Punjab-Haryana High Court
(O&M;)Smt. Saroj Mohan And Another vs State Of Punjab Through Secretary ... on 6 May, 2015
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
FAO No.1790 of 1997 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of decision: 06.05.2014
1) FAO No.1790 of 1997
Smt. Saroj Mohan and another
... Appellants
Versus
State of Punjab and others ... Respondents
2) FAO No.1791 of 1997
Smt. Maya Devi and others
... Appellants
Versus
State of Punjab and others ... Respondents
3) FAO No2511 of 1997
State of Punjab and others
... Appellants
Versus
Smt. Maya Devi and others ... Respondents
4) FAO No2512 of 1997
State of Punjab and others
... Appellants
Versus
Smt. Saroj Mohan and others ... Respondents
5) FAO No2513 of 1997
State of Punjab and others
... Appellants
Versus
Dr. Surinder Mohan and others ... Respondents
AMIT RANA
2015.04.24 12:14
I attest to the accuracy and
authenticity of this document
Chandigarh
FAO No.1790 of 1997 2
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Bhupesh Dogra, Advocate
for the appellants.
Mr. L. C. Aggarwal, Assistant Advocate General, Punjab
AMOL RATTAN SINGH, J.
1. These five appeals arise out of the Award of the learned Motor Accident Claims Tribunal, Ambala, dated 02.06.1997, from three claim petitions filed before it. By the said Award, the two appellants in FAO No.1790 of 1997 were awarded a sum of Rs.9,60,000/- as compensation on the death of Dr.Rakesh Mohan, in a motor vehicles accident, on 20.08.1996.
The four appellants in FAO No.1791 of 1997 were awarded a sum of Rs.4,80,000/- as compensation on the death of Hukam Chand, in the same accident.
The accident took place between a Fiat Car driven by the late Dr. Rakesh Mohan (in which the late Hukam Chand was his co-passenger), and a Punjab Roadways Bus No.PB-12/A-8212, driven by respondent no.3.
By the said award, a sum of Rs.50,000/- was also awarded, for damage to the car, to Dr. Surinder Mohan (not an appellant before this court but a claim petitioner in a 3rd claim petition filed before the learned MACT), who was the owner of the said Fiat Car bearing registration No.HRA-15, which was being driven by his son, the said Dr.Rakesh Mohan (deceased).
Consequently, FAO Nos.1790 and 1791 of 1997 have been filed by the claimants before the Tribunal, seeking enhancement of AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 3 compensation and the other three appeals, i.e. FAO Nos.2511, 2512 and 2513 of 1997, have been filed by the State of Punjab and Punjab Roadways, seeking that the Award of the Tribunal, in all its aspects, be set aside and the compensation awarded to all the claimants be reversed.
It is also appropriate to notice here that in the appeals filed by the State, which were accompanied by applications seeking stay of payment of the compensation awarded by the Tribunal, an order was passed by a co-ordinate Bench on 30.03.1998, after all the five appeals had been admitted to regular hearing, staying payment of compensation beyond Rs.2 lacs (with proportionate interest) to the appellants of FAO No.1791 of 1997 and also staying payment of compensation beyond Rs.4,80,000/- (with proportionate interest) to the appellants of FAO No.1790 of 1997.
The stay application in the 3rd appeal of the State, i.e. FAO No.2513 of 1997 was dismissed. This appeal is directed against the compensation of Rs.50,000/- awarded to Dr. Surinder Mohan for the damage caused to his car.
2. The State of Punjab has, first, challenged the finding on the issue of negligence, by which respondent no.3 in FAO Nos.1790 and 1791 of 1997 (who has been arrayed as a proforma respondent in the State appeals), was found to have been guilty of negligent driving resulting in the accident between bus being driven by him, and the Fiat car.
3. As per the claim set up in the claim petitions, Dr. Rakesh Mohan was driving the said car No.HRA-15 on the left side of the road, while travelling from the side of Bhawanigarh towards Sangrur. At about 9:30 AM, when the car reached near village Faggu Warekachian, about 200 feet from the turning, the bus driven by respondent no.3 came from the AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 4 opposite side on to the wrong side of the road and hit the car and dragged it for about 100 feet from the place of accident. Though not so recorded in the Award of the Tribunal, a perusal of the claim petitions shows that the occupants of the car became unconscious but both died on the way to Civil Hospital, Sangrur, where they were being taken by the police.
