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Smt. Nand Kaur and Others Vs. Sukh Raj and Others - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtDelhi High Court
Decided On
Case NumberFirst Appeal Order No. 79 of 1974 and C.M. No. 1627 of 1974
Judge
Reported inAIR1981Delhi319; [1984]55CompCas661(Delhi); 20(1981)DLT75b
ActsMotor Vehicles Act, 1939, Sections 95(1) and 110A
AppellantSmt. Nand Kaur and Others
RespondentSukh Raj and Others
Cases ReferredKrishnawanti v. Rudar Singh
Excerpt:
.....took place due to carelessness on the part of the deceased who suddenly started crossing the road when taxi was hardly ten yards from him, that the taxi was being driven at normal speed, that the driver immediately applied brakes and tried his best to avoid this accident. 3. the appellants' legal representatives of the deceased not being satisfied with the compensation awarded to them have filed this appeal and the insurance company, respondent no. evidence of the driver and the two occupants of the taxi was material and good evidence to rebut the claim of the appellants but they have not been produced. it is contended on behalf of the respondent that the two witnesses are not reliable. the appellants ought to have furnished some better evidence to prove the age of the deceased but..........taxi no. dlt 2257 driven by sukh raj, driver, respondent no. 1, rashly and negligently struck ram singh, deceased, as a result of which he sustained injuries. after the accident he was removed to the hospital where he died within four days of the accident. joginder singh, respondent no. 2, is the owner of the said vehicle, while the new india insurance co. ltd., respondent no. 3, is the insurer of the said vehicle, dlt 2257. the deceased was a motor mechanic, owned a workshop at roshanara road, delhi, and his monthly income was stated to be rs. 500. respondent no. 1 is an employee of respondent no. 2 and it is alleged that, while he was driving the car, he struck the deceased as a result of which the deceased sustained injuries and, thereafter, died. it is alleged that respondent no. 1.....
Judgment:

1. This appeal under s. 110D of the Motor Vehicles Act, 1939 (hereinafter called 'the Act'), is directed against the judgment and order dated 21st December, 1973, of the Motor Accidents Claims Tribunal, Delhi, whereby the appellants-claimants were awarded a sum of Rs. 10,200 as compensation arising on account of fatal injuries sustained by their ancestor, Shri Ram Singh, in a motor accident which took place on 7th February, 1968. The appellants-claimants claim enhancement of compensation to the extent of Rs. 50,000. The respondent-insurance company, on the other hand, has filed cross-objections praying that the claim of the appellants be dismissed.

2. Ram Singh, son of Santa Singh, was involved in an accident on February 7, 1968, at about 10.45 p.m. He was crossing the road and had crossed more than half of the road when a taxi No. DLT 2257 driven by Sukh Raj, driver, respondent No. 1, rashly and negligently struck Ram Singh, deceased, as a result of which he sustained injuries. After the accident he was removed to the hospital where he died within four days of the accident. Joginder Singh, respondent No. 2, is the owner of the said vehicle, while the New India Insurance Co. Ltd., respondent No. 3, is the insurer of the said vehicle, DLT 2257. The deceased was a motor mechanic, owned a workshop at Roshanara Road, Delhi, and his monthly income was stated to be Rs. 500. Respondent No. 1 is an employee of respondent No. 2 and it is alleged that, while he was driving the car, he struck the deceased as a result of which the deceased sustained injuries and, thereafter, died. It is alleged that respondent No. 1 was driving the car rashly and negligently. The respondents, in their written statements, denied the various allegations of the appellants. It is alleged that the accident took place due to carelessness on the part of the deceased who suddenly started crossing the road when taxi was hardly ten yards from him, that the taxi was being driven at normal speed, that the driver immediately applied brakes and tried his best to avoid this accident. In the alternative, it was pleaded that the deceased was guilty of contributory negligence. It is, however, admitted that the taxi, DLT-2257, was owned by respondent No. 2 and was insured with respondent No. 3 and that respondent No. 1 was driving the vehicle. The Tribunal, after recording evidence, held that the accident resulting in the death of Ram Singh was due to rash and negligent driving of the taxi on the part of respondent No. 1, and the deceased was not guilty of contributory negligence. After taking into consideration the income and life expectancy of the deceased, a sum of Rs. 10,200 was awarded to the appellants as compensation jointly and severally against the respondents with future interest at 6% per annum from the date of the award till payment if the awarded amount is not paid within two months from the date of the award.

