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The State of Madhya Pradesh Vs. Smt. Davi Rawat and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 173 of 1977
Judge
Reported inAIR1981MP173
ActsMotor Vehicles Act, 1939 - Sections 110-A
AppellantThe State of Madhya Pradesh
RespondentSmt. Davi Rawat and ors.
Appellant AdvocateM.V. Tamasker, Govt. Adv.
Respondent AdvocateP.C. Naik, Adv.
Cases ReferredManjula Devi v. Manjushri Raha.
Excerpt:
.....because of its bad condition that the accident happended and not because of any negligence of the driver. d-3 which goes to show that the vehicle was perfectly in order. knowles, (1978) 2 all er 604. the object in assessment of damages is to find out the capital sum required to purchase an annuity of an amount equal to the annual value of the benefits with which the deceased had provided the dependants while he lived and for such period as it could reasonably be estimated they would have continued to enjoy them but for his premature death. this latter figure is less than the number of years which represents the period for which it is estimated that the dependants would have continued to enjoy the benefit of the dependency, since the capital sum will not be exhausted until the end of..........split into two parts: (a) the pecuniary loss estimated to be sustained by the dependants from the date of death until the date of trial: and (b) the pecuniary loss which the dependants would sustain from thetrial onwards. this course has been suggested having regard to the practice of frequent wage increase due to inflation. in other words, the annual dependency at the trial should be fixed having regard to the increase in wages up to that date and damages up to that date should be calculated. the annual dependency so determined has further to be used for calculating post-trial damages without taking into account the change in dependency due to inflation on the reasoning that the valuation of the annuity is made on the basis of low interest rates such as 4 to 5% and this involves a.....
Judgment:

G.P. Singh, C.J.

1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939, against an award, dated 31st March, 1977, made by the Motor Accident Claims Tribunal, Sidhi.

2. The deceased A.S. Rawat, who was a Divisional Forest Officer in the State Forest Service, died in a Motor accident on 18th April, 1975. The deceased was then posted at Satna. He was going from Satna to Bargawa in a Government jeep in the normal course of his employment. The jeep was driven by Mohammad Ali (respondent No. 5) who is employed as a Forest Guard but was authorised to drive the ieep as a part of his duty. The jeep overturned near village Gopalpur. The deceased received multiple injuries on his head and other parts of his body as a result of which he died while on way to the hospital. The claim for compensation against the State and the driver Mohammad Ali was lodged by the widow of the deceased and three minor daughters. By the award under appeal, the Tribunal has allowed Rs. 82,000/- as damages to the claimants. Interests at the rate of 6% has also been allowed from the date of the award till payment. The State has come up in appeal against this award. The claimants have filed a cross-objection for enhancement of the award.

3. The first question that arises in this appeal is whether the driver was negligent in driving the vehicle as a result of which it overturned. The driver was examined as N. A. W. 3. Another witness who was examined on the same point is S.C. Shrivastava (N. A. W. 2) The evidence of these witnesses, specially that of the driver, discloses that the vehicle at the time of accident was negotiating a hill. It was running at a speed of 30 to 40 Kms. per hour. On the left side of the road was the sleep hill and on the right side a deep ravine. A herd of goats which was on one of the sides of the road, suddenly came towards the middle of the road. The driver tried to save the goats and applied the brakes which resulted in the overturning of the vehicle. The driver of a motor vehicle has to be very cautious while negotiating a hill. More caution is needed when animals are seen on the sides of the road because it is common experience that their behaviour on the approach of a motor vehicle is uncertain. The speed of a motor vehicleto be termed reasonable, must be adjusted to the circumstances of the case. Having regard to the facts stated above, it cannot be said that the speed of 30 to 40 Kms. at which the jeep was being driven at the relevant time, was a reasonable speed. It is not the case of the driver that the goats were not visible from a distance. A reasonable driver would have foreseen the possibility of the goats straying on the road on the apporach of the vehicle and would have considerably reduced the speed. In our opinion, the driver was clearly negligent in not slowing down the vehicle which would have avoided sudden application of brakes and the overturning of the vehicle.

