Amar Singh and Others vs Major Singh and Others

Harbans Lal, J.—This judgment will dispose of R.F.As. Nos. 13 and 39 of 1967, as the Appellants are the same in both the appeals and the claims of the Plaintiffs-Respondents in both the suits out of which the present appeals have arisen, arise out of the same set of circumstances.

Two brothers, Avtar Singh and Hardip Singh, met their tragic end at the hands of the Appellants as a result of the infliction of several injuries on their persons for which the Appellants were prosecuted and after trial, were convicted and sentenced to imprisonment for life, u/s 302, Indian Penal Code One suit was filed by Major Singh and others, the heirs of Avtar Singh, deceased, being the son, daughters and his widow, claiming Rs. 30,000/- as compensation on account of murder of Avtar Singh. The claimants in their everments in the suit claimed to be entirely dependent on the deceased and alleged his income annually as cultivator to be Rs. 3,000/-. The suit was contested by the Appellants and it was contended inter-alia that they had been falsely implicated due to enemity. The other suit was filed by Mrs. Jeo, as mother of Avtar Singh and Hardip Singh, deceased, claiming Rs. 12,000/- as compensation on account of the death of her two sons, against the Appellants. This suit was also contested. Both the suits were filed in forma pauperis. The requisite permission to sue as paupers was granted by the trial Court and the suits were tried on merits. Two issues relating to the murder of Avtar Singh in one suit and the murder of Avtar Singh and Hardip Singh in the other suit as well as regarding the amount of compensation were framed. All the issues were decided in favour of the Plaintiff-Respondent. It was held that Avtar Singh had met his tragic end at the hands of the Appellants, that the annual income of Avtar Singh was Rs. 3,000/- and that the Plaintiffs being dependents on the deceased were entitled to the damages amounting to Rs. 30,000/-. The suit was consequently decreed for Rs. 30,000/- and each of the four Plaintiff-Respondents was held entitled to equal share in the decretal amount. The judgment and decree has been challenged in this appeal.

Another suit had been filed by the mother of the deceased which was also decreed. Against these two judgments and decrees, two appeals, R.F. As. Nos. 13 and 39 of 1967, were filed. Both these appeals were heard by O. Chinnappa Reddy, J. (as he then was) on May 3, 1977. In order to prove the first issue regarding the murder of Avtar Singh, none of the eye witnesses had been produced in evidence. Only their depositions at the trial of the criminal case in the Court of the Sessions Judge were tendered in evidence with the consent of the parties. The finding regarding the commission of the murder was returned by the trial Court on the basis of this evidence. In the appeal, one of the objections raised was that the evidence recorded in the criminal case could not be treated as evidence under any provision of law in the suit for damages. The learned Judge upheld this contention vide his order dated May 3, 1977. However, in the interest of justice, it was ordered under Order XLI Rule 28 read with Order XLI Rule 27(1)(b) CPC that the statements of the two eye witnesses, Balkar Singh and Mohinder Singh be recorded in the Court of the trial Subordinate Judge. It was also ordered that if for any reason any of the witnesses was not available, the parties may lead evidence to make out a case for admission of their previous statements u/s 33 of the Evidence Act.

