Delhi District Court
Smt. Savita Sehgal vs India Trade Promotion Organisation on 2 April, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
CS:398/04
ID NO: 02401C5904872004
1. SMT. SAVITA SEHGAL
Wd/o Sh. Suresh Sehgal
2. SH.TARUN SEHGAL
S/o Late Sh. Suresh Sehgal
3. SH.VARUN SEHGAL
S/o Late Sh. Suresh Sehgal
All R/o 1074 , Sector 55,
Faridabad (HR)
4. SH. MADAN LAL SEHGAL (DEAD)
5. SMT.RAJ KUMARI
Mother of Late Sh. Suresh Sehgal
R/o House No.344, Sector 7A,
Faridabad (HR) .....Plaintiffs
Vs.
1. INDIA TRADE PROMOTION ORGANISATION
Pragati Maidan,
New Delhi.
2. M/s INTERNATIONAL AMUSEMENT LIMITED
Charminar Bazar,
Pragati Maidan,
New Delhi
3. M/s. THE ORIENTAL INSURANCE COMPANY LTD.
F20, United India Life Bldg.
Connaught Circus,
@contd.
2
New Delhi.
4. SHRI RAKESH KUMAR SHARMA (Dropped)
S/o Sh. Madho Ram Sharma
R/o E85C, Village Mohammadpur,
R.K.Puram,
New Delhi.
5. SHRI SAMAYVEER SINGH (Dropped)
S/o Sh.Ram Dutt
R/o Village Sultanpur Dabas
Delhi.
....................Defendants
SUIT FOR RECOVERY OF Rs.7,00,000/ ON
ACCOUNT OF DAMAGES FOR THE DEATH OF
SHRI SURESH SEHGAL S/O OF SHRI MADAN
LAL SEHGAL
DATE OF INSTITUTION : 20.11.2004
DATE OF FINAL ARGUMENT : 29.03.2011
DATE OF JUDGMENT : 02.04.2011
JUDGMENT
1. This suit has been filed by plaintiff widow , her two children and parents of Sh. Suresh Sehgal for recovery of Rs.7 lacs with cost and interest under Fatal Accidents Act (herein after referred to as "The Act") against defendants. Defendant no.1 is running the entire @contd.
3Pragati Maidan. Entertainment Joint Appu Ghar was being run at Pragati Maidan by defendant no.2 company while defendant no.3 are insurers of defendant no.2.
2. Case of the plaintiffs as per plaint is that her late husband Sh. Suresh Sehgal was the sole earning member in their family and was doing business of electronics spare parts earning Rs.25,000/ per month. On 3.8.03 at 2.00 PM plaintiff no.1 ,2 and 3 alongwith late Sh. Suresh Sehgal came to Appu Ghar for enjoying the amusement rides . Late Sh. Sehgal purchased 4 tickets of Rs.20/ and Rs.150/ each. After enjoying two rides on other swings, the family reached for their third ride on My fair lady. All the four sat on different seats next to each other. At around 2.30 pm when this ride took initial 34 rounds, plaintiff no.2 Sh.Tarun shouted ROKO ROKO ( STOP STOP) as his father has fallen down. Plaintiff Smt. Savita found that her husband was not in his seat. After completing @contd.
4another half round the ride stopped and plaintiffs found late Sh. Sehgal lying on the platform alongwith the railing in unconscious condition. He was rushed to medical center at Appu Ghar where he was attended by a Doctor and some medical injection was given to him. Thereafter the Manager of M/s Appu Ghar sent late Sh. Sahgal to Sanjivini Hospital with three of his personnels . Plaintiffs also accompanied them in some separate vehicle. Upon being taken to the casuality, Sh. Sehgal was declared (brought) dead . Later officials of defendant no.2 arranged an ambulance for sending the body of Late Sh. Sehgal to his house at Faridabad.
3. As per plaintiffs Sh. Sehgal died due to fall owing to defect in the seat and lack of precautionary measures in the seat. He was only 42 years old when he breath his last and his life was lost due to negligence and carelessness of defendant no.2 in not providing adequate safety measures. As such it is prayed that family of late @contd.
5Sh. Sehgal deserves to be compensated. As per plaintiffs , Appu Ghar is being run as a joint ventures by all the defendants. It is pleaded that under a license agreement dated 14.11.1984 all the necessary safety precautions qua visitors of the amusement park apart from fire precautions were supposed to be taken by defendant no. 2 company as per law. As per this agreement , defendant no.2 is liable to arrange medical facilities and is responsible for all liabilities connected with the rides and other activities. It is pleaded that since defendant no.1 is paramount licensee and defendant no.3 is insurance company of Appu Ghar, they are also liable to compensate the plaintiffs. Damages of Rs.7 lacs was sought by issuing a legal notice to all three of them while claiming that late Sh. Sehgal would have earned for atleast 25 years had he not died by falling off the defective swing / ride.
4. Summons of the suit were issued to the defendants. While @contd.
6contesting this suit, defendant no.1 ITPO prayed for dismissal of the same with the plea that no liability can be fastened upon it in so far as the accident happened inside the premises of defendant no.2 owing to negligence of their employee i.e. ( now dropped) defendant no.4 and 5. It is submitted that once ITPO gave license to defendant no.2 to run the amusement park, as per terms and conditions, no cause of action arises against ITPO. Moreso, when defendant no.2 is unauthorised occupation of the land after expiry of the license in 1995. On merits M/s ITPO did not specifically deny the pleas of the plaintiffs owing to lack of knowledge. As per them they came to know of the accident only through newspaper. It is pleaded that ITPO has no supervision over the activities of Appur Ghar run by defendant no.2 and as such no vicarious liability can be fastened upon it.
5. While contesting this suit the defendant no.2 company prayed for @contd.
7dismissal of this suit in their WS on a plea that provisions of Fatal Accidents Act, 1855 are not applicable on the facts of this case. It is also pleaded that the cause of action is shown to have arisen on 03.08.03 while the suit in hand was filed on 30.11.04. Dismissal of this suit is also prayed on a plea that a criminal case is already registered against defendant no. 2 and 4 and this suit cannot proceed till the disposal of criminal case as per Section 10 of CPC. It is also pleaded that as per Section 1 of The Act only those damages which are proportionate to the lost suffered due to death and that too to the extent of earning capacity are maintainable. It is also pleaded that plaintiffs have not approached the court with the clean hands in so far as plaintiff no.2 Sh. Tarun had himself admitted in writing that his father died of heart attack i.e. a natural cause and this note was attested by widow of the deceased as well. It is pleaded that there was no negligence on their part. It is @contd.
8pleaded that they are pioneers in setting amusement park in India. The ride my fair lady was imported from Italy in 1987 having a life of 50 years. It is was properly maintained as per best safety standards. Once seat of their ride is properly locked it can not open on its own. Safety instructions are displayed on the main gate and inside the ride alongwith the railings. Attendants verbally announce the instruction & it is specifically displayed that heart patient, pregnant ladies and mentally unsound person should not sit on the ride. It is also displayed that patrons should not touch the safety locks and belts while the ride is in motion. It is pleaded that plaintiffs have not been able to show any specific negligence on the part of the defendant company.
