
was having valid and effective driving licence at the time of
the accident?
3. Whether motorcycle involved in the accident was insured
with opposite party no.2 at the time of the accident?
4. Whether the petition is barred by section 64 (V)(B) of
Insurance Act?
5. Whether the petition is barred by sections 147/149 of
Motor Vehicle Act?
6. Whether the petitioners are entitled to get any amount of
compensation? If so, To what amount and from whom?
9. On behalf of petitioners, P.W.1 Kamran Ahmad was
examined to prove the factum of accident as alleged in
petition. Opposite party no.1 examined/ D.W.1
Panchmeshwar Tripathi in defence. The petitioners also filed
documentary evidence in support of allegations made in
petition. The learned Tribunal decided issue no.1 in favour of
the petitioners holding that the accident took place due to rash
and negligent driving of the driver of bus no. U.P.53L/9942,
who turned the said bus without giving any signal/indicator
towards Wings & Nest Hotel on wrong direction on 1.7.2004
at 11.30 a.m. and collided the same with motorcycle no.
U.P.22-C/0791, in which Khalid Hussain sustained grievous
injuries and ultimately he died in District Hospital, Rampur,
during his treatment. The learned tribunal decided issues no.2
and 3 in negative against the opposite parties. No argument
was advanced on issues no.4 and 5 and thus these issues were
decided in negative. The learned tribunal decided issue no.6
in favour of the petitioners and awarded Rs.12,50,000/- as
compensation on account of death of Khalid Hussain in the
said accident giving reasons therein.
10. The opposite party no.1 has challenged said judgment and
award contending that this is a case of head-on-collusion but
the Motor Accident Claims Tribunal wrongly fastened the
liability upon the appellant.
11. We have considered submissions made on behalf of
parties and carefully examined the evidence on record.
12. The learned counsel for the appellant has contended that
the offending bus was being driven with moderate speed and
was taken turn after giving signal, but the learned tribunal
recorded the findings otherwise that the bus was being driven
rashly and negligently. The bus could not be driven with fast
speed while taking turn otherwise it could be turned turtle and
thus the findings recorded by the learned tribunal was not
based upon cogent reasons and it completely ignored the
possibility of contributory negligence. It has further been
contended that the deceased was not having a valid driving
licence and he was not a skilled driver, at the time of the
accident. The learned tribunal calculated the amount of
compensation on the basis of gross salary of Rs.14,500/-,
whereas the deceased was getting only Rs.12,811/- per month
after mandatory deductions.
13. The learned counsel for respondents repelling the above
contentions has contended that the learned tribunal rightly
held the driver of the bus of appellant liable for causing
accident because on the basis of the evidence the driver of the
said bus turned it towards Wings & Nest Hotel on wrong
direction without giving signal and collided the same with
motorcycle of the deceased coming from opposite direction.
14. A perusal of the record would go to show that the learned
tribunal has rightly placed reliance on the testimony of P.W.1
Kamran Ahmad, who was a pillion rider of the motorcycle at
the time of the accident and he witnessed the entire scene of
the incident. He categorically stated that he alongwith his
brother Khalid Hussain was coming from Dhamora to
Rampur on 1.7.2004 by motorcycle no. U.P.22-C/0791 and
when he alongwith him reached at about 11.30 a.m. in front
of Wings & Nest Hotel, the offending bus no. U.P.53L/9942
being driven in rash and negligent manner came from
opposite direction i.e. Rampur side and its driver without
giving signal turned the said bus towards the said hotel and
collided it with their motorcycle in which his brother Khalid
Hussain sustained grievous injuries and ultimately he died in
District Hospital, Rampur and the driver of the said bus
eluded his capture. He also stated that he lodged an F.I.R. at
P.S. Shahzad Nagar about the said accident.
15. Nothing was elicited in his cross-examination which
could make his testimony unreliable. This witness in his
cross-examination further stated that the motorcycle was
being driven by deceased Khalid Hussain with moderate
speed at the time of the accident but the driver of offending
bus turned it towards his right hand i.e. Wings & Nest Hotel
without giving signal and due to rash and negligent driving of
the bus the said accident took place. The learned tribunal
rightly believed the testimony of P.W.1 Kamran Ahmad and
rejected the testimony of D.W.1 Panchmeshwar Tripathi,
conductor of the said bus, on the ground that he admitted in
his cross-examination that he could not see actual scene of
occurrence from his seat. The learned tribunal rightly
recorded its findings on the basis of the evidence of D.W.1
Panchmeshwar Tripathi and circumstances attending to the
case that the bus was being driven with fast speed at the time
of the accident and driver of the bus turned it with same
speed. Issue no. 1 has been rightly decided in favour of the
petitioners with which no interference is required.
