Hon'ble Subhash Chand,J.
1. Heard Sri Arun Kumar Shukla, learned Advocate on behalf of Sri Vishesh Kumar Gupta, learned counsel for Delhi Transport Corporation and Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned Advocate.
2. These are those appeals which are pending adjudication since long. We started hearing the matter but as Sri B.D. Madhyan has absented himself, we waited and adjourned the matter. Sri B.D. Mandhayan who represents the claimants in F.A.F.O. No. 1785 of 2018 absented himself today also. Claimants in the said claim to be heirs and legal representative of deceased as according to them, Master Sikhar Juneja is the legitimate son of Late Chandra Sekhar Juneja and Anuradha Juneja who according to him is legally wedded wife of Late Chandra Sekhar Juneja. The said appeal is dismissed for default.
3. As per the judgment of the apex court in U.P.S.R.T.C. Vs. Km Mamta and Others AIR 2016 SCC 948, all the grounds raised in the appeal are required to be adjudicated and that is how we would decide issue of negligence of driver and quantum and would go ahead with the discussion. All these appeals stem out of the same proceedings.
4. The Delhi Transport Corporation (for short 'DTC') has felt aggrieved as according to them (DTC), the accident occurred because of act of God namely bursting of tyre which was never visioned by the driver or the owner of the vehicle and, therefore, the driver could not have been saddled with the liability or attributed negligence.
5. The next aspect for which the DTC is before us is the quantum of compensation awarded by the Tribunal which according to DTC is on higher side and is not decided as per law applicable in the year of decision or accident.
6. As against this, Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the claimants-Asha Juneja, Master Udit Juneja and Km. Resham Juneja, has contended that the Tribunal has fallen in error in not considering the income of the deceased as reflected in the Income Tax Returns of the years prior to his death. The learned Tribunal has held that till 1991, the Income Tax Returns have been filed but, thereafter, returns have not been filed. It is stated by Sri Jain that in those days it was not compulsory to file the income tax return within six months of the financial year and, therefore, combined returns were to be filed but, the unfortunate event occurred in the year 1993 namely on 30.7.1993.
7. It is further submitted by Sri Jain that the Tribunal has discussed the oral testimony of witness Asha Juneja widow of the deceased that her husband used to earn Rs. 1 Lakh per month. On what basis the Tribunal assessed the income of the deceased to be Rs.2 Lakh per year is not spelled out , no finding to that effect is recorded by the Tribunal. According the learned counsel for the claimants, there were income tax returns which could have been made the basis for consideration of income of the deceased , may be for period after 1991 that is later part,the income tax returns were not there that cannot be the basis to discard the Income tax returns which were produced . In support of his arguments, Sri Jain has relied on the decisions titled Malarvizhi & Ors Vs. United India Insurance Company Limited and Another, 2020 (4) SCC 228 and United India Insurance Co. Ltd. Vs. Indiro Devi & Ors, 2018 (7) SCC 715. It is submitted by the learned advocate for DTC that the multiplier given by the Tribunal is not in dispute as the learned Tribunal has considered the second column in Second Schedule of the Motor Vehicles Act, 1988 which is lower than the one suggested by Apex Court in Sarla Verma & Ors. v. Delhi Transport Corporation & Another , (2009) 6 SCC 121.
8. Learned counsel for the claimants has contended that the deduction towards personal expenses of the deceased should have been 1/4th when there were more than five dependants, this is a gray area which will have to be decided while deciding the appeal preferred by Master Sikhar Juneja and Anuradha Juneja as there is inter se dispute regarding the right of these two and dependency but it should not be one third is the submission of counsel for claimants .It is further submitted that no amount under the head of future loss of income of the deceased has been granted by the Tribunal.
9. Per contra, it is submitted by Sri Shukla, learned Advocate appearing for DTC that in those days, in the State of Uttar Pradesh, the Tribunals were not granting what is known as future loss of income as the Rules did not prescribe and thus the question of addition will not apply. It is also submitted by Sri Shukla that even in the year 1998, the rate of interest was not 12% but it should be as per the repo rate of those days.
10. As against this, Sri Jain has submitted that the repo rate in the year 1998 was 18% and thus grant of 12% does not justify the rate of interest granted by the Tribunal as the matter remained pending. It is further submitted by Sri Jain that the amount granted under the head of non pecuniary damages for minor children and the widow are on lower side and require interference by this Court.