In pursuance of this order, the Plaintiff-Respondents produced Mohinder Singh as a witness in the Court of the trial Subordinate Judge. According to his statement recorded on January 4, 1978, about 16 years ago at about 9.30 a.m. he along with Avtar Singh, his brother Hardip Singh and Mohinder Singh, was going to the fields from his village. Avtar Singh deceased, was going ahead with his bullocks and was carrying a small danda (stick) in his hand. The other three were following him. The witness and Hardip Singh, deceased, were carrying sickles in their hands. As soon as they reached near the field of Amar Singh, Amar Singh and Dilbagh Singh, Defendant-Appellants, armed with kirpans Kulwant Singh and Gurdial Singh, Defendant-Appellants, armed with takwas came from the opposite direction. On seeing the deceased, Amar Singh, raised a lalkara shouting at the deceased. The witness and the deceased, then tried to run back for safety. Dilbagh Singh and Gurdial Singh, Appellants chased Avtar Singh, deceased, whereas Hardip Singh, deceased, was pursued by Amar Singh and Kulwant Singh, Appellants, Dilbagh Singh, Appellant, inflicted a kirpan blow on the head of Avtar Singh as a consequence of which he fell down on the ground. Thereafter, Gurdial Singh and Dilbagh Singh Appellants, also inflicted injuries with their respective weapons. Hardip Singh, deceased, was inflicted injuries by Amar Singh and Kulwant Singh, Appellants, who also fell on the ground. After causing these injuries, all the four assailants escaped with their respective weapons. When the witness and his companions reached the two injured persons, they were found dead. The witness was made to sit near the dead bodies and Balbir Singh, went to the village to inform the lambardar about the occurrence. Subsequently, the police reached the spot where the statement of the witness was recorded. According to the witness, both Hardip Singh and Avtar Singh were brothers and enjoyed good health at the time of their murder and used to cultivate agricultural land. Avtar Singh was of 30 years of age at the time of his murder. In cross-examination, no question was put to him on behalf of the Defendant-Appellants regarding the commission of murder by them. Some questions were directed regarding the cultivation of the land of Pala Singh by the deceased. Regarding the other eye witness, Balkar Singh, statement was made by Shri K.K. Sharma, Advocate, counsel for the Plaintiff-Respondents, that he had gone to the State of West Bengal and his whereabouts were not known as he had not left any address. Besides the statement of Mohinder Singh, eye witness, copy of the judgment, Exhibit P. 3, whereby the Defendant-Appellants were held guilty of committing the murder of Avtar Singh and his brother Hardip Singh and were thus convicted and sentenced u/s 302, Indian Penal Code, had been already produced in evidence on behalf of the Plaintiff-Respondents. No evidence was produced by the Defendant-Appellants in rebuttal relating to this issue. Nothing has been brought on the record to discredit the eye witness account by Mohinder Singh which is quite convincing and consistent. The circumstances leading to the murder of Avtar Singh and Hardip Singh, as stated by him, were not even questioned in any manner in cross examination. Besides, the judgment in the criminal case, Exhibit P. 3, whereby all the Defendant-Appellants were held to be guilty of the murder is also relevant and has probative value. Consequently, it is held that all the four Defendant-Appellants committed the murder of Avtar Singh on March 21, 1961 and the issue is decided against them.

According to Paras Ram Bagi, P.W. 3 who is a commission agent, the deceased used to bring their agricultural produce for sale at his shop. The deceased had told him that their annual produce was 300 maunds of food grain and 70/80 maunds of cotton. According to his account books for the year 1959-60 and 1960-61, the copies of which were produced as Exhibits P. 1 and P. 2, deceased had sold their produce for Rs. 2,448.58 and Rs. 3,148.53 at his shop for the two years. According to Khewan Singh, P.W. 4, the agricultural produce by the two deceased was to the tune of 150/200 maunds of foodgrains and 80/90 maunds of cotton annually and they used to earn about Rs. 4,000/- annually from their produce. Shingara Singh, P.W. 5 lambardar of the village and Dessa Singh, P.W. 6 also made statements to the same affect. No evidence was produced in rebuttal. It is a matter of common knowledge that only surplus agricultural produce is brought to the market by the agriculturists and a part 5 of the produce is kept at the house for consumption. Keeping all the factors in view, the trial Court came to couclusion that annual income of the two deceased was Rs. 6,000/-.

