SHARDA DEVI v. MAHALAXMI STONE MILLS — 1973 DIGILAW 157 (DEL)

S. N. Andley, C. J. ( 1 ) THIS appeal in forma pauperis has been filed by the appellant against the dismissal of her suit (also filed in forma pauperis) by the trial court by its judgment and decree dated July 27,1961. The suit was for recovery of a sum of Rs. 1,08,009. 00 as and by way of compensation for the death of the appellant s husband, Abhey Charan Malik, on November 24, 1956 as a result allegedly of his being run over by Truck No. DLD-5332 at about 5. 00 P. M. on Asaf Ali Road, New Delhi. The truck admittedly belonged to M/s. Mahalaxmi Stone Mills (respondent No. 1) and was being driven at the time of accident by Kartar Singh (Respondent No. 1 ). It was insured with the Premier Insurance Co. , Ltd. , New Delhi (Respondent No. 3 ). ( 2 ) THE case of the appellant was that Abhey Charan Malik, hereinafter referred to as "the deceased", was going on a cycle at Asaf Ali Road on the aforesaid date when the said truck came suddenly from behind from the side of Ram Lila Ground, Ajmere Gate, knocking down and running over the deceased as a result of which his ribs were broken and he sustained fatal injuries resulting in his death at Irwin Hospital at about 5. 40 P. M. on the said date. ( 3 ) IT was alleged, inter-alia, that the truck was not in a road-worthy condition, that it was loaded with labourers and sand stones and that it was being driven at a fast speed, that no horn was sounded, nor the brake applied either when the ring of the wheel of the truck got off or when the wheel of the truck got off, that no warning was given by the driver to enable the deceased to get out of the way of the truck and that the hand-brake was found broken and the foot brake was found inoperative when the truck was examined by the Motor Vehicles Inspector after the accident. The age of the deceased was give as 30 at the time of his death and it was stated that he was earning not less than Rs. 300. 00 per month from his vocation of a sanitary contractor. The age of the deceased was give as 30 at the time of his death and it was stated that he was earning not less than Rs. 300. 00 per month from his vocation of a sanitary contractor. The appellant sued for the benefit of herself, her three minor daughters and her parents-in-law who were alleged to be dependent upon the deceased. It was averred that a healthy person like the deceased would have been expected to live upto the age of 60 years and even taking his earning capacity at an average of Rs. 300. 00per month, the compensation would amount to Rs. 1,08,000. 00 which was claimed in the suit. ( 4 ) IT is not necessary to give the pleadings of the respondents at any great detail except to say that it was denied that the deceased died because of any rash or negligent act of the respondent No. 2 and that in any event, respondent No. 3 was not under any liability to pay more than Rs. 20,000. 00 by reason of section 95 of the Motor Vehicles Act. ( 5 ) ON the pleadings of the parties, the trial Court framed the following issues after declaring the appellant to be a pauper and registering the suit - 1. Whether the defendant s firm No. 1 was dissolved on 9-10-57 ? 2. If issue No. 1 is proved whether the suit against defendant No. 1 is competent ? 3. Whether the plaintiff is widow of Abhey Charan deceased ? 4. Whether the persons referred to in para No. 6 of the plaint were dependants of the deceased ? 5. Whether the plaintiff can claim damages for the persons mentioned in issue No. 4 ? 6. Whether the death of Abhey Charan was caused as a result of rash and negligent driving of the Vehicle by the defendant No. 2 as alleged in para No. 4 of the plaint ? 7. To what damages, if any, is the plaintiff entitled and from whom ? 8. To what extent the defendant No. 3 is liable ? 9. Relief. The decision on issue Nos. 1 to 3 and 5 was in favour of the appellant. With regard to Issue No. 4, the trial Court found that the parents of the deceased were not his depandants. Issue No. 6 was decided against the appellant. On issues Nos. 8. To what extent the defendant No. 3 is liable ? 9. Relief. The decision on issue Nos. 1 to 3 and 5 was in favour of the appellant. With regard to Issue No. 4, the trial Court found that the parents of the deceased were not his depandants. Issue No. 6 was decided against the appellant. On issues Nos. 7 and 8, it was held that if the appellant was held entitled to damages, the quantum of such damages would be Rs. 22,500. 00. However, in view of the finding on issue No. 6 the appellant s suit was dismissed but no order was made as to costs. ( 6 ) IN this appeal, the appellant has repeated her claim as made in the plaint. We will first dispose off the question whether the parents of the deceased were his dependants The trial Court has observed that the only evidence to show that the parents of the deceased were his dependents. The trial Court has observed that the only evidence to show that the parents of the deceased were his dependents was that of the appellant herself and in the absence of the statements of the parents, it could not be held that they were his dependents. The Appellant s case that the deceased used to send Rs. 100. 00 to Rs. 200. 