Bhagwanti Devi And Ors v. Ish Kumar And Ors

H. L. ANAND, J.

( 1 ) THIS Judgment would dispose of F. A. O. 81/71 and F. A. O. 103/71, both of

which assail the Award of Mr. Sniv Das Tyagi, Motor Accident Claims Tribunal, Delhi,

made on January 14, 1971 in suit No. 104 of 1965, being an application under

section 110-A of the Motor Vehicles Act, 1939, hereinafter called "the Act", filed by

Mrs. Bhagwanti Devi and the other heirs of Mr. P. C. Sharma, who died as a result of

an accident with the scooter which was being driven by Ish Kumar, respondent No.

1, owned by respondent No. 2 and insured with respondent No. 3. F. A. O. 81/71 is

an appeal under section 110-D of the Act by the driver, the owner and the insurer of

the vehicle for setting aside the Award, while F. A. O. , 103/71 is a similar appeal by

the widow and the other legal representatives of the deceased for the enhancement

of the compensation awarded by the Tribunal.

( 2 ) IN the application the legal representatives made a claim for Rs. 40,000. 00

from the respondents as compensation on account of the death of the deceased on

the allegations that the deceased, who was working as an Assistant in the

Directorate General of Health Services, Ministry of Health, Government of India and

was 36 years of age, was hit on March 3, 1965 at 9-35 A. M. by scooter No. DIM

7491 driven rashly and negligently by Ish Kumar, respondent No. 1 belonging to

respondent No. 2 and insured with respondent No. 3. It was further alleged that the

accident occurred when the deceased having got down from a DTU bus near Patiala

House Annexe, Tilak Marg, New Delhi was crossing the road to go over to the other

side where his office was situated. It is further alleged that the accident was the

result of rash and negligent driving of the said scooter by Ish Kumar. The deceased

received brain injury as a result of the accident and died on March 5, 1965, leaving

a widow and 4 unmarried daughters. Originally, Ish Kumar was shown to be the

owner of the scooter but eventually respondent No. 2 was impleaded as a

respondent on the discovery that the scooter, though being driven by Ish Kumar,

was owned by respondent No. 2.

( 3 ) THE claim of the petitioners was contested by the driver, the owner and the

insurer of the scooter, inter alia, on the ground that the scooter was not being

driven rashly or negligently and that the accident was caused because of the sudden

appearance of the deceased from between the buses which were parked on the left

of the road and when the deceased, unmindful of the coming traffic from his right,

tried to cross the road. It was further alleged that on account of the aforesaid act of

the deceased, the right hand of the deceased struck with the left hand of Ish Kumar

with the result that the deceased fell on the ground and sustained the injuries. It

was denied that the deceased received any impact with the scooter. A further plea

was raised that the application, as against respondent no. 2, was barred by time.

( 4 ) ON the pleadings of the parties, the Tribunal framed the following seven issues

1. Whether Mr. P. C. Sharma died because of the injuries received in accident with

scooter no. DIM 7491. 2. If issue no. 1 is proved whether the accident was due to

rash and negligent driving on the part of the driver of the vehicle 3. Whether the

application is within time against the respondent no. 2. If not whether there is

sufficient cause for condoning the delay 4. Whether Mr. Ish Kumar has valid

driving licence. Onus on respondent no. 1. 5. Whether the petitioners are legal

representatives of the deceased 6. To what amount if any are the petitioners

entitled 7. Relief.

( 5 ) BY the impugned award, the Tribunal found all the issues in favour of the legal

representatives of the deceased except issue No, 4, which was found in favour of

respondent No. 1, and held that Ish Kumar bad a valid licence, that the petitioners

were the legal representatives of the deceased, that computing on the basis of

contribution of Rs. 250. 00 per month for a period of 13 years on the basis of the

life expectancy of 50 years, the petitioners would be entitled to Rs. 39,000. 00 and

after deducting out of the same amount, a sum of Rs. 12,000. 00 on account of

benefits received by the family on account of gratuity, pension, provident fund and

insurance and a further sum of Rs. 6500 on account of prospect of lump sum

payment, the petitioners would be entitled to Rs. 20,500. 00 as compensation and

the amount was accordingly awarded to the legal representatives against the

respondents with costs.

( 6 ) BY appeal, FAO 81/71, the driver, owner and the insurer of the said vehicle

have assailed the award of the Tribunal on various grounds and have claimed that

the appeal be accepted and the award be set aside with costs throughout. In FAO

103/71, the legal representatives of the deceased have assailed the award on

various grounds and claimed that the amount awarded be enhanced to Rs. 40,000.

00 with costs.

( 7 ) MR. H. S. Dhir, appearing for the appellants in FAO 81/71 raised the following

contention : On a proper appreciation of the evidence and the circumstances of the

case, it could not be said that it had been established that the accident was a result

of rash and negligent driving on the part of Mr. Ish Kumar.

( 8 ) IN FAO 103/71, Mr. R. S. Bakshi, appearing for the appellants, raised the

following contentions: (a) The Tribunal had erred in basing its decision on the life

expectancy of the deceased at 50 years and ignored that in normal course the

deceased would have lived beyond 60 years of age. (b) The Tribunal erred in

making deductions on account of gratuity, provident fund and insurance, in that, the

said payments could not be considered death benefits but were benefits to which

the legal representatives were entitled even otherwise on the retirement of the

deceased and on the maturity of the insurance policy. (c) The deduction on account

of prospect of lump sum payment was unjustified as even though the award was

made as early as January, 1971, the petitioners had not been able to obtain the

awarded amount by virtue of the stay granted in the appeal.

