Phoolo vs State of Haryana and Another

S.S. Sodhi, J.—The accident here occurred on the Bahadurgarh-Jhajjar Road at about 6.30 p.m. on November 30, 1975. Ram Kumar, deceased, was returning home with his bullocks and harrow, when the Haryana Roadways bus HRR 2927 came from behind, hit into a bullock and also knocked him down. It was as a result of the injuries sustained by him, in this accident, that he later died.

The claim for compensation put in by Mrs. Phoolo, the mother of Ram Kumar, deceased, was negatived by the Tribunal holding that she had failed to prove that the accident had occurred due to the rash or negligent driving of the bus drives. It is this finding that now stands challenged in appeal.

According to the claimant, the bus had come from behind at a very fast speed and hit into the deceased and the bullocks and had also run over the harrow. It was also stated that no horn had been blown by the bus driver before this accident.

The version of the Respondent, bus driver, Mohar Singh on the other hand, was that the bus came there at a very slow speed. The deceased was driving his bullock-cart carelessly and as a warning, the horn had been blown. The bullocks got frightened and suddenly came on to the wrong side of the road and thereby caused this accident. The accident, it was said, had been caused by the negligence of the driver of the bullock-cart, who could not control the bullocks.

The eyewitness account of this occurrence was given by three witnesses examined by the claimant, they being AW 2 Jamuna, AW 4 Nafe and AW 5 Om Parkash. There was a criminal case registered against the bus driver Mohar Singh with regard to this accident on the First Information Report recorded on the statement of Om Parkash, which is on the record as exhibit AW 7/1. This statement was recorded at 8.15 p.m. that day, that is, within two hours of the occurrence. Mr. M.L. Sarin, counsel for the claimants, laid great stress upon this piece of evidence as providing valuable corroboration to the version of the accident as put forth by the claimant.

It was the consistent testimony of AW 2 Jamuna, AW 4 Nafe as also AW 5 Om Parkash that the deceased was walking on his correct side of the road when the bus came from behind at a very fast speed and hit into the bullocks, killing one of them and also knocking down the harrow and causing injuries to the deceased. RW 2 Mohar Singh, the driver of the bus, on the other hand deposed that the deceased was sitting on the harrow while going along the road with his bullocks. On the horn being sounded, the bullocks got frightened and came on to the pucca portion of the road. He then swerved the bus towards the right in order to save the bullocks. The bullock on the right hand side fell down and the harrow turned turtle. One of the blades of the harrow then struck the neck of the deceased. A similar version was deposed to by RW 1 Satbir, the conductor of the bus.

It deserves note at the very outset that according to the version given by the bus driver in his written statement, the accident had taken place with a bullock-cart. There is no mention of any bullock-cart in the evidence of any of the witnesses examined in this case. There is then no mention in the written statement of how the deceased suffered the injuries. It was not stated whether or not the bus had hit into him. It was when they came into the witness box that both the driver of the bus as also the conductor sought to show that the deceased had been sitting on the harrow at that time. There is clearly no warrant to accept this statement.

What provides valuable corroboration to the evidence of the witnesses examined by the claimant is the First Information Report of the occurrence, which was recorded on the statement of AW 5 Om Parkash. This report was lodged without any delay, before there was any time or occasion to concoct any story. There is then on the record the site plan exhibit R/l, prepared by AW 3 Head Constable Hari Ram. This site plan was not questioned by the Respondents in any manner. A reference thereto would show that the accident took place on the left side of the road and the bus thereafter went on to the extreme right of the road. Stopped at a considerable distance from the place of impact. This is clearly indicative of the fast speed at which the bus had been travelling at that time.

It is significant to note that according to the statement of Mohar Singh himself, he noticed the deceased only when he was ten feet away. On a clear road, when a person is walking, with his bullocks and harrow, a careful and cautious driver would have noticed them from a considerable distance and not merely 10 feet. This by itself points to the negligence and carelessness of the bus driver. The conduct of the bus driver is also relevant here in that according to him no one was with the deceased at the time of the accident and yet immediately after it occurred, he ran away without making any effort to see to the deceased, who was lying injured at that time.

