1. Challenged in appeal here is the order of the Tribunal declining compensation to the claimants on the ground that the offending Indo-Tibetan Border Police truck DHL-79 was engaged in the performance of the sovereign functions of the State when the accident occurred.
2. The claimants here are the mother, widow and minor child of Sushil Kumar Aggarwal. a young Advocate of Nahan, who died as a result of the injuries he sustained when the motor-cycle, he was travelling on, met with an accident with the police truck.
3. Sushil Kumar Aggarwal was on his way to Ambala sitting on the pillion seat of the motor-cycle HRE-3193, driven by respondent-Surjan Singh, when it was involved in an accident with the police truck coming from the opposite direction. This happened on Feb, 29, 1980 at about 2 p.m. near Bassi Khurd on the Nahan-Ambala Road. Both Sushil Kumar Aggarwal as also Surjan Singh sustained injuries. They were removed to the hospital at Naraingarh from where they were referred to the Post-Graduate Medical Institute at Chandigarh. Sushil Kumar Aggarwal died while being taken there.
4. On the finding that the truck had been deputed to fetch arms from the Railway Station at Ambala and was returning with these arms when the accident occurred, the Tribunal proceeded to hold that the truck was engaged in the performance of the sovereign functions of the Sate when this unfortunate mishap occurred and the claimants could not consequently seek any compensation from either the Union of India, the Indo-Tibetan Border Police or even the truck-driver, despite proof if any, of rashness or negligence on his part. The claim for compensation was thus negatived without any finding being returned on the issue of negligence.
5. Immunity of the Union of India and the Indo-Tibetan Border Police from liability was assailed by Mr. L. M. Suri, counsel for the claimants with reference to the judgment of the Supreme Court in Pushpa Thakur v. Union of India, 1984 Acc CJ 559; reversing in appeal, the judgment of this Court in Union of India v. Pushpa Thakur 1984 Acc CJ 401. The case there arose from an accident caused by a military truck. The truck was part of an Army Division which had moved to the Front during the 1971-Indo-Pak War. It was during the movement of this Division back to its permanent location after the war, that the accident took place. The truck was at that time carrying Jawans and rations. It was held by this Court that the accident occurred during the exercise of sovereign functions of the State and consequently the Union of India could not be held liable for the tort committed by its servant--the driver of the military truck. In appeal, the Supreme Court held to the contrary observing, 'We are of the view that on the facts and circumstances of the case the principle of sovereign immunity of the State for the acts of its servants had no application and the High Court was in error in rejecting the claim of the appellant for compensation on that ground.....'. In this background the counsel for the claimant argued that measured with this yardstick, mere carrying of arms from the Railway Station to the Unit and that too in normal peace time, could not suffice to absolve the Union of India and the Indo-Tibetan Border Police from liability for the consequences of the rash and negligent driving of the truck driver. There was indeed no answer to this by Mr. H. S. Brar, appearing for the Union of India except his attempt to press in aid the judgment of the Full Bench in Bakshi Amrit Singh v. Union of India 1974 Acc CJ 105. This is, however, of no avail here as the judgment of this Court in Pushpa Thakur's case (supra), which the Supreme Court, upset, was based upon this very authority. In this situation, the claim of the Union of India and the Indo-Tibetan Border Police for immunity from liability, cannot be sustained.
6. Before parting with this aspect of the matter, it must be observed that it does not behove the State to seek cover under the plea of sovereign immunity merely to avoid liability for the consequences of the negligence of its servants. Such a plea is wholly out of place in a welfare State, in a case like the present where instead of providing for the needy, left so by the acts of its servants in the course of their employment, the attempt is to look for immunity founded upon the dubious privilege of the injured or the deceased, as the case may be, being run over by a vehicle engaged in the discharge of the sovereign functions of the State.
7. The Tribunal was also in error in absolving the truck-driver from liability on the ground that he too was engaged in the performance of a sovereign function at the time of the accident. The plea of sovereign immunity, when available, cannot absolve the actual wrong-doer. It can ensure only for the benefit of the State where it is sought to be held vicariously liable for the acts of its servants, acting in the course of their employment. In other words, if an accident is caused by rash and negligent driving, the driver of the offending vehicle would undoubtedly be liable, whether or not the claim of the State, his employer, for immunity from liability on the ground that the accident had occurred in the discharge of the sovereign functions of the State, is sustained. This being the settled position in law, it was clearly incumbent upon the Tribunal to have dealt with and returned a finding on the issue of negligence.
8. Evidence on this issue that is, of negligence having been led by all the parties, it would be in accord, with the interests of justice to adjudicate upon this matter here rather than send the case back to the Tribunal for this purpose.
