Punjab-Haryana High Court
Ram Kishore Gupta And Ors. vs Munshi Ram And Ors. on 26 July, 2006
Equivalent citations: II(2007)ACC525, 2007ACJ2290, (2006)144PLR319
JUDGMENT M.M. Kumar, J.
1. This appeal filed by the claimant-appellants under Section 110-D of the Motor Vehicles Act 1939 (for brevity 'the Act') prays for enhancement of compensation awarded by the Motor Accident Claims Tribunal Ambala (for brevity 'the Tribunal') vide its award dated 6.3.1987. The claimants in appeal are father of the deceased unmarried major and minor sisters minor brother step-mother and a step brother.
2. It is conceded position that Deepak Kumar Gupta who was 17 years of age was studying in the 1st year B.E. (Mechanical) at the Punjab Engineering College Chandigarh. It is also accepted and proved before the Tribunal that his death was caused on 26.8.1986 at about 4.30 p.m. at Patiala Chowk House Ambala City on account of rash and negligent driving of bus No.HRV-2762 by the driver Munshi Ram (respondent No. 1). The deceased Deepak Kumar Gupta was knocked down who was coming on a cycle. He succumbed to the injuries suffered by him in the accident in Philadelphia Hospital Ambala on 26.8.1986 soon after the accident. The Tribunal has rejected the plea of the respondents imputing contributory negligence to the deceased and theory of stationary bus belonging to Kaithal Depot of the Haryana Roadways has been discarded in the following words:
8. ...If any bus of Kaithal depot was standing there and dropping passengers then the above fact could be proved by producing that bus driver or the conductor who were members of the crew of that bus. Secondly there was no mention of the other bus standing there in the FIR Ex.AI. Thirdly the respondent No. 1 appearing as RW 1 admitted that they were not to drop any passenger there in that chowk. Fourthly the accident was attributed to tilting of the cycle with all of a sudden alighting from it of Pardip Aggarwal who was sitting on the carrier of the cycle. This is a case of hitting the cyclist from behind. There is positive evidence of AW 3 Pardip Aggarwal that seeing the offending bus coming rashly and driven negligently he had jumped side. In that case the bus was just in the proximity and the PW 3 probably sensing that the bus driver would hit the cycle saved himself by jumping aside. The situation of the place of accident was such that from GT Road the turning was towards Ambala City and the speed of the bus was supposed to be very slow but unfortunately it was not. It was required to be further slow if the respondent's story was believed that a Kaithal roadways depot bus was already parked there for the purpose of dropping the passengers. The law was clear that the driver of a vehicle was required to keep its speed within control and to avoid dashing against a person not stepping of the road as held in State of Kerala v. Rama Swamy lyyer 1960 Kerala Law Times 769. Moreover the alighting from the cycle of Pardip Aggarwal would have enabled the deceased Deepak Gupta to have better control of the cycle. It also cannot be believed that the surprise alighting from the cycle could give a jerk or tilt it as the cycle is such in structure that a person witting on the carrier without imbalancing the cyclist can alight from it. Therefore the respondent's defence is not appealing to logic that on account of the sudden alight of Pardip Aggarwal from the carrier of the cycle had jolted the cycle and then the cyclist had fallen in front of the bus.
3. The Tribunal has further held that the father of the deceased alone was entitled to make a claim because others could not be regarded as the LRs of the deceased Deepak Kumar Gupta. For the aforementioned purpose the Tribunal has placed reliance on a Full Bench judgment of this Court in the case of Parkash Chand and Ors. v. Pal Singh and Ors. (1985-1) 87 P.L.R. 538.
4. On the quantum of compensation the Tribunal has placed reliance on a judgment of Hon'ble the Supreme Court in the case of C.K. Subramania Iyer and Ors. v. T. Kunhi Kuttan Nair and Ors. A.I.R. 1970 S.C. 376 and observed as under:
15. If the present case is seen in perspective of the observations of the Hon'ble Supreme Court then Ram Kishore Gupta father of the deceased being himself an Engineer and Deepak Gupta also student of Engineering College and his testimonials Ex.A.5 to Ex.A.8 showed his brilliant academic career and moreover it was a matter of common knowledge that once a student was admitted to professional college then from there he could come out after getting professional degree there is no doubt that Deepak Gupta was to become an Engineer and coming out of the College after four years he could draw the minimum salary of Rs. 2500/- as that was reasonable probability for pecuniary advantage.
16. Then seeing the possibility that Deepak Gupta was to marry and to maintain his wife and children it cannot be disputed that dependency of his father Ram Kishore Gupta on him could be less than Rs. 400/- pm.
