UPSRTC & ANR vs SANJAY KUMAR
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 22nd January, 2024
Judgment pronounced on : 5th March, 2024
+ MAC. APP. 615/2015
U.P. STATE ROAD TRANSPORT CORPORATION & ANR
….. Appellants
Through: Mr. Manoj Sharma, Adv.
versus
SANJAY KUMAR ….. Respondent
Through: Mr. Piyush Beriwal and Mr.
Nikhil Kumar Chaubey, Advs.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
1. This judgment shall decide the present appeal preferred by the
appellants/Uttar Pradesh State Transport Corporation (UPSRTC)
under Section 173 of the Motor Vehicles Act, 19881, assailing the
Impugned order dated 18.05.2015 passed by the learned Motor
Accident Claims Tribunal, Central, Delhi2 in suit No. 109/20113, titled
as Sanjay Kumar vs. Subhash Chander”, whereby the learned
Tribunal granted compensation in favour of the claimant.
1 MV Act
2 Tribunal
3 Claim Application
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the claimant that on 15.08.2010
at about 1:30AM, Sanjay Kumar/claimant, was driving a TATA-407
Tempo bearing registration No.HR-46-A-8402 and when he reached at
village Netrampuri, Sikandarabad, U.P., suddenly a bus bearing
registration No. UP-75-K-9332 (hereinafter referred to as the
offending vehicle”), driven by Respondent No.1/Subhash
Chander/driver4 (appellant herein) at a very high speed, in a rash and
negligent manner, hit the tempo. Consequently, the
petitioner/victim/Sanjay Kumar sustained grievous injuries and an FIR
No.340/2011 was registered on 15.08.2010 at PS Sikandarabad, U.P.
regarding the accident. The injured/claimant was admitted at Civil
Hospital, Bulandshahar, U.P. for treatment but was immediately
referred to Safdarjung Hospital, New Delhi, and was discharged on
28.08.2010. As a result, the claimant filed a claim petition on
17.12.2013 seeking compensation.
3. The respondent No.1/Subhash Chander and respondent
No.2/Depot Manager of UP Roadways/owner5 jointly filed their
written statements, whereby negligence on the part of respondent No.1
was denied stating that he was driving the bus at a normal speed from
Etawah to Delhi and that the tempo driver coming from the opposite
direction in a rash and negligent manner, tried to overtake the bus.
Further, it was submitted that the petition was bad for non-joinder of
parties and misjoinder of necessary parties. The petitioner, on the
other hand, placed several documents including the medical bills and
4 Section 2(9) of MV Act: driver includes, in relation to a motor vehicle which is drawn by
another motor vehicle, the person who acts as a steersman of the drawn vehicle;
5 Section 2(30) of MV Act: owner means a person in whose name a motor vehicle stands
registered, and where such person is a minor, the guardian of such minor, and in relation to a
motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an
agreement of hypothecation, the person in possession of the vehicle under that agreement;
hospital receipts so as to show his critical condition during the course
of the treatment.
PROCEEDINGS BEFORE THE TRIBUNAL AND IMPUGNED
ORDER:
4. Based on the pleadings, the following issues were framed by the
learned tribunal:
i. Whether the petitioner Sh. Sanjay Kumar had suffered
grievous injuries in road traffic accident on 15.8.2010 at about 1:30
am due to rash and negligent driving of the vehicle bearing
registration no. UP-75-K9332 by Respondent no.1?
ii. Whether the petitioner is entitled to any compensation, if
so, to what amount and from whom?
iii. Relief.
5. The petitioner examined himself as PW-1 and further proved
the original referral letter issued by the Civil Hospital, Bulandshahar,
UP for treatment at the Safdarjung hospital, New Delhi. During the
cross examination, he clarified that he was driving the vehicle/tempo
at a speed of 40-50 Km per hour and further testified that he had no
documentary evidence/proof to show that he was earning Rs.8000/-
wages per month. It was brought in the evidence of PW-2/Dr. Aseem
Taneja, that the petitioner had suffered 86% permanent disability as
per the disability certificate (Ex.PW2/B), which is unlikely to improve
in his lifetime. The germane observations have been reproduced
under:
During cross-examination he clarified that he was going from
Sikandarabad to Bulandshahar while driving TATA 407 bearing
registration No. HR 46A 8402 at a speed of 40-50 Kms. per hour.
