Smt. Raj Kumari and others vs State of Haryana and others

Rajendra Nath Mittal, J.—This judgment will dispose of F.A.O. Nos. 27 of 1971 and 165 of 1970 which arise cut of the same judgment of the Motor Vehicles Claims Tribunal, Ambala (hereinafter referred to as the Tribunal) dated August 26, 1970.

The facts of the present appeals are that on May 29, 1968, Dr. Jaswant Rai Sud was going on his motor cycle alongwith Behari Lal who was sitting on pillion seat from the side of Central Jail, Ambala towards Ambala City. Respondent No. 3 Prem Singh (hereinafter referred to as the ''driver'') was driving Haryana Roadways Bus No PNU-1939 from Ambala City Bus Stand towards Grand Trunk Road. At the inter-section of the two roads near Arya High School, Ambala City, the bus and the motor cycle collided, which caused injuries to Dr. Jaswant Singh Sud and Behari Lal. Dr. Sud died as a result of the injuries. He was aged 42 and was working as Incharge of the Polios Hospital, Ambala City at that time. His total monthly emoluments cams to Rs. 537/-. The applicants filed a claim application u/s 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the ''Act) claiming an amount of Rs. 5, 46, 138. 77 on the ground that the accident took place as the driver was driving the bus rashly and negligently. All the three respondents, namely'' the State of Haryana the Haryana Roadways and Prem Singh driver contested the claim of the claimant-appellants. They inter alia, pleaded that the accident took place on account of rash and negligent driving of the motor cycle by the deceased himself-that the deceased on seeing the bus became nervous and confused and the driver in spite of his best efforts could not avert the accident. It is also stated that the deceased before entering the intersection of the road did not care to see towards his left side. On the pleadings of the parties, the following issues were framed :--

(1) Whether the accident was caused due to the negligence of Prem Singh respondent No. 3 due to which Dr. Jaswant Ral Sud died and injuries were caused to Bihari Lal petitioner ?

(2) To what compensation, if any, are the petitioners entitled ?

(3) Relief?

The Tribunal held that the driver as well as the deceased were driving their respective vehicles negligently and that the claimants were entitled to Rs. 67, 550/- on account of damages. Consequently, it allowed the claim to the extent of the said amount The State as well as the claimants have come up in appeals to this Court. The appeal filed by the former has been numbered as F.A.O No. 27 of 1971 and by the latter as F.A.O. No 165 of 1970. 1 will first deal with F.A.O. No. 27 of 1971.

F.A.O. No. 27 of 1971 :

The only contention of the learned counsel for the State is, that the learned Tribunal has held that the driver and the deceased both were negligent. He further submits that the Tribunal has erred in apportioning the liability of the deceased and the driver in the ratio of 25:75. I have heard the respective contentions of the learned counsel for the parties. It is an admitted fact that the place where accident took place was a road Intersection. In Regulation 6 of Tenth Schedule of the Act it is provided that the driver of a Motor vehicle shall slow down when approaching a road inter-section and shall not enter any such inter-section until he has become aware that he might do so without endangering the safety of persons thereon. The aforesaid Regulation is as follows :--

The driver of a motor vehicle shall slow down when approaching a road inter-section, a road junction or a road corner, and shall net enter any such inter-section or junction until he has become aware that he may do so without endangering the safety of persons thereon.

On reading the Regulation it is clear that a duty is enjoined on the driver of both the vehicles which are approaching an inter-section not to enter the inter-section till they are sure that they will not endanger the safety of persons thereon by doing so In the present case, it was duty of the deceased as well as the driver not to enter the inter-section without making themselves sure that another vehicle was reaching the intersection along the other road. In case one of them had been slightly cautious, the major accident could have been avoided. In the circumstances, I am of the view that both of them are equally responsible for the said accident. In a similar case in similar circumstances in The Tourist Co-operative Transport Society Ltd Ambala City v. Dr. Om Parkash, (1973) 75 PLR 486 I had held as follows :--

Regulation 6 of the Tenth Schedule of the Motor Vehicles Act, 1939 provides that the driver of a motor vehicle shall slow down when approaching a road inter-section and shall not enter any such inter-section until he has become aware that he may do so without endangering the safety of the persons thereon. A duty is enjoined by the Regulation on the drivers of both the vehicles which are approaching an inter-section to see that the safety of the persons thereon is not endangered.

In the circumstances, I accept this contention of the learned counsel for the State and hold that both are liable for negligence equally.

