Jaimal Singh v. Jawla Devi

Avadh Behari, J.:— These are two conjoint appeals. They arise out of a fatal accident case.

2. One Thakur Dass, a resident of Seelampur — a trans-Yamuna area — was going on a cycle on January 27, 1965. It was about 9.30 a.m He left his home for the place of work. He came out of the street in order to reach the main G.T Road. He traversed the main road and went to his left. He was coming towards Delhi. A truck bearing registration No. PNR 2579 was coming from Delhi at a great speed. The truck suddenly turned towards its right hand side when it ought to have kept to its left and knocked down the cyclist after going on the wrong side of the road. As a result of this accident Thakur Dass received fatal injuries and died soon after on way to hospital.

3. Thakur Dass, victim of the fatal accident was a youngman of 23 years of age. He was a man of modest means. He followed an humble occupation in life. He was a tailor and cutter by profession. He was working under his employer at Jangpura and was being paid about Rs. 150/- per month. He was also doing tailoring work at home and was thus supplementing his income by Rs. 50/- or so.

4. Thakur Dass was a married man. He has left behind Jawla Devi his widow, a minor son Prem Singh and his aged mother Phulan Devi. Jawla Devi was then 21 years of age and is now 30 years. Prem Singh was a child of about 8 months at that time. Now he should be about 10 years of age. Phulan Devi, the mother is an old woman. She was then 70 years of age. She is still alive. She is now 80 years.

5. All three of them filed a claim of compensation for Rs. 40,000/-under Section 110 (A) of the Motor Vehicles Act. This claim was made on March 9, 1965.

6. On April 18, 1967, the tribunal made an award for Rs. 12,952/- in their favour. Against the award two appeals have been filed. In FAO 130 of 1967 the owner of the truck and the insurer Northern India General Insurance Company Ltd. have prayed for setting aside of the award. They deny their liability. In the other appeal (FAO No. 171 of 1967) the claimants prayed for the enhancement of the award. Their main grievance is that the sum awarded is too low. This judgment will govern both the appeals.

7. On these appeals two questions arise. One is about the liability of the owner on the ground of negligence. The other question is about the quantum of damages. I will first taken up the question of liability.

8. The case of the claimants before the tribunal was that the accident was caused by the rash and negligent driving on the part of Hira Singh who was driving the vehicle in the course of his employment under Jaimal Singh, the owner of the truck.

9. A notice of the claim was issued to the Northern India General Insurance Company Limited under section 96 (2) of the Motor Vehicles Act as the vehicle was insured with them.

10. All the respondents contested the claim. Their defence was one of denial. It was said that when the truck was passing by the side of the deceased he became nervous and fell down on the road and received injuries due to the fall on the ground. No portion of the truck hit the deceased, it was claimed. It was, however, not denied that the truck was driven by Hira Singh and that Jaimal Singh was the owner.

11. The insurance company raised a number of defences. They pleaded that they were not liable to indemnify the claim in as much as the driver had no valid driving licence, that the policy was void, that the vehicle had been transferred before the accident by the insured and that the vehicle was being driven in contravention of the conditions of the policy.

12. The tribunal raised a number of issues. It is not necessary to refer to them. The insurance company did not lead any evidence. Their pleas were negatived.

13. On behalf of the driver and the owner only one witness was produced. On behalf of the claimants a number of witnesses were examined. The tribunal found that the driver was negligent. He did not observe the rules of the road. The accident resulting into the death of Thakur Dass was caused by an impact of the truck with the cycle.

14. Mr. M.L Bhargava, counsel for the insurance company, has assailed these findings before me. He has taken me through the evidence adduced in the case. On a perusal of the witnesses' statements I have come to the conclusion that the tribunal was right in holding that the accident was caused by the dangerous driving of the driver Hira Singh. The Tribunal I think has rightly believed the evidence produced on behalf of the claimants. Eye witnesses appeared before the tribunal. They deposed that the truck went to the wrong side of the road and hit the cyclist and threw him away. They also testified that the truck was coming at a fast speed and knocked down the cyclist after going to the wrong side. The cyclist fell at a distance of 5 — 6 feet towards Shahdra and truck stopped after covering 20 — 25 feet. This was in the main the evidence of Babu Lal (P.W 4). His evidence was accepted by the tribunal. Though other witnesses were also produced who said to the same effect they were not believed by the tribunal. This however does not make any difference as there is positive circumstantial evidence to indicate that the accident happened as a result of the negligence of the driver.