3. The appellants' legal representatives of the deceased not being satisfied with the compensation awarded to them have filed this appeal and the insurance company, respondent No. 3, has filed cross-objections.

4. The first question for decision is whether the deceased dies as a result of the accident arising out of the rash and negligent driving. The factum of accident is not disputed. The respondents have not examined any witness. The driver of the vehicle, i.e., respondent No. 1 has also not been produced. It is in evidence that there were two occupants of the vehicle at the time of accident and those occupants have also not been produced. Evidence of the driver and the two occupants of the taxi was material and good evidence to rebut the claim of the appellants but they have not been produced. The appellants, on the other hand, have examined three witnesses besides the widow of the deceased. PW-1, Dr. Bishnu Kumar, Maulana Azad Medical College, deposes that he conducted postmortem examination on February 12, 1968, on the body of Ram Singh, son of Santa Singh. In his opinion death was due to intracranial haemorrhage and fracture of skull consequent to head injury which was caused by some blunt object or by striking with force on the roadside. He also deposes that they can be caused by a vehicular accident. The copy of the postmortem report is Ex. PW-1/A attested by him. This witness was not cross-examined at all. PW-2, Badlu Ram, and PW-3, Siri Ram, are two eye witnesses. Badlu Ram states that he has been living in a jhugi near chowki No. 2, Tiwari Nagar, Delhi, where Ram Singh, deceased, also used to reside. He was present outside his jhugi. He saw Ram Singh, deceased, coming back to his jhugi from across the road after washing his hands. Deceased had crossed more than half of the road when a taxi from Sarai Rohilla side came at a very high speed, hit him and as a result of the impact he fell down. He further deposes that the taxi after the accident stopped after a long distance, that the driver did not blow the horn and that he did not apply brakes.

5. He further states that Ram Singh died after two/three days and the matter was reported to the police. In cross-examination he admits that the width of the road is 8 to 10 feet, that it is puce road, that there was no traffic on the said road and this road leads from Sarai Rohilla to Shakti Nagar and that there is light on the roadside. He further says that the road is straight and there is no curve near the place of impact and there was no traffic at that time. He also states that his and the houses of others are situated at a short distance from the road and that the water tap is across the road. He further says that he had seen the taxi striking the deceased. He says that he had not gone into his jhugi when the accident took place. On hearing the noise of impact he turned round and saw Ram Singh having fallen on the edge of the road towards jhugi side. He further deposes that there were two passengers in the taxi besides the driver and that the taxi stopped at a distance of about 15 feet. The witness accompanied the injured to the hospital with the police. Siri Ram, PW-3, states that he was standing in front of his hut on the road near the site of accident, that Ram Singh, deceased, was his neighbour, that, after taking water he was washing his hands from the water tap, that Ram Singh was returning to his jhugi and he had crossed more than half of the road when he was hit by a taxi which was coming from Sarai Rohilla side at a fast speed without blowing any horn. He further says that as a result of impact the deceased had fallen on the road and started bleeding. He further states that Fateh Singh and Badlu Ram were present on the road. He further says that the name of the driver was ascertained and that police arrived at the spot after sometime and that Ram Singh died in the hospital. In his cross-examination this witness admits that it was a moon lit night, that Municipal lights were on, that road is straight up to 100 yards on both sides, that there was no traffic on the road at that time, that his jhugi was at a distance of 8 to 10 feet, that he had seen the car coming before the impact at a distance of about 50 yards from the place of accident. He further says that Ram Singh was washing his hands on the tap at that time which is about 10 feet away from the edge of the road, that the deceased fell down on the front side of the car after the impact and that he was not run over by the car, that the front portion of the car had struck the deceased. He also says that besides the driver two other persons were sitting in the taxi. He also says that Badlu Ram, PW, was present at that time and that the deceased was taken to the hospital. Besides this evidence appellant No. 1, widow of the deceased, also examined herself as a witness. She deposes that Ram Singh was her husband aged about 45 years at the time of accident that he was running a workshop at Roshanara Road, Delhi, and earning about Rs. 500 per month, that the appellants were being maintained by him. She gives here age as 55 years at the time of her statement, i.e., November 23, 1972, and ages of her sons as 25, 23 and 19 years. In her cross-examination she admits that her son, Harbhajan Singh, has been working in the workshop of the deceased and that he is married and now living separately. She also says that Balbir Singh, the second son, has been living with her but working with his elder brother, Harbhajan Singh, and that he has been earning about Rs. 100, Rs. 150. She also says that Jagir Singh, her third son, is a student and an apprentice but he does not earn anything. She is not aware if her husband used to pay income-tax. She does not know if here husband was maintaining accounts. She says that her husband used to tell her that he was earning Rs. 500 per month. This is the only evidence on behalf of the appellants-claimants. As already stated there is no evidence on behalf of the respondents. Both the eye witnesses, Badlu Ram and Siri Ram, were present at the time of the accident. Both had seen the taxi coming from Sarai Rohilla side. The taxi struck Ram Singh when he had already crossed more than half of the road and that the taxi stopped after a distance of about 15 feet. According to the report of the doctor, PW-1, Bishnu Kumar, the injuries were on the right side of the head. It is also in evidence that the taxi driver did not blow horn, that the road is straight near the place of accident and there was no traffic at that time. It is contended on behalf of the respondent that the two witnesses are not reliable. I do not agree. As already stated the driver and the two occupants of the taxi have not been produced. In their absence the evidence of the two eye witnesses stands unrebutted. The fact of accident is not denied. The two witnesses have stood the test of cross-examination also. The Tribunal had believed them and there is no reason to disbelieve them. The other contention is that the deceased was negligent having started crossing the road without seeing the taxi coming from one side. It is in evidence that the deceased had crossed more than half the road and he was about to reach his jhugi when the taxi struck him. From the statements of these two eye witnesses, I do not find that the deceased was guilty of any negligence. The two witnesses and the deceased had crossed the road to take water and wash their hands on a tap opposite their jhugi across the road. The two witnesses had reached their jhugi while the deceased was still on the road when the taxi struck him. It is in evidence that the taxi was coming at a fast speed and that it struck against the deceased with a great force and stopped after covering a distance of about 15 feet. The doctor, PW-1, also states that these injuries can be caused by a vehicular accident or by some blunt object striking with force. Thus, it seems to me that the driver was driving the taxi rashly and negligently without noticing the presence of Ram Singh who was crossing the road. As already stated two persons had already crossed and the third was crossing when this accident took place. The Tribunal, after taking into consideration the entire evidence on record, has rightly concluded that the accident resulting in the death of Ram Singh, deceased, was due to rash and negligent driving of the taxi by respondent No. 1. I do not find any reason to differ with the conclusion of the Tribunal on this aspect of the matter.

