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Mohinder Singh Sohal and anr. Vs. Ramesh Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 169 of 1975
Judge
Reported inAIR1981P& H199
ActsMotor Vehicle Act - Sections 110-B ; Fatal Accidents Act - Sections 2 and 1-A
AppellantMohinder Singh Sohal and anr.
RespondentRamesh Kumar and ors.
Cases ReferredIndia v. P.S. Mahai
Excerpt:
.....as the act--the tribunal is required not only to make good the pecuniary loss resulting from the death to the claimant, but also the loss occurring to the estate of the deceased which the claimants represent......of compensation in his case would come to rs. 50,000/-.21. to sum the claimants in f. a. o. no. 169 of 1975 would be entitled to rs. 62, 400/- on account of the death of gurbinder singh ; rs. 57,600/- in f. a. o. no. 170 of 1975 of account of death of sukhwinder singh; and rs. 50,000/- to balwinder singh claimants in f. a. o. no. 171 of 1975. the parties are entitled to receive the enhanced amount of compensation along with interest at the rate of six cent from the date of application filed by the appellants.22. the appeals are allowed to the extent indicated. no order as to costs.23. appeals allowed.
Judgment:

1. This judgment will dispose of three appeals viz., F. A. O. Nos. 169 and 170 of 1975 filed by the parents of deceased Sukhwinder Singh and Gurbinder Singh and F.A. O. No. 171 of 1975 filed by injured Balwinder Singh.

2. Three real brothers, namely, Sukhwinder Singh, Gurbinder Singh and Balwinder Singh were going on Motor Cycle No. DHM-2452 when a Government Jeep No. HIM-3633 coming from opposite direction and being driver rashly went out of control of the driver and came to the wrong side of the road and hit the motor cycle which was then being driven on its proper side. After the accident the driver of the jeep ran away, Lieutenant Gurbinder Singh and Sukhwinder Sing died at the spot and Balwinder Singh sustained serious injuries.

3. The parents of Sukhwinder Sing and Gurbinder Singh claimed compensation of rupees one lac in regard to the death of Sukhwinder Singh and rupees one lac on account of death of Gurbinder Singh, Balwinder Singh claimed rupees three lacs as compensation on account of the damage and monetary loss that he suffered as a result of the accident.

4. The Tribunal found that the jeep was driven rashly and on the wrong side of the road when the accident occurred; that the motor cycle was proceeding; on its right side at that time; that the jeep was driven by Sh. Ramesh Kumar; and that Sukhwinder Singh who was driving the motor cycle contributed to the accident to the extent of 40% as he did not have driving license and carried on the motor cycle besides himself two ore persons which was not permitted by law.

5. Since the union of India had admitted the ownership of the jeep and also admitted that the accident occurred with that jeep, the Tribunal awarded compensation against the Union of India. From the amount of compensation so awarded to the claimants, the Tribunal made a cut of 40% on account of contributory egligence of Sukhwinder Singh and a further cut 0f 20% because of the compensation being paid in lump sum.

6. Mr. V. P. Gandhi, the learned counsel for the appellants has urged and rightly so that in view of the clear finding of the Tribunal to the effect that the motor cycle as driven on its right side; that the jeep which hit the motor cycle was driven rashly and on the wrong side of the road and that at that time there was no obstruction to the view and every thing was visible from a distance, its conclusion that since Sukhwinder Singh did not possess any licence and that more than two persons were sitting on the motor cycle, so he contributed to the accident to the extent of 40% is clearly in law.

7. Contributory negligence is not to be presumed merely from the facts that Sukhwinder Singh did not hold a driving licence and that he was carrying more passengers on the vehicle than permitted under law. If Sukhwinder Singh was driving his motor cycle with due care and caution in that case it could not be held that he was liable for the contributory negligence. At times even a most competent driver may be without a license. For example he may by sheer inadvertence, have failed to have his license renewed, Such a driver cannot be held to be negligent merely from the fact that he was driving without a licence. The matter is not res integra. We have on this point the authoritative enunciation by Supreme Court in Gopal Motor Service Ltd. v. R. M. K. Velusawami, AIR 1962 SC. 1 and there are also two decisions of out own High Court--Mansha Ram v. Taj Bhan (1957) 59 Punj LR 372: (AIR 1958 Punj 5) and Dharamchand v. Shivpat, 1966 Acc CJ 319.

8. I, therefore, reverse the findings of the Tribunal that Sukhwinder Singh who was driving the motor cycle did contribute to the happening of the accident.

9. When it came to the awarding of compensation it appear the Tribunal clearly became tight--fisted.

10. Assorting to P.W. 9 Shri D. S. Jaswal, Sukhwinder Singh who was aged 20 years was a trained Pilot and got 'C' certificate. He was holding a Pilot's licence. He was scheduled to join at Poona for the training of Gliding Instructor and after the completion of the training of Glider Instructor which was only for two months, he was likely to be appointed a Gliding Instructor at a monthly pay of Rs. 600-700/-. He was thereafter likely to obtain the license of commercial Pilot and then his pay could have been Rs. 1300-2000/- -P. M.

