Smt. Krishna Sehgal And Others v. U.P State Road Transport Corporation And Others

K.N Singh, J.:— These are two appeals under S. 110-D of the Motor Vehicles Act, 1939 one preferred by the U.P State Road Transport Corporation (hereinafter referred to as the Corporation) and the other preferred by the claimants against the award of the Motor Accidents Claims Tribunal, Aligarh D/- 22-9-1976, awarding a sum of Rupees 35,000/- to the claimants. Both the appeals have been heard together and are being disposed of by a common judgment.

2. Sri Ram Lal Sahgal was employed as sub-inspector in the Central Excise Department at Sadabad in district Mathura. On 11-1-1969, while he was proceeding on motor cycle from Mathura to Delhi, he was knocked down by a stage carriage bearing registration No. 8904 which belonged to the corporation. Shri Ram Lal Sahgal succumbed to his injuries at the spot. He left Smt. Krishna Sahgal widow and one minor son aged about 2½ years and a daughter 1½ years Km. Asha. The widow and the two children filed claim petition under Section 110-A of the U.P Motor Vehicles Act claiming a sum of Rs. One lac as compensation for the death of Ram Lal Sahgal. The U.P Corporation contested the proceedings. In its written statement filed before the Tribunal, the Corporation pleaded that the roadways bus in question was proceeding from Aligarh to Hatharas and when it reached near the spot of accident some buffaloes were grazing on the left hand side of the driver. Suddenly two buffaloes fought each other they came on pucca road. The driver in order to save the accident swerved the vehicle towards his right. At the very moment a motorcyclist who was coming from the opposite direction in high speed dashed against the left front side of the bus. The motor cycle fell down upon him and the handle of the motor cycle pierced into the left forehead of the rider, as a result of which he died at the spot. The Corporation further pleaded that the driver of the bus was not driving the bus in a rash or negligent manner. On the other hand, the motor-cyclist was driving his motor cycle in a high speed and he was rash and negligent and was responsible for the accident. The Corporation further pleaded that it was not liable to pay any compensation and in the alternative it asserted that the amount of compensation claimed by the legal representatives of the deceased was excessive and highly exorbitant.

3. Both the parties produced oral and documentary evidence before the Tribunal, in support of their case. The Tribunal by its order dated 22-9-1976, held that the driver of the Corporation's bus was guilty of rash and negligent driving, the bus was being driven at a high speed and the driver had no justification to take the vehicle towards the right patn of the road and to knock down the deceased Ram Lai Sehgal. The Corporation was liable to pay damages of the claimants, which it assessed at Rs. 35,000/-. The Corporation as well as the claimants both have filed appeals against the award of the Tribunal.

4. Sri. S.K Sharma, learned counsel for the Corporation, urged that the deceased Ram Lai Sahgal was guilty of contributory negligence. He took us through the statements of the eye-witnesses and the site plan Ex. A6 of the place of accident. On a perusal of the oral and documentary evidence, we do not find any merit in the contention. Har Prasad Pandey D.W 1, Senior Station in charge of Aligarh, who is an employee of the Corporation visited the site and prepared site plan Ex. A6 of the place of the incident on 15-1-1969. The site plan shows that width of the pucca portion of the road was 18 feet at the place of accident. The width of the Katcha Patri on either side was 10 feet. The accident took place on the Katcha Patri to the right of the Corporation's bus. After hitting the motor-cycle, the bus did not stop instead it crossed the entire width of the Katcha Patri and hit a tree which was slightly uprooted. The tree was situate on the extreme right of the Katcha Patri Jagdish Singh, driver, D.W 3, has admitted in his deposition that there was no traffic and the road was straight. He had seen the motor-cycle coming from the opposite direction which was being driven by the deceased on his left side. He further stated that since the buffaloes had come all of a sudden on the road, he swerved his vehicle to his right and in that process the motor-cycle dashed against the bus. The statement of the driver and the site plan prepared by the Station in charge of the Corporation make it clear that the accident took place on the right said of the Patri of the road the bus had no justification to be on the right side Patri of the road.

5. Ram Lal Sahgal deceased had committed no fault as he was following the rules of road by keeping on the left side of the road. The driver committed fault in going to the wrong side of the road and in hitting the motor cycle. On the facts proved, the doctrine of res ipsa loquitur is applicable. The proved facts speak for themselves that the driver of, the bus was plying the vehicle in violation of the traffic rules and the vehicle was in great speed and for that reason it could not be controlled even after dashing against the motor cycle as it crossed the entire Patri and hit a tree and it could stop only thereafter. In addition to this, Musaram P.W 1 and Bahadur P.W 2, two eye-witnesses, were produced on behalf of the claimants, they clearly stated that the driver was driving the bus in a rash and negligent manner. They were subjected to lengthy cross-examination but nothing material could be elicited from them to discredit their testimony. In our opinion, the Tribunal rightly held that the driver of the bus was guilty of rash and negligent driving.