11. Learned counsel for DTC has contended that there was no negligence of driver of bus hence we propose to decide the issue of negligence :
12. Let us consider what amounts to negligence vis a vis act of God or inevitable accident as contended by learned counsel for DTC.
13. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.
14. The principle of negligence has been discussed time and again. A person who either contributes or is author of the accident would be liable for his contribution to the accident having taken place.
15. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added
16. Can it be said that the finding of the Tribunal as far as it relates to negligence is not based on these principles. The aspect which has been highlighted by the Tribunal is that the vehicle did not have any screw fallen and it was not infected by any external material on the highway on which it was plied and, therefore, the Tribunal recorded its finding that bursting of the tyre on the highway was because of two reasons namely (a) either it was not properly managed vehicle or (b) it was being driven in rash and negligent manner. Even if we go by the theory put forth by Sri Shukla, it has come on record that the bus driver has not stopped the bus but drove the same for ten minutes after the bursting of tyre. Ten minutes would mean at least for some distance. The driver of Car was driving the vehicle on its correct side and, therefore, we cannot take any different view then that taken by the Tribunal.
17. Principle of strict liability as enunciated by the Apex Court in Smt. Kaushnuma Begum And Ors vs. The New India Assurance Co. Ltd. (2001) 2 SCC 9, will also have to be invoked. Thus, the issue of negligence raised by learned counsel for the DTC cannot be accepted. The Apex Court in Kaushnuma Begum (Supra) held that compensation has to be given even if negligence/rashness of the driver/owner is not proved in the manner to be proved in dispute for tort and the driver/owner can be made liable for damages to the person who suffered on account of such accidents. The principle of strict liability has also been evolved by the Apex Court and applied. Where there is tyre burst, whether driver of the offending vehicle can be held responsible? Principle of res ipsa loquitur can be invoked and reference can be had to findings in paragraph 3 of judgment in Roshanlal vs Jarnail Singh reported in 2016 ACJ 736 (P&H), and the Apex court judgment in Gian Chand Versus Gurlabh Singh reported in (2016) 16 SCC 590 wherein while considering similar plea of act of god, the court observed and held that pleas taken by driver as well as the transport undertaking as regards the accident were totally at variance and there was nothing to doubt the version of claimants and their witnesses that the bus was driven rashly and negligently. The court held that F.I.R. substantiates the plea of the claimants and not of the driver and held that it appeared that bus driver drove the bus rashly and negligently and initially dashed the stationary tractor and then a eucalyptus tree in that process due to application of brakes belt of springs was broken it was a plea taken by transport undertaking that a scooterist was involved in the accident was not believed holding that is totally a false plea and is not supported by its driver. The court held that bus was driven in a rash and negligent manner by its driver and further opined that apart from that merely a mechanical failure is not enough to exonerate the transport undertaking from its liability in the absence of evidence being adduced that the vehicle was maintained properly.
COMPENSATION EVALUTED ;
18. This takes us to the submission of Sri Arun Kumar Shukla, as far as it relates to income and calculation made by the Tribunal. It is submitted that once the Tribunal came to the finding that the income tax returns post 1991 were not filed, it could not have fixed the income figure of Rs.2 Lakhs per annum randomly. We agree with the learned advocates of both the contesting parties who have submitted that the Tribunal could not and should not have considered the income randomly and income and compensation requires reconsideration. The income tax returns of the year 1991 were before Tribunal income of deceased has to be proved by cogent evidence. In the present case, the cogent evidence was oral testimony along with the income tax returns. It is not the case of the D.T.C. nor have they brought on record that the income of the deceased went on decreasing post 1991. Courts should determine what is known as just and fair compensation.
19. The submission that the Tribunal has not granted any amount towards future loss of income. Grant of future prospects will have to be traced back and reference can be had to the decision in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors.,(1994) 2 SCC 176 wherein addition of future prospects was also calculated. The decision in Susamma Thomas (Supra) was referred in U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors.(1996) 4 SCC 362 which have been considered by the Apex Court in Sarla Dixit Versus Balwant Yadav AIR 1996 SC 1274 and the Apex Court has considered decision in Hardeo Kaur V/s. Rajasthan State Transport Corporation, 1992 2 SCC 567. The decision in Sarla Dixit has been considered to be good law in (1) Puttamma Vs. K.L.Narayana Reddy, AIR 2014 SC 706 (2) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited, Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006 (3) SCC 242 : (3) Sarla Verma (supra)(4)R.K.Malik Vs. Kiran Pal, AIR 2009 SC 2506 (5)National Insurance Company Limited Vs. Pranay Sethi, AIR 2017 SC 5157 Raj Rani Vs. Oriental Insurance Company Limited, 2009 (13) SCC 654. We have gone through the decisions in those days referred to herein above and the judgment of Gujarat high court in Ritaben alias Vanitaben Wd/o. Dipakbhai Hariram and Anr. v/s.Ahmedabad Municipal Transport Service & Anr., 1998 (2) G.L.H. 670, wherein, the Court has observed as under:
"para-7: It is settled proposition of that the main anxiety of the Tribunal in such case should be to see that the heirs and legal representatives of the deceased are placed, as far as possible, in the same financial position, as they would have been, had there been no accident. It is therefore, an action based on the doctrine of compensation.
