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Kailash Wati and anr. Vs. State of Haryana and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtHimachal Pradesh High Court
Decided On
Case NumberM.F.A. No. 2 of 1972
Judge
ActsMotor Vehicles Act, 1939 - Section 110B and 110CC
AppellantKailash Wati and anr.
RespondentState of Haryana and anr.
Appellant Advocate R.K. Gupta and; K.D. Sud, Advs.
Respondent Advocate B. Sita Ram, Adv. General
Cases ReferredSwaraj Motors Private Ltd. v. T. R. Raman Pillai
Excerpt:
- .....claims petitions under section 110-a of the motor vehicles act disposed of by the motor accident claims tribunal, mahasu and kinnaur districts at kelleston, simla by a single judgment, dated 3lst august, 1971.2. the undisputed facts of the cases are that on 28th october, 1969 the haryana roadways bus no. hra-1243 left chandigarh at about 2-10 p.m. for kasauli, shri anand kumar a second year law student, shri ajesh kashyap, a third year chemical engineering stu-dent, shri ravi datta, a forest guard and his brother shri bishan datt boarded the bus. when the bus reached near village jabli, 17 miles towards the west of police station, solan, i.e., at 73 milestone, the front wheel tyre of the right side of the bus burst and the driver who was driving the bus negligently and rash1ly could.....
Judgment:

Chet Ram Thakur, J.

1. These four appeals arise out of four claims petitions under Section 110-A of the Motor Vehicles Act disposed of by the Motor Accident Claims Tribunal, Mahasu and Kinnaur Districts at Kelleston, Simla by a single judgment, dated 3lst August, 1971.

2. The undisputed facts of the cases are that on 28th October, 1969 the Haryana Roadways Bus No. HRA-1243 left Chandigarh at about 2-10 P.M. for Kasauli, Shri Anand Kumar a second year Law student, Shri Ajesh Kashyap, a third year Chemical Engineering Stu-dent, Shri Ravi Datta, a Forest Guard and his brother Shri Bishan Datt boarded the bus. When the bus reached near village Jabli, 17 miles towards the West of Police Station, Solan, i.e., at 73 milestone, the front wheel tyre of the right side of the bus burst and the driver who was driving the bus negligently and rash1ly could not control the bus with the result that it rolled down in the Khud at a distance of about '450 feet from the road. Sarvshri Anand Kumar and Ajesh Kashyap who were 21 and 21 1/2 years of ages, respectively, sustained multiple injuries resulting in their instantaneous death. Shri Ravi Datt also sustained multiple injuries of a serious nature requiting in the fracture of his leg and he remained in the hospital for about three months and in order to save his life, the right leg which had been fractured and in which gangrenous limb had developed had to be amputated and therefore, he was physically rendered incapacitated for service as a result of which he was retired on pension. Shri Bishan Datt also sustained some injuries but not of very serious nature and he remained in the hospital for about three days and then he was discharged.

3. Smt. Kailash Wati, the mother and Shri Kishori Lal, the father of Anand Kumar, filed claim application No. 25-M/2 of 1969 before the Claims Tribunal for compensation of rupees five lacs. Smt. Sarla, the mother and Shri Gian Parkash Kashyap, the father of Ajesh Kashyap also filed claim application No. 26-M/2 of 1969 for a compensation of rupees one lac.

4. Shri Ravi Datt filed his claim petition No. 21-M/2 of 1969 for a compensation of rupees one lac and Shri Bishan Datt filed his claim application No. 27-M/2 of 1969 for a compensation of rupees twenty thousand.

5. The respondents, who were the State of Haryana and the General Manager, Haryana Roadways admitted the factum of accident and the deaths of Anand Kumar and Ajesh Kashyap and the injuries to Ravi Datt and Bishan Datt, but denied their liability.

6. The Claims Tribunal found on examination of evidence that the accident occurred due to sheer negligence of the respondents in fitting unsuitable and unreasonable damaged tyre to the right-fore wheel of the vehicle. The Claims Tribunal, therefore, awarded the following amounts by way of compensation in each of the claim petition to each of the claimants.

Application No.Claimants.Claim assessed.Deduction.Net pay-able.25-M/2 of 1969.1) Kailash Wati (Mother)Rs. 12,600.001,890.0010,710.002) Kishori Lal (Father)Rs. 10,800.001,305.009,180.0026-M/2 of 1969.1) Sarla Devi (Mother)Rs. 11,700.001,755.009,945.002) Gian Parkash KashyapRs. 8,700.001,305.097,395.0027-M/2 of 1969.Bishan DattRs. 2,000.00_2,000.0021-M/2 of 1969.Eavi DattRs. 51,850.00- .51,850.00

7. The claimants were not satisfied with the awards of the compensation and they, therefore, filed these appeals which shall be disposed of by a single judgment.

