1.-2. x x x x
3. We may briefly indicate the relevant facts which have resulted in 'the present proceedings. On the night of 24th January, 1975 near the railway crossing gate No. 8 between Naroda and Sardar Gram station in Kuber Nagar area, On the outskirts of the city of Ahmedabad, occurred a railway accident. In which train No. 239-Up popularly known as Dehgam Shuttle was involved in a collision with a municipal bus No. G. T. R. 509.7 on route No. 126. As a result of the said accident, the railway engine and one bogie immediately following the same were derailed and the railway engine fell by the side of the track and the result . was that the engine driver as well as two other members of the crew being a fireman and assistant fireman were crushed to death. Their dependents filed three claim - petitions aforesaid before the Tribunal, contending that the accident was caused on account of the rash and negligent driving of the municipal bus by its driver who was joined as a party opponent in the three claim petitions alone with Ahmedabad Municipal Transport Service and the Ahmedabad Municipal Corporation to which the bus in question belonged.
4. -11. x x x x x x x
12. In the case of S. N. Hussain v. State of Andh Pra,- AIR 1972 SC 685, the Supreme Court had an occasion to consider a case in which a collision had taken place between a bus and a goods train at a level crossing. The level crossing in question was Protected by a gateman and the question was whether the driver of the bus could be held to be guilty of criminal negligence in entering the level crossing, when the gateman himself negligently kept the gate open. The High Court had field the bus driver to be criminally neg1igent inasmuch as he had received a warning from the passengers in the bus that the goods train was coming and he had tried to cross the level crossing gate which was kept open by the gateman. Disagreeing with the aforesaid conclusion reached by the High Court, the Supreme Court observed that on either side of the railway track, some distance away, there were road signals which required a vehicle to stop and the High Court had found fault with the driver for not stopping the vehicle. According to the High Court, the bus driver should have first come to a dead stop at the road signal and made sure that there was no train on the railway line. Disagreeing with the said reasoning of the High Court on the aspect of criminal negligence of the bus driver, the Supreme Court made the following observations in para 9 of the judgment:-
'In our opinion, so much precaution was not, necessary to be observed in the present case Where a level crossing is unmanned. it may be right to insist that the driver of the vehicle should stop vehicle, look both ways to see if a train is-approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track. But where a level crossing is protected by a gateman and the gateW4M opens out the gate inviting the vehicles to pass it will be too much to expect of any reasonable and prudent driver to stop) his vehicle and look out for any approaching train.'
On the facts of the case before the Supreme Court, it was held that when the gateman kept open the gate it cannot be said that the driver of the bus was guilty of any culpable negligence when he tried to cross the railway line on being invited to enter the same on account of the open gates which were so kept by the gateman. But so far as unmanned level crossings are concerned, the Supreme Court in terms observed that the driver of the vehicle would be required to stop the vehicle and look both ways to see if a train is approaching before he can think of entering the unmanned railway crossing. it is necessary to keep- in view that in the present Case, crossing NO. 8 was an unmanned railway crossing . Under these circumstances, the, observations of the Supreme Court regarding the duty of the driver of a vehicle who tries to cross an unmanned railway crossing. would squarely apply to the facts of the present case Thus he should have stopped-his vehicle and should have ensured having looked carefully on both the sides that no train-was crossing his Path before he could have thought of crossing the unmanned railway crossing. The evidence in the present case. on the contrary, shows that the driver did not halt the bus at the eastern side bus stand even though, he was requested by the bus passengers not to start the bus as the train was approaching. but on the other hand he recklessly and wantonly, without taking any care whatsoever, rushed towards the railway crossing and tried ,to enter the same when the on-coming train had already come on the spot and he dashed in with such a tremendous speed that the engine and the first bogie behind it got derailed and the engine capsized resulting in the tragic deaths of ail the three members of the crew. Thus, the driver of the bus can be said to be clearly guilty of gross rashness and negligence when he drove the offending bus at the relevant time. In fact, when the aforesaid judgment of the Supreme Court was noticed by Mr. Trivedi, he rightly did not pursue the question of negligence of the bus driver any further. Taking an overall view of the evidence on the record of the case. we find that the accident was caused solely on account of the rash and negligent driving of the offending bus by its driver. We fully endorse the reasoning of the Tribunal on this aspect.