Upon evidence being led, the case of the appellants-claim petitioners was supported by one Atul Ahuja, who appeared as PW1 and stated that he was travelling in the bus when the accident took place, having boarded it from from Patiala to go to Sunam. He further stated that when the bus reached near Bhawanigarh at about 9:30 AM, a Fiat Car came from the opposite direction and because the bus was being driven at a very high speed, in a reckless manner, it hit the on coming car and dragged it for 60- 70 yards towards Sunam.
As opposed to the above version, respondent no.3, Gajjan Singh, who was driving the bus, stated that he was proceeding from Chandigarh to Sirsa on 20.08.1996 and when he reached near Bhawanigarh, on the Patiala-Sunam road, then on the road from Bhawanigarh to Sunam, the car in question came from the Sangrur side at a high speed but could not take the turn and hit on the left side of his bus. He thus deposed before the Tribunal, that the accident took place due to the fact that the car driver was at a high speed.
4. The Government Pleader appearing for the owners of the bus, i.e. State of Punjab and Punjab Roadways, had argued before the Tribunal that the version given by Gajjan Singh, driver of the bus, was actually the correct version because the "police case against the driver-respondent was cancelled" but that was later reviewed.
AMIT RANA2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 5
The argument of the Government Pleader was based on the statement purportedly given by the father of the driver of the car, i.e. Dr. Surinder Mohan, father of deceased Dr. Rakesh Mohan, to the effect that his son was habitual of driving at a fast speed.
5. The learned Tribunal having noticed all the above, gave its decision based on the version given by the passenger of the bus, Atul Ahuja and further observed that the responsibility was being shifted on to the car driver, by respondent Gajjan Singh, only to escape his own responsibility in causing the accident. The Tribunal also deprecated the fact that the police prepared a manoeuvred statement of the father of deceased. (Dr. Surinder Mohan), by which the claim of the families of whose lives were lost were defeated.
The Tribunal further based its reasoning on the finding of negligence against respondent no.3, on the ground that Dr. Surinder Mohan was not present at the spot and his statement, therefore, seemed to have been manoeuvred by the police. Thus, believing the statement of an eye witness travelling in the bus, the learned Tribunal came to a conclusion that the accident was caused by the negligence of respondent no.3.
6. Mr. Aggarwal, learned Assistant Advocate General, Punjab, submitted that in view of the fact that the father of the deceased-driver of the car, had himself stated that his son was habituated to fast driving, it fortified the statement of the bus driver that it was actually the car which was coming at a high speed and hit the bus from the side, being unable negotiate the turn at such speed.
7. Mr. Bhupesh Dogra, learned counsel appearing for the appellants-claimants (respondents in the State appeals), on the other hand, AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 6 submitted that the police having reviewed the case and having lodged an FIR against respondent no.3, clubbed with the fact that an eye witness who was unrelated to the deceased, testified to the negligence of the bus driver, obviously shows that the conclusion drawn by the learned Tribunal is correct.
He, therefore, submitted that the State appeals deserve to be dismissed.
8. Having considered the rival arguments and having seen the record, I am not in agreement with the arguments addressed by the learned Assistant Advocate General, Punjab, in view of the fact that other than an independent witness having stated that the bus in which he was travelling was being driven by its driver rashly and negligently and at a high speed, thereby causing the accident, it is also to be noted that the car was admittedly dragged by the bus, after the impact for about 60-70 meters. Obviously, if the bus had been at a slow speed and the car at a high speed, the vehicles would have stopped at the spot with the impact and the car would not have been dragged for such a distance by the bus. The possibility of the car also being at a high speed naturally cannot be ruled out, but such is not the version given by the eye witness. Hence, dragging of the car by the bus, in any case, shows that the bus was a very high speed.
Therefore, in view of the above, I find no reason to interfere with the finding of the Tribunal, holding respondent no.2 negligent in driving his bus and thereby causing the accident in which Dr. Rakesh Mohan and Hukam Chand unfortunately lost their lives.
9. Having held as above, it is now to be seen as to whether the compensation awarded by the learned Tribunal to the families of both the AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 7 deceased is adequate or not.
FAO No.1790 of 1997
10. The two appellants in this appeal are the widow and then minor daughter of Dr. Rakesh Mohan, who is stated to have been a Homeopath practising at Ambla, whose monthly income is stated to have been Rs.5000/- , though while testifying as PW2, appellant no.1, Smt. Saroj Mohan stated that he was earning Rs.10,000/- per month, of which he paid Rs.5000/- to his family.
Compensation of Rs. 25,00,000/- has been sought in the appeal. No specific proof seems to have been led with regard to the income of the deceased before the Tribunal; however finding that Dr. Rakesh Mohan was a 3rd generation of homeopathic doctor, with his father and grand-father both having been renowned homeopathic doctors at Ambala, the Tribunal held that his income must have been at least about Rs.5000/- per month.
