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Delhi Bhiwani Transport Company Private Limited Vs. Ram Nivas Surekha and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal from Orders Nos. 89 and 90 of 1972 with C.R. Nos. 403 and 409 to 411 of 1972
Judge
Reported in(1980)82PLR249
ActsMotor Vehicles Act, 1939 - Sections 95 and 110A; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantDelhi Bhiwani Transport Company Private Limited
RespondentRam Nivas Surekha and ors.
Appellant Advocate Viney Mittal, Adv. for the appellant No. 3
Respondent Advocate R.M. Suri, Adv. for respondent No. 3 and; L.M. Suri, Adv. for respondents Nos. 4 to 6
Cases ReferredKoksingh v. Deokabai
Excerpt:
.....was driving at a very high speed and in a wreckless manner. the deceased was quite poor. 4 per day each by doing odd jobs, like washing clothes to eke out their living after the death of the bread-earner, bhan singh. according to the evidence on the record the deceased was in good health at the time of the accident......to be called the truck) on the highway between rohtak and bahadurgarh near village jakhota. bhan singh (now deceased), ram niwas surekha, smt. devki bai, smt. gita devi, pawan kumar and surinder kumar were travelling in the said bus. bhan singh died instantaneously as a result of the injuries sustained at the time of the accident and the remaining others sustained some minor injuries. the bus belonged to m/s. delhi bhiwani transport company on whose behalf the appeals and revisions have been filed. sarup singh was driving this vehicle. the truck was owned by ram nath and driven by randhir singh. both the bus and the truck were duly insured for third party risk. according to the version put forth by the claimants in their claim petitions as well as in the evidence, the driver of.....
Judgment:

Harbans Lal, J.

1. This judgment will dispose of F.A.O. Nos, 89, 90, C.Rs. Nos. 403, 409, 410 and 411 of 1972, as they arise out of the same judgment of the Motor Accidents Claims Tribunal, Rohtak (hereinafter called the Tribunal), dated December 30, 1971.

2. Briefly the facts are that on January 25, 1967, at about 9.00 a.m. a collision took place between bus No. DLP 3053 (hereinafter to be called the bus in question) and a truck No. PNR 3958 (hereinafter to be called the truck) on the highway between Rohtak and Bahadurgarh near village Jakhota. Bhan Singh (now deceased), Ram Niwas Surekha, Smt. Devki Bai, Smt. Gita Devi, Pawan Kumar and Surinder Kumar were travelling in the said bus. Bhan Singh died instantaneously as a result of the injuries sustained at the time of the accident and the remaining others sustained some minor injuries. The bus belonged to M/s. Delhi Bhiwani Transport Company on whose behalf the appeals and revisions have been filed. Sarup Singh was driving this vehicle. The truck was owned by Ram Nath and driven by Randhir Singh. Both the bus and the truck were duly insured for third party risk. According to the version put forth by the claimants in their claim petitions as well as in the evidence, the driver of the bus was driving at a very high speed and in a wreckless manner. Another vehicle (also a bus) was also going ahead at a fast speed. Sarup Singh, driver of the bus in question, in his anxiety to overtake the vehicle in front was driving at a very fast speed. The truck was coming from the opposite direction. In the process of overtaking, the driver of the bus swerved the bus towards the right and as a result collided against the truck. Sarup Singh, the driver, did not put in appearance in spite of service and was thus proceeded against ex parte. The claim petition was contested by the owner of the bus and its insurer. According to their written statement Sarup Singh, driver, was not guilty of any negligence or rash driving, rather he was driving the vehicle at a moderate speed and was on the proper side of the road at the time of the accident. On the other hand it was the truck which was being driven in a negligent and rash manner. Suddenly the truck swerved to its right side and resulted in the collision. In spite of the attempt of the driver of the bus, the accident could not be averted.

3. The legal representatives of Bhan Singh, deceased, claimed Rs. 50,000 as compensation. Ram Niwas Surekha and Devki Bai claimed Rs. 20,000 and Rs. 15,000 as compensation respectively. The remaining three injured claimed Rs. 5,000 each as compensation.