( 9 ) LEARNED counsel for the parties confined their arguments to the aforesaid

questions and none of the issues other than those covered by the aforesaid

contentions was agitated.

( 10 ) THE first question that, therefore, requires consideration is as to whether the

material on record justified the conclusion of the Tribunal that the accident resulting

in the death of the deceased was caused by rash and negligent driving of the

scooter in question by Ish Kumar on the fateful day.

( 11 ) THE allegation of the legal representatives in the application that the accident

in question had been caused by the rash and negligent driving on the part of Ish

Kumar was sought to be supported by the oral testimony of Hardev Joshi Public

Witness2, Sher Singh Public Witness 3, a copy of the statement of Dr. Basu Ex.

Public Witness5/1 and site plan prepared on the spot, Ex. Public Witness5/2. The

respondents sought to disprove the allegation by the evidence of RW1 R. R. Pandey,

RW2 V. N. Sood and RW3 Ish Kumar, respondent no. 1.

( 12 ) HARIDE v Joshi Public Witness 2 claimed to be the eye witness to the accident

and stated that on March 3, 1965 at 9. 30 A. M. he got down from a bus at the

Patiala House Bus Stop and saw that the deceased while crossing the road from the

other direction was hit by scooter coming from India Gate at a fast speed when the

deceased was about 6 ft. away from the pavement on which the witness was

standing. He further stated that the scooter driver did not give any born and in fact

had tried to over-take the two buses standing parallel to each other. The scooter hit

the deceased on his right leg near the knee as a result of which, the deceased took

a turn and fell on the pavement in such a way that the right side of the head of the

deceased struck against the pavement. He also stated that the scooter driver also

fell on the road. He denied the suggestion that the deceased had suddenly come on

the road from between the buses and was hit when he has on the left side of the

road. He further stated that Dr. Basu came on the scene after the accident and the

deceased was taken to the hospital and Dr. Basu had lodged the First Information

Report. He also stated that he appeared as a witness in a criminal Court in the

prosecution that followed the accident. He admitted having known the deceased for

15/16 years and has been his collegue in the office.

( 13 ) SHER Singh Public Witness3 also claimed to be the eye witness and stated

that when he reached Patiala House bus stop, he got down from the bus and saw

the deceased crossing the road and when he had crossed 3/4th of the road and was

about 5 or 6 ft. away from the opposite pavement, a scooter coming at a fast speed

from India Gate side knocked down the deceased as a result of which the deceased

was struck on the right leg. He further stated that the scooter driver did not give

any horn and was going at a fast speed and was overtaking the stationary buses. He

further stated that the deceased took a turn because of the impact and when fell on

the road, his head striking against the footpath, as a result of which he was bleeding

from his nose and ear. He added that Dr. Basu, one Sharma and he himself

removed the deceased to the hospital in an unconscious state. In cross-examination,

he stated that a bus reached the bus stop followed by the other in a few minutes,

and that he and Public Witness 2 had reached the spot at the same time and

removed the deceased to the hospital. He denied the suggestion that three buses

were standing in a line and the deceased came from behind from one of these and

was on the left side of the road. The witness also admitted that he and the

deceased worked in the same section.

( 14 ) THE site plan Ex. Public Witness 5/2 was prepared by Sub Inspector Ramji Lal,

who was examined as Public Witness 5, when he reached the spot on receiving the

information of the accident. He also proved a copy of the statement of Dr. Basu

which was recorded at the police station and was marked as Ex. Public Witness 5/1-

He took into possession the scooter and recorded the statements of the witnesses.

In cross- examination, he stated that the accident took place opposite the bus stop

which was 400 yards away from the India Gate crossing near Patiala House and

scooter was lying close to the edge of the road. According to Ex. Public Witness 5/2.

the scooter was coming from India Gate side in the middle of the road when it

suddenly swerved to the right and the accident occurred at point a which was the

left side l/4th part of the road causing impact with the deceased who had got down

from a bus on the bus stop on the left of the scooter and was crossing the road to

the other side. The witnesses were supposed to have seen the accident from the

pavement on the right side of the road at a distance of 5/6 yards from the place of

the accident from the footpath on the right side of the road. The plan does not give

any indication of the distance from the point where the scooter started swerving to

the right until the point of impact.

( 15 ) ACCORDING to Public Witness 6/1, which is the First Information Report based

on the statement, of Dr. Basu when he got down from bus No. 19-B along with Mr.

K. Gangauli, near Patiala House Annexe and was crossing the road, he saw a man

being knocked down by a scooter he crossed the road and saw the man and found

him unconscious and bleeding from the ears and recognised him to be a colleague

working in his office by name P. C. Sharma. He had been knocked by the scooter

which was lying there and of which number was given to him. He immediately called

the station wagon of the Directorate and took the patient alongwith B. C. Sharma

and Sher Singh of the same office to the Willingdon Hospital and got him admitted

into the casuality department. The name of the scooter driver was given to him as

Ish Kumar. Dr. Basu was, however, not examined at the trial as he was reported to

have since been transferred from Delhi.

( 16 ) RW1 M. R. Pandey stated that when he reached Patiala House, the crossing

signal was red and he had to stop there and got into motion only when it became

yellow and respondent No. 1 Ish Kumar was ahead of him on his scooter, and that

after the witness had covered 100 yards, three buses were found parked on the left

side of the road. Respondent No. 1 gave a horn when all of a sudden a person

emerged from the side of a bus and suddenly struck against the scooter and fell

down. He further stated that respondent No. 1 was not at fault. In cross-examination,

he stated that the accident took place on the left side of the road.