He denied that the accident occurred due to his negligence or that
he was driving the tempo at a speed of 60-70 Kms. Per hour. He-
further stated that he had no documentary proof to show that he
was earning Rs. 8,000/- per month.
PW2 Dr. Aseem Taneja proved the disability certificate issued to
petitioner (Ex.PW2/B). during cross examination he stated that the
disability is not likely to improve and the petitioner would not be
able to walk and run as a normal person throughout his life.
6. Regarding Issue No.1, learned Tribunal laid emphasis on the
site plan, which was prepared during the course of investigation. Also,
the testimony of P1W1/Sanjay Kumar/claimant was taken into
consideration. Based on the site plan, the learned Tribunal came to the
conclusion that respondent No.1 was wrongly overtaking some other
vehicle and that the accident took place due to the sole negligence on
the part of respondent No.1. It would be expedient to reproduce the
reasons given by the learned Tribunal:
It is pertinent to note that testimony of PWl Sanjay Kumar could
not be dented during cross-examination. The testimony of PWl has
to be seen in conjunction with the certified copy of the Site Plan
which was prepared during the course of investigation. The Site
Plan clearly points out that the bus crossed over to the other side of
the lane which was meant for the approaching traffic wherein the
TATA 407 was driven by petitioner. The curve in which the bus
moved on the other side of the lane at the time of accident reflects
that in fact Respondent No. 1 was wrongly overtaking some other
vehicle and the accident had taken place due to sole negligence of
the offending bus. It is difficult to presume that TATA 407 had
moved on the other side of the lane in the process of overtaking a
truck as claimed in the evidence of RlWl. The evidence of RIWl is
self serving and untrustworthy in view of circumstances pointed
out above and does not inspire confidence.
7. As regards the assessment of income of the claimant, the
learned Tribunal was of the view that there was no document or any
other evidentiary proof on the record so as to show that the petitioner
was earning Rs. 8000/-per month, although it was submitted that there
was a valid Driving Licence6. The learned Tribunal assessed the
income of the claimant @ Rs.6,448 as per the minimum wages of a
skilled labourer as on 15.08.2010. The relevant observations have
been reproduced below:
6 Section 2(19) of MV Act: learner”s licence means the licence issued by a competent
authority under Chapter II authorising the person specified therein to drive as a learner, a motor
vehicle or a motor vehicle of any specified class or description;
At the time of accident, petitioner claims to be earning Rs.8,000/-
per month. Counsel for petitioner has candidly admitted that there
is no document to show that the petitioner was drawing a salary of
Rs.8,000/- per month. He submits that the petitioner was in
possession of driving licence and as such the minimum wages of
skilled labourer as on 15.08.2010 @ Rs.6,448/- per month may, be
considered for the purpose of compensation.
8. Regarding the functional disability, the tribunal, while
considering the fact that the petitioner had suffered 86% permanent
disability, which is unlikely to improve, as also the fact that the
petitioner is a driver by vocation and would not be able to take up the
same vocation throughout his life, assessed the functional disability @
60% for the purpose of assessment of the compensation. Lastly, the
tribunal while considering all the expenses including the loss of
earning capacity, amenities and expectation of life, pain and suffering,
medical treatment and other related expenses, awarded a sum of
Rs.9,09,624/- as compensation with interest @ 9% p.a. The tribunal
concluded its findings by stating that respondent No. 1 & 2, who are
the driver and registered owner of the offending vehicle respectively,
are jointly and severally liable to make the payment.
GROUNDS OF APPEAL:
9. The impugned order has been assailed by the appellants inter
alia on the grounds that no site plan was ever filed by the
respondent/claimant so as to show the exact position of the vehicle at
the time of the incident and the learned tribunal wrongly held that the
bus of the appellants was coming from the wrong side. Further, it was
contested that the claimant was the only witness who stepped into the
witness box and there was no corroboration of his testimony. Another
objection raised by the appellants is that there was no document
produced on the record with respect to the employment details of the
respondent. Lastly, it was assailed that the learned Tribunal relied on
the driving licence of the respondent to determine his age, which was
unknown as also the fact that his driving licence was not verified from
an independent licencing authority7. Hence, the present appeal.