According to the learned Counsel for the Appellants, if the average of the two years'' sale, as stated by Paras Ram Bagi, P.W. 3, is worked out, the annual sale of the agricultural produce by the two deceased comes to only Rs. 2,800/- and thus the annual income of Avtar Singh deceased could not be assessed more than Rs. 1,400/-. Even if some amount is added regarding the produce kept by him at his house for his own consumption, the annual income cannot be held to exceed Rs. 1,900/-. This contention though plausible ex facie suffers from a patent fallacy. It cannot be denied that the agricultural produce every year is not static in terms of quantity and it is also a matter of common knowledge regarding which judicial notice can be taken that the price of the agricultural produce has been increasing many times from time to time. When assessing the income of the victim for the purpose of determining compensation or the loss to the dependents on account of the premature termination of human life, all the relevant factors, including the prospects of increase in income and emoluments, if the victim were to be alive, must be taken into consideration. Avtar Singh, deceased, was an agriculturist and cultivated the land. He was a young man of 30 years at the time of his death and was naturally expected to get more produce from his land by intensive cultivation from year to year. Even if the annual produce remained at the same level in terms of money, its value was to be enhanced many times due to the rising trend in foodgrain prices from year to year. In these circumstances, the finding of the trial Court assessing the annual income of deceased at Rs. 3,000/- if he were allowed to run full course of his life, does not suffer from any defect or infirmity.

It was then argued by the learned Counsel for the Appellants that out of the Plaintiffs-Respondents, Major Singh, son of the deceased, was 10 years old at the time of the death of his father. According to the established law, he is entitled to compensation only for eight years, that is, up to the age of his adulthood. Similarly, Rachhpal Kaur and Sukho, daughters of the deceased, being 13 and one year old, respectively, at the time of murder, were entitled to compensation for five years and 17 years, respectively and not beyond. Sukhchain Kaur the widow of the deceased, was more than 30 years at the relevant time and therefore, she was entitled to compensation only for 20 years up to the age of 50 years in view of the finding that the average expectancy of life according to the trial Court was 50 years in India.

The trial Court has awarded compensation of Rs. 30,000/- in lumpsum to all the Plaintiffs-Respondents. It was held that the deceased was expected to utilise one fourth of the income on himself and would have expended Rs. 1,950/- per annum upon the Plaintiffs-Respondents. It was thus held that the Plaintiffs-Respondents, were entitled at this rate for 20 years and the total amount was worked out at Rs. 39,000/-. As the total amount was to be paid to the Plaintiffs-Respondents, in lumpsum, the amount was reduced to Rs. 30,000/- keeping in view the claim of the Plaintiffs-Respondents in the suit. Besides the four Plaintiffs-Respondents in the suit, out of which the present appeal has arisen, the mother of the deceased has also filed a separate suit in which she has also been granted a decree for damages. So far as she is concerned, she was entitled to claim damages not only on account of the death of Avtar Singh, deceased, but also on account of the death of her other son, Hardip Singh, in the same occurrence. Therefore, so far as Avtar Singh, deceased, is concerned she will be entitled to one-half of the amount as compared to the claim of each of the Plaintiffs-Respondents in the in the suit. During his life time, Avtar Singh was called upon to support a family of five persons, that is, one son, two daughters, wife and his mother. As the mother was expected to be maintained by the other son also, it will be reasonable to hold that the deceased must be spending one-fifth of his annual income to meet his personal needs. After deducting the same, an amount of Rs. 2,400/- annually was available for the benefit of all the claimants. If the share of each of the four Plaintiffs Respondents in this income is roughly calculated to be equal and the share of the mother at 50 per cent of the share of a claimant, an amount of Rs 2,100/- annually was being utilised for the maintenance of the four Plaintiffs-Respondents and thus each of them suffered a loss of at least Rs. 500/-per year on account of the death of their bread earner. So far as the life expectancy in India is concerned it is not possible to agree with the conclusion of the trial Court. It has been held time and again that the life expectancy at present in India is 70 years and not 50 years as held by the trial Court. Admittedly, Avtar Singh was 30 years old at the time of his murder. Keeping in view the average life expectancy as mentioned above the claimants were deprived of the earnings of their father or the husband, as the case may be, for a period of 40 years. According to the averments in paragraph 3 of the plaint, at the time of the death of Avtar Singh, Major Singh, Plaintiff-Respondent No. 1 was aged five years. The two daughters, Plaintiffs-Respondents Nos. 2 and 3, were aged 8 years and one year, respectively and Plaintiff-Respondent No. 4, the widow of the deceased was aged 30 years. This positive averment was not denied by the Defendant-Appellants in their written statements specifically. Thus their ages have to be taken as having been admitted. According to the settled law both the son and the daughters are entitled to compensation up to the age of 18 years only. In this manner, each of the four Plaintiffs-Respondents will be entitled to compensation as under:

