Hansaria, J. 1. Mrs Marcia E. Dutta is by birth an American lady. She married Shri B. K. Dutta and the couple started living at Digboi after Shri Dutta got a job in the Assam Oil Company (A. O. C.) as the Senior Engineer in the Marketing Division. This was in Feb. 1965. Marcia herself was appointed in Mar. 1965 as the Confidential Secretary to the then Marketing Manager. She was subsequently confirmed and by 1969 she was drawing a gross salary of Rs. 925.00 per month. The couple came to be invited to a dinner in the Military Officers Mess of Lekhapani Camp. The dinner was due on 14-1-69 at 8. P. M. A few days before that Col. Sopti and Capt. Patel met the couple at their bungalow in Digboi and personally requested them to accept the invitation. As it fell on Bihu day, the couple was rather reluctant, but on being pressed and on being stated that since the Army was doing a lot of business with A. O. C., an exception would be taken if they would not go to the party and meet among others the Chief Engineer, the invitation was accepted. The colonel even offered to send a car to pick the couple as Shri Dutta's car was under repair. It was ultimately agreed that the vehicle may not be sent up to Digboi but the couple could be picked up at Margherita up to which place they would make their own arrangement. Accordingly Capt. Patel met the couple at Margherita and after crossing Dihing river Capt. Patel started driving. The condition of the road from the other side of the river to Lekhapani was not quite good, it had become slippery due to heavy rains. It was drizzling as well at the relevant time. Capt. Patel asked the couple to occupy the front seat; and the driver sat in the seat at the back. It was about noon then. A few kilometres were left to reach Lekhapani. An army vehicle was seen on the edge of the road with the wheels touching the embankment. Marcia says that seeing this she asked Capt. Patel to slow down and he did until the party came abreast of the lorry and then saying nobody had been hurt Capt. Patel accelerated the jeep which immediately went into a spin. Captain was thereafter 'accelerating and then braking and again accelerating and braking.' He ultimately lost control of the vehicle and it fell down in a deep drop just on the edge of the road. The accident saw ultimately the death of Capt. Patel and very serious injuries on the person of Marcia. Shri Dutta was also injured. It seems the driver (D. W. 2) escaped unhurt.
2. The accident was on 14-1-69 and the petition claiming a sum of Rs. 10 lakhs was filed OH 8-2-71. A petition to condone the delay supported by an affidavit was also filed which was taken up as agreed by the parties at the time of final hearing and by the impugned award the delay has been condoned. A sum of Rs. 8,00,302.00 has also been awarded as compensation. The Union of India has appealed against this award.
3. The main questions to be determined are:--
i) Whether the accident was caused due to rashness or negligence on the part of Capt. Patel who was driving the vehicle at the relevant time?
(ii) If so, is the Union of India vicariously liable for the deeds in question?
(iii) If so, what is the just compensation to be awarded to the claimant.
4. We have formulated only these questions though a point had been taken and was urged by Shri Chetia relating to the delay in filing the petition, the same having been condoned by the learned Tribunal on being satisfied about sufficient cause for the delay we do not think the claim petition merits rejection on the technical ground of limitation. Let it be said to be fair to Shri Chetia that he himself did not press this ground though he submitted that the claim petition could have been filed thro' an authorised agent as permissible under the law. That may be so but Marcia was required to swear an affidavit in support of her petition for condonation of delay, and as stated therein due to the injuries sustained which have made her completely crippled, she was not in a position to take the journey to Dibrugarh earlier to swear the affidavit. We do not think the provision relating to filing of a petition thro' an agent has much importance in those cases which are delayed explanation for which has to come as far as possible, from the claimant himself or herself. In any case, a petition like the present does not deserve to be dismissed on a ground like limitation, especially when the contestant is Union of India.
