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State of Punjab and anr. Vs. Smt. Phool Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 86 of 1961
Judge
Reported inAIR1963P& H125
ActsMotor Vehicles Act, 1939 - Sections 110B, 110D and 110F
AppellantState of Punjab and anr.
RespondentSmt. Phool Kumari and ors.
Appellant Advocate H.L. Soni, Adv. for Adv. General
Respondent Advocate Rup Chand, Adv.
DispositionAppeals and Revisions dismissed
Cases Referred and The State of Punjab v. Smt. Guranwanti
Excerpt:
.....the evidence clearly points out that gurdev singh was driving at the rate of 30 to 40 miles per hour and not 10 miles per hour as stated by him. the traffic on the major road was clearly visible from the side road from a distance of forty yards from the mouth of the side road. where by the fault of two or more persons damage is caused the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. it may be well to point out that the appeal preferred by sarwan singh and others (f. where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of..........by the counsel for the state of punjab that the accident was due entirely to the negligence of the truck driver whose business it was to stop dead when he saw the omnibus coming from the side of sector 16. the case of the truck driver is that being on the main road he was entitled to proceed and the bus driver should have stopped before the crossing. be that as it may, each of the two drivers acted according to his own expectations with the result that just before the omnibus had cleared, its back was struck by the truck and the impact was so tremendous that the omnibus was overturned. nand kishore tagore who was sitting in the front seat was hurled out of the vehicle which was without any exit door and the bus fell on top of him. nand kishore was extracted and taken to the hospital.....
Judgment:

1. This judgment will dispose of three appeals and two revisions, all arising out of the award given by the Motor Accidents Claims Tribunal on 18th of January, 1961.

2. As a result of a collision in Chandigarh at about 3 P.M. on 7th of September, 1959, between an omnibus of the Punjab Roadways and the truck driven by Gurdev Singh and belonging to Sarwan Singh, Shri Nand Kishore Tagore, who was an occupant of the bus, was killed while Yog Parkash, who was going on a cycle, received injuries. The Claims Tribunal awarded a sum of Rs. 35,840/-to the legal representatives of Nand Kishore Tagore and a sum of Rs. 600/- to Yog Parkash. According to the award, two-thirds of the total compensation, that is to say Rs. 24,293/-is made payable by the Punjab State on behalf of the Punjab Roadways and the balance of Rs. 12,147/- by the Insurance Company on behalf of the owner of the truck.

Against this award, the Punjab State has filed an appeal (F. A. O. No. 86 of 1961) while the legal representatives of the deceased have questioned the sufficiency of the sum awarded and have asked for enhancement of the compensation to Rs. 50,000/- for which they had laid a claim before the Tribunal, in the separate appeal which is F. A. O. No. 89 of 1961. Sarwan Singh, Gurdev Singh and the Oriental Fire and General Insurance Company have filed an appeal (F. A. O. No. 193 of 1961) in respect of their liability which has been apportioned at one-third by the Tribunal. Civil Revision No. 617 of 1961 has been filed at the instance of the Punjab State against the compensation awarded to Yog Parkash (an appeal not being competent under Sub-section (2) of Section 110-D of the Motor Vehicles Act for the amount in dispute is less than Rs. 2,000/-), while Civil Revision No. 721 of 1961 by the Insurance Company, on behalf of Sarwan Singh, is likewise directed against the liability imposed in respect of the injuries caused to Yog Parkash, on the truck owner.

