S.Gurcharan Singh vs S.Kuldip Singh

Arun Kumar Goel, judge.

This appeal is directed against the judgments passed by Motor Accidents Claims Tribunal, Jammu, oh 1731986 in File No. 85/claim, whereby

compensation in the sum of Rs. 1,40,000/ has been held payable by the appellant to the respondent together with interest at the rate of 6 percent

per annum from 991983 till the date of payment.

Brief facts giving rise to this case are that on 381983 Smt. Rajinder Kour deceased was accompanied by PWsNeelam Kumari and Uma Devi.

All three of them were going to answer the call of nature. While they had reached village Shahdulla South wards in the direction of R. S. Pora,

according to respondent, Motorcycle bearing registration no. PUG2174 struck against the deceased resulting in causing fracture of her legs

besides having caused injuries to one of the three ladies, namely Uma Devi. This motorcycle was being driven by the appellantGurcharan Singh,

who came on the wrong side of the road that too without blowing the horn. Deceased was stated to be eight months pregnant and had a female

feotus. Immediately after injuries had been sustained by Smt. Rajinder Kour she was removed in a truck to R. S. Pora hospital and from there she

was brought to Government Medical College, Jammu, finally on the next date i.e. 481983 Smt. Rajinder Kour succumed to the injuries. The

deceased at the time of accident was employed as a school teacher in Government Primary School, Pagwara, and her salary, according to

respondent was Rs 700/ per month and was aged 24 years. In this background compensation in the sum of Rs. 6,62,000/ was claimed against

which above noted compensation was granted with costs of Rs. 500/ by the Tribunal below.

The claim petition came to be contested and resisted by the appellant who amongst other things while denying the ownership of the motor cycle

on the date of accident also denied that he was driving the same and much less having caused accident which resulted in the ultimate death of Smt.

Rajinder Kour.

On the aforesaid pleadings parties went to trial on the following issues before the learned Tribunal :

Whether the death of Smt. Rajinder Kour W/o. the petitioner was the result of rash and negligent driving of Motor Cycle No. PUG2174 driven

by the respondent at Kotli Shahdulla at JammuR. S. Pora road on 381983 ? OPP.

In case issue no.1 is proved in the affirmative to what claim of compensation the petitioner is entitled from the respondent? OPP.

Relief. OPP

Learned Tribunal below after conclusion of the trial has awarded the compensation, hence this appeal at the instance of the appellant who was

originally arrayed as respondent before the Tribunal below :

Learned Senior Counsel appearing for the appellant submitted that his client has been falsely implicated in the case as no accident has taken

place, appellant having not been identified by the socalled eye witnesses, i.e. PWsNeelam Kumari and Uma Devi, was another ground pressed in

support of this appeal. Further statements of the claimant and his other witnesses having been recorded by the police much later after the accident

also urged as a ground in support of this appeal. Another plea urged was that appellant was prosecuted and has been convicted under Section 304

Ranbir Penal Code as such there was no question of his having driven the motorcycle in a rash and negligent manner and respondent having

remarried disentitles him from claiming any compensation.

All these pleas urged on behalf of the appellant have been stoutly controverted by 3hri Thakur who submitted that the award of the learned

Tribunal below deserves to be upheld rather, according to him, the award is on conservative side and keeping in view the peculiar circumstances of

the case it is liable to be enhanced.

Reference was made by both the learned counsel to the evidence examined during the course of proceedings before the learned Tribunal below

and in support of respective contentions reliance was also placed on proceedings.

It may be worthwhile to notice here that respondentKuldip Singh having remarried is not in dispute and is clearly made out from his

crossexamination wherein he has clearly admitted that he married for the second time four five months ago. His statement was recorded on

14.5.85 before the Tribunal below which indicates that he married somewhere in December 1984/January 1985. Second wife of the respondent

being employed and earning Rs. 1600/ per mensum is also not in dispute, in view of the facts detailed in CMP (C) 72/1991 where in para 5 it was

pleaded as under :

That the newly married wife of the respondent Kuldip Singh is in service and is drawing Rs. 1680/ per month as her emoluments. Copy of

attestation to this effect is enclosed herewith as Annexure P2.