F.A.O. No. 65 of 1970:

3 The learned counsel for the claimants has argued that the Tribunal has erroneously deducted an amount of Rs. 30,000/- received by the claimants as insurance money, Rs. 29760/- towards pension under the Family Pension Scheme and Rs. 4,000/- on account of gratuity. It has been settled by a Division Bench of this Court in Damyanti Devi and Others Vs. Sita Devi and Others that the amount received by the claimants from insurance policy of the deceased should not be deducted from claim. The observations of the learned Bench are as follows :--

The benefit if any derived by the legal representatives of a deceased from a policy of insurance of the deceased is not because of the tortious act of the wrong doer which resulted in his death, but on the footing of a contract which the deceased had entered with the insurer under which he paid the premium. The insurance amount really represents compensation in respect of the capacity to save, which existed at the time of his death and would have continued in future.

Since in the present case the savings of the deceased were not taken into consideration while determining the compensation no deduction could be made on account of the insurance amount received by the widow on the death of her husband.

In the aforesaid circumstances, I am of the view that the Tribunal has wrongly deducted the amount of insurance money received by the claimants out of their total claim as allowed by it. There is, however, no fault in the reasoning of the Tribunal in deducting the amounts received by them as pension and gratuity. They are not entitled to receive the said amounts twice As a result of the above discussion I partly accept the contention of the learned counsel for the claimants.

The next contention of the learned counsel for the claimants is that the children and widow of the deceased have been deprived of love, affection, consortium etc. of the deceased. He further urges that the claim of Rs. 35.000/- on this score should not have been disallowed. There is force in the contention of the learned counsel for the claim-arts. There is no doubt that in addition to the material loss, the children and the wife are also deprived of the love, affection consortium etc. on the death of their father/husband. In my view they ate entitled to the compensation on the aforesaid ground. In the present case Rs. 5,000/- will be an adequate compensation. In Major Jagjit Singh v. Kartar Singh, (1973) 85 PLR 360 an amount of Rs. 5,000/- was given on account of loss of love, affection, consortium etc. of the deceased in similar circumstances, I therefore, allow Rs. 5,000/- on that account.

The last contention of the learned counsel for the claimants is that the Tribunal has wrongly deducted an amount at the rate of 15 per cent on account of lump sum payment. He urges that no deduction should have been made in view of the circumstances of this case. I have heard the contentions of the learned counsel for the parties. In the present case, no payment has been made by the State out of the amount awarded as compensation to the claimants uptil now. The accident took place in May, 1968 and the award was given by the Tribunal in August, 1970. The price index during the last five years has gone very high. The claimants have suffered interest which they would have received on the awarded amount. In Damaycnti Devi''s case, no deduction was allowed on account of lump sum payment. The reasoning of the learned Bench is that the claimants had been deprived of the interest on the amount for a long time, that their necessities would increase with advancement of age and that an increase in income of the deceased in future years had not been taken into consideration. In the present case, the increase in income has been taken into consideration. In Major Jagjit Singh''s case (supra) a cut was held to be valid on the ground that an increase in income of the deceased was taken into consideration. No doubt the facts in the present case are similar. The learned Bench, however, did not take into consideration the tremendous rise in prices in the last two years. This fact cannot be ignored while awarding compensation In the circumstances I reduce the percentage of reduction on account of lump sum payment from 15 per cent to 7� per cent. I, therefore, partially accept this contention of the learned counsel for the claimants.

As a result of the aforesaid discussion the claimants are entitled to the following compensation:--

S. No.

Details of claim

Amount Rs.

Loss in salary, non-practising allowance, dearness pay, etc. (item No. 1 of the Schedule).

1,88,024-25

Gratuity (item No 3. of the Schedule) ...

17,225 00

Loss in pension (item No. 2 of the Schedule).

66.503-52

Loss in private practice at Rs. 500/. P.M. from the date of retirement till the age of 70.

72.000-00

Loss of love, affection and consortium ...

5,000 00

Total;

3.48,752-77

Deduction of 1/3rd amount that the deceased would have spent on himself out of items 1 to 4:

1.14.584.27

Balance.

2,34,168 50

Deduction of 50% on account of contributory negligence.

1.17.084-25

Balance,

1,17.084-25

Deduction of 71/2% on account of lump sum payment.

8.781-31

Balance:

1''08,302 94

Deduction on account of payment of pension and gratuity.

33.760-00

Net amount payable to the claimants:

74,542-94

In view of the aforesaid observations, I partially accept the appeals, modify the judgment of the Tribunal and enhance the compensation to Rs. 74,542,94 Paisa. In view the partial success of both the parties I leave the parties to bear their own costs of the appeals.