Full Text
$-10 HIGH COURT OF DELHI
Date of Decision: 23rd April, 2015
DELHI TRANSPORT CORPORATION ..... Appellant
Through: Mr. J.N. Aggarwal, Adv.
Through: Mr. O.P. Mannie, Adv. for R-1 to R-4.
JUDGMENT
1. The appellant impugns the judgment dated 31.11.2010 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of `6,73,123/- was awarded in favour of Respondents no.1 to 5 for the death of Shri Ram Mehar Singh, who suffered fatal injuries in a motor vehicular accident which occurred on the night intervening 17-18.08.1994.
2. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of Delhi 2015:DHC:3723 Transport Corporation (DTC) bus driver. The Claims Tribunal accepted the income of the deceased to be `3636/- per month, made addition of 30% towards future prospects and adopted the multiplier of 15 to compute the loss of dependency. The Claims Tribunal further awarded a sum of `35,000/- towards non-pecuniary damages to compute the overall compensation of `6,73,123/-.
3. The following contentions are raised on behalf of the Appellant:-
(i) Respondents no.1 to 5 failed to establish negligence on the part of the DTC bus driver. The DTC is therefore, not liable to pay any compensation; and
(ii) Widow of the deceased was given employment on compassionate ground, this fact would consequently reduce the compensation payable to Respondents no.1 to 5.
4. On the other hand, the learned counsel for Respondents no.1 to 5 states that negligence was duly established on the touchstone of preponderance of probability. It is stated that the compensation awarded is on the lower side as addition of 50% ought to have been made towards future prospects. The compensation awarded under nonpecuniary heads is also on the lower side.
NEGLIGENCE
5. It is urged by Mr. J.N. Aggarwal, learned counsel for the DTC that Ram Kumar, driver of the DTC bus was acquitted in the criminal case. It is also contended that initially by an order dated 25.10.1999, the Claims Tribunal had found that there was no negligence on the part of the DTC bus driver. It is urged that the conclusion reached by the Claims Tribunal by order dated 25.10.1999 was more logical. The earlier findings of the Claims Tribunal coupled with Ram Kumar’s acquittal in the criminal case sufficiently establishes that there was no negligence on the part of the DTC bus driver. Infact, the bus in question was not at all involved in the accident which fact was also testified by driver Ram Kumar appearing as R1W[1].
6. While dealing with the issue of negligence, all these aspects were gone into in detail by the Claims Tribunal. The relevant parts of the impugned award are extracted hereunder:- “The petitioners have examined PW[1] Om Prakash who has stated that the accident had taken place due to rash and negligent driving of DTC bus bearing registration no.DL 1P 9685 on 17/08/1994 at 12.00 midnight. It is true that he has not stated that he had seen Ram Kumar i.e respondent no.2 driving the said vehicle, however, respondent no.2 himself appeared in the witness box and had admitted that the bus was being driven by him at the time of accident though he has denied that it was at the place of accident. Even during investigation, no contrary evidence came before the police who must have enquired from the concerned office regarding the duty of the driver concerned from the DTC Office that the offending vehicle was being driven by respondent no.2 at the time of accident. The eyewitness Om Prakash has clearly mentioned the registration number of the vehicle which had hit the deceased due to which he had died. He has mentioned that he had chased the bus to a distance and was therefore able to note down its number. The witness is not related to the deceased or to his family to prove that he is an interested witness. Even before the court of ld.Metropolitan Magistrate, he has stated that the DTC bus was being driven at high speed and was coming from the wrong side and had committed the accident. Ld. counsel for the respondents stated that the identity of the driver has not been established and since the driver of the offending vehicle has been acquitted by the court of Ld. Metropolitan Magistrate as PW Om Prakash had turned hostile, the petitioners have failed to prove rash and negligent driving on the part of respondent no.2 and therefore, the claim petition be dismissed. I however do not agree with the contention of ld. counsel for the respondents since the evidentiary value and the weightage which is to be given in the criminal case pertaining to an accident and before the Tribunal is different. The Tribunal is only required to conduct an enquiry to be prima facie satisfied that the accident had taken place involving a particular vehicle driven by a particular person. In the present case, though PW Om Prakash has not identified the driver of the offending vehicle, he has clearly mentioned the registration number of the offending vehicle and respondent no.2 himself has admitted that he was driving the said vehicle in the midnight of 17/08/1994 when the accident had taken place. The petitioners have filed on record copy of FIR as well as certified copies of the challan. The police investigation, on the other hand, which has been proved on record has also concluded that the accident in this case had taken place due to rash and negligent driving of respondent no.2 who was driving the said offending vehicle at the time of accident. For the purpose of conducting an enquiry, the conclusion of the investigation report filed by the police and the fact that eyewitness has correctly stated that the number of the offending vehicle and particularly in the present case, respondent no.2 has admitted that he was driving it on the date and time of accident; I have no hesitation to reach a conclusion that for the purpose of enquiry before the Tribunal, the petitioners succeeded in proving that the accident had prima facie taken place due to rash and negligent driving of offending vehicle by respondent no.2 in rash and negligent manner. The postmortem report, on the other hand, also reflects that the injuries are of the nature which could have been caused due to injuries sustained in road traffic accident. PW[1] Om Prakash who is the eyewitness of the case has also stated that the accident had taken place due to rash and negligent driving of the driver of the offending vehicle bearing registration no.DL 1P 9685. Therefore, the testimony of PW[1] and PW[2] considered alongwith the other documents i.e. charge sheet as well as FIR registered in this case, postmortem report, I am of the opinion that deceased Shri Ram Mehar Singh had died in road traffic accident due to involvement of vehicle bearing registration No. DL 1P 9685 driven by respondent no.2 in rash and negligent manner…..”
