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Smt. Neelima Arora Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 238 of 1973
Judge
Reported inAIR1978All111
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantSmt. Neelima Arora
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateShanti Swarup Bhatnagar, Adv.
Respondent AdvocateV.K. Barman, Adv.
DispositionAppeal partly allowed
Excerpt:
.....- compensation to be calculated on what factors - no fixed and unalterable standards can be laid - compensation calculated on life expectancy and earnings of deceased. - 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 divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by..........place on 19th july 1971, in which brij mohan arora lost his life in the following circumstances:brij mohan arora was a medical officer attached to primary health centre, binauli block, tahsil sardbana, district meerut. he was under orders of transfer to chamoli. on the fateful day, he was going from meerut to sardhana on his motorcycle no. usd 4119 at about 8.30 a.m. a military truck no. rc 5587 came from the opposite direction. in overtaking a rickshaw, it dashed against the motor-cycle of brij mohan arora causing serious injuries. he was taken to the hospital where he died, leaving behind his widow smt. neelima arora and two minor children, namely shalini arora, minor daughter aged about if years, and baby arora, minor son, aged about two months. smt. neelima arora, his widow, filed.....
Judgment:

R.B. Misra, J.

1. The present appeal is a sequel to an unfortunate accident, which took place on 19th July 1971, in which Brij Mohan Arora lost his life in the following circumstances:

Brij Mohan Arora was a Medical Officer attached to Primary Health Centre, Binauli Block, Tahsil Sardbana, district Meerut. He was under orders of transfer to Chamoli. On the fateful day, he was going from Meerut to Sardhana on his motorcycle No. USD 4119 at about 8.30 A.M. A military truck No. RC 5587 came from the opposite direction. In overtaking a rickshaw, it dashed against the motor-cycle of Brij Mohan Arora causing serious injuries. He was taken to the hospital where he died, leaving behind his widow Smt. Neelima Arora and two minor children, namely Shalini Arora, minor daughter aged about if years, and Baby Arora, minor son, aged about two months. Smt. Neelima Arora, his widow, filed a claim on her behalf and on behalf of her minor children and claimed a sum of Rs. 2,50,000/- by way of compensation against the respondents, namely, Union of India through the Secretary, Defence Department, Central Secretariat, New Delhi, 5 Field Regiment, Meerut Cantonment, through the Commanding Officer and the Driver Sri Surendra Singh, on the allegations that the accident took place due to rash and negligent driving of the military truck by Surendra Singh, the driver of the truck.

2. The claim was resisted by the respondents. The respondents filed a common written statement. They admitted that the accident took place on 19th July, 1971, at about 8.30. A M. at the place alleged by the appellant by truck No. R C 5587 in which Dr. Brij Mohan Arora lost his life. They, however, pleaded that the military truck had gone to the railway station to collect mail and while it was returning after collecting the mail, at a speed of 25 Km. per hour, the truck overtook a rickshaw going in the same direction, when he saw that the deceased Dr. Brii Mohan Arora was coming on a motor-cycle from the opposite direction at a fast and reckless speed. The driver of the vehicle, in order to give a clear passage to the motorcyclist, kept his vehicle towards his left after crossing the rickshaw, yet the deceased motor-cyclist dashed against the Army vehicle, as he was in high speed and the motor-cyclist swerved to his right and could not control the same because of the high speed. According to the respondents, the accident was due to the own fault of the deceased Dr. Brij Mohan Arora and not due to the negligence of the driver of the military vehicle. The respondents were, therefore, not liable to pay any compensation and, in any case, the compensation claimed was excessive.

3. The pleadings of the parties gave rise to the following three issues:--

'1. Whether the accident took place due to the rash and negligent driving by Surendra Singh, driver of Military truck in question, or whether the accident took place due to rash and negligent driving of the motor-cycle of the deceased?

2. Whether at the time of accident the Military truck was returning after collecting mail from the railway station and, as such, the Union of India is not liable to pay compensation?

3. To what compensation, if any, are the applicants entitled and from which O. P.?'

4. The Claims Tribunal came to the conclusion, that the accident took place due to the rash and negligent driving of the driver of the military truck No. R C 5587, on issue No. 1. On issue No. 2, the Tribunal held that the Union of India was liable to pay compensation for the tortious act of the driver of the military truck. On issue No. 3, the Tribunal assessed the amount of compensation at Rs. 60,000/- with costs pendente lite and future interest at 6% with these findings, the Tribunal allowed the claim of the appellant and awarded a compensation of Rs. 60,000/- with interest of 6% by its order dated 2nd June 1973. Smt. Neelima Arora feeling aggrieved by the award, has come up in appeal before this Court.

5. The Union of India has submitted to the award and has filed no appeal. Therefore, the only issue that survives for consideration in this appeal is issue No. 3 regarding the amount of compensation.