15. On behalf of the claimants Dr. Vishnu Kumar head of the department of forensic medicine in Mulana Azad Medical College New Delhi appeared as a witness. He conducted the post mortem on the dead body of Thakur Dass. In his opinion death in this case was due to hemorrhage and shock resulting from laceration in lungs and kidneys. In his view injuries were possible in a road side vehicular accident. He also stated that there were no tyre marks and nothing appears to have passed over the body of the deceased.

16. The post mortem report shows that the deceased received 14 abrasions on various parts of his body. Ribs of both sides were fractured in the back part at several places. Most of them were going inside the chest cavity. Both the lungs were lacerated at several places due to piercing of ribs.

17. Soon after the accident the police arrived on the scene. A site plan was prepared. Photographs were taken. Both these show that the truck was standing on the wrong side. The cyclist was going on his right side. The truck came to the wrong side and struck the cyclist.

18. On the evidence produced in the case two theories were propounded before the tribunal regarding the cause of the accident. One theory was that the deceased had taken a turn on the main G.T Road after coming out of the lane and he was on his right side when he was struck by the truck. The other theory was that the deceased was somewhere in the middle of the road and before he could take a turn he was dashed by the truck. The tribunal accepted the second theory. According to the photograph the cycle was lying in the middle of the road which shows that the cyclist had not taken the turn towards Delhi and could not reach his left side of the road before the impact. The cyclist fell somewhere in the centre of the road. On this basis it was concluded by the tribunal that the cyclist had not taken a full turn before the impact took place. It was certainly of the view that impact did take place whether in the centre of the road or slightly away from the centre.

19. There is, I think, overwhelming evidence to show that the impact did take place. It is true that Thakur Dass was not run over by the truck but the impact was so great that he died soon after. This could not have happened from a mere fall on the ground as was pleaded by the respondents and was attempted to be proved by their solitary witness Kuldip Singh. The evidence of Kuldip Singh was discarded by the tribunal. He was branded as a false witness.

20. There are two circumstances of outstanding importance in this case. One is the admission made by the driver in the criminal court where he was prosecuted under section 304A, Indian Penal Code. From a perusal of the judgment of the criminal court (Ex. P/B) it appears that the driver admitted that the impact did take place. He made a statement in that court that in trying to save the cyclist the rear part of the vehicle touched him as a result of which he fell down and died. This shows that the impact did take place. The criminal court, however, let off the driver with a fine of Rs. 500/- only. It appears to me that it was a merciful verdict based as it is on confession.

21. The second circumstance is that neither the driver Hira Singh nor Jaimal Singh appeared in the witness box in support of their defence. They produced only one witness — Kuldip Singh. He was held to be a liar. This appears to me the fatal flaw in the respondents' case. If a witness does not appear in the witness box in support of his stand the court will be entitled to draw an adverse inference.

22. It was said that the driver could not be produced as his whereabouts were not known to the owner. What about the owner himself ? He also did not choose to enter the witness box to deny the claim. That he was sitting next to the driver at the time of the accident appears to have been admitted. It appears from the written statement that after the accident Jaimal Singh took Thakur Dass to hospital for medical aid. On way to hospital Thakur Dass died. Jaimal Singh was the best witness to tell us how the accident happened. But, strangely enough, he did not enter the witness box.