8. The appellants in M. F. A. No. 2 of 1972 and M. F. A. No. 3 of 1972 challenged the findings only on the question of quantum of compensation. According to the learned counsel for these two appellants, the Claims Tribunal had erred in not taking into consideration the important factors which are necessary for arriving at the pecuniary loss caused to the parents due to the death of their sons Secondly, the Claims Tribunal had wrongly made the deduction of 15 per cent. without further taking into consideration the future rise in income of the deceased. Thirdly, the Claims Tribunal had also erred in not allowing any interest on the sums awarded.

9. First I will take up the case M. F. A. No. 2 of 1972 on this point.

10. In so far as the findings on the life span and the ages of the parents are concerned, the same have not been challenged nor the respondent have come up in appeal, therefore, the life span as determined by the Claims Tribunal and also their ages, etc., must be held to be correct. The only question is whether the Claims Tribunal had correctly assessed the earning at Rs. 300 to Rs. 400 per month. The Claims Tribunal further found that he would have contributed at least Rs. 50 towards each of his parents and thereby Smt. Kailash Wati applicant suffered a pecuniary loss of Rs. 600 a year and which benefit she would have derived for a period of 21 years and in the case of Shri Kishori Lal he held that he was deprived of this pecuniary gain because of the premature death of his son by an accident for 18 years and he, therefore, assessed the compensation as already indicated above.

11. There is a solitary evidence of Shri Kishori Lal one of the claimants about the income that Anand Kumar would have earned if he had not met an accidental death. According to him he would have put him in business after he had passed law. But I do not feel fully convinced about the prospects of the income that Anand Kumar would have derived from business. If he had joined Law then there was hardly any likelihood of his reverting to a business. He would have taken to the profession of Law. Any way there is no cogent evidence and,therefore, I must uphold the findings of the learned Claims Tribunal on this point.

12. Now I take up the case No. F. A. O. 3 of 1972 (Smt. Sarla Devi and Gian Rarkash Kashyap v. State of Hary --ana).

13. In this case the earnings of Ajesh Kumar if he had not died, had been fixed at Rs. 300 to Rs. 400 by the time he had reached the age of 25 years. The age of Gian Parkash Kashyap admittedly was 52 years and it was held that he had to go for another 18 years to complete the normal span of 70 years and Smt. Sarla Devi was of 47 years of age and she has to live for another 23 years of her expected life and that the deceased would have reached the earning capacity 3 1/2 years after from the date of the accident and thus the father could expect a contribution for 14 1/2 years while the mother expected such contribution from her son for 19 1/2 years of her life. In their case also the Tribunal held that the dependents-claimants were deprived of the pecuniary benefit to the tune of Rs. 50 per month per head and he assessed the loss so sustained by each of the parents as indicated above.

14. On the point of income in this case also there is no other evidence excepting the bald testimony of Shri Gian Parkash Kashyap, the father of the deceased Ajesh Kumar. I find that here is nothing whereby it can be inferred that the income as assessed toy the learned Claims Tribunal is in any way on the lower side. Therefore, l must take the income as assessed by the learned Claims Tribunal to be correct. The pecuniary loss so sustained after deducting the personal expenses, etc., by the parents because of the premature death of their son had rightly been assessed at Rs. 50 per month per head and I do not find any reason to interfere with the same.

15. Now I take up the second point about the deduction made at the rate of 15 per cent. by the Claims Tribunal. The learned counsel for the appellant contends that this deduction should not have been made unless the Claims Tribunal had taken into consideration the increase in their future income. If the future increase in income had been al-lowed then there could be some justification for some deduction out of the amount. Therefore, there could not be any justification for deduction of this 15 per cent. of the claim so assessed as the future increase was not taken into account. In this behalf the learned counsel has relied on a few authorities. The first authority is Valcan Ins. Co. Ltd. v. Kon-gasari Lal Banerji (1972 ACJ 208) (Pat.) (High Court of Patna) where it has been held that 'deduction for lump sum payment is allowed in appropriate cases'. The second authority is Damayanti Devi v. Sita Devi (1972 ACJ 334) (Punj) (High Court of Punjab and Haryana). In this authority, it was held that 'no deduction on account of lump sum payment was allowed, firstly, because the prospects of the deceased improving his earnings were not taken into account while assessing the loss, secondly the claimants were not allowed any interest on the amount awarded'. The' third authority is Major Jagjit Singh v. Kartar Singh (1973 ACJ 147) (Punj.) (High Court of Punjab and Haryana) wherein it has been held that 'the cut on account of lump sum payment is not made because of the uncertain and imponderable factors which may come about in future resulting in the increase or decrease of her income. But if the increases in income are taken into account, then it is a case for applying a reasonable reduction on account of lump sum payment. No reduction on account of lump sum payment has to be made if the compensation is determined on the basis of the income at the time of accident without taking into calculation any future interest therein'. A similar view has been taken in Sood and Company. Kulu v. Surjit Kaur (1973 ACJ 414) (Punj.) (High Court of Punjab and Haryana).

