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Kaushalya Bai and ors. Vs. Simplex Metalics and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1(1984)ACC201
AppellantKaushalya Bai and ors.
RespondentSimplex Metalics and ors.
Cases Referred and Smt. Kamla Devi and Ors. v. Kishan Chand and Anr.
Excerpt:
.....of an independent person like manbhajan singh (a. 5), as stated above, clearly stated that the motor cycle had already turned towards gorakhpur side and had gone a few steps towards gorakhpur, when a car coming from the opposite direction came to the same side and collided with the motor cycle. but from the evidence it clearly appears that the driver of the car did not take proper care to avoid the accident. 11. the principle relating to the assessment of damages were examined by this court as well as by the supreme court in several cases taking note of some of the english decisions. it is common knowledge that a hindu widow with a child has a poor chance of remarriage. a prospective and promising artist like the deceased would have earned at least to begin with rs. having regard to..........act') has been directed by the claimants against the award dated 17th february, 1981 made by the motor accidents claims tribunal, jabalpur in claim case no. 45 of 1977, dismissing the claim of the appellants.2. on 18th july, 1977 at about 8.00 a.m. there was an accident on the cross-road by the side of military officers, mess, jabalpur. the vehicles involved in this accident were a fiat car no. m.p.q. 9106 belonging to respondent no. 1 simplex metalica driven by its partner respondent no. 2 shri chandrakant shah and a rajdoot motor cycle no. h.r.d. 6533 driven by deceased amarjeet singh, while his father harbhagat singh (now dead) was sitting behind him on the pillion seat. the motor cycle driven by deceased amarjeet singh came from the side of third railway bridge heading towards.....
Judgment:

Faizan Uddin, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1908 therein after referred to as 'the Act') has been directed by the claimants against the award dated 17th February, 1981 made by the Motor Accidents Claims Tribunal, Jabalpur in Claim Case No. 45 of 1977, dismissing the claim of the appellants.

2. On 18th July, 1977 at about 8.00 a.m. there was an accident on the cross-road by the side of Military Officers, Mess, Jabalpur. The vehicles involved in this accident were a Fiat Car No. M.P.Q. 9106 belonging to respondent no. 1 Simplex Metalica driven by its partner respondent No. 2 Shri Chandrakant Shah and a Rajdoot Motor Cycle No. H.R.D. 6533 driven by deceased Amarjeet Singh, while his father Harbhagat Singh (now dead) was sitting behind him on the pillion seat. The Motor Cycle driven by deceased Amarjeet Singh came from the side of Third Railway Bridge heading towards Gorakhpur side in a moderate speed while the Fiat Car driven by the respondent no. 2 came from opposite direction and proceeding towards Third Railway Bridge in an excessive speed. The deceased Amarjeet Singh had negotiated the crossing of the road by turning towards his right side in order to proceed towards Gorakhpur but the driver of the car instead of proceeding straight from thecross-road turned his vehicle towards Gorakhpur side and dashed against the motor cycle on the left side; the clutch of the motor cycle get entangled in the door of the motor car, dragging it to some feet and then the motor cycle driver Amarjeet Singh and his father on the pillion seat were thrown off. The deceased Amarjeet Singh sustained head injuries while his father Harbhagat Singh sustained bodily injuries including the fracture. Amarjeet Singh and his father Harbhagat Singh were taken to Victoria Hospital in the same Fiat car by respondent no. 2 along with the witnesses Manbhajan Singh (A.W 5) Later on Amarjeet Singh was removed to the Medical College Hospital, where he succumbed to his injuries next day.

3. Respondent Nos. 1 and 2 did not dispute that the Fiat Car involved in the accident belong to respondent No. 1 and at the relevant time it was driven by respondent no. 2. They also did not dispute the happening of the accident. Respondent no. 1 and 2 however pleaded that the accident had resulted due to negligence of the motor cycle driver himself who dashed against the Fiat Car on the cross-road when the Fiat Car had already turned towards Gorakhpur side. They also denied that the car was coming from the opposite direction and pleaded that the car was coming from the side of the Railway Station proceeding straight towards the Fourth Bridge side while the Motor Cycle collided with car from behind when the car had already taken the turn. Respondent no. 3 is the Insurance Company with whom the said Car is insured which is not disputed.

