Punjab-Haryana High Court
Mala Aggarwal vs Jagdish Kumar And Ors. on 8 June, 1991
Equivalent citations: II(1992)ACC659, 1992ACJ123
JUDGMENT K.P. Bhandari, J.
1. This order will dispose of F.A.O. Nos. 715 to 717 of 1988 and F.A.O. No. 937 of 1988. All these F.A.Os. arise out of the three claim applications allowed vide order of the Motor Accidents Claims Tribunal, Hoshiarpur, (hereinafter called 'the Tribunal') dated June 1, 1988. The Tribunal by the said judgment found that the accident had taken place on December 9, 1986. In that accident, Sanjeev Kumar Aggarwal, who was travelling in car No. PAU 284, had died due to the rash and negligent driving of the military truck, which was being driven by Dalip Singh, respondent. The Tribunal also came to the conclusion that Mala Aggarwal, the wife of Sanjeev Kumar Aggarwal, sustained injuries in the accident which had occurred due to the negligence of Dalip Singh, driver. The Tribunal allowed a sum of Rs. 7,500/- to Mala Aggarwal, the claimant-appellant, on account of the injuries suffered by her in the accident. The amount of compensation included the amount spent on her treatment, pain and agony suffered and to be suffered in the plastic surgery undergone by her. The Tribunal allowed the compensation of Rs. 80,000/- to Saraswati Aggarwal, mother of Sanjeev Kumar Aggarwal, deceased and Rs. 50,000/- to the father of the deceased. Rs. 1,42,000/- were awarded as compensation to Mala Aggarwal, the widow of the deceased. This includes Rs. 7,500/- awarded to her regarding injuries she suffered in the accident.
2. Aggrieved against the aforesaid award of the Tribunal, these appeals have been filed claiming enhancement of compensation awarded by the Tribunal. F.A.O. Nos. 715 and 717 of 1988 have been preferred by Mala Aggarwal, the widow of deceased. F.A.O. No. 937 of 1988 has been filed by the father of the deceased and by Saraswati Aggarwal, the mother of the deceased.
3. Mala Aggarwal, the appellant, was married to Sanjeev Kumar Aggarwal, deceased, on December 6, 1986. At the time of the marriage she was of 22 years of age. On December 9, 1986, Sanjeev Kumar Aggarwal, was driving the car himself, when the accident took place near village Rail Majra on the Balachaur-Ropar Road, with the military truck. At the time of the accident, Mala Aggarwal, the wife of the deceased, and the said deceased sustained injuries. Immediately after the accident they were taken to the Civil Hospital, Ropar. Due to the injuries suffered by her she was transferred to the P.G.I., Chandigarh, for treatment. She remained as an indoor patient there from December 9, 1986 to December 17, 1986. Respondent No. 1 claimed that the accident had taken place due to the car being driven by Sanjeev Kumar Aggarwal in a rash and negligent manner. On the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether Sanjeev Kumar died and Mala Aggarwal received serious injuries in a motor accident on 9.12.1986 in the area of Rail Majra due to the rash and negligent driving of military truck No. 77 D 31859 WC by Dalip Singh, respondent No. 2? OPA (2) If issue No. 1 is proved, to what amount of compensation, if any, is the applicant entitled and from whom? OPA (3) Relief.
While giving its decision on issue No. 1, the Tribunal considered the evidence of Mala Aggarwal, AW 2 and Ram Kishan Aggarwal, AW 4. Both of them are the eye-witnesses to the accident. Manmohan Kumar, constable, was also examined to prove the F.I.R. No. 106 dated December 9, 1986, under Sections 279, 304A, 338 and 427 of the Indian Penal Code. Dr. Chaman Lal, AW 3, who had examined the injured was also examined at the trial before the Tribunal. AW 5 Surinder Singh is the photographer who had taken the photographs of the accident. The respondents examined Dalip Singh, RW 1 and Rattan Singh, RW 2. The Tribunal on consideration of the evidence on the record and examining other evidence came to the conclusion that the accident had taken place due to the rash and negligent driving of the military truck by Dalip Singh, respondent and not on account of any fault on the part of Sanjeev Kumar Aggarwal, who was driving car No. PAU 284 in which he and his wife Mala Aggarwal were travelling and who had also sustained injuries due to the accident.
