- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- (1) CIVIL MISC. APPEAL No. 426 of 1994 R.S.R.T.C. V/S SMT. ASHA NANDWANA & ORS. (2) CIV.CROS.OBJ.MISCAPP No. 27 of 2001 SMT. ASHA NANDWANA & ORS V/S DEVI SINGH & ORS Mr. VINIT & Mr.V.K. MATHUR, for the appellant, RSRTC. Mr.RAVI BHANSALI, Mr.DHANESH SARASWAT, Mr.JAGDISH VYAS, for the respondent Date of Order : 21.1.2008 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- Both these appeals and cross-objection have been filed by the Corporation and the claimants. The Corporation seeks to challenge the quantum to have it reduced, while by cross-objection, the claimants seek enhancement of the quantum. The facts of the case are, that on 28.6.87, the deceased Purushottam Dayal was travelling in the bus from Indore to Bhilwara, sitting in the rear side, on seat No.30 of the bus of the appellant-Corporation, while so travelling in the bus, near Hamirgarh, between Chittorgarh - 2 - and Bhilwara, the delinquent truck no.6713 came from the opposite side, and dashed against the rear part of the bus, with great force. On account of the impact, the deceased was thrown outside, and got sandwiched, and also got crushed between the two vehicles. It was pleaded, that the deceased was working as Scientist in M/s.Bhabha Research Centre, and was recently transferred to Indore, the monthly salary of the deceased was Rs.3700/-, with bright chances of future promotions, and by the time of his retirement, he would have reached the level of Rs.10,000/- per month. It was also pleaded, that at that time, his wife, claimant Asha was pregnant, who delivered a male child on 4.10.87, who is the claimant No.2. Then claiming the loss of income during service, post retiral earnings, and other amounts, a total amount of Rs.18,50,000/-, has been claimed. The claimants impleaded the Corporation, its driver, so also the truck owner, truck driver, and the insurer of the truck. Both the drivers and owners of the vehicles in their pleadings have passed on the buck to the other one, by claiming the accident to be not out come of their respective negligence. It may be noticed here, that in the written-statement filed on behalf of the Corporation, which is signed by the Administrative Officer, being the officer in charge, a plea has been taken in para 14, that since the deceased had kept his hand and head protruding outside the window, and the truck hit the bus - 3 - with a severe force, therefore, the accident occurred, which was out come of negligence of deceased himself, and therefore, the Corporation is not liable. Likewise, in para 15, again it is pleaded, that the truck driver came negligently, lost balance, and grazed against the bus in the driver-side, with the result, that the deceased, who had protruded his limbs outside, sustained injuries, and died, and on account of impact of window, he was thrown out, and was run over by the truck. The learned Tribunal deciding issue No.1 found, after appreciating the evidence of the driver of the bus, who was examined on behalf of the Corporation, so also the site plan etc., and concluded, that the dammar portion of the road was 22 feet wide, while admittedly on the right side of the bus only 5 to 6 feet space was left, which clearly shows, that the bus driver was driving in amidst the road. Then it was found, that the statement of driver, about bus having not sustained any damage cannot be believed. Likewise, the truck driver was also found negligent, and thus, both the drivers were found to be negligent. It was contended by learned counsel for the appellant, that the learned Tribunal has not considered the aspect of the negligence of the deceased, in his keeping his hand and head outside the bus, on account of which only - 4 - he sustained injuries, otherwise he would not have died. In this regard, it may be observed, that though in para 14 and 15, the plea has been taken by the Corporation, as noticed above, but then, during trial, no evidence whatever has been led on the side of the Corporation, to substantiate the pleadings taken in the reply. On the other hand, it was specifically put to driver Devi Singh, and all that he has deposed is, to be not aware, as to how the deceased was sitting in the bus. Likewise, nothing to this effect has been suggested to the claimants' witnesses either. Thus, the matter rests in the realm of pleading only. In that view of the matter, it cannot be believed, that the deceased was travelling by protruding his hand and head outside the bus. Learned counsel, wanted me to believe the theory by referring to post mortem report, which shows, that there was a dismemberment of the right hand of the deceased. Of course, in the post mortem report, there is a dismemberment of the right hand of the deceased, but then, that by itself is not