Of the said amount, Rs.1000/- was held deductible towards personal living expenses of the deceased and the dependency was consequently assessed as Rs.4000/- per month or Rs.48000/- per year. To this sum of Rs.48000/-, a multiplier of 20 was applied, though without discussing the age of the deceased at all.
Thus, first that aspect has to be looked into.
11. As per the post mortem report available on the record of the Tribunal, Dr. Rakesh Mohan is shown to be 33 years of age at the time of his death. Considering that he had one minor daughter only, and in the absence of any other evidence, this Court can only accept the age as was AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 8 given on the post mortem report.
Obviously, therefore, the multiplier of 20 was in excess of what should have been applied.
12. However, before the multiplier is to be applied, the prospects of future income of deceased Dr. Rakesh Mohan would have also to be added to his annual income, as per the ratio of Rajesh and others vs. Rajbir Singh and others 2013(9) SCC 54 and Vimal Kanwar and others vs. Kishore Dan and others (2013)(7) SCC 476.
As per these judgments, in case a deceased was below 40 years of age, 50% of his income is to be added as prospects of future income, to the existing income. Thus calculated, his annual income would come to Rs.72,000/- per annum ( Rs. 48000 + 24000/-).
This amount is to be multiplied by a multiplier of 15 as per the ratio of the judgment in Sarla Verma and others vs. Delhi Transport Corporation and Anr.2009(6) SCC 121.
Thus, applying a multiplier of 15, the annual income of the deceased, after adding the loss of future prospects of increase in income, would come to Rs.10,80,000/-.
13. The question then would be as to what are the personal expenses to be deducted from the said income assessed, that the deceased would have spent upon himself.
Though, as per the ratio of the judgments in Santosh Devi vs. National Insurance Company Ltd. (2012 (6) SCC 421), and New Insurance Company Ltd. vs. Gopali and others (2012 (30 RCR (Civil)
818), where the deceased had an income between Rs.3000/- to Rs.5000/-, only 1/10th is to be deducted as personal living expenses, the same would AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 9 not apply to the present case as, in these very judgments, it was held that the said deduction of 1/10th of the total income would only be applicable where the deceased belonged to a poor family, however, in the present case, the deceased belonged to a family of Homeopathic doctors and the deceased himself was also practising as a Homeopath. Hence, the correct deduction to be applied would be as is laid down in Sarla Vermas' case (supra). As per the said case, where the number of dependents is 2 to 3, 1/3 rd of the income of the deceased is to be deducted towards personal living expenses. Hence, applying the same, the final dependent income of the appellants works out to be Rs. 7,20,000/- ( Rs. 10,80,000 - 3,60,000/-).
14. Adding to the above, appellant no.1 would also be entitled to Rs.1 lac for loss of consortium as per the ratio of the judgments in Rajesh and others Vs. Rajbir Singh and others and Vimal Kanwars' cases (supra).
As regards appellant no.2, who was a minor at the time of accident, in Rajesh and others Vs. Rajbir Singh and others, a child was held entitled to Rs.1 lac and in Vimal Kanwars' case, a daughter was held entitled to Rs.2 lacs as compensation for loss of love and affection, care and guidance of her father. Hence, considering that appellant no.2 was a minor daughter, in my opinion, Rs.2 lacs would be appropriate, as even in Vimal Kanwars' case the accident was of the year 1996 itself like the present case.
15. To the above amounts, a sum of Rs.25,000/- would also be payable towards funeral expenses as per the ratio of Rajesh and others Vs. Rajbir Singh and others (supra) as was also awarded in Vimal Kanwars' case.
16. Hence, the total amount of compensation payable to the appellants in this appeal is Rs.10,45,000/-. The same would be payable to AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 10 them in equal share alongwith interest @ 7% per annum on the enhanced amount, running from the date of filing of the claim petition till the actual realization of the amount. Naturally, all amounts which have been already been released to the appellants, would be deducted and the remainder, with the interest thereupon, would be paid equally to Appellants no.1 and 2, except that appellant no.2 would be entitled to Rs.1 lac more than appellant no.1, as she (appellant no.2) has been awarded Rs.2 lacs as compensation for loss of love and affection, care and guidance of her father, whereas appellant no.1 has been awarded Rs.1 lac for loss of consortium. However, the funeral expenses of Rs. 25,000/- shall be paid to appellant no. 1.
