Neena Kapur and Others vs Lakha Singh and Others

S.S. Sodhi, J.—Ravi Kapur, while proceeding towards Delhi on his scooter DLW-7556, on the Mathura-Delhi Road, met with an accident with a truck DLH-3487, coming from the opposite direction. He succumbed to his injuries, a short while thereafter and died. This accident occurred at about 4 p.m. on April 17, 1979. A claim for compensation arising from this accident was then preferred by his widow Neena Kapur and their two minor children Ashish Kapur and Manish Kapur.

Ravi Kapur also left behind his mother, Kamla Kapur and his step-father, Dwarka Nath Kapur. Ravi Kapur was about 7 years old when his mother had married Dwarka Nath Kapur. Kamla Kapur and Dwarka Nath Kapur did not join as claimants and they were consequently impleaded as Respondents to the claim application. During the proceedings before the Tribunal, however, they applied for being transposed as claimants, but this prayer was declined.

It was the finding of the Tribunal that the accident took place due to the rash and negligent driving of the truck driver. A sum of Rs. 96,000/- was awarded as compensation. Out of this amount Rs. 10,000/- was awarded to Kamla Kapur, the mother of the deceased; while the balance of Rs. 86,000/- was awarded to the three claimants in equal shares. The liability of the Respondent insurance company was held to be limited to Rs. 50,000/-.

This order will dispose of the two appeals arising from this accident, one by the claimants Neena Kapur and her two minor children and the other by the driver and owner of the truck ; as also the cross-objections filed in both these appeals by Kamla Kapur and her husband Dwarka Nath Kapur. The claim in appeal of the Appellants-claimants, as also that of Kamla Kapur and Dwarka Nath Kapur in their cross-objections, being for enhanced compensation; while the driver and the owner of the truck sought to challenge, in their appeal, both the finding of the negligence as also amount awarded as compensation in this case.

As mentioned earlier, the accident in the present case took place on the Delhi-Mathura Road. This is a two lane road with an intervening divider. At the place where the accident took place, the Delhi-Mathura lane was closed to traffic on account of repairs and the truck DLH-3487, proceeding towards Mathura, had therefore, per force to get into the Mathura-Delhi Lane and it was while the truck was in this lane that the accident took place. The question which arises for consideration is how did it happen? The claimants version being that the truck came on the wrong side and while travelling at a fast speed in a rash and negligent manner, it hit into the scooter of the deceased which was coming on its correct lane. The case of the claimants is founded upon the testimony of Sub-Inspector Kartar Singh, who was examined as A.W.5 & A. W.7 Kanshi Ram, constable, who was with him at that time. Both these witnesses deposed to their presence near the place of occurrence and to have witnessed the accident. There was no suggestion of any interest of either of them in the deceased or that they were, in any manner hostile to the truck driver or to any of the other Respondents. They both gave a straight forward consistent account of how the accident took place and their testimony revealed no contradictions or discrepancies to create any doubt therein. What is more this accident was immediately reported at the Police Station on the statement of Sub-Inspector Kartar Singh. The First Information Report recorded on the basis thereof, Ext. A/1, was lodged with utmost promptitude. This report provides strong corroboration to the testimony of Sub-Inspector Kartar Singh. These circumstances clearly show that both these witnesses were wholly independent and reliable. According to both Sub-Inspector Kartar Singh and constable Kanshi Ram the truck was being driven rashly and negligently at a fast speed on the wrong lane, when it came and struck against the scooter. It was further their testimony that after this accident the truck driver ran away. No fault was attributed to the deceased in this accident, by either of these witnesses.

Inderjit Singh, the driver of the truck, when he came into the witness box as R.W. 3 sought to put forth the version that the deceased came and hit into his truck, which was proceeding at the slow speed of 20 to 25 kilometres per hour, while trying to over take a truck travelling in the same direction as his. He also stated that as a measure of extra caution he had in addition put on the head lights of the truck. Further, according to him, he remained at the spot after the accident and did not run away. To corroborate this testimony, Daya Ram was examined as R.W.4. Daya Ran stated that he was travelling in the truck, sitting besides Inderjit Singh at the time of the accident. He too came forth with a similar narration.

In dealing with this testimony, what deserves note at the very outset is that this version that the accident took place when the deceased was trying to overtake a truck was mentioned for the first time, when Inderjit Singh came into the witness box. No such plea had been raised in the written statements by any of the Respondents nor was any such suggestion put to Sub-Inspector Kartar Singh or constable Kanshi Ram. Similarly, it was neither stated in the written statement nor put to the witnesses of the claimants that the head lights of the truck were on at the time of the accident. Here it would also be pertinent to note that there was no mention by the truck driver of any horn having been blown before or at the time of accident. Further the testimony of Sub-Inspector Kartar Singh and constable Kanshi Ram that the truck driver had run away after the accident was never challenged in cross-examination. In this situation, the stand of the truck driver Inderjit Singh that he had not run away carries no conviction.

