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Chhagan Kanwar And Others v. Pep Singh And Others
Court Opinion Summary — Milap Chandra, J. (Motor Vehicles Act, 1939)
Factual and Procedural Background
This appeal arises from a claim under section 110-D of the Motor Vehicles Act, 1939 (the Act) seeking enhancement of compensation awarded by the Motor Accidents Claims Tribunal, Jodhpur. The Tribunal had awarded Rs. 70,000/- by its judgment dated 23 July 1988.
Facts (as found in the opinion): On 26 December 1984 at about 4:30 p.m., the deceased, Gangadan, was returning on his moped from the Diesel Training School, Northern Railway, Bhagat Ki Kothi, Jodhpur, traveling on his correct side of the road when truck No. GTY 4359 hit him from the back. He sustained serious injuries, was taken first to the Railway Hospital and then referred to Mahatma Gandhi Hospital where he died on 29 December 1984. The appellants (claimants) had filed a petition under section 110-A claiming Rs. 4,00,000/- as compensation.
Procedural history (as set out): Respondents filed written statements denying allegations. After framing issues and recording evidence, the Tribunal awarded Rs. 70,000/- with 12% per annum interest, against the owner, insurer and driver. The claimants (appellants) appealed under section 110-D for enhancement.
Legal Issues Presented
- What was the correct age of the deceased at the date of the accident (affecting the multiplier used in calculating dependency)?
- What multiplier should be applied in calculating future loss of dependency given the deceased's age, expected retirement age and life expectancy?
- What was the correct measure of the deceased's monthly emoluments and hence monthly dependency contribution to the family?
- Whether deductions should be made from monthly dependency on account of anticipated pension or employment of family members (specifically, a Rs. 200/- per month deduction made by the Tribunal)?
- Whether the Tribunal erred in the quantum awarded for consortium to the widow, and whether awards should be made for love and affection of children and parents, and for pain and suffering of the deceased between accident and death?
- Whether amounts for medical treatment, damage to the moped, and expenses of last rites were properly awarded or disallowed by the Tribunal?
Arguments of the Parties
Appellants' Arguments
- The Tribunal incorrectly held that the deceased was 45 years old; evidence (widow's testimony and post-mortem report) established his age as 41 years.
- A multiplier of at least 20 should have been applied in calculating compensation (appellants sought a higher multiplier than that applied by the Tribunal).
- The Tribunal erred in finding that the deceased contributed only Rs. 500/- per month; the deceased's true contribution was higher.
- The Tribunal failed to award amounts spent on treatment, for damage to the moped, and for pain and suffering suffered by the deceased during the three days he lived after the accident.
- The Tribunal erred in deducting Rs. 200/- per month from the monthly dependency amount on account of pension to the widow and the employment of the eldest son.
- The appellants relied upon several precedents in support of their contentions (a list of cases was supplied in the petition).
Respondents' (National Insurance Co. Ltd., respondent No. 4) Arguments
- The sons and daughters of the deceased are not entitled to any amount as consortium; only the widow is entitled to compensation under the head of consortium.
- No amount for medical expenses was claimed in the claim petition.