4. I have gone through the evidence of Mala Aggarwal, AW 2 and Ram Kishan Aggarwal, AW 4, the statement of Man-mohan Kumar, constable and considered the F.I.R. No. 106 dated December 9, 1986. I have also gone through the evidence of Dalip Singh, RW 1 and other RWs. On the basis of the evidence on the record, the Tribunal has rightly come to the conclusion that the accident had taken place due to the negligence of Dalip Singh, driver of the military truck. The learned Counsel for the Union of India has not been able to point out any substantial point which may persuade me to take a different view than the one taken by the Tribunal. Moreover, it is significant to note that in this case Dalip Singh, respondent, has not tendered the written statement although he was a party to the claim petition. It was necessary for him to file a written statement. In the absence of any written statement, his bald statement in court has no value. Moreover, the Union of India has not filed any appeal against the award of the Tribunal. Considering the totality of the facts and circumstances of the case, I am inclined to agree with the Tribunal that the accident had taken place in this case due to the rash and negligent driving of the military truck by Dalip Singh, respondent. Consequently, I affirm the findings of the Tribunal on issue No. 1.
Issue Nos. 2 and 35. The deceased was a young businessman of 22 years of age. He comes from a very well-to-do family. He had just entered the business. This accident cut short his life prematurely. The Tribunal after consideration of the evidence on the record came to the conclusion that the annual (Sic. monthly) income of the deceased was Rs. 1.650/-. After allowing 1/3 rd for his personal expenses, the Tribunal determined the dependency of the claimant. After determining the same, the Tribunal applied a multiplier of 20 (twenty).
6. The learned Counsel for the appellant submitted that the Tribunal was in error in not determining the income of the deceased on the basis of the income tax return Exh. 10/A. He submitted that this document was duly exhibited in evidence, but this evidence, on a wrong view of law, was not made the basis for awarding compensation to the appellant. He has invited my attention to the finding of the Tribunal. The Tribunal while considering the evidence on this aspect of the matter ruled out of consideration the assessment order for the accounting year 1986-87, passed by the Income Tax Officer, Exh. P-10/A on the ground that the original was not produced in court. The assessment order is a public document. A copy of the public document is admissible in evidence. However, in order to ensure the correctness of the position regarding the assessment order and the return filed by the assessee, I summoned the Income Tax Officer with the relevant income tax file. Mr. S.L. Pardesi, Income Tax Officer, Ward II, Jalandhar, has appeared as a court witness. He produced the assessment file. He also produced the income tax return Exh. X filed by the assessee and a certified copy of the order of assessment Exh. X-1. According to the income tax return, the income of the assessee was Rs. 43,438.91. Under the income tax law, certain exemptions are granted to an assessee if he invests in L.I.C. or certain other schemes. The Income Tax Officer determined the taxable income at Rs. 32,074/- and levied tax. For the purpose of determining the income of the assessee we have to take into consideration the income shown by the assessee in his income tax return. The income of the assessee as given in the income tax return is Rs. 43,438.91. On the consideration of the evidence of the income tax return and the assessment order, I am of the opinion that the annual income of the deceased was Rs. 43,438.91. The Income Tax Officer accepted this return of the assessee and passed the assessment order. The deceased must have been spending 1/3 rd of his income on his personal expenses. So, in this manner, the dependency of the claimant was Rs. 28,9607-. It may be mentioned that the counsel for the Union of India was given an opportunity to cross-examine the Income Tax Officer summoned as a court witness but considering that the documents are from a proper official custody, he stated that it was not necessary to put any question in cross-examination. He also stated that it was not necessary for the Union of India to file any rebuttal evidence.