4. In view of the pleadings of the parties the following issues were framed :--

1. Whether the accident in question took place on account of the negligence of the bus driver or of the truck driver ?

2. To what amount of compensation and from whom the claimants are entitled

3. Relief.

5. Evidence was adduced on both sides. The Tribunal came to the conclusion that the driver of the bus in question was guilty of rash and negligent driving which was instrumental in the accident resulting in the death of Bhan-Singh and injuries to five others. As regards compensation the legal representatives of Bhan Singh were granted a compensation amounting to Rs. 3.2,000. Ram Niwas Surekha was granted Rs. 4,000, Devki Bai Rs. 2500, Gita Bai Rs. 500, Pawan Kumar Rs. 500 and Surinder Kumar Rs. 500. Both the owner and the insurer were held to be liable in equal shares regarding the deceased and each of the injured. Both the appeals and the revisions above referred to have been filed only on behalf of the owner of the bus. The award has not been challenged either by the insurer or the claimants.

6. Ram Niwas Surekha, the injured, lodged the first information report with the police regarding the accident, copy of which is Ex. A.W. 2/1. It is disclosed therein that Sarup Singh, driver of the bus, in spite of entreaties by the passengers, continued to drive the bus at a high speed and in a rash and negligent manner. In his anxiety to overtake the bus going ahead unmindful of the on-coming truck from the opposite direction, the driver of the bus at the crucial time feeling helpless to control the vehicle, swerved it towards katcha portion of the road on his right side with the result that the bus collided against the truck. This version was corroborated by Ram Niwas when he appeared as a witness (A.W. 5). The other evidence produced on behalf of the claimants comprises of the statements of Rameshwar Dass and Jaipal (A. W. 4) who were also co-passengers in the bus and Devki Bai who had also sustained injuries. According to the statement of the Police Investigating Officer, at the time of the accident the bus in question was on the wrong side of the road. The evidence of all the eye-witnesses referred to above is to the effect that at the time of the accident the driver of the bus was driving the vehicle at a very high speed and was anxious to overtake the vehicle going ahead. On behalf of the owner of the bus, Jagbir Singh (R. W. 2), conductor in the bus, and Suraj Bhan (R. W. 4) claiming to be an occupant in the truck were produced. Jagbir Singh (R. W. 2) admitted that after the collision the bus was stopped on the wrong side of the road and that both the bus and the truck were on the wrong side. According to his further version the driver of the bus tried to avert the accident and for this purpose swerved his vehicle to the extreme right side. According to Suraj Bhan (R. W. 4) the truck was going at a reasonable speed and the accident took place when the driver of the bus was in the process of overtaking the vehicle going ahead. According to the statement of the driver of the truck, R. W. 6, there was a race going between the two buses which were being driven at very fast speed. Besides this oral evidence, photographs, Exs. R. W. 5/1 to R. W. 5/5, which had been taken a little time after the accident were also produced. From their perusal it is clear that the truck was on its right side whereas the bus in question was on the wrong side. Sarup Singh, driver of the bus in question, did not come into the witness-box. In view of this evidence the Tribunal was right in holding that it was the driver of the bus in question on account of whose rash and negligent driving the accident had taken place. The learned counsel for the owner of the bus has not been able to bring to my notice any material on record which may warrant the reversal of this finding of fact. Consequently, the finding on issue No. 1 is affirmed.

7. As regards compensation according to the averment in the claim petition filed by the widow and the minor children of Bhan Singh, deceased, the latter was aged about 40 years at the time of the accident.

8. The monthly income of the deceased was Rs. 250 per month. However, no worthwhile evidence was produced to even prove his approximate monthly income. According to the statement of his widow the family of Bhan Singh deceased consisted of 8 minor children and his father besides herself who were all dependent upon the deceased. The deceased was quite poor. The widow and one of her sons were earning Rs. 2 to Rs. 4 per day each by doing odd jobs, like washing clothes to eke out their living after the death of the bread-earner, Bhan Singh. The Tribunal, in the absence of any positive evidence and keeping in view the prevalent circumstances, estimated the earning of Bhan Singh, deceased, at Rs. 100 per month and on this basis granted compensation to the tune of Rs. 32,000 without applying its mind to the possible annual dependency of the claimants on the deceased and the suitable multiplier for the purpose of arriving at the correct amount of compensation. According to the evidence on the record the deceased was in good health at the time of the accident. He was likely to live up to the age of 70 years, according to the average span of life in India, that is for another thirty years, but for the abrupt termination of life by the fatal accident. The average earning of an unskilled labourer per day can be reasonably fixed at Rs. 4. Thus his monthly income was likely to be Rs. 120, out of which he was likely to spend Rs. 20 on himself and the remaining Rs. 100 on the maintenance of his family which was quite large in size and included as many as 8 minor children. On this basis the annual dependency of the claimants of Bhan Singh for their maintenance can be estimated at Rs. 1,200. The widow had a large family to support and had no source to depend upon to sustain the family except Bhan Singh, deceased. In view of the large number of children she was not likely to remarry. Keeping in view all the circumstances and probabilities of life, 15 (fifteen) will be a suitable multiplier to arrive at a correct figure of compensation to which the claimants can be held to be entitled. Thus calculated, the claimants-legal-representatives were entitled to Rs. 18,000 as compensation and not Rs. 32,000 as awarded by the Tribunal. The impugned judgment does not indicate as to in what manner and on what basis the amount of Rs. 32,000 as compensation was arrived at. Thus, to this extent, the award of the Tribunal is modified.