5. Let it therefore first be seen as to whether the accident was due to rashness or negligence on the part of Capt. Patel. This has been denied by the Union of India according to whom the accident had taken place as below, as stated in para 7 of the written statement :--
'Captain Patel who was driving the vehicle saw another vehicle standing off the road on the right side and while swerving the vehicle to the left to avoid collision with another one ton vehicle coming from the opposite direction and the road at that time being muddy and slippery due to heavy rains during the preceding days, skidded to the left in the slope and it fell down in the ditch and Captain Patel received a serious head injury and became unconscious and the other inmates received iniuries on their persons.'
D. W. 2, the regular driver of the vehicle in question also stated that when their vehicle (which was Nissan Petrol Jonga) reached the spot one ton truck was standing by the side of the road. When the vehicle reached that place another vehicle was coming from opposite direction. So the Captain tried to drive towards the left when the vehicle skidded.
6. Now, if this is what had happened, we would think that even the principle of res ipsa loquitur would be attracted inasmuch as the reason of the skid has not been explained. It was pointed out in E. Richley v. F. Faull, 1966 Ace. CJ 17. by referring to Laurie v. Raglan Building Co. Ltd., (1941) 3 All ER 332 that an unexplained and violent skid is in itself evidence of negligence. It would thus be a case where the accident speaks for itself and tells its own story. In such a case the maxim res ipsa loquitur applies.
7. It would however be proper to see the claimant's version in this regard. According to Marcia what had happened was this.
'When I saw the lorry as described above I asked Capt. Patel to slow down because I saw there had already been one accident. He did slow down until we came abreast of the lorry and then saying nobody had been hurt he accelerated the jeep. So we immediately went into a spin and the jeep went round and round. Capt. Patel now accelerating and then braking and again accelerating and braking. He ultimately lost control over the jeep. I only remember that the jeep started somersaulting.'
Reading this evidence it had appeared to us at one stage that it was a case of inevitable accident, because as the vehicle had gone into a spin immediately after the jeep had been accelerated we thought that no fault might reasonably be found with Capt. Patel, as he did slow down at first and after finding that nobody had been hurt, he decided to proceed for which the jeep had to be accelerated. The spinning might have been caused due to the road being slippery which is an admitted position. But then, when we noted certain other portions of the evidence, we felt inclined to take a view supporting the claimant. Marcia herself described the immediate cause of the accident thus in cross-examination :
'When we almost reached the lorry Capt. Patel said nobody was hurt by any accident and he accelerated and immediately the jeep took speed. It appeared to me that he was trying to control the jeep by using the brakes. In the next moment he again accelerated and again used the brakes. He appeared to be confused and puzzled,' Shri Dutta had described the accident thus :--
'Before we reached Lekhapani we saw one truck on the right hand side of the road. That lorry met with an accident and the wheels were on the raised earth. Because Capt. was driving only inconsistently, my wife said seeing the truck that there was an accident. She was panicky and caught my hand. Then Capt. slowed down the speed and said there was no injury. Then he suddenly pressed the accelerator and then again he pressed the brake and the car started spinning. Then he again pressed the accelerator even when (this word is not very distinct in the original but it appears that his (this ?) could be when) the car was spinning. Then the vehicle fell on a ditch on the left hand side of the road facing Lekhapani'
8. Thus immediate cause of the accident causa causans. was the acceleration of the jeep after it was noted that nobody had been hurt in the accident in which the lorry was involved. It seems acceleration was beyond proportion. It is to be remembered that the road was slippery and at the relevant time it was drizzling also. The road was not too wide. According to D. W. 2 it was only 10/11 ft. in width. The speed of the vehicle at the relevant time seems to have been on the high side. According to Marcia it was being driven earlier at a speed of about 40 miles per hour which came to 25 miles when the vehicle had been slowed down. According to D. W. 2 the speed was about 35/40 K. M. at the relevant time. No doubt a speed of about 25 miles per hour would not be high speed under normal circumstances. But when it is remembered that the vehicle was being driven on a slippery road not too wide and a part of the road had been blocked by another vehicle it would seem that even 25 miles per hour was not a safe speed. The extent of the damage which was caused to the vehicle would show that the vehicle was in a high speed at the relevant time. C. W. 4 deposed by referring to the General Diary Entry (Ext. 7) that the hood, body and other parts of the vehicle were completely damaged. A pan of it may be accounted by the fact that the vehicle had fallen down 15/20 feet below the road level, but the extent of the damage as it was, must have also been due to high speed.
