Himachal Pradesh High Court
Raghbar Datta Pyare Lal And Ors. vs Malka Rani And Ors. on 26 September, 1989
Equivalent citations: 1990ACJ812
JUDGMENT Bhawani Singh, J.
1. These appeals, F.A.O. No. 77 of 1982; M/s. Raghbar Datta Pyare Lal v. Malka Rani and F.A.O. No. 97 of 1982; Malka Rani v. Raghbar Datta Pyare Lal, arise out of the same accident and the award of the Motor Accidents Claims Tribunal, Kangra, therefore, they are being taken up together for decision by this common judgment.
2. These appeals arise out of the award in Case No. 6 of 1975, dated June 29, 1982, by the Motor Accidents Claims Tribunal, Kangra and both the parties--claimants and respondents--have a grievance against the same; therefore, they assail it by way of these appeals.
3. The facts briefly stated are that the claimants are the dependants of Jagroop Singh (deceased). They claim an amount of Rs. 50,000/- by way of compensation for the death of Jagroop Singh. They say that Jagroop Singh was employed as a salesman with Sanjay Filling Station, Gaggal. He had gone to Pathankot to bring petrol and lubricant oil, belonging to Sanjay Filling Station. This material was being brought through petrol tanker lorry No. PNP 5618 owned by respondent Nos. 1 to 3. At Chambi Bridge it met with an accident and fell in the khud. Jagroop Singh died instantaneously. This vehicle was being driven by Kishori Lal, respondent No. 4, in the claim petition. It is stated that the vehicle was being driven rashly and negligently.
4. The claim petition has been contested by the respondents. Respondent Nos. 1 to 3 deny that the tanker was carrying lubricant. They say it was, in fact, attached with the Indian Oil Corporation Limited for the carrying of petrol and high speed diesel only. The owners of the vehicle deny that the driver was driving the vehicle rashly and negligently. The driver states that the deceased got into the truck of his own, at his own risk and despite his refusal since he had instructions from the owners not to give free lift to anyone. It has also been denied that Jagroop Singh was employed with Sanjay Filling Station, Gaggal and was deputed, on that day, for carrying the goods. As to the upkeep of the vehicle, it is asserted by the driver that the same used to be checked periodically and even before the start of the journey on that day the same was found roadworthy and in good condition. He further states that after he negotiated two sharp bends, he applied brakes to control it, but the brakes failed to work and the result was the accident.
5. In its separate version, the Oriental Fire & General Insurance Co. Ltd. with which the vehicle was insured at the relevant time, has denied the liability to pay the compensation on the ground that the deceased was not the hirer of the truck and the lift enjoyed by him was against the statutory rules.
6. The Tribunal, on the pleadings of the parties, framed the following issues:
(1) Whether the accident is a result of rash and negligent driving of Kishori Lal driver, respondent No. 4? OPP. (2) Whether the petitioners are entitled to compensation, if so, to what amount and from whom? OPP. (3) Who was the owner of the vehicle at the time of the accident? OP Parties (4) Relief.
The parties contested the matter very seriously. The respondents made every effort to dislodge the claim petition by the claimants. However, they failed in their efforts and ultimately the Tribunal decided all the issues in favour of the claimants and awarded compensation to the extent of Rs. 17,400/- holding respondent Nos. 1 to 4 liable for the same.
7. By the present appeal, the appellants who are the owners of the vehicle, have disputed their liability to pay the compensation. It has also been stated that the liability could not be fastened on to them and at the most the amount of compensation was payable by respondent No. 2, the Oriental Fire and General Insurance Co. Ltd. The findings of the Tribunal have also been challenged in the appeal. The claimants in their appeal say that the Tribunal has wrongly absolved the insurance company of the liability and the dependency of the appellants on the deceased could not have been determined at an amount less than Rs. 400/- per month. It is also stated that the contribution of the deceased towards the cultivation of his land and earnings from the sale of milk have been wrongly ignored. Interest at the rate of 12 per cent per annum has also been claimed.
8. The nature of the submissions of the counsel appearing for the parties underwent abrupt change in view of the decision of this court in New India Assurance Co. Ltd. v. Usha Rani 1990 ACJ 785 (HP). However, reference to this decision would be made at the relevant stage when the question of liability to pay compensation arises. For the present I proceed to deal with the other aspects of the matter to know whether the findings arrived at by the Tribunal in this case are legally permissible and whether the quantum of compensation paid to the claimants is just.