16. The learned tribunal has rightly held that non production
of driving licence of the deceased Khalid Hussain would not
affect the rights of the petitioners in getting the
compensation. He further held that no insurance policy
certificate could be filed on behalf of the petitioners, as a
result of which presumption would be drawn that there was
no insurance policy of the motorcycle at the time of the
accident and at the most liability of the Insurance Company
could be held in respect of third party.
17. No liability was fastened on opposite party no.2 by the
learned tribunal. No argument has been advanced on behalf
of the appellant on issues no. 4 and 5 before this Court. The
findings recorded by tribunal on issues no.2, 3, 4 and 5 have
not been challenged by appellant in this appeal.
18. The learned counsel for appellant has vehemently
contended that the learned tribunal committed factual and
legal error in calculating the amount of compensation,
because the amount of compensation should have been
calculated on the basis of basic pay and D.A. out of which the
amount of G.P.F. and income tax was liable to be deducted.
Moreover the amount awarded by tribunal is highly excessive
and liable to be reduced in view of personal expenditure to be
incurred on deceased.
19. So far as the findings recorded by learned tribunal on
issue no.6 is concerned, there is evidence on record to this
effect that the deceased Khalid Hussain was drawing
Rs.15,512/- per month as salary while he was working as
A.G.-1(d) in Food Corporation of India. The salary certificate
has been proved by P.W.3 Jai Ram Sharma working as
accountant in Food Corporation of India, who has stated that
deceased Khalid Hussain was working on above post in Food
Corporation of India till the time of accident. This fact has
also been corroborated by P.W.2 Smt. Naima Rehman, wife
of the deceased in her testimony. The learned tribunal on the
basis of evidence on record deducted Rs.1,000/- as income
tax from total income of Rs. 15,512/- and found Rs.14,512/-
per month as actual salary of deceased and taking round
figure found his monthly income at Rs.14,500/- and annual
income at Rs.1,74,000/-.
20. The learned tribunal further held that 1/3rd amount as
personal expenditure to be incurred on deceased should be
deducted which came to Rs.58,000/- and thus net income of
the deceased came to Rs.1,16,000/ per annum. The learned
tribunal adopting the multiplier of 11 calculated the amount
of compensation as Rs.12,76,000/- in addition to funeral
expenses of Rs.2,000/- , mental agony of Rs.5,000/- and loss
of property of Rs.2,500/- and thus total amount of
compensation worked out to be Rs.12,85,500/- and taking the
round figure learned tribunal calculated the amount of
compensation at Rs.12,50,000/- and held that out of the said
amount petitioner no.1 Smt. Naima Rehman would get
Rs.6,50,000/- and petitioners no. 2 and 3 would get
Rs.3,00,000/- each. It was further directed that the share of
petitioner no.1 would be deposited in any nationalised bank
in fixed deposit scheme for a period of six years and the
petitioners would get interest at the rate of 4% on the said
amount of compensation from the date of presentation of
petition till date of actual payment.
21. The learned counsel for the respondents/claimants has
relied on the decision in the case of Asha and others Vs.
United India Insurance Company Limited and another,
1(2004) ACC 533 (SC), wherein the salary certificate of the
deceased shows that the salary of the deceased was
Rs.8,632/-, but the High Court after making necessary
deductions held the salary to be Rs. 6,642/-. The Hon’ble
Apex Court held that the High Court was wrong in deducting
the allowances and amounts paid towards LIC, Society
charges and HBA etc because the claimants would have been
receiving the same amount at the time when the deceased was
alive. Thus the claimants are entitled to get compensation for
the loss suffered by them. There can be no doubt the
dependents would only be receiving the net amount less 1/3
rd for his personal expenses.
22. The Hon’ble Apex Court in the case of Smt. Sarla Verma
and others Vs. Delhi Transport Corporation and another,
2009(2) T.A.C. 677 (S.C.) has discussed various aspect of
accident cases settling the judgments in this regard. The
Hon’ble Apex Court has observed that it would be appropriate
to recall the relevant principles relating to assessment of
compensation in cases of death. Earlier, there used to be
considerable variation and inconsistency in the decisions of
Courts/Tribunals on account of some adopting the Nance
method enunciated in Nance Vs. British Columbia Electric
Railway, Company Limited, 1991 A.C. 601 and some
adopting the view method enunciated in Deview Vs. Powell
Duffryn Associated Collieries Limited, 1942 A.C. 601. The
difference between the two methods was considered and
explained in General Manager, Kerala State Road Transport
Corporation Vs. Susamma Thomas, 1994 (2) S.C.C. 176.