Reply to this para of the application is to the follow wing effect:

That, para 5 of the application is admitted to the extent that the nonapplicant has remarried.

On this application the court had passed the following order on 2621992 :

Because of the aforesaid reasons, this application is disposed of and it is directed that evidence shall not be taken in the appeal.

Similarly there is another order passed by this court on 2431992 which is to the following effect:

Mr. H. L. Bhagotra.

Mr. R. S. Thakur.

At the request of learned counsel for parties and in view of the tact that it was not possible to conclude the hearing within one or two days, matter

is adjourned and be listed on a date to be fixed by A. R. after vacations.

In the meanwhile the appellant is directed to deposit an amount of Rs 25.000/ with the D. R. of this court by April 17,1992. The money shall be

kept in a Short Term Fixed Deposit. At the same time, learned counsel for respondent, Mr. Thakur, undertakes to furnish the date of remarriage of

respondent to the court as also to the counsel for opposite side. Mr. Thakur shall be at liberty to file an application for release of the money to be

deposited by the appellant.

Despite having undertaken to furnish the date of remarriage of the respondent to the court as also to the counsel for the opposite side, needful was

not done till date.

So far plea on behalf of appellant that vehicle was not involved in the accident in question is concerned, for the reasons set out hereinafter, the

same deserves to be negatived on the basis of evidence on record.

In this connection reference can usefully be made to the statement of PWPreetam Singh who has clearly identified the respondent having come

on the motorcycle in question from R. S. Pora side to Jammu then having gone 20/25 yards ahead when again he returned at a speed of more than

50/60 Kms. towards Jammu side and struck the deceased who was in the centre amongst the three ladies. This witness has further stated that the

deceased was dragged which fact is corroborated by PWNeelam Kumari as well as by PWUma Devi and Kahar Singh who is another

independent eye witness of the incident in question. As a result of this accident Uma Devi sustained injury who fell first of all and thereafter the

motorcycle struck against the deceased and dragged her. Factum of accident having taken place is further corroborated from the statement of

Mohd Yusuf Head Constable, who had investigated the case after registration at Police Station R. S. Pora at the time of accident. This witness has

proved copy of First Information Report no. 237/1983 as well as Spot MapEXPWM4/1, prepared by him after the accident. Respondent having

left the hours when the deceased had also gone out on the fateful day at about 7.30 in the evening alongwith other two ladies named above and

when he reached the spot he saw that the accident had taken place. He is specific about one fact that the appellant was present at the spot and his

motorcycle bearing registration no. PUG2174 was also lying there. Respondent has further stated that as a resultt of this accident he sustained

great mental shock, he was not in a position to take any thing. Deceased having good health as also been pregnant has categorically been stated by

this witness.

Regarding title of the motorcycle in question being with the appellant is proved by RWMadan Lal. This witness has categorically stated that in

August 1983 he was real owner but the registered owner was S. Preetam Singh. However, in his crossexamination he has specifically stated that

the motorcycle in question was sold by him to the appellant who was its ostensible owner. Though respondent while appearing as his own witness

has made an attempt by stating that he purchased the motor cycle in question somewhere in the month of October 1983 or December 1983. In

this crossexamination appellate with a view to explain injuries on his person has put up a defence to the effect that the injuries were sustained by

him at his residence due to fall in the stairs somewhere around on 1st or 2nd August and had been tot he hospital on 2nd August, where his injuries

were banadaged when on 3rd August again the appellant went to the spot he was admitted in the hospital at R. S. Pora.

This court on the nature and quality of evidence is fully satisfied that it was the appellant who was driving the motorcycle in question in a rash

and negligent manner due to which accident was caused by him resulting in injuries to the deceased as well as to the other PW accompanying her.

There appears to be no reason for the PWs who accompanied the deceased and for that matter other witness produced on behalf of the

respondent would shield the real culprit as well as to get the appellant falsely implicated in this case. This is one reason not to accept the plea of the

appellant about his noninvolvement in the accident in question.