11. In regard to the death of Sukhwinder Singh, the Tribunal assessed the monetary loss to the claimants at Rs. 10,000/- and after making a cut of 40% on account of contributory negligent and cut of 20% on account of lump to sum payment, the amount awarded came to be Rs. 4800/- as final compensation.

12. In my opinion the compensation amount awarded by the Tribunal in connection with the death of Sukhwinder Singh is not sufficient and should be enhanced.

13. Sukhwinder Singh was scheduled to go for Gliding Instructor's training course at Poona and after completing the training in tow month, he was likely to secure the job of Gliding Training Instructor carrying a monthly salary of Rs. 600/- P. M. Had he remained alive he would have further improved his career prospects. The job carrying monthly salary of Rs. 600/- P. M. was almost within his reach when he died. But it can not be said he was already getting that amount, hence making an allowance of about Rs. 100/- P. M. for this uncertainty and a further allowance of Rs. 200/- in regard to personal expenditure, I would put the monthly loss of the claimants or for that matter the estate of the deceased at Rs. 300/- per month, Sukhwinder Singh when died was 20 years of age. Having regard to the ratio of Lachhman Singh v. Gumit Kaur, (1979) 81 Punj LR 1: (AIR 1979 Punj & Har 50)(FB) 'multiplier of sixteen would meet the ends of justice. The amount of compensation thus worked out come to Rs. 57,600/-. From this amount no cut is required to be made on account of lumpsum payment of the Full bench while evolving the principle of 'Multiplier' had taken into account all such factors which earlier used to be taken into consideration for depressing the amount of compensation which then used to be calculated by multiplying the annual monetary loss to the claimants by the number of years that the deceased was assumed to remain alive i. e. the number of years by which the life-expectancy was cut-short by the accident.

14. Gurbinder Singh who are the time of the accident was 22 years of age was lieutenant in the Army and was getting Rs. 650/- per month as his pay. From this pay he used to send 100/- to his parents. This amount alone was allowed by the tribunal to be the loss to the claimants on account of death of Gurbinder Singh. Life expectancy of the claimants was fixed at 70 years and it was calculated that at the time of accident claimants (both husband and wife) were about 53 and 55 years of age. If Gurbinder Singh had remained alive, then they were likely to continue to receive this amount for a period of 16 years. Therefore, loss thus calculated came to Rs. 19, 200/- and after making deduction of 20 per cent on account of lump sum payment and 40 per cent on account of contributory negligence only a sum of 9216/- was awarded to the claimants.

15. In my opinion is assessing pecuniary loss resulting from the death of Gurbinder Singh, the Tribunal did not follow the correct principles.

16. While awarding compensation, under Section 110-B of the Motor Vehicle Act--hereinafter referred to as the Act--the Tribunal is required not only to make good the pecuniary loss resulting from the death to the claimant, but also the loss occurring to the estate of the deceased which the claimants represent. A Division bench of this Court in Damyanti Devi v. Sita Devi, 1972 Acc CJ 334, had the occasion to consider the scope of Section 110-B of the Act and the proposition whether the said section was comprehensive enough as to include the claims for which a provision was made in Section 1A and 2 of the Fatal Accidents Act. These provision are in the Following terms :

'1-A Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not caused) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have bee liable if death had not ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused and shall be brought by and to the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportional to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought and the amount so recovered, after deducting all costs and expenses, including the costs not recovered, from the defendant, shall be divided amongst the before-mentioned parties, or any of them in such shares as the Court by its judgment of decree shall direct.

2. Provided always that not more than one action or suit shall be brought for, and in respect of the same subject matter of complaint;

Provided that, in any such action or suit, the executor, administrator, or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum when recovered, shall be deemed part of the assets of the estate of the deceased.'

This Court in Damyanti Devi case (supra) held that it was evident that the application for compensation under Section 110-A of the Act was for and on behalf of all the legal representative of the deceased, that is, on behalf of the estate as represented by the legal representative; that the principles for determining compensation which had been evolved under the provisions of the Fatal Accidents Act could be applied to the application under the Motor Vehicle Act while determining the amount of compensation considered just and that before the Tribunal the whole estate of the deceased was represented by his legal representatives and the compensation was to be determined on the basis of the loss suffered by the estate which was to be distributed amongst the legal representative and no estate. This Court relied upon the decision of their Lordship of the Supreme Court in Gobald Motor Service Ltd. V. R. M. K. Veluswami AIR 1962 SC 1, in which their lordship indicated the respective scope of claims under Section 1 and 2 of the Fatal Accidents Act and the principles for determination of the compensation amount in the following terms :

'The cause of action under Section 1 and that under Section 2 are different. While under Section 1 damages are recoverable for the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate; whereas under Section 1 damages are payable in respect of loss sustained by the persons mentioned therein under Section 2 damages can be claimed under alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the section may happen to be same person, they need not necessarily be so; persons entitled to benefit under Section 1 may be different from those claiming under Section 2. Prima facie as the two claims are be based up on different causes of action the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronise in respect of a particular sub-head or in respect of the entire head. In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong.... The law on this branch of the subject maybe briefly stated thus : The rights of action under Section 1 and 2 of the Act are quire distinct and independent. If a person taking benefit under both the section is the same he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under Section 1 of the Act, that portion shall be excluded in giving compensation under Section 2 and vice versa.'