4. Appellant No. 1 is the mother of deceased Amarjeet Singh while appellant No. 2 is his widow and appellant no. 3 is minor son. Appellant nos. 4 to 9 are brothers and sisters of the deceased. At the time of the accident, the deceased was aged about 25 years and was a student of Fourth Year for Diploma Course in Fine Arts in Kala Niketan Institute, Jabalpur. He used to make Paintings and Fine Art Models and used to sell them. He had also applied to the State Bank of India for grant of loan for purchase of a Mini Bus to run as Taxi. He had also applied for grant of quarry lease for lime stone. It was contended that the deceased though studying in IVth year in the Fine Arts Diploma Course, he was earning a monthly income of Rs. 3000/- from Paintings and Models of Idols. The appellants, therefore, claimed a sum of Rs. 3 lacs (3,00,000) as compensation for the death of Amarjeet Singh.

5. Separate claim for damages was also laid by Harbhagat Singh, father of the deceased, as damages for his personal injuries which was registered as claim case No. 46 of 1977; but Harbhagat Singh died during the pendency of the claim petition and, therefore, the legal representatives were brought on record but the Tribunal rejected their claim on the ground that the legal representatives cannot claim compensation for the personal injuries suffered by Harbhagat Singh as the right to claim compensation for personal injuries dies with the death of the person. No appeal has been filed against the rejection. In the present case, the legal representatives of the deceased Harbhagat Singh were also brought on record in the trial Court itself (that is, appellants no. 1 and No. 4 to 9).

6. As regards the claim of the appellants, for the compensation of deceased Amarjeet Singh, the Tribunal case to the conclusion that under the provisions of the Fatal Accidents Act, 1955 only the parent, widow, husband, sons and daughters of the deceased, are entitled to claim compensation whereas the right to claim compensation by the brothers and sisters is restricted to the loss to their estate and as there was no claim for the loss to the estate, the brothers and sisters of the deceased Amarjeet Singh were not entitled to claim as his legal representatives. The Tribunal, however, rejected the claim of the mother, widow and son of the deceased by holding that the driver of the car was not responsible for the accident and the accident took place due to negligence of the deceased himself against which this appeal has been directed.

7. The first question that arises for our decision in this appeal is whether the driver of the car or the driver of the motor cycle was negligent in driving the vehicle as a result of which the accident took place in which Amarjeet Singh died. On this point the only relevant evidence is that of respondent No. 2 Chandrakant Shah who was driving the car at the relevant time, one Constable Manbhajan Singh (A.W. 5) and Harbhagat Singh, the deceased father of Amarjeet Singh, whose statement was recorded as P. W. 5 in 22-8-1978 in the Criminal Trial against respondent no. 2 in Criminal Case No. 4202 of 1977 State of M.P. v. Chandrakant Shah in the Court of Judicial Magistrate First Class, Jabalpur.

