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Brij Kali Devi and ors. Vs. Ramchand Bishan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 144 of 1974
Judge
Reported inAIR1979All49
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantBrij Kali Devi and ors.
RespondentRamchand Bishan Singh and ors.
Appellant AdvocateG.R. Jain, Adv.
Respondent AdvocateP.K. Mukherji and ;T.N. Hukku, Advs.
DispositionAppeal partly allowed
Excerpt:
.....caused - compensation allowed previously was on grounds of savings of deceased only - held, other pecuniary losses apart from savings are to be considered to decide amount of compensation - compensation for mental shock caused to the deceased is not provided in the act - amount of compensation re-assessed and awarded. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the..........savings estimated by it. as stated earlier, the claimants are entitled to be compensated for the loss of pecuniary benefit which they would have derived had the deceased not died. they are not to be compensated either for what the deceased was earning or for what he was saving, it may be that in case apart from what the deceased had been spending over the claimants, he had also been saving something, the savings that the deceased was likely to make would also go to increase the pecuniary loss suffered by the claimants, but then their total pecuniary loss cannot be limited only to such savings. if in the instant case, as held by the tribunal, the deceased was actually savinga sum of rs. 50/- to rs. 100/- per month, the claimants may, in addition to the amount which the deceased was.....
Judgment:

H.N. Seth, J.

1. Shrimati Brij Kali Devi widow of deceased Amrit Lal, her children and parents of Amrit Lal have filed this appeal under Section 110-D of the Motor Vehicles Act against the award made by Motor Accidents Claims Tribunal, Allahabad dated 5-12-1973.

2. On behalf of the appellants, it was claimed that on 2nd of Aug. 1969 at about 4 A. M., Amrit Lal, the deceased was going on his ekka laden with vegetables and fruits to Khuldabad Mandi in the district of Allahabad. A motor truck No. BRV 4263 which was being driven rashly and negligently came from behind and dashed against the ekka with the result Amrit Lal fell down from the ekka. He came under the truck and was crushed to death. At the time of his death, Amrit Lal was about 30 years old and was earning a sum of Rs. 750/- per month by dealing in wholesale supply of vegetables and fruits. Normally, members of Amrit Lal's family lived up to the age of 80 or 85 years and his life expectancy had been cut short by about 50 years. Thus Amrit Lal would have earned an amount not less than Rs. 4,50,000/- in his lifetime. If from out of this sum, the amount which the deceased would have spent on himself be deducted and an allowance is made for unforeseen events as also for receipt of compensation in a lumpsum, the claimants will in any case, be entitled to receive a sum of Rs. 50,000/-by way of compensation for the loss of Amrit Lal's life. In addition they claimed a sum of Rs. 20,000/- as compensation for mental shock and physical pain suffered by the deceased and Rs. 780/- as compensation for the loss and destruction of Amrit Lal's merchandise, ekka and horse. The total claim made by the claimant thus came to Rs. 70,780/-.

3. As the truck in question had been purchased by Ram Chand Bishan Singh, Ranchi, Bihar (respondent No. 1), under a hire purchase agreement with M/s. Fair Finance Private Ltd., Delhi (respondent No. 2) both of them were impleaded in the claim as an opposite party Nos. 1 and 2. Messrs Ram Chand Bishan Chand sent a written statement by post but did not thereafter appear to contest the claim. Respondent No. 2 did not file any written statement and the case proceeded ex parte against it. Respondent No. 3 Hindusthan General Insurance Company insurer of the truck, which had been arrayed as opposite party No. 3, alone filed a written statement and contested the claim. It denied that the accident was the result of rash or negligent act on the part of the driver of the insured vehicle. According to it, the deceased lost his life because of his own negligence. So far as the amount of compensation was concerned, the case of the company was that the deceased, at the time of his death, was about 50 years old and that his life expectancy could not be 50 years as claimed by the appellants and that the claim had been grossly exaggerated.