Next to note is that Inderjit Singh had deposed that scooter came and dashed against the rear side wheel of his truck. This again is a statement which cannot stand scrutiny. According to the testimony of A. W. 4 Dr. Vijay Tandon, who conducted the postmortem examination on the dead body of the deceased, the injuries consisted of many fractures and multiple abrasions. He clearly deposed to the possibility of the deceased having been dragged with the vehicle after the accident. The injuries are of such a nature that they clearly suggest that the body was crushed. Besides this, a reference to the photographs on record would show that there is a dent on the right mud-guard of the truck which is clealry indicative of it having been caused by the impact between the truck and the deceased. It cannot, therefore, be accepted that the deceased had dashed against the rear side wheel of the truck as deposed to by the truck driver.

An important circumstance against the truck driver is provided by the site plan Ext. A/6 which was prepared and proved by Sub-Inspector Kartar Singh. The marginal notes thereon clearly mention that brake marks of the truck were visible to a distance of 20 feet, a fact which provides eloquent proof of the fast speed of the truck at that time.

What deserves note, in dealing with this accident, is that the truck was in the wrong lane when the accident occurred. There is at all times a duty of care which a road user owes to other persons travelling on the road. When a vehicle comes on to a wrong lane, no matter on what account, justified or unjustified, it cannot proceed on it except with the conscious and deliberate awareness of the greater need to exercise due care and caution, as it is in essence encroaching upon the right of vehicles who are correctly in their own lane and who may not know of its presence until suddenly faced with it at a short distance. The duty of care upon the driver of such vehicle extends to ensuring safety in such a situation too. This duty in the present case has obviously been observed only in its breach, inasmuch as the truck while travelling in the ''wrong lane was being driven at such a fast speed. Another significant aspect here is the angle at which the truck is seen standing in the photographs, after the accident. It denotes sharp turn to its right, of which the driver of the truck came forth with no explanation. This rather demolishes his claim that the truck was proceeding on the extreme left of the road at the time of the accident.

Finally, as regards Daya Ram, it was for the first time i n the Court he was mentioned as an eye-witness. His presence at the spot was not put either to Sub-Inspector Kartar Singh or constable Kanshi Ram. What is more, he stated that he was present at the spot when the police came there, but no statement of his was recorded by the police. There is also contradiction in his testimony and that of the truck driver Inderjit Singh as to the time when the police came to the spot after the accident. Both give different times; while according to Daya Ram the police came there 5/7 minutes after the accident, according to Inderjit Singh the police came at 5 p.m. No reliance can thus be placed upon the testimony of both these witnesses.

In the totality of the circumstances of the case and for the reasons discussed above, there is no escape from the conclusion that the Tribunal rightly held the accident to have been caused by the rash and negligent driving of the truck driver. The deceased, cannot in any manner be blamed for this accident. He was travelling in his correct lane and there is no evidence to show that there was any opportunity or time available to him to avoid the accident. The finding of the Tribunal on the issue of the negligence must accordingly be affirmed.

Turning now to the amount that the claimants are entitled to as compensation, it will be seen that the deceased Ravi Kapur was only 36 years of age at the time of the accident. He died leaving behind a young widow Neena Kapur, aged 32 years and the two minor children Ashish and Monish. Ravi Kapur was stated to be in good health. The evidence on record shows that he was engaged in business. He was running three firms. Ashish and Company, Ravi Art Dyers and Dry Cleaners and Akwa Sales and Service and he was also a supplying contractor for the Air Force. It was the testimony of Neena Kapur that his income was Rs. 2,500/- to Rs. 3,000/- per month and that it was he who paid house rent as also the children school fees. This house rent was stated by her brother, Surinder Mohan (A. W. 3) to be Rs. 500/- and the school fees Rs. 250/- per month. Besides this she stated that he used to give her Rs. 1,500/- per month. Next is the testimony of Surinder Mohan (A. W. 3) the brother of Neena Kapur. His testimony was to the same effect and also that it was he who is now maintaining the widow and her children as she has no other source of income.

As regards the income of the deceased, it deserves note that while Neena Kapur (A.W. 2) and Surinder Mohan (A.W. 8) as also Kamla Kapur (R.W. 1) mother of the deceased, all deposed that the income of the deceased was over Rs. 2,500/- per month, but no documentary evidence was produced by either of them, to corroborate this. Mr. M. L. Sarin, counsel for the claimants, while on this matter laid great stress upon the fact that the testimony of the widow to this effect had not been challenged in cross examination and nor was she ever asked to produce any such documentary evidence. He contended, therefore, that the absence of such evidence cannot be taken against the claimants. The argument being that had such documentary evidence been called for or Neena Kapur''s testimony regarding her husband''s income being doubted, the requisite record could have been produced as was done by her brother Surinder Mohan (A.W. 3) when he was asked to produce the bank book of the deceased to show his investment of Rs. 40,000/- in the firm Ashish and Company.