( 17 ) RW 2 V. N. Sood stated that he was coming from Mehrauli side on his scooter,

he saw that three buses were standing on left side of the road, that all of a sudden

a man emerged from between those buses and dashed against the scooter of

respondent no. 1 who was going at a speed of hardly 15 K. M.

( 18 ) RW 3 is respondent no. 1 himself who stated that the scooter had hardly

covered about 60 yards after it was put in motion on the signal, he noticed that

three buses were standing on the left side of the road and that as he crossed one of

the buses a person suddenly emerged from in between the buses and dashed

against his scooter and that some people from his office arrived there and they

removed him from the place of accident. He further stated that he did not see the

man before he struck against his scooter. In cross- examination, he admitted that be

had been convicted by the Criminal Court in the trial for rash and negligent driving

in this case and denied the suggestion that the buses had covered 3 lanes of the

road and that he had tried to overtake them. He denied that the head of the

deceased struck against the footpath of the right side.

( 19 ) ON a consideration of the aforesaid evidence, the Tribunal came to the

conclusion that it was established that the deceased received head injury on account

of rash and negligent driving of the scooter by Ish Kumar respondent no 1 and that

on account of these injuries he died in the hospital, the following day. Various

contentions raised on behalf of the respondents that the evidence of the two eye

witnesses was discrepant and contradictory, that their evidence was contradictory

to the plan, that the failure of the petitioners to produce Dr. Basu constituted an

infirmity and that the eye witnesses were working in the same office as the

deceased and, therefore, should not have been believed were dispelled. The

Tribunal did not discuss the evidence of the R. Ws but generally dispelled the

version of the accident put forward on behalf of the respondents.

( 20 ) MR. H. S. Dhir, learned counsel for the respondents criticised the finding of

the Tribunal that respondent no. 1 was driving the scooter rashly and negligently on

a number of counts.

( 21 ) IN the first instance, it was contended that no reliance could be placed on the

oral testimony of Public Witness2 Hardev Joshi and Public Witness3 Sher Singh, the

only two eye witnesses to the accident, as both of them were admittedly working in

the same office as the deceased and were, therefore, interested in the welfare of his

dependents. This contention is devoid of any force for a variety of reason. In the

first instance, the evidence of a witness is to be accepted or rejected on the merits

of the evidence itself and not merely because a witness may be known to a party or

be otherwise interested in him. If the evidence of a witness inspires confidence, it

could not be rejected merely for that reason although the fact that a witness may be

related to or otherwise interested in the party may be raised as a ground for a closer

scrutiny of his evidence. In the second instance, the accident took place at a time

which was a normal time of office attendance and the accident having admittedly

taken place at a point which was just opposite the office, it was but natural that

those of the employees working in that office, who used to commute between their

houses and the office by bus would, by and large, be there by that time and it was,

therefore, normal and natural for these persons to be present. Even respondent no.

1 in his statement as RW3 accepted that after the accident, the deceased was taken

away to the hospital by some persons working in his office. In the third place, the

statements made by these person, by and large, inspire confidence and there is

nothing on the record which may deviate from the truth of their statements. There

is, therefore, no reason why their statements should be rejected merely because

they happened to be working in the same office as the deceased.

( 22 ) IT was next contended that neither the First Information Report Ex. Public

Witness6/2 nor the application for compensation gave any details of the accident or

of the rashness or negligence attributed to respondent no. 1 and that the

subsequent details woven by the witnesses into the story were an attempt to bolster

up a false case of rashness and negligence. This contention is equally unsustainable.

The First Information Report was based on the statement of Dr. Basu, who, on his

own showing as indeed of the respondents, was not an eye witness to the accident

and had played part only after the accident in helping the removal of the injured to

the hospital and therefore disclosed only such facts as were within his knowledge.

There was no occasion for details of the rashness or negligence being given in the

report at that stage. Those details could only be given by the eye witnesses, who

were examined immediately the next day. So far as the application for compensation

is concerned this was filed by the legal representatives who had no personal

knowledge of the accident. The application has also to be made in the prescribed

form, which, besides column 22, makes no provision about the details of the

accident. Column 22 is general in nature which seeks such additional information as

may be necessary and helpful in the disposal of the claim and does not call for any

specific information regarding the details of the accident. The petitioners had,

however, stated in the beginning of the application that the accident had occurred

because the scooter was being driven very rashly and negligently by Ish Kumar. It is

significant to mention in this connection that in the reply to the application, no

grievance was made on behalf of the respondents that particulars of rashness and

negligence had not been given. Oddly enough, the respondents even denied that

the scooter was involved in any accident whatsoever. Interestingly, enough

respondent no. 1 who was driving the scooter, denied that the deceased had died

due to any accident with the scooter.