16. The Claims Tribunal in thesetwo cases has held that the deceased would have begun to make their earnings after they would have attained the ages of 25 years each and the income that they would have earned at the age of 25 years was between Rs. 300 to Rs. 400 out of which the Claims Tribunal held that the deceased if they would have lived and continued to earn would have spared Rs. 50.00 per month per head towards their parents and, therefore, from this it is quite clear that he has not taken into consideration the prospects of the deceased improving their earnings. Consequently I am of the view that these deductions made by the learned Claims Tribunal are really quite unjustified.

17. The learned Advocate-General has tried to support the findings of the Claims Tribunal but he has not been able to show any authority to justify his stand in supporting the deductions madeby the Claims Tribunal. Therefore, I have no hesitation in accepting the contentions of the learned counsel for the appellant that this deduction on the claims assessed by the Claims Tribunal is unjustified as the Claims Tribunal has not taken into consideration the prospects of the future increase of the earnings.

18. The third Do in is about theinterest.

19. The learned Claims Tribunal did not allow any interest on the amount of compensation. Section 110-CC of the Motor Vehicles Act provides for award of interest where any claim is allowed. The section says that the Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. Therefore, the Tribunal has got the discretionary power to allow interest in suitable cases. In these cases no interest has been allowed. The Tribunal has fixed the loss caused to the parents due to the premature deaths of their sons ,at a very low rate of Rs. 50-00 per month for each dependant. In such circumstances, in my opinion, it was necessary to have awarded interest also. The accident took piece in the month of October, 1969 and the awards were made by the learned Claims Tribunal on 31st August, 1971. Therefore, in my opinion, in these circumstances it was incumbent upon the Tribunal to have allowed the interest.

20. According to Kamla Devi v, Kishan Chand, 1970 ACJ 310 = (AIR 1970 Madh Pra 168) (Madhya Pradesh High Court) interest at the rate of 4 per cent. from the date of award per annum is reasonable. Similarly it has been held in A. Harsha V. Pai v. Dr K. V Kama, 1973 ACJ 57 = (AIR 1973 Mys 162) (High Court of Mysore) also that the appellant was entitled to interest at the rate of 6 per cent. per annum from the date of application to the date of payment. In the instant case as already stated the amount granted is not very huge and the case has been pending since 1969 till 1971 and, therefore, the appellants are entitled to the interest, in my opinion, at the-rate of 4 per cent. per annum from the date of the application to the date of payment.

21. Therefore, the result is that the appellants in both the appeals succeed to the extent that the deductions made by the Claims Tribunal are held unjustified and the same are restored. Further the appellants are held entitled to interest at the rate of 4 per cent from the date of the application to the date of payment.

22. Now I take up the other two appeals of Bishan Datt and Ravi Datt.

23. Shri Bishan Datt has been awarded Rs. 2000.00. His only submission is that the Court has not taken into consideration the shock, pain suffering disfigurement, loss of earning capacity, expenditure on medicine, torture to relations and other disabilities which the appellant has suffered and the award is conjectural and meagre. The appellant remained in the hospital as per the statement of Dr. Kuldip Singh (P.W. 1) from the 28th October to 31st October, 1969 and the injuries have been stated of a simple nature excepting the one which was a lacerated wound about 8'x l/2' scalp deep on the frontal parietal region and he was allowed free treatment in the hospital. In these circumstances of the case I think the Claims Tribunal was perfectly justified in awarding not more than Rs. 2000.00 as compensation for the injury and the shock sustained by him. This award, therefore, in the case of Bishan Datt does not require any interference in this appeal and hence this appeal fails.

24. Ravi Datt has been awarded Rs. 51,850.00. nO deductions in his case has been made. However, he too has not been awarded any interest.