9. According to the claimants, the motor-cycle was following a truck about 100 yards ahead when the police truck came from the opposite direction. This truck was at a very fast speed. It occupied the whole of the road and after crossing the truck ahead, it came on to the wrong side of the road and struck against the motor-cycle and thus caused the accident.
10. The driver of the motor-cycle, respondent Surjan Singh, gave a somewhat different version, namely; that the truck ahead did not give way to the police truck coming from the opposite direction, as a result of which the police truck had to go on to the kacha portion of the road while crossing the truck ahead and immediately thereafter it took a sharp turn towards its right, without slowing down its speed, and in the process, the truck-driver lost control and the truck then went and hit into the motor-cycle.
11. The case set up by the respondent, truck-driver, on the other hand, was that the accident occurred when the motor-cycle was trying to overtake the truck ahead while the police truck was crossing it. It was then that the motor-cycle came and dashed against the right rear wheel of the truck DHL-79, as a result of which both its driver and the pillion rider fell and sustained injuries.
12. The case of the claimants is founded upon the testimony of P.W. 6 Khanwalnain Singh and P.W. 7 Tek Chand, who deposed, as per the version of the claimants, namely; that after passing the truck in front of the motor cycle of the deceased, the police truck took a sudden turn towards its wrong side and then came and hit into the motor-cycle which was proceeding on its correct side of the road. It was specifically denied that the accident occurred while this motor-cycle was trying to overtake the truck. They both testified to the fast speed of the police truck and also that it suddenly swerved towards the motor-cycle without giving any signal or blowing the horn.
13. The respondents, on their part, examined R. W. 2 Subedar Mohinder Singh and the truck-driver R. W. 7 Naik Shambu Nath. According to R. W. 2 Subedar Mohinder Singh, seeing the truck coming from the side of Nahan, Shambu Nath took his truck on to the Kacha portion of the road and when the two vehicles were crossing each other, they heard the sound of thud from the rear portion of their truck. Subedar Khem Singh, who too was travelling in the police truck was thrown out whereby he sustained injuries and became unconscious. The truck was then stopped and they turned back and found the motor-cycle lying in the middle of the road with Sushil Kumar Aggarwal deceased lying injured under it, with his head on the lap of Surjan Singh who was sitting on the road beside him. According to this witness, the speed of the police truck was about 15/20 K.M. P. H. when the accident occurred.
14. To a similar effect was the testimony of the truck-driver R. W. 7 Naik Shambu Nath, who stated that on seeing the truck coming from the side of Nahan, he gave a signal to it and then took his truck to the kacha portion of the road. He deposed that his truck was being driven at a speed of 25/30 K. M. P. H. and added that when the other truck was passing his vehicle, he heard the noise of thud from the rear portion of his vehicle whereupon he applied the brakes and stopped his truck. Subedar Khem Singh, who was sitting beside him, was thrown out of the truck as a result of which he sustained injuries. On getting down from the truck, they saw the motor-cycle lying on the road with Sushil Kumar Aggarwal lying injured under it and Surjan Singh had placed his head on his lap. The two injured were then taken in his truck to the Civil Hospital at Naraingarh.
15. There is then the testimony of R. W. 8, A. S. 1, Parkash Chand and R. W. 1 H. C. Gurdial Singh, who deposed to having gone to the hospital on receipt of a ruqa regarding the arrival there of Sushil Kumar Aggarwal and Surjan Singh. A. S. 1. Prakash chand stated that he recorded the statement of Surjan Singh under S. 161, Cr. P. c. 1973, and further that Surjan Singh had also given him a written statement at that time. Head-constable Gurdial Singh deposed to the statement of Surjan Singh being recorded by A. S. 1. Prakash Chand in his presence.
16. Next to note is the statement of R. W. 3 N. D. Sharma D. S. P. of the Indo-Tibetan Border Police who deposed that on receipt of a telephonic message regarding the accident, he went to the hospital and there he recorded the statement exhibit R. W. 3/1 of Surjan Singh.
17. The respondents laid great stress upon the statement of Surjan Singh, exhibit R. W. 3/1, whereby he had accepted that the accident had occurred as per the version of the truck-driver and that he was in no way to blame for it. In dealing with this statement, it deserves mention at the very outset that Surjan Singh was not examined as a witness in this case and there was, therefore, no occasion for this statement being put to him. Further, it would be recalled that there were two other statements of Surjan Singh--one recorded by S. I. Prakash Chand and the other handed over to him by Surjan Singh. Neither of these statements have been produced on record and there is no explanation to account for this. Even otherwise, considering the fact that Surjan Singh had also sustained injuries in this accident and that this statement had been recorded without any opinion of the doctor being obtained, on whether or not Surjan Singh was fit to make a statement, it would clearly not be safe to place reliance upon it. The manner in which the accident occurred must thus be determined keeping in view the totality of the circumstances of the case as brought out by the evidence on record.
