State of Himachal Pradesh vs Saroj Bala and Others

L.S. Panta, J.—The above appeal by the State of H.P. is directed against the judgment and order dated 18.1.1992 of Motor Accidents Claims Tribunal (II), Sirmaur District at Nahan in Claim Petition No. 19-N/2 of 1990, whereunder the legal representatives of deceased Baldev Singh have been awarded a sum of Rs. 2,00,000 by way of compensation.

Baldev Singh was working as Head Constable in Police Station, Paonta Sahib in the year 1989. On 14.8.1989, he was travelling in the mini bus No. HIN 575 belonging to the appellant State on his official duty. Rehmat Ali respondent No. 5 herein was the driver of the said bus which was going on Badripur-Jamniwala Road on the relevant day. The said bus met with an accident, resulting in the death of Head Constable Baldev Singh. The legal representatives who are the widow and minor sons and daughter of deceased Baldev Singh filed claim petition before the Tribunal below, inter alia, on the ground that the accident occurred due to rash and negligent driving of the bus in question by respondent driver, who was under the influence of liquor and could not control the vehicle. The age of the deceased was said to be 35 years and his monthly income/salary was Rs. 2,000.

Written statement on behalf of the State was filed by the Director General of Police, H.P. admitting the accident. He stated that on 14.8.1989 at about 9.45 p.m., a telephonic message was received in the police station to the effect that Tarsem Singh of village Badripur was giving beating to his father Banta Singh which required immediate action by the police. On such information, Head Constable Baldev Singh proceeded to village Badripur along with Head Constable Chaman Lal and LHC Mehal Singh through mini bus No. HIN 575. The bus was being driven by respondent driver. During the course of investigation, it came to light that when the police officials reached Badripur, said Tarsem Singh and his father Banta Singh had reconciled their differences and, therefore, no action was required to be taken by the police. Thereafter Head Constable Baldev Singh instead of returning to the police station went to the house of one Surjit Singh of the same village who was known to Baldev Singh and obtained two bottles of liquor from him which were consumed by HC Baldev Singh and respondent driver. Later on, half bottle of liquor was again obtained from Surjit Singh and the same was also consumed by HC Baldev Singh and respondent driver. The other policemen accompanying them did not take the liquor. After consuming the liquor HC Baldev Singh directed respondent driver to drive the said mini bus to the police station and the driver complied with accordingly. It was further stated that the respondent driver was under the influence of liquor and he could not control the bus resulting into the accident. He pleaded that respondent driver took liquor which act was beyond the scope of his duty and thus the State of H.P. was not responsible for the negligent act of the respondent driver and, therefore, Baldev Singh was himself responsible for the accident resulting into his death.

The respondent driver filed separate written statement admitting the death of Baldev Singh in the accident. He stated that HC Baldev Singh was badly under the influence of liquor and the answering respondent was driving the vehicle very cautiously but HC Baldev Singh was sitting by his side and that due to excessive consumption of liquor HC Baldev Singh all of a sudden fell upon the steering wheel of the vehicle and due to that negligent act of HC Baldev Singh, accident took place.

On the controversial pleadings of the parties, the Tribunal below settled the following issues:

(1) Whether the accident took place due to the rash and negligent driving by respondent No. 2? OPP

(2) Whether the respondent No. 1 is not responsible for the negligence of respondent No. 2? OPR-1

(3) Whether the petitioners are entitled to the compensation, if so, to what amount? OPP

(4) Relief.

The parties led their oral and documentary evidence before the Tribunal below. The Tribunal after appreciating the entire evidence on record, recorded finding under issue No. 1 against the respondent driver holding him guilty of driving the vehicle involved in the accident rashly and negligently and against issue No. 2, it has been held that the accident did not occur due to contributory negligence of the deceased and the appellant State and respondent driver both were held liable to pay the amount of compensation. Consequently, the total amount of compensation of Rs. 2,00,000 came to be awarded in favour of the claimants and against the appellant State and the respondent driver along with interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of full and final payment. Feeling aggrieved, the State of H.P. through the Secretary (Home) to Government of H.P. has filed the present appeal challenging the correctness, validity and legality of the impugned award.

The learned Advocate General contended that the appellant State cannot be held vicariously liable for the negligence of the respondent driver who drove the vehicle involved in the accident belonging to the appellant''s department under the influence of liquor which was not within the scope of his official duty and, therefore, the reasoning of the Tribunal below holding the appellant State liable to pay the amount of compensation jointly with the respondent driver is not sustainable and deserves to be set aside. He next contended that the multiplier of 20 is on the higher side and it should not be more than 12 to 14. He also contended that a sum of Rs. 28,600 paid to the widow of the deceased as ex gratia payment should have been deducted from the total amount of compensation and contrary finding by the Tribunal below on this count is also not sustainable and, therefore, the award has to be set aside.

