Surjit Kaur vs Gurmail Singh and Another

R.N. Mittal, J.—This appeal has been filed by Surjit Kaur Appellant against the judgment of the Motor Accidents Claims Tribunal, Ludhiana (hereinafter referred as the Tribunal) dated December 10, 1970 by which her claim petition had been dismissed.

The facts leading to the present case are that Milkha Singh was sleeping on a cot in front of his house in village Pul Sudhar on the night intervening May 30, and 31, 1969 at a distance of about 40 feet from metalled portion of the road. Gurmail Singh Respondent, who was driving military truck No. TP-1302 at about 1.00 a.m., after striking against two kikar trees struck against the cot of Milkha Singh and over-ran him. He was crushed to death at the spot. Gurmail Singh, driver, who had been stuck up in the steering wheel of the truck was removed therefrom. He was smelling of liquor at that time. His two companions who were in the truck had become unconscious. Gurmail Singh Respondent was prosecuted and was convicted by a criminal court. The Petitioner is the daughter of Milkha Singh deceased and had filed a claim petition for compensation on the ground that the accident took place on account of negligent and rash driving of Gurmail Singh who was driving the truck in the course of his employment under the Union of India. The claim had been contested by the Union of India who, inter alia, pleaded that Milkha Singh deceased himself was negligent as he was sleeping at a distance of about 20 feet from the metalled portion of the road, that Gurmail Singh was driving the truck without its authority and permission, and that Surjit Kaur was not dependent on Milkha Singh deceased. On the pleadings of the parties, the Tribunal framed the following issues:-

(1) Whether the accident, resulting into the death of Milkha Singh, was due to driving of the truck negligently or rashly by Gurmail Singh?

(2) Whether Surjit Kaur was dependent of Milkha Singh deceased at the time of the accident?

(3) Whether Milkha Singh was guilty of negligence by sleeping at a distance of 20 from the main road, if so, what its effect?

(4) Whether Gurmail Singh did not drive the truck at the time of accident within the authority and permission of Respondent No. 2, if so, what is its effect?

(5) To what amount of compensation the claimant is entitled, and from whom?

The Tribunal held that Milkha Singh had died on account of rash and negligent driving of Gurmail Singh Respondent, that Surjit Kaur was not dependent on Milkha Singh, that Milkha Singh was not guilty of any negligence in sleeping at a place in front of his house, that Gurmail Singh was driving the truck at the time of accident without the authority and permission of the Union of India and that the Petitioner was not entitled to any compensation. Consequently, it dismissed the claim petition. The Petitioner having felt aggrieved against the judgment of the Tribunal has come up in appeal to this Court.

The first contention of the learned Counsel for the Appellant is that Gurmail Singh Respondent was driving the truck while on duty and the finding of the learned Tribunal that he was driving the same without any authority and permission of Union of India is erroneous. He referred to the statements of the witnesses in support of his contention. P.W. 3 Mr. D.N. Mehta had deposed that Gurmail Singh Respondent was detailed as driver on the truck on May 30, 1969. R.W. 1 Gurmail Singh driver deposed that he was driving the truck on the night of occurrence under the orders of his superiors. R.W. 2 Mr. Ram Sarup, Superintendent deposed that he knew Gurmail Singh Respondent, who was a driver on truck at Halwara. Military truck No. TP-1302 was at Halwara in the months of March and May, 1969. On May 30, 1969 at 11.00 a.m. he detailed the aforesaid truck for carrying and delivering a pumping set at M.E.S. Office, Ludhiana. Gurmail Singh Respondent was detailed as driver on that truck. He was a permanent driver on the aforesaid truck. He further deposed that at 11.00 a.m. on May 30, 1969 when he directed Gurmail Singh Respondent to drive the aforesaid truck for carrying the pumping set to M.E.S. Ludhiana, he directed him to report at Power House after returning from Ludhiana for night duty. Some time between 1.00 a.m. and 2.00 a.m. on the night intervening May 30 and 31, 1969, Sub. Om Parkash came to his residence and stated to him that he was wanted by the Garrison Engineer since the aforesaid truck had met with an accident. He nowhere says that Gurmail Singh had taken the truck unauthorisedly at that time. The Military authorities also did not produce the record to prove that Gurmail Singh took the truck without the permission of higher authorities. On going through the aforesaid statements it is clear that Gurmail Singh was in possession of the truck with the consent of the higher authorities. In case he had taken the truck without any authority it was the duty of the Union of India to produce his officer to depose to that effect. The burden of the issue was on the Union of India. In my view, it has failed to discharge the issue. In the circumstances, I hold that the Respondent was in possession of the truck with the permission and authority of Respondent No. 2.

The second contention of the learned Counsel for the Appellant is that the Appellant, who is the daughter of the deceased is entitled to compensation. He has referred to Sections 1-A and 2 of the Fatal Accidents Act, 1855 (herein after referred to as the Act) which are as follows:-

S.1. 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 and the 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, the 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.

Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased:

...

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S.2. Not more than one suit to be brought.

provided always that not more than one action or suit shall be brought for and in respect of the same subject-matter of complaint:

Claim for loss to estate may be added.

Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recovery and pecuniary loss to the state of the deceased occasioned by such wrongful act, neglect or default, which sum when recovered shall be deemed part of the assets of the estate of the deceased."

A reading of Section 4-A shows that an action can be brought for the benefit of the wife, husband, parent and child of the person, whose death has been caused. The Appellant is a daughter of the deceased. The question that arises for consideration is as to whether she will be considered to be a child within the purview of Section 1-A of the Act. The word ''child'' has not been defined in the Act. We shall, therefore, have to take into consideration the definition of the word as given in the dictionary. In shorter Oxford English Dictionary, Third Edition, it has been defined as "Offspring male or female of human parents." It appears that instead of stating the son and the daughter of the deceased the Legislature in its wisdom used the word ''child''. It cannot be said that it applies only to sons and daughters of the deceased who are dependent on him. In Section 2 it is provided that in an action or suit, the executor, administrator or representative of the deceased can insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default. On reading the aforesaid sections it is clear that the Appellant can maintain a petition for compensation.

The last contention of the learned Counsel for the Appellant is that the Appellant is entitled to damages which have not been allowed by the trial Court. In order to determine the compensation, the first question that arises is as to what was the age of the deceased at the time of death. It has been stated in the petition that he was 55 years of age at the time of his death. P.W. 9 Surjit Kaur deposed that he was aged 50 years. In cross-examination she stated that she was married in the year 1944 and was aged 17 years at that time. The statement was made by her on July 17, 1970. According to that statement she was 43 years of age at the time of making the statement. Even if she was the first child of her father, her father must be about 20/21 years of age at the time of her birth. If that fact is taken into consideration, the deceased must be about 63/64 years of age at the time of his death. The aforesaid statement is corroborated by the postmortem report. Exhibit P. 1, wherein the age of the deceased has been given as 60 years. Therefore, I fix his age as 63 1/2 years at the time of his death.

The next question that arises is as to what compeneation the Appellant is entitled to recover from the Respondent. P.W. 7 Joginder Singh and P.W. 8 Harbans Singh have stated that Milkha Singh was earning Rs. 500/- or Rs. 600/- per mensem. He was working as a Vaid and also running a workshop under the name and style of Gurcharan Auto Engineering Works. Gurcharan Singh is the son-in-law of the deceased. In the petition filed by the Appellant before the Tribunal it has been stated in column 4 that the deceased was practising as a Hakim. It appears from the aforesaid facts that in fact Gurcharan Singh, the husband of the Appellant was running the workshop and the deceased was pratising as a Hakim. It is admitted that the deceased was not paying income tax. The statements of P.W. 7 Joginder Singh and P.W. 8 Harbans Singh to the effect that the deceased was maintaining a workshop, appears to be incorrect. It is also incorrect that he was earning Rs. 500/- to Rs. 600/- per mensem. There is no evidence that he was holding any Diploma or Degree as a Vaid. In the circumstances I fix his income at the rate of Rs. 200/- per mensem. He was admittedly living with the Appellant. He must be spending half of the amount on himself. The other half he might be either contributing towards the family expenses or the same might be an accretion to the estate of the deceased. If the normal age in India is taken to be 70 years, then in 6 1/2 years he would have contributed an amount of Rs. 7,800/- towards the family expenses or accresced to his estate, similar amount. I, therefore, allow Rs. 7,800/- to the Appellant as compensation on this ground.

The learned Counsel for the Appellant then urges that the Appellant has been deprived of love and affection of the deceased and she is entitled to damages on account thereof. In support of his contention he has placed reliance on Mrs. Parsani Devi v. The State of Haryana and Ors. 1973 A.C.J. 531, wherein Rs. 5,000/- were allowed as compensation for mental agony, on the ground that the death must have resulted in physical agony to the dependents for the loss of their father. For the same proposition, he has also placed reliance on two Division Bench decisions of this Court in M/S. Punjab Transport Cooperative Society Ltd. v. Shri Sukhdip Singh and Ors. L.P.A. 586 of 71 and Smt. Ind Kaur v. Mohinder Singh L.P.A. 325 of 71. In Punjab Transport Co-operative Socieiy''s case 1973 A.C.J. 531 an amount of Rs. 2800/- was allowed on account of loss of company and affection. After taking into consideration the aforesaid authorities, I grant the Appellant Rs. 2,200/- on this ground. Thus, the Appellant is entitled in all to an amount of Rs, 10,000/- as compensation.

For the reasons recorded above, I accept the appeal with costs, reverse the judgment of the Tribunal and award the Appellant Rs. 10,000/- as compensation.