3. So far as the facts are concerned, these do not appear to be much in dispute or doubt. The Punjab Roadways bus No. PNE 4350 started from the High Court end and after picking up fares, including Nand Kishore Tagore, from the New Secretariat, had just completed the last stretch of its route in Sector 16 when at the intersection of the roads leading to Sector 23 and the Universityit got struck by truck No. PNE-7324, coming at a fast speed from the side of the University. Prem-Chand, the driver of the bus, saw the truck coming from the side of the University when on his own showing he was still at a distance of 20 yards from the point of intersection. He still chose to rush through the crossing in the hope of getting clearance before the other vehicle passed that position. According to Prem Chand, he was driving at a speed of seven miles per hour, having made a slop at the New Era School which is at a distance of about 50 yards from the crossing. It was a rainy day and the road was slippery. The truck was on the main road coming from the University side and according to the statement of Gurdev Singh, the driver of the truck, its speed was 10 to 12 miles per hour. There can be no doubt that both the drivers of the bus and the truck have grossly minimised the speeds at which their vehicles were being driven.

According to the evidence which has been believed by the Claims Tribunal, the truck was travelling at a spend of 30 to 40 miles per hour while the omnibus was being driven at 15 or 20 miles per hour. The occupants of the bus have given evidence to the effect that it had not stopped at New Era School, the last stoppage being at the hospital. According to the finding of the tribunal which I accept without hesitation, the story with regard to the stoppage at New Era School is an improvement and must be put aside. It has been contended by the counsel for the State of Punjab that the accident was due entirely to the negligence of the truck driver whose business it was to stop dead when he saw the omnibus coming from the side of Sector 16. The case of the truck driver is that being on the main road he was entitled to proceed and the bus driver should have stopped before the crossing. Be that as it may, each of the two drivers acted according to his own expectations with the result that just before the omnibus had cleared, its back was struck by the truck and the impact was so tremendous that the omnibus was overturned. Nand Kishore Tagore who was sitting in the front seat was hurled out of the vehicle which was without any exit door and the bus fell on top of him. Nand Kishore was extracted and taken to the hospital where he died within an hour. Yog Parkash who was coming on a bicycle also received injuries.

4. In the claim proceedings before the Tribunal constituted under the Motor Vehicles Act, both the drivers of the Punjab Roadways and the truck blamed each other for the accident. The Tribunal apportioned the blame to both the drivers and fixed their liability at two-thirds and one-third respectively.

5. Sita Ram P. W. 4 and Rajeshwar Nath P. W. 5 were both travelling in the bus and their evidence is clear on the point that the bus did not stop anywhere near the crossing and it was travelling at an approximate speed of 20 miles per hour. The truck coming from the University side had been noticed by these witnesses at a distance of 45 to 50 yards from the crossing. The truck was coming from the main road and under the 7th clause of the 'Driving Regulations' embodiedin the Tenth Schedule of the Motor Vehicles Act, 'tile driver of a motor vehicle shall on entering a road intersection, if the road entered is a main road . . . give way to the vehicles proceeding along that road . . . .'. The truck was travelling at some speed and it was the clear responsibility of the driver of the omnibus to have at least slowed down. Obviously he made a desperate effort to make good the crossing before the truck reached there. I cannot agree to the suggestion of Mr. Soni, the learned counsel for the State, that the driver of the omnibus displayed only a lack of anticipation. I have no doubt in my mind that the driver of the omnibus was negligent and cannot be said to be guilty of a mere error of judgment. It was his business to have slowed down the vehicle as the truck was travelling on the main road and there was imminent danger of collision.

6. Though the driver of the truck was entitled to expect a degree of caution from the person driving the omnious, he could see that the bus did not show any sign of slowing down or stopping near the crossing. Even as a person driving on the main road, Gurdev Singh cannot be exonerated of his duty altogether especially when the evidence points out to the effect that he was not driving on the left side of the road but actually in the middle of the road. The photographs taken at the scene of occurrence and the evidence of the expert shows that the driver of the truck made no attempt to swerve to avoid an impact with the bus. Drivers are not entitled to drive on the assumption that other users of the road will always behave with reasonable care. As pointed out by Lord Uthwatt in a House of Lords case in London Passenger Transport Board v. Upson, 1949 AC 155, at p. 173, 'a driver is not, of course, bound to anticipate folly in all its forms, but he is not, in my opinion, entitled to put out of consideration the teachings of experience as to the form those follies commonly take.' It is the common experience that drivers sometimes behave unreasonably and strangely on occasions and may suddenly emerge out in a way which cannot be expected.