00 per month to his parents was not held to be proved in the absence of documentary evidence to prove such payment. This finding of trial Court the has been criticised by the appellant but we see no reason to differ from the finding because before a claim can be made for compensation, it must be proved that the person for whose benefit, the amount is claimed, was the dependant of the deceased and various other factors like the age of the dependants would enter the picture to calculate the benefit that was likely to accrue to them if the deceased had lived. In this state of the evidence, we cannot consider the case of the parents of the deceased on the footing that they were his dependents and we have to examine the claim only from the point of view of the appellant and her three minor daughters. In this state of the evidence, we cannot consider the case of the parents of the deceased on the footing that they were his dependents and we have to examine the claim only from the point of view of the appellant and her three minor daughters. ( 7 ) THE first and the main question which arises is whether the death of the deceased was caused by the rash and negligent act of Kartar Singh (respondent No. 2) during the course of his employment under respondent No. 1. Various witnesses have been examined who have given oral testimony. ( 8 ) BEFORE we deal with the oral evidence, we may state that the appellant and the deceased hailed from Orissa and the appellant produced only those persons who had been produced by the State in the prosecution launched by it against Kartar Singh (respondent No. 3) for having cause the death of the deceased but in which he was acquitted. ( 9 ) THE first witness is Sant Lal (Public Witness. 4) who states that the deceased was proceeding from the side of Turkman Gate towards Delhi Gate with his cycle which he was not riding when the truck came from the side of Turkman Gate with a good speed from behind. He further states that the deceased was about 60 or 70 feet ahead of the truck when the left wheel of the truck got off and went towards the verandas of the building as a result of which the truck rolled and struck the cycle which the deceased was carrying, that one wheel of the truck passed over the deceased for about 4 or 5 feet before the truck came to a stop, that no brake was applied nor any horn was sounded by the driver of the truck even after one of the wheels went off up to the moment when the deceased was over-run. In cross-examination he stated that the truck had reached the Dunlop building at Asaf Ali Road when its wheel went off and that the truck was running at a speed not less than 30 miles per hour. This witness is a disinterested witness and he sticks to his statement that both the deceased and the cycle were run over by the truck. This witness is a disinterested witness and he sticks to his statement that both the deceased and the cycle were run over by the truck. In cross examination he further states that before the wheel of the truck had come off, the ring of the wheel had come off and had struck the glass pane of show-room of the Dunlop Company and broken it. ( 10 ) THE next witness is Santosh Kumar (Public Witness. 6) who is a police constable and was detailed for duty on Asaf Ali Road on the date of the accident because of a meeting which was to be addressed by the then Premier of Russia. He states that the truck came from the side of Turkman Gate and was going towards Delhi Gate, that its left wheel got off and that it first struck a cyclist and then a pillar of the verandah occupied by the Dunlop Company. He also states that the ring of the wheel had separated earlier and had struck a window of the premises of Dunlop Company. He states that the truck did not strike the cyclist but it was going quite fast. He also did not hear any horn and the driver of the truck did not turn the truck to the right to avoid the accident. He denies that the cycle of the deceased were struck by the truck. ( 11 ) THEN we have the testimony of Chuni Lal (Public Witness. 9) who has a tea stall on Asaf Ali Road and according to him the accident took place at 1. 30 P. M. Although he speaks of the truck passing over the cycle and the deceased we cannot place much reliance upon his testimony because of the difference in the time as deposed by him and the actual time of the accident. ( 12 ) THEN we have the testimony of Mangal Sain (Public Witness. 12) who deposed that he was supervising the constructionof Dunlop building where the deceased was working as sanitary contractor. He says that both he and the deceased came out of this building and the deceased proceeded towards Delite Cinema on his bicycle and. he followed him on foot. 12) who deposed that he was supervising the constructionof Dunlop building where the deceased was working as sanitary contractor. He says that both he and the deceased came out of this building and the deceased proceeded towards Delite Cinema on his bicycle and. he followed him on foot. According to this witness, the ring of the front left wheel of the truck came off and struck the windown of the Dunlop building thereby breaking the glass-panes and a little later after a distance of about 30 feet or so, the wheel of the truck also came off and struck against the pillar of Sarabhai Chemical building. He further deposed that the truck rolled on its three wheels and overran the deceased. According to him, the speed of the truck was 25 or 30 miles per hour and the driver of the truck neither blew any horn nor applied the brakes. He has stood the cross-examination quite well and stuck to the story. ( 13 ) AS against this evidence, the respondents produced D. K. Kapila (Public Witness. 