23. In all the circumstances of the case, it appears to me that it was the driver who was at fault. It was his duty when approaching the road junction not to enter it until he had become aware that he can do so without endangering the safety of the persons there. It was an intersection. He should have slowed down. (See Rule 6 of the Xth schedule of the Motor Vehicles Act). As an ordinary prudent driver he should have seen the cyclist coming from Seelampur side and should not have entered the road junction. He ought to have avoided the accident. The mere fact that the driver could not avoid the accident clearly shows that he was not keeping a proper look out and was in undue haste. As between the truck driver and the cyclist a greater degree of care lay on the truck driver because he was an incharge of a heavy vehicle. Care was required of him to see that anybody entering the road junction is not hurt. I have, therefore, no hesitation in affirming the finding of the tribunal that the driver was guilty of rash and negligent driving and that it was as a result of the impact that the cyclist received fatal injuries.

24. That the truck was standing on the wrong side is in itself proof positive of the fact that the driver did not observe the elementary rules of the road. The driver, it seems, ran into the cyclist and inflicted fatal injuries on him. It is a case where the doctrine of Res Ipsa Loquitur applies. The thing speaks for itself.

25. This brings me to the second question, namely the quantum of damages. The tribunal held that the monthly income of the deceased was Rs. 175/- per month — Rs. 150/- as salary and Rs. 25/- from work done at home. The tribunal thought that he must be spending Rs. 60/- on himself, Rs. 45/- on his wife, Rs. 35/- on the child and Rs. 35/- on his mother.

26. As regards the widow, the tribunal said this:

“Shrimati Jawla Devi is 21 years of age. She is a young widow. She belongs to Kahar Community and there is nothing on the record to show that the widow remarriage was not prevalent in their family. There are fair chances of remarriage and keeping in view this fact, I think it would be reasonable if I give her compensation only for five years at the rate of Rs. 45/-. In this way the “amount would come to Rs. 2700/-. As the amount is being paid in lump sum I would reduce it by 10 per cent and the net amount payable would be Rs. 2630/-.”

27. As regards the minor son the tribunal computed the dependency for 18 years i.e, till the attainment of majority by Prem Singh. At the rate of Rs. 35/- per month the amount was arrived at Rs. 7560/-. As it was being paid in lump sum the tribunal reduced it by 10 per cent. The net amount awarded was Rs. 6804/-.

28. The mother Phulan Devi was awarded compensation for four years at the rate of Rs. 35/-. The amount of Rs. 1680/- was reduced by 10 per cent. The net amount awarded to her is Rs. 1518/-.

29. The tribunal also awarded compensation for the loss of estate i.e for the loss of expectation of life presumably under the Fatal Accidents Act. A sum of Rs. 2000/- was awarded under this head. This amount was divided as follows:

(a) Rs. 800/- to the widow;

(b) Rs. 800/- to the son; and

(c) Rs. 400/- to the mother.

30. The final computation made by the tribunal is as follows:

(a) To widow Jawla Devi it awarded Rs. 3430/-.

(b) To Prem Singh minor son it awarded Rs. 7604/-.

(c) To Phulan Devi it awarded Rs. 1918/-.

31. Mr. Arun Kumar on behalf of the claimants has argued that the award made by the tribunal is inordinately low. He has submitted that the tribunal was in error in granting compensation to the widow only for a period of five years. The finding that there are fair chances of remarriage, he hays, is without any basis.

32. The accident happened in 1965. The tribunal made the award in 1967. After the award of the tribunal another 8 years have passed. I enquired from the counsel if the widow had remarried. He said that she has not remarried till today. She has now filed an affidavit saying that she has not remarried and that she is maintaining her only child. Furthermore it is stated in the affidavit that the mother Phulan Devi is still alive and is getting on in years. On the basis of this affidavit it is contended by the counsel that the amounts awarded to the three representatives are a pittance. It was also said that this court will now be entitled to take into account the inflationary trend of prices and the steadily declining value of the rupee.

33. First of all I take up the question of widow's remarriage. On the ground that there were prospects of remarriage the tribunal calculated her dependency for five years. It awarded her in all a sum of Rs. 3430. I am in agreement with the counsel that this is a scanty sum and does not fully compensate her of the loss of the husband. The question is: was the tribunal right in taking into account the chances of widow's remarriage in the circumstances of this case?