7. In Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC), while considering the approach that the court should adopt in the matter of determination of compensation under the Motor Vehicles Act, it was observed by the Supreme Court as follows:
The jurisdiction of compensation for motor accidents must develop in the direction of no fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
This court in Rajinder Singh Jasbir Singh v. Urmil 1987 ACJ 35 (P&H), was considering the question regarding the award of compensation where the deceased was of 25 years of age and the monthly income was Rs. 1,100/-. The claimants were the widow and the two minor children. The court applied the multiplier of 20. In Sushila v. Delhi Union Territory 1987 ACJ 1087 (P&H), the deceased was an Assistant Agriculture Development Officer. He was of 26 years of age. The court applied multiplier of 20. The Supreme Court in Jyotsna Dey v. State of Assam 1987 ACJ 172 (SC), applied the multiplier of 25 (twenty-five) while allowing the compensation when the deceased was of 40 years of age. The claimant was a young widow. The Supreme Court observed that he must have lived up to seventy years. In view of the fact that the compensation was being paid in a lump sum and considering the uncertainty of life, another relevant factor, the Supreme Court reduced the compensation by Rs. 15,000/-. So, practically in this case also, the claimant was allowed net compensation by applying the multiplier of 20 (twenty).
8. The Union of India has not filed any appeal against the order of the Tribunal, applying a multiplier of 20 (twenty) in this case. Even during the course of the arguments, the counsel for the Union of India has not questioned the correctness of the view of the Tribunal in applying the multiplier of 20 (twenty). In my opinion, for assessing the just and fair compensation in the present case, the Tribunal rightly applied the multiplier of 20 (twenty). I have determined the annual dependency of the legal representatives of Sanjeev Kumar Aggarwal at Rs. 28,960/-. Thus applying the multiplier of 20 (twenty), a sum of Rs. 5,79,200/- will be payable to the claimants.
9. It has been argued by the learned Counsel for Mala Aggarwal, appellant, the widow of the deceased that she was totally dependent upon her husband, who died in the accident. He submitted that the father of the deceased Sanjeev Kumar was a prosperous businessman and, therefore, the father of the deceased and the mother of the deceased were not dependent upon the son. No documentary evidence has been produced to show that they were dependent upon their son Sanjeev Kumar. Saraswati Aggarwal, in her statement in the court, has said that her son used to live on the ground floor and the husband used to live on the first floor. She has stated that she used to live with the son. Saraswati Aggarwal was living in the same house and, therefore, she must be meeting the son almost daily. Apart from this there is no evidence on the record to show that Saraswati Aggarwal, mother of the deceased, and Jagdish Kumar, father of the deceased, were dependent upon Sanjeev Kumar deceased. An action under the Fatal Accidents Act is for the benefit of the dependants. The loss of dependency can be recovered by the claimant. [See Clerk and Lindsell on Tort, 16th Edn. (1989) at p. 308]. The claimants are only entitled to recover loss of dependency-vide 1971 AC 115. It is quite evident that the claimants would be entitled to compensation only to the extent of the dependency or to the extent of the loss to the estate. It has not been established in this case that the father and the mother of the deceased were in any way dependent upon the son. It is very difficult to accept their claim for compensation. However, possibility cannot be ruled out, as held by G.C. Mital,]., (as His Lordship then was) in Lajpat Rai v. Karnail Singh 1987 PLR 547, that when the father of the deceased had become old and infirm and would not have been able to earn, the son would have maintained him and his wife (mother) so, we cannot fully rule out that the parents at that stage will be dependent on the son. So, I consider that it will be just and fair if out of the total compensation amount, on apportionment, a sum of Rs. 50,000/- is allocated to Jagdish Kumar, father of the deceased and a sum of Rs. 80,000/- is allocated to Saraswati Aggarwal, the mother of the deceased. The Tribunal also allowed a sum of Rs. 50.000/- to Jagdish Kumar, father of the deceased, and a sum of Rs. 80,000/- to Saraswati Aggarwal. So, I accordingly affirm the award of the Tribunal in their favour. However, their claim for enhancement of compensation is declined. They would be entitled to interest at the rate of 15 per cent on the amount of compensation awarded from the date of the application for the reasons hereinafter mentioned. The remaining amount of compensation on apportionment is, hereby, allocated to Mala Aggarwal, the wife of the deceased.