6. It is pleaded that health of the deceased did not permit him to take the ride. His act of sitting on the ride despite the risks involved is hit by maxim of volenti non fit injuria. As per post death test @contd.
9conducted at Rohtak upon the deceased it was reported that he was suffering form heart ailment. After the incident, upon being checked the ride was found mechanically fit. On merits the relation between the parties is not denied but it is denied that deceased was sole bread earner of the family. It is also denied that plaintiff no.2 shouted to stop the ride. It is not denied that Sh. Sehgal had fallen down from the ride on the platform. It is claimed that he fell down because he had heart ailment. It is also not denied that Sh.Sehgal became unconscious upon falling down and he was rushed to the medical center at Appu Ghar where he was attended by their doctor and was also injected some medicine. It is further not denied that thereafter Sh. Sehgal was taken to Sanjivini Hospital wherein the casuality he was declared brought dead. It is denied that deceased died at the age of 42 yrs. It is denied that the swing was not been properly maintained or the company was @contd.
10negligent and careless in ensuring safety of the vehicle. It is not denied that Appu Ghar was being run by them on license basis as per license dated 14.11.1984 having defendant no.1 as licensor. It is also admitted that all the operations at Appu Ghar were insured with defendant no.3 under policy no.46001. It is not denied that under the license the company was responsible for taking all the safety measures. As per them no such incident ever took place since 1984. It is admitted that dropped defendant no.4 and 5 are their employees but it is claimed that plaintiffs are not entitled to any compensation.
7. In his separate written statement, defendant no.3 Insurance Company prayed for dismissal of the suit on the plea that plaintiffs have deliberately not filed medical papers with regards to health of deceased Sh. Sehgal prior to the accident. Dismissal of this suit is prayed on a plea that their clients i.e. defendant no.2 did not @contd.
11comply with the condition of the Insurance Contract which provides for giving of written notice to the Insurance Company as soon as possible as practical. IT is also pleaded that under the insurance policy the maximum liability covered was Rs.7 lacs minus 25% per individual out of total policy of Rs.80 lacs . It is pleaded that as per plaintiff late Sh. Sehgal died due to wrongful act and negligence of defendant no.2 and unless this fact is proved , no liability can be fastened upon the Insurance Company. They pleaded ignorance about the factual details of the accident. With these pleas dimissal of the suit was prayed.
8. Separate replication was filed by the plaintiff wherein plaintiff reiterated their pleaded case and denied the averments of WS. Plaintiffs maintained that deceased was not suffering from any serious diseases .
@contd.
12
9. During the course of trial plaintiff no.4 expired. His LRs were brought on record on an application U/O 22 rule 3 CPC.
10.Upon completion of pleadings following issues were identified by Ld. Predecessor on 19.12.2006 ISSUES
11.
1.Whether the suit filed by the plaintiff is not maintainable in the present form against defendant no.1 and that defendant no.1 is under no liability to pay any compensation. (OPD1)
2.Whether the suit of the plaintiff is not maintainable under the provisions of Fatal Accident Act 1855? (OPD2)
3.Whether the plaint is not properly verified as per provisions of CPC? (OPD2)
4.Whether the plaintiff is guilty of concealment of material fact as to the health of late Sh. Sehgal? (OPD2)
5.Whether the suit is not properly valued for the purpose of Court Fees and jurisdiction? (OPD2) @contd.
13
6.Whether the suit is not maintainable being beyond the purview of insurance contract? (OPD3)
7.Whether the suit liable to be dismissed on account of violation committed by defendant no.2 to the insurance policy? (OPD3)
8.To what amount is plaintiff entitled to recovery from the defendant on account of accidental death of late Sh. Suresh Sehgal? (OPP)
9.Relief
12.I have heard Ld. Counsel Ms. Manu Tomer advocate for plaintiffs , Ld. Counsel Miss Neha Bhatnagar advocate for defendant no.1, Ld. Counsel Deepak Sharma advocate for defendant no2, Ld Counsel Sh. R.N.Sharma advocate for defendant no.3 . I have also carefully perused the entire judicial file.
13.To prove their case, plaintiff no.1 examined herself as PW1, plaintiff no.4 examined himself as PW2. On the other hand @contd.
14defendant no.1 examined their Law Manager Sh. Gupta as DW1. Defendant no. 2 examined their employee Sh. Ashok Jetley as DW2, defendant no.3 examined its Dy. Manager Sh. Munshi Ram as DW3. Satyavir as D2W2, Rakesh Kumar as D2W3. Defendant no.2 further examined Sh. Visvavardhan Chaudhary as D2W4, Colonel Prem Vijeshwar as D2W5. D2W6 K.P.Sachdeva from MCD, D2W7 Ashok Sharma from MCD,D2W8 Dr. Sanjay Kumar from PGI Rohtak.
14.In her deposition as PW1 vide affidavit Ex.PW1/A, Plaintiff Smt. Savita Sehgal has deposed on the lines of her plaint and exhibited Diploma in Techonology pertaining to Suresh Sehgal as Ex.PW1/1, the ration car as Ex.PW1/2, copy of her election card and that of her deceased husband as EX.PW1/3 and 4, copy of agreement as Ex.PW1/5, copy of the notice as Ex.PW1/6, postal receipt of the addresses as Ex.PW1/7, AD cards as Ex.PW1/8, certified copy of @contd.
15the chargesheet as Ex.PW1/9, site plan as Ex.PW1/10, letter of request for conducting post moretm as Ex.PW1/11, letter of request for conducting post mortem by Board of Doctors as Ex.PW1/13, documents relating to license of Appu Ghar as Ex.PW1/14 and list of rides as Ex.PW1/15.
15.In her cross examination done on behalf of defendant no.1 , she stated that she is not aware that as per License Agreement Ex.PW1/5, defendant no.1 ITPO has nothing to do with the operation of Appu Ghar by defendant no.2. In her cross examination done on behalf of defendant no.3 , she conceded that she has not produced any proof of income of her late husband. As per her deceased was running the shop alongwith her. Deceased was eldest amongst his three brothers. She denied the suggestion that parents of the deceased were not dependent upon him. She exhibited the four tickets purchased qua Appu Ghar as Ex.A1 to A4.
@contd.
16She accepted that certain rides in Appu Ghar were not meant for ailing person and minors. Her family had been visiting Appu Ghar prior to the date of incident as well when all the swings including the swing in question were enjoyed by them. She did not notice any warning qua non usage by ailing and minor. They sat on individual seats because there was no crowd. She accepted that she had herself not seen her deceased husband falling from the swing. He was sitting behind her. He was not suffering from any ailment as per her. She categorically denied that deceased was a heart patient and was not capable to ride my fair lady. In her cross examination done on behalf of defendant no.2, she accepted that police investigation and mechanical inspection of the ride was carried out and a report was prepared. She accepted her signature on document Ex.PW1/B but expressed unawareness about its contents. She accepted that all the seats had lock appended on @contd.