- No amount is admissible as compensation for performing the last rites of the deceased.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Arunaben v. Mehmoodbhai Imamali Kaji, 1983 ACJ 409 (Gujarat) | Principle (as quoted): In determining pecuniary loss to dependants, no deduction should be made for the earning capacity or actual earnings of the widow arising from her gainful employment taken up after the accidental death of her husband, because such income is not a benefit consequent on the death but the result of her own labour. | The Court cited this authority to support the conclusion that deductions should not be made from dependency for the widow's earning capacity; used to justify refusing deductions made by the Tribunal. |
| N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC) | Authority (para 5) criticizing reduction of compensation by monetary benefits of pension; finding no justification for such reduction. | The Court relied on this Supreme Court authority to hold that a reduction of compensation on account of pension (as done by the Tribunal) was not justified. |
| Rajasthan State Road Trans. Corpn. v. Kistoori Devi, 1986 ACJ 960 (Rajasthan) | Held that the Tribunal is entitled to grant compensation under the head of loss of love and affection of children and parents. | The Court invoked this decision to conclude that the Tribunal should have awarded compensation for love and affection and allowed Rs. 10,000/- under that head. |
| State of Himachal Pradesh through Secretary (PWD) v. Chaina Ram, 1989 ACJ 13 (HP) | Relied upon by the appellants (specific principle not detailed in the opinion). | Listed among cases relied upon by the appellants; the opinion does not elaborate a specific application of this precedent. |
| Prem Kanwar v. Rajasthan State Road Trans. Corpn., 1988 ACJ 65 (Rajasthan) | Relied upon by the appellants (specific principle not detailed in the opinion). | Listed among cases relied upon by the appellants; the opinion does not elaborate a specific application of this precedent. |
| Jyotsna Dey v. State of Assam, 1987 ACJ 172 (SC) | Relied upon by the appellants (specific principle not detailed in the opinion). | Listed among cases relied upon by the appellants; the opinion does not elaborate a specific application of this precedent. |
| Sohan Lal v. Bal Swaroop Bal Bhatnagar, 1987 ACJ 113 (Rajasthan) | Relied upon by the appellants (specific principle not detailed in the opinion). | Listed among cases relied upon by the appellants; the opinion does not elaborate a specific application of this precedent. |
Court's Reasoning and Analysis
The Court proceeded through a sequence of focused factual and legal determinations, applying available documentary and testimonial evidence and relevant authorities where applicable.
1. Age of the deceased: The widow (PW 1) stated on oath the deceased was 40 years at the time of the accident; the post-mortem report (Exh. 9) recorded his age as 41. Neither witness was cross-examined on age. The Tribunal had relied on the statement of Jagdish (PW 2) to fix age at 45. The Court held that the Tribunal should have preferred the widow's testimony and the post-mortem report over Jagdish's statement. No service record had been produced by respondents though available. On the material, the Court concluded the deceased was 41 years at the date of the accident.
2. Multiplier to be applied: The Court examined life expectancy and employment facts. It noted that the deceased, a railway employee, would have retired at age 58 and therefore had 17 years of service remaining (from age 41). The Court found nothing to indicate ill-health or inability to work post-retirement and therefore that a multiplier of 17 (not the Tribunal's multiplier of 10) should have been applied to calculate future dependency.
3. Monthly emoluments and net contribution: The pay certificate (Exh. 10) established gross emoluments of Rs. 1,144.50 per month (including kilometre allowance of Rs. 100.50). The certificate showed deductions totalling Rs. 295/-, resulting in Rs. 850/- actually taken home. The widow's claim that additional mileage allowances of Rs. 300–400 existed was disbelieved by the Court. Considering personal expenses (bidi, tea, clothing, food), the Court increased the Tribunal's personal deduction from Rs. 150 to Rs. 250 per month. Thus the deceased's net monthly contribution was fixed at Rs. 600 (Rs. 850 - Rs. 250).
4. Deductions for pension or employment of family members: The Tribunal had deducted Rs. 200 per month from the Rs. 700 dependency on account of pension and eldest son's employment. The Court held no such deduction should have been made. It relied on authority (N. Sivammal) and reasoning from Arunaben to support that income likely earned by the widow or pension cannot be treated as a benefit to reduce compensation.
5. Consortium: The Tribunal had awarded Rs. 5,000 to the widow. Taking her age then as 39 and recognizing the long period she would remain a widow, the Court found Rs. 5,000 inadequate and enhanced consortium to Rs. 10,000.
6. Love and affection (children and parents): The Tribunal had awarded nothing. The Court cited Rajasthan State Road Trans. Corpn. v. Kistoori Devi to note that tribunals may grant compensation for loss of love and affection and directed an award of Rs. 10,000 under this head.
7. Pain and suffering: The deceased survived three days after the accident. The widow testified he writhed in pain. The Tribunal awarded nothing; the Court directed at least Rs. 5,000 be awarded for pain and suffering.
8. Medical treatment costs: The Tribunal disallowed medical expenses on the ground that they were reimbursible because the deceased was a railway employee. The Court found the Tribunal did not rightly disallow all medical expenditure on this basis (the opinion states the Tribunal "has not rightly awarded any amount incurred in treatment" — implying the Court disagreed with the Tribunal's complete disallowance).
9. Damage to moped: The Tribunal properly refused compensation for the moped for want of definite evidence. Testimony by the widow was inconsistent (she gave different amounts for sale of the moped), and no definite proof was established.