8. The driver of the car, Chandra Kant Shah took the plea and tried to support by his solitary evidence that he was not coming from the opposite direction but he was coming from the side of Jabalpur Railway Station and proceeding straight towards the Fourth Railway Bridge with the moderate speed and that his car had passed the cross-road and was by the side of the Military Officers' Mess when the motor cycle came from the side of Third Railway Bridge and on turning to the side of Fourth Railway Bridge dashed against the rear door of the car. As against this, deceased Harbhagat Singh and Constable Manbhajan Singh (A.W. 5) made totally a different version. Both these witnesses consistently stated that the car involved in the accident was coming from the opposite direction and not from the side road. They also consistently stated that the driver of the motor cycle was first to take turn on the cross-roads towards Gorakhpur and had gone a few steps ahead from the cross-road and the car also took turn to the same side and collded with the motor as a result of which the clutch of the motor cycle got entangled to the door of the motor car which dragged the motor cycle to come distance and then fell down throwing the deceased and his father causing them injuries which resulted in the death of Amarjeet Singh. Here it may be pointed out that Shri Chandrakant Shah, driver of the car was a person interested in order to escape criminal as well as civil liabilities against him. This apart, it appears that he invested the theory of coming from different direction instead of coming from the front side which is falsified by the evidence of late Harbhagat Singh and Manbhajan Singh (A.W. 5). It may be said that late Harbhagat Singh, the father of the deceased was also on interested person but his evidence is supported by the evidence of an independent person like Manbhajan Singh (A.W. 5) who was not in any way interested with the cause of the either party. There is no reason to disbelieve his evidence as to the circumstance in which the accident took place. We, therefore, believe the evidence of constable Manbhajan Singh (A.W. 5) who was an independent witness and who was also coming from the same side from which the motor eycle was coming and had seen the accident. Manbhajan Singh (A.W. 5), as stated above, clearly stated that the motor cycle had already turned towards Gorakhpur Side and had gone a few steps towards Gorakhpur, when a car coming from the opposite direction came to the same side and collided with the motor cycle. It is fully established that the handle or the clutch of the motor cycle was entangled with door of the car. The entanglement of the clutch or the handle of the motor cycle is more probable when car came from the opposite side and collided with the motor cycle. This circumstance also supports the version of the deceased Harbhagat Singh and Manbhajan Singh (A.W. 5). Respondent no. 2 Chandrakant Shah, who was driving the car admitted that before the accident he had seen the motor cycle coming from the side of the Third Railway Bridge but he could not assess its speed. It shows that though the driver of the car had seen the motor cycle approaching towards the cross-road, yet he took no care and caution to avoid the possibility of any accident and turned his vehicle. There is no evidence that the driver of the car gave any indication as to which side he had to go from the cross-road. The driver of the car was aware that he had to negotiate the cross-road and while he had seen the motor cycle coming from the opposite direction, he had to be very cautious while negotiating the cross-road and more care and caution is required when other users of the roads and vehicles from the opposite direction are going and coming. But from the evidence it clearly appears that the driver of the car did not take proper care to avoid the accident. In these circumstances we are of the clear view that the driver of the car was wholly responsible for the accident which resulted into the death of deceased Amarjeet Singh.

9. Learned Counsel for respondent no. 3 Oriental Fire and General Insurance Company contended that motor cycle driver was equally responsible for the accident and, therefore, it was case of contributory negligence. We do not find any merit in this submission. The facts and circumstances of the present case., as discussed above, do not make out a case that the motor cycle driver was, in any way, to he blamed for the accident as he had already negotiated the crossing by taking the turn and thereafter the car took turn and collided with the motor cycle. In this view of the matter, in our opinion, the driver of the car alone was negligent and responsible for the accident.

10. Having found that it was the driver of the car who was responsible, the next question that arises, is as to what damages should be awarded to the mother, widow and sons of the deceased, who are entitled to claim damages under the Fatal Accident Act.

11. The principle relating to the assessment of damages were examined by this Court as well as by the Supreme Court in several cases taking note of some of the English decisions. A reference in this behalf may be made to the decision in M.P.S.R.T.C. Bhopal v. Sudhakar and Ors. AIR 1977 SC 1189; The State of Madhya Pradesh v. Smt. Dan Rawat : AIR1981MP173 and Smt. Kamla Devi and Ors. v. Kishan Chand and Anr. AIR 1970 MP 169, wherein it has been pointed out that the assessment of damages in ordinary cases resolves into estimating the proper annual dependency, the multiplic and selecting the numer of years' purchase, the multiplier. The multiplier selected is not equal to the number of years of dependency or to the reminder of the working life of the deceased: it is much less, for it takes into account that instead of yearly payments a lump sum is being awarded and that cotingencies may arise in future to cut short the period of dependency.

12. The Claimant No. 1 Smt. Kaushalya Bai is the mother of the deceased; she is aged about 50 years. Claimants no. 2 and no. 3 are his widow and son who are the only persons entitled for the claim under the Fatal Accidents Act:

