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Satya Wati Pathak Vs. Hari Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberF.A.O. No. 125 of 1974
Judge
Reported inAIR1984Delhi106; 23(1983)DLT345; 1983RLR695
ActsMotor Vehicles Act - Sections 95(2), 110, 110B and 110C
AppellantSatya Wati Pathak
RespondentHari Ram and ors.
Appellant Advocate O.P. Goyal and; Sunita Vasudeva, Advs
Respondent Advocate D.R. Mahajan and ; R.P. Bansal, Advs.
DispositionAppeal allowed
Cases ReferredP.S.L. Ramanathan Chettiar and Ors. v. O.R.M.P. R.M. Ramanathan Chettiar
Excerpt:
the case debated on whether the parties would be entitled to produce additional evidence in appeal under order 41 rule 27 of the civil procedure code, 1908 - it was ruled that the additional evidence should not be permitted at the appellate stage in order to enable one of the party to get rid of some loopholes in presenting the case - - 3). the appellants have alleged that the deceased possessed good health and had he not met with the accident, he would have lived a long life of 90 years, that the deceased was a scholar and used to write books in sanskrit subject for various classes and that his books were very popular and were prescribed as a course of study by the directorate of education, delhi administration. he submits that the driver of a bus knows very well what is left and what.....sultan singh, j. 1. this appeal under section 110-d of the motor vehicles act, 1939 (for short 'the act') by the heirs of the deceased is for enhancement of compensation. the other two appeals f.a.o. no. 137 of 1974 and f.a.o. no. 174 of 1974 by the owner, driver and insurer of the vehicle are for the dismissal of the application for compensation filed under section 110-a of the act. this judgment will dispose of the three appeals.2. on 15th may, 1968 laxman dutt pathak, husband of appellant no. 1 and father of the other appellants died in an accident with truck no. pnr 5057 on the road in front of government higher secondary school, karala, delhi. on 14th june, 1968 his widow, minor sons, daughter and mother of the deceased filed an application under section 110-a of the act claiming.....
Judgment:

Sultan Singh, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short 'the Act') by the heirs of the deceased is for enhancement of compensation. The other two appeals F.A.O. No. 137 of 1974 and F.A.O. No. 174 of 1974 by the owner, driver and insurer of the vehicle are for the dismissal of the application for compensation filed under Section 110-A of the Act. This judgment will dispose of the three appeals.

2. On 15th May, 1968 Laxman Dutt Pathak, husband of appellant No. 1 and father of the other appellants died in an accident with Truck No. PNR 5057 on the road in front of Government Higher Secondary School, Karala, Delhi. On 14th June, 1968 his widow, minor sons, daughter and mother of the deceased filed an application under Section 110-A of the Act claiming compensation of Rs. 1,50,000/- and interest. They have alleged that Mr. Pathak on 15th May, 1968 was going in a bus from Delhi to Karala and at about 8.20 A.M. along with others he got down from the bus in front of Government Higher Secondary School, Karala, Delhi and was crossing the road for going to the school. At that time Truck No. PNR 5057 driven at a rash and reckless speed came from Delhi side and knocked him down with its front portion, causing him grevious injuries and later he died. The truck was being driven by Hari Ram, respondent No. 1, and it is owned by Ram Narain, respondent No. 2 while it was insured with Oriental Fire and General Insu. Co. (Respondent No. 3). The appellants have alleged that the deceased possessed good health and had he not met with the accident, he would have lived a long life of 90 years, that the deceased was a Scholar and used to write books in Sanskrit subject for various classes and that his books were very popular and were prescribed as a course of study by the Directorate of Education, Delhi Administration.