Shri Bhagotra urged that in a case under Section 304 Ranbir Penal Code element of rashness and negligence is not there and his client having

been convicted under Section 304 Ranbir Penal Code further shows that the element of rash and negligent driving on the part of appellant being

not there, the appeal deserves to be allowed.

This argument does not, in any manner, improve muchless advance the case of the appellant. So far onus of proving guilt is concerned, (in the

absence of statutory presumption which is not there in the present case), it is always on the prosecution. Besides this, the negligence which would

be necessary to be established for sustaining a conviction heas to be culpable or of a gross degree. Mere negligence cannot be termed to be

negligence within the ambit of criminal law for basing the conviction thereon. Further when the attention of an accused had been drawn to his any

particular act and his approach that he will not care, such an act consititutes negligence. A negligent act has to be something more than mere

neglect or omission of duty, whereas in civil matters the case has to e disposed of on preponderance of probability of evidence which may in a

given case be sufficient, as in the present case, to fix the respondent with the liability. It may also be clarified here that onus in a civil case is not

statis which is also in the case.

Another reason for taking this view is that while in a civil matter contributory negligence is a good defence for scaling down the compensation

whereas such negligence of an injuried in a criminal case is no defence.

That being so in so situation it can be said that the judgment of the criminal court is binding upon a Motor Accidents Claims Tribunal before

whom a claim petition is pending for awarding compensation in case of death or injury. Maximum the purpose of criminal judgment can be that as

envisaged under Section 43 of the Evidence Act. Such an interpretation would be in consonance with the fundamental principles of natural justice

as well as public policy, which both would be defeated in case a contrary view is taken. Therefore, the plea of the appellant having been convicted

under Section 304 Ranbir Penal Code has no substance and is accordingly rejected.

Next question that needs to be examined is as to whether the compensation assessed by the Tribunal below is legally sustainable or not.

Again certain facts need to be repeated here in the background of this case. Accident took place on 381983, deceasedwife of the respondent

was an earning hand whose salary has been proved to be Rs. 696.80 per month as per statement of Jaswant Singh, Block Education Officer,

Mirasahib, in which block deceased was working at the relevant point of time. In view of the facts detailed in CMP (C) 72/1991 and the order

passed by this court thereon as well as in view of the admission of the respondent in his cross examination, it is clear that he remarried somewhere

in the month of December 1984/January 1985, although the date was required to be provided by the learned counsel for the respondent which he

has not done till date, and it is further clear from the order of the court reproduced hereinabove that the salary of the second wife of the respondent

is around Rs. 1600/ per month and she is also employed as a teacher, it is this backdrop that the matter relating to assessment of compensation has

to be seen by this court.

In 1985 Accidents Claims Journal 742, Nirmal Kumar and others vs. Munna and others, the Division Bench of the Madhya Pradesh High

Court held as under :

So far as the merits of the case are concerned for enhancement of compensation it is not in dispute that the deceased who was a yound

educated lady of 31 years died in tragic circumstances on account of the said accident. It is clear from the claimants' evidence that she was earning

by way of private tuitions and there appear no reason to doubt the restimony of the witnesses on this point that she was earning Rs.

250/approximatelv per month, therefore, even assuming that she was spending Rs. 150/ on herself, depending of the family on her income was to

the tune of Rs. 100/ per month. It was also not disputed, considering the logevity in the family that the deceased could have normally lived for

another period of 25 years and would have also earned during that period, it also cannot be lost sight of the fact that appellant nos. 2, 3 and 4,

who are minor children have been deprived of the affection and care of their mother at a time when it was very much needed. It is no doubt true

that the appellant no.1 has remarried after some time, but that by itself would not be a valid ground not to award sufficient compensation to the

other claimants, who are minor children.

