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Deputy General Manager and Divisional Controller, State Road Transport Corporation, Hassan Vs. H. Saroiarnma and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 740 of 1979
Judge
Reported inAIR1981Kant129; ILR1981KAR560; 1981(1)KarLJ528
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantDeputy General Manager and Divisional Controller, State Road Transport Corporation, Hassan
RespondentH. Saroiarnma and ors.
Appellant AdvocateN.P. Moganna, Adv.
Respondent AdvocateShivaram, Adv. for ;Kesvv & Co. and ;B.S. Chandrashekara Murthy, Adv.
Excerpt:
.....greater savings had he lived for his full natural span of years and that dependant would then on his death have received a considerably larger capital sum than was in fact received on his premature death, the loss of such area value lesser than sum may well outweigh the of the accelerated benefit of the sum......of compensation to be awarded, it is the material on record that the deceased at the time of his death by accident was aged about 34 years and was working as senior assistant in coffee board. ext. d. 1 is the day certificate - of the deceased issued by the coffee board, wherein the total pay including d. a. is rs. 570/- per. month. ext. d. 2 is another letter issued by the coffee board showing the amount of family pension at rs. 270/-; 1) d.c.r.g. at rs. 4.280/- and p. f. at rs. 1,472-31, to be paid to the claimants.16. the tribunal has estimated rs. 300/- p. m. as contribution by the deceased for the maintenance of the family; so annual loss of dependency comes to rs. 3,600/-. the superannuation period of the deceased was 58 years. so the tribunal has taken the balance 24 years of.....
Judgment:

Vithal Rao, J.

1. This appeal by K. S. R. T. C. is directed against the judgment and award dated 19th day of March, 1979, passed by the Motor Accidents Claims Tribunal, Hassan, in Misc. (MVC) No., 27- -of. 1077, on its file, awarding compensation to the legal representatives of the deceased C. Huchegowda in a sum of Rs. 90,000/-

2. The relevant facts, briefly stated, are as follows:

At about 3-00 P. M. on 26-5-1977 the deceased C. Huchegowda was travelling on the pillion of Scooter bearing No. MYS. .3345 driven by P. W.3 Shvlakumar on Honbal-Sakaleshpur road. The scooter was going slowly on the left side of the road and while it was so proceeding near Ganadahole village a K. S. R. T. C. bus bearing registration No. MYF 5276 came with a high speed driven rashly and negligently by its driver from the opposite direction and hit the scooter causing, fatal injuries to the deceased, the pillion rider. The deceased Huchegowda fell down fatally injured. He was removed to the hospital at Sakaleshpur where he succumbed to the injuries. The deceased was aged about 34 years. He was working as a Senior Assistant in Coffee Board Research Department. Natasagara of Sakaleshpur Taluk. He was getting a salary of Rs. 640/- per month. On the bas is of these averments, the widow of the deceased. Claimant No. 1 and the three minor children, claimants Nos. 2 to 4 claimed compensation from the respondents in a sum of Rs. 1,70,000/-

3. Respondent No. 1 is the driver. Respondent No. 2 is K. S. R. T. C., the owner of the vehicle. They filed objections contending, inter alia, that the accident was the result of rash and negligent driving of the scooter by its driver. The scooter was being driven at a very high speed and as it was drizzling at that time the scooter slipped, the deceased, the pillion rider was thrown off the scooter. They further contended that the bus which was coming from the opposite direction stopped on seeing this accident: no part of the bus touched the scooter and so they denied the liability of making payment of any compensation to the claimants.

4. The Tribunal, on the basis of these pleadings of the parties raised the following issues.

1. Whether C. Huchegowda died as a result of the bus bearing No. MYF 5726 dashing against the scooter on which C. Huchegowda was coming sitting on the pillion?.

2. Whether the accident was due to the rash and negligent driving of the bus bearing No. MYF 5726 by the first respondent?

3. Whether the petitioners are entitled to compensation, and if so, to what compensation are they entitled?

5. During hearing, the claimants examined P. Ws. 1 to 4, including Claimant No. 1 as P.W. 4, the driver of the Scooter Shylakumar as P. W. 3 and got marked Exts. P. 1 to P. 5. As against that, the respondents examined D. Ws. 1 to 3, including the driver of the bus as D. W. 3 and got marked Exts. D. 1 to D. 4. The Tribunal, appreciating the material on record, held that the accident was the result of rash and negligent, driving of the bus by its driver and in that view, It awarded compensation in a sum of Rs. 90,000/- to the claimants.