6. The next question is what should be the proper amount of compensation to be awarded to the legal representatives of the deceased. For determining this one has to ascertain the age of the deceased at the time of accident. According to the widow of the deceased, he was 45 years at the time of accident and, according to the doctor, PW-1, the age of the deceased was 50 years. There is no other evidence about the age of the deceased. No entry from the register of births and deaths has been produced. The widow, however, at the time of her statement admits that she was aged 55 years, i.e. on November 23, 1972. In other words she was about 50 years at the time of the accident. The parties are Hindus and generally the wife is not elder to the husband. The doctor also estimated the age at 50 years. I thereforee, agreeing with the view of the Tribunal hold that the deceased was aged 50 years at the time of the accident. The learned counsel for the appellant vehemently argues that unrebutted statement of the widow should be accepted to determine the age of the deceased. As already stated she states that the age of her husband was 45 years. The appellants ought to have furnished some better evidence to prove the age of the deceased but nothing has been produced except the oral testimony. In the presence of the statement of the doctor and for the reasons that the wife is generally not elder to the husband I am of the view that the age of the deceased at the time of accident was 50 years.

7. The Tribunal has held that the deceased would have lived up to the age of 60 years on the ground that no evidence has been adduced to establish the health of the deceased. There is no cross-examination regarding the health of the deceased. It is well known that life expectancy is longer now. Average life expectancy in India should be taken as 70 or 75 years. Various authorities have been cited before me where life expectancy has been taken as 70 or 75 years. (See Krishnamma v. Alice Veigas [1966] ACJ 366, Madhya Pradesh State Road Transport Corporation v. Smt. Munnabai [1967] ACJ 214, Shiv Prasad Gupta v. S. M. Sabir Zaidi [1967] ACJ 321, Savitri Devi v. Malarkotla Bus Service (P.) Ltd. [1969] ACJ 173, Sukhdev Singh v. Pepsu Road Transport Corporation [1969] ACJ 197 and T. V. Gnanavelu v. D. P. Kannayya : AIR1969Mad180 ). I am, thereforee, of the view that the Tribunal fell into an error in observing that the deceased would have lived up to the age of 60 years. It, thereforee, wrongly computed the period for determining the compensation at ten years. Taking the life expectancy at 70 years and the age of the deceased at the time of the accidents as 50 years I would hold that the deceased would have continued as a motor mechanic for a period of 20 years. It is not disputed that the deceased was running a motor workshop at Roshanara road, Delhi. No question was put to his widow in the cross-examination. Thus, I am of the view that the appellants-legal representatives have been deprived of the income of the deceased for a period of 20 years on account of unexpected death due to the said accident.