6. The Corporation's plea that the buffaloes had come suddenly on the road and the driver in his bid to avoid collision with the buffaloes swerved his vehicle to right and in that process it dashed against the motor cycle has been rejected by the Tribunal. On a perusal of the evidence we find this plea was afterthought to explain the accident. No doubt this plea was raised in the written statement of the Corporation and also in the testimony of the defence witnesses but this is belied by the fact that the driver of the bus did not give any such version of the accident at the first available opportunity when he lodged the first information report Ex. A-1 immediately after the accident. In the first information report, he merely stated that the accident had taken place with a motor-cycle, as a result of which the motor-cyclist died at the spot. The driver who himself lodged the report did not state any other fact regarding the buffaloes. If the buffaloes had really darted on the road all of a sudden, as a result of which the driver had swerved his vehicle to his right, it was quite natural for him to state those facts in his first information report. The absence of this version in the first information report indicates that this was an afterthought version.

7. There is yet another circumstance which supports this conclusion. Annexure A-7 is the report alleged to have been submitted by the driver to the Station in charge, Aligarh. In his testimony Jagdish Singh driver deposed that at first he went to the Station in charge and submitted his report Ex. A-7 relating to the accident and thereafter hp had gone to the police station to lodge the report. He deposed that after his report was recorded, the police took him in custody and put him in the lock up. On a perusal of Ex. A-7 we find that the driver had stated that two buffaloes fighting with each other had all of a sudden came on the road and in order to save them, he took his bus to his right side and in that process the bus dashed against the motor cycle. In the last sentence of the report, the driver further stated that after the accident he had gone to lodge the first information report at the police station where he was put in the police lock up. Ex. A-7 does not bear any date. According to the testimony of the driver, this report was given to the Station in charge prior to his going to the police station but on a perusal of the Ex A-7 it appears that this report was prepared after the driver was released from the police custody. This circumstance, fully demonstrates that the story of buffaloes coming on the road was introduced by the driver later on with a view to set up defence.

8. Ram Lal Sahgal was driving his motor-cycle cm his left and he did not vioate the traffic rules. The bus knocked him down on the Katcha Patri. In the circumstances deceased could not be held guilty of any contributory negligence.

9. The learned counsel for the Corporation then urged that the Tribunal has awarded excessive amount of compensation to the claimants. On the other hand, the counsel for the claimants urged that the claimants were entitled to a higher amount of compensation and the amount awarded by the Tribunal does not represent a just and fair compensation. The counsel pleaded for the enhancement of the amount of compensation. In case of death, the compensation is awarded to the legal heirs and dependents. There can be no real compensation for the death of a member of the family but Courts have to make effort to arrive at a just and fair compensation with a view to give relief to the claimants who suffer pecuniary loss on account of the untimely death of the bread earning member of the family. The pecuniary loss is determined on the basis of evidence produced by the parties. In the instant case, the deceased Ram Lal was the sole earning member of his family. He left behind his widow aged about 35 years and one minor son and a daughter. The deceased was employed as sub-inspect or in the Central Excise Department and he was drawing salary in the grade of Rs. 100-180. Shri B.P Mathur P.W 5 Senior Assistant in the Central Excise Department posted at Mathura produced papers before the Tribunal and deposed that in Dec., 1968 Ram Lal Sahgal was drawing Rs. 150/- as basic pay and Rs. 122/- as dearness allowance, in all, he was drawing a sum of Rs. 272/- as his salary. In addition to that, he used to draw T.A to the extent of Rs. 125/-. Sri Mathur further deposed that in 1975 all the sub-inspectors were upgraded as Inspectors in the pay scale of Rs. 425-15-800.

10. At the time of his death, Ram Lal Sahgal deceased was aged about 36 years and the age of retirement as stated by Sri Mathur was 58 years. Had Ram Lal Sahgal been alive, he would have continued in service till he attained the age of 58 years. Thus Ram Lal Sahgal would have remained in service for another period of 22 years, he could have drawn salary at the rate of Rs. 272/- till Dec., 1975 and thereafter he would have drawn salary in the new scales of pay i.e, 425-800. The deceased was drawing total salary of Rs. 280/-. He must have been spending a sum of Rs. 80/- on his own personal expenses and the amount drawn by him as T.A must have been spent by him on his motor cycle and other sundry expenses. Thus he would have been contributing a sum of Rs. 200/- per mensem towards the maintenance of his wife and children. This amount he would have continued to spend on the maintenance of the claimants till Dec., 75. He would have thus contributed towards wife and children Rs. 12,000 (200 × 12 × 5).