9. Ram Niwas Surekha has been awarded Rs. 4,000 as compensation. According to his medical examination, he had sustained three injuries on the right side of forehead just above the eye-brow, bridge of the nose and an. abrasion on the right side of the cheek. All the injuries were stated to be simple in nature. He did not produce any evidence as to the amount spent on his treatment. His statement that he had suffered a loss of Rs. 20,000 on account of the injuries in his business is too vague to be given any reliance. According to the medical evidence he had been advised rest for only two weeks. There is absolutely no evidence to show if he had suffered any disfigurement permanently or even temporarily. Without giving reasons, the Tribunal awarded Rs. 4,000 as compensation. As against this Devki Bai who had also sustained three minor injuries was awarded Rs. 250 as compensation. On the other hand Gita Devi, Pawan Kumar and Surinder Kumar who had also suffered minor injuries on their persons were awarded Rs. 500 each as compensation. No case is made out for awarding more compensation to Ram Niwas and Devki Bai and only an amount of Rs. 500 to each of the other injured persons. I do not find any material to distinguish between the case of one injured or the other. I am of the view that none of the injured including Ram Niwas and Devki Bai are entitled to more than Rs. 500 as compensation. Consequently the award pertaining to Ram Niwas and Devki Bai is modified and it is held that both of them will also be entitled to Rs. 500 each only as compensation. The learned counsel for the owner of the bus had in fact urged that none of the five injured was entitled to any amount of compensation as there was no evidence to show that they suffered any lasting injury or had incurred any expenses for treatment or had suffered any loss in their business or profession. Though evidence in this regard is lacking, however, it is clear that all these five injured had sustained more than one injury on their persons and in the natural course of things they were likely to have suffered shock also as a result of the accident. Keeping in view all the circumstances of the case, a denial of compensation absolutely to all the injured will not be justified. Consequently all the five injured are held to be entitled to compensation of Rs. 500 each.

10. Regarding the four revision petitions a preliminary objection was taken on behalf of the respondent-claimants that the same were not competent as the Tribunal under the Act is not a civil court and as such' Section 115 of the Code of Civil Procedure relating to revision petitions is not applicable. This contention is not tenable. It was held by a Full Bench of this court in Shanti Devi v. The General Manager, Haryana Roadways, [1971] ACJ 247, that the Claims Tribunal for all intents and purposes discharges the same functions and duties and in the same manner as a court of law. Thus the Tribunal acts as a court while disposing of the claims and the revision petitions were maintainable.

11. It has been urged by Mr. Sun, learned counsel for the insurer, that though no appeal was filed on behalf of the insurer against the award but besides the excessive amount of compensation as awarded by the Tribunal the same also suffers from a patent illegality as the insurer has been held to pay Rs. 16,000 as compensation to the heirs of Bhan Sirigh, deceased, out of a total compensation of Rs. 32,000 as assessed, though under Section 95(2)(b) and (4) of the Motor Vehicles Act as in force at the time of the accident the liability of the insurer could not exceed Rs, 2,000 per passenger in respect of the injuries or death in the accident. This proposition of law is not disputed by the learned counsel for the owner. Reference may also be made in this regard to a Full Bench judgment of this court in Northern India Transporters' Insurance Co. Ltd. v. Smt. Amra Wati, [1966] ACJ 13. However, the emphatic contention of Mr. Viney Mittal, learned counsel for the owner, is that as the insurer suffered a decree in the form of award against itself regarding the accident and also liability in the amount of compensation and did not challenge the same by way of appeal or revision, it is not entitled to any relief. According to him reliance by the insurer on the provision of 0. 41, Rule 33 of the Code of Civil Procedure was misconceived. The scope and ambit of this provision has been hotly contested on both sides and reliance has been placed on a number of decisions.

