1. Near Champaner Darwaja in the City of Baroda, on June 27, 1976, at about 9.30 P. M., a young man aged about 20, who was riding a bicycle, was knocked down by tanker No. CTG. 2074, which was owned by the first respondent and which came from behind. The injury sustained during the course of the accident consisted, inter alia, of the fracture of the pelvic bone and rupture of urethra. The injured was removed to the S. S. G. Hospital from the scene of accident. He was operated upon in the early hours of the next day at about 2 A. M. Two more operations were performed during the course of his hospitalization which lasted up to Sept. 17, 1976. At the time of discharge, the injured was advised to report again for dilation once every fortnight as he was experiencing difficulty in passing urine owing to the accident injury. The evidence on record indicates that the difficulty persisted requiring hospitalization for brief periods on several occasions even after the initial discharge of the injured from the hospital. The injured ultimately expired after nearly seventeen months on Nov. 25, 1977.
2. Prior to his death and while he was still languishing under the impact of the accident injuries, the victim had instituted an application for compensation on Oct. 16, 1976. Compensation was claimed in the said application under the following heads:
Rs. 5,000/- . Mental pain and agonyRs. 2,500/ . Medical treatmentRs. 2,200/ -. Other expensesRs. 1,000/- . Loss of wagesRs. 200/- . Bicycle damageRs. 10,900/-
The actual claim was, however, restricted to Rs. 9,999/-. Before the proceeding reached the trial stage, the applicant expired. His parents, aged 45 and 40 respectively, were, therefore, permitted to prosecute the application. The claim in the application was thereafter enhanced from Rs. 9,9991- to Rs. 45,000/-. The split up was as follows:-
Rs. 3,000/- Medical expenses.Rs. 5,000/-. Mental pain.Rs. 5,100/- . Loss of wages from 27-6-76 to 25-11-1977.Rs. 31,700/-. Pecuniary loss due to death.Rs. 200/- Funeral expenses.Rs. 45,000/-
The award which the Tribunal made was in the sum of Rs. 10,000/- with proportionate costs and interest at the rate of 6 per cent per annum from the date of application till realization. The father was held entitled to one-third and the mother to two-thirds of the awarded amount.
3. It requires to be clarified at this stage that in determining the quantum of compensation, the Tribunal acted on the footing that it was not established that the death was caused due to the injuries sustained by the deceased in the course of the accident.
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Obviously, the main attack in the present appeal is against the aforesaid finding of the Tribunal which has materially affected the quantum of compensation.
4. Before we proceed to consider the challenge in the light of the evidence on record, it would be worthwhile to make a few observations of a general character. At the trial of a claim petition, what the claimant must, no doubt prove is that the loss for which he claims damages was caused by the defendant's negligent act. The evidence to prove the loss and the negligent act may be direct or circumstantial or both. Such evidence must be tested by the yardstick of probabilities and its intrinsic worth. In considering the question as to whether the direct evidence given by the claimant and his witnesses should be accepted or not, the primary duty of the Tribunal is to ascertain whether it is consistent with itself and with the rest of the evidence and the circum stances of the case. It is hardly necessary to add that it would be unsafe to discard such evidence, if it appears otherwise to be reasonable and probable, merely because of some suggestions made to the witnesses with out those suggestions being proved to be true. While dealing with circumstantial evidence the Tribunal must be satisfied on preponderance of probability whether the circumstances established prove the loss and negligence. Every case in the final analysis would have to depend upon its own facts, but the Tribunal should be slow to reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
5. It cannot be overlooked that the trial of a claim petition is concerned with the fate of a person who has met with an accident or with the dependants of an unfortunate victim of an accident. Accident is an event in real life, its impact is sudden and its immediate effect is to arouse the instinct of the preservation of life or the affected limb. The collection and preservation of meticulous particulars which may be required to be proved at the time of a claim petition to be instituted and tried months or years hence would obviously be the farthest consideration present to the mind of the persons involved in the tragedy. Besides, it might not be possible in all cases to lead evidence of the medical personnel or all of them who might have been consulted or who might have administration treatment to the injured or deceased person. It is a matter of common knowledge that for diverse reasons it may not be possible in every case to produce such evidence and that if otherwise trustworthy evidence led by the claimant with regard to the nature and consequences of the injury and the course and cost of treatment were to be disregarded merely on the ground of non examination of the medical witness, there would be miscarriage of justice.
