IN THE HIGH COURT OF DELHI AT NEW DELHI MAC APP No. 319/2007 UPSRTC Judgment reserved on: February 13, ,2008 Judgment delivered on: d 8 - ::t - , 2008 ...... Appellant. Through: Mr. Rakesh Sachdeva,Adv. versus Akash Kumar & Ors ..... Respondent Through: Mr. O.P.Mannie for respondent. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. 3. To be referred to Reporter or not? Whether the judgment should be reported in the Digest? KAILASH GAMBHIR, I. For orders, see MAC APP No. 310/2007. ,2008 KAILASH GAMBHIR, J c/1- !lrt'19/!t £ Signing Date:26.07.2024 17:32:56 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified J[N THE l!IGI-I COURT OJF DELHI AT NEW DJEJLHJ[ MAC APP No. 310/2007 Judg-ment reserved on: February 13, ,2008 Judgment delivered qn: July 28, 2008 UPSRC ...... Appellant. Through: Mr. Rakesh Sachdeva,Adv. versus Munni Devi ..... Respondent Throu.gh: Mr. O.P.Mannie for respo.ndent. CORAM: I-ION.BLE JUSTICE lKAILASH GAMBHIR 1. ') "''· 3. . Whether the Reporters of local papers n1.ay ,---,! be allowed to see the judgment? . Whether the judgment should be reported } in the Digest? . To be referred to Reporter or not? I<AJJLASH GAMBHIRI J. Arising ou_t of the san1.e award, the appellants have filed eight separate appeals feeling aggrieved with the findings :,of the Tribunal primarily on the aspect of while three sepkrate cross appeals have been filed by the clain1.ants claiining enhancement in MAC APP No. 310/2007 Page 1 of 2.7 <(') . ,:/ ; - l :· .... -t I_) compensation amount over and above the amount awarded by the Tribunal. By way of this common order, eight appeals bearing MAC APP Nos. 309/2007, 310/2007, 311/2007, 312/2007, 313/2007, 314/2007, 319/2007 and 321/2007 filed by the appellant and cross appeals bearing MAC APP No.1077/2006, MAC APP No.1078-81/2006 and MAC APP No. 1082-86/2006, shall be disposed of. Brief facts which are common in these appeals are as under: On 9.2.1999 at about 7.00 P.M. 8 persons vvere going in a maruti car bearing registration no. DL 8CA 0628 from Delhi to FerozabacL When they reached near village Osani - -J Bypass, a UP Roadways bus bearing registration no. UHK 8299 came at a very fast speed from the direction of Ferozabad being driven in a rash and negligent manner on the wrong side of the road and hit the 1naruti car which resulted in death of three persons and injury to five persons. MAC APP No. 310/2007 Page 2 of 27 f 1 IJ & I MAC APP Nos. 309/2007, 310/2007, 311/2007, 312/2007, 313/2007_, 314/2007_, 319/2007. 321/2007: Mr. Rakesh Sachdeva, counsel for the appellant strongly contended that learned Tribunal has wrongly attributed negligence on the part of the driver of the appellant's bus who was driving the bus on its left hand side and made his best efforts to avert the accident by even entering the extre1ne left kuccha portion, but still the Maruti Car which was being driven in a most rash and negligent manner while overtaking a truck, got collided with the bus and slipped under the said bus. The contention of the learned counsel for the appellant is that the driver of the bus was driving the bus at a normal speed and was on the correct side of the road and it was the driver of the Maruti Car who under the influence of liquor, came on the wrong side of the road and in the process of overtaking a vehicle, proceeded ahead and came on the wrong side of the road and struck against the bus. The driver of the bus could not anticipate that the driver of the Maruti Car would overtake the vehicle but still MAC APP No. 310/2007 Page 3 of 27 +··-· to save the Maruti Car, the driver of the bus even entered the kuchcha portion on his left side but still the Maruti Car slipped under the bus itself. To substantiate his arguments, learned counsel for the appellant contended that the Maruti. Car was overloaded with three persons sitting in the front seats while five at the rear seat. The contention of the learned counsel for the appellant is that even an expert driver can loose control of the car in such a situation as \!