25. Learned counsel for the appellant has submitted that the Claims Tribunal has erred in not taking into consideration the revision of pay scale of the appellant. The salary of the appellant on the date of the accident has been found by the Claims Tribunal at Rs. 190.00 inclusive of all the allowances, but this finding has been challenged. According to the learned counsel for the appellant the monthly salary of the appellant, as revised with effect from 1st February, 1968, was Rs. 279. In order to verify this fact he has taken me through the evidence particularly the statement of P-W. 2 who was the Range Officer, Taradevi, where Ravi Datt was posted as Forest Guard before the accident. He produced the service record of Ravi Datt. According to the service record the last pay drawn by Ravi Datt wa's Rs. 118.00 plus Rs. 98.00 Ad hoc D. A, and 30 per cent. C. A. which comes to Rs. 280.80, say roughly Rs 281.00. It is also manifest from the statement of P.W. 2 that he was retired, vide order Ex. PW-2/A from service invalid pension with effect from 3rd February, 1970. He has also stated that the new scale of pay in which Shri Ravi Datt was placed with effect from 1st February, 1968 was Rs. 110-180 and it is in accordance with that that his pay at the time of the accident was worked out at Rs. 281-00 per month. Therefore, in the face of this evidence which is quite clinching the learned Tribunal fell in error in not considering this revised scaleof pay and he took into consideration only his old scale of pay i.e. Rs. 45-75. The evidence was there tout he overlooked the same and it is also manifest from the statement of P.W. 2 that if he had not retired he was eligible for promotion to the post of Forester in the department. In these circumstances he had better prospects of promotion in his service but due to the accident which disabled him he had to retire pre-maturely from service. Therefore, on this score alone the amount of compensation requires to be increased fixing his pay at Rs. 281-00 per month. It would appear that there is a difference of Rs. 91.00 (Rs. 281-190 = 91) per month and the total amount by which the compensation falls short is Rs. 1,090 (Rs. 91X12 months) to be multiplied by 19 years and 7 months which comes to Rs. 21,385.00. Therefore, on this account alone the award is short by this amount.

26. It has been urged by the learned Advocate-General that the appellant had been paid his pension and which also should have been deducted from this amount. But this argument has been raised simply to be rejected because the pension is the fruit of the service which had already been rendered and he had been I paid the pension for the past service and: no account has been taken of his future I service. If he had continued in service he would have earned a greater amount of pension, therefore, the pension cannot be deducted and in this behalf I may refer to Perry v. Cleaver (1969 ACJ 363 in the House of Lords, England) wherein it has been held:

'Pension was the fruit of services rendered by an employee in the past. It was in the nature of deferred wages payable under a contract of employment for past services. Therefore just as the amounts received by an injured under a contract of insurance were not deductible, the amount, disablement pension, received by an employee were also not deductible.'

A similar view has been expressed in Raja Mokhtar Bin Raja Yaacob v. Public Trustee, Malaysia (1971 ACJ 309 fHigh Court of Malaysia)) where a Government servant sustained injuries in a motor accident. He was rendered totally unfit for service and was awarded pension and the question arose whether the amount of pension should be taken into consideration while assessing compensation for injuries and it was held that the pension should not be taken into consideration because it was an ex gratia payment made fay the Government to its employees, in respect of their past conduct and service. Therefore, the contention that the pension has been granted to Ravi Datt and that the same should be deducted fromthe compensation is not correct because that is the payment for his past conduct and services rendered.

27. The Tribunal has also not granted anything for future increments in the case of the appellant. According to the statement of P.W. 2, his revised pay was in the scale of Rs. 110-180 and the total emoluments as revised stood at Rs. 281.00 per month and according to him he was eligible for promotion as Forester in the department and undoubtedly the scale of pay of the Forester must be higher and in no case the start must be less than Rs. 180 per month where the scale of pay of the Forest Guard ends. In that way also he would have necessarily made greater earnings. Undoubtedly there is no evidence as to what would have been his emoluments when he would have got the promotion. But the fact remains that he had chances of promotion because he had yet to put in 19 years and 7 months of service in the department and. therefore, roughly his loss on account of the future increments must be calculated at Rs. 10,000. This is a rough estimate because in such cases there cannot be any arithmetical accuracy but a certain amount of conjecture and surmises have got to be taken as the basis.

