Orissa High Court
Chief Engineer ... vs Bhanumati Mishra And Ors. on 6 January, 1986
Equivalent citations: I(1986)ACC457
JUDGMENT S.C. Mohapatra, J.
1. This is an appeal under Section 110-D of the Motor Vehicles Act, 1939 tin short 'the Act'). The registered owner of the motor vehicle ORK 2494, a jeep and its driver are the appellants. Claimants have also preferred cross-objection for enhancement of the compensation awarded.
2. Laxmidhar Misra, a Sub-Assistant Engineer of the State Government breathed his last on 4-9-1975 on account of the accident of the motor vehicle ORK 2494 belonging to the State Government while travelling from Talcher to Bhubaneswar on duty. His date of birth being 20-9-1942, he would have reached the age of superannuation on 20.9.2000 and would have been thus relieved on retirement on 30.9.2000. His widow, aged 31 years and three minor daughters aged about 12, 11 and 1 year and minor son aged 5 years claimed two lakhs rupees under Section 110-A of the Act which has been slashed down to Rs. 67,196/- by the Tribunal.
3. There is no dispute that while the vehicle was moving, the front wheels bubbled. The driver applied the brake. The vehicle was dragged to the right side and capsized. Laxmidhar succumbed to the bleeding injury on the spot, leaving twenty-five years of active service career and five destitute dependents behind.
4. The claim application having been preferred on 25-9-1976, one year after, the non-maintainability of the same was one of the grounds before the Tribunal. The objection was not entertained on the ground that the delay had already been condoned. It was wrong in law. When delay is condoned ex pane before notice to the opposite parties, the question can be reagitated by the opposite parties, after appearance.--See Hemalata Devi v. Sk. Lokman and Ors. 39 (1973) CLT 539 and Belpahar Refractories Limited v. State of Orissa (1971) 28 STC 720. This question, however, would be of no assistance to the appellants since no new facts were brought by them to contradict the facts based on which delay was condoned by the Tribunal ex parte. Moreover, the question of delay in an application under Section 110-A of the Act is to be considered liberally. It will be more liberal than the standard of judging sufficient cause for condoning delay under Section 5 of the Limitation Act.-- See Hemalata Devi v. Sk. Lokman and Ors. (supra) and Brahmananda Sahu and Anr. v. Halla Khanda and Anr. 51(1981) CLT 379. The appellants should not have raised the plea to defeat the claim of the helpless claimants who have lost their bread-earner. Supreme Court could not appreciate such a plea by a public body like Port Trust of Bombay. It observed in the decision reported in The Trustees of Port of Bombay v. The Premier Automobiles Limited and Anr. .
...Public bodies should resist the temptation to take technical pleas, defeat honest claims by legally permissible put marginally unjust contention, including narrow limitation....
5. It is no doubt true that in order to make a person liable for compensation, it is to be brought home that the injury was the result of his negligence. Admittedly, the jeep having gone off side the road to capaize, the principle of res ipsa loquitor is attracted and negligence is to be presumed. The driver would be directly liable for the negligence and the owner would be vicariously liable. In order to be free from the liability, they are to satisfy the Tribunal that the vehicle was properly maintained and due diligence was exercised in driving the vehicle. The facts in support of the same being within their knowledge, they are to produce materials before the Tribunal at the time of enquiry. Besides, the vehicle being the property of Government, the facts would be available from documents in their custody. No material has, however, been produced by them at the time of enquiry. Even B.N. Lai, an admitted co-occupant who was an employee of the Government was not produced for examination at the time of enquiry to give a visual description of the circumstances leading to the death of Laxmidhar. PW 2 who was also moving in the vehicle stated that in course of the journey that day on an earlier occasion, he had advised the driver to slow down the speed. The Tribunal has elaborately discussed the evidence and has come to the conclusion that the death was due to rash and negligent driving of the vehicle. I confirm the said finding.