17. The amounts to be paid to each appellant, alongwith interest thereupon, would be initially deposited in fixed deposits by respondents no.1 and 2 at the first instance, in a nationalized bank drawing the maximum interest. Thereafter, if respondents no.1 and 2 find it appropriate, and if permitted by their rules and procedure, they may seek to realise an appropriate sum from respondent no.3, obviously after following due procedure.
The appeal is, thus, partly allowed, in the above terms, with no order as to costs.
FAO No.1791 of 1997
18. There are four appellants in this appeal, i.e. the widow, two (then minor) sons and the mother of deceased Hukam Chand.
In this case, the deceased, Hukam Chand, was stated to have been a Compounder to the father of deceased Dr. Rakesh Mohan and, as per the claim set up, was earning Rs.2950/- per month by way of salary, as also by knitting cots etc. AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 11 He is stated to have been 37 years of age at the time of his death.
Compensation of Rs. 15,00,000/- has been sought in this case. In support of the fact that her husband was getting a salary of Rs.1450/-, appellant no.1 appeared and testified to the same and further stated that he was earning Rs.1500/- per month from knitting cots. In all, during her deposition, appellant no.1 stated that her husband, deceased Hukam Chand was earning Rs.3000/- per month ( as opposed to Rs. 2950/- claimed in the claim petition.
19. Other than appellant no.1, one Manohar Singh stepped into the witness box as PW3 and testified that he bought cots knitted by Hukam Chand, who used to take Rs.40/- per day for the same and used to knit at least two cots everyday. These statements were accepted by the Tribunal and Hukam Chands' monthly income was assessed at Rs.3000/- out of which Rs.1000/- was taken to be his personal expenses and the dependent income was, therefore, worked out to Rs.2000/- per month and Rs.24,000/- per annum. In this case also, a multiplier of 20 was applied and the total compensation was assessed as Rs.4,80,000/-.
Though learned counsel for the appellants, supported the finding of the Tribunal, on the income of the deceased, learned Assistant Advocate General, on the other hand, submitted that the finding of the Tribunal was purely on conjecture as neither was Dr. Surinder Mohan, with whom Hukam Chand is stated to have been working as a Compounder, examined as a witness, nor was any cogent proof produced to show that he was earning anything from the knitting etc. of cots.
20. Having heard learned counsel for the parties and having gone AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 12 through the records, though it does seem highly unjust to reduce the income of a lesser qualified man who also belonged obviously to a not so affluent family as his employer, factually, it cannot be denied that no firm proof of income of Hukam Chand was produced the Tribunal. However, as no firm proof has been produced in the case of Dr. Rakesh Mohan either, other than the fact that he was actually a Homeopathic doctor practising with his father and therefore, would have been earning at least Rs.5000/- per month, I would assess the monthly income of the deceased Hukam Chand, from all sources, to be Rs.2000/-, accepting that he was earning Rs.1450//-, as a Compounder and the rest from knitting cots, on the basis of the testimony of PW3. However, considering that he was working as a Compounder, it is difficult to accept that he was knitting two cots in a day after his daily duties. Hence, the sum of Rs.2000/- per month, seems to be reasonable, taking it that he may have been earning about Rs. 450/- to Rs. 500/- from the selling of cots.
In this case, since Hukam Chand obviously was not belonging to an affluent family, applying the ratio of the judgements in Santosh Devis' and Gopali and others' cases (supra), only a 1/10th cut in income is being applied as the personal living expenses of the deceased, thereby making the monthly dependent income of the appellants to be Rs.1800/- and the annual income to be Rs.21,600/-.
21. To the above sum of Rs.21,600/- prospects of future income of the deceased would be added in the same manner as in the case of Dr.Rakesh Mohan, i.e. the deceased being below 40 years of age, 50% of the said amount is to be added to arrive at a figure from which the dependent income of the appellants is to be calculated. Hence, a sum of Rs. AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 13 10,800/- is to be added to Rs. 21,600/-, arriving at figure of Rs.32,400/- per annum.
22. The Tribunal accepted the age of Hukam Chand to be 37 years but still applied a multiplier of 20. As per the photocopy of the post mortem report of Hukam Chand, available on the record of the Tribunal, his age was 36 years. However, that would make no difference to the application of the multiplier in this case because, as per the ratio of Sarla Vermas' case, a multiplier of 15 is to be applied in the case of a deceased who unfortunately died in a motor vehicle accident between the age of 36 to 40 years. Thus the sum to be paid to the appellants, by way of loss of income, is Rs. 4,86,000/-.
