Miss Palvi Jain vs Mohinder Singh and others

D.V. Sehgal, J.—This judgment will dispose of F. A. O. Nos. 379, 380 and 381 of 1982 and cross-objections Nos. 11.C-II and 12-C-II and 13-C-II of 1983 filed respectively in the aforesaid appeals as they arise out of the same award dated 29.1.1982 passed by the Motor Accident Claims Tribunal, Karnal.

The facts in brief are that on 19.11.1980, car No. DEA 2015 was being driven by Dr. Janeshwar Lal Jain, deceased from Ambala to Delhi. The other two occupants of the car were Smt, Shashi Jain and Miss Palvi Jain. Another car No. CHA 1019 was following it and its occupants were Sarvshri Sumer Chand, Suraj Parkash and Smt. Lajwanti. When the car being driven by the deceased reached near village Karhana on the G.T. Road in the area of Police station Samalkha, a truck No. HRU 714 driven by Mohinder Singh, Respondent No. 1 came at high speed from Delhi side. It was being driven rashly and negligently. The driver was unable to control the truck which came at the wrong side of the road and struck against car No. DEA 2015 on its right side. Dr. Janeshwar Lal Jain having suffered fatal injuries sccum-bed to the same at the spot. The other two occupants Smt. Shashi Jain and Miss Palvi Jain suffered injuries on their bodies. The post mortem examination of the deceased was done by Dr. V. K. Gupta, at Civil Hospital, Panipot. The injured persons were given medical aid and thereafter referred to Chritrian Medical College and Hospital, Ludhiana for further treatment. The deceased at the time of his death was stated to be an Eye Specialist as well as a Physician. He was running Jain Eye Hospital at Ambala. His income was stated to be Rs. 5000/- per month. A claim application u/s 110 of the Motor Vehicle Act was filed by his widow Smt. Shashi Jain, his two minor sons Deepak Jain and Shanvi Jain, daughter Palvi Jain and his mother Smt. Lajja Wanti claiming Rs. 300000/- on account of his death Smt. Shashi Jain and Miss Palvi Jain claimants also filed two separate claim applications claiming Rs. 40,000/- each as compensation on account of the injuries suffered by them and for pain and sufferings resulting therefrom. The driver, the owner of the truck and the Insurance Company were arrayed as Respondents Nos. 1 to 3 to these claim applications. While Respondents Nos. 1 and 2 in the first instance, were proceeded against expert by the learned Tribunal, at a later stage Respondent No. 2 appeared and got the expert proceedings set aside. The Respondents Nos. 2 and 3 contested the three claim applications and filed separate written statements. It was denied that car No. DEA 2015 was going ahead of car No. CHA 1019 or that Smt. Shashi Jain and Miss Palvi Jain claimants were traveling in the former car along with the deceased. Although the manner in which the accident took place as mentioned in the claim applications, was denied, no counter version was put forward as to how the accident occured except that it was averred that the accident occurred due to rash and negligent driving of the car. The claim in all the three claim applications as such was denied. On the pleadings of the parties, learned Tribunal framed as may as six issues. In the present appeals and cross objections, however, we are concerned with the following two issues only:

Whether the accident in question took place due to rash and negligent driving of truck No. HRU 714 being driven by Respondent No. 1 ?

To what amount of compensation are the Petitioners entitled and from whom ?

All the three claim applications were consolidated and tried together and on the basis of evidence recorded, the learned Tribunal returned an affirmative finding on issue No. 1 holding that the accident in question took place due to rash and negligent driving of truck No. HRU 714 which was being driven by Respondent No. 1 at the relevant time. Under issue No. 2, compensation to the tune of Rs. 1,08,000/-was awarded to the claimants on account of death of Dr. Janesh war La] Jain out of which Insurance Company Respondent No. 3 was held liable for the payment of Rs. 50,000/- Smt. Shashi Jain Miss Pa\\vi Jain were awarded compensation amounting to Rs 5000/-each on account of the injuries sustained by them in the accident and the insurance Company, Respondent No. 3 alone was made liable to pay the amount.