The Tribunal picked upon minor discrepancies in the testimony of the claimant''s witnesses and went to disbelieve their presence at the time of the occurrence. This is clearly no manner of assessing and appreciating evidence of witnesses, who are simple village folk. The totality of the circumstances of this case, in the light of the evidence on record, leave no manner of doubt that the accident here occurred wholly on account of the rash and negligent driving of the bus driver.

The point that next arises for consideration is with regard to the amount payable to the claimant Mrs. Phoolo as compensation, for the loss suffered by her on account of the death of her son Ram Kumar. The evidence on record shows that Ram Kumar was only 20 years of age at the time of his death. He was a cultivator looking after the land of his father. In such a case it is reasonable to assume that he would atleast have been earning what an agricultural labourer would have earned namely Rs. 300/- to Rs. 400/- per month. Applying here the principles as set out by the Full Bench in Lachman Singh v. Gurmit Kaur 1979 ACJ 170 (P&H), it would be reasonable to assess the loss at the rate of Rs. 2,000/- per annum. Considering that Mrs. Phoolo was only 45 years of age when her son died, 16 would clearly be the appropriate multiplier. So computed the compensation payable would work out to Rs. 32,000/-. The claim here was, however, only for Rs. 30,000/- and no amount in excess thereof can, thus, be awarded.

There is in this case also a claim for Rs. 2,000/- as the loss suffered on account of the death of the bullock and Rs. 500/- as damage to harrow. It is the unrebutted testimony of AW 1 Dr. Raghubir Singh, Incharge Veterinary Hospital, Bahadurgarh, who examined the bullock, that the value thereof was Rs. 2,500/-. As regards the harrow there is the testimony of AW 4 Nafe and AW 5 Om Parkash that it was of the value of Rs. 500/- to Rs. 600/-. This evidence amply justifies the claim for Rs. 2,000/- for loss bunal held that so far as the present economic loss was concerned, it was just and proper to award Rs. 2,400/- as the claimant would be confined to bed for a period of six months. The Tribunal then proceeded to determine future economic loss and held as follows in paragraph 10 of its judgment:

When on account of future economic loss, the disability claimed is 90% and 90% of Rs. 400/- would come to Rs. 360/-. Rs. 360x 12 would come to Rs. 4,320/-. Taking into account the age, nature of the injuries and uncertainty, it would be just and proper to apply 15 years'' multiplier. Rs. 4,320/- x 15 would come to Rs. 64,800/- which would be the amount awardable to the Applicant on account of future economic loss.

The Tribunal has not discussed any evidence while dealing with the question of actual economic loss or future economic loss. It was stated that disability claimed is 90% but it has not recorded a finding that disability is to the extent of 90%. No medical evidence on the question of disability suffered by the claimant is also discussed. It is not known on what evidence or principle has the Tribunal assessed 90% of Rs. 400/- as the basis for awarding future economic loss. The assessment of the actual and future economic loss, to say the least, is wholly unsatisfactory. The Tribunal has further awarded Rs. 20,000/- on account of "Non-pecuniary loss". What is the basis for such award is not made clear in the judgment of the Tribunal. On what evidence and principles the Tribunal has assessed the compensation payable to the claimant is not at all clear from the judgment of the Tribunal. It has in all awarded compensation of Rs. 90,200/- to the claimant.

