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Judgment
By means of this appeal the judgment and order dated 29.02.2016 rendered by the Tribunal has been assailed by the Uttar Pradesh State Road Transport Corporation (for brevity herein after called as the corporation). The facts shorn of unnecessary details are that on 30.3.2015 around quarter pass ten in the morning Mr. Sonu Giri, aged about 25 years was coming from his village Daulatpur to Haridwar riding on his motorcycle no. TN24Z-9967, he was dashed by the corporation bus no. UP11T-6178, which left Haridwar to its last destination at Agra. It was raining at the relevant time. Somehow the accident occurred and as a consequence Mr. Sonu Giri was severely injured. He was immediately shifted to the nearby Bhuma hospital and during the course of his treatment, he breathed his last at 04:00 PM on the same day.
FIR No. 54/2015 of the incident was lodged against the driver of the bus Shri Jaipal Sharma, which culminated into the submission of charge sheet for the offences u/s 279, 304A 427 IPC under the crime no. 65/2015. The court is not aware about the fate of the trial proceeded in the court of competent jurisdiction but the fact remains that the dependants/LRs presented the MACP 67/2015 claiming the compensation to the tune of Rs. 64,50,000/- against the corporation, the owner of the bus.
The learned Tribunal after trial of such petition has granted such compensation to the tune of Rs. 43,71,800/- along with 7% interest from the date of institution of the petition to that of actual payment.
The learned counsel of the appellant has drawn the attention of this court towards the statement of the driver of the bus Mr. Jaipal Sharma, who was examined before the Tribunal and has accepted the accident. He has deposed that suddenly the motorcyclist over took another vehicle and during the course of such overtaking it was slipped on account of cats and dogs raining causing the dashing with the bus. 5. He has deposed that the speed of the motorcyclist was around 50-55 km. per hour while the bus was being plied at the speed of 25-30 km. per hour. This argument has been refuted by the evidence of PW3 Shri Pramod Giri, who has attributed the whole responsibility of the accident on the bus driver, but, I think the statement of Shri Pramod Giri is not so independent for the reason that he is the resident of the same village to which the deceased hailed and more so because such deceased Sonu Giri was the real nephew of Mr. Pramod Giri. So, his independent deposition is shrouded with shadow of doubt.
That apart, the learned counsel of the claimant has also drawn the attention of this court towards the map prepared by the Investigation Officer and the charge sheet submitted against the bus driver. Although, the submission of the charge sheet by itself does not attribute the whole responsibility upon the person against whom such charge sheet has been submitted and as regards the map, although the responsibility of causing this accident can well be attributed more on the bus driver while discerning the whole circumstances when it was incessantly raining heavily then slipping of the motorcycle at such a speed was not unnatural causing such accident.
The Hon''ble Apex Court in case of Andhra Pradesh State Road Transport Corporation & Another vs. K. Hemlatha & Others (2008) 6 SCC Page 767 has made the position clear as under: "To determine the question as to who contributed to the happening of the accident, it become relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff''s fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff''s part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless"
Therefore, in the fitness of things, it would be quite justified to apportion atleast 20% responsibility of the said accident on the motorcyclist deceased because being boarded on the light motorcycle vehicle, he had the last opportunity to avoid such accident. 8. Now I come to the calculation of the compensation which ought to have been made in the present controversy. Looking to the salary slip of the last drawn month of March, 2015, it was Rs. 6,765/- basic, Rs. 9,309/- DA, Rs. 1,935/- grade pay. All comes to Rs. 18,009/-.
Although the deceased was newly wedded and appears that during the pendency of the petition before the Tribunal his wife was blessed with a posthumous son Sonansh. So, mainly there were only two dependants. Smt. Pinky Devi and Km. Shvarthy and Tarun Giri respectively, the mother, sister and brother may be partially dependants on him beside being the legal representatives.
So, considering the whole circumstances, it would be justified if the annual income is calculated to Rs. 2,16,108/-. I reduce it by 1/3rd towards the personal expenses then it comes to Rs. 1,44,072/-. Let it be multiplied by 18 then it comes to Rs. 25,93,296/-. It is reduced by 20%, apportioning the liability as indicated above on the motorcyclist himself because it was he who could have avoided the accident at the last opportunity. Reducing that 20% (25,93,296-5,18,659) it comes to Rs. 20,74,340/-.
It was incumbent upon the claimants to implead the Insurance Company of the motorcyclist itself which has not been done for the reasons best known to them, wherefor, the adverse inference may be drawn against them besides driving licence of the motorcyclist Mr. Sonu Giri also has not been filed wherefor, the adverse inference also goes against him. That apart, as regards the enhancement by 50%, I think the Hon''ble Apex Court has taken a different view in case of Shashikala & Others vs. Gangalakhshamamma & Another reported in (2015) 9 SCC 150 which is as under: "34. Since we have disagreed only insofar as the additional towards the future prospects in case of self-employed or fixed wages to be added to the compensation towards the dependency, the matter may be placed before the Hon''ble the Chief Justice of India for appropriate orders towards the constitution of a suitable larger Bench to decide the said issue." 11. It has nowhere been disclosed by the claimants that after passing away of Mr. Sonu Giri all the benefits they have derived from the State Government.
The Hon''ble Apex court in case of Bhakhra Beas Management Board vs. Kanta Aggarwal & Others 2008 ACJ 2372 has held that the High Court lost sight of the fact that benefits which the claimants received on account of the death/injury have to be duly considered while fixing the compensation. In yet another case of Ramprasad Balmiki vs. Anil Kumar Jain & Others reported in 2004 TAC 385 the Hon''ble Apex Court has again held that even the amount of pension/family pension would have mitigated the quantum of damages and same was required to be taken into consideration.
In the present case, the deceased was a traffic constable, posted in District Tehri Garhwal hence, in all probabilities one of the dependants most likely his wife must have got appointment on compassionate ground and the same has not been denied on the record. It can be assumed that his widow must also have been got family pension besides the job. Other benefits like gratuity, insurance etc. would also be on the score while evaluating such compensation because it has been said time and again in the many judgments of the Hon''ble Supreme Court and various High Courts that the death of the earning member of the family can never be taken as a windfall and the amount so evaluated should not be taken as a largesse and bonanza to the other members of the family. It is just to save an indigent family from coming to the road on account of the death of the sole bread earner of such family.
In view of what has been set forth above, I am not inclined to enhance the compensation of 50% as has been made by the Tribunal and evaluating the whole compensation to the tune of Rs. 20,74,340/- with 6% interest thereon from the date of institution of the petition to that of actual payment.
The court is not inclined to disturb the amount of Rs. 50,000/- towards the love and affection and Rs. 25,000/- towards the cremation. Total compensation thus granted is Rs. 21,49,340/-.
The appeal is hereby allowed. The impugned order passed by the Tribunal is hereby modified on the score of compensation making it Rs. 21,49,340/- with 6% interest thereon from the date of institution of the petition to that of actual payment.
The amount shall be paid as per the proportionate share directed by the Tribunal and rest of the amount shall be returned to the appellant-Corporation along with the interest it has earned.