As discussed above, the deceased at the time of his death was aged about 25 years who left behind a young widow aged about 21 year and an infant son aged about 1 year besides his mother. It is common knowledge that a Hindu widow with a child has a poor chance of remarriage. The dependency of the widow thus will last for almost the whole of the reminder of the working life of the deceased and the infant son will continue to be dependent at least upto the age of 20 years. Admittedly the deceased was 4th year student in the Diploma course of Fine Arts in Kala Niketan Jabalpur. According to the evidence of R.N. Sinha (A.W. 2), who was Head of the Department of Fine Arts in Kalaniketan, Jabalpur, the deceased was a promising student. After an year the deceased was likely to come out as a Diploma Holder in Fine Arts. Shri Sinha deposed that the deceased used to do private paintings and prepared idols for sale and earned money from the sale. Kundanlal (A.W. 7) deposed that the deceased used to make models of idols in his house for about two years out of which he earned money. The mother of the deceased, Kaushalya bai (A.W. 8) also deposed that her son, by Ex. P. 18 to 22 had applied for mining lease and had also applied for loan to the State Bank of India for purchase of a Mini Bus to run as taxi. None of these two witnesses Kundanlal (A.W. 7) and Kaushalya bai (P.W. 8) were cross-examined to challenge their version. There is, therefore no apparent reason not to accept their evidence. All these facts indicated that the decased was a young promising and ambitious man. After an year he would have come out of the institution as Diploma Holder in Fine Arts and in our opinion he would have earned on an average; 700/- to Rs. 900/- per month as an Artist. In hardly needs to be said that now a days even a lower division clerk earns about Rs. 500/- per month. A prospective and promising Artist like the deceased would have earned at least to begin with Rs. 700/- per month, leaving aside future prospects in life. The deceased may have lived upto the age of 65 years. Out of the income of Rs. 700/- in our opinion, the deceased would have spent Rs. 200/- per month on himself and he would have contributed Rs. 500/- per month towards the maintenance of the family. The average monthly dependency of the family thus comes to Rs. 500/- per month, that is, Rs. 6000/-per year. Having regard to all the factors like the age of the deceased, a lump sum payment and uncertainties of life and also having in view the principles of assessment of damages discussed above, we select 16 as multiplier. The amount of damages to compensate the loss of dependency thus comes to Rs. 96000/-.

13. The claimants are also entitled to get damages under Section 2 of the Fatal Accidents Act for pecuniary loss to the estate of the deceased and also for pain and sufferings. In our opinion, a sum of Rs. 4000/- as damages under these heads would be a just compensation. We, therefore, award a total sum of Rs. 1,00,000 (One lac only) as damages payable to the appellants nos. 1 to 3 under Sections 1A and 2 of the Fatal Accidents Act. This amount of damages shall carry an interest of Rs. 6/- percent per annum from the date of the application for damages, that is, with effect from 19-11-1977.

14. It has not been disputed that the Fiat Car belonging to respondent no. 1 driven by the respondent No. 2 was insured with respondent No. 3 (The Orient Fire and General Insurance Co. Ltd). None of the provisions contained in Chapter VIII of the Motor Vehicles Act prescribe any limit of liability for private vehicles. Since the car involved in the accident was a private vehicle the insurance company, respondent no. 3 is liable for the entire compensation awarded by us.

15. In the result, the appeal succeeds and is hereby allowed with costs. The award made by the Tribunal is set aside. Appellants nos. 1 to 3, namely, Kaushalyabai, Sudama bai and Amardeep are awarded a compensation of Rs. 100,000 (Rupees one lac only) with interest at the rate of 6 percent per annum with effect from the date of the application before the Tribunal till payment. Counsel's fee Rs. 1000/- if certified. W however, apportion the amount and direct that on receipt of the amount of damages awarded by us in this appeal, a sum of Rs 25,000/- be paid to the mother, Smt. Kaushalyabai, appellant No. 1, personally by a Bank Draft and a sum of Rs. 40,000/- be paid personally by Bank Draft to the widow of the deceased, namely, Sudama Bai, appellant No. 2. The remaining amount of Rs. 35,000/- be got deposited by the Tribunal in the Fixed Deposit Account in some Scheduled Bank in the name of the minor son of the deceased, appellant no. 3, namely, Amardeep under the guardianship of his mother appellant no 2 Smt. Sudamabai for a period of 10 years may be payable to him after attaining the majority. The amount of interest accrued on the compensation be paid to appellants no. 1 to no. 3 in the same proportion. The entire compensation with costs shall be recoverable in the first instance from Respondent no. 3, Insurance Company, failing which it will be recoverable from Respondents No. 1 and No. 2.


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