13.-44. x x x x x x
15. Mr.. Trivedi's second objection was that the multiplier adopted by the Tribunal at the figure of 12 was required to be reduced to the figure of 10, as the deceased was aged 45 years at the time of the accident. Even this submission of Mr. Trivedi cannot be countenanced. The question as to what should be the correct multiplier to be adopted in such cases is now well settled by a series of judgments of this court. - We may only refer to one judgment on the point which is rendered in first appeal No. 444 of 1974 decided by my learned brother P. D. Desai, J. sitting with M. K. Shah. J. (as he then was) on April 14/17, 1978 (reported in 1979 Cry LJ 622). My learned- brother P. D. Desai. J. speaking for the Division Bench has observed in this connection as under (at P. 625):-
'The other aspect which must equally be present to the mind is that 12 to 15 has been a common multiplier in the case of a healthy man having a normal expectation of working life.'
Placing reliance on Asbury's Laws Of England, 4th Edition, Vol. 12, Paragraph 1156 at page 453, and on the observations in 'The Quantum of Damages in Personal injury and Fatal Accident Claims by Kemp and Kemp. Vol. 1. 4th Edition, and also keeping in view the observations of the Supreme Court in C. K. S. Iver v. T. K. Nair. AIR 100 SC 376, it has been observed that the number of years Purchase is left fluid and one from 12 to 15 has been quite a common multiple in the case of a healthy man and the number should not be materially reduced by reason of the - hazardous nature of the occupation of the deceased Man This Pranciple. of course. Will apply where the deceased was a bread-winner of the family. Thereafter,having considered various judgments of the Supreme Court and this court the following lowing pertinent observations have been made (at p.626 of 1979 Cry LJ):-
'It would appear from these illustrative cases that the trend has been to capitalize the loss of dependency benefit at 15 years' purchase on the outer side in the case of persons in the thirties and forties when they were the bread-winner of the family.It is well settled that in making awards in accident cases ,the court is usually guided by the awards made in the previous cases, Therefore these decisions must be held as providing the guideline for the determination of the correct multiple in the case of a person who was at the fag end of fifties.'
It is thus clear that in cases of those victims of accidents who were in thirties or forties when their lives were cut short by unfortunate accidents multiplier of 12 to 15 with outer limit of 15 was found to be quite a proper multiplier to be adopted in captalizing the dependency benefits so as to work out just compensation to be made payable to the dependents of such victims. In the present case the deceased was the bread-winner of the family. He was aged 45 when he lost his life. It is also pertinent to note at this stage that the deceased was in good health when his life was cut short. His widow has deposed to that effect and there was no cross-examination by the other side to that part of her deposition. Even though there is no clear evidence on the record as to the age at which the deceased would have been super annuated we can take judicial notice of the fact that he would have gone on at least upto the age of 58 years in service Considering all these aspects of the matter .it appears to us that the Tribunal cannot be said to have a sopted a higher multiplier when it resorted to a multiplier of 12 years.Mr.Trivedi could not make any effective grievence on that score. Hence,this second grievence also is found to be devoid of any substance.
16.-19. x x x x x x x x x x x
20. So far as first appeal No.722 of 1976 is concerned. The cross -objections center round two claims, viz. (1) deduction of Rs. 10,000/- as effected by the Tribunal from the compensation amount on account of payment of Rs. 10,000/- received by the widow of the decessed from the Railway and (20 consequent proportionate costs on that amount which was according to the claimants, wrongly deducted by the Tribunal. Manekben, widow of the deceased examined herself at Ex. 32. She was cross examined on behalf of the opponents in the Tribunal. Therein she stated that she had got Rs. 10,000/- as compensation from the railway. Taking a clue from the aforesaid answer given by the widow of the decessed a contention was raised on behalf of the original opponents before the Tribunal that as the claimants had got Rs. 10,000/- from the railway on account of the death of the deceased, the said amount was liable to be deducted from the total compensation which may be held payable to the claimants. Now in this connection, it must be noted that in the written statement filed by the opponents before the Tribunal, contesting the claim petition, no such contention has been put forward. It is now well settled that the onus of showing that the amount of compensation payable by a tort-feasor to the heirs of his victim is liable to be sliced down on account of any permissible deduction from the compensation amount squarely lies on the shoulder of the tort-feasor.The court of appeal in England in Jenner v.Allen West and Co.Ltd. reported in (1959) 1 WLR 554,held ,relying on an earlier judgment in the case of Mead v.Clarke Champion and Co.Ltd.