28. In respect of grant of future increments and prospects of promotion I may refer to State of Punjab v. Lieutenant J. P. S. Kapoor (1973 ACJ 216 (Punj) (High Court of Punjab and Haryana)) where the claimant 22 years of age was a Lieutenant in the Army. He remained bed ridden for more than two years and seventy-three days. He sustained fracture of the left leg and head injury resulted in permanent disability, physical deformity and paralytic conditions. He was declared unfit for future service. The Claims Tribunal awarded Rs. 2,80.000 for loss of service career, Rs. 90,000 for future pension, Rs. 20,000 for loss of enjoyment of married life, Rs. 4,000 for pains and sufferings and Rs. 2,000 for travelling expenses incurred by the parents of the claimant. The total award was made for Rs. 3,96,000 and in appeal the award was upheld. Similarly in this case also the appellant was a Forest Guard at the time of the accident and he had 19 years and 7 months left for further service and he had further prospects of being promoted to the rank of a Forester which was admittedly a higher post with higher emoluments. In this case also the appellant is entitled to an increase in his pay or in his pension and that way I have, therefore, allowed roughly Rs. 10,000 inclusive of his earnings plus pensionary benefit which would have accrued to him if he had not met this accident and. hadnot been rendered unfit for service and ultimately retired.

29. The appellant has also contended that he has been granted only Rs. 50 per month on account of the cost for keeping an attendant and this amount was quite a low amount. This also appears to be correct because of the amputation of the right leg he has been rendered helpless and ,he has to depend upon the service of others. He is, therefore, definitely entitled to the damages on that account as would be apparent from K. Gopalakrishnan v. Sankara Narayanan, (1969 ACJ 34 = (AIR 1968 Mad 436) (High Court of Madras)) where the claimant was incapacitated for marital life by reason of an accident. He was held entitled to the damages on that account. The learned Tribunal has observed that his wife would be looking after him. But that factor also cannot be taken into consideration in assessing the compensation. No doubt the wife renders the voluntary services yet she will not be able to attend to other domestic affairs as also the other agricultural work and for that also they shall have to engage some labour which in these days of high cost of living would be difficult to procure at such a low salary of Rs. 50 per month. Therefore, it also requires to be enhanced to Rs. 100 per month. In Don-nelly v. Joyce (1974 ACJ 305 (Court of Appeal, England)) it has been held that:--

'The question whether the plaintiff was under a moral or contractual obligation to pay the third party for the services provided was irrelevant, the plaintiff's loss was the need for those services, the value of which for the purpose of ascertaining the amount of his loss was the proper and reasonable cost of supplying the plaintiff's need.'

Therefore, in my opinion, as already stated above, the appellant is entitled to be paid at the rate of Rs. 100 per month for the services of his wife who is now solely wedded to the services of the appellant who had been disabled for no fault of his and had to take disability pension.

30. It has also been contended by the learned counsel for the appellant that the appellant was not paid the expenses of the treatment because according to the Tribunal there were no bills and vouchers, and that compensation should be awarded for the actual expenses and for this support is drawn from Swaraj Motors Private Ltd. v. T. R. Raman Pillai (1968 ACJ 127 = (AIR 1968 Ker 315) (High Court of Kerala)). But in this regard I may say that the doctor has stated that free treatment was given to the appellant. If any treatment on payment was made and the appellant had topay some money from his pocket then I am sure that he must have claimed the reimbursement from the department because the Government servant is entitled for the reimbursement for the medical charges and if he had not claimed the same the fault will not lie with the department. Therefore, on that account he cannot be granted anything.

31. In the light of the above, I am, therefore, of the view that the appellant is entitled to the enhancement of Rs. 31,385.00 on account of his salary plus Rs. 10,000.00 on account of the loss of his prospects of promotion and future increments and he is also further held entitled to an increase of another Rs. 50 per month for the services to be rendered by his wife for the rest of his life and which also comes to Rs. 7,200.00.

32. Last is the point about interest. The appellant is also entitled to an interest at the rate of 4 per cent. per annum from the date of the award to the date of payment because he was in service till October, 1970 and he had been getting his full salary and it was only thereafter that he sustained the loss and the award was made in 1971, therefore, I think that the interest should be allowed from the date of the award till the date of the payment.

33. Consequently the compensation awarded by the learned Claims Tribunal is enhanced by another amount of Rs. 38,550.

34. The result is that the appeals Nos. M. F. As. 2 and 3 of 1972 and F. A. O. 37/1971 succeed to the extent indicated above, whereas the appeal No. F.A.O. 7/1972 of Shri Bishan Datt is hereby dismissed. But I pass no order as to costs.


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