9. From all the above, we are satisfied that the accident was due to the rashness or negligence on the part of the person who was driving it at the relevant time. The mere fact that Capt. Patel was taking the guests to a dinner and as such he must have been very cautious in driving, an aspect emphasised repeatedly by Shri Chetia, is not enough to outweigh the other evidence on record relating to the immediate cause of the accident.
10. This takes us to the question of liability of the Union. On this, Shri Chetia first referred to Sitaram v. San-tanuprasad, AIR 1966 SC 1697, where the defendant had entrusted his car to M for plying the same as a taxi. M had appointed C as a cleaner and trained him to drive the car and took him to R. T. A. for obtaining a driving licence. When the test was being conducted C caused the accident which injured the plaintiffs leg. On these facts vicarious liability of the master was not upheld as there was no proof that M was authorised to coach the cleaner. The act of coaching was not regarded to embrace even the extension of the doctrine of scope of employment The act being unauthorised and the accident having
been caused in pursuance to that it was held that Master was not liable. The facts of this case are different which we shall note a little later. Before that the law relating to this branch, as explained in Pushpabai v. Ranjit G. & P. Co., AIR 1977 SC 1735 may be noted. It was held in this case that the extension of this doctrine as unfolded in Ormrod v. Crosville Motor Services Ltd., (1953) 2 All ER 753 was the latest trend. As per that decision the owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of his employment, but also when the driver is with the owner's consent, driving the car on the owner's business or for the owner's purposes. The further extension of this doctrine to include even an illegal act was not accepted by the Supreme Court. We do not propose to burden the judgment by referring to all the case laws on the subject as the same has been gone into in a Division Bench decision of this Court in State of Assam v. Banti Barua. 1978 Ace CJ 412. There Mrs. Barua was travelling in the jeep from Upper Shillong to Shillong town along with her husband p. E. Barua who was Assistant poultry Development Officer. The jeep belonged to the State Government, Mrs. Barua was not on Government duty. Still her claim was accepted as there was nothing to show that there was any prohibition from giving a lift to person like Mrs. Barua. In Full Bench decision of this court in Hira Devi v. Bhaba Kanti., AIR 1977 Gau 31. it was held that the question whether a passenger travelling in a car neither for hire nor reward can claim damages against the owner would depend on the facts and circumstances of each case. Shri Chetia had also referred to Premwati v. State, AIR 1977 Rai 116, wherein this liability of the Government was denied because the driver who took delivery of the jeep from the workshop, instead of taking the vehicle to the garage went on spree and gave a joy ride to third parties who were injured in an accident thereafter. It was thus held that going on spree was beyond the scope of employment for which the State could not be saddled with liability.
11. In the present case what had happened according to the claimant as already noted, was that the Dutta couple had accepted the invitation to attend the dinner on being pressed, on Col. Sopti even saying that they used to buy vitomen (Bitumen?) from the Company (Shri Dutta being in that section), they accepted the invitation, and as prearranged Capt patel met them at Margherita. In the written statement the story given was that Capt. patel met the claimant at Margherita where they had been stranded due to breakdown of their car. Earlier Cap. patel had gone to purchase the stores and was returning from Tinsukia. On requests being made by Dutta couple a lift was given. This appears to us to be far from the truth. We have said so because when Shri Dutta deposed about insistence of Col. Sopti, and their acceptance of the invitation on being reminded about the business dealings, the only question asked in cross-examination was if the Company had given direction to accept the invitation. which was answered in negative. Then, no evidence was led to support the written statement version. D. W. 2 had only said about it thus: 'One lady and a gentleman (civilians) were found near the Ferry Ghat of Margherita, They booked our jeep'. From the evidence on record we are satisfied that it was not a case of accidental meeting at Margherita, but one which was preplanned. Shri Chetia referred to Ex. I, the invitation card for the dinner and submitted that the same had not spoken anything about giving a lift. We hardly find such inducements in such invitation cards. On the face of clear evidence of the claimant and her husband on this point there is nothing to disbelieve them. Thus the vehicle was definitely being driven by Capt. patel on his employer's business. It is also worth noting that the vehicle had admittedly gone to Tinsukia in connection with official work, and so even if free lift was given to the claimant on her request, the Union would be vicariously liable as the vehicle was being driven in the course of employment. The mention about indemnity bond in the written statement shows there was no absolute prohibition to give lift. Thus, even if Marcia be trespasser so far as employers were concerned but as the vehicle was driven in the course of employment it is sufficient to make the employer liable (see para 8 of Pushpabai, wherein reference has been made to these views of Lord Denning in Young v. Edward, Box & Co., ( (1951) 1 TLR 789). In any view of the matter the vicarious liability of the Union cannot be denied.