7. It is well settled that the judgment of the criminal case is relevant only to the extent that the driver was acquitted in the criminal case. It may be noted that the standard of proof required in criminal cases is ‘beyond shadow of all reasonable doubt’ whereas the standard of proof required in a petition under the Motor Vehicles Act, 1988 is on the touchstone of preponderance of probability. (See: Bimla Devi and Ors. v. Himachal Road Transport Corporation and Ors., (2009) 13 SC 530).
8. PW-1 Om Prakash boldly stood the test of cross-examination. Of course, the number of DTC bus was not mentioned in the FIR which was recorded on the statement of one Virender Singh. In fact PW-1 Om Prakash had contacted the police himself and his statement under Section 161 Cr.P.C. was recorded after a couple of days. The Claims Tribunal reasoned that there was no ground to disbelieve the testimony of PW-1 Om Prakash and that the statement of driver Ram Kumar could not be preferred over that of Om Prakash.
9. I fully agree with the view taken by the Claims Tribunal for several reasons. One, it was established that the accident was caused by the DTC bus. Second, there was no reason for PW-1 Om Prakash to falsely involve DTC bus bearing registration no.DL-1P-9685 in the accident. Thirdly, the conductor and other staff of the DTC bus alleged to be involved in the accident were not produced in support of the Appellant’s plea that the bus was not involved in the accident. The finding on negligence therefore, cannot be faulted.
10. The plea of the deceased’s widow or children getting employment in DESU on compassionate ground was gone into by this Court in Oriental Insurance Company Limited v. Arun Bala & Ors, MAC APP.359/2004, decided on 31.08.2015. This Court referred to the judgment in Helen C. Rebello (Mrs.) & Ors. v. Maharashtra State Road Transport Corporation and Anr., (1999)1 SCC 90 and United India Insurance Co. Ltd. & Ors. v. Patricia Jean Mahajan & Ors., (2002) 6 SCC 281 and in paras 15 to 18, this Court held as under:-
15. In Helen C. Rebello (supra), the question before the Supreme Court was whether the amount received under Life Insurance Policy was liable to be deducted on the principle of balancing the loss and gain. The Supreme Court referred to the Law of Torts by Fleming and differentiated between the amount received under the Life Insurance Policy and an Accident Insurance Policy. It was, thus held that the payment received under the Life Insurance Policy was not deductible whereas the payment received under the Personal Accident Insurance was deductible. The reason was that in case of payment received under the Accident Insurance Policy, the amount was receivable only on account of death in an accident and not otherwise, whereas in case of Life Insurance Policy, the amount was receivable irrespective of the death. Thus, the fact that the payment was made under an independent contract of insurance was not of much importance. Moreover, the use of the word “just” in Section 168 of the Act, confers wider discretion to the Claims Tribunal. The Claims Tribunal, therefore, has to see that the compensation awarded is neither niggardly nor a source of profit. Paras 26, 27, 28, 32, 33 and 34 of the report in Helen C. Rebello (supra) are extracted hereunder:
28. Fleming has also expressed that the deduction or set-off of the life insurance could not be justifiable. When he uses the words “not be justifiable” he refers to one's conscience, fairness and contrary to what is just. In this context, the use of the word “just”, which was neither in the English 1846 Act nor in the Indian 1855 Act, now brought in under the 1939 Act, gains importance. This shows that the word “just” was deliberately brought in Section 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that the principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and under the Indian Fatal Accidents Act, 1855 by the earlier decisions, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of the 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based their interpretation on the principles of these two Acts, viz., the English 1846 Act and the Indian 1855 Act to hold that deductions were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these courts by giving a restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word “just”, as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having the force of law………..” x x x x x x x x x x
32. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the “pecuniary advantage” which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, correlating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. Thus, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental. If the words “pecuniary advantage” from whatever source are to be interpreted to mean any form of death under this Act, it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the “pecuniary advantage” resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets moveable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. The constitution of the Motor Accident Claims Tribunal itself under Section 110 is, as the section states: “... for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to,...”.