17them. She denied that the operator had checked each lock before starting the ride. Her husband was hail and hearty and he did not fall ill during his life time. She accepted that heart and brain of her husband were sent to PGI Rohtak and reports are Mark B as per which her husband was diagnosed of indication of heart problem. She accepted that a test was got conducted with the help of a dummy on the same seat but she was not present there. She denied that deceased did not fall due to defect in the seat. She accepted that after occupying the seat on the ride, her husband did not inform that the lock was defected. There was no defect on the seats where the other family members were sitting. She denied that staff of Appu Ghar was not negligent and they were not at fault in this accident.
16.In his deposition as PW2 vide affidvit Ex.PW2/A, plaintiff no.2 Sh. Tarun Sehgal , son of deceased, deposed on the lines of plaint. In @contd.
18his cross examination, he denied the suggestion that his father was not earning Rs.24,000/ per month, however, he maintained that he can not produce any document in support of this claim. He added that his entire household expenses including the educational expenses were borne out of income of his late father. He was studying MBA when he lost his father. His father had two other brothers. They have visited Appu Ghar 56 times as a family and every time his father used to take ride on my fair lady. He denied that his father was not keeping well. He accepted that his father was not paying income tax. He raised the alarm for stopping the ride after his father had fallen down. He denied that his father himself opened the safety lock and tried to come out of the running
- my fair lady. He was given dead body of his father after he signed one document. He had not read the contents of the said document and he was only told about that. An attendant was @contd.
19present at the ride but he did not check the lock of each seat. He denied that neither defendant company nor their employee were negligent.
17.DW1 is Sh.J.L.Gupta, Manager Law of defendant no.1 company. He deposed on the lines of the WS vide affidavit Ex.D1. In his cross examination he denied the suggestion that M/s ITPO is also liable to compensate the plaintiffs alongwith defendant no.2.
18.DW2 is Sh. Ashok Jetley, General Manager , Project and Engineering of defendant no.2 . He deposed on the lines of WS vide affidavit Ex.DW2/A. He stated that as a matter of practice all the rides were checked everyday from 6.00 AM to 12.00 noon before operation and records of inspection were also maintained. Post accident mechanical inspection was done with a dummy and no defect was found in the locking system. As per him nobody can fell from the seat in the moving ride unless he gets up by removing @contd.
20the lock and safety bar. Deceased must have suffered chest pain and must have stood up which might have caused his fall. He blamed the deceased of negligence for causing this accident.
19.In his cross examination he stated that mechanical inspection of the ride was carried by ITI diploma holders in his presence for which he used to come sometime at 6.00 in the morning. On the date of incident he visited the Appu Ghar at 10.00am. He could not specifically reply if the rides were inspected in his presence on 3.8.03. The operator of the ride at the time of accident was Sh.Rakesh Sharma. The locks are manual and can be opened by the user voluntarily. He denied the suggestion that the locks were automatic and could not have been opened manually. He accepted that defendant no.1 company has no role to play in the technical aspect and operation of Appu Ghar and are also responsible for day to day maintenance of rides.
@contd.
21
20.Other witness examined by defendant no.2 company is D2W2 Sh. Satyabir attendant of my fair lady . He deposed on the lines of WS vide affidavit Ex.D2W2/A. As per him the ride has capacity of 40 persons. He checked the locks of the seat before signaling Sh.Rakesh Sharma to start the ride. On the date of incident i.e.3.8.03, as soon as the ride started and it had taken 12 rounds, one person started shouting ROKO ROKO with his right hand on the left side of the chest. The operator switched off the ride and applied the brakes but that person forcefully opened the lock of the seat and removed the safety belt even before the ride came to a halt. As a result he suffered a fall and got himself hurt by striking against the railing. This man was deceased Sh.Suresh Sehgal.
21.In his cross examination, he stated that he is working for defendant no.2 since 1988 and has mostly worked at my fair lady. He used to issue warning to people suffering from heart problem. He accepted @contd.
22that he only submitted a IX passed certificate and faced an interview for getting the job. The locks of the ride used to close automatically once the safety rod is lowered. He denied that the voice raised by the ride is such that a person can not be hurt.
22.As per him the safety lock can be opened by the occupier of the seat while the ride is in motion. He accepted that in the moving ride the occupier of the seat is pushed to one corner but maintained that even still the lock can be opened.
23.D2W3 is Sh. Rakesh Kumar the Operator of the ride. In his affidavit D2W3/A he also supported the case of the defendant . As per him only 12 persons were sitting on the ride meant for 40 persons. He narrated the incident on the lines of PW Satbir. In his cross examination he stated that he is only 4th passed and there was no eligibility criteria for his appointment as technical operator. He claimed to have underwent a six month training but @contd.
23accepted that he has no document to show the same. He denied that the lock of the seat where deceased Sh.Sehgal was sitting was defective. He accepted that he along with operator Sh.Satbir have been chargesheeted by the police.
24.Next witness is D2W4 Sh. Vishvardhan Chaudhary, Dy. Manager Operation of defendant no.2. He too supported the defendant's case vide his affidavit Ex.D2W4/A. He accompanied deceased to Sanjivani Hospital apart from informing his seniors about the incident. As per him elder son of deceased was unwilling to take any action since he felt that his father died a natural death. He also made a writing to this effect which is Ex.PW1/D2.
In his cross examination , he accepted that he was not part of the team which is supposed to inspect and maintain the rides. He was not a witness of the incident but he reached there upon hearing hue @contd.
24and cry apart from telephonic message. He was unaware as to who wrote text of Ex.PW1/D2 but it was written by someone from the side of deceased. He conceded that this document was not signed by anybody from the side of the defendant no.2 company. He denied that they obtained signature of plaintiff no.1 and 2 on a blank paper in the name of preparation of document of handing over of body.
25.D2W5 is Colonel Prem Vijeshwar , Director of defendant no.2. He also deposed on the lines of written statement vide affidavit Ex.D2W5/A. He maintained that claims qua any accident taking place in Appu Ghar were insured with defendant no.3 company. In his cross examination he stated that he was not present at Appu Ghar on the date of incident but was witness to the Dummy Test conducted on 45.8.2003.
@contd.
25
26.D2W6 is Sh. K.P.Sachdeva, Supdt. Engineer of MCD. He had inspected the ride my fair lady after the accident apart from preparation of report Ex.D2W6/1.
In his cross examination , he expressed his unawareness if he was a member of the MCD Team which conducts yearly inspection before issuance of license. They carried the inspection on 5.8.03 from 5.00 PM to 7.30PM apart from paying a visit on the next day. Police officials including SHO, Addl. SHO, ACP, DCP were also there. He inspected the lock of the seat in question apart from taking ride at different speeds. He accepted that no electrical inspection was carried out. The locks on the seats were having latches systems. He denied that the safety lock could not have been opened by the rider of his own.
27.D2W7 is Sh. Ashok Sharma AE of MCD . He was the part of the team which inspected the site and prepared report Ex.D2W6/1. In @contd.