6. Aggrieved by the said judgment and award, the owner of the vehicle (K. S. R. T. C.) has come up in appeal before this Court.

7. The learned Advocate appearing for the appellant, argued that the Tribunal was not justified in holding that the accident was the result of rash and negligent driving of the bus by its driver. He further submitted that the award of Rs. 90.000/- made is too high and excessive. He next contended that the Tribunal was not justified in not taking into account the amount of family pension, provident fund and the gratuity, the collateral benefits received by the claimants.

8. As against that, the learned Counsel for the respondents argued supporting the _judgment and award of the Tribunal.

9. The points, therefore, that arise for our consideration are:

1. Whether the Tribunal was justified in holding that the accident was the result of rash and negligent driving of the bus by its driver and if so, whether the compensation awarded by the Tribunal is just and proper?

2. Whether the Tribunal was justified in not giving deduction of amounts received by the claimants in respect of Family Pension, provident Fund and Gratuity?

10. P. W. 3 Shylakumar, the driver of the scooter, has stated that at about 3-00 P. M. himself and the deceased Huchegowda, as pillion rider, left Honbal for Sakaleshpur. He was driving the scooter slowly on the left side of the road. It was drizzling then. While they were near village Ganadahole, they saw a Government bus coming from the opposite direction in a high speed on its extreme right side on the road: and when it was just about to dash against the scooter, the driver of the bus suddenly took the bus to the left side, as a result of which the back side of the bus struck his right arm and the bus severely dashed against the deceased Huchegowda. The scooter, himself and Huchegowda fell down. Huchegowda received fatal injuries and became unconscious. The cross-examination of this witness has not brought out any material to show that the version of the occurrence as spoken by this witness is in any way improbable. The, version of this witness is corroborated by the evidence of P. W. 2. Ninaaiah, who is a resident near about the spot of accident. No material has been elicited in the cross-examination of this witness as well, to show that the narration of occurrence as spoken by this witness is in any way improbable. The Tribunal has not placed any reliance on the evidence of P. W. 1 Lakkappagouda, on the ground that it is doubtful Whether this witness P. W. 1 was travelling on that day in the said bus. We do not see any reason to differ with the finding of the Tribunal in this regard.

11. The respondents have examined the driver of the bus as D. W. 3 and two witnesses D. Ws. 1 and 2, passengers in the said bus, D. W. 3 Noor Husain has stated that while he had stopped the bus at Ganadahal bus stop, he saw the scooter coming from the opposite direction. The scooter Passed by the side of the standing bus. Thereafter the conductor gave whistle and he started the bus. Then some passengers in the bus cried out to stop the bus stating that the scooter had fallen down. He stopped the bus and saw that the Pillion rider of the scooter had fallen down fatally injured. He stated that the bus did not dash against the scooter.

12. D. Ws. 1 and 2 are passengers who were travelling in the said bus then, D. W. 1 has stated that he did not see how actually the accident took place. He came to know of the accident when some passengers cried that the scooter fell down.

13. The respondents in their objection statement at Para 3 have stated.

'The respondents submit that on 26-5-1977 the vehicle was en route to Hanbal from Sakaleshpur. That day being a shandy day the bus was full. There were heavy rains on that day and the respondent was driving the vehicle in a very low speed due to heavy load and also as there were heavy rains. The scooter on which the deceased wag sitting on the pillion was coming from the opposite direction in a very high speed. The rider of the scooter went to the side of the road and as there was wet mud due to rains the scooter slipped and the rider lost the control. Immediately the pillion rider was thrown out from the scooter. The bus which was coming from the opposite direction was stopped and the inmates of the bus, the Driver and the conductor attended to the deceased. The deceased was sent to the hospital in a car. It is submitted that no part of the bus driven by the first respondent touched the scooter and there was no rash or negligent act on the part of the respondent No. 1 as the vehicle was going in a slow speed.'

The plain reading of this objection statement of the respondents would go to show that the accident took place in front of the bus while the bus was moving on the road. The evidence adduced by the respondents is that the bus had stopped at Hanbal bus stand, the scooter passed by the side of the standing bus and the accident took place behind the bus.

