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Amulya Patnaik Vs. State of Orissa (Represented by the Collector) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 31 of 1964
Judge
Reported inAIR1967Ori116; 33(1967)CLT684; (1968)ILLJ64Ori
ActsConstitution of India - Article 300
AppellantAmulya Patnaik
RespondentState of Orissa (Represented by the Collector)
Appellant AdvocateG.G. Das, Adv.
Respondent AdvocateGovernment Adv.
DispositionAppeal dismissed
Cases ReferredDavies v. Powell Duffryn Associated Collieries. The
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........account of the loss caused by the death of her husband as a result of the accident occasioned by rash and negligent driving on the part of the driver of the defendant. at the time of his death, late padmacharan was drawing a monthly salary of rs. 60/-. he was 27 years old, was maintaining a very good health and was normally expected to live upto the 60th year with con-sequential promotions due in the police service. the facts leading to the death of padmacharan are not denied. defence case is that the death was the result of a pure accident over which the driver had no control and the state was not vicariously liable for the injury caused due to the driver's rash and negligent act, if any. the quantum of damages was also challenged. 2. the learned trial court held that padmacharan died.....
Judgment:

Misra, J.

1. Late Padmacharan Patnaik, a literate constable, was undergoing A. S. I. training IB the Police Training College at Angul On 29-11-59 he with other trainees and staff proceeded to Dhenkanal Jail on duty in a police van (ORD 426) belonging to the State Government. The van was being driven by driver Sayad Yakub AM, who was an employee of the State (defendant). On its way the van dashed against a tree on the road side. Padmacharan sustained injuries and died. Plaintiff is the widow of late Padmacharan. She claimed damages of Rs. 20,000/- on account of the loss caused by the death of her husband as a result of the accident occasioned by rash and negligent driving on the part of the driver of the defendant. At the time of his death, late Padmacharan was drawing a monthly salary of Rs. 60/-. He was 27 years old, was maintaining a very good health and was normally expected to live upto the 60th year with con-sequential promotions due in the police service.

The facts leading to the death of Padmacharan are not denied. Defence case is that the death was the result of a pure accident over which the driver had no control and the State was not vicariously liable for the injury caused due to the driver's rash and negligent act, if any. The quantum of damages was also challenged.

2. The learned trial Court held that Padmacharan died due to the accident which was the outcome of rash and negligent driving on the part of the driver and that the State was vicariously liable for the act of the driver in course of Ms employment. On the further finding that the plaintiff was the widow of late Padmacharan the learned Judge decreed the suit for Rs. 8400/- assessing the damages at the rate of Rs. 25/- per month for a period of 28 years.

Plaintiff has filed the appeal for the balance of the claim disallowed by the learned Subordinate Judge. Defendant has filed cross-objection against the decree awarding Rs. 8400 as damages.

3. The following questions arise for consideration in this appeal-

(i) Was the accident in which Padmacharan the result of rash and negligent driving on the part of the driver?

(ii) Is the State vicariously liable to pay damages for the injury caused by the driver's rash and negligent act in course of his employment?

(iii) What is the principle for determining the quantum of damages in such cases? And

(iv) Is the quantum damages awarded high in the facts and circumstances of this case?

4. The evidence of Pitabas Panda (P. W. 3), a co-trainee of late Padmacharan, and of Durga Charan Misra (D. W. 1), the Instructor of the A. S. I. cadets both of whom were travelling in the ill-fated van and who are eye witnesses to the occurrence, established beyond reasonable doubt that the vehicle was running at a very high speed of fifty miles per hour and dashed against a tree on the road side and its body was entangled with a projected branch of a mango tree and that the road was so wide at the spot that two vehicles could easily pass each other there. The conclusion of the learned Judge that the accident was due to rash and negligent driving is unassailable.

5. Thus the driver committed a tortious act in course of his employment by the State Government. In AIR 1962 SC 933, State of Rajasthan v. Mst. Vidhyawati, their Lordships held that the State could be made vicariously. liable for the tortious act committed by its servant within the scope of his employment but wholly dissociated with the exercise of the sovereign powers. In that case, the car, which caused the accident as a result of rash and negligent driving, was being maintained, for the use of the Collector in the discharge of his official duties. That was not considered sufficient to take the case out of the category of cases where vicarious liability of the employer would arise. The learned Subordinate Judge rightly held that the State was vicariously liable to pay damages for the rash and negligent act of its driver.

6. The next question is what is the principle for determination of quantum of damages in a case of this nature. In AIR 1966 SC 1750, Municipal Corporation of Delhi v. Subhagawanti, this question was examined in relation to Fatal Accidents Act, 1855. Though in the present case the damages are not to be awarded under any particular statute, but on the rules governing the law of torts, the principles are identical. Their Lordships accepted the legal position formulated by Lord Wright in 1942 AC 601, Davies v. Powell Duffryn Associated Collieries. The following factors are to be taken into consideration in determining the quantum of damages :--

(i) The amount of wages which the deceased was earning, the ascertainment of which may, to some extent, depend upon the regularity of his employment;

(ii) An estimate is to be made as to how much of that earning was required or spent for his personal and living expenses;

(iii) The balance will furnish the basis which will be turned into a lump sum by capitalising it; and

(iv) This capitalised sum would be taxed down having due regard to uncertainties; for instance, the widow might get remarried or might die, thus ceased to become a dependent.

The learned Subordinate Judge has more or less kept the aforesaid principles in view. The quantum of damages determined by him appears to be fair and reasonable. We find no reason to disturb that finding.

7. In the result, the appeal and the cross-objection are dismissed. In the peculiar circumstances of this case, defendant is to bear the Court-fees in both the Courts. Parties to bear their own costs of this Court. Plaintiff is entitled to proportionate costs in the trial Court.

Das, J.

8. I agree.


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