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Dharambir Singh v. Shanti Devi And Others

Delhi High Court

Jul 12, 1995

Judgment

Subsequent
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Smart Summary (Beta)

Structured Summary of the Opinion (C.M. Nayar, J.)

Factual and Procedural Background

The present appeal challenges an award dated 23.5.1980 of the Motor Accidents Claims Tribunal, Delhi (Judge R.C. Chopra). The respondents-claimants filed an application under section 110-A of the Motor Vehicles Act, 1939, alleging that on 12.1.1971 one Khem Karan Lal died in a road accident at about 8 p.m. The deceased was at the time boarding the offending bus No. DLP 4240, driven by respondent No. 5; the appellant, Dharambir Singh, was the conductor. The claimants allege that when the bus reached Kashmere Gate and took a sharp turn the wall of Kashmere Gate struck the deceased, causing fatal injuries. The deceased was said to be about 38 years old with a monthly income of Rs. 400. The owner of the bus was respondent No. 6; New India Assurance Co. Ltd. was the insurer (respondent No. 7). The Tribunal admitted the accident and ownership and insurance, but respondents pleaded contributory negligence on the part of the deceased; the insurer pleaded a maximum liability limit. The Tribunal framed four issues (liability, vicarious liability, quantum, and relief) and awarded compensation to the claimants, apportioning contributory negligence to the deceased and fixing certain liabilities on the owner, driver, conductor and insurer. The present appeal was filed by the conductor, and the claimants filed cross-objections seeking enhancement of compensation.

Legal Issues Presented

Whether Khem Karan Lal received fatal injuries in the accident with bus No. DLP 4240 due to rash and negligent driving on the part of the conductor and the driver (as framed in Issue No. 1 before the Tribunal)?
Whether the owner and others (respondent Nos. 4 and 5 in the Tribunal's numbering) are vicariously liable for the accident (Issue No. 2 before the Tribunal)?
To what amount of compensation, if any, are the petitioners entitled and from whom (Issue No. 3 before the Tribunal)?
What relief should be granted (Issue No. 4 before the Tribunal)?

Arguments of the Parties

Appellant (Dharambir Singh) — Conductor

The appellant challenged the Tribunal's finding that he was responsible, jointly with the driver, for the negligence causing the accident; he contended he was aggrieved by allocation of responsibility (he sought to overturn or disturb the finding of negligence on his part).

Respondents-claimants / Cross-objectors

Contended that the Tribunal used a very low multiplier given the deceased's young age (38) and prospects for increased future earnings.
Argued that deductions made by the Tribunal for provident fund, gratuity and lump sum payment were impermissible under settled law and should not have been made.
Maintained that contributory negligence of 25% attributed to the deceased was contrary to the evidence because the deceased had only boarded the bus and it was for the conductor/driver to ensure safe boarding before signaling the bus to start.
Argued that the insurer's liability could not be assessed at only Rs. 5,000 because the insurer itself admitted liability of Rs. 20,000 which had been increased to Rs. 50,000 by amendment of section 95(2); therefore the liability of respondent No. 7 could not be less than Rs. 50,000.

Respondent No. 7 (Insurer — New India Assurance Co. Ltd.)

Pleaded that its maximum liability was limited (initially advanced as Rs. 20,000, subsequently amended to a statutory limit of Rs. 50,000 by amendment to section 95(2)).
Before the Appellate Court, the insurer contended that the Tribunal correctly limited its liability to Rs. 5,000 under the statutory provision (section 95(2)(b)(ii)), although the insurer's written statement had asserted a higher limit.

Owner and Delhi Transport Corporation / Municipal Corporation (as pleaded before Tribunal)

The owner (respondent No. 6) and the Delhi Transport Corporation asserted that the bus was owned by respondent No. 6 and that the Corporation was not liable; respondent No. 6 had entered an agreement to maintain insurance covering third party risk and denied liability on the Corporation's part.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded by reviewing the Tribunal's findings and the parties' pleadings and contentions. The Tribunal had found contributory negligence on the deceased to the extent of 25% and allocated the remaining 75% negligence to the driver and conductor; it accepted the deceased's age (38) and income (Rs. 400 per month), assessed dependency at Rs. 300 per month, adopted a multiplier of 14 and awarded a net sum after deductions. The Tribunal had limited the insurer's liability to Rs. 5,000.