14. There is thus complete variance between the pleading and the evidence of D. Ws. 1 to 3. Therefore, the version spoken to by these witnesses, i.e., D. Ws, 1 to 3, is not worthy of acceptance, and that is the finding given by the Tribunal as well. We see no reason to differ with the reasoning of the Tribunal in discarding the evidence of D. Ws. 1 to 3. In view of these facts and circumstances of case, we confirm the finding of the Tribunal that the accident was the result of rash and negligent driving of the Bus by its driver.

15. Now adverting to the quantum of compensation to be awarded, it is the material on record that the deceased at the time of his death by accident was aged about 34 years and was working as Senior Assistant in coffee Board. Ext. D. 1 is the Day certificate - of the deceased issued by the Coffee Board, wherein the total pay including D. A. is Rs. 570/- per. month. Ext. D. 2 is another letter issued by the Coffee Board showing the amount of family pension at Rs. 270/-; 1) D.C.R.G. at Rs. 4.280/- and P. F. at Rs. 1,472-31, to be paid to the claimants.

16. The Tribunal has estimated Rs. 300/- P. M. as contribution by the deceased for the maintenance of the family; so annual loss of dependency comes to Rs. 3,600/-. The superannuation period of the deceased was 58 years. so the Tribunal has taken the balance 24 years of service of the deceased and multiplied the annual loss of dependency of Rs. 3,600/- by 24 and has arrived at the total amount of Rs. 86,400/-. It has further awarded a sum of Rs. 5000/- towards loss of consortium and loss to the estate of the deceased, Rs. 500/- towards taxi charges. Thus it has awarded global damages of Rs. 90,000/- to the claimants. The Tribunal has not given any deduction for the amount received by the claimants towards family pension, D. C. R. G. and Provident Fund. It has also not given any deduction for lump sum grant and uncertainties of life.

17. The learned Counsel for the appellant contended that the method for assessing compensation adopted by the Tribunal is not proper; the Tribunal was not Justified in not giving any deduction for the amounts received by the claimants by way family pension, D. C. R. G. and P. F.

18. While considering the question of choosing a suitable method for assessing compensation, one important factor which the Tribunal should bear in mind, is that under Section 110-B of the Motor Vehicles Act it is the 'just' compensation which is required to be awarded. Two important approaches as to the methods adopted by the Courts for assessing compensation are: (i) method adopted by the Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd.. reported in (1951 AC 601) and (ii) the method suggested by Lord Wright, in Davies v. Powell Duffryn Associated Coilieries Ltd., reported in (1942 AC 601).

19. After Pointing out that the claim for damages in such cases would fall under two separate 'heads viz., (i) maintenance of wife and family (ii) savings, Viscount Simon points out the proper approach to the determination of these damages in the following words:

'Under the first head indeed, for the purpose of both heads it is necessary first to estimate what was the deceased man's expectation of life if he had not been killed when he was, (let this be 'Y' years) and next what sums during these x years he would probably have applied to the support of his wife. In fixing x, regard must be had not only to his age and bodily health but to the Possibility of a Premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant and often the best evidence available, though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might, have grown or wilted.'

Lord Wright explained the method suggested by him as under:

'There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and Pence, subject to the element of reasonable future Probabilities. The starting Point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own Personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.'

This method of Lord Wright has generally come to be known as 'multiplier method'.

In Halsbury's Laws of England, Fourth .Edition, Volume-12 at Para 1156, it is stated thus:

'Since a plaintiff can invest his damages, the lump sum award in respect of future loss must be discounted to reflect his receipt of interest on invested funds, the intention the plaintiff will each year draw some interest and some capital (the interest element decreasing and the capital drawings increasing with the Passage of years), so that he is compensated each year for his annual loss, and the fund will be exhausted at the age which the Court assesses to be the correct age, having regard to all contingencies.

The calculation depends on selecting an assumed rate of interest, but for the ordinary case the experience of the Courts has evolved a system in which a 'multiplier' should be used as the normal and primary method of assessment of pecuniary loss.'

20. This method of multiplier is also recognized by the Supreme Court in its various decisions, including Gobald Motor Service Ltd. v. R. M. K. Veluswami, reported in : [1962]1SCR929 and C. K. Subramanva Iyer v. T. Kunhikuttan Nair, reported in : [1970]2SCR688 .