9. The claimants have adduced evidence by the production of certain witnesses. Harbans Lal, PW 1, is a clerk in the District Transport Office, Gurdaspur. He states that the vehicle PNP 5618 is registered in the ownership of Raghbar Datta Pyare Lal care of Gurbux Rai Ram Parkash, Batala. In this vehicle, he states, three persons can travel. Amin Chand, PW 2, is the Lamberdar of the village. He knows Jagroop Singh as he belonged to his village. He states that Jagroop Singh died in the accident of the petrol tanker on April 21, 1975 and he reached the spot after the accident on April 22, 1975. The truck had fallen down from a bridge. Its railings had been broken at about the middle of the bridge. This bridge is over Chambi Khud. The deceased left the claimants after his death. He was 45 years of age at the time of his death and was employed at the petrol pump. He was working as a farmer, cultivating his land and selling milk worth Rs. 100/- to Rs. 150/- per month since he had a buffalo and a cow. The deceased had 3 1/2 acres of land and his income from the agriculture was Rs. 300/- per month. At the time of his death, his children were studying. His eldest son, Ramesh, was studying in the college. All the members of the family were depending on the deceased for support and maintenance. The father of the deceased died at the age of 80 and his uncle, Bikkar, at the age of 75. The land of the deceased yields wheat, rice, maize, sarson etc. and 5 or 6 maunds of dhan per kanal is the output of the land of the deceased. 5 or 6 maunds of wheat was produced from one kanal of land of the deceased. He used to sell milk to Santosh Kumar shopkeeper of Tilokpur. He purchased one buffalo from him and another from somebody else. Amar Singh, PW 3, is the Head Constable, Police Station, Shahpur. He investigated the case and went to the spot. He prepared the site plan, Exh. P-2. He states that the railing of the Chambi Bridge, on its right side, which comes from Shahpur to Dharamsala, was broken as shown in the site plan. The petrol tanker PNP 5618, involved in the accident, was lying in the bed of the khud just below the broken railings of the bridge. The dead body of the deceased was also lying in the khud. Sant Kumar, PW 5, is the owner of Sanjay Filling Station. In his examination on December 14, 1979 he supports the claimants when he states that the deceased was working in his filling station as labourer and was in his service till the time of his death in the accident on April 21, 1975. He was 45 years of age and used to be paid Rs. 100/- by way of salary per month besides meals and clothes. He further states that he had placed an order for the supply of petrol to the Indian Oil Corporation at Pathankot. He sent the money by draft to the Indian Oil Corporation on April 18, 1975 by dak in order to buy 5800 litres of petrol. Since the petrol was not received by them upto April 20, 1975, he deputed Jagroop Singh to Pathankot to bring the petrol. He himself went on April 21, 1975 and got the petrol filled in the tanker PNP 5618. Kishori Lal, the driver, told him to depute someone with him so that he may unload the tanker at a station of its destination quickly. None else was sitting in the tanker except the deceased and the driver of the truck. At Chambi on April 22, 1975, he saw a tanker lying on the right side of the road in the khud below the bridge. Iron railings in the middle of the bridge on its right side had been broken. The deceased was owner of land in his village and was keeping buffaloes for selling milk. He was maintaining his family. The pay of the deceased was entered in the register. The deceased was in his part-time employment. He denies the suggestion that the deceased did not board the tanker at Pathan-kot to Gaggal and that he boarded the tanker on the roadside. He also denies that the deceased was not in his service in those days. He further denies that the deceased was not provided meals in addition to salary. One additional person was allowed to be carried in the tanker in question. This witness made certain variations in his statement recorded on May 7, 1982 thereby denying that the deceased was not being given anything except Rs. 100/- per month and that no person is allowed to sit in the oil tanker. The Tribunal has not rightly believed these variations in his statement since the reason for the same was the filing of a suit for damages against him by one of the claimants. Ram Rakha, PW 6, a part-time Accountant with Sanjay Filling Station, has also stated that the deceased was working with Sanjay Filling Station and was being paid Rs. 100/- per month.