After exhaustive consideration, the Hon’ble Apex Court
preferred the Davies method to Nance method. In Susamma
Thomas case the principles laid down can be reproduced as
below:
“In fatal accident action, the measure of damage is the pecuniary loss
suffered and is likely to be suffered by each dependant as a result of the death.
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
imponderable 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 he would have contributed to the dependants during that period, the
chances that the deceased may not have lived or the dependants may not live 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 altogether.
The matter of arriving at the damages is to ascertain the net income of the
deceased available for the support of himself and 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.
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 had to the
fact that ultimately the capital sum should also be consumed-up over the period
for which the dependency is expected to last.
It is necessary to reiterate that the multiplier method is logically sound
and legally well-established. There are some cases which have proceeded to
determine the compensation on the basis of aggregating the entire future
earnings for over the period the life expectancy was lost, deducted a percentage
therefrom towards uncertainties of future life and award the resulting sum as
compensation. This is clearly unscientific. For instance, if the deceased was, say
25 years of age at the time of death and the life expectancy is 70 years, this
method would multiply the loss of dependency for 45 years- virtually adopting a
multiplier of 45 and even if one-third or one-fourth is deducted therefrom
towards the uncertainties of future life and for immediate lump sum payment, the
effective multiplier would be between 30 and 34. This is wholly impermissible.”
23. In U.P. State Road Transport Corporation Vs. Trilok Chandra, 1996 (4)
S.C.C. 362, the Hon’ble Apex Court while reiterating the preference to Davies
method followed in Susamma Thomas has made following observations:
“In the method adopted by Viscount Simon in the case of Nance also, first
the annual dependency is worked out and then multiplied by the estimated
useful life of the deceased. This is generally determined on the basis of
longevity. But then, proper discounting on various factors having a bearing
on the uncertainties of life, such as, premature death of the deceased or the
dependent, remarriage, accelerated payment and increased earning by wise
and prudent investments, etc, would become necessary. It was generally felt
that discounting on various imponderables made assessment of compensation
rather complicated and cumbersome and very often as a rough and ready
measure, one-third to one-half of the dependency was reduced, depending on
the life-span taken. This is the reason why Courts in India as well as England
preferred the Davies’ formula as being simple and more realistic. However, as
observed earlier and as pointed out in Susamma Thomas’ case, usually
English Courts rarely exceed 16 as the multiplier. Courts in India too
followed the same pattern till recently when Tribunals/Court began to use a
hybrid method of using Nance’s method without making deduction for
imponderables……Under the formula advocated by Lord Wright in Davies,
the loss has to be ascertained by first determining the monthly income of the
deceased, then deducting therefrom the amount spent on the deceased, and
thus, assessing the loss to the dependents of the deceased. The annual
dependency assessed in this manner is then to be multiplied by the use of an
appropriate multipliers.”
24. In Susamma Thomas case it has been observed that the
proper method of computation is the multiplier method. Any
departure, except in exceptional and extra-ordinary cases,
would introduce inconsistency of principle, lack of
uniformity and an elements of unpredictability, for the
assessment of compensation. Basically only three facts need
to be established by the claimants for assessing compensation
in the case of death: (a) age of the deceased; (b) income of the
deceased; and (c) the number of dependants. The issues to be
determined by the Tribunal to arrive at the loss of
dependency are (i) additions/deductions to be made for
arriving at the income; (ii) the deduction to be made towards
the personal living expenses of the deceased; and (iii) the
multiplier to be applied with reference to the age of deceased.
If these determinants are standardized, there will be
uniformity and consistency in the decisions. There will be
lesser need for detailed evidence. It will also be easier for the
insurance companies to settle accident claims without delay.
To have uniformity and consistency, Tribunals should
determine compensation in cases of death, by the following
well-settled steps:
Steps 1.
The income of the deceased per annum should be determined.
Out of the said income a deduction should be made in regard
to the amount which the deceased would have spent on
himself by way of personal and living expenses. The balance,
which is considered to be the contribution to the dependant
family, constitutes the multiplicand.
Step 2.
Having regard to the age of the deceased and period of active
career, the appropriate multiplier should be selected. This
does not mean ascertaining the number of years he would
have lived or worked but for the accident. Having regard to
several imponderables in life and economic factors, a table of
multipliers with reference to the age has been identified. The
multiplier should be chosen from the said table with reference
to the age of the deceased.
Steps 3.
The annual contribution to the family (multiplicand) when
multiplied by such multiplier gives the ‘loss of dependancy’ to
the family.
The funeral expenses, cost of transportation of the body and
cost of any medical treatment of the deceased before death
should also be added.