4. It was submitted before us that the vehicle was not in a fit condition and that it was because of its bad condition that the accident happended and not because of any negligence of the driver. It was argued that the deceased was in know of the fact that the vehicle was not in a fit condition and still he took the hazard of travelling in it and, therefore, the State is not liable. In our opinion, there is absolutely no merit in this argument. It is true, as appears from the evidence of the driver, that the vehicle had earlier also been involved in some accidents, but it does not follow from this evidence that the vehicle was not roadworthy and not fit for use. The vehicle was examined next day after the accident by a mechanic of the police department. The report of this inspection is Ex. D-3 which goes to show that the vehicle was perfectly in order. This inspection report completely demolishes the argument that the deceased used the vehicle even though it was not in a fit condition.

5. As the accident happened as a result of the negligence of the driver, the Government is vicariously responsible for damages. The principles relating to the assessment of damages were discussed by this Court in Kamla Devi v. Kishanchand AIR 1970 Madh Pra 168 and Chaurasia and Co. Chhatarpur v. Pramila Rao AIR 1975 Madh Pra 31. These decisions have taken note of important English and Indian authorities reported till then on the subject including the recent decisions of the House of Lords in Mallet v. McMonagle 1970 AC 166 and Taylor v. O'Connor 1971 A. C. 115.The following passage from the judgment in Pramila Rao's case sums up the position (at p. 35 of AIR) :

'The principles on which damages areassessed in a case of fatal accident have been discussed by a Division Bench of this Court in Kamla Devi v. Kishanchand AIR 1970 Madh Pra 1G8. After referring to the relevant Indian and English authorities it was pointed out thai the assessment of damages in ordinary cases resolves into estimating the proper annual dependency, the multiplicand and selecting the number of years' purchase, the multiplier. This method of arriving at the amount of damages has again been approved by the House of Lords in Taylor v. O'Connot 1971 A. C. 115. The object is to estimate what amount should be awarded so that its income supplemented by drawings on capital may yield the amount of annual dependency during the remaining period of dependency or the estimated remainder of the working life of the deceased whichever may be shorter. The multiplier selected is not equal to the number of years of dependency or to the remainder of the working life of the deceased; it is much less, for it takes into account that instead of yearly payments a lumpsum is being awarded and that contingencies may arise in future to cut short the period of dependency. Growing inflation has led to the caution of emphasising that the sum to be awarded should be assumed to be invested in 'growth' stocks carrying a low rate of dividend; (Taylor v. O'Connor 1971 AC 115). This, in effect, is the same thing as saying that valuation should be made of an annuity on the basis of low interest rates such as 4 to 5% which assume that the money values are steady but involve a higher number of years' purchase: (See Munkman, Damages for Personal Injuries and Death, 5th Edition. P. 157). Notice has also to be taken of the pecuniary benefits which become available to the dependants as a result of the death of the deceased and which would not have been available to them had the deceased lived. In England, under the Fatal Accidents Act, 1959, 'any insurance money benefit, pension or gratuity which has been or will or may be paid in respect of the death' has to be disregarded in computing damages. There is no such corresponding law in India and, therefore, these benefits must be brought intoaccount in the award of damages as was previously done in England: (See for example a case of pension, O'Neill v. S. J. Smith & Co. (Bidford Ltd). (1957) 3 All ER 255) ).'

6. The mehtod of assessing damages by finding out the amount of annual dependency, i. e. the multiplicand, and the number of years' purchase, i. e. the multiplier, has been approved by the Supreme Court in M. P. S. R. T. Corporation v. Sudhakar, AIR 1977 SC 1189 where the decision of the House of Lords in Mallett v. McMonagle (1970 AC 1G6) (supra) has been referred to. Another method for assessing damages was applied by the Supreme Court in Manju-shri v. B. L. Gupta, AIR 1977 SC 1158 by calculating the actual income lost to the family including the value of the estate after deducting the day to day family expenses and payment of income-tax and other charges. We, however, prefer to follow the method applied by the Supreme Court in Sudhakar's case. (AIR 1977 SC 1189). The multiplicand-multiplier method was again approved by the House of Lords in Cookson v. Knowles, (1978) 2 All ER 604. The object in assessment of damages is to find out the capital sum required to purchase an annuity of an amount equal to the annual value of the benefits with which the deceased had provided the dependants while he lived and for such period as it could reasonably be estimated they would have continued to enjoy them but for his premature death. Such a capital sum is expressed as the product of multiplying an annual sum which represents the dependency by a number of years' purchase. This latter figure is less than the number of years which represents the period for which it is estimated that the dependants would have continued to enjoy the benefit of the dependency, since the capital sum will not be exhausted until the end of that period and in the meantime so much of it as is not yet exhausted in each year will earn interest from which the dependency for that year could in part be met. (Cookson v. Knowles P. 608) (supra). The House of Lords in Cookson v. Knowles have made one modification. The modification is that the damages should be split into two parts: (a) the pecuniary loss estimated to be sustained by the dependants from the date of death until the date of trial: and (b) the pecuniary loss which the dependants would sustain from thetrial onwards. This course has been suggested having regard to the practice of frequent wage increase due to inflation. In other words, the annual dependency at the trial should be fixed having regard to the increase in wages up to that date and damages up to that date should be calculated. The annual dependency so determined has further to be used for calculating post-trial damages without taking into account the change in dependency due to inflation on the reasoning that the valuation of the annuity is made on the basis of low interest rates such as 4 to 5% and this involves a higher number of years' purchase. The capital sum so worked out is much more than what it would be at the current rate of interest and his counter-balances for future inflation.