6. It is also well' to bear in mind that there is an essential distinction between 'burden of proof' and 'onus of proof'; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (see Raghavamma v. Chenchamma, AIR 1964 SC 136). Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden, - the burden as a matter of law and pleadings - remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses.
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13. Having regard to the evidence on record, we are clearly of the opinion that it was not correct to hold that there was no direct and proximate connection between the accident injury and the untimely demise of the deceased. True it is that the death was not all at once or at a point of time proximate to the date of accident. It is also true that there is no medical evidence regarding the cause of death. However, the direct testimony of the appellant Sornabhai clearly establishes, when appreciated in the light of the medical evidence, that the death was inevitably linked with the accident injury. Tested by the yardstick of probabilities and consistency with itself, the rest of the evidence and the circumstances of the case, the appellant's evidence emerges unscathed and there is no reason to reject it. The surrounding circumstances also point in the same direction. There was no definitive break, no unexplained interval, no yawning' hiatus so as to snap the link between the accident injury and its telltale physical con., sequences and the untimely death. The principal after effect of the accident injury, namely, the urinary difficulty, is shown to have persisted throughout the interval of time between the date of accident and the date of death and treatment to relieve the deceased of the same is also shown to have been administered all along during the said period on different occasions. We cannot overlook the fact that the deceased was a youth in the Prime of his life. He was healthy and suffered from no disease prior to the accident. Young men do not die suddenly; some cause has to be found for their death. Where one is manifest on the record of the case, it would be ignoring the reality to close eyes to the same and to conjecture that the death could possibly have resulted due to some other undisclosed cause when not a scintilla of it is perceivable. The fact that no medical evidence was led to precisely establish the cause of death is a matter of no consequence on the facts and in the circumstances of the case and on the state of evidence on record. As we have pointed out earlier, it might not be possible in all cases to lead the evidence of experts. That apart, when the direct and circumstantial evidence tending to establish the link between the accident injury and death goes unchallenged, as in the present case, it would be idle to insist upon the fulfilment of such a requirement. We are, therefore, of the view that the Tribunal, in the instant case, reached the conclusion which it was impossible to arrive at on the evidence on record, when it held that the death was not the result of the accident injury. We reverse the finding of the Tribunal on that point and hold that the death of the deceased had direct and proximate connection with the accident injury.
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15. We must now turn to the question of assessment of compensation in the light of our finding recorded above. Having regard to the said finding, the entire basis of the award of compensation by, the Tribunal would appear to be misconceived. The case will have to be treated as one for compensation arising out of the loss caused by the death on account of the accident injury and not merely on account of the disablement as a result of the accident injury. Bearing in mind this material change in the fact situation, we shall first dispose of the claims for, compensation under comparatively minor, heads.
16. The Tribunal has awarded Rs. 3,000/- as compensation for medical expenses. There is no cause for the enhancement of the award under this head, on the evidence on record. The Tribunal has awarded compensation in the sum of Rs. 2,000/- for the actual loss of earning at the rate of Rs. 200/- per month for a period of ten months. The period of ten months was computed on the basis that there was no medical evidence to show that the deceased was all along confined to bed, but still it would be reasonable to assume that he must have been disabled at least for a period of ten months. In the light of our finding with regard to the state of health - of the deceased right up to the time of his death, it would be legitimate to enhance compensation under this head so as to cover the entire period from the date of accident till the date of death. The time-lag between the two events is 17 months and, on that basis, even accepting that the deceased's earning was Rs. 200/- per month, compensation in the sum of Rs. 3,400/- would be awardable. There was obviously no award under the head of loss of expectation of life and under that head, compensation in the conventional sum of Rs. 5,000/- would be awardable. On the aforesaid basis, the compensation awardable under the three heads abovementioned would be in the sum of Rs. 11,400/-. We shall later on specify as to how the compensation is to be apportioned.