In dealing with the matter relating to the income of the deceased, it is pertinent to note that his income was stated to be Rs. 1,500/- per month by the claimants in the claim application filed by them. It has not been explained why and under what circumstances this figure was mentioned as his income if it was, in fact, almost double this amount as was sought to be established by the evidence led. In this situation the income of the deceased cannot be taken to exceed this figure, that is Rs. 1,500/- per month. This has, of course, undoubtedly to be taken to be his income considering the fact that the rent and the school fees alone accounted for Rs. 750/- per month.

Turning now to the assessment of the compensation to be awarded, regard in this behalf must be had to the principles as laid down by the Full Bench of this Court in Lachman Singh v. Gurmit Kaur 1979 A.C.J. 170 (P and H.), where it was held that the compensation to be assessed is the pecuniary loss caused to dependents by the death of the person concerned and for the purpose of calculating the just compensation, annual dependency of the dependents should be determined in terms of the annual loss accruing to them due to the abrupt Termination of life. For this purpose, annual earnings of the deceased at the time of the accident and the amount out of the same which he was spending for the maintenance of the dependents will be the determining factor. This basic figure will then hare to be multiplied by a suitable multiplier. The suitable multiplier shall be determined by taking into consideration the number of years of the dependency of the various dependents, the number of years by which the life of the deceased was cut short and the various imponderable factors, such as early natural death of the deceased, his becoming incapable of supporting the dependents due to illness or any other natural handicap or calamity, the prospects of remarriage of the widow, the coming up of age of the dependents and their developing independent sources of income as well as the pecuniary benefits which might accrue to the dependents on account of the death of the person concerned.

A Division Bench of our High Court in Asha Rani v. Union of India 1983 A.C.J. 52 (P and H.), held that the normal multiplier should be sixteen in such cases. It was so held after taking note of Lachman Singh''s case 1979 A.C.J. 170 (P and H.).

Keeping in view the principles as set out above and having regard generally to the circumstances of this case, it would be fair and just to take the loss occurring on account of the death of the deceased to be to the extent of Rs. 1,000/- per month. The multiplier here must clearly be sixteen. Computed on this basis the loss to the estate would work out to Rs. 1,92,000/-.

It now remains to consider the claim for compensation put forth on behalf of Kamla Kapur and Dwarka Nath Kapur as set out in the cross objections filed by them. Neither the counsel nor the parties appeared when the appeals were taken up for hearing. An affidavit has been filed by the claimant, Neena Kapur that Kamla Kapur died in Delhi on January 16, 1982. It was presumably on this account that no appearance was put in thereafter by any of them.

It may be mentioned that a reference to the evidence would show that there was no warrant for holding that Kamla Kapur or Dwarka Nath Kapur were in any manner dependent upon Ravi Kapur, deceased. According to Kamla Kapur''s own statement, the deceased and the claimants were living apart in Patel Nagar since over five months before the accident. It was, no doubt, her testimony that the deceased used to give her Rs. 1,000/- per month, but it is significant to note that no such suggestion was made by her to Neena Kapur. Not without significance here is the fact as set out earlier namely that neither Kamla Kapur nor Dwarka Nath Kapur had filed any application for compensation, they had in fact to be impleaded as Respondents, though later they did apply for being transposed as claimants.

What has come on record does not thus warrant any award of compensation to Kamla Kapur. The order of the Tribunal to this effect cannot be sustained.

In the result, the claimants are held entitled to and are hereby awarded a sum of Rs. 1,92,000/- as compensation which shall be payable to them with interest at the rate of 12 per cent per annum from the date of application to the date of payment of the amount awarded. It is clarified that the Respondent insurance company shall also be liable to pay the balance of the interest due to the claimants at this rate to the extent of its liability of Rs. 50,000/-. Further, out of the amount awarded a sum of Rs. 50,000/- each shall be payable to the minor children and the balance to the widow Neena Kapur. The amount awarded to the minor claimants shall be paid to them in such manner and on such terms as the Tribunal may consider to be in their best interest. In the result, the appeal filed by the claimants is accepted, while that filed by the owner and driver of the truck as also the cross-objections filed by Kamla Kapur and Dwarka Nath Kapur are hereby dismissed. The claimants shall be entitled to costs in both these appeals. Counsel''s fee Rs. 500/- (one set only).