\lith two persons sitting on the left side of the driver ·would restrict easy n1aneuvering of brakes/gears. Counsel for the appellant further urged that injured/ claimants have given contradictory statements before the learned MACT while the bus conductor produced by the appellant gave correct version of the accident, but still the Tribunal believed the version as given by the claimants while discarding and disbelieving the version of the appellant. Counsel for the appellant also took serious objection to the non-ilnpleadment of driver/owner and Insurer of the Maruti Car although, the same were necessary parties in the claim petition. Counsel MAC APP No. 310/2007 Page 4 of 27 d I t I I I I II II II II! I I .. ' .. - for the appellant also impinged the award on the ground that at least the Tribunal ought to have held both the vehicles liable for contributory negligence for causing the said accident instead of holding the bus of the appellant solely liable for causing the said accident. The contention of the counsel for the appellant is that ln a case of 'Head On Collusioii' between two vehicles', rashness and negligence could not have been attributed on the part of one vehicle alone but both the drivers of the vehicles should have been held responsible to have equally contributed to that accident. Counsel for the appellant also contended that the respondents/claimants failed to prove the site plan from the criminal records and had the same been proved it would have certainly given the exact picture -l as to how the accident had occurred. In support of his arguments, counsel for the appellant placed reliance on the following judgments: 1) 2006 AC] 1058 (SC) Bijoy I<umar Dugat Vs. Biclyadhar Du tta & Ors. MAC APP No. 310/2007 Page 5 of27 .. j ,' t ' . ..:...=:'-"=-:':'co ·---. ____ -- -'--. 2) 2006 (3) TAC 11 (Born) Shivaji Waman Eodage & Ors. Vs. Chandrapati Ishwar Singh Dahiya Sr. Ors. - 3) 2006 (3) TAC 177(P&H); C.].Singh Vs. Gur Rattan Pal Singh & Anr. · l\1r. 0 .P. Mannie, learned counsel for the respondent, on the other hand, vehemently refuted the submissions made by the counsel for the appellant. Mr. Mannie submitted that the accident was solely caused due to rash and negligent driving of the bus driver of the appellant as the same was being driven on the wrong side of the road and had hit the Maruti Car coming from the opposite direction from the side of Delhi, at a very slow speed an.d on its proper left hand side. Counsel for the respondent further submitted that the claimants who suffered injuries in the said accident gave correct version of the said accident and their testimonies were duly supported by the documentary evidence produced from the crilninal court including the site plan. Counsel for the respondent further submitted that the driver of the offending bus alone was challaned by the MAC APP No. 310/2007 Page 6 of27 ,, Police for his rash and negligent driving. Counsel for the respondent further submitted that even if there are some contradictions 1.n the state1nents of the claimants about the posjtion of the vehicle prior to the accident, then, the same 1nay not be of much importance as the main question is the positioning of the vehicles at the time of occurrence of the accident .. In support of his argu1nents, learned counsel for the respondent placed reliance on the following judg1nents: 1) 1980 ACJ 435 SC, N.K. V.Bros.(P)Ltd. Vs. M. K.arumai Ammal & Ors. 2) 1991 SC 487 Basthi Kasim Saheb Vs.The Mysore State Road Transport Corp. & Ors. - 3) 1 (1994) ACC 504 (P&H), Girdhari -JLal Vs. Raclhey Shya1n & Ors. 4) 2.004 2 TAC 456(Mad)(DB);I<ottabomman Transport Corp. Ltd. Vs. Vellai Duraichi & Ors. Counsel for the respondent also disputed the applicability of the ratio of the judgment reported in Bijoy JK.umar Duggar (Supra) as in the said case, the collision MAC APP No. 310/2007 Page 7 of27 -'·-·-"··-- .. : .. . c.,-cr had occurred between the vehicles in the middle of the road. \Nhile in the facts of the present caseJ the offending bus came on the wrong side of the road and hit the lVIaruti Car. I have heard learned counsel for the parties at considerable length and perused the record. Perusal of the R\tvard shows that the Tribunal has threadbare taken into account the testimonies of the witnesses produced by the claimants as well as that of the appellant and thereafter, reac_hed to the conclusion that the driver of the appellant was solely negligent to cause the accident. -.1 PW4 Mr. Amit Kum?