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Commandant of 74 Bn. B.S.F. and ors. Vs. Pankajini Kundu - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 981 of 1976
Judge
Reported inAIR1984Cal405,88CWN1019
ActsMotor Vehicles Act, 1939 - Section 110A, 110B and 110D; ;Fatal Accidents Act
AppellantCommandant of 74 Bn. B.S.F. and ors.
RespondentPankajini Kundu
Appellant AdvocateAnwar Hossain, Adv.
Respondent AdvocatePanchanan Pal, Sr. Adv. and ;Amar Nath Dhole, Adv.
DispositionAppeal dismissed
Cases ReferredGobald Motor Service Ltd. v. R. M.K. Valuswami
Excerpt:
- .....by him was instrumental in knocking down the deceased. he did not find any fault with him. the learned tribunal judge rightly did not place any credence on such a interested self-exculpatory testimony.7. a very peculiar defence was also sought to be taken before the tribunal on behalf of the appellant by amending the written statement contending inter alia that since it was a b.s.f. vehicle on duty and was engaged in doing acts of the sovereign authority, it had no liability whatsoever to render compensation to the victim. the learned judge of the tribunal rightly overruled the said defence by holding inter alia that in the facts andcircumstances of the present case it could not be held that the b.s.f. driver, at the time of commission of the tortious act, was performing any duty.....
Judgment:

Mukul Gopal Mukherji, J.

1. This appeal under Section 110D of the Motor Vehicles Act, 1939 is directed against an award passed by the Claims Tribunal in Motor Accidents Claims Case No. 2 of 1973, Shri P. Datta, District Judge, Malda as the Claims Tribunal, by his judgment dated the 6th May, 1978 passed an award for a sum of Rs. 40,000/- against the Union of India and Driver No. 67744116 Gorak Nath Saha of 74 BN. of Border Security Force. The claimant was one Smt. Pankajini Kundu, mother of the victim of the accident Asok Kumar Kundu, a young man of 21 studying in B.Sc., 2nd Year who was run over at Alampur, P.S. Gazol on the 21st July, 1972 at about 10 a.m. by a vehicle belonging to the 74 Battalion of the Border Security Force and driven by the said driver Gorok Nath Saha.

2. On 23rd July, 1972 at about 2 a.m. the victim died in Malda Sadar Hospital. The entire claim of Rs. 40,000/- stood allowed against the respondents Nos. 3 and 4 who are appellants Nos. 3 and 4 herein though it stood dismissed against the appellants Nos. 1 and 2.

3. The case of the claimant inter alia was that her son had a Driving Licence. He used to drive his father's Taxi cab No. WGR 900 on such days when his college was closed. Otherwise he was a regular B.Sc. 2nd Year student. They had a regular driver who normaly used to ply the taxi, but even on such days when the driver drove the taxi, her son used to accompany the driver. On the relevant day i.e. July 22, 1972 the regular driver Manjur Ali was absent and her son was alone driving the taxi. There was also a cleaner, Gopal Dey, P.W. 2, who accompanied him in the said taxi. On 22nd July, 1972 at about 10 a.m. the deceased while driving the taxi stopped his vehicle on the left flank (Kancha portion) on the National High Way No. 34 near Alampore halt to allow some passengers to get down. He was standing close to the door of the vehicle on the right hand side to assist Gopal who had been directed to bring a bucket of water to clean the rear seat of the vehicle where a woman passenger vomited. The appellant No. 3 Gorokh Nath Shah, a B.S.F. Driver attached to 74 Battalion driving his Hindustan Bedford Truck in a speed of 40 Km. per hour knocked him down from behind. The said B.S.F. vehicle was coming from Gazol side. It did not blow any horn. It dashed against the deceased and he fell down on the left flank of the Highway senseless. The driver drove away the vehicle thus running away from the site. Asoke was taken to the Sadar Hospital in their own taxi bearing No. WGR 900 which was driven by a passenger, P.W. 1 Birendranath Moitra.

