Orissa High Court
Naugapu Chinsya And Anr. vs Bhagaban Sahoo And Anr. on 14 August, 1987
Equivalent citations: I(1988)ACC362
JUDGMENT L. Rath, J.
1. This appeal arises out of an award by the Third Motor Accidents claims Tribunal, Puri in respect of an accident in which the deceased was a lady of thirtyfive years of whom appellant Nos. 1 and 2 are respectively the husband and the son. The deceased was a vegetable seller. The vehicle causing the accident was a tractor with a trailer. The accident occurred while the deceased was selling vegetables at a place called 'Musi Sahu Chhak, Puri (at Station Bazar, Puri). The appellants claimed a sum of Rs. 91,000/- as compensation with the break-up of Rs. 75,000/- for loss of dependency, Rs. 5.000/- for the loss of happy family life, Rs. 10,000/- for loss of company and personal love, wife's services and care towards son and Rs. 1,000/- towards funeral expenses. The learned Tribunal while finding that the accident was due to rash and negligent driving of the vehicle, awarded a compensation of 12,096/- with interest at the rate of 6% per annum from the date of the application, i.e. 3-8-82 and directed that failure to pay shall entail interest at the rate of 9%. In awarding the compensation the learned Tribunal reached the conclusion that the deceased was earning not less than Rs. 240/- per month, of which she was spending Rs. 150/- on herself and was contributing Rs. 90/- towards the income of the family. The longevity of the deceased was taken to be thirty years more. With the loss of annual dependency calculated at Rs. 1,080/ the learned Tribunal applied a multiplier of 14 determining the compensation at Rs. 15.120/- and deducted therefrom 20% towards uncertainties of life reaching the net figure payable as Rs. 12,096/-.
2. Mr. B.P. Ray, learned Counsel appearing for the appellants, urges that the determination of the monthly income of the deceased at Rs. 240/- per month was unwarranted and based on pure conjecture and surmises without taking into consideration the evidence on record as well as a wrong reading of it; the application of 14 as multiplier was erroneous, and that a deduction of 20% for uncertainties of life even after resorting to multiplier system is illegal.
3. There cannot be any dispute that the accident occurred due to rash and negligent driving of the vehicle in question. It was of course urged on behalf of the respondents that since, it was the very case of the appellants in their claim petition that there was a sharp bend which the driver had to negotiate and there was an error of judgment in swerving the vehicle at proper place, the negligence of the driver in driving the vehicle has not been proved and that the M.V. I. had not been examined the conclusion of rash and negligent driving was not proper. Such submission has no force since it was the specific claim of the appellants in their petition that the vehicle was being driven at a high speed without blowing horn at & crowded place like market area closely proximate to the railway station at Puri. The speed of the vehicle was never controlled, though it was coming in the down-gradient. In the evidence of PWs 2 and 3 who were eye-witnesses to the occurrence, the same facts have been reiterated. PW 2 is the husband of the deceased and was himself a victim of the accident, the vehicle having run over his left leg. The very nature of the accident causing death of a person and injury to another at the place where the accident had occurred speaks for itself of the negligent manner in which the vehicle was being driven. To such an accident the principle of res ipsa loquitor fully applies. It was held in (Pushpabai Parshottam Udeshi and Ors. v. Ranjit Ginning & Pressing Co. Pvt. Ltd. and Anr.) that though normally it is the plaintiff who has to prove negligence but since in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him and is solely within the knowledge of the defendant who caused it, the pLalntiff can only prove the accident, but not how it happened and in such cases the hardship is mitigated by applying the principle of res ipsa loquitor which only means that the accident speaks for itself and in such a case the pLalntiff need only prove the accident and nothing more and it will be for the defendant then to establish that the accident happened due to some other causes than his own negligence. The burden is on the defendant to show that the accident happened in a manner in which there was no negligence on his part. The only thing that the pLalntiff need to show in this case is that the vehicle was under the management of the defendant and that in ordinary coutse of things, if proper care was used, such accident would not have occurred. AIR 1977 SC 124S (Minu B. Mehta an I another v. Balkrishna J.Ramchandra Nayan and Anr.) relied upon by Mr. Roy, appearing for respondent No. 2, the insurance company, does not state the law in any different way. This is a case where the respondent No. 1 has also not examined the driver who was the best person to have stated regarding the negligence or otherwise on his part in driving the vehicle. For reasons best known, he has been withheld and thus the learned Tribunal has justifiably drawn the inference that had the driver been examined, his evidence would have been adverse to that of the respondents. In that view of the matter, I do not find any force in the contention that the vehicle was not being driven in a rash and negligent manner.