7 Section 2(20) of MV Act: licencing authority means an authority empowered to issue licences
under Chapter II or, as the case may be, Chapter III.
8 (2006) 3 SCC 242
LEGAL SUBMISSIONS ADVANCED AT THE BAR:
10. During the course of arguments before the appellate court, the
counsel for the appellant relied on Bijoy Kumar Dugar v. Bidya
Dhar Dutta8 of the Supreme Court, wherein the facts and
circumstances of the case were similar to the present case and the
Apex court reaffirmed the decision and observations of learned
tribunal that where two vehicle are coming from the opposite
directions and there is a possibility of a head-on collision, then in that
case the drivers of both the vehicles should be held responsible. The
counsel for the appellant vehemently argued on this aspect and
submitted that the respondent shall be held liable for this incident. It
would be expedient to re-produce the observations in the
aforementioned judgment:
The Maruti car being driven by the deceased Raj Kumar Dugar
and the offending bus had a head-on collision. MACT has not
accepted the evidence of PW 2 to prove that the driver of the
offending bus was driving the vehicle at abnormal speed. If the bus
was being driven by the driver abnormally in a zigzag manner, as
PW 2 wanted the Court to believe, it was but natural, as a prudent
man, for the deceased to have taken due care and precaution to
avoid head-on collision when he had already seen the bus coming
from the opposite direction from a long distance. It was head-on
collision in which both the vehicles were damaged and,
unfortunately, Raj Kumar Dugar died on the spot. MACT, in our
view, has rightly observed that had the knocking been on one side
of the car, the negligence or rashness could have been wholly
fastened or attributable to the driver of the bus, but when the
vehicles had a head-on collision, the drivers of both the vehicles
should be held responsible to have contributed equally to the
accident. (Paragraph 12)
ANALYSIS AND DECISION:
11. I have given by thoughtful consideration to the submissions
advanced by learned counsels for the rival parties at the Bar. I have
also perused the relevant records of the case including the digitized
Trial Court record.
12. First things first, the findings recorded by the learned Tribunal
holding respondent No.1/driver to be responsible for causing the
accident, are without any blemish and unassailable. A careful perusal
of the testimony of PW-1/injured would show that he categorically
deposed that the offending bus had crossed over from the other side of
the lane, which was meant for the approaching traffic while the
injured was driving the TATA 407 on the correct side of the road. It is
evident from the site plan of the place of occurrence placed and
proven on the record that the offending bus came from the other side
of a curved road and went over the middle of the road on the other
side, causing a head-on collision with the vehicle which was being
driven by the injured. Except for a bold suggestion in the cross-
examination of PW-1 that he was driving the tempo at a speed of 60-
70 km/hr., there were no cracks in his testimony as to the manner in
which the accident had occurred.
13. As regards the challenge by the appellant with respect to the
quantum of compensation being on the exorbitant side, the same is
completely misconceived and untenable in law. The learned Tribunal,
in the face of the fact that there was no documentary proof that the
respondent/claimant was earning Rs. 8,000/- per month, adopted a
correct approach in law to reckon the minimum wages provided for a
skilled labourer, as evidently, the respondent/claimant was a driver
and the same was assessed @ Rs.6,448/- per month. It would be a
repetition that as per PW-2/Dr. Asim Taneja, the respondent/claimant
suffered 86% disability as per the disability certificate (Ex. PW-2/B).
The disability is in relation to both lower limbs, described as post
traumatic stiffness in right knee and ankle c¯ ilizarov ring fixation in
right leg and fixed deformity, which was opined to be 90%. It was the
unchallenged and uncontroverted testimony of PW-2 that the
disability was such which would remain throughout the life of the
claimant and would not improve. It is not understandable as to how
the Tribunal reckoned the disability to be 88%. Secondly, no
justifiable reasons have been given by the learned Tribunal in
reckoning the functional disability to be 60%. The
respondent/claimant was evidently working as a driver and because of
the disability suffered, he would be completely ruled out of getting
any employment as a driver, which he could have easily enjoyed till
the age of at least 60 years. This Court in New India Assurance Co.