8. The next dispute is about the income of the deceased at the time of the accident. The Tribunal has concluded that the deceased was earning Rs. 200 per month on the basis that his son, Balbir Singh, was earning Rs. 100 to Rs. 150 per month. This is not a correct approach for the Tribunal to determine the income of the deceased. The son of the deceased no doubt has been working with his elder brother but his income is not the basis for determining the income of the deceased considering the age and experience of motor mechanic. The age of the second son of the deceased at the time of the statement was 23 years and the deceased as already determined was 50 years old. Moreover, the widow has deposed that his income was Rs. 500 per month and there is no suggestion in the cross-examination that the said figure of income was incorrect. As already stated, there is no evidence on record on behalf of the respondents. In view of the unrebutted statement of the widow of the deceased, it must be held that the income of the deceased at the time of the accident was Rs. 500 per month.

9. The next question is : what amount the deceased being the head of the family was spending on himself and on his dependants. His dependants are his wife and three sons besides a married daughter. Even if half of the earnings of the deceased is deemed to have been spent by him on himself, the remaining amount of Rs. 250 per month, must be taken to be the amount available to the legal representatives for their maintenance. In other words, I would hold that the pecuniary loss of the appellants would be Rs. 250 per month for a period of 20 years. Capitalising this loss for 20 years the total loss amounts to Rs. 60,000. It is well known that had the deceased been alive heirs would not received this amount of Rs. 60,000 in lump sum. As they would be getting the entire amount in lump sum, certain deductions are generally made on account of uncertainties of life and lump sum payment. The Tribunal has determined this rate at 15%. The learned counsel for the appellants submits that there is no ground for this deduction at 15% and relies upon Ganga Devi v. Municipal Corporation of Delhi [1980] ACJ 364, in which case the person concerned was government servant. The facts of that case are not applicable to the facts of this case. It appears to me that deduction at the rate of 15% from the total compensation of Rs. 60,000 would be a reasonable deduction on account of uncertainties of life and sum payment. After making deduction at 15% the appellants appear to be entitled to Rs. 51,000 as compensation, which amount the appellants are entitled to recover jointly and severally from the three respondents. The learned counsel for respondent No. 3, insurance company, submits that compensation should be determined on the basis of the dependency of the legal representatives on the deceased. It does not appear to be correct. Under s. 110A of the Act the persons entitled to compensation are his legal representatives. This compensation is paid to the legal representatives on account of untimely death of their ancestor. Whether the sons of the deceased have or have not started earning, it does not stand to reason that they would not be entitled to compensation on account of untimely death of their ancestors. It seems to me that all the legal representatives who have a right to apply in law for compensation have been deprived of the contribution of the deceased to the family income and, thereforee, all the legal representatives are entitled irrespective of the fact whether they would start earning or not. It is not disputed in the present case that two of the sons of the deceased have started earning. The elder son is married and working in the workshop. In this connection reference may be made to Krishnawanti v. Rudar Singh [1973] ACJ 174, where it was held that all the legal representatives are entitled to compensation and that the sons who would start earning in a couple of years would also be entitled to compensation. The question is what is the liability of the insurance company, respondent No. 3. The accident took place on February 7, 1968. Under s. 95(2)(b), before its amendment by Act 56 of 1969, which came into force on March 2, 1970, the liability was limited to Rs. 20,000. By the amendment w.e.f. March 2, 1970, the liability is limited to Rs. 50,000. As the accident took place before the amendment of the said provisions it seems that the appellants remedy against the respondent-company is limited to Rs. 20,000 only.

10. I, thereforee, hold that the appellants are entitled to a sum of Rs. 51,000 from the respondents jointly and severally. The liability of respondent No. 3 is limited to Rs. 20,000 only. Besides this amount the appellants are also entitled to future interest @ 6% per annum from the date of this award till realisation on the awarded amount. The appellants shall also be entitled to costs. Counsel fee Rs. 300. The award of the Tribunal is modified to the extent mentioned above. The cross-objections of respondent No. 3 (C.M. 1627/74) are dismissed with no order as to costs.


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