3. The respondents i.e. the driver, owner and the insurer of the vehicle in their written statements have pleaded that the said truck was not involved in any accident on 15th May, 1968 ; it was on election duty on 14th May, 1968 from 8 A.M. to 10 P.M. under the orders of Truck Union Sisana ; the truck remained parked at the office of the said Union up to 7.30 A M. on 15th May, 1968 ; one Rattan Singh of Kharkhoda booked the truck at about 8 A.M. on 15th May, 1968 for loading buffaloes, and it left Sisana Union office at about 8 A.M. for Chamaria near Rohtak and reached there at 9.30 A.M. the same day ; the truck remained at Chamaria up to 10.30 A.M. and then started for Sisana Union office where it reached at about 12.30 P.M. and remained there up to 16th morning ; the entry to that effect was made in the office of the Sisana Union ; the police seized the vehicle and arrested the driver on 11th June, 1968. The respondent No. 3 the insurance company has also pleaded that its liability is limited to Rs. 20,000/- per accident in terms of the policy.

4. The following issues were framed by the trial court :

(a) Whether the deceased died as a result of accident arising due to rash and negligent driving of vehicle No. PNR 5057/HRR 372 as alleged ?

(b) Whether the petitioners are entitled to any claim in this petition ?

(c) To what amount of compensation are the petitioners entitled in this petition ?

(d) Whether the petition is within time. If not, whether there are any grounds for condensation of delay ?

(e) Relief.

5. The Tribunal by judgment dated 26th February, 1974 held that the application for compensation was within time; that the appellants-claimants were the heirs of the deceased, that truck No. PNR 5057 was involved in the accident and the driver was driving the truck rashly and negligently. The Tribunal awarded a sum of Rs. 34,720/- as compensation to the heirs. The liability of the insurance company was however restricted to Rs. 20,000/-. The respondents were directed to deposit the amount within two months failing which interest @ 6% per annum from the date of award till realisation was also awarded.

6. Learned counsel for the appellants-claimants submits that the deceased would have lived up to 80 years and worked at least up to the age of 75 years ; the heirs were dependent upon the deceased and he used to spend 75% of his income upon them ; deductions on account of lump sum payment, insurance money or pension ought not to have been made by the Tribunal out of the amount of compensation, the compensation awarded by the Tribunal is inadequate and it ought not to be less than Rs. 1,50,000/- as claimed by the heirs ; the interest should be awarded from the date of application for compensation and the insurance company is also liable to pay the entire amount of compensation.

7. The respondents on the other hand submit that the truck was not involved in the alleged accident on 15th May, 1968 ; and the compensation awarded by the Tribunal is unreasonable. Counsel for the Insurance Company respondent No. 3 also submits that the liability of the Insurance company cannot be more than Rs. 20,000/- in terms of the policy.

8. The first question is : Whether the Truck No. PNR 5057 was involved in the accident and Hari Ram, driver respondent No. 1 was driving the truck rashly and negligently. Laxman Dutt Pathak deceased was a teacher in Government Higher Secondary School, Karala, Delhi. On 15th May, 1968 he along with his two colleagues Amlok Ram Chopra P.W. 13 and Amar Singh Rana P.W. 14 was going in the bus owned and driven by Zile Singh P.W. 11 from Delhi to Karala. He got down from the bus in front of the school and while he was crossing the road, truck No. PNR 5057 driven by Hari Ram respondent No. 1 owned by Ram Narain respondent No. 2 hit him who fell down and the rear left tyre of the truck passed over his waist and that the truck did not stop bat ran away towards the border of Haryana State. The deceased was removed to hospital where he succumbed to his injuries on that day.

9. Briefly Zile Singh P.W. 11 has deposed that he as owner-driver was driving bus DLP 3634 from Delhi to Karala on 15th May 1963 and at about 8.15 A.M. he stopped the bus in front of the school gate Karala, passengers started getting down ; the deceased teacher also got down from the front gate and while crossing the road from in front of his bus a truck came from behind the bus at a speed of about 35 miles per hour ; the front bumber of the truck hit the deceased teacher who fell down and the rear left tyre of the truck passed over his waist ; the truck did not stop after the accident, that he followed the truck in his bus for a distance of about 4 to 5 miles and the truck entered Haryana territory and thereforee he returned back ; that number of the truck which hit the deceased was PNR 5057. In cross-examination he has said that he was sitting at the stearing at the time of accident and the accident took place in front of him on his left and the truck had crossed his bus from right side.