4. After going through the evidence, the Claims Tribunal found that the accident in question took place as the driver of Truck No. 4263 had been negligent in driving the vehicle and that the claimants were entitled to be compensated for Amrit Lal's death. The Tribunal observed that the deceased, not being an income tax payer, could not have been earning more than Rs. 400/- per month, and that his income appeared to be about Rs. 200/-to Rs. 300/- per month. In the circumstances of the case, he could not be expected to save anything more than Rs. 50 per month. Even if his income was taken to be Rs. 400/- per month and the sum of Rs. 200/- to Rs. 300/- spent by him for maintaining his family was deducted there from, his saving could in no case exceed Rs. 100/- per month. The deceased was, at the time of the accident, 32 years old and treating normal expectancyof his life as 65 years, he was expected to live for 33 years more. Calculating on this basis, he would have, during his life saved Rs. 39,600/- (100 x 12 x 33). However, as his savings could be anything between Rs. 50/- to Rs. 100/- per month and making an allowance for lump sum payment, Rs. 20,000/- would be fair amount of compensation to be paid to the legal representatives of the deceased. In the result, it made en award against the respondent fixing Rs. 20,000/- along with future and pendente lite interest at the rate of 6% per annum as compensation payable to the appellants.

5. Being aggrieved by the award made by the Tribunal, the claimants have come up in appeal before this Court. According to them, the Tribunal should have, for the death of Amrit Lal, awarded compensation amounting to Rs. 50,000/-as claimed by them. They contend that the Tribunal erred in not at all adverting to their claim for Rs. 20,000/- as compensation for mental shock and physical pain suffered by the deceased, as also to that for Rs. 780/- for destruction of property belonging to the deceased. According to them, apart from compensation for the loss of Amrit Lal's life, they are entitled to receive Rs. 20,780/-as well under aforementioned two heads.

6. Despite service of notice, respondents Nos. 1 and 2 did not put in appearance and the appeal proceeded ex parte against them. It is only the Hindusthan General Insurance Company, respondent No. 3, which has appeared before us to contest the appeal.

7. Section 110-B of the Motor Vehicles Act lays down that on receipt of application for compensation under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and will make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation is to be paid. It further enjoins upon the claims Tribunal to specify the amount which is to be paid by the Insurer or owner or driver of the vehicle involved in the accident or by all or any of them as the case may be. It will thus be seen that the amount of compensation payable to the claimant in respect of accident involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising has been left to the judicial discretion of the Claims Tribunal. Accordingly, the Claims Tribunal has to, on some sound and rational basis, depending upon peculiar circumstances of each case, determine fair compensation payable to the claimants.

8. In the case of Gobald Motor Service Ltd. v. R. M. K. Veluswami (AIR 1962 SC 1), the Supreme Court observed that In calculating the pecuniary loss to the dependants many imponderables enter into the calculations. Therefore, the actual extent of the pecuniary loss to the dependant may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss an be ascertained only by balancing on one hand the loss to the claimants of the future pecuniary benefits 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.

9. In the case of Sood and Company, Kulu v. Surjit Kaur (1973 ACT 414), Punjab and Haryana High Court enunciated one of the judicially accepted principles for determining the compensation in such cases thus:--

'The only just and simple formula for determining the amount of compensation by capitalizing the monthly contribution of the deceased towards the maintenance of his family for years by which his life expectancy stood cut short by the accident and it is only while apportioning the said compensation amongst the claimants that their respective needs and requirements be taken into consideration by the court.'

The view taken by the Punjab and Haryana High court was approved by a Division Bench of this Court in the case of Which Narain v. State of U. P. (1977 ACJ 165) (All).

10. It will thus be seen that unless there is something special in the circumstances of a particular case which may justify determination of compensation payable to a claimant on some other basis, normal rule for its determination is to ascertain the future pecuniary benefit which the claimants would have gained, had the deceased not died and thereafter to adjust there from any pecuniary advantage which from whatever source comes to the claimants by reason of the death. It is also not disputed by the appellants that in those cases where the pecuniary loss is estimated on the basisof the total amount which the deceased would have spent on them, that, if the amount is to be awarded in a lump sum, the claimants would derive an advantage by receiving the entire amount in advance. Accordingly, while computing compensation on the basis of claimant's total pecuniary loss, due allowance will have to be made for this accelerated receipt of amount.

11. In the instant case, the claimants adduced oral evidence to show that the deceased was earning about Rs. 700/- to Rs. 800/- per month. However, in view of the fact that it had not been shown that the deceased was an income tax payee, the Claims Tribunal, after taking into consideration the minimum income which at that time was taxable rightly came to the conclusion that the deceased would not have been earning anything more than Rs. 400/- per month. Shrimati Brij Kali Devi widow of deceased appeared in the witness box and stated that the deceased was, from out of his income, spending a sum of Rs. 200/- to Rs. 300/-per month on his family members. Neither did the contesting respondent cross-examine the witness on the point, nor did it adduce any evidence to show that the deceased was spending anything less than Rs. 200/- to Rs. 300/- per month on the claimants. In view of this evidence, which we have no reason to disbelieve, it has to be accepted that the claimants have, because of Amrit Lal's death suffered a pecuniary loss to the extent of Rs. 200/- to Rs. 300/- per month.