25. Generally the actual income of the deceased less income
tax should be the starting point for calculating the
compensation. The question is whether actual income at the
time of death should be taken as the income or whether any
addition should be made by taking note of future prospects. In
Susamma Thomas, it has been held that the future prospects
of advancement in life and career should also be sounded in
terms of money to augment the multiplicand and that where
the deceased had a stable job, the Court can take note of the
prospects of the future and it would be unreasonable to
estimate the loss of dependency on the actual income of the
deceased at the time of death.
26. The personal and living expenses of the deceased should
be deducted from the income, to arrive at the contribution to
the dependents. No evidence need be led to show the actual
expenses of the deceased. In fact, any evidence in that behalf
will be wholly unverifiable and likely to be unreliable.
Claimants will obviously tend to claim that the deceased was
very frugal and did not have any expensive habits and was
spending virtually the entire income on the family. In some
cases, it may be so. No claimant would admit that the
deceased was a spendthrift, even if he was one. It is also very
difficult for the respondents in a claim petition to produce
evidence to show that the deceased was spending a
considerable part of the income on himself or that he was
contributing only a small part of the income on his family.
Therefore, it became necessary to standardize the deductions
to be made under the head of personal and living expenses of
the deceased. This lead to the practice of deducting towards
personal and living expenses of the deceased, one third of the
income if the deceased was a married, and one-third of
income if the deceased was a bachelor. This practice was
evolved out of experience, logic and convenience. In fact
one-third deduction, got statutory recognition under Second
Schedule to the Act, in respect of claims under Section 163-A
of the Motor Vehicles Act, 1988.
27. But such percentage of deduction is not an inflexible rule
and offers merely a guideline. In Susamma Thomas case, it
was observed that in the absence of evidence, it is not unusual
to deduct one-third of the gross income towards the personal
living expenses of the deceased and treat the balance as the
amount likely to have been spent on the members of the
family of the deceased.
28. The Hon’ble Apex Court in the case of Oriental Insurance
Company Limited Vs. Deo Patodi and others, 2009 (4) AWC
3331 (SC), has observed that deduction of one-third towards
personal expenses is the ordinarily rule in India. In the case of
National Insurance Company Limited Vs. Pitam Singh and
another, 2007 (4) T.A.C. 993 (Allahabad), it has also been
observed that the deduction of one-third made by the tribunal
calls for no interference. In the case of Bilkish Vs. United
India Insurance Company Limited and another, 2008 (2)
AWC 2043 (SC), it has been observed that one-third amount
should be deducted as personal expenses of the deceased
from his income.
29. So far as multiplier used in the present case is concerned,
Second Schedule of M.Vehicles Act, provides the multiplier
of 11 in the case of the deceased between 51 to 55 years. In
view of the permanent account no.0AA HPH 1597 the date of
birth of the deceased has been found as 1.1.1951 and thus the
age of the deceased Khalid Hussain has been found to be 53
years at the time of accident and thus the learned tribunal has
rightly used multiplier of 11 in this case which does not suffer
from any error or illegality.
30. The salary slip relating to June, 2004 filed in the court
below has been proved by P.W.3 Jai Ram Sharma in view of
which the deduction of Rs.1,000/- as income tax has been
shown and sum of Rs.1691/- has been shown to be deducted
towards G.P.F. The learned tribunal has rightly held that the
amount of G.P.F. is contributed by the employee himself and
on retirement he gets this amount alogwith interest and thus
the amount of G.P.F deducted from the salary cannot be
excluded from his income. On account of deduction of
Rs.1,000/- per month as Income Tax from the salary of the
deceased the net income of the deceased comes to
Rs.14,512/- per month and the learned tribunal has rightly
held that the said amount in round figure comes to
Rs.14,500/-per moth. No other amount can be said to be
deductable from the income of the deceased in order to
calculate the amount of compensation on account of his death
in the accident. The learned Tribunal has rightly deducted
one-third amount from the income of the deceased which has
been presumed to have been spent on the deceased himself
during his life time as he would have spent this amount on
himself and thus learned tribunal has not committed any error
in deducting one-third amount from his income.
31. In view of above discussions, we are in full agreement
with the findings recoded by the learned tribunal, which do
not suffer from infirmity or illegality. No error is found in the
award passed by the learned Tribunal in calculating the
amount of compensation granted to the petitioners. There is
no illegality or irregularity in the judgment and award which
does not require any interference. Consequently this appeal
lacks merit and is dismissed. The judgment and award passed
by the learned tribunal is confirmed. The parties shall bear
their own costs.
Dated:28.1.2010
R.U.
Order Date :- 28.1.2010
RU