6. There is no dispute that the front wheels having bubbled and the driver having applied the brake, the vehicle was dragged to the right and capsized. The evidence of the driver DW 1 was that due to defective oil seal the front wheels bubbled. No material has been produced to show the age of the vehicle or the total distance it has covered with the oil seal said to be defective, the nature of maintenance of the vehicle or the period for which the oil seal claimed to be defective was fixed to the vehicle. It is not enough to establish that the ace dent was due to a mechanical defect. It is further to be established that in spite of proper maintenance of the vehicle, the defect appeared suddenly resulting in the accident which could not have been avoided. On this ground also the negligence can be attributed to the appellants.
7. Negligence is the precondition for the liability for compensating the persons affected thereby. This common law principle of the Law of Torts is also attracted in case of applications under Section 110-A of the Act.--See Oriental Fire and General Insurance Company Limited v. Mrs. Kamal Kamini Das and Ors. 38 (1972) CLT 374. The compensation as provided under Section 110-B is to be just. It should neither be punitive to the person liable nor should it be a source of profit to the persons affected. Some guess work from the available materials can be done. Any finding which has no support whatsoever is arbitrary and the same should be avoided. In such circumstances, arithmetic may be a good servant but would be a bad master.
8. The loss to be compensated is both pecuniary and non-pecuniary. In case of dependents of the victim of the instantaneous death, the pecuniary loss would be the loss of dependency and expenses incurred for the disposal of the dead body. The non-pecuniary loss would be the loss of companionship, mental pain and suffering and the like.
9. The source of deceased Laxmidhar for maintaining the claimants was his monthly salary. The written statement of the Chief Engineer verified by the Secretary of Irrigation and Power Department of the State Government indicates that the claimant was drawing Rs. 610/- as basic pay and Rs. 160.80 paise as dearness allowance. From out of it a sum of Rs. 2.60 paise was being deducted towards income-tax. Thus, the deceased was drawing Rs. 768.30 paise.
10. It can be taken note that the deceased was contributing to the General Provident Fund since Ext. A, his service book indicates that his G.P.F. Account No. is 15159 p.w.(O). The Tribunal has assessed the monthly payment towards the same to be Rs. 49f-. The appellant No. 1 who is in possession of records does not produce the same. The written statement is silent. This finding is, therefore, justified and cannot be disturbed.
11. The Tribunal has held that Rs. 50/- is to be deducted towards house rent. There is no material to indicate that a house was provided to the deceased. It is true that the Tribunal is to determine just compensation. Arbitrariness is antithesis of justness. Accordingly, when the appellant No. 1 is not producing materials in his possession and there is no material to indicate that house rent was being deducted, I am not able to accept the finding of the Tribunal that Rs. 50/- per month is to be deducted towards house rent.
12. Thus, differing from the Tribunal, I hold that the deceased was taking home Rs. 719.30 paise or in round figure Rs. 720/-.
13. After finding the monthly take home salary, the amount spent by the deceased for the maintenance of the claimants is to be determined. No material has been furnished by either side in support of the amount spent by deceased. Precedents in this respect will be of no assistance. A guess work is bound to be made. In the absence of any material, 1 have no reason to differ from the Tribunal that one-third of the take home salary was spent on the deceased and the balance two-thirds were his contribution to the family. It comes to Rs. 480/- per month.
14. The deceased was getting Rs. 610/- in the play scale of Rs. 375-10-395-15-443-EB-20-560-EB-25-660-30-750/-. He had crossed the second efficiency bar. There being no further efficiency bar, the deceased would have reached the maximum of Rs. 750/- within five years. Even though the service rules permit increment on account of stagnation. I am not taking the same into account. The dearness allowances would have been increased also accordingly. In the absence of necessary particulars, it can be roughly put that the claimants would have Rs. 550/- per month towards their maintenance which would be two thirds of the monthly emoluments. As revealed from Ext. A, they received Rs. 300/- per month for seven years as family pension till 39-1982. Thus, the pecuniary loss was Rs. 250/- per month which is annually Rs. 3,000/- and for seven years is Rs. 21,000/-.