10. Funeral/last rites expenses: The Tribunal had awarded Rs. 5,000; the Court held this is not admissible because such expenses would have been incurred in the event of a natural death as well.
11. Calculation and award: Based on the Court's findings, it recalculated heads of compensation and arrived at a total of Rs. 1,47,400/-. The Court noted claimants previously received Rs. 15,000 under section 92-A, leaving Rs. 1,32,400 payable. Interest at 12% p.a. from 13 May 1985 to date of payment was awarded. The Court specified distribution among claimants and directed fixed deposit conditions for most beneficiaries and special safeguards for minors and marriage withdrawals, as set out in its order.
Holding and Implications
Holding (core ruling): The appeal was partly allowed. The Tribunal's award of Rs. 70,000/- was enhanced to Rs. 1,47,400/-. The Court ordered payment of the balance of Rs. 1,32,400/- (after adjusting Rs. 15,000 already received), with interest at 12% per annum from 13 May 1985 to the date of payment.
DISPOSITION: Appeal partly allowed; compensation enhanced and directions given regarding distribution and fixed deposits for the claimants.
Implications and consequences:
- Direct effect: The claimants receive an enhanced compensation award (total Rs. 1,47,400/-) with interest; precise distribution among widow, children, parents and others is ordered, together with safeguards for minors and fixed deposit conditions.
- Legal principle applied: The Court clarified that documentary evidence (post-mortem and pay certificate) and the widow's unchallenged testimony should be preferred over conflicting statements, affecting age, multiplier and income determinations. It reaffirmed the approach of not deducting potential earnings or pension from dependency where authorities (including the Supreme Court in N. Sivammal and the reasoning in Arunaben) counsel against such reductions.
- No broader novel precedent was announced beyond applying existing principles to the facts: the opinion adjusts quantum and distribution based on the evidence and cited authorities; it does not purport to lay down a new legal doctrine.
Note: This summary is confined strictly to the facts, arguments, reasoning and citations contained in the provided opinion and does not add or infer material beyond what the judgment states.
Milap Chandra, J.:— This appeal has been filed by the claimants under section 110-D, Motor Vehicles Act, 1939 (hereinafter to be called as ‘the Act’) for the enhancement of the amount of compensation against the judgment dated July 23, 1988 passed by the Motor Accidents Claims Tribunal, Jodhpur, awarding Rs. 70,000/- as compensation. The facts of the case giving rise to this appeal may be summarised thus.
2. On December 26, 1984 at about 4.30 p.m, the deceased Gangadan was returning on his moped from Diesel Training School, Northern Railway, Bhagat Ki Kothi, Jodhpur. He was going on his correct side of the road. The truck No. GTY 4359 dashed him from his back side. As a result thereof, he sustained serious injuries. His colleagues immediately shifted him to the Railway Hospital, Jodhpur. Due to his serious condition, he was referred to Mahatma Gandhi Hospital, Jodhpur. Despite best efforts of the doctors, he could not be saved and died on December 29, 1984. The appellants filed a petition under section 110-A of the Act claiming Rs. 4,00,000/- as compensation. The respondents filed their written statements traversing all the allegations of the claim petition. After framing necessary issues and recording the evidence of the parties, the Tribunal awarded compensation to the tune of Rs. 70,000/- with interest at the rate of 12 per cent per annum, against the owner, insurer and driver of the said truck. It has been contended by the learned counsel for the appellants that the learned Tribunal seriously erred to hold that the deceased Gangadan was 45 years of age at the time of the accident and it is well proved from the statement of the widow Chhagan Kanwar, PW1, and the post-mortem report Exh. 9 that his age at the time of accident was 41 years. He also contended that multiple of atleast 20 should have been applied in calculating the amount of compensation. He further contended that the learned Tribunal grossly erred in holding that the deceased Gangadan used to contribute Rs. 500/- per month to the claimants, the learned Tribunal has seriously erred in not awarding amount spent on the treatment of the deceased, for the loss occasioned by the damage of the moped and also for the pain and sufferings suffered by the deceased during three days he remained alive after the accident. He lastly contended that the Tribunal also seriously erred to deduct Rs. 200/- per month from the amount of monthly dependency of Rs. 700/- on account of the grant of pension to the widow Chhagan Kanwar and employment of his eldest son Vimaldan. He relied upon Arunaben v. Mehmoodbhai Imamali Kaji, 1983 ACJ 409 (Gujarat), State of Himachal Pradesh through Secretary (PWD) v. Chaina Ram, 1989 ACJ 13 (HP), N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC), Prem Kanwar v. Rajasthan State Road Trans, Corpn., 1988 ACJ 65 (Rajasthan), Rajasthan State Road Trans. Corpn. v. Kistoori Devi, 1986 ACJ 960 (Rajasthan), Jyotsna Dey v. State of Assam, 1987 ACJ 172 (SC) and Sohan Lal v. Bal Swaroop Bal Bhatnagar, 1987 ACJ 113 (Rajasthan).