The appeals mentioned above have been filed by the aforesaid claimants against the said award feeling aggrieved by the inadequacy of the compensation awarded. The cross objections, on the other hand, have been filed by the Respondents Nos. 1 and challenging their liability on the grounds that the accident did not take place due to rash and negligent driving of truck driven by Respondent No. 1 and with the further plea that the amount awarded is excessive.

I have heard the learned Counsel for the parties at some length. Mr. V. P. Gandhi, learned Counsel for Respondents Nos. 1 and 2 could not assail the findings of the learned Tribunal on issues No. 1 on any valid ground. 1 have closely examined the evidence on the record and the discussions based thereon as incorporated in the award of the learned Tribunal and find no reason whatsoever to differ with the same. I, therefore, confirm its findings on issue No. 1.

Now coming to issue No. 2, Mr. L. M. Suri, learned Counsel for the claimants contended that the deceased was an Eye Specialist and eminent physician, who was running his own Nursing Home at Ambala. There is unrebutted evidence on the record that he was about 35 years of age at the time of his death in the accident. By reference to the assessment orders passed by the income tax department regarding income of the deceased, for the assessment years 1977-78,1977-78 and 1979-80, Exhibits P14 to 16, he contended that besides professional income, the deceased had agricultural income also which, no doubt, was exempt from income tax. This income has not been taken into account by the learned Tribunal. I, however, do not agree with this contention. There is no evidence as to what was the source of agricultural income of the deceased. In my view, therefore, the income of the deceased worked out by the learned Tribunal at Rs. 12000/- per year i. e. Rs. 1000/- per month is genuine estimate of his income and there is no reason to differ with the same. I, however, agree with Mr. Suri that the learned Tribunal erred in deducting Rs. 300/- per month as expenditure on the person of the deceased and assessing loss to the family of Rs. 700/- per month on his death. The deceased was claiming expenses incurred by him in pursuit by his profession as deductions from his total income. He had five other mouths to feed. Thus out of his not income of Rs. 1000/- he would have been spending only on his food and clothing for which the reasonable estimate is Rs. 250/- per month. I, therefore, conclude that the loss to the family on his death is to the tune of Rs. 750/- per month i. e. 9000/- per year.

Learned Tribunal by relying on Lachman Singh and Ors. v. Gurmit Kaur and Ors. (1979) 81 P. L. R. 1., has happlied a multiplier of 12 for working out the total amount of compensation payable to the claimants on account of death of Dr. Janeshwar Lal Jain. Mr. Suri is right in his contention that keeping in view the age of the deceased particularly the fact that he was pursuing the profession of a Doctor for his livelihood and for supporting the claimants, the multiplier of 12 is grossly on the lower side. He cited before me M/s Rajinder Singh Jasbir Singh v. Urmil and Ors. (1986) 89 P. L. R. 647., Mrs. Usha Aggarwal and Ors. v. Union of India (1985) 88 P. L. R. 197. and Haryana Roadways v. Smt. Shakuntla Devi (1982) 84 P. L. R. 707, and urged that multiplier of 20 would be appropriate for working out the total amount of compensation. I have gone through these judgments. Keeping in view the age of the deceased and the fact that he was a Doctor by profession, I consdier appropriate to apply the multiplier of 18 for working out the compensation. As a result, I modify the findings returned by the learned Tribunal and hold that the claimants are entitled to a sum of Rs. 1,62,000/- as compensation on account of death of Dr. Janeshwar Lal Jain.