1) who is a motor Vehicle Inspector and the officer-in-charge of the Delhi State Central Workshop. He is not an eye-witness and seems to have appeared as an expert witness. He has stated that if a truck carrying stone ballast to the full is moving at a speed of 25 to 30 miles per hour and its left front wheel goes off the axle will touch the ground and the vehicle would come to the stationary position immediately and this will be so even if the truck is fitted with a hydraulic brake. Apart from the fact that this witness is not an eye-witness, his interestedness in the respondent is shown by the fact that even though he was a Government servant, he appeared in court to give his evidence without having been served by summons as he had been introduced to Nand Lal, partner of respondent. No. 1 by a common friend. ( 14 ) THE documentary evidence with regard to how and where the accident took place is the plan (Exhibit Public Witness. 13/a which was filed by the Police in the prosecution case against Kartar Singh (respondent No. 2 ). It indicates that it was just opposite to the Dunlop Building that the ring of the front left wheel of the truck came off and struck the window-pane. 13/a which was filed by the Police in the prosecution case against Kartar Singh (respondent No. 2 ). It indicates that it was just opposite to the Dunlop Building that the ring of the front left wheel of the truck came off and struck the window-pane. According to this plan, the truck travelled for not less than 20 yards after the ring of the wheel flew off and before its wheel came off. It appears from this plan that between the place where the accident took place and the place where the truck was ultimately found, there is a distance of 21 paces which will be roughly 20 yards. ( 15 ) IT is contended by Mr. H. S. Dhir, Counsel for respondent No. 3 which is the only respondent contesting this appeal, that it is clear from the evidence that the deceased had been struck by the wheel which came off the truck and not by the truck itself and, therefore, the death was as a result of a pure accident and not due to any rash or negligent act of the driver of the truck. He relies on the statements of Chuni Lal (Public Witness. 9) and Santosh Kumar (Public Witness. 6) who state that they did not see the deceased or his cycle being over-run qy the truck. We are not impressed by the testimony of Chuni Lal (Public Witness. 9) and Santosh Kumar (Public Witness. 6 ). In our opinion the other oral testimony adverted to by us read with the plan (Exhibit Public Witness. 13-A) proves that the deceased and his cycle were run over by the truck. The question then is whether. it was on account of a rash or negligent act on the part of the driver of the truck. We find substance in the argument on behalf of the appellant that the first warning that the driver received was when the ring of the wheel came off opposite the Dunlop building when the truck was still at a distance of 20 or 30 yards from where the deceased was and that the driver of the truck should have sounded its horn or applied brakes at that point to stop the wheel coming off the truck as it was bound to do. It has been rightly argued on behalf of the appellant that the overwhelming evidence on the the record is that the driver of the truck was proceeding without blowing any horn or applying its brakes even after the ring of the wheel and the wheel itself had come off the truck and that this constituted the rash ane negligent act of the truck driver. The aforesaid plan undoubtedly supports the argument and we are of the view that any prudent driver would have not only sounded the horn but also applied the brakes after the ring of the wheel had come off and should not have proceeded further and that if he had done so, the wheel would not have come off and the accident would have been avoided. The weight of evidence is in support of the argument and we are of the view that the driver of the truck was rash and negligent in not blowing the horn and not applying the brakes and proceeding further thereby, probably, losing control of the truck after the wheel came off and struck and overran the deceased and the cycle. It is contended on behalf of of respondent No. 2 on the basis of Gibb s Collisions on land that the distance which a vehicle will cover at a particular speed on the application of proper brakes is much less then is deposed to by the witnesses and the plan. But in view of our finding that the brakes were not applied, the opinion of this author is not relevant. Issue No. 6 should, therefore, has been decided by the trial Court in favour of the appellant. ( 16 ) THE next question is about the quantum of damages. On this question, the trial Court has not accepted the oral testimony of the appellant and her witness to say that the income of the deceased was more than Rs. 300. 00 per month and has dubbed the statement of the appellant as an exaggeration of an illiterate. The trial Court then fixed the ordinary wages of the deceased at Rs. 75. 00 per month and taking his age at the time of the accident to be 35 years and his expectancy of life upto the attainment of 60 years, fixed the damages at Rs. 22,500. The trial Court then fixed the ordinary wages of the deceased at Rs. 75. 00 per month and taking his age at the time of the accident to be 35 years and his expectancy of life upto the attainment of 60 years, fixed the damages at Rs. 22,500. 