In view of the clear enunciation by this Court, it must be observed that the Tribunal was not right in restricting the amount of compensation to the one that was obtained after taking into consideration only the monthly loss of Rupees 100/- to the claimants which the deceased used to remit to them every month. The Tribunal was under law also required to take into consideration the saving of the deceased which was to be arrived at after making an allowance for the personal expenditure of the deceased. The pecuniary loss to the claimants, who also represent the estate of the deceased would be the loss of Rs. 100/- per month plus the amount which the deceased was likely to save after spending reasonable amount on himself from his salary every month. The deceased being a young army officer and a bachelor, if would be reasonable to fix his personal expenditure at fifty per cent of his salary, that is Rs. 325/- per month. That would leave Rs. 325/- and this would be the amount which would represent the monthly loss to the claimants and which must form the basis for calculation of the amount of compensation having regard to the ' multiplier' theory enunciated by this Court in Lachhman Singh v. Gurmit Kaur, (1979) 81 Punj LR 1: (AIR 1979) Punj & Har 50)(FB)(supra). The deceased was only 22 years of age when he died, so in this case multiplier of 16 would meet the ends of justice. The annual loss calculated at the rate of Rs. 325/- per month when multiplied by 16 would come to Rupees 62,400/- which, in my opinion, would be the just compensation envisaged under Section 110-B of the Act.

17. Balwinder Singh on the Date of accident was 18 years of age. He was a fresh recruit to the Indian Army. He was drawing Rs. 160/- per month as salary and was also enjoying free uniform and free messing facilities. Taking into account such free facilities. Taking into account such free facilities to him his monthly income was assessed at Rs. 260/- since he was not totally disabled it was assumed that he could earn Rs. 16/- per month. Hence his pecuniary loss was assessed at Rupees 1200/- annually. The period of loss was taken to be 25 years - the period for which he could remained employed in the Army. His loss thus calculated came to Rs. 30,000/- He was additionally awarded Rs. 5000/- by way of general damages a for pain and suffering and loss of enjoying of life. From this total amount, after deducting 40 per cent he was finally awarded Rs. 21, 000/-.

18. Mr. Vijay Gandhi, learned counsel for the claimants contended that no cut should have been imposed and s also further maintained that amount awarded under the head of 'general compensation' is highly inadequate.

19. The accident took place of 14th April, 1971, Balwinder Singh suffered the following injuries :

'1. Lacerated wound 1 1/2 X 1' over the right eye brow.

2. Lacerated would 1' X 1' over the upper lip.

3. Lacerated wound over the right foot 2 1/2 X 1'.

4. Lacerated wound over the acrotum. Both the testies were hanging out.'

He had undergone three operations. He remained under plaster up to 31st Aug. 1971, and up to 6th Nov. 1971, he remained confined to the hospital bed. On the basis of disability he was discharged from the Army. Thus, it would be seen that from 14th April, 1971, to 6th Nov. he remained confined to the hospital bed. On the basis of disability he was discharge from the Army. Thus, it would be seen that from 14th April, 1971, to 6th Nov. 1971, he remained under Pain and agony and suffered loss of enjoyment of life.

20. Mr. Gandhi cited union of India v. P.S. Mahai, 1976 Acc CJ 146: (AIR 1976 J 7 K 80). In that case, Rupees 30,000/- awarded by the Tribunal under the head of ;general damages was enhanced to Rs. 40,000/- by the high court. The Facts of the above noted case are not identical. In that case injuries sustained by the claimant were substantially serious and paid and suffering too must have been considerably more. In my opinion, the amount of Rs. 20,000/- in the present case for pain and suffering and loss of enjoyment of life would meet the ends of justice. As already observed the deduction on account of contributory negligence being not in order, the total amount of compensation in his case would come to Rs. 50,000/-.

21. To sum the claimants in F. A. O. No. 169 of 1975 would be entitled to Rs. 62, 400/- on account of the death of Gurbinder Singh ; Rs. 57,600/- in F. A. O. No. 170 of 1975 of account of death of Sukhwinder Singh; and Rs. 50,000/- to Balwinder Singh claimants in F. A. O. No. 171 of 1975. The parties are entitled to receive the enhanced amount of compensation along with interest at the rate of six cent from the date of application filed by the appellants.

22. The appeals are allowed to the extent indicated. No order as to costs.

23. Appeals allowed.


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