10. On the other hand, Kishori Lal, RW 2, states that he carried the petrol in the tanker owned by Messrs Raghbar Datta Pyare Lal. On the day of occurrence the vehicle was in order and the same used to be checked before undertaking journey of hill roads. He had instructions from the owners not to allow any passenger to sit in the truck. One person signalled him to stop it at village Bhali and despite his refusal the person insisted and was allowed a free lift. At 8.30 after crossing Rait near the school there was a bend. After it there was a continuous descent. He tried to slow the vehicle by applying brakes but they failed. The vehicle ran out of control and after striking the bridge fell into the khud. He was driving it at the speed of 30 kilometres per hour. He knew Sant Kumar of Sanjay Filling Station. He had seen him at Pathankot on that day. Mohinder Singh Mistri had checked the vehicle at the workshop but he could not say as to when the vehicle was checked before the day of the accident. He could not say that three persons were allowed to sit in the vehicle. Ram Saran Das, RW 3, is a partner of the respondent firm, Messrs Pyare Lal & Sons as well as Messrs Raghbar Datta Pyare Lal. The tanker is owned by them and was attached with the Indian Oil Corporation. He states that specific directions had been given to the driver and the conductor not to allow any person to travel in the tanker. The vehicle used to be regularly checked at the garage of Mohinder Singh, owner of New Standard Motor Engineering Works. Bills, Exhs. RW-3/1 to RW-3/4, had been issued by the garage owner in respect of the repairs carried out in the takner before it met with the accident. Exh. RW-3/5 is the payment voucher. The vehicle used to be checked before performing journey by the New Standard Workshop as per their standing instructions. He visited the place of accident and found the railings of the bridge broken and the vehicle lying in the khud. Mohinder Singh, RW 4, is the owner of the motor garage, New Standard Motor Engineering Works. He is a mechanic himself and states that the tanker was brought to him for checking on April 21, 1975 and it was in order. He proves bills, Exh. RW-3/1 to Exh. RW-3/4, since the same were in his own handwriting and had been signed by him. Voucher RW-3/5 had been issued by him in token of receipt of payment. In cross-examination he states that he does not maintain any cash book nor keeps any record of repairs. He could not give the dates when the vehicle was checked by him. He denies that he prepared false bills at the instance of the respondents.
11. This is the kind of evidence the parties have led in this case. On the question of rash and negligent driving of the vehicle, the Tribunal has held that the vehicle was being driven rashly and negligently which resulted in the accident in question. This finding of the Tribunal is correct. It appears from the evidence that the story of failure of the brakes is an afterthought. It has been set up by the driver to save his skin. Had he been careful, the accident could have been avoided. His negligence is writ large in the fact situation of this case. The accident took place when the vehicle had come on the level road and there was not even an occasion to move the steering sideways as the road was plain and straight, still the driver hit the right side railing of the bridge and that too in the middle of the same before the vehicle plunged into the khud. The evidence supporting the version that the vehicle was being kept and maintained properly is neither believable nor relevant. The evidence of the garage owner is not reliable and the same has also been discarded as such by the Tribunal. The versions of the driver and the owners of the vehicle are equally bad. They have made every effort to defeat the claim of the claimants and in order to do so have given versions which are thoroughly unbelievable. It has been proved, therefore, quite clearly that the deceased was employed with Sanjay Filling Station and was being paid Rs. 100/- per month in addition to food and clothings. He was sent to fetch the petrol from Pathankot and was travelling in the tanker at the instance of Sant Kumar, PW 5, the owner of the Filling Station. Further the accident took place entirely due to the rash and negligent driving of the driver. Therefore, it can be safely concluded and held that issue No. 1 has been rightly decided by the Tribunal and its findings are affirmed. The findings of the Tribunal are correct on issue No. 3 also. The vehicle is owned by respondent Nos. 1 to 3.
12. Going to the award of compensation, the Tribunal has committed an error in assessing the income of the deceased which has ultimately led to the award of inadequate compensation to the claimants. The deceased was earning Rs. 100/- p.m. from Sanjay Filling Station. There is evidence that he was rearing buffaloes and used to sell milk. There is evidence that he was earning from the agriculture as well. The Tribunal has held that the evidence as to his earnings from agriculture and by sale of milk is not exact and income therefrom cannot be calculated. Here is the error that has been committed by the Tribunal. Evidence on this aspect has been given by Amin Chand, PW 2, Sant Kumar, PW 5, and Ramesh Kumar, PW 7. Amin Chand, PW 2, is the Lamberdar of the village. He states that the income of the deceased from the agriculture was Rs. 300/- per month and Rs. 100/- or Rs. 150/- per month by the sale of milk. According to him, the deceased was getting 5 or 6 maunds of dhan per kanal and 5 or 6 maunds of wheat per kanal from his agricultural land. Ramesh Kumar, PW 7, states that the monthly expenses of the family were Rs. 500/- to Rs. 600/-.