(1) Major Singh, aged 5 years at the rate of Rs. 500/- per year for 13 years Rs. 6,500/-

(2) Rachhpal Kaur, aged 8 years at the rate of Rs. 500/- per year for 10 years. Rs. 5,000/-

(3) Sukho, aged one year, at the rate of Rs. 500/- per year for 17 years. Rs. 8,500/-

(4) Sukhchain Kaur, widow of Avtar Singh, deceased, aged 30 years, at the rate of Rs. 500/-for 40 years. Rs. 20,000/-

The total amount of compensation according to the above calculations comes to Rs. 40,000/-. As the Plaintiffs claimed only Rs. 30,000/- as damages the suit cannot be decreed for the amount in excess of the same. Consequently, the amount of compensation with regard to each of the four Plaintiffs-Respondents will have to be adduced proportionately. Each of the four Plaintiffs-Respondents is held entitled to compensation as under:

(1) Major Singh, Plaintiff Respondent No. 1. Rs. 4,875.00

(2) Rachhpal Kaur, Plaintiff Respondent No. 2. Rs. 3,750.00

(3) Sukho, Plaintiff-Respondent No. 3. Rs. 6,375.00

(4) Sukhchain Kaur, Plaintiff-Respondent No. 4. Rs. 15,000.00

Rs. 30,000.00

It was then contended by the learned Counsel for the Appellants, that as this amount would be available to the Plaintiff-Respondents in lumpsum whereas the same would have been utilised by them in the course of 40 years if the deceased were alive, according to the settled law some reasonable amount be deducted from the same in lieu of lumpsum payment. It is clear from the above discussion that the Plaintiffs-Respondents have been held to be entitled to Rs. 40,000/- as compensation, but as they have claimed only Rs. 30,000/- as compensation in their suit, claim to this extent only is being allowed. Thus the amount of compensation has been already reduced by one fourth. In these circumstances, it is not necessary, nor is it in the interest of justice to reduce the amount of compensation any further.

So far as the suit by Mrs. Jeo, Plaintiff-Respondent is concerned, the same was decreed and an amount of Rs. 6,750/- was allowed as compensation to her or account of the murder of her two sons. It was held by the trial Court that the Plaintiff Respondent was 60 years of age at the time of the occurrence, that she was expected to live for 15 years more and was entitled to Rs. 9,000/- as compensation at the rate of Rs. 50/- per month. As the Plaintiff-Respondent was to get the amount of compensation in lumpsum in pursuance of the decree, this amount was reduced to Rs. 6,750/- and the decree for the same was passed in her favour and against the Appellants. This judgment and decree has also been challenged in R.F.A. No. 39 of 1967.

It is clear from the evidence of P.Ws. 3 to 6, that the husband of the Plaintiff-Respondent had remarried and she was residing in a different village. It has also been proved that the Plaintiff-Respondent was dependent upon the two sons who have been murdered. There is no rebuttal of the same. It is thus held that the Plaintiff-Respondent is entitled to the compensation. So far as the compensation is concerned, keeping in view the finding in the earlier part of the judgment that each of the two brothers was expected to earn Rs. 3,000/- from the cultivation of the land, compensation at the rate of Rs. 50/- per month cannot be held to be in any manner excessive; rather it is on the low side. The trial Court has already further reduced the amount of compensation from Rs. 9,000/- to Rs. 6,750/-. No case whatsoever is made out for reducing this amount any further. The judgment and decree of the trial Court is thus maintained and this appeal is also liable to be dismissed.

It was contended as a preliminary objection that according to Section 2 of the Fatal Accidents Act, only one suit for damages could be filed. The suit by Mrs. Jeo having been filed subsequent to the other suit, the same is liable to be dismissed on this ground also. This contention, however, has no merit in view of the decision by their Lordships of the Supreme Court in Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, , wherein it has been held that the cause of action u/s 2 of the aforesaid Act is quite independent and distinct from the one u/s 1-A of the Act.

For the reasons mentioned above, there is no merit in either of the appeals and they are dismissed with costs.