-r in his deposition categorically denied the suggestion given by the appellant that their car was on the wrong side of the road or the driver of car overtook the vehicle ahead of the car. PW5 Mr. Jitender also denied in his cross examination that there was any vehicle ahead of the car. But this witness in his cross examination stated that the car was in the middle of the road. Similarly, PW 6, Mr. Vikas @ MAC APP No. 310/2007 Page 8 of 27 ... t . .......... _.,._. ::..._.,. ___ ,___._ _... . .._ . - .... ·----- Vickky, iD- his cross examination also deposed that the Maruti Car was in the middle of the road. The said inconsistency ·w·hich crept into the deposition of the two witnesses, has been duly considered by the TribunaL and then arrived at a finding that the driver of the appellant's bus was responsible for causing the accident. Perusal of the award also amplifies that it is not the said inconsistency in the deposition of the two witnesses but the Tribunal also found evasive and contradictory stand taken by the appellant 'With regard to the facts leading to the accident. ln the written statement filed by the appellant, nowhere it has been stated that the Car was trying -J to overtake a truck which was ahead of ·that. But in the evidence the theory of truck was introduced. Similarly, nowhere in the written statement, the stand was taken that .the bus had entered the kuchcha portion on its left side after finding the speeding Maruti Car coming from the opposite direction after overtaking the alleged truck. The Tribunal also observed that the bus driver did not put any MAC APP No. 310/2007 Page 9 of 27 - ----- --- .. ........ _, ..... _- • _ __:._, _______ .... _. ; i ;: _, .1_....._ ... : •• •_1_ .. - effort to avert the accident even after finding a IV1aruti Car coining from the opposite direction. In the written state1nent the appellant took the stand that the driver had stopped the bus after entering the . . kachha portion. It is also stated that the driver could not anticipate that the Maruti Car vvould overtake. There is yet another glaring error con1mitted by the appellant in not producing the driver of the offending bus in the evidence. No explanation has come forth as to why the evidence of the driver who· was the only material evidence was withheld by the appellant. The evidence of the conductor as adduced by the appellant cannot be considered to be the substitute of the evidence of the driver who could be the best evidence to depose about the exact facts and circumstances confronted by hirn. at the time of the occurrence of the accident. The adverse inference thus has to be drawn against the appellant for non production of such a material witness. If the version that the offending bus of the appellant entered into the kuchcha portion on the left side, is believed as correct, then certainly, the said accident killing three persons and injuring five persons MAC APP No. 310/2007 Page 10 of 27 ·· r. i i I --------- ,., _J .... ·---- . - c • •• could have been easily avoided. It is no doubt true that in cases where head 'on collision between two vehicles is established on record, then responsibility ordinarily can be fastened on both the being contributory negligent. But, then, in such a case, a clear case of head 'on collision between two vehicles' coming just opposite to each other in aln1.ost middle of the road, has to be established on record. In case of Bijoy :U:<.u:mar Duggar (Supra) .. the facts were established before the Tribunal that drivers of both. the vehicles involved in the accident were rash and negligent and keeping in view the facts as proved in the said case, the Apex Court upheld the findings of the Tribunal holding both the vehicles equally responsible in contributing to the accident. It is also matter of record--that only the driver of the offending bus was challaned by the police for rash and negligent driving under Section 279/337/338/304-A, IPC while no such case was registered against the driver of the Maruti Car. No copy of .. the site plan was proved by either of the parties, although the same would have thrown enough light· to determine the exact facts leading to the occurrence of the accident. The MAC APP No. 310/2007 Page l1 of 27 ' t •• ·---- appellant could have also summoned the criminal court record to prove the site plan, had it been serious in proving the negligence on the part of the driver of the Maruti Car. Photocopy of the site plan of the criminal case has now been produced by the counsel for the respondent and perusal of the same does not shovv that the Maruti Car was in the middle of the road while the truck was on its left side. Be that as it may, in every case relating to head on collision there cannot be absolute rule that both the vehicles, which met with the accident, shall remain liable to the extent of 50:50. It is on the basis of the facts and