34. One problem which has been much discussed in recent years in England has been the requirement of assessing the likelihood of remarriage of a widow who is claiming damages for the death of her husband. Since these damages are primarily awarded for the loss of financial support the amount to be awarded may be very much less if the widow is likely to remarry in the near future — for she will then have made good her lost support. Consequently a judge is expected, and indeed required, to assess the likelihood that a widow will remarry, this he can only do by listening to what she has to say and by making some assessment of how attractive she appears to be (See Goodburn v. Thomas Cotton Ltd. (1968) 1 Q.B 845 (1) Judges have not concealed their distaste at being required to perform this exercise. Delicate problems were posed for the judge who had to determine the issue of widow's remarriage potential. He had to decide whether the widow was attractive or unattractive. In Buckley v. John Allen and Ford (Oxford) (1967) 2 Q.B 637 at pp. 644-645 (2) Phillimore J. said:

“Am I to ask her to put on a bathing-dress because the witness-box is calculated to disguise the figure ? . . . Am I to label the lady to her face as attractive or unattractive ? If I have the temerity to apply the label, am I likely to be right ? Supposing I say she is unattractive; it may well be that she has a friend who disagrees and has looked below the surface and found a charming character.”

35. The Winn Committee on Personal Injury Litigation recommended that judges should be relied from the task. But they could not agree on what to put in place of this requirement: if the possibility of remarriage is simply ignored the widow may be compensated for a ‘loss’ which she does not suffer; as a result she may be enabled to live at a much higher standard of living than she is used to do.

36. Now section 4 (1) of the Law Reform (Miscellaneous Provisions) Act 1971 provides that

“In assessing damages payable to widow . . . there shall not be taken into account the remarriage of the widow or prospects of her remarriage.”

37. The passionate controversy on this subject which was raging in England till recently has now been brought to a close by one stroke of the legislature, at least on this point. In many American States the remarriage of the widow is wholly ignored.

38. Broadly speaking there are two views on the subject. One is that the prospect of remarriage must be taken into account. This means that the judge has to make a prediction at the date of trial in order to calculate the appropriate sum. Damages in a tort action are awarded in a lump sum. The award is made once for all, and there is no possibility of increasing it or decreasing it later because of changes in the situation. The judge has to peep into the future. He has to put the question to himself — Will the widow remarry?

39. Obviously this is a difficult question to answer and nobody can blame the judges if they often go wrong in their predictions — though nobody knows how accurate their predictions are because no research has ever been done into this problem. But what is somewhat unsatisfactory is that, given the extreme difficulty of the question, their is hardly ever any opportunity for making a correction subsequently, supposing the widow does not remarry. This is precisely what has happened in this case.

40. On the other hand it is said that if a widow's payments will cease on remarriage, she will be encouraged to “live in sin”. One suggestion to get out of the difficulty which has been made is that the court should make periodical payment. If she does not remarry she can get compensation from time to time. If she remarries compensation ought to cease. The defendant can be compelled to pay a lump sum into the court which would then administer the periodical payments. On balance there seems to be a strong case for periodical payment system if suitable machinery for assessment and payment is devised. (See Ogus — The Law of Damages 1973 Edition page 13).

41. So long as there is no legislative reform the possibility of the remarriage of the widow claimant must continue to hold the centre of the stage in India. The judges will continue to be engaged in the guessing game of sizing up the claimant's chances of finding a new husband and bringing the dependency to an end.

42. Happily in the present case my task is much easier. Now ten years have passed since the death of the husband. Such chances of remarriage as there were have now receded far into the background. They are very very remote now. Her son has grown up. He is now ten years of age. She is devoted to him. A step father will have no legal obligation to look after him if she remarries.

43. It seems that there is longevity in the family of the deceased. Her mother is now 80 years of age. If this is any indication it can be surmised that the deceased would have lived at least three scores and ten. But this is a mere probability. There is no certainty. One's life remains as uncertain as ever. Our times are in His hands, as Robert Browning said.