12. So far as the age of the deceased is concerned, he was, according to claimants, about 30 years old at the time of his death. The contesting respondent namely the Insurance company took the stand that the deceased was, at the time of his death, about 50 years old. However, the Insurance Company did not adduce any evidence in support of its plea that at the time of his death, the deceased was 50 years old. It merely contented itself by critisizing the evidence in this regard produced by the claimants. On behalf of the claimants, three witnesses, namely, Smt. Brij Kali Devi, Ram Surat and Baij Nath were produced to show that the deceased at the time of his death, was 30 to 32 years old. Shrimati Brij Kali Devi is the widow of Amrit Lal, and Ram Surat and Baij Nath are residents of the same locality where the deceased resided. In the circumstances, these witnesses were in a position to form an estimate about the ageof the deceased. As Shrimati Brij Kali Devi, at the time of her evidence was about 30 years old, it is not unlikely that at the time of the incident, which took place about four years before Brij Kali Devi's statement, the deceased was about 30 to 32 years old (age difference between wife and husband being four to six years). In absence of any contrary evidence produced on behalf of the Insurance Company to show that the deceased at the time of his death was 50 years old, we find no reason for not accepting the evidence of these three witnesses, merely on the ground that the claimants did not examine either the father of the deceased, or produce his horoscope to prove his precise date of birth. Evidence of the father could have been criticised on the ground that the witness was interested in inflating the claim. So far as non-production of horoscope of the deceased is concerned, we find that there is absolutely no evidence or even a suggestion to any witness of the claimants that such a document existed in fact. In the circumstances, production of any such document would have been open to the criticism that it had been fabricated for purposes of the case. The evidence produced in the case, shows that as a result of the accident, body of Amrit Lal was reduced to pulp. In the circumstances, it could not be expected that the Doctor conducting the post-mortem examination could have been in a position to correctly estimate the age of the deceased. Non-production of the post-mortem examination report by the claimants therefore is of no significance. If the post-mortem examination report had revealed anything to the contrary, the Insurance Company could easily have procured a copy of the same and produced it before the Claims Tribunal. We are accordingly of opinion that on the basis of evidence produced in the case the Claims Tribunal was justified in concluding that the deceased, at the time of his death, was about 32 years old.

13. So far as life expectancy of the deceased was concerned, Shrimati Brij Kali Devi made a statement that members of her family survived up to the age of 60, 70, 80, or 90 years. On the basis of such a statement, it cannot be said that claimants have succeeded in proving that the normal life expectancy of the deceased could not be less than 80 years. Nothing has been shown to us which may indicate that the Claims Tribunal made an error in estimating the life expectancy of the deceased as 65 years. Accordingly, the deceased had, as held by the Claims Tribunal, about 33 years more to live during which time he could have gone on spending a sum of Rs. 200/- to 300/- per month on the claimants.

14. The pecuniary loss suffered by the claimants on account of Amrit Lal's death thus came to about Rs. 80,000/-(200 x 12 x 32 = 79200). In the normal course, this pecuniary advantage would have been received by the claimants over a period of 33 years in instalments. In the circumstances, if the amount of compensation payable in a lump sum to the claimant on the date of accident is to be determined, the amount of total pecuniary loss likely to be suffered by the claimant over a period of 33 years will have to be reduced appropriately. We find that in the case of Hinch Narain v. State of U. P. (1977 ACJ 165) (All), this Court made a deduction of 25 per cent from the total pecuniary loss that was likely to be suffered by the claimants on this account. In view of the fact that the pecuniary loss in this case was to be suffered by the claimants over a longer period, we think that a deduction of about 33 per cent on this account from the total pecuniary loss would be appropriate. The amount of compensation payable to the claimants under this head therefore comes to Rs. 80,000/- minus Rs. 26,666 = Rupees. 53,334/-. In the circumstances, we find that the claim for compensation of Rs. 50,000/- made by the claimant in this regard was amply justified.