Ltd. v. Moharman9 ; New India Assurance Co. Ltd. Pushkin Tiwari10 ;
New India Assurance Co. Ltd. v. Furkan @ Mohd. Furkan11 besides
New India Assurance Co. Ltd. v. Sanjay Kumar Dass @ Sanjay
Kumar Singh12, decided by a common judgment dated 22.01.2024,
reiterated the fact that once a person has suffered the functional
disability in total, he would not be able to secure employment in the
same field where he used to work if he had not been injured.
14. This Court in an earlier judgment, in such facts and
circumstances where a driver had suffered the permanent disability
ruling him out of any job as a driver in the future or remainder of his
life, considered the decision in the case of Oriental Insurance
Company Limited v. Mohd. Nasir13.
15. Further, this court referred to the decision in Raj Kumar v.
Ajay Kumar14, wherein it was observed:
9 FAO 17/2021
10 FAO 21/2021
11 FAO 305/2022
12 FAO 172/2021
13 (2009) 6 SCC 280
14 (2011) 1 SCC 343
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do
not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
loss of earning capacity. To put it differently, the percentage of loss
of earning capacity is not the same as the percentage of permanent
disability (except in a few cases, where the Tribunal on the basis of
evidence, concludes that the percentage of loss of earning capacity
is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined
him subsequently to assess the extent of his permanent disability
can give evidence only in regard to the extent of permanent
disability. The loss of earning capacity is something that will have
to be assessed by the Tribunal with reference to the evidence in
entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job, age,
education and other factors.
16. In view of the aforesaid facts and considering the minimum
wages of the claimant as taken by the learned Tribunal i.e., Rs.6,448/-,
the annual income of the injured comes to Rs. 77,376/-. Further, as the
claimant was 32 years of age at the time of accident, an addition of
40% towards loss of Future Prospects has to be reckoned in terms of
the decision in National Insurance Co. Ltd. v. Pranay Sethi15,
which brings the income to Rs. 1,08,326/-. Further, applying the
multiplier of 16″ as per Sarla Verma v. DTC16, the total loss of
future earning capacity is assessed at Rs. 17,33,216. Thus, the total
compensation has been assessed to Rs. 18,24,238/-. Accordingly, the
compensation is tabulated as under:
15 (2017) 16 SCC 680
16 (2009) 6 SCC 121
S. No.
Head
Amount
1.
Annual Income
Rs.77,376/-
(6,448 x 12)
2.
Addition towards future prospects
Rs. 30,950/-
(40% of the income i.e.
77,376)
3.
Loss of earning
Rs. 1,08,326/-
(77,376+30,950)
4.
Multiplier
16
5.
Total Loss of future earning at 100% loss of
functional disability.
Rs. 17,33,216/-
(1,08,326 x 16)
6.
Pain and suffering
Rs. 10,000/-
7.
Medical expenses
Rs. 46,022/-
8.
Conveyance
Rs. 10,000/-
9.
Special Diet
Rs. 10,000/-
10.
Attendant charges
Rs. 15,000/-
Total Compensation
Rs. 18,24,238/-
17. Therefore, in view of foregoing discussion, this Court suo moto
enhances the compensation for loss of earnings capacity from Rs.
9,09,623.81 to Rs.18,24,238 (Rupees Eighteen Lacs Twenty Four
Thousand Two Hundred Thirty Eight Only), which shall be payable to
the respondent No.1/claimant with interest @ 9% p.a. from the date of
filing of the petition till realisation. The amount of compensation be
released to the respondent/claimant after adjusting the amount of
compensation with interest already paid to the respondent/claimant in
terms of the previous order dated 18.05.2015. Interim order shall stand
vacated. The amount of compensation be deposited by the
appellant/UPSRTC with the learned Tribunal within four weeks from
today, failing which, the appellant shall be liable to pay penal interest
@ 12% p.a. from the date of this decision till realisation.
18. The appeal stands disposed of.
DHARMESH SHARMA, J.
MARCH 05, 2024/sp/ck