18. As regards P.W. 6 Kanwalnain Singh and P.W. 7 Tek Chand, it deserves note that there is no material on record to indicate their association with the investigation of this case at any stage. No statements of theirs was recorded by the police though it was specifically stated by P.W. 6 Kanwalnain Singh that he was there at the spot when the police prepared the site plan and took the photographs. On the other hand, there is also no material on record to show that either of these witnesses was in any manner interested in the claimants or the deceased nor could counsel for the respondents point to any contradiction or discrepancy in their statements to create any doubt therein. The evidence of these witnesses cannot, therefore, be ruled out though it deserves to be weighed with caution.
19. The respondents' case rests upon the testimony of R. W. 7 Naik Shambu Nath and R. W. 2 Subedar Mohinder Singh. Counsel for the claimants rightly pointed out to their interestedness in the matter. This testimony has thus to be considered with due caution.
20. The circumstances have, however, their own tale to tell. It deserves note at the very outset that the road where the accident occurred was not wide enough to permit two vehicles to pass. It is obvious, therefore, that in such a situation if one does not give way to the other coming from the opposite direction, such other vehicle, has of necessity, to go on to the kacha portion of the road. Further it is also relevant to note that the damage to the motor-cycle was in its middle. If the accident had taken place, as suggested by the respondents, it is to be expected that the damage would have been on the front side of the motor-cycle too and not merely in its middle. Both these circumstances are, on the other hand, in consonance with the claimants' version of the police truck suddenly swerving to its right and hitting into the motor-cycle. Not to be lost sight of here is also the fact that after the accident, the motor-cycle was seen lying in the middle of the road. If the motor-cycle had been trying to overtake the truck going ahead, considering the narrowness of the road, the place of impact between the motor-cycle and the police truck would have been on the right side of the road and not in the middle. The clincher is provided by Subedar Khem Singh falling out of the police truck. If the truck had been coming at a slow speed as suggested by the truck-driver and had not suddenly swerved towards its right, the mere impact of the motor-cycle with this truck could not have led to such a happening. All these factors thus lead to the irresistible conclusion that the accident occurred entirely due to the rash and negligent driving of the police truck by its driver Naib Shambu Nath.
21. Turning now to the quantum of compensation payable to the claimants, the evidence on record shows that Sushil Kumar Aggarwal deceased, was an Advocate of 4 to 5 years standing. He was practicing at Nahan. According to his widow Usha Aggarwal, his earning from the profession were to the tune of about Rs. 1500/- per month.
22. Sushil Kumar Aggarwal was about 31 years of age at the time of his death. He died leaving behind his young widow-Usha Aggarwal who was then only about 28 years of age and their three-months son, besides his widowed mother who was about 60 years old. According to the claimants, they were all dependent upon the deceased. It may also be mentioned here that Usha Aggarwal--the widow of the deceased--has not remarried after the death of her husband.
23. In computing compensation payable in this case, it must be borne in mind that there is no age of retirement for Advocates and they, therefore, often continue in practice well into old age. Further considering the young age of the deceased, there is every reason to assume that in the years to come, his earnings would have increased. As a precedent, counsel for the claimants cited Baldev Krishan v. Chander Deep 1984 Acc. C. J. 163: (AIR 1984 Punj & Har 9), wherein the case of a Law Student, loss of future earnings was assessed at Rs. 12,000/- per annum with a multiplier of '16'. Counsel for the claimants rightly argued that the present case would stand on a somewhat better footing. Considering, therefore, the circumstances of the claimants and the deceased in the context of the principles laid down by the Full Bench in Lachhman Singh v. Gurmit Kaur, (1979) 81 Pun LR 1: (AIR 1979 Punj & Har 50), it would be just and reasonable to assess the dependency of the claimants, in this case, too at Rs. 12,000/- per annum, but with a multiplier of '18'. so computed the compensation payable to the claimants would work out to Rs. 2,16,000/- which may be rounded at Rs. 2,20,000/-. The claimants are accordingly hereby awarded a sum of Rs. 2,20,000/- (Rs. Two lacs and twenty thousand only), as compensation which they shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. Out of the amount awarded, a sum of Rs. 25,000/- shall be payable to the mother of the deceased. Rs. 75,000/- to his minor son and the balance to his widow. The amount payable to the minor son shall be paid to him in such manner as the Tribunal may deem to be in his best interest.
24. Respondents Nos. 1, 2 and 3 shall be jointly and severally liable for the compensation awarded.
25. This appeal is hereby accepted with costs. Counsel fee Rs. 500/-.
26. Appeal allowed.