26his cross examination he stated that he was part of the annual inspection team of the MCD which carried inspection there but they always carried only mechanical inspection and not the electrical one. The locking system of the ride was the manual one. He denied that it was an automatic locking system which could not have been opened. He denied that there was any mechanical failure in the ride at the time of incident.
28.D2W8 is Doctor Sanjay Kumar from PGI Rohtak. He exhibited the pathological report of brain and heart of deceased dated 3.9.03 as Ex.D2W8/1.
In his cross examination he stated that the process of narrowing of arteries can happen since birth and is also an age related process. He also accepted that he did not find complete occlusion in any of the arteries.
29.DW3 is Sh. Munshi Ram , Dy. Manager of defendant no.3 @contd.
27Insurance Company. he deposed on the lines of WS of the Insurance company vide affidavit Ex.DW3/A. He proved the terms and conditions of the insurance as Ex.DW3/1. In his cross examination he admitted that all the rides at Appu Ghar were insured on the date of incident. Under this policy, not only people who used the ride but also the visitor and staff were insured. He denied that Appu Ghar is a joint venture of all the three defendants. He accepted that subject to terms and condition, defendant no.3 insurance company is liable to compensate the riders in case of injury or death.
In his cross examination done on behalf of defendant no.2, he conceded that report on the accident was given to them but it was late. He accepted that he does not have any personal knowledge about the accident in question.
@contd.
28
30.Now I shall dispose off individual issues framed in this case. ISSUENO. 3 & 5
31.
3.Whether the plaint is not properly verified as per provisions of CPC? (OPD2)
5.Whether the suit is not properly valued for the purpose of Court Fees and jurisdiction? (OPD2) An objection was taken by defendant no.2 company qua court fee and jurisdiction and qua valuation but these issues were not pressed during the course of final argument. As such issues stand disposed of accordingly.
ISSUE NO. 1
32.
1.Whether the suit filed by the plaintiff is not maintainable in the present form against defendant no.1 and that defendant no.1 is under no liability to pay any compensation. (OPD1) Plaintiffs have sought compensation under the suit in hand also from defendant no.1 i.e. Indian Trade Promotion Organisation @contd.
29(ITPO) under a plea that the commercial venture of Appu Ghar was floated by it with defendant no.2 as a joint venture. It is conceded by LD . Counsel for plaintiff that there is nothing on record to show that Appu Ghar was a joint venture of the two or that ITPO is vicariously liable for the acts and omissions of defendant no.2. Even the license deed Ex.PW1/5, admittedly, does not contain any clause which can show that it was a joint venture or that there was any mutual understanding of profit sharing etc. In this backdrop I see no reason as to why plaintiffs can maintain this suit against defendant no.1 licensor for the alleged negligent act of defendant no.2, licensee. The issue is answered in favour of defendant no.1 and against the plaintiffs.
ISSUE NO.4
33.
4.Whether the plaintiff is guilty of concealment of material fact as to the health of late Sh. Sehgal? (OPD2) @contd.
30It is the case of the defendant that plaintiffs are guilty of concealment of a fact that late Sh. Sehgal was a hearth patient and was having bad health. Upon being posed a pointed query it is conceded by Ld. Counsel for defendant no.2 that they have not brought any documentary evidence to show that on the day when Sh. Sehgal came to enjoy the ride i.e. 3.8.03, that he was actually a heart patient and also that he and his family were conscious of the same. This plea appears to have been taken on the basis of post accident histopathological report of deceased Ex.D2W8/1. As per Doctor Sanjay Kumar D2W8, three of deceased's coronary arteries had narrowing. It goes without saying that existence of blockages in arteries is something which is present almost amongst all human beings. The only thing which can vary is the quantum / extent of blockages. As rightly accepted by the doctor, the certain blockage starts right from the birth and gradually @contd.
31increases as the person ages. Simply because a middle aged man had certain blockages in his coronary arteries, he can not be presumed to be a heart patient in clinical sense. Until and unless the blockade reaches a state where they can lead to an ischaemic heart attack or atleast an Angina Pain , he can not be tagged/ termed to be a heart patient. When an allegation is made against the family of the deceased of concealment of health facts, it has to be shown that they were conscious of the claimed ill health of late Sh. Sehgal. Until and unless the family of the deceased are shown to be themselves aware of the same, they can not be accused of concealment of it. Moreover, the above report nowhere says that deceased died of a heart attack. In this backdrop, it can not be said that the deceased should not have boarded the ride my fair lady simply because defendant no.2 claims to have erected placards with the writing that heart patients and pregnant lady should not @contd.
32board the ride. As such in view of the above discussion issue is answered in favour of plaintiffs and against defendants. ISSUE NO. 6
34.
6.Whether the suit is not maintainable being beyond the purview of insurance contract? (OPD3) It is argued on behalf of Insurance Company that as per them , deceased died on the jhula itself of heart attack and it is the dead body which slipped off the jhula. This plea of Ld. Counsel for insurance company not only contrary to what the eye witnesses deposed on the record but is also contrary to the medical reports available on record. The falsity of the plea taken on behalf of the insurance company in evidence from the Post mortem report of deceased as per which deceased died of shock and hemorrhage caused by physical injuries and not heart attack. Also as per this report, the injuries suffered by late Sh. Sehgal were ante mortem in @contd.
33nature. Not only he suffered fracture of as many as six ribs but also suffered other external injuries. As concluded supra, mere existence of certain blockages in the coronary arteries of the deceased, does not conclusively show that he was the heart patient. Neither the post mortem report nor the histopathological report shows that the deceased died of heart attack or he was a patient of any heart ailment. As such I find no strength in the plea of the Insurance Company since deceased was a heart patient, the insurance company was not liable to cover the claims and damages qua the accident which led to his death.
35.At this juncture attention of this court is drawn to a purported writing given by plaintiff no.1 and 2 Ex.PW1/D2. Plain reading of the text of this document shows that it has been prepared as if it is a statement given by plaintiff no.2. The language used in this letter clearly shows that it has been so written only with an aim to save @contd.
34defendant no.2 and 3 of the legal fall out of this accident. It is admitted case of the parties that the text of this letter is not in the handwriting of the either of the plaintiffs . It is case of the plaintiffs that they were handed over body of the deceased only after they were made to append signature on a document.
36.It is a settled legal proposition that fundamental right of a citizen to seek legal recourse and avail legal remedies can not be snatched by the claimed wrong doer or violator of the rights. The circumstances under which the above writing was obtained are self indicative of the fact that it was obtained in such a clandestine manner that the document is rendered a self defeating one. The mental state of shock and bereavement of having lost her husband, is something which would necessarily rob a young widow of her mental balance and sanity so as to understand as to what kind of documents is being got signed from her that too soon after the @contd.
35accident on the same day. Further more the document is only a photocopy and as per best evidence rule it was legally incumbent upon the defendant to produce the original. Also the document no where explain the ante mortem injuries sustained by the deceased apart from 6 broken ribs. This shows that the document is not only contrary to the actual incident but was got prepared by defendant no.2 in a haste by incorporating concocted falsity. The document is totally silent on as to how can a household lady come to a conclusion that her husband died of heart attack without even having any basic medical knowledge.