21. In our opinion, therefore, it would be safe to proceed to assess compensation in this case by adopting the multiplier method, making a judicious use of a Proper number of years' purchase as this is a case of death of the family (vide : Gobald Motor Service Ltd. v. K. Veluswami : [1962]1SCR929

22. The next question is whether deductions are required to be made, in respect of collateral benefits received of pension and other benefits after having arrived at the total figure of compensation for loss of dependency.

23. The cases on the subject reveal a conflict of views. Some High Court have taken the view that deductions should not be given for the receipt of family pension, provident fund, insurance policy amount and the gratuity amount. They are in the following decisions:

(a) Life Insurance Corporation of India v. Legal representatives of deceased. Naranbhai Muniabhai Vadhi (1973Acc CJ 226 High Court-.of Guiarat): (AIR 1973 Gui 216), regarding Life Insurance amount and Death cum retirement gratuity amount:

(b) Sood and Company, Kulu v. Suriit kaur (1973 Ace CJ 414, High Court of Punjab and Haryana). Regarding Gratuity and P. F. amount.

(c) Bhagawanti Devi v. Ish Kumar (1975 Ace CJ 56 High Court of Delhi) Regarding Gratuity, pension. provident fund and Insurance amount:

(d) Shakurmiya Imammiva Shaikh v. Minor Surondra Singh Rup Singh (1978 Ace CJ 130, High Court of Gujarat) Regarding: Pension; and

(e) H. P. Road Transport Corporation v. Pt, Jai Ram . Regarding: Family Pension, Insurance and Gratuity amount.

24. The contrary view holding that deduction should be allowed for such of the amounts received by the dependant finds support in the following decisions of different High Courts:

(a) Mohinder Kaur v. Manphool Singh (1973 Acc CJ 515, High Court of Delhi). Regarding: Pension;

(b) Sushila Devi v. Ibrahim (1974 Acc CJ 150 High Court of Madhya Pradesh): : AIR1974MP181 , Regarding Pension. Insurance and Gratuity amount;

(c) M/s. Chaurasiva & Co. v. Smt. Pramila Rao 1974 Acc CJ 481 High Court of Madhya Pradesh : : AIR1975MP31 , Regarding: Pension, and

(d) Jaikumar Chhagan Lal Patni v. Mary Jerome D'Souza (1978 Acc CJ 28 High Court of Judicature, Bombay) : AIR1978Bom239 , Regarding: Life Insurance amount.

25. In Megregor on Damages, Fourteenth Edition, at para 1326, it is stated thus:

'Whereas there was for Iona general acceptance of the rule that the damages in a personal injury claim were not to be reduced because benefits had been conferred upon the plaintiff by third parties which mitigated his loss, the general rule was the exact opposite where the claim was in of a fatal injury, and it became accepted, without any real dispute, that only the net pecuniary benefit accruing to the dependants was recoverable as damages. This undoubted general rule finds its clearest and most authoritative expression in the speeches of their Lordships in Davies v. Powell Duffryn. Colleries, (1942) AC 601, Lord Macmillian put it thus: Except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is net loss on balance which constitutes the measure of damages.'

26. In Halsbury's Laws of England, Fourth Edition, Volume 12 at Para 1150, it is stated thus:

'The dependants of a deceased man killed by the negligence of another have a claim under the Fatal Accidents Acts in respect of their pecuniary loss, but certain benefits which they receive as a result of the death fall to be taken into account in reduction of their loss.'

27. In Gobald Motor Service Ltd, v. R. M. K. Veluswami : [1962]1SCR929 the Supreme Court referred with approval to the passage of Lord Russell of Killowen in Davies v, Powell Duffryn Associated Collieries Ltd. AC 601, thus: (at p. 5 of AIR)

'The general rule which has always prevailed in regard to the assessing, of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being, considered separately.'

The Supreme Court further held that (at p. 6 of AIR)

'Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss of the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.'

28. The law as laid down by the Supreme Court in Gobald Motor service Case : [1962]1SCR929 , referred to above, requires that in ascertaining the pecuniary loss to the dependants arising on the death, deduction must be made for benefits which would not have arisen at all but for the death.