( 23 ) LEARNED counsel next referred to the site plan Ex. Public witness 5/2

prepared by Public witness 5, a sub Inspector of the police after the occurrence and

contended that the plan had not been correctly prepared as it gave no indication of

the parking of the buses nor the marks left by the application of the brakes and

argued that no reliance could, therefore, have been placed on the plan. It is true

that the plan. Ex. Public witness 5/2 is rather sketchy and does not give all the

necessary details and the measurements. But this would not be a ground to reject

the plan because it furnishes substantial particulars and indicates with considerable

definiteness the directions from which the scooter and the deceased were coming,

the point of the impact, the swerving of the scooter to the right and the point from

where the witnesses had seen the accident. A perusal of the plan makes it quite

clear that the scooter was not in its extreme left but was coming in the centre of the

road until a point when it swerved to the right to almost 3/4th of the road

apparently because a little earlier than that some buses were parked on the left and

the impact took place at a point from where the witnesses could easily see the

accident, being only 5/6 yards away from the point on the pavement from the right

side of the road, the direction opposite to the one from which the deceased was

coming to cross the road.

( 24 ) IT was next contended that Dr. Basu, who was an important witness, should

have been produced and the reason for his non-production, namely, his transfer

from Delhi was not sufficient to absolve the petitioners of the responsibility to

produce him in Court and that unless he was produced, his statement, on which the

F.. R. was based could not have been taken into account. The contention must also

be rejected because Dr. Basu, according to his own statement, as indeed the

evidence of Public witness 2 and Public witness 3, was not an eye witness of the

accident but came at the spot soon after the accident and the only role attributed to

him by the witnesses, as also by his own statement, had reference to the condition

in which the deceased was lying and the arrangement made to remove the

deceased to the hospital. His non-production was, therefore, of no consequence and

could not constitute an infirmity in the case of the petitioners. Learned counsel for

the respondents was, however, right in his contention that the First Information

Report was not a substantive piece of evidence or a substitute for oral evidence but

this is of no importance because the petition is not based on the First Information

Report and it is not one of these cases where the First Information Report is of any

importance because the accident is admitted and the only question is whether the

accident could be attributed to rashness or negligence on the part of respondent No.

1 or not and the First Information Report, even if recorded by a witness who was

not an eye witness to the accident, could not have been of any assistance one way

or the other. It merely records the factum of an accident and the removal of the

deceased as also the particulars of the scooter with which the accident took place

and does not give further details which were provided by the witnesses on being

examined by the police soon after the accident.

( 25 ) LEARNED counsel for the respondents next criticised the Award of the

Tribunal in that it failed to discuss the respondents evidence even though it

generally rejected the version put across by the respondents. Thus criticism appears

to be partly justified because while the Tribunal referred to the evidence of R. W. I,

R. W. 2 and R. W. 3, he did not discuss the evidence further and gave no reason

why the evidence was not acceptable besides generally rejecting the version of the

respondents. This infirmity, however, is of no consequence because it is not possible

to accept the evidence of these witnesses. R. W. 3 is no other than respondent No.

1 himself while R. W. 1 and R W. 2 were driving their respective scooters and were

not expected at that peak traffic hour to keep an eye as to how another scooterist

was behaving on the road and should have in the normal event been concentrating

in driving their own vehicle. Besides they were chance witnesses and their testimony

could not be preferred to that of Public witness 2 and Public witness 3 who were

standing on the footpath and had watched the accident without any diversion. Their

statements are also of a very vague kind that respondent No. 1 was not at fault. The

only effect of their statements would be that respondent No. 1 could not have

attained a very high speed because respondent No. 1 as indeed these witnesses

according to their statement had to stop at the signal. On a consideration of the

other evidence and the circumstances of the case, the version sought to be put

forward by these witnesses also does not appear to be plausible and their version

was, therefore, rightly rejected by the Tribunal.

( 26 ) AFTER hearing the learned counsel for the parties, and after carefully going

through the evidence I do not find any ground to differ from the conclusion of the

Tribunal that the accident was caused on account of the rash and negligent driving

on the part of the respondent No. 1 and as a result of the impact, the deceased was

thrown on the extreme right side of the road near the footptah causing head injury

to him which proved fatal. The theory put forward on behalf of the respondents that

the respondent No. 1 was coming at a slow speed, had given the necessary warning

and that the accident occurred because the deceased suddenly emerged out of the

buses, dashed against the scooter and fell receiving injuries cannot be accepted

because if the accident had happened the way it has been described on behalf of

the respondents, the impact between the scooter and the deceased could not have

been of the intensity which would have caused the deceased to fall on the ground

which is away from the place of impact. If at the time of the impact the deceased

had been to the left of the vehicle, he could not have fallen on the extreme right of

the road or of the vehicle. In any event, even if deceased suddenly emerged from

amongst the buses and assuming that the scooterist was coming at a normal speed

the accident would still be attributed to rashness and negligence because rashness

and negligence is not confined to speed alone but has relation to the caution which

is required of any one wielding a vehicle on a busy road particularly at peak hours

when apart from buses, cars and other vehicles, there is considerable pedestrian

traffic particularly in the proximity of various Government establishments. In such a

situation, it was the duty of any one wielding a vehicle not only to drive it at a

normal speed but to do it with skill and caution as to avoid an impact with

pedestrians. Even if the deceased had suddenly emerged from between the vehicles,

the scooterist should have been able with due diligence and cau contion to

anticipate it. The accident was obviously the result of lack of caution and foresight

on the part of the scooterist and the conclusion of the Tribunal, therefore, appears

to me to be fully justified.

( 27 ) IT is well known that the traffic conditions on the Delhi roads are near chaotic

particularly during peak hours with recklessly driven trucks, taxies, buses, speeding

cars and swinging scooterists, with easy manoeuvrability exposing the pedestrians

as indeed the other road users and themselves to constant danger of fatal accidents.