12. The last and important question relates to the quantum of compensation. On this count Marcia claimed Rs. 10 lakhs as below :--1)
For loss of Job
Additional expenses like purchase of a special-fit Fiat car or expenses on special maid.
General damages for suffering etc.
Rs. 4,72,983.00The learned Tribunal has awarded on the first count a sum of Rs. 3,40,302, on the second Rs. 60,000 and as general damages Rs. 4 lakhs in all 8,00,302/-.
13. The claim of about Rs. 4 lakhs for loss of job was calculated thus:a)
Loss of salary
Rs. 2,42,200.00 (approx)
Contributory Provident Fund (P. F.)
Rs. 11,500 (approx)The salary was calculated from 1-4-69 to 1-4-83 the date on which Marcia would have attained 45 years and would have retired from her service in the A. O. C. Increments were also taken note of because her gross salary would have become Rs. 1980,00 by 1-1-83 in place of Rs. 925.00 as it was on 1-4-1969. The learned Tribunal has given almost full benefit on this count. The only amount deducted was a sum of Rs. 20,000 on account of Income-tax, and Rs. 35,000/- from P. F. Perhaps because that would have been Marcia's own contribution. We have however found it difficult to accept this part of the award as it is. A reference to the terms of contract of service (Ex. 8) shows that the service of Marcia was liable to be terminated by giving one month's notice or pay. This was the agreement under which she was serving after she had been confirmed as is apparent from the fact that by invoking Clause 13 of this agreement her service was terminated with effect from 1-5-1969, by Ext. 9. Therefore, though she was a confirmed employee, her service was not very secure. Secondly uncertainty of life was totally forgotten by the learned tribunal. Thirdly, no deduction was made for lump sum nature of payment. Because of all these, we do riot think an award of about Rs. 2,22,000/-could not have been made on the score of loss of salary. We are rather of the view that a sum of Rs. 1 lakh on this count would be just compensation as this sum if invested even in Postal Savings Certificate (whose present rate of interest is 12% per annum) would fetch a monthly earning of Rs. 1000/-which was the salary of Marcia at the relevant time. In assessing the loss on this count at Rs. 1 lakh, we have not taken into account the increments to which Marcia would have been entitled had she served up to 45 years of her life. Why we have not done so, would become clear later. The second head relating to loss of job is connected with Pension, p. F. and Gratuity. The total amount claimed on this count comes to about Rs. 1.50. 000/-. Of this, a sum of Rs. 35,000/- was rightly disallowed by the learned Tribunal, as Marcia herself would have contributed that amount to her P. F, So, the total has to be brought down to Rs. 1,15,000/-. Normal deduction from this would have been 20% for uncertainty, and 10% for lump sum payment (vide Hira Devi) (AIR 1977 Gau 31) (FB); but we think it would be only fair if the claimant is awarded 50% of the same, as it cannot be forgotten that the pension amount of about Rs. 71,000/- was calculated even up to the age of 65, though at the time of accident Marcia was about 30 years. Then, something on these counts would have been receivable for the service rendered up to the date of termination, which was 1-5-1969. We round up this figure to Rs. 60,000/-. Therefore, we award a sum of Rs. 1,60,000/- on the first head instead of Rs. 3,98,000/-and odd which was claimed and Rs. 3,40,000/- and odd which was awarded by the learned Tribunal.
