UP State Road Transport Corporation v. Chhoti Devi @ Poonam Devi

1. The present appeal has been filed under Section 173 of the Motor Vehicle Act, 1988 against the award dated 28.01.2020 with the following prayers:- “(A) Set aside the judgment and award dated 28.01.2020 passed by the Motor Accident Claims Tribunal Karkardooma Court, Delhi, In Motor Accident Claim Petition No. 246/2019 (Smt.Chhoti Devi & Anr. Vs. Jai Kumar Kaushik & Anr.); and (B) Any other and further order which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”“”

2. In brief, the facts of the case are that Vivek Kumar Chaudhary, died due to a motor accident which happened on 12.10.2016 at about 11:25 p.m., near Ghazipur flyover, Delhi.

3. Persuant to this accident, an FIR No.441/2016, u/s 279/304A IPC, was registered at PS Ghazipur. As per FIR, at the relevant time, a U.P. roadways bus bearing registration no.UP-15-BT-4639 (offending vehicle) being driven at fast speed and in a negligent manner towards Anand Vihar and hit the scooty bearing registration No. DL-5SBY-7495 being driven by Vivek Kumar Chaudhary, due to which the scooty rider got injured and scooty got damaged. The bus driver was apprehended at the spot.

4. I have heard the learned counsel for the appellant as well as learned counsel appearing on behalf of respondent no. 1 to 2 and have perused the record.

5. It is submitted by learned counsel for the appellant that learned Tribunal has failed to take into account the negligence on the part of the deceased who was also responsible for the said accident. It is further submitted that learned Tribunal ignored the fact that the doctor who did the postmortem had opined that there was smell of alcohol in the stomach contents of the deceased. It is further submitted that due to influence of alcohol, the deceased lost control over his scooty and first hit the divider then fell down on the road and came into contact with rear wheel of the bus. It is further submitted that the manner in which the accident took place itself proves that bus driver was not negligent in causing the accident. It is further submitted by learned counsel for the appellant that learned Tribunal has erred in granting compensation towards the future prospects. It is further submitted that Ex-PW3/B i.e salary certificate shows that the amount of Rs. 1000/- is towards travelling allowance which should be reduced in calculating the compensation amount as it is not a part of salary. It is further submitted that interest awarded by the learned Tribunal is on the higher side i.e 9% instead of 6%. In support of his contentions, learned counsel for the appellant has placed reliance on following judgments:-  National Assurance Co. Ltd. vs. Devki and Ors., MACA NO. 165/2013.  Oriental Insurance Co. Ltd. vs. Meena Variyal, 2007 (5) SCC 428.  National Insurance Co. Ltd. vs. Pranay Sethi & ors., 2017 (16) SCC

680.  S. Naryanamma & Ors. vs. Secretary to Govt. of India, II (2002) ACC 582.  Sri Benson George vs. Reliance General Insurance Co. Ltd.& Anr.

 Anthony vs. Karnataka State Road Transport Corporation, (2020) 7 SCC 161.

6. On the other hand, it is submitted by learned counsel for the respondent no. 1 & 2 that the bus driver was driving the bus in rash and negligent manner which is evident from the mechanical inspection report of the bus as there were dents/scratches on front portion of the bus. It is further submitted that the learned Tribunal has considered the doctor‟s opinion in respect of the smell of alcohol in stomach content, she further submitted that as per the various judgment laid down by the Hon‟ble Supreme Court, the smell in itself is not sufficient to draw an inference that the deceased was under the influence of alcohol. It is further submitted that deceased was working as a Reporter in Sudershan News and PW-3 also deposed that deceased was working as an Associate Producer since 08.03.2014 and was drawing salary of Rs. 16,500/- p.m. It is further submitted that learned Tribunal has rightly taken the future prospects as 50%, however, respondent no. 1 and 2 both are entitled for the enhanced compensation under the head of loss of consortium of Rs. 40,000/- each but the learned Tribunal had granted only Rs. 40,000/- in total and it is prayed that the loss of consortium be enhanced from Rs.40,000/- to Rs.40,000/- each. It is further submitted that learned Tribunal has not granted the compensations under the head of Loss of Estate and the head of Loss of Funeral Expenses as per the precedent set by the Hon‟ble Supreme Court. In support of her contentions, learned counsel for the respondent no. 1 and 2 has placed reliance on following judgments:-  National Insurance Co. Ltd. vs. Pranay Sethi & ors., 2017 (16) SCC

680.  United India Insurance Company Limited V Satinder Kaur Alias Satwinder Kaur and Ors. {Civil appeal no.2705-2706 of 2020, arising out of SLP (Civil) No. 28548 of 2014 and SLP (Civil) NO. 12520 of 2015}

7. In the instant case, a bare perusal of the impugned Award dated 28.01.2020 shows that the learned Tribunal has dealt with each and every issue in great detail. As far as the contention of the learned counsel for the appellant with regard to doctor‟s opinion of having alcohol in stomach contents is concerned, the learned Tribunal in the impugned award has observed as follows:-

I have perused the above observations made by the learned Tribunal and this Court is of the opinion that the learned Tribunal has rightly concluded that the smell in itself is not sufficient to draw an inference that scooty rider was under the influence of liquor.

8. Admittedly, at the time of the alleged incident deceased was driving scooty bearing no. DL-5SBY-7495. Both the parties, during the trial, have produced the witnesses in support of their respective case and learned Tribunal has thoroughly analysed the statements of the witnesses. It is pertinent to note that FIR is illustrative of the fact that the impact of accident was so hard that the rider of the scooty was declared “brought dead” by the hospital.

9. In the case of K. Suresh v. New India Assurance Co. Ltd. reported in (2012) 12 SCC 274, the Hon‟ble Supreme Court of India while observing that Tribunal and Courts have to be broad based in computing compensation has held as under:- “10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad-based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion is of “just compensation” should be in heard.

10. Looking into the entire circumstances, this Court is of the opinion that quantum of compensation granted by learned Tribunal is just and proper and has been granted in terms of assertions made by Hon‟ble Supreme Court in various judicial precedents.