Per contra, Mr. S.S. Mittal, learned counsel for the claimants-respondents has sought to support the reasonings of the Tribunal below and contended that the appellant State is vicariously liable for the action of the respondent driver who is an employee of the police department and the State cannot escape its liability for the negligence of its servant. He contended that the ex gratia payment had been paid to the claimants out of the G.I.S. (Group Insurance Scheme) of the employees in which the deceased had been contributing during his tenure of service and the said amount cannot be deducted from the total amount of compensation.

We have carefully considered the rival contentions of the learned counsel on either side. The factum of accident and the death of HC Baldev Singh in the said accident is not in dispute. HC Chaman Lal who was accompanying the deceased along with other constables appeared as RW 2 and deposed that on 14.8.1989 at about 9.45 p.m., he along with constable Mehal Singh and HC Baldev Singh went to Badripur in a mini bus No. HIN 575 driven by respondent driver from police station and reached village Badripur at about 10 p.m. At the house of said Surjit Singh deceased and respondent driver Rehmat Ali consumed liquor and thereafter respondent driver under the influence of liquor had driven the vehicle in question rashly and negligently on the left side of the road. The respondent driver took the vehicle to extreme left side of the road and the bus fell into a ditch as a result of which window of the bus got opened, the deceased fell down from the bus, the bus overturned and the deceased was buried under it. On raising alarm, many people came on the spot, with their assistance the deceased was taken out underneath the vehicle and then was taken to hospital where he was declared dead. From the categorical evidence of this witness, the Tribunal below has rightly concluded that the accident occurred due to rash and negligent driving of the vehicle in question by the respondent driver.

The defence of the appellant State was that it is not responsible for the action of respondent driver who had caused the accident under the influence of liquor and the deceased was also himself responsible for attributing the accident. The evidence led by the appellant State before the Tribunal was that the deceased was on duty of Police Malkhana and was not supposed to investigate the cases and that he had unauthorisedly gone to the spot and also compelled the respondent driver to take the vehicle to the village. In this behalf, reliance was placed on a copy of Daily Diary, Exh. RW 1/A, and Chemical Examiner Report, Exh. RW 1/B. From the perusal of daily report Exh. RW 1/A, duly proved by Kehar Singh, SHO, it is proved that the deceased and respondent driver were on official duty at the time of the accident. No evidence has been led by the appellant State that the accident occurred due to any contributory negligence on the part of the deceased. The appellant State has been rightly held responsible vicariously with respondent driver for the cause of the accident. A Division Bench of this court in State of Himachal Pradesh v. Vidya Devi F.A.O. No. 10 of 1987, has held that the master''s liability is based upon the ground that the act is done in the scope of course of his employment or authority by the servant and the master must be held to be responsible for the conduct of his servant. The master is also responsible for the manner in which the servant conducts himself on the journey, not only in driving of vehicle but also in giving lifts to persons provided that in doing so, the servant is acting in the course of his employment. In that case, a driver in the CID office was deputed to take some CID staff from Shimla to Parwanoo in a car and after the staff was left at Parwanoo, the vehicle was to be brought back to Shimla by the driver. On his way, from Parwanoo to Shimla, the vehicle was parked near Police Station, Solan from which place, the driver gave lift to several persons up to Shimla. The vehicle of the Government met with an accident between Kaithlighat and Vaknaghat resulting in death of five occupants. Legal representatives of three deceased preferred three separate claim petitions alleging that the vehicle was being driven by the driver in a rash and negligent manner causing the accident. This court while relying upon the judgment of the Apex Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), held the State liable to pay the amount of compensation to the claimants in that case for the inaction of the driver. In Pushpabai''s case (supra) the learned Judges following the view expressed by Lord Denning in Young v. Edward Box and Co. Ltd. (1951) 1 TLR 789, held: "the passenger was a trespasser, so far as the employers were concerned; but nevertheless the driver was acting in the course of his employment and that is sufficient to make the employers liable....

In Pushpa Thakur v. Union of India 1984 ACJ 559 (SC), the Union of India was held liable to pay compensation to the injured appellant for negligence of the driver of a military truck. In that case, a military truck was being driven negligently, caused an accident resulting in injury to the claimant and claim was resisted on the ground that the military truck was on sovereign duty as the truck was carrying back rations and some sepoys to its permanent location after Indo-Pak war and, therefore, claimed sovereign immunity. Their Lordships of the Apex Court held that the principle of sovereign immunity of the State was not applicable for the inaction of the driver of the military truck and the Union of India was found vicariously liable to pay the amount of compensation to the claimant injured in that case.