12. In Pannalal v. State of Bombay, AIR 1963 SC 1516, the power of court under Order 41, Rule 33 of the Code of Civil Procedure was held to be comprehensive and unfettered to give relief not only to the appellant but also to the respondent who may not have filed appeal or cross-objection. It was observed : (per headnote) :

' The wide wording of Order 41, Rule 33, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'. If there was no impediment in law the High Court in appeal could, there-fore, though allowing the appeal of this defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument.

If a party who could have filed a cross-objection under Order 41, Rule 22, has not done so it cannot be said that the appeal court can under no circumstances give him relief under the provisions of Order 41 Rule 33.'

13. In Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874, however, it was held that the power conferred under 0. 41, Rule 33, of the Code of Civil Procedure, was not unrestricted so as to reopen decrees which have become final merely because the appellate court does not agree with - the opinion of the court appealed from. It was also held as under (per head-note) :

' If the appellate court reaches a conclusion which is inconsistent with that of the court appealed from and in adjusting the right claimed by the appellant it is found necessary to grant relief to a person who has not appealed, the power under Order 41, Rule 33, may properly be invoked.'

14. In Giani Ram v. Ramji Lal, AIR 1969 SC 1144, it was held that the expression in 0. 41, Rule 33, of the Code of Civil Procedure ' which ought to have been passed ' means' which ought in law to have been passed ' and it was held as under :--

' If the appellate court is of the view that any decree which ought in law to have been passed but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require.'

15. This interpretation was again reiterated by their Lordships of the Supreme Court in Koksingh v. Deokabai, AIR 1976 SC 634.

16. A close perusal of the above decisions of the Supreme Court leaves no manner of doubt that the court has jurisdiction to grant appropriate relief under 0. 41, Rule 33, of the Code of Civil Procedure, even to the respondent who may not have challenged the decree of the lower court by way of appeal or even cross-objections, if the interest of justice so warrants. This wholesome provision has been brought on the statute book to undo injustice which may otherwise result. There is no gainsaying the fact that this provision ought not to be resorted to in every case. While determining the question of applicability of this provision the fact that the respondent suffered a decree against him and did not challenge the the same by an appeal or cross-objection has also to be given due consideration.

17. Under Section 95 of the Act as it existed at the time of the accident the liability of the insurance company could not be in excess of Rs. 2,000 per passenger who meets his tragic end or becomes the victim of any injury as a result of the accident. This proposition of law is not disputed by any party. As the award under appeal suffers from a patent illegality, so far as the extent of liability of the insurer is concerned, it is a fit case to grant relief to the insurer under Order 41, Rule 33, of the Code of Civil Procedure.

18. In view of the above discussion, the appeals and revision petitions are allowed and the award of the Tribunal is modified and it is held that regarding the death of Bhan Singh in the accident, the owner-appellant and the driver-respondent will be liable to pay compensation to the claimants (legal representatives) to the tune of Rs. 18,000 instead of Rs. 32,000. Ram Niwas and Devki Bai, injured, will be entitled to receive Rs. 500 each as compensation from the said owner and driver instead of Rs. 4,000 and Rs. 2,500, respectively, as awarded by the Tribunal. The amount of Rs. 500, as awarded by the Tribunal to the other three injured, namely, Gita Devi, Pawan Kumar and Surinder Kumar, is upheld. The insurer of the defaulting vehicle will be liable to pay to the extent of Rs. 2,000 per passenger whether he died or received injuries in the accident out of the total amount of compensation awarded in each case. To make the matter clear beyond any possibility of doubt, it is directed that the insurer will be liable to pay Rs. 2,000 out of Rs. 18,000 compensation awarded to the claimants of Bhan Singh, deceased, and the entire amount of compensation in the case of each of the five injured persons referred to above.

19. It was contended by Mr. Garg, on behalf of the legal representatives of Bhan Singh, deceased, that only a part of the compensation even according to the present decision has been paid to the claimants and that also a long time after the decision of the Tribunal and according to Section 110CC of the Motor Vehicles Act, the claimants are entitled to be paid interest at 6% per annum from the date of filing of the claim petitions. According to the learned counsel for the appellant a sum of Rs. 16,000 out of the compensation awarded has already been paid by the owner to the claimants of Bhan Singh, deceased. Keeping in view all the facts and circumstances of the case, it will meet the ends of justice to hold that the claimants, whether legal representatives of the deceased or the injured themselves, will be entitled to get interest at the rate of 6% per annum on the amount of compensation which has not been paid so far up to the date of payment commencing from the date of filing of the claim petitions.

20. All the appeals and the revision petitions are disposed of accordingly with no order as to costs.


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