In such a situation those wielding automobiles with the potential danger of accident

have a special responsibility and are expected to drive their machines not only at

normal permissible speed but with considerable care, skill and caution so as to

anticipate all reasonable eventualities, and prevent accidents. The fact that some

buses were parked on the left of the road on-loading passengers should have put

the passing vehicular traffic to guard against a possible impact with some one who

may come out of the blind alley to cross the road. That the deceased did suddenly

emerge, as contended on behalf of the respondents, could not, therefore, absolve

the respondents of responsibility for the accidents. and the consequent liability.

( 28 ) SINCE this is the only question raised on behalf of the appellants in this

appeal, F. A. O. 81/71 must fail.

( 29 ) IN the other appeal, the main question that require considerations is as to the

quantum of compensation and the propriety of deductions made on various counts

as indeed the question as to the average life expectancy of a person for the purpose

of computing the benefit.

( 30 ) ON the question of the life expectancy of the deceased, the learned counsel

for the appellants contended on the basis of Shiv Prasad Gupta v. S. N. Sabir Zaidi1;

Madhya Pradesh State Road Transport Corporation Bhopal and another v. Smt.

Munnabai and others; Amarjit Kaur and others v. Vanguard Insurance Co. Ltd. and

others; and Himachal Government Transport Simla and another v. Joginder Singh

and another, that the average span of life in India was put at a figure ranging from

60 to 75 years and sought enhancement of compensation on that basis, in that the

Tribunal based it at 50 years.

( 31 ) LEARNED counsel for the respondents, on the other hand, justified the life

span of 50 years on which the award was based and sought support from Municipal

Corporation of Delhi v. Kuldip Lal Bhandari and others; Perry v. Cleaver, sought to

distinguish the decisions relied upon on behalf of the appellants.

( 32 ) THE Tribunal capitalised the expected contribution of the deceased to the

family for 13 years on the basis of the life expectancy of about 50 years and sought

support for this conclusion from Union of India v. Varadambal and others; Municipal

Corporation of Delhi V. Subhagwanti and others; Vimal Rai and others v. Gurcharan

Singh and others and Satya Vati Devi v. Union of India.

( 33 ) AFTER hearing the learned counsel for the parties and giving the matter my

anxious consideration, I am of the view that the capitalisation of the benefit of the

family of the deceased on the basis of 50 years span of life appears to me to be on

the lower side and there was no justification to deprive the family of the benefit of

the aforesaid amount till atleast the age of super-annuation of the deceased.

( 34 ) ACCORDING to the evidence, the deceased was in perfectly good health. His

youngest child was aged 2 years. The deceased was working as an Assistant and

there was nothing to indicate that the duties discharged by the deceased were

expected to be of onerous nature. There was also no evidence to indicate that the

deceased was suffering from any infirmity or there was any other reason why the

deceased would not live until at least the age of superannuation. The normal age

span in India is shorter as compared to the rest of the world, primarily crosses the

infantile stage, there is no reason why, in the absence of any special circumstances,

he should not live his normal span which has been fixed in India at age ranging

between 55 , to 75 depending upon the various circumstances including the family

heritage, the surroundings in which a person lives, the nature of his work and the

extent of his income. Even the Government statistics get the present average life

span in India at 60/63. In Shiv Prasad Gupta v. S. N. Sabir Zaidi1 the life span in

India was put by a Division Bench of the Allahabad High Court at 70. In M P. S. R. T.

C. Bhopal and another v. Smt. Munnabai and others (Supra), it was put at 75 by a

division Bench of the Madhya Pradesh High Court and it was held that when a

person is hale and hearty, it can be inferred that his probable expectancy of life

might be to the extent that other members of his family might have been normally

living. In that case, the elder brother of the deceased had been living upto that age.

In Amarjit Kaur and others v. Vanguard Insurance Co. Ltd. and others, it was held

by a Single Judge of this Court that although the life expectancy in India was about

50 years but the average was low due to infant morality and that the deceased in

that case having survived the infancy period, might have lived at any rate upto the

age of 60 or 65 years. There was no history of longevity of the family in that case.

The deceased in that case who was of thin built was carrying on business of running

a motor workshop which according to the learned Judge demanded hard work. On a

consideration of the various decisions considered by his Lordship, it was, held that

where the deceased died of an accident at the age of 40, the remaining life

expectancy would have been 15 years. In Union of India v. Varadambal and others,

which has been relied upon by the Tribunal to arrive at a life span of 50 years, the

Madras High Court was concerned with a hand-cart puller and was earning Rs. 150.

00 per month while the deceased in the case reported as Khidni and others v. Dayal

Singh and others6, was earning Rs. 50. 00 per month only. In Municipal Corporation

of Delhi v Subhaswanti and others, which is a decision of the Supreme Court, the life

span was not in dispute and no question was raised with regard to it. In Vimal Rai

and others v. Gurcharan Singh and Others, the earlier decision of the Supreme

Court in Gobald Motor Service Ltd. and another v. R. M. K. Veluswami and others8,

was followed with regard to the principles as to quantification of compensation and

the award was not disturbed because the High Court found that the principles had

been taken into consideration by the Tribunal in arriving at the figure of

compensation. There is no discussion in that case as to the normal life span nor is

there any such discussion in the Supreme Court judgment on which it was relied.

The question of span of life was apparently not raised even in the Supreme Court.

Having regard to all the circumstances, of the case, I am of the view that the

Tribunal was in error in computing the benefit on the basis of life span of 50 years.