10. Amlok Ram Chopra P.W. 13 has deposed that he had known the deceased, and he was in the bus on 15th May, 1968 at about 8.20 A.M. when the accident took place ; he was going with the deceased in the said bus from Delhi to Karala to attend his duties in the school ; the deceased after getting down from the bus was crossing the road for going to school ; a truck came at fast speed from Delhi side and its front left portion hit the deceased ; the rear wheel of the truck went over the hip portion of the deceased ; the number of the truck was PNR 5057 ; he did not hear any horn ; the truck did not stop but ran away ; the deceased was removed to Karala dispensary and then to Irwin Hospital ; he saw the accident from the wind screen of the bus and his statement was recorded by the police. In cross-examination he has deposed that he was getting down and was standing in the bus two or three seats away from the driver's seat ; the accident took place on road in front of the bus and when the truck ran away the bus driver followed the truck ; an official letter was sent to Police Station Nangloi under signatures of the school Principal.

11. Amar Singh Rana P.W. 14 has deposed that he got down from the bus ; he heard the shriek and saw Mr. Pathak fell down and the rear wheel of the truck passed over him ; the number of the truck was PNR 5057; he did not hear any horn ; the truck was going at a fast speed ; the bus driver followed the truck ; there Were three teachers in the bus i.e. himself, the deceased and A.R. Chopra P.W. 13. He has also deposed that when the accident took place Mr. Chopra had already alighted the bus. These three persons are the eye witnesses to the occurrence.

12. Learned counsel for the respondents sub-nits that these witnesses are not believable and their statements are contradictory. The submission is that Zile Singh P.W. 11 has deposed that the accident took place in front of him on his left while the truck was passing on the right side of the bus. He submits that the driver of a bus knows very well what is left and what is right. When this witness says that the accident took place in front of him on his left; and the bus came from right side, his statement is not believable. The statements of these witnesses have been read with the assistance of the learned counsel. According to Zile Singh P.W. 11 the deceased fell down on his left. This is possible. When the truck hit the deceased he was thrown away and the truck sped away with the result that the deceased was lying in front of the bus and on the left of the witness sitting on the stearing. It is well known that the stearing in the vehicle is generally on the right side. Thus when P.W. 11 says that the accident took place in front of his left it cannot be said that he is not telling the truth. No suggestion was given to this witness that Truck No. PNR 5057 was not there or that the said truck was not involved in the accident. Learned counsel further submits that Zile Singh P.W. 11 could not have seen the number of the truck while driving. I do not agree. Zile Singh in his bus followed the truck after the accident as the truck driver did not stop and ran away towards Haryana Border. This witness followed him for a distance of about 4-5 miles. It is not impossible for the bus driver P.W. 11 to see the number of the truck, going in front of him. Next learned counsel submits that this witness did not report the matter to the police at the border although he stopped there and did not cross the border. Merely on the ground that the witness did not report the accident to the police at the border his statement cannot be rejected.

13. Learned counsel for the respondents next submits that A.R. Chopra P.W. 13 has deposed that he saw the accident from the wind screen while he was standing in the bus and trying to get down and Amar Singh Rana P.W. 14 has stated that A.R. Chopra P.W. 13 had already alighted from the bus when the accident took place. This is, in my opinion, no discrepancy and if it is, it is of a very minor nature. The accident takes place in a moment. A.R. Chopra, P.W. 13 says that he was trying to get down while P.W. 14 Amar Singh Rana says that Chopra had already alighted. How much time a passenger takes in getting down from the bus It is a question of moment. It is possible that A.R. Chopra P.W. 13 noticed the accident while he was still in the bus and Amar Singh Rana P.W. 14 noticed it some seconds thereafter when Chopra had already alighted. There is no inconsistency or contradiction in the statement of these two witnesses. Both witnesses made correct statements.