14. The next broad head is related to additional expenses amounting to about Rs. 1,28,000/- as detailed in Appendix-D to the claim petition. The first three items of this Appendix relate to purchase of a Fiat car especially conditioned for the crippled as stated by Shri Dutta. We do not think the claimmant is entitled to any compensation on this count as the car is a permanent asset and belongs to the claimant, Besides, for a woman of the status of the claimant acquisition of a car cannot be regarded as unusual expenditure. The fact that the car was of especial type has no relevance. We would disallow claim for additional wheel chair, L.I.D.C. equipment and AIR Conditioner (Items 4. 5 and 10 of the Appendix), as these are assets in the hand of the claimant air conditioner could have been gone into, even without the accident (sic). Four items in this Appendix, namely, 6 to 9, are related to certain expenditures borne by the claimant while she was undergoing treatment either in U.K. or U. S. A. As the A. O. C. had defrayed all expenses for her treatment and for going abroad as well (as stated in the Award which has not been disputed before us), we do not think we can award any amount against these items when the claimant has not produced any account of the expenses met by the A.O.C. in the absence of which it is difficult for us to know if the expenditures claimed under these items were included in those which were borne by her employer. Then there is no supporting voucher or account even for these expenses. The last item relates to the service which the claimant thinks she would need for a maid. A sum of Rs. 68,400/- has been claimed on this head on the basis of Rs. 150/- per month for 38 years. The claimant having become almost crippled, as stated by the Doctor whose evidence we shall note later, she may rightly need assistance of a helper to enable her to discharge her normal avocations of life. A sum of Rs. 150/-per month does not also appear to be on the high side. We think that if a sum of Rs. 15,000/- is awarded on this count, the interest on the same at the rate of 12% per annum, which as already pointed out is the present minimum rate of interest, would bring an income of Rs. 150/- to the claimant. We therefore award this sum alone for the additional expenses claimed under Appendix-D.
15. We are left to consider the claim for general damages amounting to about Rs. 4,73,000/- on which count the learned Tribunal has awarded as high a sum as Rs. 4 lakhs. Now it is correct that no amount of money can bring back the meaning of life to Marcia a and compensate the sufferings which the claimant had undergone and the pitiable condition to which she has been rendered by the accident. As stated by the Chief Medical Officer of A. O. C., Dr. Dutta, the claimant has become completely paralysed from below the waist. She has ceased to have the normal power to pass urine and stool and has lost sex sensation. In this witness's opinion, the claimant had become a life long cripple. According to the claimant she has been denied the pleasure of pursuing the normal avocations of life. She has been debarred from playing tennis and badminton which she used to play, nor can she swim now as she used to do. To put in her words, she has been 'completely reduced to a cabbage and my whole life has almost been ruined.' She is now leading a wheeled chair life. The claimant was under constant treatment for a long period of time. Even by Nov. 1973 she was being admitted in hospital.
16. As the accident had taken place when Marcia was aged about 30 years, even by Indian standards it is to be said that she was quite young at that time. If we take the average span of life in India to be 65 years, Marcia has still a long way to go. Difficult though it is, to quantify the suffering etc. in terms of money, the same has nonetheless to be done. We have considered all aspects of the matter and feel that a view may reasonably be taken that a sum of Rs. 1 lakh would be adequate and just compensation on this score. This would fetch her a monthly income of Rs. 1000/- which was her salary at the time of accident. Thus she gets double of what she was earning a good compensation by all counts.