15. In our opinion, the Tribunal completely erred in computing the loss suffered by the claimants only on the basis of the savings estimated by it. As stated earlier, the claimants are entitled to be compensated for the loss of pecuniary benefit which they would have derived had the deceased not died. They are not to be compensated either for what the deceased was earning or for what he was saving, it may be that in case apart from what the deceased had been spending over the claimants, he had also been saving something, the savings that the deceased was likely to make would also go to increase the pecuniary loss suffered by the claimants, but then their total pecuniary loss cannot be limited only to such savings. If in the instant case, as held by the Tribunal, the deceased was actually savinga sum of Rs. 50/- to Rs. 100/- per month, the claimants may, in addition to the amount which the deceased was spending upon them, be entitled to be compensated for such saving as well and this would have the effect of increasing the compensation payable to them even beyond the amount of Rs. 50,000/-. As in this case, the claimants have in this regard, confined their claim to Rupees 50,000/- only, it is not necessary for us to go into the question as to whether or not the Tribunal was right in holding that the deceased was, from out of his earning, saving a sum of Rs. 50/- to Rs. 100/- per month.

16. During hearing of the case, our attention was invited to the case of Mrs, Manjushri Raha v. B. L. Gupta (1977 ACJ 134) : (AIR 1977 SC 1158), wherein the Supreme Court had increased the amount of compensation payable to the claimants by quantifying the same on the basis of alleged savings that the deceased would have made in his lifetime. In that case, the Claims Tribunal had quantified compensation payable to the claimant on the basis of the saving that the deceased was expected to make. Before the Supreme Court the basis adopted by the Claims Tribunal for quantifying compensation was not questioned. What the appellants in that case urged was that the Tribunal had incorrectly made a low estimate of the savings which the deceased was expected to make in his lifetime. This argument prevailed and the Supreme Court enhanced the amount of compensation payable to the appellants accordingly. This case in our opinion, does not purport to lay down any new principle for determining compensation payable in such cases, different from that laid down by the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswami (AIR 1962 SC 1) that in such cases the loss suffered by the claimants can be ascertained by balancing on the one hand the loss of future pecuniary benefit to them, and any pecuniary advantage which from whatever source comes to them by reason of the death on the other. Being deprived of the savings which the deceased would have made during his lifetime may amount to a loss of pecuniary benefit suffered by the claimants, but it does not mean that whatever the deceased was actually spending on them during his lifetime was not their pecuniary loss. In the circumstances of the case, we are of opinion that the ClaimsTribunal should have accepted appellants' claim for Rs. 50,000/- as compensation for pecuniary loss suffered by them on account of Amrit Lal's death.

17. So far as appellant's claim for compensation amounting to Rs. 20,000/-on account of mental shock and physical pain suffered by the deceased is concerned, we are of the opinion that under Section 110-A of the Motor Vehicles Act, legal representatives of the deceased have been enabled, in case of accident involving death of the person to claim compensation in respect of the loss suffered by them. No case has been brought to our notice wherein under the Motor Vehicles Act, a claim for compensation for any personal loss suffered by the deceased, which did not affect the claimant, has been accepted and any compensation awarded therefor. We are accordingly of opinion that the claim made by the appellants for recovery of Rs. 20,000/- on account of mental shock and physical pain suffered by the deceased is not maintainable.

18. The appellants further claimed a sum of Rs. 780/- on account of destruction of the ekka, horse, vegetables and fruits which were being carried by Amrit Lal at the time of the accident. Certainly destruction of the horse and the ekka and vegetables and fruits has resulted in pecuniary loss to the claimants. This pecuniary loss is in addition to the loss suffered by them as a result of losing a sum of Rs. 200/- to Rs. 300/- every month which the deceased had been spending over their maintenance. They are accordingly entitled to claim compensation for this loss as well.

19. Claimant's witness Ram Surat stated that the value of the horse/mare belonging to Amrit Lal which was destroyed as a result of this accident was at least Rs. 800/-. There is nothing to contradict the evidence given by this witness. The claim that the appellants have suffered a loss of Rs. 780/- because of destruction of ekka and horse, does not appear to be exaggerated and must be accepted.

20. In the result, the appeal succeeds and is allowed in part. The amount of compensation awarded by the Tribunal is increased to Rs. 50,780/-. It is also directed that the respondents shall be liable to pay pendente lite and future interest on this amount at the rate of 6 per cent per annum from the date of presentation of the claim, i.e. 20-8-1969till the date of realisation of the same. The liability of the Insurance Company shall, however, as provided by Section 95 (2) (c) of the Motor Vehicles Act as it stood at the relevant time be limited to Rupees twenty thousand (Rs. 20,000/-) only. .


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