14. Next the learned counsel for the respondents submits that there is no independent evidence about involvement of the truck. It is well known that every person from public is not eager and willing to join investigation and undergo inconvenience in police proceeding. The absence of any such person is no ground for disbelieving the version of the eye witnesses P,W. 11, P.W. 13 and P.W. 14. Zile Singh P.W. 11 is a stranger to the heirs of the deceased. He is an independent witness. A.R. Chopra P.W. 13 and Amar Singh Rana P.W. 14 though colleagues of the deceased were passengers in the bus along with the deceased and they watched the accident. The evidence of these witnesses inspire confidence and their testimony cannot be rejected merely on the ground that they were colleagues of the deceased in Government Higher Secondary School, Karala. These witnesses have stood the test of cross-examination. The Tribunal believed them and there is no reason to differ from the conclusion.

15. Birhama Nand P.W. 9 constable produced the record regarding FIR 72 dated 15th May, 1968. There is mention of Truck No. PNK 5057 in this report showing that the truck was involved in the accident.

16. J.S. Ahluwalia P.VV. 8 is the Sub Inspector of police. He has deposed that on 15th May, 1968 he was posted at P.S. Nangloi; he reached the spot and learnt that the injured had been removed to Irwin Hospital; he went to Irwin Hospital and recorded the statement of A.R. Chopra P.W. 13 and the case was registered; he recovered a grey colour shade of the light from the spot on which PNR 5057 was written. These witnesses also support the case that the truck in question i.e. PNR 5057 was involved in the accident.

17. Learned counsel for the respondents submits that the truck was on election duty on 14th May, 1968 and it was hired by Rattan Singh for loading buffaloes on 15th May, 1968. The respondents have produced Raghbir Singh, R.W. 1, Rattan Singh R.W. 2, Siri Ram R.W. 3, Bhagwan Dass R.W. 4, Hari Ram R.W. 5 and Ram Narain R.W. 6 in support of their case. Their statements have been read with the help of the counsel. The Tribunal has disbelieved them for cogent reasons and in my opinion rightly.

18. Learned counsel also submits that there is a log book R.W. 6/1 of the truck in question showing its visits on 14th and 15th May, 1968. This log book is of no value. There are over writings, the scribe of the entries has not been produced. The entries cannot be deemed to have been proved in accordance with law.

19. The appellants on the other hand, have produced evidence that the truck in question was engaged in transporting fodder and it was visiting Zakhira Ghara Mandi. Om Parkash P.W. 1 is the Secretary of Agricultural Market, Zakhira. He has deposed that various trucks used to come to the market to sell fodder and grass from 4 A.M. onwards, that the truck is weighed along with the fodder and four copies of the weight slip are prepared out of which one copy is retained in the office and an entry is also made in the register. He has deposed about the entries in register regarding visit of Truck No. PNR 5057 on 14th and 15th May, 1968 at Zakhira Chara Mandi for weighment. He produced two slips pertaining to this truck which are Ex. P.W. 1/1 and P.W. 1/2. The slip P.W. 1/1 bears Machine Seriall No. 2103 and is dated 15th May, 1968. It shows that truck No. PNR 5057 was weighed at Ram Kama and the name of broker is Chotu Ram Deep Chand. The weight of the fodder is 6260 kgs. Similarly Ex. P.W. 1/2 bears Seriall No. 2081 and is dated 14th May, 1968. The broker is M/s. Chotu Ram Deep Chand and weight of the fodder is 5980 kgs and number of the truck is PNR 5057. This witness was not cross-examined about the entries in the register regarding the slips or about the contents of the slips mentioning the truck number.

20. Menga Ram P.W. 7 is the Munshi of Ram Kanta, Zakhira Chara Mandi. He has deposed that trucks are weighed and work starts at 4 A.M. Four slips of every weighed truck are made. One slip is retained by them and one slip is retained by the broker. He had brought the slip book relating to the dates 14th and 15th May, 1968. He proved the two slips Ex. P.W. 1/1 and Ex. P.W. 1/2 and stated that these slips relate to Truck No. PNR 5057. The truck was weighed by him and slips were prepared by his Munshi on both occasions.