17. By some, this amount of Rs. I lakh as general damage may be regarded as excess, and it may be thought that a sum of Rs. 50,000/- could have well served the purpose. We have nonetheless awarded this sum because while quantifying the compensation on account of loss of job we had altogether excluded from our calculation the increments which Marcia would have earned had she been in service. That such increments are to be taken note of. has been approvd in the Full Bench decision of this Court in Hira Devi, (AIR 1977 Gau 311 as well. In Banti Bama (1978 Ace CJ 412) even revision of pay scale was considered. If we were to take note of the increments. the average of the monthly salary comes to about Rs. 1.500, as by 1983 (when Marcia would have retired on her attaining the age of 45 years) the monthly salary was to become about Rs. 2000/-, from about Rs. 1000/- in 1969. So, if we were to take into consideration the increments due we would have awarded another sum of Rs. 50,000/- on that count, as that sum would have earned Marcia a monthly income of Rs. 500/- by calculating the rate of interest at 12% per annum. We had, however, not done so, because (1) Marcia's service was not very secure, as it could be terminated at one month's notice or pay, as alluded: and (2) the rate of increments about which mention has been made in Ext. 2 did not appear very convincing to us, though these were testified by C. W. 5, as the increment from 1-4-69 to 1-4-70 has been shown @ Rs. 200/- P. m. whereas for the next year @ Rs. 45/-, and for the third year @ Rs, 50/- and so on. We therefore thought that this sum of Rs. 50,000/- may be more appropriately awarded under the head of general damages to highlight our concern for the sufferings undergone by Marcia. Those who would regard Rs. 1 lakh as excessive as general damage under Indian setting, they could adjust the sum of Rs. 50,000/- towards loss of income from service as the above anomaly in rate of increments to which we have drawn attention went unchallenged when C. W. 5 had deposed about it. If he would have been questioned, he could have perhaps explained the same. If the sum is counted under that head, the total on that count would come to Rs. 1,50,000/-, which will by and large be the figure if 30% (20% on account of uncertainty and 10% for lump sum nature of payment) is deducted from the sum of about Rs. 2,22,000/- arrived at by the learned Tribunal for loss of job. 18. Thus, we modify the impugned award by fixing the total amount payable to the claimant at Rs. 2,75,000/-as below :
(i) Rs. 1,60,000/- for loss of job;
(ii) Rs. 15,000/- for expenses claimed under Appendix-D; and
(iii) Rs. 1,00.000/- for general damages.
This figure could be distributed thus as well :
(i) 2,10,000/- for loss of job:
(ii) Rs. 15,000/- for expenses as mentioned in Appendix-D; and
(iii) Rs. 50,000/- for general damages.
19. Shri Choudhury who had emphasised well the human and humane consideration involved in the case, contended that the claimant was entitled to interest as well under the provisions of Section 110-CC of the Motor Vehicles Act, 1939, from the date of application, which was not awarded by the learned Tribunal. As no cross-objection on this count has been taken, we have not felt inclined to award the interest as contemplated by the aforesaid section though it has been held by the Full Bench in Hira Devi that claimants are entitled to interest @ 6% per annum from the date of receipt of their applications. It may be stated that in the claim petition also interest was not claimed. As we have however sliced the awarded amount to about l/3rd of its size it would only be meet and proper to make available to the claimant what is otherwise due to her under the law, as submitted by Shri Choudhury. But as no claim on this count was made earlier we can resonably award interest to run from this date only. It may also be pointed out that though the aforesaid decision has said about interest @ 6% Section 110-CC in its term does not confine the rate of interest at 6%, but states that the interest may be awarded 'at such rate' as may be specified in this behalf. 12% being the minimum market rate of interest now and our calculation having been based on this rate, we have thought it proper to allow interest at this rate.
20. The result is that the appeal stands allowed only to the extent of reducing the amount of compensation to. a sum of Rs. 2,75,000/- as aforesaid, which sum would carry interest @ 12% from today till payment. Parties to bear their own costs throughout.
21. We would close our discussion by referring to Rajasthan State Road Transport Corporation v. Narain Shankar, (1980) 2 SCC 180 :, (AIR 1980 SC 695), wherein Krishna Iyer, J., in his indomitable style referred even to Art. 41 of the Constitution in this regard which enjoins the State to make effective provision for disablement. We hope that the Union would make no delay in paying the compensation as determined by us which we do think is the rightful and just claim of Mrs. Marcia E. Dutta.
T.C. Das, J. 22. I agree.