10. Now, as regards interest, the Supreme Court in Rukmani Devi v. Om Prakash 1991 ACJ 3 (SC), allowed interest at the rate of 15 per cent. So, following the above noted decision of the Supreme Court, I also allow interest to the claimant on the amount of compensation at the rate of 15 per cent per annum from the date of the application.
11. In view of the above, F.A.O. Nos. 715, 717 and 937 are disposed of accordingly. The award of the Tribunal is modified to the extent indicated above. It is held that the respondents are liable to pay compensation jointly and severally as indicated above to the claimants, with interest at the rate of 15 per cent per annum from the date of application. Counsel fee Rs. 2,000/- in each case.
12. F.A.O. No. 716 of 1988, arises out of claim application No. 39 of 1987, Mala Aggarwal v. Union of India. In the claim application she claimed Rs. 2,00,000/- as compensation for the injuries suffered by her in the accident. It is averred in the claim application that she received injuries on her face, eyebrows, lips and arms. There were numerous cuts and nasal bone was fractured. She remained admitted in the P.G.I., Chandigarh, from 9.12.1986 to 17.12.1986. She further claimed that as a result of the accident, she got permanent scars on her face. She appeared as AW 2 in support of her claim made in the claim application. In her statement, she stated that she received injuries on her nose. Her nose was fractured. She also received injuries on her chin, lips and eyebrows. These injuries have left permanent scars. As a result thereof, her face has been disfigured. She remained admitted to the P.G.I. for ten days. Dr. Satya Sreen, M.S., Department of General Surgery, P.G.I., Chandigarh, appeared as PW 3. In his statement he stated that Mala Aggarwal suffered the following injuries:
(1) .5 x .5 cm wound over the right eyebrow;
(2) The right upper eyelid was swollen and contained abrasions. Towards the lateral end, there was a deep cut wound .5 x .5 cm which was bleeding;
(3) A superficial cut wound over the nose in a curved manner bleeding actively;
(4) A .5 x .5 cm abrasion over the chin;
(5) A sutured wound over the upper lip on the left side;
(6) There was a parietal haematoma on the scalp.
So, it is fully proved by the medical evidence that Mala Aggarwal suffered injuries during the accident. The Tribunal only allowed her compensation amounting to Rs. 7,500/-.
13. In Ramesh Chandra v. Randhir Singh 1990 ACJ 777 (SC), the Supreme Court was considering the principles regarding grant of compensation in accident injury cases. In this case, the injured was a driver earning Rs. 300/- per month and was of 32 years of age. The Tribunal in that case granted Rs. 55,000/- for permanent disability suffered by the claimant; Rs. 3,000/- on account of the expenses of treatment. Under the head of general damages for pain, suffering and loss of enjoyment of life, the Tribunal awarded a sum of Rs. 20,000/-. In this way, the Tribunal allowed a sum of Rs. 78,000/- to the claimant. The Supreme Court approved the measure of damages to the claimant by the Tribunal.
14. In the present case, the appellant is a young widow. On account of the injuries, her face was disfigured. She was earning from tuition work. She is from a very well-to-do family. Considering all the circumstances of the case and in the light of the principles laid down by the Supreme Court in the case referred to above, I allow a sum of Rs. 75,000/- as damages cumulatively for all the heads to the appellant.
15. As discussed above, according to the law laid down by the/Supreme Court, interest at the rate of 15 per cent per annum is allowed on the amount of compensation. In view of the above, this appeal (F.A.O. No. 716 of 1988) is also partly accepted. The award of the Tribunal is partly modified as indicated above. The respondents are also jointly and severally liable to pay the awarded amount in this appeal.