37.It is disturbing to observe that despite being a public limited company which was running a highly successful commercial enterprise in Delhi, aimed at amusing the children and their parents in the capital of India, the defendant no.2 company behaved in such an objectionable petty way that instead of owning up and @contd.
36taking responsibility of the accident, it played dirty tricks by making a widow sign the document which is aimed at robbing her of her legal rights divesting themselves of all legal moral and financial responsibilities . The sheer fact that the text of the document is not in the handwriting of either of the plaintiff and also that author of the text from the side of defendant is still a mystery, shows that this document is legally inconsequential and is indicative of the fact that defendant no.2 adopted an arm twisting and black mailing methodology to further victimise the plaintiff widow. As such in view of the above discussion I am of the considered view that accident in hand comes squarely under the preview of insurance contract and above document is of no avail to defendant no.3. The issue stands decided in favour of plaintiff and against the defendant .
@contd.
37
38.ISSUE NO.2
2.Whether the suit of the plaintiff is not maintainable under the provisions of Fatal Accident Act 1855? (OPD2)
39.An objection was taken on behalf of defendant no.2 that this suit deserves to fail because in terms of Section 1 A of the Fatal Accident Act 1855, plaintiffs are entitled to establish that the accident occurred due to wrongful , negligent act or a default of defendant no.2 .
runs as under:
40.1A of the Fatal Accident Act
1.A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong - Whenever the death of a person shall be caused by wrongful act, neglect, or default is such as would ( if death had not ensued ) have entitled the party injured to maintain an action and recover damages in respect thereof, they party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
@contd.
38
41.The objective of this Act is to provide compensation to families for loss occasion by the death of a person caused by actionable wrong. Here the word actionable wrong indicates that it can be deduced if the act which occasioned the death was either wrongful or negligent or there was a default. It is the case of the plaintiffs that deceased Sh. Suresh Sehgal suffered a fall from My Fair Lady due to defective seat on account of negligence and carelessness on the part of defendant no.2 to ensure the proper safety of the users of the ride. In my considered view these allegations are squarely covered under the Act and it can not be termed to be not maintainable under the Act. Although an endeavour was made by Ld. Counsel for defendant no.2 to show that there was no wrongful act, negligence or default on the part of his client. But simply because in a subsequent inspection , no visible defect could be found in the particular seat of the Jhula, it does not abrogate or rule @contd.
39out the fact that the concerned seat of the Jhula, where deceased was seated, was properly locked before the Jhula started moving. It is not the case of the defendant that the Jhula had an automatic lock or sensor system whereby in case either of the lock is not properly / safely bolted, the sensor would not allow the Jhula to move. It is just akin to a child made to board a taxi with its door left open / unbolted by the driver. Even if there is nothing wrong with the doors lock, but until and unless the lock of the door is bolted safely and securely , despite having no apparent mechanical defect, it can lead to an accident.
42.It is evident from the cross examination of the PW1 Smt. Savita Sehgal that the concerned operator attending the Jhula did not check each and every seat as to whether the locks are properly secured . In his deposition as PW2 , witness categorically stated that after the Jhula had taken 34 rounds , he saw that his father @contd.
40had fallen down from the Jhula and he shouted "ROKO ROKO" to stop the same. Father had fallen down on the platform alongside the railing and had become unconscious. He also maintained that the attendant standing near the ride , did not check the lock of each seat , even though he was duty bound to do so. In order to contradict the deposition of the above two eye witnesses, defendant no.2 company also examined DW2 Sh.Satyabir apart from examining DW Sh.Rakesh Kumar. It is interesting to observe that neither the script nor the story line putforth by these two witnesses find even a remote mention in the written statement of defendant no.2. Their deposition in the affidavit in chief is not only beyond pleadings but also smacks of belated concoction.
43.Still as the legal position stands qua the accident like the one in hand the maxim applicable is Res Ipsa Loquitor . In the case in hand it is not denied by either of the defendants that plaintiffs and @contd.
41deceased visited the Appu Ghar on the fateful day. It is also admitted that they bought tickets and were in the process of enjoying the ride my fair lady. It is also admitted that deceased Sh. Sehgal had fallen down of the ride and he died there. The only point of dispute is whether Sh. Sehgal died of heart attack or died of injuries sustained by him due to the fall. As concluded supra, he did not die of heart attack and rather died of hemorrhagic shock owing to ante mortem physical injuries sustained by him. Having concluded all this the only thing which remains to be ascertain is as to whether defendant no.2 can be made liable for the actionable wrong. In this regard assistance can be had from plethora of judgments of not only of our High Court and Supreme Court but also from various English Laws which are followed by Courts in India as well.
44.Reiterating the view taken in Oleum Gas Leak case, (1987) 1 @contd.
42SCC 395 : (AIR 1987 SC l086) their Lordships have held in Indian Council for EnviroLegal Action v. Union of India, ( l996) 3 SCC 212 : (AIR 1996 SC 1446 (para 65) :
"Once the activity carried on is hazardous or inherently dangerous, the person carrying no such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying, on his activity."
57.In Krishna Bus Service Ltd. v. Smt. Mangli, (1976) 1 SCC 793 . (AIR 1976 SC 700), their Lordships have stated the principle as under (at p. 704 of AIR) : "Where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servant and the accident is such as in the ordinary course of events does not happen if those who have the management use proper care, that affords reasonable evidence, in the absence of the explanation by the defendants, that the accident arose from want of care."
@contd.
43
54.In Sham Sunder v. State of Rajasthan, (1974) 1 SOC 690 : (AIR , their Lordships held that:
1974 SC 890) "the maxim did not embody. any rule of substantial law nor a law of evidence; it was simply the caption to an argument on the evidence."
55.Their Lordships further held (Paras 9, 10 and 11): "The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, it the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.
The principal function of the maxim is to prevent injustice, ,which ,would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the defendant."
@contd.
44
"The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability."
55. Once a special obligation on the owner to take care of the safety of the structure has been shown to exist then as held in MCD v. Subhag Wanti, AIR 1966 SC 1750 (at p. 1753): "It is no defence for the owner to prove that he neither knew, nor ought to have known of the danger. In other words the owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect."
56.In case titled Klaus Mittelbachert v. East India Hotels Ltd., (Delhi) 1997 AIR (Delhi) 201 after having arrived at a finding that the design of the swimming pool was defective, it was concluded that:
@contd.45
"the swimming pool of the defendant's hotel was a trap. It was a 'hazardous premises' in the sense in which the term is used in the law of torts. The liability of the defendants for adverse consequences flowing from the use of the swimming pool an hazardous premises , would be absolute."
57.As none knows what had really happened after the plaintiff had plunged into water and before he came out injured, coupled with the fact that the swimming pool was owned controlled and managed by defendants Nos. 1 and 3, in the absence of an explanation by them inference based on res ipsa loquitur stands drawn that the accident took place from want of care on their part The facts of the case attract applicability of res ipsa loquitor.