circu1nstances of each case that the courts and tribunals have to decide about the negligence and the extent of such negligence of the vehicles involved. On the basis of the foregoing discussion, I do not find any negligence on the part of the driver of the Maruti Car and therefore, no interference is made in the award on this count. MAC APP No. 310/2007 Page 12 of 2.7 In the light of the above discussion; I find that there is no infirmity in the impugned award; and therefore; this Court is not persuaded to hold that the driver of the Maruti Car was equally negligent in causing the said accident. The contention raised by the counsel for the appellant is repelled. No other ground of challenge has been made by . the appellant during the course of the arguments as the counsel for the appellant had confined his arguments to challenge the impugned award on the aspect of negligence and contributory negligence only. In view of the above, I do not find that there is any merit in the present appeals filed by the appellant UPSRTC and the same are hereby dismissed. Now I propose to deal with the three separate appeals filed by the claimants claiming enhancement in the compensation amount. MAC APP No. 1082-86/2006 In MAC APP No. 1082-86/2006, the compensation amount of Rs.3,3:;toOO/- with interest @6o/o p.a. has been awarded in favour of the claimants but MAC APP No. 310/2007 Page 13 of 27 feeling not satisfied with the said con1pensation amount, the appellants have preferred the present appeal. The appellants have primarily claimed enhancernent on the· ground that the Tribunal has not taken into consideration the grant of future increase in the wages although income of the deceased was assessed under the Minimum Wages Act. Enhancement has also been claimed on the ground of 1/3rd deduction of the income of the deceased towards his personal expenses which as per the appellant should have been 1/4th, 1ceeping in view the large family comprising of \Nidow of the deceased and· four children left by him. Enhancement is also claimed towards the inadequate con1.pensation amount granted towards the loss of love and affection, loss of consortium. The appellants have separately claimed further compe.nsation amount under the non pecuniary damages to a sum of Rs .1 lac towards the loss of services and Rs.25,000/- towards loss of estate. The interest has also been claimed @9o/o p.a., in place of interest granted by the Tribunal @6%) p. a. In support of the said enhancement, counsel for the appellant has placed reliance on the following judgments. MAC APP No. 310/2007 Page 14 of 27 t I I Jll I II • I I ht 1. MAC APP No.40/2004. & Cross objections /2004, dated 25.1.2007 2. 2002 ACJ 2076 (Del) (DB),Vishakha Devi & Ors. Vs. DTC & Anr. 3. 2007 ACJ 2123(SC), Mohinder ICaur & Ors. Vs. :Hira Nand Sindhi (Ghoriwala) & Anr. 4. 2007 (VI) AD (Delhi) 730, New India Assurance Co. Ltd. Vs. Nirn1.ala Devi & Ors. Per contra counsel for the respondent contended that the impugned award is just and fair and requires no interference by this Court. I have heard learned counsel for the parties. This court has already taken a view that wherever the ., income of the victim of the accident is considered under the Minimun1. Wages Act, then necessarily the increase shall also necessarily follow, based on the Minimum Wages Act itself. It has been noticed that the minimum wages get almost more than double within a span of 10 years period and therefore, accepting the contentions of the counsel for the appellant, the 1ninimum wages of Rs.2514/- MAC APP No. 310/2007 Page 15 of 27 . i ' _, · .. '' as taken into consideration by the Tribunal would have become double to a sum of Rs.5028/- and then taking the average of the sarri.e, the income of the deceased would come to Rs.3771. The deceased was survived by his widow and four children. Out of the four children one was minor at the time of the accident and therefore, I accept the contention of the counsel for the appellant that 1/4'" deduction would be appropriate to be deducted towards the personal expenses. The annual financial loss of the dependents would come to Rs.33,939/-. The deceased was 42. years old at the time of the accident as per .the age disclosed in the post. mortem report and therefore, it is apparent that age of the widow of the deceased would be below the said age only as per the Indian tradition. Considering the age of the widOw, I feel that the amount of compensation has not