13. It is seen that the approach of the Tribunals in assessing the income of the agriculturists has not been fair and correct. The normal course that is being adopted is that this aspect of the income is not taken into consideration while assessing the total compensation. It is usually assumed that no loss is caused to the dependants since the land remains intact after his death and income received by the agriculturist from the farm land cannot be accurately assessed in the absence of clear evidence, say, in the form of documents. This approach is absolutely wrong. Majority of our population lives in villages. They depend on agriculture. In some cases they are manager-cum-agriculturists--they manage cultivation through others and in other cases they not only manage but also do agricultural operations themselves; but in both cases compensation has to be assessed more in cases where the same person not only manages but also does the agricultural operations because he pays more attention towards it as compared to an ordinary labourer employed for doing these operations. Therefore, his contribution to the agriculture income would be more as compared to the contribution of a labourer employed to do the same. Therefore, for example, in case the wages of an ordinary labourer are Rs. 20/- a day, the same can be fixed to be atleast Rs. 25/-a day in the case of manager-cum-agriculrurist. In such a way the figure arrived at will be his contribution to the dependency of the family on him. In the present case instead of resorting to this method the compensation can be worked out on the basis of the evidence on record. The deceased had 3 1/2 acres of land. He was growing crops thereon. Normally, there are two crops in a year. It can be roughly said that the income of the family, out of the same, was about Rs. 4,000/- annually. The deceased was the eldest member in the family whereas his children were studying in various classes. Therefore, the main contribution to the agriculture was his own and then of his wife. It can be in the ratio of 60 : 40. In this way the contribution of the deceased was Rs. 2,400/- annually. In addition to this there is evidence that the deceased was selling milk between Rs. 100/- to 150/- per month. Let this figure be placed at Rs. 100/- per month. The result is that the total earnings of the deceased were to the extent of Rs. 400/- per month. This is the normal assessment of income and without this much of income, the family cannot otherwise subsist. There are many children studying in various classes. Eldest son, Ramesh Kumar, was studying in the college at Pathankot. Although the figure of monthly income can be expected to be more, however, it can be safely kept at Rs. 400/-per month and cannot be Rs. 300/- to which insistence was made by Mr. Rajiv Mehta appearing for the insurance company by referring to the claim petition. The court has to assess just compensation on the basis of evidence adduced in the case. The conclusion on this aspect may vary with the amount of income mentioned in the claim petition and it is not necessary that the figure other than this cannot be arrived at while assessing the just compensation. It may be that the total compensation awarded may not exceed the limit of the amount claimed. There is evidence of longevity in the family. The father of the deceased died at the age of 80 and the uncle of the deceased at the age of 75 years. In such a situation the multiplier of 14 would be quite appropriate. The deceased may be spending some amount on his transport and personal expenses and it can be placed at Rs. 50/-per month.
14. In view of the aforesaid discussion, the claimants are entitled to compensation--Rs. 350/- X 12 X 14, that is, equal to Rs. 58,800/-. To this, conventional amount of Rs. 3,000/- is to be added. Thus the total amount of compensation comes to Rs. 61,800/-, but the claimants have confined their claim to Rs. 50,000/-. So compensation to this extent is payable to them with interest at the rate of 10 per cent per annum from the date of application till payment.
15. Now the question arises as to the liability to pay the compensation. The appellants submit that the vehicle was insured with respondent No. 7; therefore, the liability to pay the compensation is that of the insurance company. Same is the case of the appellants in F.A.O. No 97 of 1982. Mr. Rajiv Mehta submits that the liability is not of the company but of the owners of the vehicle since the deceased was not the hirer of the vehicle nor he was travelling in the same for hire or reward or as an employee of the hirer of the vehicle.
16. This aspect of the matter has already been discussed in New India Assurance Co. Ltd. v. Usha Rani 1990 ACJ 785 (HP). In the light of this decision and the evidence on record pointing out that the deceased was in the service of Sanjay Filling Station, he had been sent to Pathankot to fetch the petrol and he was travelling in the vehicle as an employee of the hirer of the vehicle and was sent by the owner (the hirer) to facilitate the unloading of the same at the Sanjay Filling Station. This is squarely covered by the decision of this court and it was argued by Mr. K.D. Sood and Mr. M.C. Mandhotra appearing for the appellants in these cases that the liability to pay the compensation is that of the company in view of the decision aforesaid. I, therefore, hold respondent No. 7 liable to pay the compensation to the claimants.
17. Accordingly, the award amount be paid by respondent No. 7 with interest at the rate of 10 per cent per annum from the date of claim application till payment. Amount deposited or paid to the claimants by the appellants in FAO. No. 77 of 1982 be refunded to them. The award of the MAC.T. is modified to the extent as above and the appeals are also allowed to the aforesaid extent. The parties are left to bear their own costs.