UP State Road Transport Corp. v. Shakuntla Gautam

1. ■ Dr. Chhaya Gautam, an unmarriedperson, a qualified dentist holding the degree of bachelor of dental surgery (BDS) working as lecturer in department of Conservative Dentistry, DJ College of Dental Sciences & Research, Modi Nagar, UP, suffered injuries in a motor vehicular accident that had occurred at about 4.15 p.m. on 15.3.2010 at Ghugna Mor. A motor MAC'AppNOS..1210/2012&I26I/20I[2]. ^ /.•/ y VH cycle bearing No,UP 81? 4999(motorcycle)on which she was riding was involved'in a collision against a bus bearing registration No.UP MAE9360 (the offending vehicle)ofUP State Road Transport Corporation(UPSRTC) (appellantin MAC AppealNo.1261/2012)and died as a consequence. Her parents(appellants in MAC AppealNo.1210/2012)brought a claim,petition under Sections 166& 140 ofMotor Vehicles Act,1988(MY Act)before the motor accident elaims tribunal(the tribunal)on 19.5.2010 whereupon it was' registered as suitNo.348/2011(2010). According to the case set up by the claimants, the accident hadsodUurrei^due to;rash/pegligent driving of the' offending vehicle by^si^^dijer4l^inder Kumir (Erst'rgspondent in MAC Appeal No. 121O/20l^and,therefore he and UPSi^C'were jointly and severally liable. ■ U:

2. The tribunal, held inquiry in the course of which the allegations of raslVnegligent driving of the offending vehicle were denie| and it was instead claimed thatthe accident'had occjafrp due to fault oiT:fhe part ofthe motorcycle rider.%he tribunal rejectedythi#id:;pl|al^ found the driver of the offending vehicleresponsible, it assessed fhelbss ofdependency in the sum of^11,70,000/-anMdedT[5],000/-^to^rdsfuneralexpenses,loss of consortium and loss' of love 8t affection to award T 11,85,000/- as compensation with interest@9%perannum,directing theUPSRTC andthe driver to pay.

3. By their appeal, the claimants contend that the capacity of the deceased to earn more in future should have been considered and,thus,the award under the heads of loss of dependency is inadequate. They also submitthatnon-pecuniary damages awarded bythetribunal are unduly low. MACApp Nos..I 210/2012 &I26J/2012 Page 2 of[6] i,

I. 1. '/ '/ 4. Per contra, the UPSRTC in its appeal,, submits that since the motorcycle rider was also equally responsible,he should have been added as a party and the liability should have been apportioned. It is the submission ofthe UPSRTC thatthe salary at?10,000/- has been wrongly assumed to be the earnings.

5. The tribunal assessed the loss ofdependency thus: "79. As regards the quantum ofcompensation PWl stated that deceased was Dentist and she was working as a Lecturer in D. J. Dental Collegeand Researehr;:md,wcis getting salaiy off 10,000/- per month,Pl/esidesgthis' she was. also earning f 20,000/-.from private practice and in dice course oftime she would have bedn earned more:than ^80,00b/fper month. She also statedLthatjhe decemejftfmsfeontrW^^ her entire income for' household expefsepfShffurther stated that the deceased hadpbn^pleted hen0ental'0oursefrom D.J. College ofDentalSciences and ResMjlfh-'oM-f9Lacs were spent on her tuition fee. Besides thif khflpetitioners ivere paying f 20,000/-per monthfor boardinganff20,000/- on her tuition jee. Shefarther stated thdt''d/tpidLsiim off 12,00,000/- /f Twelve Lacs) were/spenton education.Sfdeceased. Sheproved the educational'q.udiificdtions'vf-deceased i.e.ofEDS exammatidrtlof Dr., Bhirn M University, Agra as Ex. PWl/fiofPWl/9ytkeyprewisional certificate of Kendriya Vidayalayd'fXIlfstandard)):.certifying that she had passedseniorsecondary certificate examination ofXIIstandard as Ex.PWl/10, the senior school examination certificate EX. PWl/11, secondary school examination certificate Ex.PWl/12, certificate of Delhi Dental Council Ex. PWl/13, All India Secondary School examination certificate Ex. PWl/14 and the receipts offee. Thepetitioners also proved the salary certificate of deceased by examining Sr. Assistant G. M. Legal D. J. College of Dental Science and Research who stated that deceased was their permanent employee andproved the salary certificate Ex. PW3/2 and appointment letterEx.PWI/26. PWl further stated that the deceased was earning f20,000/rfrom MACApp Nos.-I 210/2012 &1261/2012 Page 3of[6] i ■ I;•. privatepractice andin due course oftimeshe wouldhave been earned more than ^80,000/-per month. However noproofof earning byprivatepractice has beenfiled Thus in view ofthe testimony ofPW-1 that deceased was working as aLecturer in L). J. DentalCollege andResearch andwasgettingsalary off 10,000/- per month and as no evidence to the contrary was broughton record byrespondentsto dispute thesame.However there is no cogent proof of earning ^20,000/- by private practice. ThusIholdthat the deceased was earning T10,000/per month.