4. P.W. 1 Birendra Nath Moitra as stated earlier was a passenger of the said car. Driving the taxi along with Gopal Dey (P.W. 2) he had taken Asoke to Malda Sadar Hospital. Leaving him in the Emergency Ward of the Hospital, Birendra informed the parents of Asoke about the incident. Another passenger of the taxi was also in the hospital and his name was Kartick Chandra Biswas. Asoke died in Hospital that very night, 17 hours after the incident. The veracity of P.W. 1 waschallenged on the point as to whether the truck was blowing the horn as it was coming and further on the point as to whether he was a passenger of the said car driven by Asoke or whether he came to depose just as a fellow businessman and as a friend of Asoke. P.W. 2 Gopal Dey was a cleaner and he was employed in the car of the claimant's husband. He also corroborated P.W. 1 as regards washing of the vomit at Alampore and Asoke standing by the side of the rear door of the car on the right side and giving direction to him for washing of the car. The right hand door was shut at the relevant time and other passengers were out of the car. He also corroborated the fact that Manjur Ali, the regular driver of the car was not on duty at the relevant day. Asoke was driving the car. He also corroborated Biren as regards bleeding injuries on the person of Asoke particularly on his breast and shoulder. A resident of Alampore, Narasingh Gupta (P.W, 3) also saw the incident. He , corroborated P.W. 1 about the van not having blown any horn and that the van was running at a speed. A co-passenger of the said taxi Dukulal Das (P.W. 4) also spoke about the Military van coming from the side of Gazol and dashing against Asoke who fell down. He further stated that he did not hear any sound of horn and that the van was moving at a great speed. The van did not stop and ran away. Asoke was put up in the car which was taken to Malda Sadar Hospital. He therefrom went home. Kartick Chandra Biswas (P.W. 5) also testified about the Bedford truck of the B.S.F. bearing No. 3690 which came from Gazol side dashing against Asoke and speeding away thereafter. The truck did not blow its horn. P.W. 6 Pradyut Kumar Bhattacharjee who was a compounder of the Police Hospital at Malda testified that the Post-mortem Doctor i.e. Doctor B.C. Mukherjee, Medical Officer of the Police Hospital at Malda was dead. He proved the office copy of the post-mortem examination report in respect of the deceased who had also a nick name Santu Kundu.

5. The claimant examined herself in commission and proved the evidentiary details in support of her claim. While testifying about the income of her son she stated inter alia that her son used to get Rs. 250/- as the driver of the car. Her husband i.e. the father of Asoke whoowned the car used to give him the said amount. Besides this her son used to earn between Rs. 100/- and Rs. 125/- per month by doing private tuition. He used to study B.Sc. in the 2nd year class in the Malda College. Whatever amounts he used to earn he gave to his mother, the claimant. The testimony of the claimant herself about the manner in which the accident occurred and as to what her son was doing by way of cleansing operation at the time the driver of offending vehicle knocked him down would all be hearsay, but we have on record the evidence of direct eyewitnesses on whom we can rely, as was so done by the learned District Judge who comprised (the tribunal under?) the MotorVehicles Act.

6. The testimony that was adduced on behalf of the appellants before the Tribunal below was merely of the driver of the offending vehicle. He stated that the taxi cab was standing on the road at Alampore on 22nd July, 1972 at 10 a.m. when he was coming with his vehicle from Siliguri to Narayanpur Headquarters on Government duty. All the four wheels of the taxi were on the tar macadamised portion of the road. According to him the door on the right hand side was open. One man stood to the right of the taxi cab on the road at about its middle. He contended that he drove his vehicle at the speed of 25-30 Kms. per hour and he also blew horn of the vehicle. After crossing the taxi he found that there was a noise and he stopped the vehicle. He went back to the spot and asked what was the matter. He was told that nothing had happened. He did not see any injury on the body of the man. He denied that the vehicle driven by him was instrumental in knocking down the deceased. He did not find any fault with him. The learned Tribunal Judge rightly did not place any credence on such a interested self-exculpatory testimony.