00 by multiplying the expectancy age of 25 years with the annual income of the deceased of Rs. 900. 00. In our opinion the approach of the trial Court is entirely erroneous. In Gobald Motor Service Ltd. and another v. R. M. K Veluswami and others1 it has been observed by the Supreme Court that: "in calculating the pecuniary loss to the dependants many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the dependants may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is, the balance of loss and gain to a dependant by the death must be ascertained. " We may state that we have no reason to doubt the testimony of the appellant when she states that the monthly income of the deceased was between Rs. 300. 00 and to 500. 00 but we will proceed to calculate the damages in accordance with the aforesaid principles on the basis that his monthly income was Rs. 300. 00. For the purpose of this calculation, we will accept the finding of the trial Court that the age of the deceased was 35 years and he would have lived upto the age of 60 years. Out of this income, the deceased would undoubtedly have spent at least a hundred rupees upon himself and he was admittedly sending a sum of Rs. 100. 00 to his parents in Orissa. It would, therefore, not be unreasonable to assume that he was spending about Rs. 100. 00 per month on the appellant and his three minor children. Calculating on this basis, the deceased would have spent about Rs. 30,000. 100. 00 to his parents in Orissa. It would, therefore, not be unreasonable to assume that he was spending about Rs. 100. 00 per month on the appellant and his three minor children. Calculating on this basis, the deceased would have spent about Rs. 30,000. 00 on the appellant and his three children during the rest of his life but we have to consider the fact that the appellant is going to have the use of a lump sum which is being awarded by this judgment which if invested properly would fetch interest. In this connection reference may be made to a Division Bench judgment of this Court inshrimati Satya Wati Devi v. The Union of India and others where the factors which have to be taken into consideration in arriving at the loss of pecuniary benefit to the dependants of a deceased are pointed out. These are : " (i) the hazards to which the deceased would have been subjected; (ii) the plaintiff will earn interest for the next five years being the expected age, on the lumpsum awarded which, having regard to the present market conditions, should be anywhere 6 to 8 per cent. She will further have the advantage of immediately having a lump sum amount in hand. The damages are to based on the reasonable expectation of pecuniary benefit or benefit reducible to money value in the hands of the plaintiff. No doubt, in such like cases, which are of frequent occurrence these days, certain rules relating to the measure or assessment of damages have gradually been evolved, yet, in general, there is no specific rule upon the matter and it is always left to the good sense of the court to assess as best as it can what it considers to be an adequate recompense for the loss suffered by the plaintiff. The assessment may well be a matter of great difficulty, indeed, in some cases, one of guess work but the fact that it cannot be made with mathematical accuracy is no reason for depriving the plaintiff of compensation. Yet that is the mistake into which the Trial Court seems to have fallen. The assessment may well be a matter of great difficulty, indeed, in some cases, one of guess work but the fact that it cannot be made with mathematical accuracy is no reason for depriving the plaintiff of compensation. Yet that is the mistake into which the Trial Court seems to have fallen. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit and, on the other, any pecuniary benefit which, from whatever source, comes to him by reason of death. It is indeed not sufficient for the plaintiff to prove that he has lost by the death of the deceased a mere speculative possibility of pecuniary benefit. He must show that he has lost a reasonable probability of pecuniary advantage . ( 17 ) TAKING an overall picture in view of the aforesaid circumstances, we are of the view that the reasonable amount of compensation would be an amount of Rs. 22,500. 00 which is the same figure as the one at which the trial court arrived though by a different process of reasoning. We would, therefore, grant to the appellant a decree for Rs. 22,500. 00. It was urged by respondent No. 3 that by reason of Section 95 of the Motor Vehicles Act, its liability cannot exceed Rs. 20,000. 00. This position is not disputed by the counsel for the appellant and we, therefore, hold that the liability of respondent No. 3 is only to the extent of Rs. 20,000. 00. As a result, we allow the appeal partly. There shall be a decree for Rs. 22,500. 00 in favour of the appellant and against the respondents with proportionate costs in the trial Court and in this Court subject to the liability of respondent No. 3 being to the extent of Rs. 20,000. 00 with proportionate costs thereof. The amount of court fee which would have been payable by the appellant is as follows : At Rs. 1,08,000. 00 in the suit: Rs. 3,412. 50 At Rs. 1,08, 000. 00 on appeal : Rs. 3,417. 60 Total : Rs. 6,830. 10 A copy of the decree in this appeal and a copy of this order is to be forwarded to the Collector who may recover the said amount of Rs. 6,830. 10 as Court fee from the respondents.