44. Inflation and increased wages are irreversible phenomenon in the modern world. In assessing damages in fatal accident cases compensation should be calculated so as to allow for the increasing cost in a depreciating currency of equivalent material benefits which the deceased would have provided for his dependants out of his rising wages. A judge cannot shut his eyes to the inflationary trend and the fact that the rupee has gone down considerably in value. An award of Rs. 12,000 or so for the loss of the bread winner of the family in these days does not mean much. Is that the value of human life ? As I was hearing these appeals I was wondering whether in some cases it was not more profitable for a tort feasor or a wrongdoer to kill the victim of the accident rather than to maim him for life.

45. In Taylor v. O' Connor (1971) A.C 115 (3) the House of Lords dealt with the question of inflation as an element affecting the amount of damages in a fatal accident claim. It has rightly been regarded as a decision of great importance on this topic.

Lord Reid said, at p. 129: —

“It will be observed that I have more than once taken note of present day conditions — in particular rising prices, rising remuneration and high rates of interest. I am well aware that there is a school of thought which hold that the law should refuse to have any regard to inflation but that calculations should be based on stable prices, steady or slowly increasing rates of remuneration and low rates of interest. That must, I think, be based either on an expectation of an early return to a period of stability or on a nostalgic reluctance to recognise change. It appears to me that some people fear that inflation will get worse, some think that it will go on much as at present, some hope that it will be slowed down, but comparatively few believe that a return to the old financial stability is likely in the foreseeable future. To take any account of future inflation will no doubt cause complications and make estimates even more uncertain. No doubt we should not assume the worst but it would, I think, be quite unrealistic to refuse to take it into account at all.”

46. The tribunal I think, was right in assessing the monthly income of the deceased at Rs. 175 per month. After excluding Rs. 60 which the deceased spent on himself we are left with a sum of Rs. 115 which he was spending on the three dependants.

47. The question then arises as to the multiplier to be used in respect of that figure. It is to be remembered that the sum which is awarded will be a once-for-all or final amount which the widow must deploy so that to the extent reasonably possible she gets the equivalent of what she has lost. “Taking a reasonable and realistic and common sense view of all aspects of the matter the judge must try to fix a figure which is neither unfair to the recipient nor to the one who has to pay”. I think the right multiplier will be 16. At this figure the amount comes to Rs. 22086. Add to this the sum of Rs. 2000 awarded by the tribunal on account of loss of estate. The total comes to Rs. 24086, say Rs. 24100. This amount I would apportion as follows:

1. Rs. 10,100 to the widow Jawla Devi.

2. Rs. 10,000 to the son Prem Singh.

3. Rs. 4000 to the mother Phullan Devi.

48. This figure seems to be about right in all the circumstances. There are many imponderable factors and uncertainties. It is to be kept in mind that the deceased did not have a permanent employment. He did not enjoy any security of tenure. He might have remained unemployed for some time in life, one does not know. He might not have proved a successful tailor. All these are conjectural factors. But in an assessment of damages one cannot loss sight of them. The judge's anxiety in these cases has always been to see that the dependants are not under compensated nor over compensated. The sum awarded by me is neither over generous nor means. It is a modest sum.

49. The principal argument of the counsel for the insurance company and truck owner is that since lump sum is being awarded it should be reduced at least by 30 per cent if not more. In support of his submission he has referred me to Major Jagjit Singh v. Kartar Singh 1973 A.C.J 147 (4) and Mohinder Kaur v. Manphool Singh, 1973 A.C.J 515 (5).

50. I am afraid I cannot accede to this request. I will certainly not reduce the amount. I will leave it at Rs. 24,100. My reasons are these. Firstly, compensation has been computed at the rate of Rs. 115 per month as found by the tribunal. Secondly in this calculation the increase of income in future years has not been taken into account. Nor has the amount been enhanced on account of rising prices. Calculation has been made on the basis of the amount that was being contributed by the deceased towards the maintenance of the dependants at the date of his death.