15. Ext. A reveals that from 4-9-1982, claimant No, 1 was to get Rs. 150/- as family pension. Thus, from September, 1982, the pecuniary loss is Rs. 400/- per month which is annually Rs. 4,800/- and for eighteen years, it will come to Rs. 86,400/-. Thus, during the period of effective service, the deceased would have contributed to his family consisting of the claimants a sum of one lakh, seven thousand, four hundred rupees.
16. There is no dispute that the service of the deceased was pensionable. He would have been entitled to full pension. It is now being accepted that the normal longevity of a human male in India is seventy years. In the absence of any date and taking into account the favourable pensionary benefits given to its employees by the State Government, a guess work can be made that the deceased would have received a monthly pension of Rs. 500/- which comes to Rs. 72,000/-. By that time normally, the daughters would have married and the son would not have been a dependant. Taking his personal expenses to be half, his contribution to the family would have been Rs 36,000/-.
17. The employees of the State Government are getting reimbursement of expenses for medical treatment and also leave travel concession within Orissa. The claimants are deprived of the same on account of the death of the employee, in the absence of any definite particulars, a nominal amount of Rs. 3,600/- can be fixed on that account.
18. In the absence of any detailed particulars and on the assertion of PW 2, the immediate superior officer that the deceased had the chance of promotion as Executive Engineer, I cannot rule out the prospect of promotion of the deceased. Equally the mental pain and suffering and loss of company with its resultant economic effect cannot altogether be ruled out. In this particular case, a nominal sum of Rs. 3,000/- shall cover such claim.
19. The claimants are, thus, entitled to compensation of one lakh fifty thousand rupees. The provident fund, death-cum-retirement gratuity and group insurance have been made available to the claimants. This Court in some earlier decisions deducted 1/8th of the gross compensation for immediate payability of the insurance policy and other service benefits. 1/6th was being deducted for lump sum payment and taking into account the uncertainties-See Sabita Pati and Ors. v. Rameswar Singh and Ors. 1973 ACJ 319 and Orissa Road Transport Corporation Limited v. Sibananda Patnaik and Ors. 47 (1979) CLT 368. Thus, following the same standard, 7/24ths of the total compensation determined are to be deducted. It comes to Rs. 43,750/-. Deducting the same from the total compensation, the net compensation payable to the claimants comes to one lakh six thousand two hundred fifty rupees.
20. In case the appellant No. 1, who is no less than the Chief Engineer or even the Secretary to the Irrigation and Power Department, which office is held by a fairly senior officer of the Indian Administrative Service cadre who verified the written statement, would have considered the relevant aspects, this amount would have been available as early as 1977. The claimants have been deprived of the amount for about nine years. Any investment would have made the amount double by now. In such circumstance, the simple interest of 10 per cent per annum fixed by the Tribunal is not unjustified. I confirm the rate of interest. Claimants shall be entitled to the same from the date of application till date of payment.
21. In case it would have been a decree of the Civil Court, the amount would have been collected through the Executing Court. A special procedure for recovery has, however, been provided under Section 110-E of the Act. The Tribunal is to initiate the action for recovery on application of the claimants. The claimants in this case are widow, three daughters of whom one has attained majority and a minor son. It is the policy of the State Government in constituting State Legal Aid and Advice Board in fulfilment of the objective of Article 39A of the Constitution to render legal service to the women and minors where they deserve the same. This is one such case where the real purpose of legal aid would be best served when the Board renders assistance to the destitutes for recovery of the amount unless the same is paid within two months from today.
22. In the result, the appeal is allowed in part as regards the deduction towards early payment and the cross-objection is allowed in part -by enhancement of the net compensation. The claimants are entitled to costs in this Court. Hearing fee is assessed at Rs. 250/- (two hundred fifty). Delay in pronouncement of the judgment being due to intervention of Christmas holidays of the Court from 21-12-1985 till today, is regretted.