para-8: It may also be mentioned that perfect determination of compensation in such tortuous liability is, hardly, obtainable. However, the Tribunal is required to take an overall view of the facts and the relevant circumstances together with the relevant proposition of law and is obliged to award an amount of compensation which is just and reasonable in the circumstances of the case.
para-10: Even in absence of any other evidence an able bodied young man of 25 years, otherwise also presumed to earn an amount of Rs.1000/- or more per month, on that basis the prospective income could be calculated by doubling the one prevalent on the date of the accident, which is required be divided by half, so as to reach the correct datum figure which is required to be multiplied by appropriate multiplier. Even taking a conservative view in the matter, the deceased would be earning not less than an amount of Rs.1000/- per month and considering the prospective average income of Rs.2000/- and divided by half, would, obviously come to Rs.1500/."
20. Thus even in year 1990 to 2000, the addition of future prospects was not ruled out, just because tribunals in Uttar Pradesh were not granting future loss, it cannot hold field where the decision of Apex Court is otherwise as demonstrated with decision though of persuasive value of Gujarat High Court referred herein above wherefore, the submission of Sri Shukla that no amount under the head of future loss of income was admissible in those days, will have to be considered. The decision of the Apex Court in New India Assurance Company Ltd. Vs. Urmila Shukla and others, LL 2021 SC 359 will have to be looked into. Therefore, we will have to consider the same in the light of the recent decisions as well as the decisions of the Apex Court prevailing.
21. In Malarvizhi & Others and Indiro Devi & Others (Supra), it has been held that Income Tax is the mirror of one's income unless proved otherwise. In our case, the returns as it reflects, proved income of deceased to be Rs. 3,59,150/- per annum. On what basis, the Tribunal has disregarded this income cannot be fathomed as a man's income would increase unless proved otherwise. Even in the earlier days, the factors to be considered for issuing quantum of compensation reads as follows:
i. To give present value, a reasonable deduction or reduction is required as lump sum amount is given at a stretch under the head of prospective economic loss;
ii. The tax element is also required to be considered as observed in the Gourley's case (1956 AC 185).
iii. The resultant impairment/death on the earning capcity of the claimant/claimants .
iv. That the amount of interest is awarded also on the prospective loss of income.
v. That the amount of compensation is not exemplary or punitive but is compensatory.
22. Hence we now propose to calculate the compensation payable to the legal heirs of the deceased. We can safely now go by the income tax return for the year 1990-1991. The widow, in her oral testimony, has withstood the cross-examination which would negative the submission of Sri Shukla that it was joint property income which has continued. She has categorically mentioned that the rent been taken by her brother-in-law and father-in-law. The amount of insurance which has been received by her cannot be deducted and that aspect is also answered against Sri Shukla. She has categorically denied in her oral testimony that her income was more than that of her husband even if that is so it is the loss of income which her deceased husband was contributing to the family has to be considered and not what the wife was earning.
23. We go by the fact that the income of the deceased has to be considered Rs. 3,59,150/- per annum as reflected in the income tax returns and supported by oral testimony on record which deceased was earning from business to which 40% will have to be added even as per the earlier decisions, 1/4th will have to be deducted as we are convinced that there is an illegitimate son of the deceased who has filed appeal in this Court as marriage of deceased with Anuradha Juneja has not been believed by the Tribunal. The multiplier would be 15 as the deceased was in the age bracket of 36-40 and the 2nd Schedule could not have been applied by the learned Tribunal. Children who have lost love and affection of their father will each get Rs.30,000/- and Rs.40,000/- is granted to the widow.
24. The total compensation payable to the claimants is computed herein below:
i. Annual Income Rs.3,59,150 /-