On appeal the court made the following analytical determinations:

Employment and vicarious liability: The conductor and driver were in the employment of the owner (respondent No. 6) and the accident occurred in the course of employment. As such, the owner (and the insurer) remained liable; there was no basis to interfere with the Tribunal’s finding of the owner’s vicarious liability.
Contributory negligence: The appellate court examined the factual position that the deceased had only boarded the bus and had not entered it fully when the bus started and the accident occurred on making a sharp turn at Kashmere Gate. The court held that it was for the conductor and driver to ensure passengers were safely inside before giving the signal to move. On this basis the court reversed the Tribunal's finding attributing 25% contributory negligence to the deceased, concluding that the deceased was not negligent.
Insurer's statutory liability: The Tribunal's conclusion limiting the insurer's liability to Rs. 5,000 was examined in light of the insurer's own written statement which had pleaded liability limited to Rs. 20,000, subsequently increased by statute to Rs. 50,000. The court held the Tribunal went against pleadings by fixing liability at Rs. 5,000 and that the insurer had not pleaded that its liability was restricted to Rs. 5,000 on the basis that the deceased was a passenger. The Tribunal's finding on this point was set aside.
Quantum of compensation: The court reviewed the Tribunal's assessment of dependency and multiplier. The Tribunal had used Rs. 300 per month as dependency (out of Rs. 400 income) and a multiplier of 14. The appellate court noted scope for future advancement, prospects of higher salary due to pay commission changes, and that the deceased could have worked until the government superannuation age of 58 — the court therefore considered the Tribunal's figures inadequate. The court treated Rs. 6,000 per year (i.e., Rs. 500 per month) as a suitable assessment of annual dependency in the circumstances and observed that a multiplier of 20 would yield Rs. 1,20,000; taking an overall view, the court fixed compensation at Rs. 1,00,000. The court also held that deductions made by the Tribunal for provident fund, gratuity and lump-sum payments were not permissible.
Interest and apportionment: The court awarded interest at 15% per annum from the date of application until realization. It upheld the insurer's liability to the extent of Rs. 50,000 (with proportionate interest) and held the appellant (conductor) and respondent No. 5 (driver), being employees of respondent No. 6 (owner), jointly and severally liable for the balance amount.
Costs: The court allowed the claimants' cross-objections, assessed costs at Rs. 2,500, and dismissed the appellant's appeal.

Holding and Implications

Core Ruling: The appeal is dismissed and the cross-objections are allowed.

Direct consequences and specific orders made by the court (as stated in the opinion):

The total compensation payable to the respondents-claimants is assessed at Rs. 1,00,000.
The insurer (respondent No. 7, New India Assurance Co. Ltd.) is held liable to the extent of Rs. 50,000 with proportionate interest.
The appellant (conductor) and respondent No. 5 (driver), being in the employment of the owner (respondent No. 6), are jointly and severally liable for the remaining amount of the award.
The respondents-claimants are entitled to interest at the rate of 15% per annum from the date of the application until realization.
Deductions previously made by the Tribunal for provident fund, gratuity and lump-sum payments are disallowed.
The cross-objections are allowed with costs fixed at Rs. 2,500; the appeal is dismissed.

Broader implications: The opinion does not purport to lay down a new legal precedent; it reverses particular factual and legal determinations made by the Tribunal (notably the finding of contributory negligence and the Tribunal's assessment of insurer liability and deductions). The decision increases the quantum awarded to the claimants and clarifies that the insurer's liability must be adjudicated in accordance with its pleadings and relevant statutory amendments rather than by an unsupported finding of a lower statutory cap in the Tribunal's order.

Show all summary ...

C.M Nayar, J.:— The present appeal is directed against the award dated 23.5.1980 of Mr. R.C Chopra, Judge, Motor Accidents Claims Tribunal, Delhi. The respondents-claimants have also filed their cross-objections (C.M No. 2158 of 1982) claiming enhancement of compensation.