57.In case titled The City of Ferguson v. Marrow 210 Federal Report (II Series) 520, the plaintiff, a student of 21 years age, an experienced but not an expert swimmer, took a dive into a swimming pool which had been in operation for about a year before. The depth of the water was insufficient. It was held :
@contd.46
"Presence of diving board at city swimming pool was invitation for its use, with implied representation by city that such use was not dangerous, and city was charged with knowledge of danger of diving therefrom into water of insufficient depth, so as to render city liable in tort for injuries to diver striking his head on bottom of pool, where city gave him no warning of such danger. "
"Evidence showed that danger of diving from diving board at city swimming pool because of insufficient depth of water was not so obvious to one injured in diving therefrom as to eliminate city's failure to warn him of such danger as proximate cause of injury or render him guilty of contributory negligence barring his recovery of damages from city. "
58.In Darrel L. Cummings v. Borough of Nazareth, 233 Atlantic Reporter, 2nd Series, 874, the plaintiff dived from one meter board into a depth of water which was found to be 6' to 87/8" deep while it should have been 910" deep. The plaintiff struck the bottom and sustained injuries leaving him paraplegic. It was held :
"Swimmer who had paid admission fee to swim in borough's pool was business invitee entitled to reasonable care with relation to operation of the @contd.47
pool."
"To successfully charge a plaintiff with assumption of risk, evidence of the danger must be glaringly obvious or patent. "
"Swimmer who dove into borough's pool from diving board and struck bottom with result that he became paraplegic was not chargeable with knowledge of inadequate water under the board in view of lack of knowledge of borough's park manager and two of its lifeguards as to the inadequate water depth. "
"Proof that swimmer suing borough for diving injuries which left him a paraplegic had collided with bottom of pool was not required to be direct; testimony supporting inferences which might reasonably be drawn was sufficient. "
58.So far as the defence of contributory negligence is concerned, it needs a short and summary disposal. Contributory negligence is the conduct of a plaintiff consisting of some act or omission which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence, only in the sense of careless conduct and not given its usual meaning. Thus, it is an express meaning "negligence materially, contributing to the injury."
@contd.
48Contributory negligence is not in itself a bar to the plaintiff's claim but is merely a ground for refusing damages.
59.On the plea of contributory negligence being successfully pleaded by the defendants the Court may order reduction of damages by an amount which is just and equitable. If the blame of the plaintiff be only slight it would not be just and equitable to reduce the damages. The respective blameworthiness of the parties shall have to be weighed and rated. However, where the premises of the defendant suffers from a latent hazard and an invitee for consideration suffers injuries by making a permitted use of the premises, in my opinion the defence of contributory negligence is totally misconceived. The present one is such a case. Hence, the plea that Late Sh. Sehgal must have himself opened the lock is nothing but an opportunist and escapist plea which is of no avail to the defence, @contd.
49
60.In K.S.E.B.
v. Kamalakshy Amma AIR
1987, Kereala 253 a
Division Bench of Kerala High Court held that :
where it is proved that a pedestrian was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of power supply system at the particular place. It was held that the maxim Res Ipsa Loquitur applies to such a case and the onus of proof shifts from the plaintiffs to the defendants. It was further held that Section 114 of the Evidence Act gives a wide discretion to the Court to draw presumptions of fact.
61.In that case the Division Bench of the Kerala High Court referred to the following observations made in the leading case of Scott v. London and St. Katherine Docks Co. (1865) 3 H & C
596) :
"Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable @contd.50
evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
63.In Syed Akbar v. State of Karnataka (2010)12 SCC734 , the Hon'ble Supreme Court discussed the applicability of the maxim Res Ipsa Loquitur in civil as also criminal cases in the light of the provisions of the Evidence Act. In the case the Supreme Court observed as follows :
"The rule of Res Ipsa Loquitur, in reality, belongs to the law of torts where negligence is in issue. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such case that the maximum Res Ipsa Loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the @contd.51
accident must be within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to examine how the accident occurred."
64.In Manohar Lal Sobha Ram v. Madhya Pradesh Electricity Board 1975 ACJ 494 (M.P.), a Division Bench of the Madhya Pradesh High Court held that:
when a live wire carrying high tension energy snapped and was lying on the street and the deceased came in contact with live electric wire and got electrocuted, the burden is on the Electricity Board to prove that there was no negligence on its part and there was no obligation on the plaintiffs to prove negligence.
65.In Padma Behari Lal v. Orissa Electricity Board AIR 1992 , a Division Bench of the Orissa High Court also ORISSA 68 held that:
"where the night in the stormy weather occurred by coming into contact with a live hanging wire detached from the electric pole, the rule of @contd.52
evidence commonly known as Res Ipsa Loquitur applies and that in such a case the claimant is not required to allege or prove and specific act or omission on the part of the respondent. It is for the respondent to establish that the accident happened due to some cause other than his/its negligence. "
66.Case titled S. Vedantacharya v. Highway Department of South Arcot (1987) 3 SCC 400 is a case where a public transport vehicle plunged into the river on the collapse of culvert causing death. The trial Court in that case took the view that the collapse of the culvert raised a presumption of negligence on the part of the department and awarded damages but the High Court, accepting the department's explanation that the culvert gave way due to heavy rain and flood, dismissed the claim. The Supreme Court, however held that the explanation was not sufficient to absolve the department from its liability to pay damages to the claimants unless there is something further to indicate that necessary @contd.
53preventive measures had been taken anticipating rain and flood.
67.Case titled Angoori Devi v. Delhi Municipal Corpn. AIR 1988 Delhi 305 is a case where a temporary electric connection by means of loose and naked wires had been taken in a wooden shack installed on the road side by Delhi Electric Supply Undertaking and as a result of such loose connections, the rain water which was collected around the shack and also the area around the shack got electrified and as a result thereof, a person died by way of electrocution while crossing the area. It was held in that case the death was due to gross negligence of Delhi Electric Supply Undertaking and its servants and hence a sum of rupees one lakh was awarded to the heirs of the deceased by way of damages.
@contd.
54
68. It is thus clear from the decided cases that the burden of proof in a case of this nature rests on the defendant to prove that there was no negligence on its part but not on the plaintiff to prove negligence. Issue is answered accordingly in favour of plaintiff.
69. ISSUE NO. 7
7.Whether the suit liable to be dismissed on account of violation committed by defendant no.2 to the insurance policy? (OPD3) It is argued on behalf of Insurance Company that they are not liable for wrongful acts of defendant no.2 because violations of the insurance contract were committed by them. It is argued that as per the Insurance Agreement , defendant no.2 was supposed to inform them about the accident in writing as soon as possible. As @contd.
55far as this objection is concerned, the written statement of defendant no.3 is silent qua the details there of . In his cross examination , Manager of defendant no.3 Insurance Company Sh. Munshi Ram accepted that due information was sent by defendant no.2 to them but he could not throw more light upon it. Until and unless a point raised by party is brought home by cogent legal evidence, no findings in its favour can be passed. It is admitted case of the Insurance Company that activities of the defendant no.2 were duly insured with them on the date of incident. Once the same is admitted the trivial unsubstantiated pleas taken by the insurance company are of no avail. This issue is accordingly answered against defendant no.3.