granted adequate towards loss of consortium. The same is raised fro1n Rs.lO,OOO/- to Rs.50,000/-. The deceased was survived by four children and therefore, the amount of compensation as granted by the Tribunal towards loss of love and affection is raised from Rs.lO,OOO/- to Rs.2.0,000/- . As far Page 16 of 27 MAC APP No. 310/2007 l l l 1 I J ·i 'j :j l as the contention pertaining to tile award of amount towards mental pain and sufferings caused to the appellants due to the sudden demise· of their only son and the loss of services, which were being rendered by the deceased to the appel!ancs is concerned, I do not feel inclined to award any amount as compensation towards the sanle as the same are not conventional heads of damages. Thus, no separate compensation can be granted towards the loss of services. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. The Interest is compensation for t forbearance or detention of money and that interest is awarded to a party only for being kept out of the 111oney, which ought to have been paid to him. Time ancf ag-ain the Hon'ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and takiFig in to consideration relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from ti111e to tinle and other economic factors. As regards the enhancement in the rate of interest is concerned, am MAC APP No. 310/2007 Page 17 of 27 ''. of the view that grants of 6% interest is just and fair and requires no interference. Rs. 10,000/- is awarded towards loss of estate as same is not awarded by the Tribunal. The co1npensation amount is thus enhanced from Rs.3,32,000/- to Rs.5,99,085/-. fhe differential arnount shall be paid with interest @7% p.a. by the UPSRTC to the appellants from the date of filing of the petition till realisation. The an1ount shall be paid in the MAC APP No.1082-86/2006 in the manner to be decided and apportioned by the Tribunal. MAC APP No.l.078-8JL/2006 In MAC APP No. 1078-81/2006, the compensation amount of Rs. 4,20,000/- with interest @ 6% p.a. has been • - --J awarded in favour of the claimants but feeling dissatisfied with the quantum of compensation, the appellants claimants preferred the present appeal. The appellants have primarily claimed enhancement on the ground that the Tribunal has not taken into consideration the grsult of future increase in the wages although income of the deceased was assessed under the Minimum Wages Act. Enhancement has also been claimed by wrongly deducting 1/3rd of the incorne MAC APP No. 310/2007 Page 18 of 27 ,../ I •· I ' ' ; " . ' 1 ·. -_IL J •, '! . ' 1 .I j I I 'I l .. I J .1 ·I l ! . i of the deceased towards his personal expenses which as per the appellant should have been l/4th keeping in view the large family comprising of widow of the deceased, aged parents and a daughter left by him. Enhancement is also claimed towards the inadequate compensation amount granted towards the loss of consortium. The counsel also claimed compensation towards loss of love & affection. The appellants have separately claimed further compensation amount under the non pecuniary damages to a sum of Rs.l lac towards the loss of services and Rs.25,000/- towards loss .of estate. The interest has also been claimed @9°/o p.a., in place of interest granted by the Tribunal @6(% p.a. In support of the said enhancement, counsel for the appellant has placed reliance on the following judgments: - 1. MAC APP No.40/2004 & Cross objections /2004, dated 25.1.2007 2. 2002 AC] 2076 (Del) (DB),Vishakha Devi & Ors. Vs. DTC & Anr. 3. 2007 ACJ 2123(SC); Mohinder Kaur & Ors. Vs. I-Iira Nand Sindhi (Ghoriwala) & Anr. MAC APP No. 310/2007 Page 19 of 27 \. 4. 2 0 0 7 (VI) AD (Delhi) 7 3 0, New India Assurance Co. Ltd. Vs. Nirmala Devi & Ors. Per contra counsel for the respondent contended that the impugned award is just and .fair and requires no interference by this Court. I have heard learned counsel for the parties and perused the record. This court has already taken a view that wherever the income of the victim of the accident is considered under the Minimum Wages Act, then necessarily the increase shall also follow, based on the Minimum Wages Act itself. It has been noticed that the wages under the Minim urn Wages Act become almost more than double within a span of-JlO years period and therefore, accepting the contentions gf the counsel for the appellant, the wages of P ... s.2772/- pm as taken into consideration by the Tribunal would have doubled to a