3. In reply, it has been contended by the learned counsel for the National Insurance Company Ltd., respondent No. 4, that the sons and daughters of the deceased are not entitled to any amount as consortium and the widow of the deceased is only entitled to compensation under this head. He further contended that no amount under the head of medical expenses has been claimed in the claim petition. He lastly contended that no amount is admissible as compensation for performing the last rites of the deceased.
4. The first point for consideration in this appeal is about the age of the deceased Gangadan on the day of the accident. His widow Chhagan Kanwar, PW 1, has categorically stated in her examination-in-chief that her husband Gangadan was 40 years old on the day of the accident. Dr. M.P Joshi, PW 4, performed the post-mortem examination on the dead body of the deceased Gangadan and he had mentioned the age of the deceased as 41 years in his postmortem report Exh. 9. Both these witnesses have not been cross-examined on this point. On the basis of the statement of Jagdish, PW 2, the learned Tribunal has held that the age of the deceased Gangadan was not less than 45 years on the date of the occurrence. The learned Tribunal should have preferred the statement of the widow Chhagan Kanwar, PW 1, instead of Jagdish, PW 2, particularly when the postmortem report Exh. 9 supports her. It was open to the non-petitioners to have called the service record of the deceased from his office. Admittedly, no such step was taken by any of the respondents. On the basis of the material on record, it is difficult to endorse the views of the Tribunal that Gangadan was 45 years of age on the date of the accident. It is well proved from the evidence on record that he was 41 years of age on the date of the occurrence.
5. The next question for consideration is whether under the facts and circumstances of the case, the Tribunal was justified to apply the multiplier of 10. The claimant Chhagan Kanwar, PW 1, has stated on oath that her grandfather-in-law died at the age of 80 years and the age of her father-in-law is 72 years. She has not been cross-examined on this point. If the deceased Gangadan would not have died in accident, he might have also attained the age of 70 years atleast. It is the admitted case of the parties that deceased was in the railway service on the date of the accident and he would have retired at the age of 58 years. As such he would have drawn his emoluments from the Railway Department for 17 years more if he would not have died in the accident. After retirement, he would have drawn pension and would have done some work or service. There is nothing on the record to indicate that he was not enjoying good health and would not have been able to do any work or service after his retirement. Under these facts and circumstances, the Tribunal should have applied the multiplier of 17 atleast.
6. The next question is about the total emoluments which were being drawn by Gangadan from the Railways. It is well proved from the pay certificate Exh. 10 that he was drawing total emoluments of Rs. 1,144.50 per month. This amount includes Rs. 100.50 as kilometre allowance. It is difficult to believe the statement of the claimant Chhagan Kanwar, PW 1, that besides this amount he was also drawing Rs. 300/- to Rs. 400/- as mileage allowance and his total monthly emoluments were Rs. 1,500/- to Rs. 1,600/-. It is also stated in the pay certificate Exh. 10 that Rs. 295/- were used to be got deducted by the deceased towards the provident fund loan, CCS loan, electricity and water, house rent, insurance, C.P.F etc. He was thus taking Rs. 850/- per month to his home. In the cross-examination, Chhagan Kanwar, PW 1, has disclosed that her husband used to smoke bidi and drink tea and his personal expenses were Rs. 100/- to Rs. 150/- per month. Some amounts were also being spent on his clothes and food. The Tribunal has deducted Rs. 150/- only. It should be Rs. 250/-. Thus the deceased was contributing Rs. 600/- (Rs. 850/- Rs. 250/-) per month to his family.