(1956) 1 WLR 76 that onus in such a case would be on the defendents to put forward any claim of deductions from the permissible amount of compensation payable to the concerned claimants.It is, therefore clear that when a tort-fesor comes forward with a contention that the amount of compensation payable to the claimants should be sliced down by any permissible deduction the onus is on the tort-feasor to point out how the deduction is to be effected as permissible deduction .It is therefore ,obvious that the burden lay on the appellants-original opponents to show how the amount of Rs 10,000/- received by the widow of the deceased was liable to be deducted from the total compensation amount ,which may be computed and held payable to the claimants on account of the accident caused to the deceased by rash and negligent act of the driver of the municipal transport bus. As we have already stated above there is no such pleading in the written statement of the opponents. But even apart from that, the only basis for such a contention is found in the strav sentence which the widow of the deceased uttered when during her cross-examination she stated that she got Rs. 10,000/from the railway. Whether the compensation which was paid to her was in any way linked up with the sudden and accidental death of the deceased or whether the amount of Rs. 10,000/- received by her was in the nature of compensation by wav of accident insurance or whether the deceased was required to make any contribution for earning such compensation or whether the amount was paid to the widow of the deceased ex gratia or by wav of benevolence, were all questions which were required to be thrashed out on evidence and the burden was entirely on the original opponents to show how the payments in question was required to be deducted as permissible deduction and did not fall in any of the aforesaid categories of payments.
21. In this connection, it is necessary to keep in view the settled legal position. In the case of Hirji Virji Transport v.- Basiraibibi, (1971) 12 Gui LR 783, a Division Bench of this court consisting of J. B. Mehta and D. A. Desai, JJ. considered- the question whether the insurance amount which became payable to the dependents of the deceased on account of his untimely death would be deducted out of the compensation amount payable to the dependents. Relying on various Supreme Court judgments, I B. Mehta, J. speaking for the Division Bench observed:-
'Their Lordships have in terms held that the assessment is to be made of the loss suffered by tortious act by making an account of all gain and loss arising as a result of the death of the concerned victim (of course otherwise than as by way of fruits of insurance).'
In first appeal No. 159 of 1968 heard with first appeal No. 160 of 1968 decided by another Division Bench consisting of J. B. Mehta and S. N. Patel,, Ji.. on 3rd November, 1971, 1 B. Mehta, J. speaking for the Division Bench considered a similar question, raised by the learned Advocate for the original opponents in that case. It was observed by this court that the Tribunal had not considered, as per the settled legal position after the House of Lords decision in Bradburn's case, (1874) LR 10 Exch . I that a collateral benefit cannot' be deducted from We award of damages. J. M Mehta, J. speaking for the Division Bench in the aforesaid judgment, placed strong reliance on the decision of the House of Lords in Parry v. Cleaver, (1969) 1 All ER 555. and made the following observations:-
'The House of Lords has approved the earlier decision in Bradburn's case as setting the common law principle that insurance amounts were collateral benefits which could not be deducted from the amount of damages. Lord Pearson at Page 588 while discussing Bradburn's case pointed out that in that case the policy of insurance was against accident and the insurance money was held to be not deductible. BramwellR had decided that one who paid premium for the Purpose or insuring himself pays on the footing that his right to be compensated when the event insured against happened was an equivalent for the premiums he had paid.'
Reliance was also placed on the observations of Lord Reid who had examined the question of collateral benefits in the ,aforesaid House of Lords decisions. Lord Reid's observations were extracted and read as under:-
'There were two classes of cases where a sum given to the plaintiff as a result of the accident but which would not have come to him but -for the accident were disregarded: (1) proceeds of insurance and (~) sums given to him by reason of benevolence. Thereafter, the following observations were made in the aforesaid Division Bench judgment of this court:-
'The learned Lord examined the, true basis, disregarding technicalities why these two classes of receipts were not brought into account-because. common law treated the matter of such deduction as one depending on justice. reasonableness and public policy. The amount of benevolence was disregarded for the reason that springs of private charity would get dried up if such amounts went for the benefit of the tort-feasor. As regards insurance moneys coming to the plaintiff under a contract of insurance, the learned Lord at page 5s8 observed that the real and substantial rea, son for disregarding them was that the plaintiff had bought them and it would be unjust and unreasonable to hold that the money which he prudently spent on premium and the benefit from it should enure to the benefit of the tortfeasor. Why should the Plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money; if he had not spent it he would have had it in his possession at the time of the accident grossed UP at compound interest.'