ISSUE NO.8
45.
8.To what amount is plaintiff entitled to recovery from the defendant on account of accidental death of late Sh. Suresh Sehgal? (OPP) @contd.
56It is case of the plaintiff that deceased was business man doing sales of electronic spare parts and earning Rs.25,000/ per month. Given his age at the time of his death was 42 years, it is stated that he could continue to earn for other 25 years and being sole bread earner for the family the entire household was dependent on his earning. However, it is conceded on behalf of plaintiff that no separate documentary proof of his claimed monthly earning has been placed on record. It is argued that he was a diploma holder in technology and even if minimum wages of a skilled worker is calculated it would add up to more than Rs.7 lacs as per the multiplier method. There is a catena of judgments on the point of calculation of quantum of compensation in such like fatal accidents.
46.Hon'ble Supreme Court in case titled Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, contended that under the inherent powers of the Court , such relief can be @contd.
57granted by a Court by . Hon'ble Supreme Court made following observations:
"The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."
47. In D.K. Basu v. State of West Bengal, 1997(1) R.C.R.(Criminal) 372 : 1997(1) SCC 416, it was held as follows by the Hon'ble Supreme Court : @contd.
58
"44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public laws proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
45.The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their @contd.59
aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
54. Thus, to sum up, it is now a wellaccepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State if vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the @contd.60
offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect of the same matter for the tortuous act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit."
48.Incidentally, this Court in C.K. Subramania Iyer and others v. T. Kunhikuttan Nair and Six others, 1969(3) SCC 64, while dealing with the matter of fatal accidents laid down certain relevant guidelines for the purpose of assessment of compensation.
@contd.
61Paragraph 13 of the report would be relevant on this score and the same is set out hereinbelow :
"The law on the point arising for decision may be summed up thus : Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may @contd.62
receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the Appellate Court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration." (Emphasis supplied)
49.The observations as above, undoubtedly lays down the basic guidance for assessment of damages but on redeeming feature ought to be noted that compensation or damages cannot be awarded as a solatium but to assess the same with reference to loss of pecuniary benefits. In the decision last noted (1969)3 SCC 64, this Court placed strong reliance on two old decisions of the English Courts to wit : Franklin v. The South East Railway Company, 1957 English Reports 3 H & N, p. 448 , wherein Pollock, C.B. stated :
"We do not say that it was necessary that actual benefit should have been derived, a reasonable expectation is enough and such reasonable expectation might well exist, though from the father, @contd.63
not being in need, the son had never done anything for him. On the other hand a jury certainly ought not to make a guess in the matter, but ought to be satisfied that there has been a loss of sensible and appreciable pecuniary benefit, which might have been reasonably expected from the continuance of life."
50.In AIR 2000 SC 3660, Hon'ble Supreme Court held that:
the adaptability of the multiply method and its acceptability without any exception cannot just be given a go by. This Court in a long catena of cases and without mixing word did apply the multiply method to decide the question of compensation in the cases arising out of Motor Vehicles Act. It is in this context the view of British Law Commission may be noticed and which indicates " the multiplier has been, remains and should continue to remain, the ordinary, the best and the only method of assessing the value of a number of future annual sums". The actuarial method of calculation strictly speaking may not have lost its relevance but its applicability cannot but be said to be extremely restricted said the British Commission.
51.Lord Denning's observations in Hodges v. Harland & Wolff Limited, 1965(1) All ER 1086 , also seem to be rather apposite.
@contd.
64Lord Denning observed that multiplier method cannot but be termed to be of universal application and as such it would meet the concept of justice in the event the same method is applied for determining the quantum of compensation.
52.In Lata Wadhwa's decision in CWP 232/91 factual score records that while 150th Birth Anniversary of Sir Jamshedji Tata, was being celebrated on 3rd March, 1989 within the factory premises at Jamshedpur and a large number of employees, their families including small children had been invited, a devastating fire suddenly engulfed the Pandal and the area surrounding and by the time the fire was extinguished, a number of persons lay dead and many were suffering with burn injuries. The death toll reached 60 and the total number of persons injured were 113. The factual score in Lata Wadhwa's case further depicts that amongst the persons @contd.
65dead, there were 26 children, 25 women and 98 men and Srimati Lal Wadhwa the petitioner in the matter lost her two children, a boy and a girl as also her parents.
53.While dealing with the matter this Court (Pattanaik, J. speaking for the Bench) observed :
"So far as the determination of compensation in death cases are concerned, apart from the three decisions of Andhra Pradesh High Court, which had been mentioned in the order of this Court dated 15th December, 1993, this Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors, 1994(2) SCC 176, exhaustively dealt with the question. It has been held in the aforesaid case that for assessment of damages to compensate the dependants, it has to take into account many imponderable, as to the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life @contd.66
expectancy, the chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether. The Court further observed that the manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both selfmaintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependents, and thereafter it should be capitalised by multiplying it by a figure representing the proper number of year's purchase. It was also stated that much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master, since there are so often many imponderable.
54.In every case, "it is the overall picture that matters", and the Court must try to assess as best as it can, the loss suffered. On the acceptability of the multiplier method, the Court observed :
@contd.67
"The multiplier method is logically sound and legally well established method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. A departure from this method can only be justified in rare and extraordinary circumstances and very exceptional cases."
55.In the decision of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors, 1994(2) SCC 176 , this Court in paragraphs 7 and 8 observed:
"7. In a fatal accident action, the accepted measure of damages awarded to the dependents is the pecuniary loss suffered by them as a result of the death. How much has the widow and family lost by the father's death ? The answer to this lies in the oft quoted passage from the opinion of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 617, which says :
The starting point in the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or @contd.68
basic figure which will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.
8. The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent. Thus 'except where there is express statutory direction to the contrary, the damages to be awarded to a dependent of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependent in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages (Per Lord Macmillan in Davies v. Powell). Lord Wright in the same case said, "The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of the future pecuniary benefit, and on the other any pecuniary advantage which from whatever source comes to him by reason of the death".
These words of Lord Wright were adopted as the principle applicable also under the Indian Act in Gobald Motor Service Ltd. v. R.M.K. Veluswami, @contd.
69AIR 1962 SC 1, where the Supreme Court stated that the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death, must be ascertained."
56.Needless to say that the multiplier method stands accepted our Supreme Court in the decision last noticed and on the acceptability of multiplier method this Court in para 16 had the following to state :
"It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss dependency for 45 years virtually adopting a multiplier of 45 and even if onethird of one @contd.70
fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible. We are, aware that some decisions of the High Courts and this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier method. Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110 B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate @contd.71
method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases."
57.In regard to the choice of the multiplicand the Halsbury's Laws of England in vol. 34, para 98 states the principle thus :
"98. Assessment of damages under the Fatal Accident Act, 1976 The courts have evolved a method for calculating the amount of pecuniary benefit that dependents could reasonably expect to have received from the deceased in the future. First the annual value to the dependents of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wageearner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one half the shortterm investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased's working life at the date of death."
@contd.