23. To this is to be added, the funeral expenses of Rs.25,000/-, as per the ratio of judgments already referred to above, while deciding FAO No.1790 of 1997.
24. Similarly, a sum of Rs.1 lac is awardable to appellant no.1 for loss of consortium and similarly, a sum of Rs.1 lac each is to be awarded to the two minor sons of the deceased, i.e. appellants no.2 and 3.
It is to be noted that they have been awarded a sum of Rs. 1 lac each in view of the ratio of judgment of Rajesh and others vs. Rajbir Singh and others (Supra), as opposed to the Rs.2 lacs awarded to the second appellant in FAO No.1790 of 1997, as she is a (then) minor daughter and, therefore, the ratio of judgment in Vimal Kanwars' case (supra) would be applicable in her case.
The 4th appellant, i.e. the mother of the deceased Hukam Chand would also be entitled to get a compensation of Rs.1 lac on account of the loss of love and affection of her son, again on the touchstone of the ratio of AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 14 the law laid down in Vimal Kanwars' case.
25. Hence, the total compensation payable to the appellants is Rs.9,11,000/- (Rs. 4,86,000/- + Rs. 1 lakh, + 1 Lakh + 1 Lakh + 1 Lakh + 25,000/-) which would carry an interest @ 7% per annum on the enhanced amount of compensation.
26. Since obviously, appellants no.2 and 3 would now be past the age of majority, about 18 years down, the distribution of the above awarded amount would be as follows:-
Of the Rs.4,86,000/- as assessed under the head of loss of income, Rs.50,000/- would be paid to appellant no.4 and out of the remaining Rs.4,36,000/-, Rs.2 lacs would be paid to appellant no.1 and remaining Rs.2,36,000/- would be equally divided between appellants no.2 and 3. Rs. 25,000/- as funeral expenses would be paid to appellant No. 1. The rest of the amount of compensation (Rs. 4 lakhs), would be equally divided between each of the appellants, having been awarded for loss of consortium/love and affection, to each of them in equal amount (Rs.1 lakh).
All the above amounts, would be deposited by respondents no.1 and 2, with interest @ 7% per annum, in the first instance, by way of fixed deposits in the name of each appellant, in a nationalized bank carrying the highest rate of interest, for a period of one year. The same may be recovered from respondent no.3 by respondents no.1 and 2, on the same terms and conditions as already laid down in FAO No.1790 of 1997.
Thus, this appeal is accordingly partly allowed as above, with no order as to costs.
FAO Nos. 2511 and 2512 of 1997
27. For the reasons already given in the connected appeals, i.e. AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 15 FAO nos. 1790 and 1791 of 1997, obviously these appeals cannot survive in view of the findings already recorded, both, on the issue of negligence as also on the compensation now awarded to the claimants before the Tribunal, i.e. all the appellants in FAO Nos.1790 and 1791 of 1997.
Consequently, these appeals filed by the State of Punjab, are dismissed and the interim orders of this Court dated 30.03.1998, restraining the payment to the appellants in both these appeals beyond Rs. 2 Lakh in FAO No. 2511 of 1997 and Rs. 4,80,000/- in FAO No. 2512 of 1997 are hereby vacated.
FAO No.2513 of 1997
28. This appeal has been filed by the State of Punjab and the Punjab Roadways against the Award of the Tribunal, awarding Rs.50,000/- as compensation to Dr. Surinder Mohan, for the damage caused to his car, HRA-15.
The said car was stated to be a Fiat of 1968 (model 1968), which is stated to have been extensively damaged and, at the time of pronouncement of the Award, is stated to have been still lying with the Police Station at Bhawanigarh, it have not having been taken on any "superdari".
A claim of Rs.1 lac was made for the damage to the car as also for loss of usage of the car, but the Tribunal awarded Rs.40,000/- for repair of the car and Rs.10,000/- for loss of service/usage of the car.
Though Rs.50,000/- is probably excessive compensation, considering that the car was 28 years old on the date of accident, however, since 18 years have gone by after the accident, and the payment of compensation in this case not having been stayed by this Court, I see no AMIT RANA 2015.04.24 12:14 I attest to the accuracy and authenticity of this document Chandigarh FAO No.1790 of 1997 16 purpose in reversing the Award and ordering recovery of any sum, in the absence of any estimate given by either side as to the actual amount of damage.
Consequently, this appeal of the State is also dismissed. No order as to costs.
06.05.2014 (AMOL RATTAN SINGH)
dinesh JUDGE
AMIT RANA
2015.04.24 12:14
I attest to the accuracy and
authenticity of this document
Chandigarh