The driver of the truck in the present instance was alive to the dangerous possibilities of the situation inasmuch as on his own showing he saw the driver of the omnibus coming at a speed which he regarded as excessive. It behaved the driver of the truck in such circumstances to adopt caution for himself and slow down his vehicle. No doubt' the truck was loaded at the time but the evidence clearly points out that Gurdev Singh was driving at the rate of 30 to 40 miles per hour and not 10 miles per hour as stated by him. He had left a brick-kiln a few minutes earlier and if he had been travelling at a speed of 8 to 10 miles an hour as asserted by him he could not have reached the crossing at the time when the accident took place. Moreover, if the truck was going at a crawling speed as is suggested by Gurdev Singh R. W. 15, there could have been no collision at all as the vehicle would have been under control and capable of being brought to a stop instantly.

The accident speaks for itself and the loud thud with which the impact took place and whichwas heard by witnesses who came to the spot leaves no manner of doubt that the truck struck the omnibus when it was being driven at a consider-able speed, in the judgment of the Tribunal, the possibilities have been weighed very carefully and I have no hesitation in affirming its conclusion that drivers of both the vehicles were to be blamed, aS The truck driver was on the main road, his responsibility for the accident is somewhat less. The authority of Lang v. London Transport Executive, (1959) 3 All ER 609, relied upon by the Tribunal has been rightly applied in apportioning the liability.

In that case, a person riding a solo motor cycle emerged from a minor side road on to a major road and collided, at the junction of the two roads, with an omnibus which was travelling along the major road. The traffic on the major road was clearly visible from the side road from a distance of forty yards from the mouth of the side road. The driver of the motor cycle was driving at twenty miles an hour along the side road and when he approached the junction, he did not slow down but continued at the same speed, straight out on to the major road. The bus was travelling along the major road at a speed of not more than twenty miles an hour. The driver of the motor cycle was killed and in an action for compensation it was held that the possibility of danger was reasonably apparent and the bus driver was negligent in not taking the precaution of looking at the traffic in the side road as he approached it to see whether the motor cycle was still moving at twenty miles an hour and obviously intending to cross the major road. It was held by Havers. J. that the responsibility should be apportioned as two-thirds to the motor cycle and one-third to the bus driver.

Where by the fault of two or more persons damage is caused the liability to make good the damage or loss shall be proportionate to the degree to which each person was at fault. The apportionment made by the Tribunal, in my opinion, appears to be reasonable and I have no reason to differ from this conclusion.

It may be well to point out that the appeal preferred by Sarwan Singh and others (F. A. O. No. 193 of 1961) questioning the liability of the truck driver cannot be entertained having been filed after the statutory period of limitation.

Under Sub-section (1) of Section 110-D of the Motor Vehicles Act, a person aggrieved by an award of the Claims Tribunal may file an appeal within ninety days from the date of the award The award was made on 18th of January, 1961, and the appeal was filed on 26th of September. 1961. On behalf of the appellants, it is urged that the final award was made on 3rd of August. 1961, as some correction was made in the amount of costs. It is conceded that if no amendment had been made in the costs by the Tribunal this appeal would be barred by time. Admittedly, the slight amendment in the matter of costs was made not at the instance of the appellants in F. A. O. No. 193 of 1961, but suo motu.

The appeal filed on behalf of the truck owner being barred by time, the liability which has beenfixed by the Tribunal on the truck owner cannotbe disputed. In order to appreciate the point raisedby we counsel for the State, however, I have discussed the responsibility which attached to the drivers of both the vehicles and on merits I have come to the same conclusion which has been reached by the Tribunal.

