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New India Assurance Co. Vs. Shakuntala Devi - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC329
AppellantNew India Assurance Co.; Shiv Punjab Patel;shakuntala Devi
RespondentShakuntala Devi;new India Assurance Co.
Cases ReferredSee Suresh Chandra Saxena v. Union of India and Ors.
Excerpt:
- - the deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which was expected to grow. the liability to compensate for mental shock in accident cases is well recognised......5.00 p.m. near a crossing close to the railway stadium. the victim aged about 24 was on cycle. jeep taxi upq 1960 dashed against him from behind and dragged him for some distance. he sustained grievous hurt to which he succumbed the same day in the civil hospital. he was a bachelor and in private employment earning rs. 400/- per month. the claim position was filed by the mother on august 7, 1976. this was opposed. the tribunal on considering the evidence awarded a sum of rs. 57,600/- as compensation.3. the constast is these appeals is triangular. the learned counsel for the new india assurance company limited submitted that the tribunal erred in not making the deduction on account of the lump sum payment and the uncertainties and hazards involved in the normal expectancy of the.....
Judgment:

B.D. Agarwal, J.

1. These appeals under Section 110-D Motor Vehicles Act are directed against a decision of the Motor Accidents Claims Tribunal, Gorakhpur dated May 12, 1977.

2. The accident occurred on June 11, 1976 at about 5.00 P.M. near a crossing close to the Railway stadium. The victim aged about 24 was on cycle. Jeep Taxi UPQ 1960 dashed against him from behind and dragged him for some distance. He sustained grievous hurt to which he succumbed the same day in the civil hospital. He was a bachelor and in private employment earning Rs. 400/- per month. The claim position was filed by the mother on August 7, 1976. This was opposed. The tribunal on considering the evidence awarded a sum of Rs. 57,600/- as compensation.

3. The constast is these appeals is triangular. The learned Counsel for the New India Assurance Company Limited submitted that the tribunal erred in not making the deduction on account of the lump sum payment and the uncertainties and hazards involved in the normal expectancy of the capacity to earn. For the owner of the Jeep Taxi, the counsel urged that there was no negligence or rashness of the driver. Learned Counsel for the claimant argued that the compensation awarded is inadequate since the tribunal has not granted any amount for nervous shock resulting to the mother.

4. In so far as the negligent or rashness of the driver of the Jeep Taxi is concerned, the evidence for the claimant is unrebutted. A.W. Ram Daur has his Tea Stall near the crossing. A.W. Munna was taking tea at this shop. Both of them are eye witnesses to the accident. They are named in the first information report lodged shortly after at 6.45 P.M. Munna also escorted the victim to the hospital. The deceased was crossing the Patri on cycle when the Jeep Taxi dashed against him from behind. The evidence is that Jeep Taxi was being driven at a high speed; the horn was not blown; the driver could not even apply brake; as a result the victim was dragged on for some distance whereafter the driver fled away. He was not examined in rebuttal, nor was any explanation assigned. The owner of the Jeep Taxi admits in his deposition that he was not on the spot at the moment. No other evidence on the subject was given from his side. The tribunal therefore, rightly concluded, in our view, that the accident occurred due to the negligence or rashness of the driver of the Jeep Taxi.

5. In regard to compensation, as stated above, the deceased was nearly 24 years old. His father died early at the age of 40 years but his was accidently due to drowning in the river. The grand father died at the age of 75. The life expectancy could be reasonably put at 70 years. The claimant was about 45-46 years old when the petition was filed. A.W. Kailash Chand testified that the deceased was under his employment since March 1, 1975 on salary of Rs. 400/- per month. He was engaged in the work of welding and repairs of old drums. The agreement dated March 22, 1975 (Ex. 2) relating to the employment of the deceased has also been placed on the record. It is argued that on being married the deceased might not have found it possible to contribute Rs. 200/- per month for the mother. This does not take into account the chances of rise in the earning of the deceased with the passage of time. It is equally possible that he might have been able to devote spare time to carry on some repair work at home and thereby augment the income as the claimant also stated in her deposition.

6. In assessing damages the tribunal has, however, also to take into account certain other factors such as the uncertainties of life and the fact of accelerated payment that the mother would be getting a lump sum payment which but for her son's death would have been available to her in driblet over a number of years. In Madhya Pradesh State Road Transport Corporation Bairagarh Bhopal v. Sudhakar and Ors. 1977 A.C.J. 290, the Supreme Court observed :

Allowance must be made for the uncertainties and the total figure scaled down accordingly. The deceased might not have been able to earn till the age of retirement for some reason or other, like illness or for having to spend more time to look after the family which was expected to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Some climant of conjecture is inevitable in assessing damages. Lord Peares in Mallatt v. Mc Monagla, calls it 'reasonable Prophe-cy.

7. This was followed by a Division Bench of this Court in Smt. Radha Agarwal and Anr. v. State of Uttar Pradesh and Anr. 1983 A.W.C. 638. The deduction made on that account was at the rate of 25% from the amount of compensation assessed as the claimant would have received the amount determined in driblet speed over a period of 37 years. Considering that the Apor in the instant case would be of 24 years only, we think it reasonable that the deduction may be made at the rate of 20%. In this manner the amount admissible to the claimant would be Rs. 57,600/--Rs. 11,520/- i.e. Rs. 46,080/-.

8. The petitioner has also laid claim to Rs. 4000/- by way of general damages for anguish and mental shock caused to her. It is not difficult to imagine the shock which the widowed mother must have suffered naturally at the loss of the adult earning member of the family. The tribunal dismissed this part of the claim observing that nothing can be awarded against this item since this is not a case of malicious prosecution or defamation. This impression of the tribunal is wholly erroneous. The liability to compensate for mental shock in accident cases is well recognised. See Suresh Chandra Saxena v. Union of India and Ors. 1982 A.C.J. 540. There is nothing in the statute or the general law of Torts to exclude the liability for general damages. In our opinion, to award a sum of Rs. 4,000/- on this item would be reasonable.

9. Having regard to the discussion made in the above, the claimant is entitled to recover a sum of Rs. 50,080/- with interest at the rate of 6 percent per annum simple commencing from the date of petition i.e. August 7, J976 till the date of payment.

10. F.A.F.O. No. 419 of 1977 is accordingly dismissed F.A.F.O. No. 222 of 1977 and F.A.F.O. No. 567 of 1981 are allowed in part. The claimant shall be entitled to recover Rs. 50,080/- with interest at the rate of Rs. 6/- percent per annum simple commencing from August 7, 1976 till the date of payment and the proportionate costs.


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