17. Then there was question of multiplier. If the service of Ram Kishore Gupta that he is working as Junior Engineer in the Haryana Housing Board is taken into consideration and his present age which is 46 years that he is to serve for 12 years more even then after age of 58 years till the age of 70 years which is average age the dependency of Ram Kishore Gupta on Deepak Gupta could be for a period of 12 years and the total amount even at the rate of Rs. 400/- per mensem by applying the multiplier of 12 could be of Rs. 57800/-. Therefore I am of the considered view that Ram Kishore is not entitled to compensation less than the above said amount by applying any yard stick of calculation and hence this issue is decided accordingly in favour of the claimant Ram Kishore Gupta.
5. Mr. Ashwani Arora learned Counsel for the petitioner has argued that claimant-appellant No. 1 Ram Kishore Gupta who is the father cannot alone be considered as LR of his deceased son. In support of his submission learned Counsel has placed reliance on a judgment of Hon'ble the Supreme Court in Gujarat State v. Ramanbhai A.I.R. 1987 S.C. 1691 and argued the brothers and sisters of the deceased could maintain their claims if they are his legal representatives. Learned Counsel has further argued that a very meagre sum of Rs. 400/- per month as dependency has been assessed whereas it is proved on record that after qualifying the B.E. Degree Examination the deceased would have been employed as Sub Divisional Engineer with a minimum salary of Rs. 2500/-per month. Learned Counsel has also drawn my attention to the statement of AW 2 Ram Kishore Gupta father of the deceased who has stated that the deceased used to earn Rs. 400-500 per month from tuition work. He has maintained that taking into account the fact that the sisters and brothers of the deceased would be his legal heir and would also be dependent upon him then he would have spent at least 50% of the salary even if he was to marry and to have children. In support of his submission learned Counsel has placed reliance on two Division Bench judgments of this Court in the cases of Dr. B.D. Gupta v. Smt. R. Rani Manoranjitham 2000(2) R.C.R. (Civil) 527 and United India Insurance Company Limited v. Raj Rani and Ors. 1996 (3) All Instant Judgments 211. He has also pointed out that where the claimant father was earning-hand even then compensation has been awarded by Hon'ble the Supreme Court like in the case of Municipal Corporation of Greater Bombay v. Shri Laxman Iyer and Anr. . He has prayed that interest at the rate of 12% as awarded by the Tribunal deserve to be maintained in view of the law laid down by Hon'ble the Supreme court in Cheliammal and Ors. v. Kailasam and Anr. (2006) 11 A.C.J. 854.
6. Mr. Harish Rathee learned Stated counsel appearing for the State of Haryana has submitted that the deceased was barely 17 years of age and it is only speculative whether he would have got employment after qualifying the degree of B.E. Mechanical. He has pointed out the tends of unemployment during the period of 1989-90 onwards because it is in 1989-90 that the deceased would have qualified to become eligible for appointment on the post of Sub Divisional Engineer. Learned Counsel has maintained that the award made by the Tribunal does not suffer from any illegality and deserve to be upheld as an amount of Rs. 57800/- has been correctly awarded by working out the dependency @ Rs. 400/- in favour of Ram Kishore Gupta father of the deceased.
7. Having heard learned Counsel for the parties and after perusing the record I am of the considered view that this appeal deserves to be allowed. The Tribunal has not taken correct view that father of the deceased alone was the legal representative of the deceased as against his sisters and brothers. In para 32 of the Full Bench judgment in Parkash Chand's case (supra) this Court has categorically held that the provisions of the Fatal Accidents Act 1855 would continue to govern the compensation claimed after the enactment of Section 110A and 110F of the Act. Placing reliance on a judgment of Madhya Pradesh High Court in the case of Shanker Rao v. Babulal Fouzdar the Full Bench has observed as under:
32. In Shanker Rao v. Babulal Fouzdar the Bench has held that despite the enactment of Sections 110-A to 110-F in the Motor Vehicles Act the provisions of the Fatal Accidents Act would continue to govern the compensation claim applications. The Bench as a result of the aforesaid formulation held that the brother of the deceased was entitled to claim compensation in regard to loss to the estate of the deceased. With respect we agree with the view that in a case that was before the said bench brother as legal representative was entitled to lay a claim in terms of Section 2 of the Fatal Accidents Act read with Section 110-A of the Motor Vehicles Act to the loss to the estate of the deceased but with respect we do not agree with the view that Sections 110-A to 110-F of the Motor Vehicles Act are merely adjectival and procedural in nature and were enacted only to provide to cheap and quick remedy to the claimants who were earlier required to file a civil suit paying ad valorum Court fees in the Court of general jurisdiction and that any question pertaining to a substantive law had to be determined in accordance with the general law of tort and the Fatal Accidents Act.