21. Deep Chand, Proprietor of Chhotu. Ram Deep Chand, Chara Mandi Zakhira appeared as P.W. 10. He has made a general statement that he has been running his shop since 1947; he purchases fodder after settling price; the truck is sent for weighment to the weight bridge and receive slip showing weight of goods and thereafter goods are sent to the customer. He has further deposed that records for the period in question were not available. From the slips Exs. P.W. 1/1 and P.W. 1/2 wherein the number of the truck involved in the accident is mentioned, it is clear that the story put up by the respondents that the truck was busy on election duty on 14th May, 1968 or was used for loading of buffaloes on 15th May, 1968 is false, and appears to be a concoction.

22. Ram Narain R.W. 6 and Hari Ram Driver R.W. 5 in their evidence have admitted that Truck No. PNR 5057 has been carrying fodder to Zakhira Chara Mandi, and the said truck was used to be weighed at the weight bridge. The driver also admits that he might have been bringing fodder to the agent at Zakhira Ghara Mandi. The owner and driver of the involved truck thus corroborate the fact of visiting Zakhira Ghara Mandi by the truck on 15th May, 1968 in the morning.

23. Dr. S.S. Kaushal P.W. 4 has deposed that he conducted the post mortem on 16th May, 1968 at 10.30 A.M.; that death was due to shock, haemorrhage and multiple fracture and injury was possible due to accident. He thus supports the accident. From the statements of eye witnesses as above and other circumstantial evidence it has been conclusively proved that Truck No. PNR 5057 was involved in the accident.

24. The driver Kari Ram in the truck No. PNR 5057 was coming from behind the bus which was stationary. The truck was running at a fast speed. It hit the deceased by its front bumber and the deceased fell down and the rear wheel of the truck passed over his waist or hip portion. The site of the accident is just in front of the school. It was the duty of the driver to have slowed down the truck while approaching road where school is situated. The bus driven by Zile Singh P.W. 11 was standing on one side. According to the evidence no horn was given by the driver of the truck. He also did not stop after the accident but ran away towards Haryana Border. He was followed by Zile Singh, P.W. 11. His conduct shows that he has been rash and negligent in driving the truck. In Sundara Shetty v. Sanjeeva Rao and Ors. 1982 A.C.J. 129 it has been observed that when a driver is approaching school zone, there is a greater responsibility cast on him and he must be prepared to stop his vehicle within a moment's notice. Thus it was the duty of the driver to so adjust his speed as to be able to stop his vehicle within a moment's time in case of exigency.

25. The learned counsel for the driver submits that he was acquitted by the criminal court for the alleged rash and negligent driving and thereforee the heirs of the deceased are not entitled to any claim. I do not agree.Acquittal by the criminal court is immaterial for decision of the compensation claim by the civil court. (See: N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and Ors. 1980 A.C.J. 435).

26. Originally the claim petition was filed by the widow, three minor sons, one minor daughter and mother of the deceased. During the pendency of the proceedings Smt. Ganga Devi, mother of the deceased and Arun Pathak, son of the deceased, died. Thus the only claimants are now Satya Wati, widow, Ajay Pathak and Sudhir Pathak, sons and Archna Pathak, daughter who are appellants in this appeal. There is evidence on record to show that they are the heirs of the deceased.

27. The next question is with regard to the quantum of compensation which should be awarded to the appellants in this case. The general principle for determining the compensation is that the pecuniary loss to the heirs of the deceased can be ascertained by balancing on the one hand the loss of the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death. In other words, balance of loss and gain to a dependent by the death must be ascertained (See: Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors. : [1962]1SCR929 ). In O.K. Subramonia Iyer and Ors. v. T. Kunhikuttan Nair and Ors. : [1970]2SCR688 the following observation has been made:

'There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life'.

Thus whatever compensation is determined it is only a rough calculation and it is not possible to determine exactly.

