Full Text
HIGH COURT OF DELHI
Date of Decision: - 03.03.2023
15550/2019 -Dir. by R-1.
U P STATE ROAD TRANSPORT CORPORATION ..... Appellant
Through: Mr.Shadab Khan, Adv.
Through: Mr.RCS Bhadoria, Adv.
JUDGMENT
1. The present appeal under Section 173 of the Motor Vehicles Act (the Act) preferred by the owner of offending vehicle, i.e bus bearing registration no. UP-16P-9881, seeks to assail the award dated 28.09.2018 passed by the learned Motor Accidents Claims Tribunal. Vide the impugned award, the learned Tribunal, after coming to a conclusion that the accident, which occurred on 31.03.2014 and caused grievous injuries to the respondent no.1/claimant, took place on account of the negligence of the driver of the appellant, has directed the appellant to pay to the claimant as compensation, a sum of Rs.10,60,000/- along with interest @ 9% per annum.
2. It is the common case of the parties that the offending vehicle, i.e., the bus bearing registration no. UP-16P-9881, was being driven by one Mr. Satender Kumar/respondent no.2, when the accident took place at Rajghat at about 07:00 A.M, causing grievous injuries to the respondent no.1. An FIR was promptly registered by the claimant and subsequently, the claimant preferred a claim petition under Section 166 of the Act.
3. The learned Tribunal, after considering the evidence before it, came to the conclusion that the claimant suffered grievous injuries on account of the negligence of the driver of the offending vehicle. Taking into account that even though the claimant suffered 47.6% disability in the lower left limb but was still able to perform his regular duties, the learned Tribunal, while awarding compensation of Rs. 10,60,000/- along with interest @ 9% per annum, did not award any compensation towards loss of earning capacity. The compensation comprised of amounts under the following pecuniary as well as non-pecuniary heads:-
10.
11. Pecuniary Loss:
(i) Expenditure on treatment 3,42,754/-
(ii) Expenditure on conveyance 25,000/-
(iii) Expenditure on special diet 15,000/-
(iv) Cost of nursing/attendant 10,000/-
(v) Loss of earning capacity 0
(vi) Loss of income 67,088/-
(vii) Any other loss which may require any special treatment or aid to the injured for the rest of his life NA
12. Non-Pecuniary Loss
(i) Compensation for mental and physical shock
1,50,000/-
(ii) Pain and suffering 50,000/-
(iii) Loss of amenities of life 50,000/-
(iv) Disfiguration 1,50,000/-
(v) Loss of marriage prospects NA
(vi) Loss of earning, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc., 2,00,000/-
(vii) Less contributory negligence NA
13. Disability resulting in loss of earning capacity
(i) Percentage of disability assessed and nature of disability as permanent or temporary
(ii) Loss of amenities or loss of expectation of life span on account of disability
(iii) Percentage of loss of earning capacity in relation to disability
(iv) Loss of future income(income x% Earning Capacity X
14. Total Compensation(Rounded off) Rs.10,60,000/-
15. Interest Awarded 9%
16. Interest amount upto the date of award Rs.3,42,111/- 3 years 07 months 01 days
17. Total amount including interest Rs.14,02,111/-
4. Being aggrieved, the appellant has preferred the present appeal.
5. In support of the appeal, Mr. Shadab Khan, learned counsel for the appellant has made three submissions. The first and foremost being that the learned Tribunal failed to appreciate that there was no negligence on the part of the driver of the bus and the accident took place only on account of negligence on the part of the claimant, who was trying to board a moving bus and in the process of running to catch the same, could not control himself and fell down thereby sustaining grievous injuries. He, therefore, contends that once the injuries suffered by the claimant were on account of his own negligence, the appellant’s driver could not be held guilty of negligence, which is a pre-condition for grant of any compensation.
6. He next submits that the compensation awarded towards pain and suffering, loss of amenities, disfiguration and mental and physical shock was also on the higher side. He finally contends that the grant of interest @9% per annum was excessive and therefore prays that the compensation under the non-pecuniary heads as also the rate of interest be suitably reduced.
7. Per contra, Mr. RCS Bhadoria, learned counsel for the claimant supports the impugned award by contending that once the appellant had itself terminated the services of the driver on the ground of negligence after holding a departmental inquiry against him and that too, when he was found to be holding a forged driving license, the appellant cannot be permitted to contend that there was no negligence on his part. He further submits that taking into account that the respondent no.1 is suffering from 47.6% permanent disability and has been disfigured for life, the compensation under the non-pecuniary heads, including compensation towards pain and suffering, loss of amenities, disfiguration are infact, on the lower side. Furthermore, the grant of interest @ 9% per annum is in consonance with the prevailing bank rate and is therefore, reasonable. He, therefore, prays that the appeal be dismissed.
8. In order to appreciate the rival submissions of the parties, it would be apposite to first refer to the findings of the learned Tribunal qua the appellant’s plea that there was no negligence on the part of the driver. Reference may therefore be made to para 9 of the impugned award, which reads as under-:
9. It may also be relevant to note hereinbelow, the relevant extract of the cross-examination of respondent no.2, the driver of the offending bus: My Service was termination by UP Roadways Transport Corporation due to the said accident. I was having a driving license. I was working as driver in UP Roadways on contract basis. On the date of accident I was driving the offending bus. In the said accident petitioner present in the court sustained injury. The accident had taken place at Ring Road near Rajghar. After the accident I took the injured to the hospital. I was arrested by the Police and police also seized the bus. I am facing the criminal trial. It is wrong to suggest that police arrested me as accident had and negligence driving. It is wrong to suggest that was driving the bus at fast speed.
10. In the light of this specific admission by the driver about his services having been terminated on account of the accident as also the fact that during the cross examination of the claimant, no such suggestion was put to him that he had tried to board the moving bus, I see no reason to interfere with the findings of the learned Tribunal that the accident took place on account of the negligence of the driver of the bus. Once it is an admitted position that the services of the driver have been terminated by the appellant itself on the ground of negligence, after holding a departmental inquiry, the appellant cannot now be permitted to urge that there was no negligence on the part of the driver of the offending vehicle. Infact, it is noteworthy that the appellant has also not denied that the driving license of the driver was forged. The appellant’s plea that the accident took place on account of the negligence on the part of the claimant, is therefore, rejected.
11. I have also considered the submissions of the learned counsel for the appellant regarding the compensation awarded under the non-pecuniary heads being excessive, but find no merit in the same. Even though, the respondent no.1/claimant is still continuing in his erstwhile job, the fact remains that he continues to suffer from 47.6% permanent disability and remained under treatment for eight months. In these circumstances, the compensation granted towards the non-pecuniary heads cannot be said to be excessive in any manner.
12. I have also considered the appellant’s plea regarding the rate of interest but taking into account that the accident took place in the year 2014 when the bank rate of interest was much higher, I do not find any reason to interfere even with the award of interest.
13. For the aforesaid reasons, I find no merit in the appeal, which along with all pending applications, is accordingly dismissed.
JUDGE MARCH 3, 2023