72As to the multiplier, Halsbury states :
"However, the multiplier is a figure considerably less than the number of years taken as the duration of the expectancy. Since the dependents can invest their damages, the lump sum award in respect of future loss must be discounted to reflect their receipt of interest on invested funds, the intention being that the dependents will each year draw interest and some capital (the interest element decreasing and the capital drawings increasing with the passage of years), so that they are compensated each year for their annual loss, and the fund will be exhausted at the age which the court assesses to be the correct age, having regard to all contingencies. The contingencies of life such as illness, disability and unemployment have to be taken into account. Actuarial evidence is admissible, but the courts do not encourage such evidence. The calculation depends on selecting an assumed rate of interest. In practice about 4 or 5 per cent is selected, and inflation is disregarded. It is assumed that the return on fixed interest bearing securities is so much higher than 4 to 5 per cent that rough and ready allowance for inflation is thereby made. The multiplier may be increased where the plaintiff is a high tax payer. The multiplicand is based on the rate of wages at @contd.73
the date of trial. No interest is allowed on the total figure."
58.In the case in hand even though deceased was a businessman but even if minimum wage of a skilled worker of around Rs.10,000/ per month is assessed , in the light of above case laws, given the retirement age applicable to government employees i,e, 60 years , deceased had atleast 18 more years on his side of being gainfully engaged in his business. Even if no escalation is applied thereupon the amount reaches to Rs.17.60 lacs. Even if applicable deductions are applied the amount remains above the claim amount of Rs.7 lacs.
59.As such in the light of above case laws and the totality of circumstances, I have no hesitation in concluding that plaintiffs are entitled to compensation of Rs.7 lacs . To the extent the amount is covered under the insurance policy, it shall be payable jointly and severally by defendant no.2 and 3. However, if it crosses beyond @contd.
74the insurance policy offered by defendant no.3, the excess shall be recoverable solely from defendant no.2.
60.I find no separate prayer qua the interest is mentioned in the prayer clause but under the oral prayer and the pleaded prayer that "Any further relief deemed fit and proper", interest of justice demands that plaintiff shall be awarded interest on the claim amount.
61.In case titled Ramesh Chandera v. Randhir Singh, 1990 ALJ 777, it has been observed by Hon'ble Supreme Court that "the claim for interest needs no pleadings and can be allowed on an oral submission. "
62.More so, when around 7 years have passed during the trial in hand coupled with the fact that interest from the Government securities like National Saving Certificates, long term fixed deposits in banks, in my opinion an interest at the rate of 12% per annum will be @contd.
75reasonable in the instant case. As such plaintiffs are awarded 12% p/a on Rs.7 lacs pendentilite and till date of realisation. Issue is answered accordingly.
Relief In view of the decision of above issues, suit of the plaintiff is decreed with cost for a sum of Rs.7 lacs with interest @12% per annum pendentilite & till the date of realisation. To the extent the amount is covered under the insurance policy, it shall be payable jointly and severally by defendant no.2 and 3. However, if it crosses beyond the insurance policy offered by defendant no.3, the excess shall be recoverable solely from defendant no.2.
ANNOUNCED AND DICTATED IN OPEN COURT : 2.4.2011 (SURINDER S. RATHI) ADJ07/CENTRAL DELHI @contd.
76IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07 CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI MONEY DECREE SECTION 34 OF THE CODE OF CIVIL PROCEDURE CS:398/04 ID NO: 02401C5904872004
1.SMT. SAVITA SEHGAL Wd/o Sh. Suresh Sehgal
2. SH.TARUN SEHGAL S/o Late Sh. Suresh Sehgal
3. SH.VARUN SEHGAL S/o Late Sh. Suresh Sehgal All R/o 1074 , Sector 55, Faridabad (HR)
4. SH. MADAN LAL SEHGAL (DEAD)
5. SMT.RAJ KUMARI Mother of Late Sh. Suresh Sehgal R/o House No.344, Sector 7-A, Faridabad (HR) .....Plaintiffs Vs.
1. INDIA TRADE PROMOTION ORGANISATION Pragati Maidan, New Delhi.
2. M/s INTERNATIONAL AMUSEMENT LIMITED Charminar Bazar, Pragati Maidan, New Delhi
3. M/s. THE ORIENTAL INSURANCE COMPANY LTD. F-20, United India Life Bldg.
Connaught Circus, New Delhi.
4. SHRI RAKESH KUMAR SHARMA (Dropped) S/o Sh. Madho Ram Sharma R/o E-85C, Village Mohammadpur, R.K.Puram, New Delhi.
5. SHRI SAMAYVEER SINGH (Dropped) S/o Sh.Ram Dutt R/o Village Sultanpur Dabas Delhi.
....................Defendants @contd.
77SUIT FOR RECOVERY OF Rs.7,00,000/- ON ACCOUNT OF DAMAGES FOR THE DEATH OF SHRI SURESH SEHGAL S/O OF SHRI MADAN LAL SEHGAL DATE OF INSTITUTION : 20.11.2004 DATE OF FINAL ARGUMENT : 29.03.2011 DATE OF JUDGMENT : 02.04.2011 IN THE PRESENCE OF Ld. Counsel Ms. Manu Tomer advocate for plaintiffs Ld. Counsel Miss Neha Bhatnagar advocate for defendant no.1 Ld. Counsel Deepak Sharma advocate for defendant no2, Ld Counsel Sh. R.N.Sharma advocate for defendant no.3 This suit coming for disposal before me , it is ordered that suit of the plaintiff is decreed with cost for a sum of Rs.7 lacs with interest @12% per annum pendentilite & till the date of realisation. It is further made clear that to the extent the amount is covered under the insurance policy, it shall be payable jointly and severally by defendant no.2 and 3. However, if it crosses beyond the insurance policy offered by defendant no.3, the excess shall be recoverable solely from defendant no.2.
Costs of the suits
Plaintiff Defendant
Stamp for plaint 9180 Stamp for power NIL
Stamp for power 4 Stamp for exhibits NIL
Stamp for exhibits Stamp for petition NIL
Pleader's fee Pleader's fee NIL
Subsistence for witness Subsistence for witness NIL
Commissioner's fee Commissioner's fee NIL
Service of process 23 Miscellaneous NIL
Miscellaneous 32
Total 9239 Total NIL
Given under my hand and the seal of this court, Dated 02.04.2011.
ADJ:07:CENTRAL DELHI @contd.
78CS:398/04 ID NO: 02401C5904872004 02.04.2011 Pr: Ld. Proxy Counsels for both the parties Vide a separate judgment of the day suit of the plaintiff is decreed with cost for a sum of Rs.7 lacs with interest @12% per annum pendentilite & till the date of realisation. It is further made clear that to the extent the amount is covered under the insurance policy, it shall be payable jointly and severally by defendant no.2 and 3. However, if it crosses beyond the insurance policy offered by defendant no.3, the excess shall be recoverable solely from defendant no.2. Decree sheet be prepared accordingly and file be consigned to RR.
(SURINDER S. RATHI) ADJ-07/CENTRAL DELHI: 02.04.2011 @contd.
79@contd.