28. The first point is as regards the age of the deceased at the time of accident. His date of birth is 15-6-1929. He died on 15-5-68. He was thus about 39 years old on that date. The deceased possessed good physique. His father died at the age of 86 years; his uncle is alive who is aged about 75 years; his mother was alive when the claim application was filed but she died during the pendency of the proceedings at the age of 86. This shows that there is a history of longevity in the family of the deceased. It can thereforee be easily held that but for the accident the deceased would have lived up to the age of 80 and would have been in position to work actively up to the age of 75 as claimed by the appellants. In Government service the deceased would have retired at the age of 58 years. Had he been alive he would have continued in Government service from 15-5-68 to 15-6-87 i.e. for a period of nineteen years and one month and thereafter he would have continued to work actively for another period of 17 years i.e. up to the age of 75. It is in evidence of Bal Krishan P.W. 12 and P.M. Malik, P.W. 15, Principal, Government Higher Secondary School that they knew the deceased personally and that he was working as Post Graduate teacher in the School at Karala. The deceased had passed M.A. examination in Sanskrit in First Division; he was a good teacher and was likely to be promoted as Principal.Smt. Satya Wati appellant No. 1 as P.W. 18 has also stated in her evidence that her husband obtained degrees of Shastri, Sahitya Rattan, Prabhakar and Sahitya Acharya and that he was preparing for Ph. D. The evidence on record shows that the deceased had good future prospects of promotion and was keeping good health. The Tribunal has held that the deceased would have lived up to the age of 65 years. It is not a correct estimate. It is well known that the life expectancy in India has increased and it is 75 years. But in the instant case the parents of the deceased died at the age of 86 and it can safely be held that the deceased would have lived up to the age of 80 years and worked up to the age of 75.

29. The next point is regarding the income of the deceased. At the time of accident his total emoluments were Rs. 499.85. It is well known that the pay scales of Government servants were revised by the Third Pay Commission. The deceased was a post-graduate teacher. The appellants made an application (G.M. No. 3908 of 1982) for taking into consideration the revised pay scales prescribed for the post-graduate teachers by the Third Pay Commission. Learned counsel submits that the deceased was initially in the pay scale of Rs. 250-550 and was drawing basic salary of Rs. 295/- per month. The revised pay scale of a post-graduate teacher according to Third Pay Commission Report is Rs. 550-900. Learned counsel for the respondents submits that the revised pay scales prescribed by the Third Pay Commission Report cannot be taken into consideration. I do not agree. The revision of salary and other allowances have taken place after the death of the deceased and the institution of application under Section 110 of the Act. The court is entitled to take into consideration the subsequent events with a view to mould the relief. It is well known that the prices have risen to a great extent on account of inflation and the value of the money has reduced considerably. With a view to give relief to the heirs of the deceased, it is necessary to take into consideration the subsequent events for determination of the emoluments, the deceased would have earned as a post graduate teacher had he been alive. The subsequent events are facts which are known today and the court would not be justified in shutting its eyes to these facts.

The deceased was in Government service being employed by the Delhi Administration in the Directorate of Education. Had he been alive he would have received all benefits of dearness pay and dearness allowance up to the date of his retirement. The appellant has filed a detailed statement showing that if the deceased had continued in service he would have drawn a sum of Rs. 3,23,658/- as total emoluments from the date of his death in May, 1988 till the date of his retirement in 1987. Learned counsel for the respondents next submits that it was optional for a Government servant to draw his pay and allowance according to Third Pay Commission Report or according to old scale of pay. In the ordinary course when the Third Pay Commission Report is for the benefit of the Government servants the deceased would have opted for the revised scales of pay and other allowance proposed by the Pay Commission Report. I would, thereforee, hold that had he been alive he would have opted to draw his emoluments under the revised pay scales, The deceased would have thus drawn a sum more than Rupees three lacs as pay and other allowances from the date of the accident in May, 1968 till the date of his retirement i.e. 15th June, 1987. On the date of retirement the deceased would have drawn about Rs. 1900/- per month as his total emoluments. This figure can be arrived on the basis of the revised pay scales according to the Pay Commission Report and the existing rates of dearness allowance. It is not known what increase in dearness allowance may be sanctioned by the Government up to 1987. Even ignoring the futureincrease in clearness and other allowances the deceased would have drawn emoluments of more than Rupees three lacs up to the date of his retirement as submitted by the appellant's counsel. After retirement also he would have worked for another 17 years earning on a rough basis of a sum of Rs. 2000/ per month by writing books and doing other teaching jobs. It is, thereforee, apparent that the deceased would have earned after retirement more than Rupees three lacs. In other words, from the date of accident till the age of 75 years the deceased would have earned more than Rupees six lacs and his family would have benefitted but unfortunately his life had been cut short by the accident.