17. We must turn our attention to the main head of compensation, namely, pecuniary loss. We have earlier accepted the Tribunal's estimate of the income of the deceased, at the time of the accident, being Rs. 200/- per month. We are, however, unable to accept its estimate that the future income of the deceased would have been confined to Rs. 300/- per month only. The deceased, as found by the Tribunal, was working as an apprentice carpenter and even in that capacity he was earning Rs. 200/- per month. He was aged about 20 at the time of the accident. It would be ignoring the reality to pin down his future income, when he became a full-fledged carpenter, to the meagre sum of Rs. 300/- per month for the remainder of his long span of life. The positive evidence of the appellant Somabhai is that the normal daily wages of a carpenter are between Rs. 15/- to Rs. 20/-. Even taking the smaller amount as correctly estimating the daily wages, the monthly income of a regular carpenter would have to be taken to be Rs. 450/-. This estimate, of course, relates to the point of time when the appellant Somabhai gave his evidence. Judicial notice can be taken of the fact that the earnings of self-employed persons like masons, carpenters, etc. have been gradually rising. It would be impossible to find a carpenter these days on daily wages of Rs. 15/-. The daily wages of a carpenter have almost doubled by now. Under the circumstances, even assuming that the de ceased would have continued to work onl3 as a carpenter till the fag end of his life and even on the most conservative basis, it would be legitimate to estimate that the deceased would have earned in course of time at least Rs. 600/- per month. However, the pecuniary loss cannot be compensated straight. way on that basis. The monthly earnings of the deceased would not have reached Rs. 600/- immediately but in course of time, as pointed out above. The earnings would have gradually risen as time went by. Besides, several ponderables have to be taken into consideration. Discount must also be made for the immediate benefit in the form of cash compensation available to the do pendants and heirs. Under the circumstances, upon a reasonable estimate, the average monthly income of the deceased, for the purpose of arriving at the proper datum figure, can be computed at Rs. 400/-. The deceased would have spent Rs. 75/- per month on himself. On the aforesaid basis, the net monthly income of the deceased for the purpose of working out the dependency benefit must be taken to be Rs. 325/- per month. The net annual income on that basis works out to Rs. 3,900/-.
18. x x x x x x
19. In the instant case, the deceased was aged 20 at the time of his death and he had not married. Amongst the appellants, the appellant Somabhai (father) was aged about 45 and the appellant Dahiben (mother) was aged about 40 at the time of the accident. Out of the net amount of Rs. 3,900/- available to the deceased as aforesaid, he would have been required to divert substantial amount in course of time for meeting the needs of his own family. We say so because we are herein concerned with a person whose estimated bracket of income is not high. Having regard to the aforesaid circumstances, we are of the view that in the instant case, it would not be unreasonable to hold that out of the net amount of Rs. 3,900/-, two-thirds would have been diverted by the deceased for the maintenance of his own family and one-third for the maintenance of his parents. On that basis, the datum figure for computing the dependency benefit works out to Rs. 1,300/- per annum. Having regard to the young age of the deceased and the age of the parents and the fairly long period for which the parents could have looked forward to the deceased for pecuniary support, the multiplicand of 16 would appear to be just, reasonable and proper. On that basis, the prospective pecuniary loss to the appellants works out to Rs. 20,800/-. The appellants would, therefore, be entitled to an award in the sum of Rs. 20,800/- for the loss of dependency benefit.
20. Compensation under one more head peculiar to the case must be considered next. As the earlier discussion would reveal, the deceased underwent a prolonged period of pain and suffering. Between the entire period from the date of accident (June 27, 1976) and the date of death (November 25, 1977) extending over 17 months, the deceased continuously experienced difficult in passing urine. Three operations had to be performed one of which was major. The first period of hospitalization immediately after the accident was approximately 80 days. There was another period of hospitalization extending over two months. There were five or six brief periods of further hospitalization on each occasion for about one week. In between, there were regular visits to the hospital for check-up and. dilation. The deceased never really recovered from the accident injury till he died. Under such circumstances, just compensation would be awardable under the head of 'pain, shock and suffering'. In most cases, the period intervening between the date of the accident and the date of death is comparatively short. Therefore, this head of damages is, in practice, usually not of great importance in fatal accident cases. However, where the deceased has suffered a long and painful illness due to his injuries before he died, the situation is entirely different and it calls for an award in respect of the pain, shock and suffering, undergone by the deceased as a result of his injuries before he died. It is true that no specific claim has been made in the instant case under this head. The claim in the sum of Rs. 5,000/- for 'mental pain' may not cover an award under the head under consideration. However, as held in Babu Mansa v. Ahmedabad Municipal Corporation, (1978) 19 Guj LR 492: (AIR 1978 Guj 134), even under such circumstances, the power to award just and proper compensation is not fettered. x x x x Under the circumstances, in the instant case, an award for the pain, shock and suffering undergone by the deceased over a period of about 17 months can be legitimately made. The compensation would require to be quantified having regard to the duration, nature and extent of the pain and suffering. However, we are not called, upon to precisely determine the exact amount of compensation awardable in view of the fact that the gap between the amount of compensation Which we have determined to be payable under the different heads previously considered and the total amount claimed by way of compensation is Rs. 12,800/- only. We are of the view that on the facts and in the circumstances of the case and having regard to the duration and nature and extent of the pain, shock and suffering suffered by the deceased, an award in the sum of Rupees 12,800/- at least would be justified.