7. There now remains to discuss the question of the sums awarded by way of compensation. It is axiomatic to say that the basis of the action is the pecuniary loss suffered by the dependants in consequence of the death of the person involved in the accident. Nothing is to be paid by way of solatium and the fundamental basis of a claim is pecuniary loss suffered by the dependants as a result of the death of the deceased. In the oft-quoted words of Lord Wright in the House of Lords case in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601, at page 607,

'there is no question here of what may becalled sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities.'

It has to be seen how much the dependants havesuffered by way of pecuniary loss by the death of Nand Kishore Tagore. The claimants are the parents of Shvi Tagore, his wife and three minor children. Shri Tagore, who was 25 years at the time of his death, was a mechanical engineer drawing an aggregate salary of Rs. 360/- per mensem from his employers as a teacher. He was on the threshhold of his career and according to the evidence of the Principal he should have arisen quite high in the calling of his choice. There can be no certain or precise standard of computation of such loss. The numerous hazards and imponderables of life must bo set off against the expected benefits and advantages which the dependants have come to lose by the premature death of the deceased. Recently this matter came up for consideration of their Lordships of the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswami, AIR 1962 SC 1, and the position was summarised by Mr. Justice Subba Rao in these terms:

'In calculating the pecuniary loss to the defendants many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependants may depend upon data which cannot be ascertained accurately, butmust necessarily be an estimate, or even partly aconjecture. Shortly stated, the general principle isthat the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimantsof the future pecuniary benefit and on the otherany pecuniary advantage which from whateversource 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.'

The principle adopted by the Tribunal in the lightof these principles cannot be regarded as unreasonable or unjust.

8. In a very careful analysis the Tribunal hasconsidered the claims of Shri Milap Chand andSmt. Uttam Devi, father and mother of thedeceased. Phool Kumari widow and the three minor children. The widow has been allowedRs. 30/- per mensem for a period of 18 years on the basis that after the expiry of that period she would very probably be looked after by her children. In the case of the minor son Ajay Kumar, he has been allowed an average sum of Rs. 30/-per mensem for a period of 18 years and a sum of Rs. 2,000/- for his marriage making an aggregate of Rs. 8,120/-.

In the case of two daughters likewise similar sums have been calculated till they attain the age of 18 years and allowances have been made for their marriages. Considering the record of longivity in the family, the father and mother have been allowed a maintenance of Rs. 40/- per month for a period of ten years. A sum of Rs. 600/ has been calculated to be the pecuniary loss suffered by Yog Parkash.

9. On a consideration of the entire material, I would readily uphold the method and calculation of the Tribunal. Intervention of an appellate Court in assessment of damages in such cases is called for only when the figure has been reached by application of some wrong principle of law, or the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. This is the principle laid down by Lord Simon in Nance v. British Columbia Electric Rly. Co. Ltd., 1951 AC 601, at p. 613. In 1942 AC 601, to which reference has been made, a similar principle was enunciated by Lord Wright at page 616 in these words:

'Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages'.

There are also two decisions of this Court to the same effect: Vanguard Fire and General Insurance Co. v. Sarla Devi, 1959-61 Pun LR 683: (AIR 1959 Punj 297), and The State of Punjab v. Smt. Guranwanti, 1960-62 Pun LR 571: (AIR I960 Punj 490).

Mr. Roop Chand, for the appellant Phool Kumari, contends that the Tribunal erred in computing the quantum of compensation only till the minors had attained the age of 18 years. It is well to point out that the claimants themselves had asked for nothing beyond Rs. 50,000/- and no basis or method was at all indicated in the claim in support of the amount claimed. Any rational method which may be adopted would be open to some objections but it cannot be said that in the present instance the Claims Tribunal has been unreasonable or unjust to the claimants. Nor can there anything be said to reduce the amounts awarded to the claimants.

10. I would accordingly unhold the award of the Tribunal in all its various aspects: the appeals and revisions alike must fail and are dismissed with costs.


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