20. TheHon'bleSupreme Cou:Hin2he^^^^ ofSarla Verma Vs. DTC(2009)6SCCpf1^.sfitedthatfh^p^^ relatingto addition to income Ipwcmdsftitttre prospects,'ftavas hold that wherever the deceased waspelfnfHO years/ had a permanentjob50%^hoipfp^ffftowardsfu/imeprospects. Thus, top addedf^at^^w)e'prospectsHidecease was around 2// years cindppfipfifhanentjob. Afterladding 50% the/deemed income'/0dMaied would have been /r 10,000/-i50%)- ri[5],000/-/fjj■; ■: ^ ^ ^ 5 "C ^ 6U ' ' '

21. As deceasedwas^^000^ be deductedfowords personalanddvmg,efppes:^he''deceasedfmdthemultiplier IS applied withfeferende iaffifage ofmotheruffdeceased in view ofJudgnienkpSarlaHerma Vs,DTC SCO 121 ■After deduction dfflpp):^^ deceasedto hisfamilywvfphayeHeeni^7;%0 Accordingto the ration card on the date ^dLcident the age of mother of deceasedwas 50years, thus, the multiplier applicable is of13. e loss ofdependency is thus computedto be as ^7500/- x 12 X 13 = ri[1],70,000/"-.

6. IntheconsideredviewofthisCourt,theapproachofthe tribunalto the issue caimot be faulted. The salary certificate clearly showed the total emoluments to be in the sum of ? 10,000/- per month. The element of conveyanceallowance,inthegivenfacts andcircumstances,has tobetreated MACAppNos..! 210/2012&I261/20I[2] Page 4 of[6] "/. ly as part ofthe earnings since it correspondingly saves the person in question the expenditure he would otherwise be incurring.

7. The assessment ofloss ofdependency has to be made on the basis of proof of his income at the time ofthe death. Jhe tribunal by adding the future prospects to the extent of50% has taken pare ofthe capacity ofthe deceased to earn more in future.

8. There is, however, merit in the grievance ofthe claimant with regard to the non-pecuniary heads ofdamages.Following the view taken in Rajesh & Ors. V. Rajbir Singh & Ors^, g.O\3) 9 SCC 54 and Shashikala V. Gangalakshmamma(20i[5])v>9jSGC450,compensation in;the sum of^1 laldi on account oflove^andjiffection and ^25,000/- eacikywmds loss of estate and funeral expensefare added. It niay be observed herethat there was no occasion for loss of consortium to be considered by the tribunal, as the deceased was abachelor. In above yiew^the award would stand increased by ?1,35,000/-. Needlessto add,it/shMfyat^ aslevied bythetribunal. 9.. This Courtdoes nbttfind'mqri|4nithdple with regard to the negligence of the,mofqfcycle-rider. For p^ the claim of the parents ofthe deceased,theJilllon rideryasythhid^ Even ifit wereto be assumed that the motorcycle rider was negligentto some extent, it would mean a case ofcomposite negligence. It is the choice and prerogative ofthe claimants to proceed against either ofthe two drivers and the owner ofthe respective vehicles.

10. Thus, the award is modified as above. In the given facts and circumstances, it is directed that the effect ofincrease shall be payable only to the mother(first appellant in MAC Appeal No.1210/2012). t^ACApp Nos.J 210/2012&1261/2012 Page5of[6] 'r

11. By order dated 14.12.2012 in MAC Appeal No. 1261/2012, the UPSRTC was directedto paythe awarded amountwith proportionate interest with the tribunal whereupon the execution was stayed. By order dated 6.5.2013,the direction was modified and instead the UPSRTC was directed to depositthe amountwith the Registrar General ofthis Courtand 50% was allowed to be released to the claimants with direction for the balance to be kept in fixed deposit receipt with UCO Banlc, Delhi High Court Branch, initiallyfor aperiod ofsix monthsto berenewed periodically.^TheRegistrar General shall arrange fbr..a^43aimce;talso to.Be-released in terms of the impugnedjudgment,mhSiffd"as^ si'alfdepositthe amount payable in terms./of,fBe"enhancement with The Uibunal/within 30 days whereupon itshallbefeleasedin accordance withtheabdyedirections.

12. The statutory deposit,ifmade,shallberefunded. z 13 ^Both appdals are disposed ofin'ai^oyeTerms.:^— ^ MARCH 17,2016 nk MACApp Ngs.J 210/2012&1261/2012 Page 6of[6]