8. I am further of the view that the reliance of the learned Counsel for the appellants on the judgment of Hon'ble the Supreme Court in Ramanbai's case (supra) is also meritorious on the issue of entitlement of legal representatives to claim compensation. The views of Hon'ble the Supreme Court are discernible from para 11 and 13 of the judgment which reads as under:
11. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have remedy for realisation of compensation and that is provided by Section 110-A to 110-F of the Act. These provisions are in consonance with the provisions of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with well-known principles of law. We should remember that in an Indian family brothers sisters and brothers children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is killed on account of a motor vehicle accident there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Magjibhai Khimji Vira v. Chaturbhai Taljabhai (supra) and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased.
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13. Before concluding we may add that although the Act was extensively modified after the receipt of the report of the Law Commission Parliament did not choose to amend Section 110-A of the Act by defining the expression 'legal representatives' in relation to claims under Chapter VIII of the Act as 'the spouse parent and children of the deceased' as recommended by the Law Commission. The Law Commission had observed in its 85th report that it would be appropriate to assign to the expression 'legal representative' the same meaning as had been given to the expression 'representative' for the purposes of the Fatal Accidents Act 1855 and that would effectively carry out the purpose of social justice underlying Chapter VIII of the Act to which the Fatal Accidents Act 1855 was the nearest approximation. This recommendation was made after referring to the divergent views expressed by the various High Courts on the meaning of the expression 'legal representatives' in Section 110-A of the Act. The fact that Parliament declined to take any action on the recommendation of the Law Commission of India suggests that Parliament intended that the expression 'legal representative' in Section 110-A of the Act should be given a wider meaning and it should not be confined to the spouse parent and children of the deceased.
(Emphasis as in original).
9. A perusal of the aforementioned principles as laid down by Hon'ble the Supreme Court as well as by the Full Bench of this Court would make it manifest that brothers and sisters are also entitled to claim compensation as legal representatives of their deceased brother. Therefore the view of the Tribunal that father alone was entitled to claim compensation is hereby set aside.
10. The other issue pertains to the quantum of compensation. The Tribunal has assessed the dependency of the father of the deceased at Rs. 400- per month by presuming that the deceased was likely to draw a salary of Rs. 2500/- as is evident from the perusal of the para Nos. 15 16 and 17 which have already been reproduced above. However once it is realised that the number of dependents is increased to four (excluding step mother and step brother) then the amount of dependency could easily go up. It is appropriate to mention that the age of Ms. Meenakshi Gupta and Mr. Pankaj Gupta sister and brother of the deceased as per the statement of Shri Ram Kishore Gupta claimant-appellant No. 1 was 19 years and 15 years respectively whereas Ms. Deepika Gupta claimant-appellant No. 4 was II years old at the time of accident. Ms. Meenakshi Gupta would have remained dependent on her brother for six years till her marriage which could have take place at the age of 25 years. Likewise Mr. Pankaj Gupta who was 15 years might have continued to be dependent on his brother for about 10 years i.e. up to the age of 25 years and Ms. Deepika Gupta would have remained dependent on him for 14 years i.e. up to the age of 25 years till her marriage. The average of three would come to 9 years (6+10+11). By taking into consideration the fact that all the brothers and sisters used to live in a joint family the deceased Deepak Kumar Gupta would have contributed some money towards marriage of his brother and two sisters and therefore the dependency to the extent of Rs. 100/- each per month could be easily added. By adding Rs. 300/- to the amount of dependency of Rs. 400/- the total dependency would come to Rs. 700/- per month and Rs. 8400/- per year. If a multiplier of 12 is applied then the total amount comes to Rs. 100800/- which is rounded off to Rs. 101000/-. In view of the law laid down by Hon'ble The Supreme Court in the case of Cheliammal and others (supra) the interest @ 12% per annum as awarded by the Tribunal deserves to be upheld. Accordingly the impugned award dated 6.3.1987 is modified and the appeal is allowed in the above terms.
11. In view of above the impugned award dated 6.3.1987 is enhanced to Rs. 101000/- along with interest at the rate of 12% p.a. The interest shall be payable from the date of filing the claim petition which according to the record was filed on 13.11.1986 till the date of payment.