Chanan Shah v. Kuldip Singh — 1986 DIGILAW 212 (ALL)

JUDGMENT B.N. Sapru, J. - This is a claimant's appeal u/s 110-D of the Motor Vehicles Act, 1939 against the judgment and decree of Sri A.B. Mathur, District Judge, Nainital (Motor Accident Claims Tribunal) dated 20th March, 1978 in Claims Petition No. 60 of 1976. 2. Necessary facts giving rise to the abovenoted appeal are that on 24-3-1976 the claimant's son named Vijay Kumar at about 5.45 P.M. was going on a cycle when he was knocked down by truck No. U.P.M. 4473 owned by respondent No. 1 Kuldip Singh Anand. Respondent No. 2 Malkhan Singh was the driver of the truck at the relevant time. Respondent No. 3 New India Assurance Company, Kashipur, district Nainital was the insurer of the vehicle bearing No. U.P.M. 4473. The claimant was the Manager of the State Bank of India, Kashipur. His son Vijay Kumar was aged about 15 years and was a student of class IX in Udairaj Hindu Intermediate College, Kashipur. The aforesaid Vijay Kumar was going on a cycle towards the north on the station road on 24-3-76 when he was knocked down by the truck bearing No. U.P.M. 4473 which was coming from behind. It had been alleged that the truck was running at a fast speed and was being driven rashly and negligently by the driver who did not blow any horn. The aforesaid Vijay Kumar suffered serious multiple injuries due to the accident and died by the time he had reached the hospital. At the time of accident the claimant was 50 years old. His father had died at the age of 65 years and his mother was alive, who was aged 72 years. The deceased was a brilliant student and a good sportsman. He was well built and energetic. He had never failed in any examination and had used to secure 1st or IInd position in his class. It has also been alleged that the deceased might have started his career as a probationary officer in the State Bank of India with a salary of Rs. 750/-. The claimant-appellant had prayed for compensation to the tune of Rs. 4,80,000/- due to the death of his son Vijay Kumar alias Babu aged 15 years. 3. The claim of the claimants was contested by the respondents Nos. 750/-. The claimant-appellant had prayed for compensation to the tune of Rs. 4,80,000/- due to the death of his son Vijay Kumar alias Babu aged 15 years. 3. The claim of the claimants was contested by the respondents Nos. 1, 3 and 4 on the allegation that the claimant was neither heir nor legal representative of the deceased, so he was not entitled to maintain the petition for compensation. It had also been alleged that the amount of compensation claimed was exorbitant. According to the respondent No. 1 the deceased was going on a bicycle at a fast speed and was on the wrong side of the road and he collided with another cyclist coming from the opposite direction. Therefore, he fell down on the road over a wheat thrasher and. sustained injuries. It was also asserted that the truck No. U.P.M. 4473 was going at a low speed and it was not involved in the accident. 4. The respondents Nos. 3 and 4 also did not accept the manner of accident alleged by the claimant and they put the claimant to strict proof-They also asserted that. the claimant was neither legal representative nor heir of the deceased according to Hindu Law, therefore, he was not entitled to maintain the petition for compensation. It was also stated that the deceased was only a student of class IX therefore, the compensation claimed was exhorbitant. 5. On the pleadings of the parties the following relevant issues were framed by the Motor Accident Claims Tribunal: 1. Whether the petitioner Chanan Shah is the legal representative of the deceased Sri Vijay Kumar? 2. Whether the death of Sri Vijay Kumar was caused by rash and negligent driving of Track No. UPM 4473. 3. To what amount of compensation and against which of the respondents is the petitioner entitled? 6. The Tribunal decided all the issues in favour of the claimant-appellant, but awarded compensation to the tune of Rs. 19,200/- only. Aggrieved by the decision of the Tribunal dated 20th March, 1978 the claimant has preferred the abovenoted appeal and the respondent No. 1 has filed a cross-objection. 7. We have heard the learned Counsel for the parties. 8. According to the learned Counsel for the appellant the Tribunal has misdirected itself while determining the quantum of compensation. 19,200/- only. Aggrieved by the decision of the Tribunal dated 20th March, 1978 the claimant has preferred the abovenoted appeal and the respondent No. 1 has filed a cross-objection. 7. We have heard the learned Counsel for the parties. 8. According to the learned Counsel for the appellant the Tribunal has misdirected itself while determining the quantum of compensation. It has been suggested that the Tribunal has discussed the facts involved in the reported case of Shiv Prasad Gupta v. S.M. Sabir Zaidi 1967 A.C.J 321 and has determined the compensation payable to the claimant without adverting to the evidence of the claimant regarding the amount claimed. It has also been emphasised that the Tribunal has failed to take into account all the relevant evidence on record and has erred in determining the amount of compensation payable to the appellant. 9. The learned Counsel for the respondents Nos. 3 and 4 has replied by suggesting that this Court should not interfere with the discretion of the Tribunal in determining the compensation payable to the claimant. He has invited our attention to the ruling reported in 1971 ACJ 206 Sheikhpura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. He has emphasised Head Note (D) of the aforesaid ruling which runs as below: Quantum--Appeal--Appellate court should not interfere with the assessment unless it is unreasonable. 