2. The respondents-claimants filed an application under section 110-A of the Motor Vehicles Act, 1939, on the averments that one Khem Karan Lal died in a road accident on 12.1.1971 at about 8 p.m The deceased was travelling in the offending vehicle No. DLP 4240 which was being driven by respondent No. 5. The present appellant, Dharambir Singh, was the conductor of the bus. It was alleged that the deceased boarded the bus and had not even entered the same when the bus was started and when it reached Kashmere Gate in front of Ritz Cinema, respondent No. 5 took a sharp turn as a result of which the wall of Kashmere Gate struck against the body of the deceased who fell down and received multiple injuries on his body as a result of which he died in the hospital later on. It was further alleged that the conductor of the bus, appellant herein, had not waited for the passengers to settle down inside the bus and had given the signal to start the bus without caring for the safety as a result of which the deceased sustained fatal injuries. The deceased was about 38 years of age at the time of accident and was having an income of Rs. 400/- per month. The owner of the bus is respondent No. 6 in the present appeal. The Delhi Transport Corporation as well as Municipal Corporation of Delhi were impleaded as the respondents before the Tribunal but in the present appeal only Delhi Transport Corporation is impleaded as a party respondent. The insurer of the bus is New India Assurance Co. Ltd., respondent No. 7 herein. The respondents-claimants had claimed compensation of Rs. 1,00,000/- and alleged that respondent Nos. 5, 6, 7 and 8 were liable to pay the said sum as they were vicariously liable for the tortious act committed by the appellant and respondent No. 5. The respective written statements were filed. The accident was not denied and it was admitted that respondent No. 6 was owner of the bus and respondent No. 5 was its driver. It was further admitted that respondent No. 7 was the insurer of the offending vehicle. The said respondents took the plea that the accident had occurred because of the negligence of the deceased himself. It was further pleaded that the maximum liability, in any case, of the insurance company was limited to Rs. 20,000/-. The respondent Delhi Transport Corporation took the plea that the bus was owned by respondent No. 6 at the time of accident and he was solely responsible as he had entered into an agreement with Delhi Transport Corporation that he will take up insurance policy covering third party risk and the Corporation was not liable for any civil, criminal or any action arising out of the use of the vehicle.

3. Following issues were framed on pleadings of the parties:

(1) Whether Khem Karan Lal received fatal injuries in course of an accident with bus No. DLP 4240 due to rash and negligent driving on the part of the respondent Nos. 1 and 3 as alleged in the petition?

(2) Whether respondent Nos. 4 and 5 are not vicariously liable, as alleged in the written statement?

(3) To what amount of compensation, if any, are the petitioners entitled and from whom?

(4) Relief.

4. The learned Judge disposed of issue No. 1 by holding that there was contributory negligence on the part of the deceased to the extent of 25 per cent only inasmuch as he could have reasonably expected that he would get into the bus before the gate comes or the conductor would ask him to get down from the bus prior to the arrival of the gate or the driver would go through the said gate in such a manner that his body would not come in contact with its walls. The remaining 75 per cent negligence leading to the accident in question was held to be shared by respondent No. 5 and the appellant. The Delhi Transport Corporation as well as the Municipal Corporation of Delhi were not liable to pay any compensation. Issue No. 2 was disposed of accordingly.

5. The respondents-claimants were held to be the legal heirs of the deceased. The age of the deceased was accepted as 38 years and his income as Rs. 400/- per month. The amount which the deceased was expected to contribute towards the family was Rs. 300/- per month, i.e, Rs. 3,600/- per year. The multiplier of 14 was held to be suitable multiplier to assess the total financial loss to the claimants in this case. The total amount of compensation, accordingly, was awarded at Rs. 50,400/-. After taking into account the contributory negligence assessed to the extent of 25 per cent, the compensation was reduced to Rs. 37,800/- and further deductions were made with regard to provident fund, gratuity and lump sum payment. The total award after taking into account these deductions was made in the figure of Rs. 33,300/-.

6. The learned Judge then assessed the liability of respondent No. 7 to the extent of Rs. 5,000/- only. The award was made in favour of the respondents-claimants against the appellant, respondent Nos. 5, 6 and 7 to the extent indicated above.

7. The present appeal has been filed by Dharambir Singh, who was conductor of the offending bus. This appeal is totally misconceived as owner of the offending vehicle as well as the insurance company are liable to pay compensation. The only contention which has been made by the learned counsel for the appellant is that the appellant is aggrieved by the finding that he was responsible for contributory negligence leading to the accident along with the driver of the bus, respondent No. 5, to the extent of 75 per cent. It will not be necessary for me to deal with this question in detail as the driver as well as the conductor were in the employment of respondent No. 6 who was the owner at the time of accident and the accident took place in the course of employment. Respondent No. 6 was held liable for the liability jointly and severally along with the appellant and respondent No. 5. The evidence on record, however, does not justify any interference in this finding.