The discussion on the question as to how the Appellant insurance company is liable to pay compensation to the claimant is also far from satisfactory. The Tribunal has h-id the insurance company liable as in its opinion, the driver while in employment was covered by the terms of the insurance policy and insurance company was liable to make good loss suffered by the owner of the vehicle. The Tribunal has not recorded any finding that Respondent No. 2 owner of the Matador was liable to pay compensation or damages to the claimant. It is not clear as to what loss the owner of the vehicle suffered according to the Tribunal which the insurance company was liable to make good under the terms of the insurance policy. Though it is not clear, it appears that the view of the Tribunal is that if the owner of the vehicle is liable to pay compensation, the insurance company would be liable to pay such compensation. However, as pointed out above, the owner has not been found to be liable to pay compensation to the claimant. Thus what is startling is that without holding the owner liable, the insurance company is made liable to pay compensation to the claimant. In fact, award has been passed against the Appellant insurance company alone and the claimant''s application as against Respondent No. 2 owner has been dismissed. The insurance policy taken out by the owner of the vehicle is a contract of indemnity and liability of the insurance company, if any, is to indemnify the owner of the vehicle to the extent he is made liable to pay damages or compensation. Therefore, unless the owner is made liable, the insurance company cannot be held liable. Unfortunately, we find that the Tribunal has lost sight of this elementary principle and passed award against the Appellant insurance company without making Respondent No. 2 liable to pay compensation to the claimant.

In view of what is discussed above, the position which emerges is as follows:

(1) The Tribunal has not applied its mind to the defence raised by the Appellant and Respondent No. 2 and consequently failed to raise proper issues for determination in the context of such defence.

(2) The Tribunal has failed to raise relevant issues regarding injuries, disablement and economic loss focusing attention of the parties on these vital issues involved in the claim application.

(3) The Tribunal has failed to appreciate evidence on record in the context of the claimant''s plea that the brakes of the Matador were defective and accident occurred on account of such defective brakes.

(4) The Tribunal has awarded compensation to the claimant although it held that the accident in which he sustained injuries resulting in disablement was caused by his own negligence.

(5) The Tribunal has not applied its mind or examined the question whether Respondent No. 2 and Appellant would be liable to pay compensation to the claimant as the accident occurred in the course of employment and whether defective brakes, if held to be so, have any bearing on this question.

(6) The Tribunal has made Appellant insurance company liable for payment of compensation to the claimant without holding the owner of the vehicle, namely Respondent No. 2, liable for the same.

In this unhappy state of affairs, in our opinion, the proper course to adopt is to set aside the judgment and award passed by the Tribunal and to remand the matter to the Tribunal for fresh adjudication on merits in accordance with law. We, however, regret that as a result of improper handling of the matter by the Tribunal the claimant is likely to suffer in case he ultimately succeeds on merits. There will be delay in paying compensation to the claimant if it is held that he is entitled to such compensation. Since one of the pleas which was taken up by the Appellant was that the claimant was not entitled to claim anything more than what was payable to him under the Workmen''s Compensation Act, as suggested by the learned Counsel for the Appellant that the Appellant should agree to payment of compensation payable under the Workmen''s Compensation Act to the claimant without prejudice to its rights and contentions.

The learned Counsel consulted the Appellant and we are happy to note that response has been positive. The Appellant has agreed that out of the amount deposited by it towards the award passed by the Tribunal Rs. 29,000/- be paid to the claimant without prejudice to its rights and contentions. We place on record our appreciation of the fair stand taken up by the Appellant.

In the result, we allow this appeal and quash and set aside the judgment and award passed by the Tribunal. The matter is remanded to the Tribunal for fresh adjudication of the claim made by the claimant on merits in accordance with law in the light of the observations made above. Both the parties will be at liberty to lead fresh evidence in support of their respective claims.

Out of the amount deposited by the Appellant in this Court towards the amount payable under the award, Rs. 29,000/- will be invested in fixed deposit with a nationalised bank for a period of 61 months: The claimant shall be entitled to withdraw interest accruing due to this fixed deposit without furnishing security and under no circumstances, he shall be liable to refund the same. The claimant shall, however, not be entitled to raise any loan on such fixed deposit or encash it before maturity. Fixed deposit receipt shall be kept in the safe custody of the Tribunal. Balance of the amount lying in deposit shall be refunded to the Appellant. The aforesaid arrangement is made without prejudice to the rights and contentions of the parties. There will be no order as to costs.