10. The learned Counsel for the respondent No. 1 has contended that the appellant was not entitled to claim any compensation in the circumstances of the present case. He has tried to re-assert the contentions raised in the defence. On the findings recorded by the Tribunal we think that the cross-objection filed by the respondent No. 1 has no merits. The Tribunal has correctly arrived at the conclusion that the death of Vijay Kumar was caused by rash and negligent driving of track No. U.P.M. 4473. The case proceeded against the driver exporter. The driver did not appear in the case as a witness. The theory Set up by the respondent No. 1 was not believed by the Tribunal. Looking to the nature of the injuries sustained by the deceased the Tribunal rightly came to the conclusion that the truck was involved in the accident and not another cyclist coming from the opposite direction. Sardar Kripal Singh, the witness of the respondent No. 1, was rightly not. believed by the Tribunal. Looking to the nature of the injuries sustained by the deceased the Tribunal rightly came to the conclusion that the truck was involved in the accident and not another cyclist coming from the opposite direction. Sardar Kripal Singh, the witness of the respondent No. 1, was rightly not. believed by the Tribunal. According to the Tribunal the aforesaid witness was trying to help the driver of the truck and owner thereof. In our opinion the Tribunal rightly came to the conclusion that the driver was negligent and the death of the aforesaid Vijay Kumar took place due to rash and negligent driving by the driver of truck No.U.P.M. 4473. 11. The learned Counsel for the respondent No. 1 has not been able to satisfy us that the findings recorded by the Tribunal suffer from any error of law or facts, therefore, the cross objection fails and deserves dismissal. 12. As regards the claim of the appellant for higher amount of compensation than awarded by the Tribunal it is necessary to mention that the. Tribunal has fixed the amount of compensation to the tune of Rs. 19,200/- only on the basis of the facts involved in the ruling reported in 1967 A.C.J. 321 Shiv Prasad Gupta v. S.M. Sabir Zaidi. The Tribunal has failed to appreciate the evidence of the claimant in the present case The Tribunal has noted the contentions raised on behalf of the appellant, but has failed to answer the same. The Tribunal has failed to consider an important aspect that the rate of Rs. 100/- per month has fixed in the reported ruling at least 9 years before the date of accident under consideration in the present case. During the aforesaid 9 years the value of a rupee has much depreciated. In Abdulkadar Ebrahim Sura and Another Vs. Kashinath Moreshwar Chandani and Others, AIR 1968 Bom 267 a Division Bench of that Court has indicated vide para 15 as below: ....In assessing damages, the present value of the rupee ought also to be considered as has been decided in Hari v. Griffiths Jones (148) 2 All E.R. 729 and in Ghsgoy Corporation v. Kelly (1951) MN 111. 13. Moreover in the reported ruling the deceased could have earned only Rs. 300/- or Rs. 400/- per month whereas in the present case the deceased would have started earning even as a clerk at the rate of Rs. 13. Moreover in the reported ruling the deceased could have earned only Rs. 300/- or Rs. 400/- per month whereas in the present case the deceased would have started earning even as a clerk at the rate of Rs. 600/- and odd per month. Therefore, the Tribunal has acted illegally in calculating the compensation payable to the claimant-appellant at file rate of Rs. 100/- per month. During the course of arguments the claimant, had suggested that he would have obtained pecuniary assistance from .the deceased at the rate of Rs. 200/- per month at the age of 54 years. Therefore, we think that the ends of justice would be met if the claimant is awarded compensation at the rate of Rs. 150/- per month instead of Rs. 100/-per month determined by the Tribunal in the circumstances of the present case. Since the margin of difference is substantial we think that the Tribunal acted illegally in fixing the amount of compensation at low ebb. The Tribunal has also not met the arguments of the learned Counsel for the claimant that the claimant would be getting pecuniary advantage to the tune of Rs. 200/- per month; we think that the compensation should be enhanced to the tune of Rs. 150/- per month in place of Rs. 100/- per month determined by the Tribunal. 14. In our opinion the Tribunal has misdirected itself in determining the quantum of compensation payable to the appellant; therefore, we ace unable to accept the contention of the learned Counsel for the respondents Nos. 3 and 4 that we could not interfere with the determination of compensation by the Tribunal in the circumstances of the present case. We are in agreement with the findings and reasonings given by the Tribunal on other points, therefore, we confirm the findings recorded by the Tribunal in the case except that we enhance the rate of compensation payable to the claimant. We agree that the claimant would have started getting contribution from the deceased at the age of 54 years and the span of his life has rightly been determined up to 70 years by the Tribunal. According to us on calculation the claimant is entitled to compensation to the tune of Rs. 28,800/- in the facts and circumstances of the present case. According to us on calculation the claimant is entitled to compensation to the tune of Rs. 28,800/- in the facts and circumstances of the present case. For the forgoing reasons we partly allow the appeal and award compensation to the claimant appellant to the tune of Rs. 28,800/- recoverable from the respondents Nos. 1 and 3. The claimant shall also be entitled to the interest at 6% per annum on the enhanced amount from the date of the petition to the date of the payment. The cross-objection filed by the respondent No. 1 is hereby dismissed. In the circumstances of the present case we direct that the appellant shall get the cost of this appeal from the respondents Nos. 1 and 3.