6. The appellant submitted a claim for Rs. 2,50,000/- by way of compensation. Smt. Neelima Arora, at the time of the death of Dr. Brij Mohan Arora was 21 years of age and her two children were of 13/4 years and 2 months. Smt. Neelima examined herself as P. W. 1. She stated that she was married with Dr. Brij Mohan Arora in February, 1969 and Ku. Shalini Arora and Baby Arora, her two children, were born from the wedlock. She further stated that her husband was a medical graduate M. B. B. S. from the Allahabad Medical College and was employed as a P. M. S. Officer. At the time of the accident, ho was getting a salary of Rs. 648/- after deducting the income-tax. He was appointed as a doctor at Binauli, but was under orders of transfer to Chamoli and was preparing to go to Chamoli. She deposed that she and her children were solely dependent on the deceased Dr. Brij Mohan Arora, she also examined Sri Suraj Bhan Sharma (P. W. 4), who was a clerk in the Treasury Office, Meerut, to prove the salary the deceased was getting at the time of his death. The clerk had brought the pay register of the Gazetted Officers in the medical department. He stated that Dr. Brij Mohan Arora used to get Rs. 658.75 p. by way of salary and a sum of Rupees 10/-was deducted out of his salary towards Income Tax and in all, he was paid Rs. 648-75 p. He. however admitted in his cross-examination that the basic pay of Dr. Brij Mohan Arora was Rs. 375/- per mensem and he used to get Rupees 70/- as special pay, Rs. 128/- as dearness allowance, and Rs. 93.75 as non-practising allowance.

7. Dr. B. C. Saxena (P. W. 2). who performed the post-mortem examination on the dead body of Dr. Arora, deposed that Dr. Arora was aged about 28 years. The Claims Tribunal accepted the evidence produced on behalf of the claimant and found that Dr. Brij Mohan Arora was aged about 28 years at the time of his death. This finding has not been challenged before this Court by. any of the parties. The Tribunal took the view that Dr. Arora would have been in service as a P. M. S. doctor up to the age of 58 years. He might have reached the highest office in service and. in any case, must have gone to the highest grade in the Provincial Medical Service. It, however observed that there are ifs and buts in life and the life is full of chances and vicissitudes. The decessed might have been dismissed from service or might have died earlier and might not nave reached the age of 58 years, i. e. the age of superannuation. It further took the view that Dr. Arora would have been paying to the family only a sum of Rs. 200/- and, therefore, the Tribunal assessed the compensation at the rate of Rs. 200/- per mensem for a period of thirty years which works out to Rs. 72,000/- but if the said amount is deposited in bank, if might fetch interest and, therefore, he assessed the damages at Rupees 60,000/- after making a due allowance of the interest which the amount would have fetched if deposited in the bank.

8. The assessment of damages in cases of personal injuries is, perhaps, one of the most difficult task which a Judge has to perform. The task is so difficult because the elements which must be considered in forming the assessment in any given case vary so infinitely from other cases that there can be no fixed and unalterable standard for assessing the amount for those particular elements. The Courts have been making these assessments over many years and I think that they do form some guide to the kind of figure which is appropriate to the facts of any particular case and when therefore a particular matter comes for review, one of the questions is how does this accord with the general run of assessments made over the years in comparable cases?

9. In Ward v. James (1965) 1 All ER 563 Lord Denning made the following significant observations:--

'These recent cases show the desirability of three things: First as-sessability. In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity. There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability. Parties would be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.'

10. The same principles, which have been enunciated by the courts in England for awarding compensation have been adopted by the Supreme Court in this country.

11. In Gobald Motor Service Ltd. v. Veluswami, AIR 1962 SC 1 Subba Rao, J. as he then was, cited with approval, the observations of Lord Wright in 1942 A C 601 and Viscount Simon in 1951 A C 601 and deduced the following Principles:--

'At first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances, thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death: fourthly further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents 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 can be ascertained only by balancing on the one hand the loss to 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.

12. Winfield in his Treatise on 'Law of Tort' (Eighth Edition) has stated the principles at page 679 thus.

'The basic principle for the measure of damages in tort as well as in contract is that there should be restitutio in integrum. Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. In a case of personal injury this criterion can and should be applied to the pecuniary elements of the plaintiffs loss such as his loss of earnings. Indeed compensation in the literal sense is no more possible than restitution, and what is given has been described as notional or theoretical compensation to take the place of that which is not possible, namely, actual compensation.'

The author further observes:

'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 making a number of years' purchase. That sum has to be taxed down by having regard to the uncertainties. The number of years' purchase is left fluid and will vary according to the deceased's expectation of working life as it was at his death, the probable duration of the dependency of the dependants and so on. There are in fact so many imponderables in each case that arithmetic, though a good servant, is a bad master and accordingly a round figure should be assessed.'