29. This Court in Parvatamma v. Syed Ahmed ((1976) 2 Kant LJ 372) has held that the collateral benefits accruing to the deceased , such as family pension ,have to be deducted and in the case of life insurance policy amounts , the accelerated benefit has to be taken in to account.

30. In view of the principles laid down by the Supreme Court in Gobald Motor Service Case : [1962]1SCR929 unless the law is changed, as is done in England in 1959, making a specific provision for the exclusion of collateral benefits received by the dependants consequent upon the death, the collateral benefit, such as family pension, has to be taken into account and deduction has to be given for the amount so received in the amount of compensation awarded. The High Courts which have taken the contrary view are obviously influenced by the decision rendered by the House of Lords in Perry v. Cleaver (1969 Ace CJ 363), without fully appreciating that law in England is amended in 1959.

31. In the Quantum of Damages, Volume 1. Fourth Edition by Kemp & Kemp, at page 221, it is stated thus:

'Where a sum has been paid to a dependant solely by reason of the death. the sum is to be taken into account. However, if the payment or part there of was likely to have been made to the dependant at some future date in any event the dependant's benefits as the result of the death is not the whole amount of such Payment, but the value of the acceleration of that Payment Plus the certainty of its receipt. In such a case it would be wrong to take the whole amount of the Payment into account. Further, where the dependant can show a reasonable expectation that the deceased would have accumulated greater savings had he lived for his full natural span of years and that dependant would then on his death have received a considerably larger capital sum than was in fact received on his premature death, the loss of such area value lesser than sum may well outweigh the of the accelerated benefit of the sum.'

Therefore with regard to the Life Insurance amount, we have to given necessary deductions for the accelerated receipt of the said amount.

32. The Provident Fund amount is the fund deposited by the deceased, in the course of his employment. Therefore, receipt of the said sum by the dependants is not consequent to the death, of the deceased but it is only an amount received by the dependants which the deceased himself had deposited with the employer. Therefore it is not necessary to give deduction for its receipt by the dependants.

33. So far as the amount towards D. C. R. G. is concerned it is the amount given by the employer out of his contract of service. This amount the deceased would have received even if there was no premature death by accident, and he would have lived to serve the employer for the rest of the period. Therefore, this amount also need not be taken into account for giving deductions.

34. We shall now adopt the multiplier method for assessing the compensation payable to the claimants. The deceased was aged about 34 years 'at the time of his death by accident and was drawing a salary of Rs. 570/- Per month. He had also the prospects of getting more salary, at any rate, by way of increments. Hence, we fix the loss of dependency at Rs. 350/- per month instead of Rs. 300/- per month, fixed by the Tribunal. From out of this, however, we deduct Rs. 50/- per month in consideration of the family pension awarded to the widow. That leaves the balance at Rs. 300/- Per month, which works out to Rs. 3,600/- Per year.

35. Considering the age of the deceased and the rate of interest Prevailing, we propose to take '12' as the multiplier. Multiplying, therefore, Rs. 3.600/- by 12, we get the total loss of dependency at Rs. 43,200/-. To this has to be added Rs. 5,000/- towards loss to the estate of the deceased, Rs. 3,000 towards loss of consortium and Rs. 500/- towards taxi charges. Together, therefore the global compensation to which the claimants are entitled would be Rs. 51,700/- instead of Rs. 90,000/- awarded by the Tribunal.

36. In the result therefore, the appeal is Partly allowed. The compensation amount of Rs. 90,000/- awarded by the Tribunal is reduced to Rs. 51,700/-. The appellant shall pay the same alone with interest at the rate of 6 % per annum from the date of petition till Payment as also costs before the Tribunal. Claimant No. 1 is the widow, Claimants Nos. 2 to 4 are minor children of the deceased. Claimants too. 2 to 4 are awarded Rs. 12,000/- each with interest and Claimant No. 1 is awarded Rs. 15,700/- with interest and costs be fore the Tribunal. Claimant No. 1 on receipt of the amount awarded to the minors, shall deposit the same in fixed deposit in a Scheduled Bank in the name of the minors with herself as guardian till-such time the minors attain the age of majority. Claimant No. 1 is, however. At liberty to withdraw the interest accrued thereon from time to time and spend the same for the welfare of the minors.

37. The parties are directed to bear their own costs in this appeal.

38. Order accordingly.


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