The proper basis of computation would have been to arrive at amount on the basis

that the deceased would have had a normal span of atleast 55 years and to have

reached the normal age of superannuation in Government service. This would entitle

the petitioners to an additional compensation for a period of 5 years at Rs. 250 per

month.

( 35 ) THE next question that requires consideration is as to the propriety of

deduction made by the Tribunal on account of various counts received by the

dependents on account of proceeds of life insurance, pension, provident fund and

gratuity following the death of the deceased. In computing the net compensation

payable to the petitioners, the Tribunal has made the following deductions : 1. Rs.

2400. . 00 on account of gratuity 2. Rs. 3600. 00 on account of pension 3. Rs. 3000.

00 on account of provident fund 4. Rs. 3000. 00 as insurance Total Rs. 12. 000. 00

( 36 ) THE answer to the question to an extent would depend on the principles

which should govern the computation of compensation on a claim under the Act.

The legal position with regard to such principles does not appear to be very clear. As

is well- known, prior to the Fatal Accident Act, 1855, no action or suit was

maintainable in any Court in India against any person who by any wrongful act,

neglect or default might have caused the death of another person. The aforesaid

Act, according to its preamble was enacted to provide compensation to families for

loss occasioned by the death of a person caused by actionable wrong. The aforesaid

Act, however, provided for compensation or damages : (1) for the loss caused by

the death of the person as a result of the accident to the representatives of the

deceased person, namely wife, husband, parent and child; and (2) for any pecuniary

loss to the estate of the deceased. Section 1-A of the Act provided that "the Court

may give such damages as it may think proportioned to the loss resulting from such

death to the parties respectively, for whom and for whose benefit such action shall

be brought. " Section 2 of the Act authorised the administrator or representative of

the deceased to make a claim and recover "any pecuniary loss to the estate of the

deceased occasioned by such wrongful act, neglect or default. . . . . . " This was

followed by the amendment in the Act by the Motor Vehicles (Amendment) Act 100

of 1956 which substituted the then Section 110 of the Act by the present sections

110 to 110-F of the Act which made a special provision providing for adjudication of

claims for compensation in respect of accidents involving the death or injury to

persons arising out of the use of Motor Vehicles. Section 110-A provides that an

application for compensation arising out of an accident of the nature specified in

section 110 (1) may be made by the persons who has sustained injury, or where

death has resulted from the accident by the legal representatives of the deceased,

or by an agent duly authorised by the person injured or the legal representatives of

the deceased, as the case may be and also prescribed the period within which such

an application may be made. Section 110-B provides that on receipt of an

application for compensation made under section 110-A the Tribunal shall after

giving the parties an opportunity of being heard, hold and enquiry into the claim and

may make award determining the amount of compensation "which appears to it to

be just. "

( 37 ) IN the case of Gobald Motor Service Ltd. and another v. R. M. K. Veluswami

and others1, which is the leading case on the subject, the Supreme Court while

dealing with a claim under Fatal Accident Act after referring to the mode of

determining the damages laid down by Viscount Simon in Nance v. British Columbia

Electric Railway Co. Ltd. , laid down that "shortly stated, the general principle is that

the pecuniary loss can be ascertained only by balancing on the one hand the loss to

the claimants of the future pecuniary benefit and on the other any pecuniary

advantage which from whatever source comes to them by reason of the death, that

is, the balance of loss and gain to a dependent by the death must be ascertained. "

( 38 ) THERE has been some controversy in India whether the aforesiad principles of

computation of compensation laid down by the Supreme Court in a case under the

Fatal Accident Act or for that matter, the principles laid down from time to time for

the purpose of computation of benefit under the Act should or should not govern

the award of compensation to the legal representatives on a claim under the Act and

the examination of the question by the various courts have produced a conflict of

judicial opinion.

( 39 ) IN Sheikhpura Transport Co. Ltd. v. Northern India Transporters Insurance

Co. Ltd. the Supreme Court held that under section 110-B of the Motor Vehicles Act,

the Tribunal is required to fix such compensation which appeared to it to be just and

that the power given to the Tribunal in the matter of fixing compensation under that

provision was wide. The question whether the compensation under that provision

had to be fixed on the same basis as is required to be done under the Fatal

Accidents Act, 1855 was, however, left open although the principles laid down by

the Supreme Court in the earlier decision of Gobald Motor Service (supra) were

reiterated and apparently followed in a case under the Act.

( 40 ) IN the case of Mohammed Habibullah and another v. K. Seethamma a Division

Bench of the Madras High Court held that section 110 to 110-F of the Motor Vehicles

Act were not only a self- contained code for the adjudication of claims for

compensation on behalf of the victim of a motor accident but also a complete

machinery for the adjudication of such claims, and that such a claim had nothing

whatever to do with proceedings under the Indian Fatal Accidents Act or with the

said Act as such. A similar view was expressed by O. K. Mahajan. in the case of

Veena Kumari Kohli v. Punjab Roadways and others,3 wherein it was held that it

was idle to suggest that the Tribunal had gone wrong in not determining the claim

on the principle enunciated by the Supreme Court in the case of Gobald Motor

Service (Supra ). Similar view was expressed by a Division Bench of this Court in

Ishwari Devi v. Union of India and it was held that while Fatal Accidents Act 1855

was a general law providing of compensation to the representatives of the deceased

or to his estate, the Motor Vehicles Act was a special law which provided for

adjudication upon claims for compensation in respect of accidents involving the

death of or injury to persons arising out of the Motor Vehicles Act and that the

proceedings under the Act, therefore, were not to be regulated by the provisions of

the Fatal Accidents Act. The learned Judges relied on the decision of the Madras

High Court and of the Punjab High Court referred to above. The above view, was,

however, not accepted by the Madhya Pradesh High Court and a Division Bench of

that Court in the case of Kamla Devi and others v. Kishan Chand and others,6 held

that the Claims Tribunal enquiring into a claim for compensation under the Act was

bound to apply the law as contained in Fatal Accidents Act because according to

their Lordships, sections 110 to 110-F merely laid down procedure and power of the

Tribunal and "the sections do not deal with law at all". It was further held that the

power under section 110-B to make an award and determine the amount of

compensation which appears to the Tribunal to be just does not create any new

basis or extent of liability. All these decisions were received by a later Division

Bench judgment of Punjab and Haryana High Court in Damyanti Devi and others v.

