Pushpa Devi and Others vs Pritam Chand and Others

S.S. Sodhi, J.—On August 21, 1980 at about 7 p.m., Hans Raj was proceeding towards Gurdaspur on the Amritsar-Pathankot Road, when truck HPK 1199 came from behind and ran him over.

The claimants here are Mrs. Pushpa Devi, the widow of Hans Raj, deceased and their four minor children.

The case as pleaded by the claimants was that Hans Raj, deceased, was travelling on his cycle from village Kothe Nabipur to Gurdaspur and when he reached the Amritsar-Pathankot road, the truck HPK 1199 came from behind from the side of Batala at a rash and negligent speed and struck into the deceased, whereby he came under the right front wheel thereof.

The Respondents denied that the accident had taken place due to the rash and negligent driving of the truck driver. The plea put forth by them was ''the deceased had come in front of the truck just as the answering Respondent had by-passed the other truck''.

In order to establish negligence on the part of the truck driver, the claimants examined AW 4 Inderjit and AW 5 Paras Ram as eye witnesses to the occurrence. The testimony of these witnesses was to the effect that truck had come from the side of Amritsar at a very fast speed and hit into the cycle of Hans Raj, deceased, when the deceased had got on to the main road and turned towards Gurdaspur.

The truck driver Pritam Chand, who appeared as RW 1 deposed that when he reached near the place from which a lane turns to Kothe Nabipur, a cyclist suddenly came on the metalled road from that lane. In order to save him, he took the vehicle to the extreme left kacha portion of the road, but the front rim of the cycle got entangled in the driver''s window of the truck. An angle iron of the body of the truck struck the right leg of the deceased and this thus was in the manner in which the accident took place.

It is pertinent to note that the version of the accident as put forth by the truck driver in the witness box is at variance with that given in the written statement. The other circumstance to note here is that it was the right front wheel of the truck that the cycle of the deceased had come under. This assumes importance with reference to the argument sought to be raised on behalf of the Respondents that the deceased had suddenly come on to the main road and struck against the truck. If this was so, the more likely probability cleanly was that the deceased would have come under the left front wheel of the truck and not the right front wheel. It is no doubt a well established rule that a person entering a main road should do so only if he can ensure that he can enter it with safety. If any breach of this rule was to be imputed to the deceased, it was incumbent upon the Respondents to have atleast pleaded it, if not establishing the distance of the place of accident from the point at which the lane joins the main road. In the absence thereof, it cannot be assumed that the accident here took place just at the point where this lane met the main road.

Further, having taken the plea in the written statement that the accident had taken place just as the answering Respondent had by passed the other truck, meaning thereby that the truck had overtaken another truck, the burden shifted upon the truck driver to explain the circumstances in which the deceased could be held to be negligent, particularly when it was with the right front wheel that the accident took place.

Seen in the light of the evidence on record and the totality of the circumstances of the case, it cannot, but be held that the accident here took place entirely due to the rash and negligent driving of the Respondent-truck driver. The finding of the Tribunal that this was a case of contributory negligence cannot be sustained and is accordingly set aside.

Turning to the question of compensation, the claimants had sought to put up the case that the deceased was employed as a Manager by AW 8 Ranjit Singh at a salary of Rs. 400/- per month with free board and lodging. This stand cannot be sustained. The testimony of AW 8 Ranjit Singh make interesting reading, in this behalf, in that, he tried to show that the deceased had been employed as a Manager on the land which was not owned by him, but was with him merely on lease. No lease deed has been produced and what is more, the owner of that land was shown in the revenue papers to be in cultivating possession thereof. No accounts or receipts are forthcoming to corroborate this stand of the claimants. It is also on record that Hans Raj deceased, was illiterate. In the circumstances the Tribunal rightly disbelieved the version of the claimants that the deceased was employed as a Manager. There can, however, be no manner of doubt that the deceased was at any rate working as an agricultural labourer and the Tribunal rightly took his income to be not less than Rs. 300/- per month. It is also in evidence that the deceased was also receiving grains and clothes as part of his emoluments. It is not unusual in villages for agricultural labourers to also receive payment in kind as part of their emoluments.

The compensation payable to the claimants has to be assessed keeping in view the principles set out by the Full Bench of this Court in Lachman Singh v. Gurmit Kaur 1979 A.C.J. 170 (P. and H.). Applying these to the instant case, in the light of the evidence on record, the loss here to the claimants deserves to be taken at the rate of Rs. 250/- per month. Further having regard to the age of the deceased and the claimants 16 would clearly be the appropriate multiplier here. Computed on this basis the claimants must be held entitled to and are hereby awarded a sum of Rs. 48,000/- as compensation for the loss suffered by them.

It has also come in evidence that some amount had been spent on the treatment of the deceased. Actual expenditure to the extent of Rs. 940.15 p stands proved on the basis of the documents on record. This figure may be rounded of at Rs. 1,000/-.

In the result, compensation payable to the claimants is enhanced to Rs. 49,000/-. The claimants shall be entitled to this amount along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. Out of the amount awarded, a sum of Rs. 25,000/- shall be payable to the widow Mrs. Pushpa Devi, while the balance shall be payable in equal shares to her four minor children. This amount shall be paid to them in such manner as the Tribunal directs as being in their best interest.

This appeal is consequently accepted to the extent indicated above with costs. Counsel''s fee Rs. 500/-.