21. As a result of the foregoing discussion, the following amounts would become payable as compensation under the different heads :-
Rs. 3,000/- ......... Medical expenses. Rs. 3,400/- .........Loss of wages from June 27, 1976 to November 25, 1977.Rs. 5,000/-......... Loss of expectation of life.Rs. 20,800/- ...... Dependency benefit.Rs. 12,800/- ....... Pain, shock and suffering suffered by the deceased.Rs. 45,000/-
The total award would accordingly be in the sum of Rs. 45,000/-. The Tribunal has awarded Rs. 10,000/-. The balance amount of Rs. 35,000/- would accordingly be awardable as compensation in the appeal with interest and costs.
22. The next question which falls for consideration is the apportionment of compensation. In Gobald Motor Service Ltd. v. Veluswami, AIR 1962 SC l, it was held that the causes of action under Sections 1 and 2 of the Fatal Accidents Act, 1855 are different. While under Section 1, damages are recoverable for the benefit of the persons mentioned therein, under Section 2 compensation goes to the benefit of the estate. Whereas under S. 1 damages are payable in respect of loss sustained by the persons mentioned therein, under S. 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases, parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under Section 1 may be different from those claiming under Section 2. Prima facie, as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. The above declaration of law made by the Supreme Court in the context of Sections 1 and 2 of the Fatal Accidents Act, 1855 still holds good in the context of Ss. I-A and 2 because original Section 1 has since been renumbered as Section 1-A and there is no other material change in the relevant statutory provisions.
23. In Union Co-operative Insurance Society Ltd. v. Bhartiben, 19 Guj LR 820 -(AIR 1979 Guj 121), it was held that any compensation on account of loss to the estate which is awardable under Section 2 of the Fatal Accidents Act, 1855 is in respect of the pecuniary loss to the estate of the deceased resulting from the accident. Damages for the loss caused to the estate are to be claimed on behalf of the estate and, when recovered, form part of the estate. The claim for such compensation could only be made by those who would succeed to the estate or on their behalf. It could not be made by someone who has no legal right to succeed to the estate. In that case, the deceased left behind him his wife and a minor daughter and at the time of his death, the wife also carried a child in the womb. The deceased had not left behind him any will. The parties were Hindus ' and they were governed by the Hindu Succession Act, 1956. It was found, having regard to the provisions of Section 8 of the said Act, that were preferential father and that, therefore, they alone were entitled as heirs to the estate to the amount of compensation awardable under Section 2. The father was not entitled to any share in the compensation awardable on account of the loss to the estate of the deceased.
24. In the present case, the appellants are the father and mother of the deceased. The deceased is not shown to have left any will. The case would, therefore, be governed as one of intestate succession under the Hindu Succession Act, 1956. Under S. 8 of the Hindu Succession Act, 1956, the property of a mate Hindu dying intestate devolves according to the provisions made in Chapter II and, accordingly, the property devolves (1) firstly upon the heirs being the relatives specified in Class I of the Schedule and (2) secondly, if there is no heir of Class 1, then upon the heirs being the relatives specified in Class II of the Schedule and so on and so forth. When one turns to the Schedule, one finds that mother is amongst the heirs specified in Class 1, whereas father is an heir specified in Class IL Therefore, as between the appellant father and the appellant mother, the appellant mother is the preferential heir and she will exclude the appellant father who cannot possibly lay any claim to any compensation awardable to the estate of the deceased. The evidence of the appellant Somabhai discloses that he had two sons, besides the deceased. Brother is also an heir specified in Class 11 and, therefore, the brothers too would stand excluded by the appellant mother. The question of inter se preference between the father and brothers, therefore, does not fall for consideration in the instant case.