Sita Devi and others and it was held that the provisions of the Act were wider than

those of the Fatal Accidents Act and there was, therefore, no conflict between the

two, and that "the principles for determining compensation which had been evolved

under the provisions of the Fatal Accidents Act- could be applied to the application

under the Motor Vehicles Act while determining the amount of compensation

considered just. " It was, however, added that the restrictive provision of section 1-

A of the Fatal Accidents Act, however, was not applicable to a claim under the Act,

and that no separate amount had to be determined for the legal repre sentatives

and the estate under the Act unlike under the Fatal Accidents Act. It may, however,

be pointed out that in the decision of this Court in the case of Ishwari Devi (supra)

eventually it was however held that while dealing with a claim under the Act, the

Tribunal has only to consider what appears to it just compensation on the facts and

circumstances of each case and it need not strictly follow and apply the basis of the

assessment of compensation indicated in the various decision under "the Fatal

Accidents Act or under the English Law-" It was, however, observed that the said

decisions, Indian or English, can at the most if at all, be of general guidance and it

was added that the Claims Tribunal may, in deciding the just compensation in case,

bears in mind and apply any general principle or principles laid down in the aforesaid

Indian or English decisions as far as they may be applicable and in so far as they

may promote the interest of justice on the facts and circumstances of each case. In

other words, the said principles laid down in the decisions under the Fatal Accidents

Act may be used or applied if they, in the opinion of the Tribunal would serve as a

proper measure of what is just compensation in the facts and circumstances of the

case in hand. " In both the Punjab and Delhi cases, the guidelines laid down by the

Supreme Court in the case of Gobald Motor Service Ltd. and another (supra) and

some of the English cases referred to in the judgment were eventually followed in

arriving at their Lordships conclusion.

( 41 ) THE legal position with regard to the exclusion from consideration of any

amounts that may be received by the dependants on account of insurance,

provident fund, pension, gratuity etc. is also far from clear and the examination of

the question by the Courts both in England and in India have led to a conflict of

judicial opinion. Until recently, it was believed in England that at common law, the

general principle of deduction applied to life insurance and pension benefits and

reference may be made in this connection to the case of Grand Trunk Rail Co. of

Canada v. Jennings and of Curling v. Lebbon but the rule in England was reversed

by a series of legislative measures such as the Fatal Accidents Act, 1959 and Law

Reform (Personal Injuries) Act 1948 culminating in section 2 (1) of the Fatal

Accidents Act 1959 which provides that in assessing damages in respect of a

persons death in any action under the Fatal Accidents Act 1946. . . . . . . . . . . . . . .

. . . . . . " 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".

Some new light on the subject was, however, thrown by House of Lords in a recent

case of Parry v. Cleaver4 in which Lord Reid, speaking for the majority, reviewed a

number of earlier English decisions touching the question and held that in the

computation of damages for loss of earning capacity the ill-health award to which

the appellant was entitled, although it would have to be brought into account in

respect of his loss of retirement pension, was not deductible in assessing damages

for his loss of earnings. The famous case of Browning v. War Office1 was

disapproved and an earlier decision of the Court of Appeal, (1967) 2 All E R 1168

was reversed. The House of Lords was not concerned with the Fatal Accidents Act,

1959 but Lord Reid referred to section of that Act and observed as follows : "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 Campbells 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. " It was further held that pension was fruit of

services rendered by an employee in the past and was in the nature of deferred

wages payable under a contract of employment for past services and therefore just

as the amounts received by an injured under a contract of insurance were not

deductible, the amount of disablement pension received by an employee were also

not deductible.

( 42 ) THIS decision was followed in a recent case of the High Court of Kuala

Lumpur in the case of Raja Mohktar Bin Raja Yacoob v. Public Trustee, Malaysia,2

wherein it would held that on account of its persuasive value, the decision of the

House of Lords was entitled to the highest respect even though not binding on that

Court and it was held that pension was ex-gratia payment made by Government to

its employee in respect of their past conduct and services and should not, therefore,

be taken into account while assessing compensation for injuries sustained in an

accident.

( 43 ) THE legal position with regard to these deductions has not been uniform in

India. In 1967 A. C.. 82 (Supra), a Division Bench of the Punjab High Court justified

the deduction on account of the proceeds of an insurance policy although there is

no discussion as to the rationale for such a deduction and according to the report,

the claim to the contrary was not pressed. This decision has, however, not followed

in the later Division Bench judgment of the Court in the case of Bhagwanti Devi and

others v. Sita Devi and others, in which Tul. speaking for the Court referred to the

provisions of section 2 (1) of the English Act of 1959 the English cases of Bradburn

v. Great Eastern Railway Co. and Delby v. India and London Insc. Co and held that

the deduction on account of proceeds of insurance policy was unjustified because

any provision made by the deceased himself by taking out a policy of insurance

could not be said to be a benefit derived by the legal representatives on account of

his death. It was further held that the benefit accrued not because of the tortious

act of the wrong doer in causing the death of the policy holder but had its genesis in

a contract which the deceased had entered into with the insurer. His Lordship

disapproved the deduction since in determining the compensation, the Court had not

taken into consideration the savings which would have been made by the deceased

during his life time if he had lived his normal span. In Ishwari Devi and others v.

