Sushil Kumari and Others vs Rameshwar Lal and Others

D.S. Tewatia, J.—These two F.A. Os Nos. 133 and 204 of 1972 are directed against a common award dated 25-3-1972 passed by the Motor Accidents Claims Tribunal, whereby it awarded a sum of Rs. 79,800/- to the claimants before it as compensation. The said sum was made payable only by Respondents 1 and 3 before it, as the claim against Respondent No. 2 before it was dismissed.

F.A.O. No. 133 of 1972 has been filed by the claimants, who are six in number, while F.A.O. No. 204 of 1972 has been filed by all the Respondents before the Tribunal. Since a common question of law and facts is involved, both the appeals are sought to be disposed of by a common judgment.

The facts leading to the filing of the claim petition stated briefly are that Mohan Lai, son of Parma Nand, hereinafter referred to as the deceased, on 14-5-1970 at about 7-30 a.m., was proceeding on a scooter from the brick-kiln towards Chandigarh when a Shaktiman army truck No. TWD-45359 driven by Rameshwar Lal (hereinafter referred to as the Respondent driver) struck against the scooter of the deceased in the process of entering upon the main road from a side road. The deceased was dragged for some distance from the place his scooter was hit. It was alleged that the truck was being driven by Respondent driver rashly and negligently. The claimants claimed Rs. 3 lacs as compensation. It was averred that the deceased was earning Rs. 800/- per month and the claimants were dependent on him.

Before the Tribunal all the Respondents namely, Union of India, the Respondent driver and the Officer Commanding, 656 Coy ASC Ambala Cantt,, contested the claim. It was denied that the Respondent driver was at fault. It was claimed that the Union of India was not liable as the driver of the offending vehicle was on State duty and was performing the sovereign function of the State. It was further averred that the accident occurred as a result of the rash and negligent driving of the deceased himself, who was alleged to be driving scooter without a driving license. The Respondents also contested the right of claimants to receive any compensation.

The pleadings of the parties led to the framing of the following issues:

Did the deceased hold a licence for driving a scooter? If not, to what effect?

Did the accident occur on account of rash and negligent driving on the part of the Respondent No. 1?

To what compensation are claimants or any one of them entitled?

Have Respondents Nos. 2 and 3 no responsibility in this behalf as claimed?

Relief?

The Tribunal under issue No. 1 held that the deceased was possessed of a valid driving licence at the relevant time and this finding has rightly not been challenged on behalf of the Appellants in F.A.O. No. 204 of 1972 as the Tribunal had satisfied itself in this regard from driving licence Ex. P. 15.

Regarding the issue pertaining to the rash and negligent driving of the offending vehicle, the Tribunal came to the firm conclusion that it was due to the rash and negligent driving of the offending vehicle that the accident occurred. The Tribunal was also not satisfied that at the time of the accident the offending vehicle was taken out by its driver on duty and that he was acting in the exercise of the sovereign power of the Union Government. The Union of India, Respondent No. 3 before the Tribunal, was therefore, held to be vicariously liable for the act of Respondent driver.

The pivotal issue in the case is whether the accident occurred as a result of the rash and negligent driving of the driver of offending truck and whether he was at the relevant time, engaged in the exercise of the sovereign power of the Union Government.

I have gone through the findings of the Tribunal and the evidence relevant to the issue. In my opinion, no case whatsoever is made out to take a view different from the one taken by the Tribunal.

As regards the quantum of compensation awarded by the Tribunal, the counsel for the claimants (Appellants in FAO 133 of 1972) has urged that the amount awarded by the Tribunal is substantially inadequate inasmuch as the longevity of the deceased for the purpose of dependency had been assessed to be only 60 years, although otherwise his longevity had been assessed to be 70 years. It has also been canvassed on their behalf that the learned Tribunal erred in deducting a sum of Rs. 5,800/- which stood entered in the credit account of the deceased, in the books of account of Messers Popular Brick Traders, of which the deceased was a partner. According to the learned Counsel for the claimants, the Tribunal also erred in effecting a deduction of Rs. 15,200/- from the quantum of compensation on account of lump sum payment.

The deceased was engaged in business which activity can certainly be carried out without any difficulty beyond the age of 60 years. It may also be observed that the deduction of Rs. 5,800/-, which stood entered to the credit of the deceased in the books of account of the aforesaid firm, from the quantum of compensation, in my opinion, is also not permissible, as this amount was already available to the claimants during the life-time of the deceased. It is only that benefit which results or flows from the death of the deceased that can be deducted from the quantum of compensation and not any other benefit or value of the property, which could have been available to the claimants during the life-time of the deceased. See in this connection Damyanti Devi and Ors. v. Situ Devi and Ors. 1972 A.C.J. 334.

What now remains to be considered is the objection of the claimants to the deduction of another sum of Rs. 15,200/- on account of lump sum payment from the quantum of compensation. When expressed in terms of percentage, the aforesaid sum amounts to 16 per cent of the total compensation. The consensus of judicial opinion is that the Tribunal would be well within its right to effect deduction from the total quantum of compensation certain percentage thereof on account of lumpsum payment. The percentage of deduction made from the compensation in the present case for the aforesaid reason, in my opinion, cannot be termed high. Hence the objection of the claimants to the aforesaid deduction is over-ruled.

However, an amount equivalent to the aforesaid deduction, in my opinion, should be made available to the claimants, as the productive age of the deceased would easily be upto 65 years or so, though the quantum of his earning after the age of 60 years may not be the same as might have upto the age of 60 years. I assess his earning capacity for the period between 60 years and 65 years of his age at Rs. 15,200/-.

For the reasons stated, while FAO No. 204 of 1972 is dismissed, FAO No. 133 of 1972 is allowed to the extent indicated above i.e. the claimants shall be entitled to a further sum of Rs. 15,200/- and Rs. 5,800/- over and above the amount of compensation awarded to them by the Tribunal. They shall also be entitled to interest at the rate of six per cent per annum on the amount of compensation as calculated from the date of the award till actual payment is made. If any part of the compensation amount has been paid to the claimants, then the same will be account for while calculating the interest. No order as to costs.