enough to conclude, that the dismemberment was result of the hand, protruding out. On the other hand, the injuries on the head, as found in the post mortem report, are practically all on the left side of the head, which clearly negatives the theory, of deceased having his head protruded outside the window. In that view of the matter, the contention raised on behalf of the appellant, about the deceased having contributed in the accident, cannot be believed. - 5 - Since that is the only ground advanced in the appeal of the Corporation, the appeal of the Corporation fails. Now I take up the cross-objection raised on behalf of the claimants. It is contended that the learned trial Court should have taken into consideration the future prospects of the deceased, and the calculation of pecuniary loss should have been arrived at, by taking that into account, more so, when the deceased was just 28 years' young man, while the widow has just married, and her life has been ruined, and the deceased was having a very bright future ahead, as he was having a permanent employment in Bhabha Research Centre. Then the claimants have also filed an application under Order 41 Rule 27 CPC on 13.11.2006, seeking to bring on record the salary details, being received by Shri Praveen Choudhary, to show, that presently he is receiving the basic salary of Rs.18,650/-, with a total take home packet of Rs.24,278/-. On this basis, it was sought to be contended, that this shows the future prospects of the deceased, and the pecuniary loss is required to be assessed accordingly. I have considered the submissions. The contents of the claim petitions have already - 6 - been quoted above, wherein it has been pleaded, that the deceased had a bright future, and would have reached to a level of Rs.10,000/- per month. As against this, coming to the evidence, all that has been deposed by the claimant, Asha, the wife of the deceased is, that had the deceased not died, there were very bright chances of his having reached to highest post, that is the only evidence led on the side of the claimants. It would suffice to say, that nothing prevented the claimants from producing on record the promotion channel of the deceased, and respective pay scales of the respective channels, even as were applicable at the time of death, which would have provided some material to the learned trial Court, and would have rendered some assistance to this Court also, in considering the aspect of future prospects, in the matter of assessment of compensation. That having not been done, the Court was left only to conjectures, for which also, there was nothing to conjecture. So far as the application under Order 41 Rule 27 is concerned, the pay slips sought to be produced is of the year 2006, while, as noticed above, the accident occurred in the year 1987, and even by this application, the claimants have not shown, as to how this incumbent Praveen Choudhary earned promotions, or earned higher pay scales, within what time frame, and with what subsequent academic, or departmental, or professional achievements. In absence of all that, the mere fact, that once upon a time, the two persons were working together, on the same post, - 7 - and now, after practically 20 years, other person is getting a particular salary, can hardly provide any ground to assume, that the deceased would also have reached to this very level. Ought we know, the deceased might have legged behind, or might even have excelled him. Therefore, the document sought to be produced by application under Order 41 Rule 27 is not of any assistance to the claimants. However, the fact does remain, even without any material, that looking to the job in which the deceased was employed, he must have earned rise in the career. However at the same time, the multiplier employed by learned trial Court being 22, in view of the recent trend of judgments of Hon'ble the Supreme Court, is grossly excessive, and looking to the age of the deceased, the maximum appropriate multiplier would be, only 14. However, if the dependency assessed, is to be calculated on the basis of this multiplier, the compensation under the head of loss of income comes to Rs.3,36,000/- only, while the learned Tribunal has assessed the dependency at Rs.5,28,000/-. Since on this ground, the quantum has not been challenged by the Corporation, this difference amount can very liberally be accounted for, for the future prospects of the income of the deceased, with the result, that the pecuniary loss, assessed by the learned trial Court, does not require any interference, to affect any upward revision thereof. - 8 - The net result is, that the cross-objection also fails. Thus, the appeal and the cross-objection are both dismissed. The parties shall bear their own costs. ( N P GUPTA ),J. /tarun/