Union of India and others6, a Division Bench of this Court assumed that the

proceeds of life insurance policy could not be deducted but did not decide the

question as the statement with regard to the receipt of insurance was vague. The

legal question as to the propriety of such a deduction was apparently neither raised

nor considered. In Unique Motor and General Insurance Co. Ltd. v. Mrs. Krishna

Kishori and others,1 a single Judge of the Punjab and Haryana High Court, however,

upheld the award where the amount of insurance proceeds had been deducted.

There was, however, no discussion on the question and the matter was apparently

not put in issue. In Joginder Nath and another v. Shanti Devi and others2, a single

Judge of the Punjab High Court approved the deduction in respect of provident fund

relying on an earlier decision of the Punjab High Court in the case of Dr. Ram Saran

and another v. Shrimati Shakuntia Rai3. There is, however, no further discussion in

this decision. In Life Insurance Corporation of India and another v. Legal

representatives of deceased Naranbhai Munjabhai Vadhia*, a Division Bench of the

Gujarat High Court relying on the authority of Parry v. Cleaver (supra) held that the

insurance and retire- ment-cum-gratuity benefits could not be deducted and it was

held that the insurance policy amounts were collateral benefits which the deceased

had brought with his own money and it was a benefit derived by way of prudent

savings effected for his own benefit under a contract of which the benefit would not

go to the tortfeaser. It was further held that it was only 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. In Mohinder Kaur and others v. Manphool Singh and others6,

however, a Single Judge of this Court allowed the deduction on account of pension

but there is no further discussion of the question and the propriety of such a

deduction was apparently neither raised nor considered.

( 44 ) IT, thus, appears that there is considerable judicial authority both in England

and in this country in favour of exclusion of benefits received by the legal

representatives on account of life insurance policy, pension, gratuity, provident fund

and other such benefits from consideration in determining the amount of

compensation which appeared to the Tribunal to be just on account of loss of

pecuniary benefit arising out of death and this exclusion would appear to me to be

just and reasonable because these are benefits for which the deceased had paid.

These benefits are in the nature of quid pro quo and have relation to the savings

effected by the deceased besides having their genisis either in the contract or in the

past service and good" conduct and these benefits could not be said to be benefits

arising out of the death of a person in the sense in which the action for damages or

inheritance could be related to such an event. There would be no justification,

therefore, to give the benefit of these payments to the wrong doer who, by his

negligent act, has caused the death of a person. Such a conclusion would be

justified even if the principles enunciated by the Supreme Court in the case of

Gobald Motor Service (supra) were to regulate the determination of compensation

under the Act because even on the application of the aforesaid principles, it appears

to me that there is a clear distinction between benefits received on account of death

and those that are merely payable on the death of a person. The former arise out of

death and would not have been available without it, while the latter are benefits

which are available independently of death but are payable on death. The deduction

made by the Tribunal on these counts must, therefore, be ignored in computing the

compensation to which the dependent would be entitled.

( 45 ) THE only other question that remains to be considered is the deduction of Rs.

6,500. 00 made on account of the fact that instead of periodic benefits, the

dependants would be getting the amount of compensation in lumpsum thereby

obviating various uncertainties and is a deduction which is supported by

considerable authority, but, though based on sound principle, is not a rule universal

applicable and has to be applied in the context of such counter balancing factor as

may be present in a particular case, such as increasing cost of living and

proportional devaluation of the rupees, the time lag between the death and the

Award as well as between the Award and the actual payment. Such deduction,

however, would not be justified on the facts of the present ease for two reasons. In

the first instance, the benefit of receiving lumpsum payment is wholly illusory. The

award was made on January 14, 1971 and the dependents have not as yet received

a single penny out of the compensation awarded to them and the matter is at the

first appellate stage. The litigation is likely to continue further and I would not be

surprised if another few years have elapsed before the dependants could receive the

compensation to which they are entitled. Secondly, the runaway inflation and the

consequent devaluation of the rupee has considerably reduced the quantum of

compensation in its real worth and being so. it would be unreasonable in the present

case to make any deduction on account of the prospect of getting the benefit in one

lumpsum. The view that I have taken of the matter finds support from Prem Singh

and others v. Tika Ram and others Narain Devi v. Dev Raj and others; Khidni and

others v. Dayal Singh and others; Himachal Govt. Transport Simla and another v.

Joginder Singh and another; and Damyanti Devi and others v. Sita Devi and others.

The Tribunal has allowed Rs. 20,500 by way of compensation. By adding to it a sum

of Rs. 18,500 on account of deduction, which have been disallowed and a sum of

Rs. 15,000. 00 on account of contribution for an additional period of 5 years the

appellants would be entitled to the enhancement of the compensation payable to

Rs. 54,000. 00. The appellants have, however, confined the claim in the application

and the appeal to Rs. 40,000. 00. The compensation would therefore, be enhanced

to that figure. The appellants would also have their costs in this appeal.