4. the learned Tribunal has rejected the case of the appellants as to the income of the deceased being Rs. 600/-, or as developed in evidence, as Rs. 20/- to Rs. 25/- per day on the ground that PW 1 had no personal knowledge as to from where his mother got the money to start the business and he was not helping the mother in the business, that PWs 2 and 3 are relations of the deceased, and hence the evidence of all the three witnesses on the point was not acceptable. The finding that PW 3 was a relation of the deceased merely because he was addressing her as 'Mausi' is wholly unwarranted. 'Mausi' is a common form of address to elder ladies and from it no conclusion can be drawn that one who so addresses is a relation. PW 3 appears to be an independent witness whose cross-examination was declined. It was his statement that the deceased was selling vegetables worth Rs. 200/- to Rs. 250/- per day and he was purchasing vegetables worth about Rs. 50/- from her every day for re-sale and that he was making a profit of Rs. 7/- to 8/- from such re-sale. Since the evidence is unchallenged and no evidence has also been led by the respondents rebutting such statements, it can serve the basis of computation of the income of the deceased. Making some concession for possible exaggeration by PW 3, it can be said that since the deceased was selling vegetables to others who were reselling the same, she must have been selling vegetables at least worth about Rs. 100/- a day. The evidence of PW 3 shows that he was getting a profit of Rs. 7/- to Rs. 8/-per day out of vegetables worth Rs. 50/- which thus shows the percentage of profit at 14 to 16. Taking a minimum of 14% as profit, it can be said that the deceased was earning an amount of Rs. 1'/- per day, totalling to a sum of Rs. 420/- per month, of which, admittedly, as the evidence of PW 2 discloses, she was spending Rs. 150/- on herself and hence her monthly contribution to the family would have been Rs. 270/-. At such rate, the loss of annual dependency would be Rs. 3,240/-.
5. Next is the question as to what is the multiplier that should be applied to such loss and whether after applying a multiplier, any further sum is to be deducted for uncertainties of life. The multiplier system of assessing damage was discussed by the Hon'ble Supreme Court in AIR 1977 SC 1189 Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar and Ors., etc. explalning that the method is to first calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual "dependency" by a number of "year's purchase", that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand. In other words, the choice of a suitable multiplier depends upon the number of years for which the deceased would have continued to contribute the income with a just deduction for the uncertainties of life which may either reduce or cut short such income. Ah element of guess-work is inevitable to enter into such calculation, but however the choice cannot either be arbitrary or not relatable to factors germane to the consideration. The multiplier to be applied would necessarily be a variable factor depending upon the number of years the benefit was expected to last, but however the uncertainties of life would not be a variable factor. As has been uniformly applied in various decisions of this Court 1972 ACJ 92 (The Oriental Fire and General Ins. Co. Ltd. v. Kamal Kamini Das and Ors. (Orissa Road Transport Co. Ltd. v, Sibananda Patnaik ani others) 1977 ACJ 41 (Government of Orissa v. Narayan Patnaik) 1977 ACJ 108 (The General Manager, Orissa State Road Transport Corporation v. Sulochana Parida and Ors.) and 1977 ACJ 147 (Apani Behera and Ors. v. Kedarnath Kar and Ors.) a deduction of 1/6th of the total amount is the usual deduction made in respect of such contingencies. In the very case before the Supreme Court i.e. (supra) where the deceased was twenty-three years of age, a multiplier of 20 was found suitable on the basis that the deceased had about thirty years as service career before her. Here, it is in evidence that the deceased was a bale and hearty woman of thirty-five years. It has been generally held that life expectancy is sixty-five years and hence she had about thirty years of life before her of which it can reasonably be said that she would have been efficient to earn the income for another twenty-five years. Taking such facts into consideration, it would be just and proper to fix the multiplier at 18 in which case the amount payable comes to Rs. 58,320/-.
6. The Tribunal fell into error, after having adopted the multiplier system in fixing the compensation, again deducting 20% of the same towards uncertainties of life. A multiplier system itself takes into consideration such factors since in choosing a suitable multiplier, the imponderable factors form an essential consideration. The procedure of deduction for uncertainties of life is adopted only when the other method of fixation of compensation, i.e. the annual lots of dependency multiplied by the total year of such annual loss is applied.
7. Mr. Ray has further urged the claims for consortium and funeral expenses. The learned Tribunal has not arrived at any finding on the same even though the claims were preferred and evidence was also led. PW 2 stated regarding the claims on account of consortium and funeral expenses as stated in the claim petition. In 1984 ACJ 18 (Polavarapu Somarajyam and Ors. v. Andhra Pradesh Road Transport Corporation, Hyderabad), the claimant husband was allowed a consortium of Rs. 5,000/-. In 1984 ACJ 599 (Tahal Singh and Anr. v. Shammi and Ors.), a sum of Rs. 6,000/- was awarded as compensation for loss of companionship and mental pain and suffering.
8. Considering the matter from all aspects, a sum of Rs. 1,500/-towards loss of consortium would aptly meet the demands of justice. As regards the claim for funeral expenses, a sum of Rs. 500/- would also be adequate. Thus the total sum payable to the appellants is Rs. 60,320/- of which the liability of the respondent No. 2 is to the extent of Rs. 50,000/-, apart from the interest payable as determined by the Tribunal.
9. In the result, the appeal is allowed with costs and the award of the Tribunal is modified to the extent as discussed above.