22. In another Division Bench judgment of this court, in L. I. C. of India v. Kasturben Naranbhai Vadhia, reported in 1973 Ace CJ 226: (AIR 1973 Guj 216), same bench of J.' B. Mehta and S. N. Patel, JJ. again considered a similar question. J. B. Mehta, J. speaking for the Division Bench in Para 13 of the Report. considered the question whether the amount of insurance money and the amount of death-cum-retirement, gratuity which came to be paid to the dependents of the deceased after his death can be deducted from the compensation amount payable by the tortfeasor to the claimants. Holding that such amounts cannot be deducted. it was observed:-
'We have pointed out the legal position as enunciated in the latest decision by the House of Lords in Parry v. Cleaver, (1969) 1 All 'ElEf 555, where it was accepted as a settled Principle of common law. which was followed not only in England but in all other common law jurisdictions after Bradburn's case (1874-80) All ER Repl. .195) that insurance policy amounts were collateral benefits which the deceased had bought with his own money. It was a benefit derived by way of prudent savings effected for his own benefit under a contract by-the injured party whose benefit could never go to the tort-feasor. It is only alike which can be deducted from the like and, therefore, intrinsic nature of 'the payment must be considered before any such deduction; can be made.'
It was further observed:-
'That is why any pension amount or retirement-cum -gratuity benefit which had the insurance element could never be deducted. It was only that pension which was earned after the contributions had ceased that it assumed the character of wages and which alone could be deducted, when computing, the economic loss of future earnings or loss Of wages.'
23. We may also, in this connection, refer to the decision of House of Lords in Parry v. Cleaver (19691 l All ER 555. In that decision Lord Reid while considering the question about permissible deductions from the compensation ' amount which the tort-feasor was required to pay to this victim, observed as under:-
'Two questions can arise, First what did the appellant lose as a result of the accident? What are the sums which he would have received but for the accident but which by reason of the accident he can no longer get? And secondly. what are the sums which he did in fact receive as a result of the accident but which he would not have received if there had been no accident?'
The question of deduction. according to Lord Reid, would arise while considering the second question which he had posed. While considering that _question, Lord Reid further observed:-
'In 1wo large classes of cases such sums were disregarded: (1) the proceeds of insurance and (2) sums coming to by reason of benevolence.'
While referring to Lord Campbell's Act, Lord Reid observed:-
'In dealing with damages under Lord Campbell's Act, such receipts were not disregarded until the law was altered by recent legislation. There there was a universal rule. Here, there never was. The common law has treated this matter as one depending on justice, reasonable-~ ness and public Policy.'
Considering the aspect of reasonableness while allowing such deduction from the compensation amount payable by the tort-feasor, it was observed:-
'It would be revolting to the ordinary man's sense of justice and therefore contrary to public policy that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large and that the only gainer would be the wrongdoer.'
in this connection it, Was further observed:-
'We do not have to decide in this case whether these considerations also apply to public benevolence in the shape of various uncovenanted benefits--from the welfare State but it may be thought that Parliament did not intend them to be for the benefit of the wrongdoer-'
At page 563 of the Report, Lord Reid considered the statutory scheme of the Fatal Accidents Act, 1959 under which ~he English Parliament had in terms provided that 'In assessing damages in respect Of a person's death in any action under the Fatal Accidents Act, 1846, or under the Carriage by Air Act, 1932, there shall not be taken into account any insurance money, benefit pension or gratuity which has been or will or may be paid as a result of the death.'
Keeping this in view, it was observed:-
'if public policy, as now interpreted by Parliament, requires all pensions to be disregarded in actions under the Fatal Accidents Acts, I find it impossible to, see how it can be proper to bring pensions into account in common law actions. Plaintiffs were formerly worse off under Lord Campbell's Act and I can think of no reason why the position should now be reversed so as to make them worse off at common law. In my judgment, a decision that pensions should .not be brought into account in assessing damages at common law is consistent with general principles with the preponderating weight of authority, and with public policy as enacted by Parliament and I would therefore so decide'.