The learned counsel for the appellant in support of his claim for enhancement placed reliance on the decisions reported in Municipal

Corporation of Delhi Vs. Kuldip Lal Bhandari, 1971 ACJ 131 (Delhi) and Golu Vs. Jaswant Singh, 1984 ACJ 155 (PandH). he, therefore

submitted that applying the multiplier of fifteen, a total compensation on all the counts amounting to Rs. 25,000/would be just and reasonable even

after considering the uncertainties of life. Thus, after considering the facts and circumstances of the case as a also the evidence and material on

record, we are of opinion that the compensation awarded by the learned member of the Tribunal is somewhat low and deserves to be enhanced

and in our opinion a sum of Rs. 25,000/ in all will be a just, proper and reasonable compensation.

Further after having considered the aspect of remarriage the Madhya Pradesh High Court ordered that a sum of Rs. 8,000/ each be paid to the

minor claimants whereas husband of the deceased would be paid Rs. 1,000/ only.

In 1987 Accidents Claims Journal 721, Radha Krishna Narang Vs. U. P. State Road Transport Corporation and another, after having

considered the effect of remarriage where the deceased wife of the claimant was aged 21 1/2 years and was educated having undergone senior

course in music and was running a Music school and in that case the claimant was housband, there being no evidence of defendants on the earning

of the deceased. While taking into accounts all these facts Including the fact that second wife was earning hand a compensation of Rs. 6,000/ was

allowed after having held that whatever loss was caused to the appellant by the death of his first wife was compensated by remarriage, whereas in

the present case the income of the second wife is almost approximately 2 172 times than what was being earned by his first deceased wife.

In 1982 Accidents Claims Journal (Supp.) 585, Basappa and another vs. K. H. Sreenivasa Reddy and others, while awarding a compensation

of Rs. 15,000/ for loss of consortium for the period till the husband remarried as well as for providing the care and protection to the minor children,

it was held as under:

That leads us to the question of quantum of compensation to which the claimants in each case are entitled. We will first advert to

Miscellaneous ' (MVE) Case No.6 of 1978 in which the husband of Sharadamma has claimed compensation for the death of Sharadamma in the

accident. Sharadamma was aged about 24 years at the time of her death by accident. It is further in evidence that she was pregnant. As she was

killed in the accident, the husband lost the services of his wife, lost consortium and has claimed compensation of Rs. 50,000/. It is also in evidence

that by the time the petition came up for evidence, the husband of the said Sharadamma had remarried in May 1978. Therefore, it was submitted

before us that the question of loss of consortium and loss of services of the wife, are no longer available to the claimant. It is, however, on record

that deceased Sharadamma has left behind her, two minor children. It may be that the husband has got another wife; but the children cannot have

another mother. They would, after all, have a step mother and the treatment by a stepmother has become proverbial in Hindu society. Therefore, it

would be necessary for the husband to make arrangements for the proper care and protection of his minor children by engaging the services of at

least a maid till the children attain the age of discretion. Therefore, the husband would be entitled to compensation for the loss of consortium for

about ten months till he remarried and he would also be entitled for compensation for the amount that he is likely to spend for the care and

protection of the minor children of deceased Sharadamma. Having regard to these, we think it proper to award compensation of Rs. 10,000/. He

is also entitled for compensation of Rs. 10,000/. He is also entitled for compensation for the loss to the estate of the deceased at Rs. 5.000/.

Together, therefore, we hold that the claimant is entitled for compensation of Rs. 15,000/, together with interest thereon at 6% per annum from the

date of petition till payment. Hence, Miscellaneous First Appeal No. 259 of 1980 is entitled to succeed in pArticle

In 1986 Accidents Claims Journal, 130, Purnima Vindal and others vs. Chaptar Mai and others, the Punjab and Haryana High Court while

dismissing the appeal of the claimant husband observed as under :

There is no claim in this case for compensation for the loss of service of the deceased as a housewife, this claim was presumably not pressed

by the counsel for the appellant in view of the remarriage of Sham Sunder Vindal within a year and a half of the death of the deceased.

Considered in the totality of the circumstances of the case and the evidence on record, there is no escape from the conclusion that the

claimants have failed to establish any such loss having accrued to them on account of the death of the deceased as could entitle them to any

compensation.