7. The facts relevant for assessing damages in the instant case are that the deceased was aged 35 years at the time of his death. He was drawing a salary of Rs. 989/- p. m. with allowances at that time. The scale of pay of the deceased was Rs. 680-1150. The deceased on the date of his death had been in the State Forest Service for 3 1/2 years. After completion of eight years' service he would have qualified himself for selection to the Indian Forest Service. The deceased would have continued to be in service till the age of 58 years and would have earned pension thereafter. He may have lived up to the age of 65 years. The dependants left bv the deceased are his widow aged 30 years and three minor daughters aged 6, 3 and 1 1/2 years. The remainder of the working life of the deceased at the time of his death was 23 years excluding the period after his retirement. The dependency of the widow as also of the minor children would have lasted nearly the whole of the remaining working life of the deceased. The Tribunal calculated Rs. 500/- p. m. as the amount which the deceased must have been providing for his family at the time of his death. In our opinion, this estimate is a bit low. Further, we have to take into account the increments which the deceased would have earned in future and also the prospect of his getting entry into the Indian Forest Service. Possible improvements in earning ability leading to variations in the rate of dependency are best taken into account by estimating an average rate over the total period, rather than a suc-cession of annuities: (Mallett v. Mc-Monagle (1970 AC 166) (supra) and Munkman, Damages for Personal Injur-ies and Death. 5th Edition, p. 158). Having regard to all the factors, we think that the average dependency should be estimated at Rs. 750/- p. m. i. e. Rs. 9,000/- per year. Taking into account the circumstance that the deceased would have remained in service for 23 years more from the date of his death, we select 15 as the number of years purchase i. e, the multiplier. The amount of damages to compensate for the loss of dependency thus works out to Rs. 1,35,000/-. The present value of an annuity of Rs. 9,000/- for 23 years on the basis of the interest rate of 4 per cent will also be nearly the same: (See Archer's Loan Repayment and Compound Interest Tables, p. 365). We have still to estimate the benefits which the widow would have received after retirement from the pension and gratuity which the deceased would have received at the age of 58 years. We fix the value of this benefit at Rs. 10,000/-. In our opinion, the claimants were thus entitled to Rs. 1,45,000/- as damages from the respondents. Out of this amount we apportion Rs. 70,000/- to the widow and Rs. 25,000/- each to the three minor daughters. We have not divided the damages into two parts i. e. pre-trial and post-trial damages, because, there is no evidence that there would have been any appreciable change in the earning of the deceased from the date of his death up to the date when the Tribunal decided the case.

8. It was contended before us by the learned Government Advocate that the cross-obiection filed by the claimants is not maintainable as Order 41, Rule 22 of the Code of Civil Procedure is not applicable to an appeal under Section 110-D of the Motor Vehicles Act. It is not necessary to examine this point in detail because it is concluded in favour of the claimants by a decision of a Division Bench of this Court in Manjula Devi v. Manjushri Raha. 1967 MPLJ 972.

9. As a result of the above discussion, the appeal is dismissed with costs. The cross-objection is partly allowed. The amount of damages awarded by the Tribunal is enhanced to Rs. 1,45,000/- to be apportioned as indicated above. This amount will carry interest from the date of the award of the Tribunal at 6PER cent. There will be no order as tocosts of the cross-objection.


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