33. Thus, it would not include that which the claimant receives on account of other forms of deaths, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no corelation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that which would have come to the claimant even otherwise, could not be construed to be the “pecuniary advantage”, liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction. However, our legislature has taken note of such contingency through the proviso of Section 95. Under it the liability of the insurer is excluded in respect of injury or death, arising out of and in the course of employment of an employee.”
34. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of one's labour or contribution towards one's wealth, savings, etc. either for himself or for his family which such person knows under the law has to go to his heirs after his death either by succession or under a Will could be said to be the “pecuniary gain” only on account of one's accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no corelation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any corelation with an amount earned by an individual. Principle of loss and gain has to be on the same plane within the same sphere, of course, subject to the contract to the contrary or any provisions of law.”
16. In para 33 of the report, the Supreme Court clarified that it would not include the pecuniary advantage which the Claimant receives on account of other forms of death. In other words, any pecuniary advantage received by the legal representatives which had no co-relation with the accidental death, was not to be deducted from the pecuniary loss suffered by the Claimants.
17. Similarly, in Patricia Jean Mahajan (supra), the Supreme Court while not deducting the sum received on account of family pension and social security had in its mind that these payments had no co-relation between the compensation payable on account of accidental death and death on account of illness or otherwise. The Supreme Court emphasized that the principle of balancing between losses and gains must have some co-relation with the accidental death by reason of which alone the Claimant had received the amounts. Paras 34 and 36 of the report are extracted hereunder:
18. Thus, on the basis of the ratio in Helen C. Rebello (supra) and Patricia Jean Mahajan (supra), it can be safely concluded that only those amounts which are payable to the Claimant/Claimants only by reason of death or injury in an accident are liable to be deducted.”
11. The salary which was being paid to the widow of the deceased for working as an Attendant to serve water to the employees did not come on record. Obviously, she was being paid salary for the work put in by her and not on account of the accidental death of her husband. Thus, the amount of salary paid to Respondent no.1 (widow) cannot be deducted while considering the grant of loss of dependency.
12. Mr. O.P. Mannie, learned counsel for the Respondents no.1 to 5 urges that the Claims Tribunal made an addition of 30% towards future prospects. It ought to have been 50%.
13. The exact date of birth of the deceased was not brought on record. PW-2 stated that the deceased was 40 years old. In the absence of exact date of birth to show that the deceased was less than 40 years of age, I am not inclined to interfere with the grant of 30% future prospects.
14. The Claims Tribunal awarded a sum of ` 35,000/- towards loss of love and affection, loss of consortium, loss to estate and funeral expenses. Now, the trend is to award a much higher amount i.e. `1,00,000/- each towards loss of love and affection and loss of consortium and `25,000/- towards funeral expenses. (See: Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54).
15. However, it may be noted that the accident in question had taken place in the year 1994. There was manifold inflation since that time. In view of this, I am not inclined to interfere with the amount of compensation awarded towards non-pecuniary damages, particularly when no cross-appeal has been preferred by the Respondents no.1 to
5.
16. The appeal preferred by the DTC, therefore, fails; the same is accordingly dismissed.
17. This accident relates to the year 1994. The entire balance amount lying deposited shall be paid to the Claimants in terms of the order passed by the Claims Tribunal.
18. Respondent no.5, mother of the deceased has since expired. Her name has already been deleted from the array of parties and amended memo has been taken on record. The compensation payable to Respondent no.5 shall now go to Respondent no.1, widow of the deceased.
19. Pending application also stands dispose of.
20. Statutory amount, if any, deposited shall be refunded to the Appellant DTC.
JUDGE APRIL 23, 2015 vk