30. The family of the deceased consisted of himself, his wife, three sons, one daughter and his mother. The mother and one son of the deceased died during the pendency of these proceedings. He was maintaining the family out of his earnings. The Tribunal has held that the deceased must have contributed half of his income for the maintenance of his dependents. This seems to be a very low figure. He was having six dependents on the date of accident and now there are four. It would be reasonable to expect the deceased to contribute 75% of his earning had he been alive for the maintenance of his family. I have held above that the deceased would have earned more than Rupees six lacks from the date of the accident till the age of 75 years and thus he would have provided a sum of Rs. 4j lacs to his heirs. The appellants thus may be held entitled to compensation to the extent of Rg. 41/2 lacs. The Supreme Court in Concord of India Insurance Co. Ltd. v. Nirmala Devi and Ors. 1980 A.G.J. 55 has observed that the determination of compensation must be liberal in accident cases.

31. The Tribunal has deducted out of the compensation determined by it, the pension and insurance money received by the appellants. The Tribunal has also deducted 15% on account of lump sum payment. These deductions in my opinion are not justified. On account of the rising prices, the benefits of lumpsum payment become negligible. The widow of the deceased is entitled to receive Rs 120/- per month as family pension for a period of seven years and thereafter Rs. 60/- per month. In Bhagwanti Devi and Ors. v. Ish Kumar and Ors. 1975 A.C.J. 56 Anand, J. considered this question in great detail after referring to the various authorities and concluded that no deduction should be made from the compensation on account of gratuity, pension, provident fund and insurance money. He has observed that these benefits cannot be considered as death benefits but these were the benefits which the legal representative were entitled even otherwise on the retirement of the deceased. I am, thereforee, of the opinion that no deduction should be made from the compensation on account of lump sum payment, pension or insurance money. No deductions were made in Prem Singh and Ors. v. Tika Ram and Ors. 1967 A.C.J. 243, Municipal Corporation of Delhi and Ors. v. Shanti Devi Dutta and Anr. 1975 A.C.J. 508, Delhi Transport Corporation and Anr. v. Pushpa Chopra and Ors. 1981 A.C.J. 203, Mohinder Kaur and Ors. v. Manphool Singh and Ors. 1981 A.C.J. 231, D.T.C. v. Harbans Kaur 22 (1983) D.L.T. 152 and Avon Delux Transport Co. New Delhi v. Smt. Snehlatha Selvamani and Ors. : AIR1983Delhi93 . The question of deduction on account of insurance money, provident fund, pension and gratuity was also recently considered by the Full Bench of Punjab and Haryana High Court in Bhagat Singh Sohan Singh v. Smt. Om Parkash and Ors. 1983 PLR 1 and it has been held that the financial benefits like insurance, provident fund, family pension or gratuity are in essence the deferred earning of the victim of the accident or the result of his savings, his thrift or foresight and all these benefits must be excluded from consideration in the award of compensation to the heirs under Section 110-B of the Motor Vehicles Act. All the calculations for determining compensation as observed in various authorities are only rough estimates. In fact the amount of compensation is no consolation to the heirs of the deceased. All the children of the deceased were unmarried and minor on the date of the accident. I, thereforee, hold that the Tribunal was not justified in making deductions on account of lumpsum payment, insurance amount and family pension.