51. Another reason for not making any reduction is that the claimants have been deprived of the enhanced compensation now for nearly ten years. No interest for this period has been allowed.

52. The needs of the son will also increase as he enters the portals of life. Provision for his marriage, training for business etc., will also have to be made. No special allowance has been made on this account in the award. It will be unfair to limit the award to 18 years on the ground that the liability ceases on child becoming sui juris. “The right consideration ought to be — what is the financial benefit of which the family can be reasonably said to have been deprived by the span of life of the deceased having been cut short on account of the fatal accident” (See Kuldip Lal Bhandari v. Umed Singh, 1966 A.C.J 110 (6) and Sood & Company v. Surjit Kain, 1973 A.C.J 414 (7). The deceased was the hub around which the whole family revolved. He was their mainstay.

53. On similar considerations judges in case after case have refused to reduce the amount. (See Damyanti Devi v. Sita Devi, 1972 A.C.J 334 (8) Sood and Company v. Surjit Kaur 1973 A.C.J 414; Jaswant Kaur v. Ratti Ram 1971 A.C.J 31 (9) and Kailashwati v. Haryana State, 1974 A.C.J 514 (10).

54. It was argued that the award of Rs. 24,100 will be too high. Reliance was placed on Sharda Devi v. Mahalaxmi Stone Mills, 1973 A.C.J 371 (11) and Harathi Adirajaiah v. Savandamma, 1973 A.C.J 203 (12). I should perhaps say this. In each case the proper computation is a question of fact. “No one knows what is the right sum of damage in any particular case, and no two cases are alike” (Waldon v. War Office 1956 (1) W.L.R 51 (13) per Singleton L.J). There is no omnipotent criterion, capable of solving all problems arising in the law of damages. I would hesitate to particularize the rules governing quantification. As recently as 1963 Upjohn L.J was moved to remark that “the assessment of damages has never been an exact science; it is essentially practical”. (Charter House Credit v. Tolly (1963) 2 Q.B 683 (711) (14). The right figure to be awarded has to be found empirically. One's practical judgment, robust common sense and instinct enable one to reach a sound conclusion. “At the end of the day arithmetic may have to be mitigated by common sense.” (Daniel v. Jones, (1961) 1 W.L.R 1103) (15).

55. The distinguishing features of the present case are that the widow has not remarried. The aged mother has survived beyond the expectation of the tribunal and continues to live in the twilight of her existence. After the judgment in this case in 1967 prices have risen to such an extent that I cannot blame the tribunal for not taking them into account. The tribunal could not have gazed into the future and predict that some date the value of the rupee will go down to 37 paise as is shown in the official index. In making the assessment this court can look at events since the accident to see whether contingencies have become certainties.

56. In Philips v. Ward (1956) 1 W.L.R 471 (474) (16) Denning L.J said:

“The general principle of English law is that damages must be assessed as at the date when the damage occurs.”

57. This is, with respect, misleading. The true principle is that damages are assessed on the basis of the plaintiff's loss at the date of judgment-trial as well as appellate (See Bwllfa and Merthyr Dare Steam Collieries Ltd. v. Pontypridd Waterworks Co. (1903) A.C 426 (431) (17) per Lord Macnaghten). In this case the tribunal thought the widow will remarry. She has not. The tribunal thought that the aged mother will not live long. But here age is yet living to greater age. I cannot disregard these vital facts.

58. For these reasons I would allow F.A.O 171 of 1967 with costs by substituting for the tribunal's figure of Rs. 12,952 the sum of Rs. 24,100. The appellants in this appeal have already been paid Rs. 12,952. Now they will be entitled to recover a sum of Rs 11,148 more from the respondents. Jawla Devi will get Rs. 6670, Prem Singh will get Rs. 2396 and Phulan Devi will get Rs. 2082 in addition to what they have already received. The liability of the insurance company will, however, be limited to Rs. 20,000.

59. F.A.O No. 130 of 1967 is dismissed with costs. Counsel's fee Rs. 400 in both the appeals.

Order accordingly.