25. Against the aforesaid background, we must proceed to apportion the compensation awarded under different heads between the two appellants. The dependency benefit computed at Rs. 20,800/- would be equally distributed between the two appellants and each one of them would be entitled to an amount of Rs. 10,400/- under the said head. The appellant Somabhai has deposed that the medical expenses were incurred by him. Therefore, the sum of Rs. 3,000/- awarded under the head of medical expenses would be payable to the appellant Somabhai. Out of the amount of Rs. 3,400/- awarded as actual loss of earnings sustained by the deceased, only two-thirds will have to be treated as forming part of the estate of the deceased because consistently with the reasoning adopted by us, while computing the dependency benefit, it would be legitimate to assume that the remaining one-third would have been spent by him on the maintenance of his parents. Therefore, out of the amount of Rs. 3,400/- awarded under the said head, a sum of Rs. 2,266/- would be treated as having been awarded as compensation for loss to the estate and Rs. 1,134/- would be treated as having been awarded as compensation for the loss sustained by the appellants, during the lifetime of the deceased by denial of contribution by him towards their maintenance on account of the tortious act. Each one of the appellants would, therefore, be entitled to a sum of Rs. 567/- out of the compensation awarded under the said head. The compenstation in the conventional sum of Rs. 5,000/- for the loss of expectation of life and compensation in the sum of Rupees 12,800/- for the pain, shock and suffering of the deceased would be payable to the appellant Dahiben as it obviously forms part of the assets of the estate of the deceased.
In the light of the aforesaid discussion, as between the two appellants, the amount of compensation would require to be apportioned as follows: -
Appellant Somabhai (father)
Rs. 10,400/-.... Dependency benefitRs. 3,000/-......Medical expensesRs. 567/-... Loss sustained on account of denial of maintenance during the lifetime of the deceased.Rs. 13,967/-
Appellant Dahiben (mother)
Rs. 10,400/... Dependency benefitRs. 567/-... Loss sustained on account of denial of maintenance during the lifetime of the deceased.Rs. 2,266/- ... Loss of actual earnings suffered by the deceased forming part of the estate.Rs. 5,000/-.... Conventional award for loss of expectation of life.Rs. 12,800/-... Pain, shock and suffering caused to the deceased.Rs. 31,033/-
The Tribunal has apportioned the amount of compensation awarded by it in the proportion of one-third and two-thirds between the first and the second appellants respectively. The apportionment would require to be modified on the aforesaid basis and out of the total amount of compensation which becomes payable, each appellant will get what has been found payable to such appellant as per the award made in this appeal.
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27. The appellant Somabhai will be entitled to withdraw the full balance amount to which he is held entitled out of the amount to be deposited by the fourth respondent. So far as the appellant Dahiben is concerned, she will not be entitled to withdraw the entire balance amount of compensation payable to her under this award. The Tribunal shall arrange for the placement of a sum of Rs. 20,000/- out of the additional amount awarded to her in fixed deposit with a nationalised bank at any station convenient to the said appellant for a period of 62 months. The deposit shall be in the joint names of the second and first appellants but a condition shall be imposed upon the concerned bank at the time of the placement of the fixed deposit that the deposit shall not be permitted to be encashed before due date and that no loan shall be advanced against the said deposit. The interest accruing due on the fixed deposit monthly quarterly or yearly, as the case may be, shall, however, be payable directly to the appellant Dahiben. No remuneration shall be chargeable for the placement of the deposit by any member of the staff of the Tribunal. it is clarified that in case the appellant Dahiben is required to fall back upon the amount deposited before the date of maturity of the deposit, it shall be open to her to move the Tribunal with an appropriate request which shall be considered by the Tribunal on its own merits, bearing in mind the prevalent circumstances and ultimate interest of the said appellant. The balance amount which remains after the placement of Rs. 20,000/-in fixed deposit as directed above shall be paid to the appellant Dabiben out of the amount of additional compensation awarded to her.
28. Appeal allowed.