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Kamlesh Kumar and ors. Vs. Mohinder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inI(1986)ACC167
AppellantKamlesh Kumar and ors.
RespondentMohinder Singh and ors.
Cases ReferredLachhman Singh v. Gumit Kaur
Excerpt:
.....to go out to work to keep the home going when the husband was not working. counsel for the claimants failed to point to any material on record from which it could be inferred that the compensation awarded was, in any manner, less than what the claimants were entitled to......loss for which the husband and children are entitled to compensation. if, on the other hand, the deceased wife was an earning hand, then computation of compensation would have to be done taking that into account too. each case has, of course, to be considered on its own facts.7. urmila deceased was only about 38 years old and she died leaving behind her 42 years old husband kamlesh kumar and their three children, two daughters aged 16 and 13 and a 9 year old son. it has also come in evidence that urmila was a partner in rana vanaspati mills, doraha. according to her husband, she was looking after this factory while he was working at batala. this tribunal did not accept this part of the claimants' case, namely that she was managing the factory at doraha and rightly too. it would appear.....
Judgment:

S.S. Sodhi, J.

1. The claim in appeal here is for enhanced compensation. In an accident between the car PUG. 2512 and the Punjab Roadways bus. P.N.H. 9856, coming from the opposite direction, Jang Bahadur, the car driver, was killed ,as also Urmila, one of the persons travelling in this car, while Samir Jindal, an eight-year old by sustained injuries. This happened on October 13, 1978, at about 3 p.m. on the Grand trunk road between Kartarpur and Jullundur.

2. It was the finding of the Tribunal that this was a case of contributory negligence with both the car driver as also the bus driver being equally at fault. A sum of Rs. 63,300/- was awarded as compensation to the widow and son of Jang Bahadur deceased, Rs. 54,000/- to the husband and children of Urmila deceased and Rs. 2,000/- Were awarded to Samir Jindal for the injuries he suffered in this accident.

3. The finding of contributory negligence cannot indeed be sustained, According to the claimants, the accident occurred when the bus coming from the opposite direction at a fast speed suddenly came on to the wrong side of the road and hit into the car. The version of the respondents, on the other band, was that the accident occurred when the car was trying to overtake a truck and thereby came and hit into the bus travelling on its correct side of the road. The case of the claimants rests upon the testimony of AW 2 Kamlesh Kumar, the husband of Urmila deceased, and AW 3 Kiran Gupta, the widow of Jang Bahadur deceased, who were both travelling in the car at the time of the accident. Both these witnesses gave a consistent account of the occurrence in consonance with the case as set up by the claimants, namely, that the bus came on to the wrong side of the Road and hit into the car. What deserves particular mention here is the important corroberation afforded 10 their testimony by the first information report Exhibit A-4 lodged by AW 2 Kamlesh Kumar at police Station, Kartar pur, within about an hour or so of the occurrence. The version given therein being the same as deposed to by these witnesses before the Tribunal.

4. The respondents, on their part, examined the bus driver RW 1 Mohinder Singh and RW 2 Sarup Singh, who claimed to have been travelling in the bus at the time of the accident. Mohinder Singh deposed that the accident occurred when the bus reached parallel to a truck coming from the opposite direction and suddenly from behind this truck, the car emerged to overtake it and thereby struck against the right front corner of his bus. Similar was the testimony of RW 2 Sarup Singh. As regards Sarup Singh, it must be observed that it was for the first time in Court that he came forth to state that he had witnessed the occurrence or that this was the manner in which it had occurred. He did not appear 'before' the police in the investigation of this case, nor did he appear as a defence witness for the bus driver in the criminal case registered against him. The Tribunal thus rightly did not consider it safe to rely upon his testimony. Turning to the bus driver Mohinder Singh, the striking feature of his testimony and conduct is the lack of any protest of innocence after the accident occurred, if indeed it had happened in the manner he deposed, to other words, if he was not to blame for this accident, and there being a bus full of passengers with him at that time, surely, he would have got some of them to support him before the investigating officer. The bus driver in fact did not make any report of this accident to the police. This is indeed a telling circumstance against the bus driver. At any rate, once it is accepted that the bus driver's version of the accident is not worthy of belief, there was clearly no warrant for treating this to be a case of contributory negligence. The circumstances of the case and the evidence on record lead irresistibly to the conclusion that the negligence here was entirely that of the bus driver. The finding of the Tribunal on the issue of negligence must thus be modified accordingly.