Kemp & Kemp in their book on 'The Quantum of Damages' (Second Edition) Volume 2 at page 19 have described the general principles as:--

'The basic figure is the value of the dependency. It should usually be possible to assess the value of the dependency at the date of the deceased's death with some accuracy. Usually the most important factor will be the age and expectation of working life of the deceased himself. He is the source of the dependency. which could not be in any event have continued beyond the span of his working life. But one must also consider the expectation of life of the dependants, and in particular whereas husband is killed of his widow. The future prospects of the deceased, if he had not been killed, will also affect the multiplier. If the deceased had good prospects of attaining a much greater wage or salary, or of achieving promotion to a much better position, the court will apply a higher multiplier. On the other hand, the court must take account of the uncertainties of life, particularly where the deceased was engaged in some especially hazardous employment. The court will also make some discount on the ground that the dependants get a lump sum down and will be able to enjoy the interest on it. But in this connection it is submitted, that regard should be had to the general depreciation in the purchasing power of the pound sterling over the last fifty years and more a trend which unfortunately shows no sign of altering. Regard should also be had to the fact that the interest will be taxed. Where the deceased had good prospects of considerably increased earnings the court must take into account that the value of the dependency would probably have increased as the deceased's earnings increased. The assessment of damages in this type of case, if calculated in terms of the annual value of the dependency at the date of death, may represent a multiplier of twenty or more.'.

13. Sri S. S. Bhatnagar appearing for the appellant, contends that the Tribunal has gone wrong in accepting the life expectancy as 58 years. He contends that the life expectancy in India is not less than 70 years. The Tribunal has accepted the life expectancy of the deceased only of 58 years and thereby has committed a grave error in assessing the amount of compensation on that basis. In support of his contention, Mr. Bhatnagar has relied upon Shiv Prasad Gupta Agarwala v. S. M. Sabir Zaidi, AIR 1968 All 186; Smt Shanti Devi v. General Manager, Punjab Roadways, Ambala, AIR 1971 Punj 13; Babu Singh v. Smt. Champa Devi, AIR 1974 All 90 and Kasturilal Gopaldas v. Prabhakar Martand Patki, AIR 1071 Madh Pra 145.

14. Sri V. K. Barman, appearing, for the Union of India, however, referred to a set of other reported decisions in which the life expectancy was accepted to be sixt.y years or less than that. They are Bhagchand Panju Ram v. Snehlata, 1975 Ace CJ 9 : (AIR 1975 Raj 212); Rita Arora v. Salig Ram, 1975 Acc CJ 420: (AIR 1976 Him Pra 24); Bhagwanti Devi v. Ish Kumar, 1975 Acc CJ 56 (Delhi).

15. The longevity of man depends upon various factors. If there was longevity in the family, normally, the longevity descends down to the des-cendents as well. In the instant case, however, no evidence has been produced as to how long the father and the grandfather of the deceased lived. In the absence of such evidence, sixty years may be accepted as the life expectancy of the deceased. Therefore, compensation has to be calculated on the basis of sixty years as the life expectancy of the deceased.

16. The next question for consideration is as to what amount would have been spent by the deceased for his own expenses. The deceased was getting a salary, including dearness and other allowances of Rs. 648, deducting the annual income-tax. In view of the uniform authorities, one third of the total emoluments would be deemed to have been spent by the deceased in maintaining himself. So, deducting the one-third of the total emoluments, the balance of Rs. 432/- would be the amount left for the support of his wife and children and this is the amount which the wife and children of the deceased would have received every month from the deceased. They are, therefore to be compensated by a sum calculated at Rs. 432/- up to the life span of sixty years.

17. As observed in the earlier part of the judgment, the deceased was 28 years of age at the time of his death. Therefore, he could be expected to have lived up to the age of sixty years, i.e. for thirty two years more. He would have retired at the age of 58 years, but we have not taken into account the preferment in his position and the consequent increase of his salary and other emoluments in subsequent years. We can, therefore, safely calculate the amount of compensation up to the age of sixty years. Calculated at the rate of Rs. 432/- per month, the annual amount would work out to Rs. 5,184/- and this multiplied by thirty-two, the number of years up to which he would have lived, would come to Rs. 1,65,888/- Making a deduction of the amount for the lump sum payment at the rate of 33%, the amount would come to Rs. 55,296/-

18. Under the law, the Tribunal has to make an apportionment of the total compensation among the various claimants. Both the children were too young. The question is of their schooling and in case of the daughter, a substantial amount will have to be spent in her marriage. Under the circumstances, the total amount of compensation is to be apportioned equally to all the claimants and calculating on that basis, the amount of each of the claimants would be Rs. 36,857.00 P. The widow, being the natural guardian would be entitled to receive the entire amount on her behalf and on behalf of the minor children.

19. In the result, the appeal is allowed, in part, and the amount of compensation awarded by the Claims Tribunal is modified to the extent that instead of Rs. 60,000/- as found by the Tribunal, the claimants would be entitled to a sum of Rupees 1,10,571.00P. in equal shares. In the circumstances of the case, we make no order as to costs.


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