7. A very peculiar defence was also sought to be taken before the Tribunal on behalf of the appellant by amending the written statement contending inter alia that since it was a B.S.F. vehicle on duty and was engaged in doing acts of the sovereign authority, it had no liability whatsoever to render compensation to the victim. The learned Judge of the Tribunal rightly overruled the said defence by holding inter alia that in the facts andcircumstances of the present case it could not be held that the B.S.F. driver, at the time of commission of the tortious act, was performing any duty assigned to him by virtue of the delegation of any sovereign power. In that view the learned Tribunal Judge held inter alia that the claimant was entitled to get compensation against the driver as also against the employer and owner of the vehicle viz. the Union of India. It was also vaguely asserted by the learned Advocate on behalf of the appellants before us that since it was a Government vehicle and the driver was discharging his official duty by driving the car, the doctrine of immunity for sovereign function ought to be applied. We reject such an argument because after the insertion of Section 110A in the Motor Vehicles Act, the Amending Act 100 of 1956 the immunity of the sovereign acts of the State is no longer in existence and all owners of vehicles were brought within the scope of the statute for rendering compensation to the victims of motor accidents. The Punjab decision in the case of Union of India v. Harbans Singh reported in , which was rendered in respect of a suit for tort claiming damages for accident which took place before the aforesaid amendment of law, was therefore not applicable. It was held in the said decision that negligence in driving by a military driver while supplying milk to military personnel which resulted in the death of a person could not give rise to a claim for damages against the Union of India as the driver of the offending vehicle was then doing the sovereign acts of the State.

8. In cases where the State is called upon to answer for tortious acts of its servant and where the plea of immunity based on employment pertaining to sovereign function is taken up, the court upholds the plea only in those cases where it finds that the impugned act was committed in the course of undertaking or employment which fell absolutely within the traditional sovereign functions. Such cases are confined to cases of making of laws, the administration of justice, maintenance of orders, repression of crime, carrying-on of war, making efforts at restoration of peace by treaties etc. and other consequential functions. Socio-economic and welfare activities undertaken by the modern state are not included in thetraditional 'sovereign functions'. State famine relief work even was not adjudged to be a sovereign function and it was held that no immunity could be claimed on that score by the State which was made liable for the negligence of its driver, where the cause of accident even was unknown, the principle of res ipsa loquitur being attracted to the case (vide Shyam Sundar v. State of Rajasthan : [1974]3SCR549 ).

9. There is no dispute that the personnel of Border Security Force of B.S.F. are employees of the government and for accidents caused by Border Security Force's truck drivers, the government is liable for payment of compensation, (vide Union of India v. Abdul Rehman ).

10. As regards the quantum of compensation the learned Judge of the Tribunal below has held inter alia that Rs. 40,000/- in his view was quite a modest sum since the victim Asoke was a healthy young man of 21 years and was a student in the B.Sc. 2nd year class. The entire period of his life lay before him and it was cut short at a very early age of 21. If the normal span of his life was taken to be 65 years, he lost at least 44 years of active life. On the average the net income of Rs. 1,000/- per year could have easily been earned by him and that would have benefited the claimant viz. his mother. The tribunal did not of course take in view the span of life of the claimant. Even if the evidence of his mother P.W. 8 the claimant in the case as regards the income of her son at the rate of Rs. 250/- per month derived from his father for driving the taxi and about the further sum of Rs. 100-125/- earned by her son by way of private tuition was not taken as reliable evidence in the absence of corroboration, still the learned trial Judge held that he could have easily earned and saved a sum of Rs. 40,000/- in his life, if he lived for a normal span of life viz. 65 years. In that view the learned Trial Judge held that it was quite a modest claim made by the petitioner.

11. The learned Advocate appearing on behalf of the appellant challenged the said quantum of compensation of Rs. 40,000/- contending inter alia that there was no specific data as regards its computation, under Section 110B of theMotor Vehicles Act, The tribunal is required to fix such compensation which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under the provision is wide. Even if we assume that the compensation in the case is to be fixed on the same basis as is required to be done in the Fatal Accidents Act, pecuniary loss to the parents must have to be assessed on the basis of available datas, which cannot be accurately ascertained and must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimant of the future pecuniary benefit and on the other any pecuniary advantage which from whatsoever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The principle was reiterated by the Supreme Court in Sheikhupura Transport Company v. Northern India Transport Insurance Co. Pvt. Ltd., reported in : AIR1971SC1624 following the earlier decision reported in Gobald Motor Service Ltd. v. R. M.K. Valuswami, : [1962]1SCR929 . In that view of the matter we do not think that the quantum as assessed by the learned Judge of the Tribunal warrants any interference by us on appeal under Section 110D of the Motor Vehicles Act.

12. The appeal is thus dismissed but in the facts and circumstances of the present case without any order as to costs.

13. All monies paid by the appellants towards the sum awarded shall be adjusted against the claim of the respondent.

Mookerjee, J.

14. I agree.


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