11. After 1975, the deceased would have drawn pay in the new scale of pay of Rs. 425-800. An increment of Rs. 15/- is provided per year. He would have drawn Rs. 680/- as the basic pay in addition to the D.A of Rs. 122/- which he was drawing on the date of his death. It is a matter of common knowledge the D.A and the scales of pay have been revised from time to time. In the new scale of pay the deceased would have drawn Rs. 425/- as basic pay and Rs. 122/- as D.A Thus the total emoluments would have been Rs. 547/-, out of which he would have contributed at least Rs. 400/- towards the maintenance of the claimants. As the children were growing, the deceased would have been required to contribute higher amount for their upkeep and education. Having regard to these facts it would be safe to determine the pecuniary loss at the rate of Rs. 400/- per month from the year 1976 till the date of superannuation which was to fall in the year 1992. The claimants were put to a loss of Rs. 400/- per mensem for a period of 17 years. The pecuinary loss for this period comes to Rs. 81,600 (400 × 12 × 17). If the amount of Rs. 12,000/- is added the total pecuniary loss which the claimants suffered comes to Rs. 93,600/-. This amount would have come to the claimants in driblets over a period of 22 years. Since they are being paid this amount in lump sum a deduction on that account at the rate of Rs. 33% would be reasonable. After making such deduction, we find that the claimants are entitled to a sum of Rs. 62,400/- which we round as Rs. 62,000/-.

12. In our opinion the claimants are entitled to receive Rs. 62,000 as compensation for the death of Ram Lal Sahgal. The award of the Tribunal is liable to be modified by enhancing the compensation from Rs. 35,000/- to Rs. 62,000/-.

13. Learned counsel for the Corporation then urged that the amount of the insurance, gratuity and pension received by the claimants should be deducted from the amount of pecuniary loss determined by us. The Tribunal has no doubt deducted the amount of pension and insurance from the amount of compensation payable to the claimants. In our opinion, it is not proper or desirable to make these deductions. Firstly the amount of insurance is based on an independent contract for which the deceased had been contributing as premium to the policy. In F.A No. 297 of 1975 Smt. Kaushiliya Devi v. U.P.S.R.T.C decided on 14-7-81, we have already taken a view that the amount of life insurance policy payable to the claimants on account of the death is not liable to be deducted from the amount of compensation. In Prataprai Arjundas Dhu-riya v. Bhupat Singh Gajji 1982 Acc CJ 316 : (AIR 1982 Guj 72) the High Court of Gujarat has after detailed discussion taken similar view that insurance benefits received by the dependants of the deceased could not be set off against the amount of compensation payable to them. So far as the gratuity is concerned, the Supreme Court in Manjushri Raha v. B.L Gupta ((1977) 2 SCC 174 : AIR 1977 SC 1158) held that death-cum-retirement gratuity could not be deducted from the amount of compensation instead if should be added to the amount of compensation. In the instant case, there is no evidence on record as to whether any amount of death-cum-retirement gratuity was paid to the claimants. In the circumstances, either any deduction nor any addition to the amount of compensation could be made

14. Smt. Krishna Sahgal widow of the deceased deposed that she was paid pension for 7 months at the rate of Rs. 120/- P.M and thereafter she was paid at the rate of Rs. 60/- P.M The learned counsel for the Corporation urged that the amount of pension paid to the widow should be deducted from the amount of compensation assessed by us. In the first place, there is no material before us as to what are the terms and conditions of the pension and it is not clear as to for what period the widow would be entitled to draw the amount of penson. In our opinion, the amount of pension paid to the widow cannot be deducted from the compensation determined by us but even assuming that the deduction has to be made there, are good reasons in the instant case not to make any deduction on this ground. If the deceased had remained alive and completed his full service, he would have earned pension at higher rate and would have drawn pension at the rate of 50 per cent of his salary for a period of 12 years after his retirement. Since the longevity has improved and there was longevity in the family of the deceased the deceased would have remained alive till the age of 70 years and as such even after the retirement he would have drawn pension to the extent of ½ of his salary for at least 12 years. Thus he would receive Rs. 48,960/- as pension, a major portion of which would have been spent on the maintenance of his wife and children. The untimely death of the deceased has occasioned loss in pension and the claimants have suffered loss on that account also. In view of these circumstances we are not inclined to make any deduction on account of pensionary benefits which may have accrued to the widow.

15. Learned counsel for the claimants urged that the Tribunal committed error in not awarding interest to the claimants. Sec. 110-CC provides for payment of interest to the claimants. The claimants have been put to pecuniary loss since 1969 and it would be fair to award interest to them at the rate of Rs. 6/- per cent per annum from the date of filing the claim petition.

16. In view of the above discussion we hold that the claimants are entitled to a sum of Rs. 62,000/- as compensation, together with interest at the rate of Rs. 6/- per cent per annum. Out of the amount so awarded, a sum of Rs. 26,000/- shall be paid to Smt. Krishna Sahgal widow of the deceased and Rs. 18,000/- each to the two children claimants Nos. 2 and 3.

17. In the result, the Corporation's Appeal No. 7 of 77 fails and is, accordingly dismissed with costs.

18. The Cross-Appeal No. 375 of 77 filed by Smt. Krishna Sahgal and others is partly allowed. Parties shall bear their own costs of the cross appeal.

19. Order accordingly.