32. Learned counsel for the appellants next submits that the insurance company is liable to pay the full amount and the Tribunal has erred in restricting its liability to Rs. 20,000/-. Learned counsel for the insurer on the other hand submits that its liability is restricted to Rs. 20,000/- in terms of policy. The contract of insurance has not been proved. If there is no insurance contract its liability in respect of the accident must be held for the full amount. The remedy of the insurer if any against the insured is provided in Section 96(4) of the Act. In Shyam Lal and Ors. v. The New India Assurance Co. Ltd. and Anr. 1979 A.C.J. 208, National Insurance Co. Ltd. v. Narendra Kumar and Ors. 1981 A.G.J. 93 and The Oriental Fire and General Insurance Co. Ltd. v. Mrs. Ledavati R. Adyanthaya and Ors., it has been held that i'f the insurance company failed to prove the contract of insurance it must bear the consequence. The Insurance Company was held liable for the full amount. Section 95(2) of the Act no doubt prescribes the minimum requirement of insurance policy. It is however open to the insurer to cover risk to a larger extent. The insurance company did not prove insurance policy and thereforee it must be held that the insurance company is liable for the full amount irrespective of Section 95(2) of the Act.

33. Learned counsel for the insurance company has filed an application (CM. No. 3688 of 1982) under Order 41 Rule 27 of the Code of Civil Procedure for proving the contract of insurance at this stage. Order 41 Rule 27 of the Code of Civil Procedure reads as under :

'27(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if:

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission'.

In State of U.P. v. Manbodhan Lal Srivastava, : (1958)IILLJ273SC it has been held that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. It has been further observed that the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. Similar observations have been made in Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors., : [1976]3SCR620 . This court does not require any additional evidence. The application of the insurance company for additional evidence is thereforee dismissed.

34. Lastly the question is about the interest. The Tribunal has awarded interest @ 6% from the date of the award. This is not a reasonable rate of interest considering the bank rate since the date of accident. The accident took place in 1968 and not a single penny has been paid to the heirs so far. Section 110-G of the Act provides for the award of interest at such rate and for such period as the court may specify. Considering the facts of the case and the existing bank rate, interest @ 9% per annum from the date of filing of the compensation application till realisation would be just and proper.

35. Learned counsel for the appellants further submits that an amount of Rs. 20,000/- appears to have been deposited by the insurer with the Tribunal but the same was subject to furnishing bank guarantee by the appellants. His submisssion is that the appellants are entitled to interest on the entire amount of compensation. His submission is that the deposit was not unconditional and thereforee there is no question of the stoppage of interest after the deposit. His argument is that provisions of Rules 1 to 3 of Order 24 of the Code of Civil Procedure are not applicable to the facts of the case. Learned counsel refers to P.S.L. Ramanathan Chettiar and Ors. v. O.R.M.P. R.M. Ramanathan Chettiar, : [1968]3SCR367 wherein the following observation has been made :

'The last contention raised on behalf of the respondent was that at any rate the decree-holder cannot claim any amount by way of interest after the deposit of the money in court. There is no substance in this point because the deposit in this case was not unconditional and the decree-holder was not free to withdraw it whenever he liked even before the disposal of the appeal. In case he wanted to do so, he had to give security in terms of the orders. The deposit was not in terms of Order 21 Rule 1 C.P.G. and as such there is no question of the stoppage of interest after the deposit'.

The amount deposited by the respondents was not unconditional and thereforee the appellants would be entitled to interest even on the amount, if any, deposited by the respondents.

36. The result is that F.A.O. No. 125 of 1974 filed by heirs is accepted. The appellants as discussed above may be entitled to Rs. 4,50,000/- but they have claimed Rs. 1,50,000/- only with interest. The award cannot be for an amount more than the sum claimed. The amount of compensation payable to the appellants is thus enhanced to Rs. 1,50,000/- as claimed by the appellants in their application with costs and interest @ 9% per annum from the date of the application under Section 110-A of the Act i.e. 14th June, 1968 till realisation against the respondents jointly and severally. Counselfee Rs. 500/-. The other two appeals F.A.O. No. 137 and 174 of 1974 filed by the respondents are dismissed with no order as to costs.


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