24. It therefore, appears clear that, before a wrongdoer can urge with any emphasis that certain deductions should be effected from the compensation amount which is made Payable by him to the dependents of the deceased victim, a very heavy onus lies on the wrongdoer to show how these deductions do not fall within the excepted categories of payments which cannot be deducted from Such compensation.. Thus, before any deduction from the compensation amount it will have to be demonstrated by the wrongdoer that this mount' had any direct connection or linkage with the death of the victim and that it was not in the nature of payment of compensation by way of accident insurance or that it was -not a voluntary payment made to his dependents ex gratia. In the present case. the original opponents had made no such effort to show as to what was the exact nature of payment of Rs. 10,000 to the widow of the deceased as effected by the railway. Merely because Rs. 10,000/- were received by the widow of the deceased from the railway it cannot be said that of necessity. It must be the payment which did not fall in any of the excepted categories as shown by us above Mr. Trivedi placed great reliance on the reply given by the widow of the deceased in her cross examination wherein she stated that she had received compensation of Rupees 10,000/- on account of her husband's death. But merely because she used the word 'compensation' it cannot be reason ably said that the said compensation amount was not voluntarily paid by the railway or was not as a result of any obligation in the nature of insurance which the railway had incurred towards its employee who died on duty. and to which the employee might have himself contributed by way of premium. it is also not shown whether the said, amount was not in the nature of any ex gratia or benevolent payment which the railway owned by the welfare State may have effected in favour of the widow of the deceased-workman who died in harness. It is too much to presume that I an illiterate widow understood therfore said nice technical distinctions between various connotations of and-shades viz the meanings of word 'compensation,. It is not unknown that in case of railway accidents, ex gratia payments are made by the railway authorities to the dependents of passengers who may meet untimely deaths in such accidents or even to the injured passengers. Thus. merely because Rs. 10,000/- were Paid by the railway authorities to the widow of the deceased who died on duty it cannot be said that the payment was not one which did not fall within any of the aforesaid excepted categories. As the original opponents failed to discharge the onus which lay on them to show the exact nature of the payment which was received by the widow from the railway authority, it is not 'possible for us to accept the contention of Mr. Trivedi for the appellants that the said amount must necessarily be held to have been received by her on account of the death of her husband and that too by way of money compensation on account of the death of the workman while on duty. No effort was made by the appellants to bring on record any order passed by the railway authorities under- which this payment came to be effected to the widow of the deceased. Thus the only evidence brought on the record of this case Points out,that:,Rs. 10,000/- were received by the widow of the deceased from the railway. From this meagre evidence, it is impossible for us to hold that this amount was liable to be deducted from the compensation amount payable to the dependents of the deceased unless all various aspects of such payment were fully thrashed out on the record of this case. The appellants failed to lead proper evidence before the Tribunal to point out the exact nature of such payment to the widow of the deceased workman by the railway and in absence of such evidence, it is not possible for us to accept the contention of Mr. Trivedi for the appellants that this amount must necessary be deducted from the total compensation amount held Payable to the claimants. On the state of the evidence in this case. we have to hold that the Tribunal was not justified in deducting Rs. 10,0001- from the total compensation amount payable to the heirs of the deceased as the appellants had failed to Prove that this amount was a permissible deduction. With respect, the Tribunal erroneously equated the mere receipt of Rs. 10.000iby the widow of the deceased from the railway to a Permissible deduction which can be effected from the compensation amount which the tortfeasor had to Pay to the dependents of his victim. As we have already shown above, mere receipt of any amount by the widow of the deceased from the railway cannot automatically be treated as one liable to be conducted from the total compensation, unless the true nature and character of the amount is fully established on the record of the case and as that type of evidence is lacking in the present case, it must be held ~that the appellants have failed to discharge the onus which lay on them to prove that Us amount was liable to be deducted from the total compensation amount. Hence the claim in cross-objections to the extent of Rupees 10,000/- will have to be allowed. Further claim of Rs. 1000/- is a consequential one as it is concerned with the Proportionate costs on the afored amount which according to the claimants has been wrongly deducted from the total compensation. Thus, the cross-objections in first appeal No. 722 of 1976 will have to be 'allowed with costs. The claimants will be entitled to the additional amount of Rs. 11,0001by wav of compensation with costs and running interest at 0% from the date of the application till payment. The award passed by the Tribunal will have to be modified to that extent.
25 to 31. x x x x.
32. Ordered accordingly.