A Division Bench of this court in State of Himachal Pradesh and Others Vs. Chet Ram and Others, held the State vicariously liable to pay the amount of compensation to the claimants for the inaction of the driver of the State Government who handed over the vehicle to another person, who was not an employee of the department and caused the accident. The High Court of Punjab and Haryana in Lajwanti v. Haryana State 1985 ACJ 307 (P&H), has held:

There is a presumption, rebuttable no doubt, that a vehicle is driven on the master''s business and by his authorised agent or servant, and consequently the owner or master is vicariously liable for the negligence of such servant or agent committed in the course of his employment....

In State of Maharashtra and Others Vs. Kanchanmala Vijaysing Shirke and Others, the Apex Court observed that if the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far as third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In that case, the learned Judges found that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute was only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it was established that negligent act of the driver and clerk was ''in the course of employment'', the State was held liable for the same.

Following the said ratio, we are satisfied that the Tribunal below has rightly held the appellant State to be jointly and severally liable along with respondent driver. The contention of the learned Advocate General that the appellant State is not liable vicariously for the inaction of respondent driver to pay the amount of compensation cannot be accepted.

The Tribunal below has fixed the datum figure of dependency of the claimants at Rs. 1,472 per month based upon the salary statement of the deceased produced on record by Bishan Singh, PW 2, Accountant, S.P. Office, Nahan. After deducting a sum of Rs. 588 being spent by the deceased on himself, the annual dependency works out to Rs. 17,664. The age of the deceased at the time of the accident was about 36 years. The Tribunal below has taken unit system and applied multiplier of 20 in the present case. The Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, after considering the earlier decisions of the Supreme Court and of the High Courts and also English decisions, has ruled that for ensuring the ''just'' compensation u/s 110-B of the Motor Vehicles Act, 1939 and Section 168 of the Motor Vehicles Act, 1988, the multiplier method is logically sound and well settled and accepted method and disapproved the decisions which took a contrary view. We, therefore, do not approve the unit system applied by the Tribunal below and the multiplier method is the accepted method for determining and ensuring payment of ''just'' compensation. The Tribunal below has applied multiplier of 20 which in our view is obviously on the higher side. The Apex Court in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, has held that selection of multiplier cannot be solely dependent on age of the deceased and the maximum multiplier should be 18 years'' purchase factor. In the case on hand, the Tribunal below had, therefore, committed an error in applying the multiplier of 20 years'' purchase factor. In our considered view, the multiplier of 12 years'' purchase factor is appropriate looking to the age of the deceased who was 36 years old at the time of accident. Thus, the compensation comes to Rs. 1,472 x 12 x 12 = Rs. 2,11,968. The claimants in their claim petition have claimed only Rs. 2,00,000 and, therefore, the total compensation payable to the claimants awarded by the Tribunal below to the extent of Rs. 2,00,000 along with interest at the rate of 12 per cent per annum on the said amount from the date of institution of the claim petition till the date of payment shall stand maintained.

The contention of the learned Advocate General that a sum of Rs. 28,600 paid to the claimants by the appellant State on account of ex gratia payment shall be deducted from the amount of compensation, cannot be accepted. It has come in the evidence of Bishan Singh, PW 2, Accountant, S.P. Office, Nahan, that the deceased used to deposit Rs. 20 towards G.I.S. (Group Insurance Scheme) and the amount of Rs. 28,600 which was contributed by the deceased towards G.I.S. (Group Insurance Scheme) has rightly been paid to the claimants and, therefore, in our view, cannot be deducted from the total amount of compensation awarded by the Tribunal below. The Apex Court in Mrs. Helen C. Rebello and Others Vs. Maharashtra State Road Transport Corpn. and Another, has held that the compensation payable under Motor Vehicles Act, 1939 is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. Therefore, the application of the general principle under the common law of loss and gain for the computation of compensation under this Act must correlate to this type of injury or death, viz., accidental death. If the ''pecuniary advantage'' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased, etc. This would obliterate both all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. Thus, under the present Act, whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other forms of death. It would not include that which the claimant receives on account of other forms of death, which he would have received even apart from accidental death as such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. The learned Judges also held that an employee contributing to a provident fund his heirs are entitled to the amount of the fund irrespective of the accidental death. Similarly, the heirs receive the family pension even otherwise than the accidental death. There is no correlation between the two. Similarly, the amount of life insurance policy is receivable by the claimant not on account of any accidental death but otherwise on the insured''s death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly, any cash bank balance, shares, fixed deposits, etc., though all are pecuniary advantage receivable by the heirs on account of one''s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such amount cannot come within the periphery of the Motor Vehicles Act to be termed as ''pecuniary advantage'' liable for deduction.

In the teeth of principles laid down by the Supreme Court, we do not accept the contention of the learned Advocate General that a sum of Rs. 28,600 paid to the claimants as ex gratia payment shall be deducted from the total amount of compensation awarded by the Tribunal below.

No other point has been raised by the learned counsel on either side.

For the above stated reasons and discussions, the appeal is dismissed and the award of the Tribunal below is modified to the extent indicated above. Costs on parties.