8. The learned counsel for respondents-claimants/cross-objectors has contended that the Tribunal has erred in using a very low multiplier as the deceased was a young person of 38 years of age and the dependency in the years to come could have increased and he would have contributed more for the family. It is also argued that the deduction on account of provident fund, gratuity and lump sum payment cannot be sustained as the law is fairly well settled that such deductions from the awarded amount are no longer permissible. The learned counsel has then argued that the contributory negligence attributable to the deceased to the extent of 25 per cent is against the evidence on record and this finding cannot be sustained. The deceased had merely boarded the bus and it was for the conductor as well as for the driver to exercise caution and to see that all the passengers had safely entered the bus before it was given signal to move. The liability of the insurance company in the present case could not be assessed at Rs. 5,000/- as the said respondent itself admitted that the liability was Rs. 20,000/- which had been increased to Rs. 50,000/- by amendment of section 95(2). This amendment came into force on 2.3.1970 (Act No. 56 of 1969). Therefore, it is contended that the liability of respondent No. 7 could not be less than Rs. 50,000/-.

9. The deceased had boarded the bus and had not gone inside the bus when the bus started moving and when it reached Kashmere Gate, the unfortunate accident took place as the bus took a sharp turn. In this background, it cannot be said that the deceased was negligent as it was for the conductor to see that all the persons boarding the bus are safely inside before he could blow the whistle for the bus to start. In this background it cannot be said that the deceased was himself responsible for the occurrence. The finding in this regard is, accordingly, reversed.

10. The next question which has been strongly raised before me by the learned counsel for respondent No. 7 is that the liability of the insurance company is limited only to the extent of Rs. 5,000/- which is the statutory liability, as laid down by the provisions of section 95(2)(b)(ii). The learned Tribunal has fallen into an error even on this point as it is the case of the insurance company itself that its liability was limited to the extent of Rs. 20,000/-. It was not the case of the company that the liability was confined only to Rs. 5,000/- on the basis of the deceased being a passenger in the offending bus. The learned Judge has gone against the pleadings and has erroneously held that the liability of the company is only to the extent of Rs. 5,000/-. The plea with regard to the deceased being a ‘passenger’ in the bus was neither raised nor argued before the Tribunal. The same cannot be sustained particularly in view of the written statement which has been filed by respondent No. 7 to the effect that the liability is limited to the extent of Rs. 20,000/- which was subsequently amended to Rs. 50,000. This finding of the Tribunal cannot be sustained and is set aside.

11. The question of quantum of compensation as awarded by the Tribunal can now be considered. The deceased was earning about Rs. 400/- per month and was working as a Pharmacist in Kingsway Camp Maternity Hospital run by Municipal Corporation of Delhi. The Tribunal has assessed the dependency at Rs. 300/- per month. The accident took place as far back as on 12.1.1971 when the deceased had a span of about 20 years in his working career. There is always scope for future advancement which will obviously result in higher salary and other allowances to which the deceased would have become entitled in view of the changes in the salary structure as a result of Pay Commission Reports. In this view the amount which has been assessed at Rs. 300/- per month as contribution towards his family cannot be held to be adequate. The multiplier adopted is 14 which is also on the lower side as in any case the deceased would have worked till he attained the age of superannuation, which is fixed at 58 years in the Government job. The dependency of the deceased and his contribution towards his family can safely be assessed at least in the region of Rs. 6,000/- per year and by adopting a multiplier of 20, the deceased would have been entitled to compensation of Rs. 1,20,000/-, which is mote than the amount which has been claimed in the petition. Taking an overall view of the facts and circumstances of the present case, it can be held that the claim of the respondents-claimants is not in any way exaggerated. The Tribunal has also erred in making deductions with respect to payments received by the respondents on account of gratuity, provident fund and for lump sum payment. These deductions are no longer valid deductions in the eyes of law.

12. For the aforesaid reasons, I assess the amount payable to the respondents-claimants in the sum of Rs. 1,00,000/-. The plea of the respondents-claimants that the liability of insurance company, respondent No. 7 herein, is to the extent of Rs. 50,000/- with proportionate interest is upheld in the circumstances of the present case. The appellant as well as respondent No. 5 were in the employment of respondent No. 6. They are held liable for the remaining amount jointly and severally. The respondents-claimants shall also be entitled to interest at the rate of 15 per cent per annum from the date of application till realisation. The appeal is dismissed and the cross-objections are allowed with costs which are assessed at Rs. 2,500/-.

13. Appeal dismissed.