Now coming to the claim of Miss Palvi Jain, on account of injuries sustained by her, and far pain and sufferring, certificate Exhibit P5 issued by the Christian Medical College and Hospital, Ludhiana shows that she sufferred a fracture shaft of Femur right side. She was admitted in the hospital on 20.11 80 and was discharged on 11. 12.80. She was still getting treatment as an out-door patient when this certificate was issued on 6.1.81 and an opinion was recorded by the medical authorities that she was not fit for doing normal routiue work for at least another six weeks from the date of her discharge from the hospital. This shows that for well over one and half months she remained hospitalized. The expenditure incurred on her treatment in the hospital as proved through different documents placed on record is to the tune of Rs. 3150/-. She being young, child having undergone long hospitalisation which must have resulted in great deal of pain and sufferring, I am of the considered view that amount of Rs. 5000/- awarded as compensation by the learned Tribunal in his case, is quite inadequate. In the context of the facts brought on the record, I assess the compensation payable to her inclusive of the expenses incurred on her treatment and compensation for pain and sufferring on account of injuries sustained by her at Rs. 15,000/-. I accordingly modify the award of the learned Tribunal to this extent.

Now taking up the claim of Smt. Shashi Jain for the injuries sustained by her and for pain and suffering, \\ again find that the amout of Rs. 5000/- awarded by the learned Tribunal is inadequate. Certificate Exhibit P7 issued by the Christian Medical College and Hospital, Ludhiana shows that she suffered fracture of ribs on right side and facial injuries. She remained admitted in the hospital for eight days from 20.11.80 to 27.11.80. In certificate Exhibit P7, it has further been opined that she would not be fit to carry on routine work for a period of six weeks from 28.11.80. Injury report Exhibit P8 shows that she suffered five injuries besides fracture of ribs. She must have undergone great deal of sufferring on this account. I, therefore, assess the compensation payable to her on account of the injuries sustained by her and consequent pain and suffering at Rs. 10,000/- and modify the award of the learned Tribunal to this extent.

Learned Counsel for the Appellants and Respondents Nos. 1 and 2 contended that Insurance Company Respondent No. 3 did not specifically plead in its written statement before the learned Tribunal that its liability is limited to Rs. 50,000/-. They, therefore, contended that its liability should be treated as unlimited and it should be made liable to pay the entire amount of compensation to which the claimants are held to be entitled. The counsel for the Respondent No. 3, on the other hand, pointed out that it had pleaded in written statement that its liability is limited to Rs. 50000/- only. No doubt on the basis of the policy of the Insurance and the provisions of the Act, the liability of Respondent No. 3 has been assessed by the learned Tribunal at Rs. 50,000/- but by no stretch of reasoning can it be said that it did not plead that its liability is limited, I agree with the learned Counsel for Respondent No. 3 in this regard. Consequently, I hold that in respect on the claim on account of death of Dr. Janeshwar Lal Jain, the liability of Respondent No. 3 is Rs. 50,000/-. Its liability for the amount of Rs. 15000/- and Rs. 10,000/- payable to Miss Palvi Jain and Smt. Shashi Jain in respect of their claim for injuries sustained by them is total.

Consequently, I allow F. A. O.s Nos. 379, 380,381 of 1982 and hold that Miss Palvi Jain and Smt. Shashi Jain Appellants in F.A.O''s Nos. 379 and 381 are entitled to Rs. 15,000/- and Rs. 10,000/-respectively as compensation for the injuries sustained by them. The claimants Appellants in respect of F. A. O. No. 380 of 1982 are entitled to compensation amounting to Rs. 1,62,000/- on account of death of Dr. Janeshwar Lal Jain in the accident. The claimants shall also be entitled to the payment of interest at the rate of 12 per cent per annum from the date of presentation of their claim application before the learned Tribunal till the date of the payment of the amount assessed above. They shall also be entitled to the costs of these appeals. It is once again made clear that while Insurance Company, Respondent No. 3 is liable to the payment of Rs. 15,000/- and Rs. 10,000/- as assessed in F. A. O.''s Nos. 379 and 381 of 1982, it shall be liable to the payment of Rs. 50,000/- only out of the amount assessed in F. A. O. No. 382 of 1982 besides proportionate costs and interest. The balance amount of Rs. 1,12,000/- and interest shall be payable by Respondents Nos. 1 and 2 jointly and severally. The Appellants shall also get the costs of these appeals from the Respondents.

The cross objections Nos. 11-C-II, 12-C-II and 13-C-II of 1983 are consequently dismissed with no order as to costs.