7. The learned Tribunal has deducted Rs. 200/- per month from the amount of dependency of Rs. 700/- on account of pension and the employment of the eldest son Vimaldan. No deduction should have been made on these counts. It has been observed in N. Sivammal v. Managing Director, Pandian Roadways Corporation, 1985 ACJ 75 (SC), para 5, as follows:
“The High Court evaluated the monetary benefits of pension and reduced the amount of compensation by Rs. 10,000/-. We are unable to appreciate this reduction. We find no justification for it.”
8. It has been observed in Arunaben v. Mehmoodbhai Imamali Kaji, 1983 ACJ 409 (Gujarat), at page 416, para 18, as follows:
“No decision of an Indian court having a bearing on the point under consideration has been brought to our notice, but having regard to the view which prevails in foreign countries in similar jurisdiction, the proper principle to apply would appear to be that in determining the pecuniary loss to the dependants, no deduction should be made for the earning capacity or the actual earnings of the widow arising from her gainful employment taken up after the accidental death of her husband, because such income is not a benefit in consequence of the death but is the result of her own labour.”
9. The Tribunal has awarded only Rs. 5,000/- as consortium to the widow Chhagan Kanwar. It is clear from her statement that her age at the time of the fatal accident of her husband was 39 years only. She has to pass a long period as a widow. The amount of Rs. 5,000/- seems to be inadequate. It deserves to be enhanced to Rs. 10,000/-.
10. The Tribunal has not awarded any amount under the head of loss of love and affection of children and parents. It has been held in Rajasthan State Road Trans. Corpn. v. Kistoori Devi, 1986 ACJ 960 (Rajasthan), that the Tribunal is entitled to grant compensation on the above head. The Tribunal should have atleast allowed Rs. 10,000/- under this head.
11. The Tribunal has also not awarded any amount for the pain and sufferings suffered by the deceased Gangadan from the time of the accident till his death. The accident took place on December 26, 1984 and he died on 29th December, 1984. His widow Chhagan Kanwar, PW 1, has categorically stated on oath that he was writhing due to pain and suffering. The Tribunal should have awarded atleast Rs. 5,000/- under this head.
12. The Tribunal has not rightly awarded any amount incurred in treatment of the deceased Gangadan on the ground that it was reimbursible as he was a railway employee.
13. The learned Tribunal has rightly not allowed any compensation towards the damage of the moped for want of definite evidence. Chhagan Kanwar, PW 1, has deposed that her husband purchased his moped for Rs. 7,000/- and she sold it for Rs. 5,000/-. She also said that she sold it for Rs. 2,000/-.
14. The Tribunal has awarded Rs. 5,000/- towards the expenses incurred in performing the last rites. This amount is not admissible as in the natural death these expenses would have also been incurred.
15. In view of the a foresaid discussion, the claimants-appellants are entitled to get the following amounts:
(1) Loss of dependency benefits/economic loss (600 × 12 × 17) Rs. 1,22,400/- (2) Consortium Rs. 10,000/- (3) Love and affection of children and parents Rs. 10,000/- (4) Pain and suffering Rs. 5,000/- Total Rs. 1,47,400/-
16. The claimants have already obtained Rs. 15,000/- under section 92-A of the Act There remains Rs. 1,32,400/-. Consequently, the appeal is partly allowed. The amount of compensation is enhanced from Rs. 70,000/- to Rs. 1,47,400/-. The claimants are entitled to get interest at the rate of 12 per cent from May 13, 1985 to the date of payment.
17. The aforesaid amount of Rs. 1,32,400/- will be distributed amongst the claimants as follows:
Three sons Rs. 12,000/- (each) Three daughters Rs. 12,000/- (each) Mother Rs. 12,000/- Widow Rs. 45,000/- Father Rs. 3,400/- Total Rs. 1,32,400/-
18. All claimants except the father will deposit the aforesaid amounts in fixed deposit scheme of any scheduled bank for atleast 6 years. The claimants may draw the interest regularly as permitted by the bank. They will not pledge or transfer these fixed deposit receipts. The appellant No. 1 Chhagan Kanwar will obtain fixed deposit receipts in the names of the minor claimants. For the marriage of the son or daughter, the mother Chhagan Kanwar may draw amount from the fixed deposit with the permission of the Tribunal.
19. Appeal partly allowed.
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