In AIR 1970 Rajasthan 111, R. B. Moondra and Co. vs. Mst. Bhanwari and another, while considering a case under Workmen's

Compensation Act as well as in the light of Hindu Adoption and Maintenance Act, 1956, following observations were made in para no.19 of the

judgment :

The last contention that the widow became debarred from claiming compensation on account of her remarriage has also no force because in

the Act there is no such provision that after remarriage widow of the deceased would not be regarded as a dependent. Under Section 21 of the

Hindu Adoptions and Maintenance Act, 1956, a widow remains a dependant, within the meaning of that section so long as she is not remattied.

But the definition of the 'dependent1 under the Act is not so restricted and the fact that she has remarried will not disentitle her to claim

compensation under the Act.

Reliance on this case was placed by Shri Thakur. When a reference is made to the law laid down in this judgment to the facts of the present case,

it is wholly inapplicable.

Similarly in the case reported in AIR 1981 Karnataka, 70f Smt. Rajabi and another Vs. The Oriental Fire and General Insurance Company Ltd.

Coimbatore, on which reliance by Shri Thakur was placed for dismissal of this appeal, does not advance the case of the respondent in any manner.

In that case on examination of the evidence the High Court of Karnataka came to the conclusion that Tribunal was not justified for employing five

years purchased value in quantifying the compensation because chances of remarriage of the claimant Smt. Rajabi were vcery remote. In the

present appeal the situation is totally contrary on facts when marriage is admitted as also income of the second wife, as noticed hereinabove.

Examining the present appeal, in the llight of the abovenoted decisions as well as on the evidence produced by the respondent, this court is

required to determine whether the compensation awarded by the learned Tribunal below deserves to be upheld or not.

On an overall examination of the evidence produced by the respondent as well as in the face of uncontroverted fact of his remarriage after about

17/18 months of the death of his first wife it is to be seen what compensation should be allowed to him. No doubt, respondent has categorically

stated that he sustained mental shock as a result of this accident which resulted in his giving up his foot etc. In these circumstances, it is found that

he is entitled to compensation for pain and suffering sustained by him due to death of his first wife till he remarried besides also suffering on account

of loss of consortium due to death of his first wife till the date of his remarriage. In view of the fact that the deceased was carrying eight months

pregnancy and it having come on record that with the death of Smt. Rajinder Kour wife of the respondent eight months female feotus was also lost,

some compensation would be admissible to the respondent on this count also and lastly respondent is also entitled to compensation on account of

expenses incurred by him for taking his wife to R. S. Pora in a truck and from there to the hospital at Jammu, where she ultimately died, in addition

to expenses of funeral etc. It is considered just and proper to allow a total compenstion of Rs. 55,000/ in all on lumpsum basis under all Heads

with interest at the rate of 6 percent per annum from the date of filing of claim petition before the Tribunal below i.e. 991983, till the date of

judgment and the award passed by the learned Tribunal below is modified to this extent.

No other point is urged.

As a result of the aforesaid discussion, this appeal is partly allowed and award passed by the learned Motor Accidents Claims Tribunal, Jammu, in

File No. 85/claim on 1731986 in case titled S. Kulbir Singh Vs. Gurcharan Singh, is ordered to be modified thereby holding that instead of Rs.

1,40,000/ the respondent is entitled to Rs. 55,000/ as compensation payable by the appellant together with interest at the rate of 6% per annum

from the date of filing of claim petition, i.e. 991983, till the date of final payment. It is further ordered that if any amount is received by the

respondent under 'no fault liability' or under the orders of this court during the course of the proceedings in the present appeal that shall be liable to

be deducted. Besides this surplus amount if any received by the respondent shall be refunded by him within a period of ninety days from today,

failing which he shall be liable to pay interest at the rates of 12 percent per annum w.e.f. 24.1.999 onwards till the date of refund. Registry is

directed to refund, if any surplus amount is lying in the Registry together with interest if any accurred thereto to the appellant.

Appeal stands disposed of. Costs on the parties.