5. Taking up now the case relating to Urmila deceased with regard to the compensation payable to her husband and children, the Main loss to them was with regard to her services as a house wife. There is indeed a pecuniary value to be attached to the services that a housewife renders to husband and children even though these are provided by her gratuitously. The measure of this loss being the cost of replacing these services. The pecuniary loss which can arise for the husband on the death of his wife has been catalogued in Kemp and Kemp on Quantum of Damages, Volume I. This being :

1. Loss of wife's contribution to the household from her own earnings.

2. Expenses of employing a housekeeper or servant to perform services which the wife had rendered gratuitously.

3. Expenses of providing boarding and lodging for such house keeper or servant.

4. Additional expenses caused by having the household run by housekeeper or servant instead of the wife.

5. Expenses of furnishing the room and providing requisite amenities for the housekeeper or servant.

6. Expense of sending children away to boarding school.

7. Expense of buying children's clothes instead of having them made by wife.

8. Expense of having his own clothes, etc. mended instead of having them cared for and mended by wife.

9. Having to eat meals out instead of having them cooked by the wife.

10. Loss of element of security where husband's employment was insecure or his health bad, and where wife had been accustomed to go out to work to keep the home going when the husband was not working.

6. It is apparent, therefore, that even in the case of a non-earning wife, there is a pecuniary loss for which the husband and children are entitled to compensation. If, on the other hand, the deceased wife was an earning hand, then computation of compensation would have to be done taking that into account too. Each case has, of course, to be considered on its own facts.

7. Urmila deceased was only about 38 years old and she died leaving behind her 42 years old husband Kamlesh Kumar and their three children, two daughters aged 16 and 13 and a 9 year old son. It has also come in evidence that Urmila was a partner in Rana Vanaspati Mills, Doraha. According to her husband, she was looking after this factory while he was working at Batala. This Tribunal did not accept this part of the claimants' case, namely that she was managing the factory at Doraha and rightly too. It would appear that, she had a share in this Mill which has new come to the claimants. Some loss must indeed have accrued to the claimants on this account even if this be only some saving in Income-tax when the income of the deceased was separately assessed.

8. Taking an overall view of the circumstances and situation of the claimants and the deceased in the context of the principles laid down by the Full Bench in Lachhman Singh v. Gumit Kaur 1979 PLR 1, the loss to them deserves to be taken at Rs. 500/- per month with a multiplier of 16. This would work out to Rs. 96,000/-, which may be rounded off to Rs. 1,00,000/-.

9. Samir Jindal, the eight-year old child who was injured in this accident suffered fractures of both the legs. To prove this, there is on record the statement of only AW 2 Kiran Gupta. No medical evidence is fothcoming. It is, therefore, no possible to know how serious these injuries were and what after-effects, if any, they may have had or could have had upon this claimant. Be that as it may, the award of Rs. 2,000/- as compensation cannot, be described as wholly inadequate. The compensation here is accordingly enhanced to Rs. 7,000/-. There is, however, no warrant for enhancement of compensation in the case relating to Jang Bahadur deceased. It has come on record that his widow remarried after about 21/2 years of the accident. The deceased also left behind a young son who has been awarded Rs. 58,000/- as compensation out of the total compensation of Rs. 63,000/- awarded in this case. Counsel for the claimants failed to point to any material on record from which it could be inferred that the compensation awarded was, in any manner, less than what the claimants were entitled to. The award here must accordingly be sustained.

10. The compensation awarded to the claimant Samir Jindal is accordingly hereby enhanced to Rs. 7,000/- and to Rs. 1 lac in respect of the claimants in the case relating to Urmila deceased The claimants shall, in addition, be entitled to interest on the compensation awarded, at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded. Out of the amount awarded, a sum of Rs. 20,000/- each shall be payable to the children of Urmila and the balance Rs. 40,000/- to her husband. The respondents shall be jointly and severally liable for payment of the amount awarded.

11. In the result, the appeal filed by the claimants in the case of Jang Bahadur deceased is hereby dismissed while the other two appeals, namely, those filed by Samir Jindal and the claimants in the case of Urmila deceased are hereby accepted with costs. Counsel's fee Rs. 500/- (one set only).


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