State of Haryana and Others vs Kumari Pallavi and Others

V.S. Aggarwal, J.—By this common judgment both the F.A.Os. No. 1657 and 1656 of 1993 can conveniently be disposed of together. Both the appeals are directed against a common award passed by the learned Motor Accident Claims Tribunal, Sonepat dated 14.6.1993, in two separate claim petitions filed by respondent Kumari Pallavi and Master Parul, Since common questions are involved, therefore, they can conveniently be taken up and disposed of together.

The relevant facts are that respondents 1 and 2 had filed a claim petition with the Motor Accident Claims Tribunal, Sonepat (for short ''the Tribunal''). The facts alleged were that Jai Bhagwan was driving the Haryana Roadways bus bearing registration No. HNC 1426. He was driving the same rashly and negligently. As a result of rash and negligent driving, he had head on collision with Maruti car. The father of respondents 1 and 2 Chetan Kumar and his wife were the two occupants of the car. Both of them succummed to the injuries. Vijay Pal is a resident of Bhagan. He lodged the first information report regarding the accident. Respondents 1 and 2 filed two claim petitions claiming Rs. 15 lacs regarding the death of their father and Rs. 10 lacs as compensation with respect to the death of their mother.

The claim petitions were contested by the State of Haryana as well as the National Insurance Company Ltd. besides Jai Bhagwan driver of the bus. It was denied that driver of the bus was driving the vehicle in a rash and negligent manner. Rather it was Chetan Kumar father of respondents 1 and 2 who in a bid to overtake the truck, had struck against the bus. The driver of the Haryana Roadways bus was stated to be not at fault.

The learned Tribunal framed the issues and held that the driver of the Haryana Roadways bus was driving the bus rashly and negligently. The contesting respondents had failed to prove that there was any attempt to overtake the vehicle namely the truck or that it was not negligent driving of the driver of the Haryana Roadways. The learned Tribunal further vide the impugned award held that income of Chetan Kumar was Rs. 1,46,175/- from the partnership and Rs. 35,000/- as personal income per annum. After deducting 30% income tax and giving 2/3rd as dependency to respondents 1 and 2, the same was calculated at Rs. 68,215/-. Multiplier of 16 was applied and the compensation thus was awarded amounting to Rs. 10,91,440/- on account of death of Chetan Kumar. In case of death of the mother of respondents 1 and 2, it was recorded that she was earning Rs. 30,000/- per annum from the business of M/s Business Associate. Dependency of 2/3rd was given to respondents 1 and 2 and applying the multiplier of 16, compensation of Rs. 3,20,000/- was awarded. In addition to that the learned Tribunal awarded 15% interest per annum from the date of the petition till realisation. Aggrieved by the same, the appellants State of Haryana and National Insurance Company Ltd. have filed the present appeals.

At the outset learned counsel for the appellants urged" that it has not been established that the driver of the Haryana Roadways bus was driving it rashly and negligently. According to him there was an injured person who has not been examined namely Jai Bhagwan and thus adverse inferences should be drawn. There is no controversy regarding the fact that Jai Bhagwan has not been examined as a witness. Still direct evidence was available in the form of statement of Vijay Pal PW-1. He is the person at whose behest the first information report was recorded. He was one of the eye witnesses and had given the detailed account as to how the accident has taken place. He corroborates that accident occurred due to rash and negligent driving of the driver of the Haryana Roadways bus. He has no axe to grind by deposing in favour of respondents 1 and 2. Therefore, in face of the said direct evidence the learned Tribunal rightly held that it was the driver of the Haryana Roadways bus who was driving the bus rashly and negligently. This conclusion was also arrived at on basis of the site plan Ex.PX. It had been found that the same had been steered on extreme left side of the road which only indicates the rash and negligent driving of the vehicle namely the Haryana Roadways bus.

In that event the learned counsel contended that the income of the deceased Chetan Kumar father of respondents 1 and 2 has not been properly assessed. The perused objection was to the car maintenance expenses, insurance of the car, telephone provided at the residence by the firm, the servant provided at the residence by the firm and for the newspapers and periodicals. To this extent the objection is well taken and must prevail. At the outset reference can be made to the decision of the Supreme Court in the case R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, . The Supreme Court held that in its very nature whenever a Tribunal or Court is required to fix the amount of compensation it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. Co-related with the same is the fact that in terms of Section 168 of the Motors Vehicles Act, 1988 corresponding to Section 110-B of the Motor Vehicles Act. 1939 it is just compensation which has to be awarded. It is well known that no compensation which fails to balance law and gain can be said to be just. It has to be reasonable. The Division Bench of Gujarat High Court in the case Mohanbhai Gemnabhai v. Balubhai Savjibhai and Ors. 1994(1) ACJ 260 in paragraph 12 observed :-

"12. It is true that the word ''just'' is not statutorily defined like the word ''compensation'' under the Act. However, one can safely conclude that no method of calculation of compensation would be justified if it does not appear to be just, looking to the peculiar facts in a given case. Therefore, in a case of personal injury like the one on hand, the Tribunal is required to accord its anxious thoughts to the relevant facts and important principles while determining the quantum of compensation even under the head of ''pain, shock and suffering''.

The Claims Tribunal is expected to assess and determine such compensation which may appear to be just. It may be recalled that ''just'' compensation would mean appropriate, equitable or proper determination of compensation being dependent on several imponderables. In the assessment of compensation, there is likely to be some margin of error. However, it is settled that compensation must be reasonably or justly assessed with moderation. The word ''compensation'' is of wide import and according to Black''s Law Dictionary, ''compensation'' implies indemnification or reparation, making amends or balancing of loss and gain and so on and so forth."

It is in this backdrop that facts of the present case have to be looked into because while showing the income pertaining to the annual return of Chetan Kumar, certain benefits which were personal to him being a technical partner have been taken note of. There is no controversy raised about the income as shown in the annual return for the financial year ending 31.3.1990 in the form of Rs. 55,892/-, Rs. 5,535/- and the income of M/s Vikas Rubber Industries of Rs. 35,000/-. But the personal benefit given to the partner as already noted by the tribunal by the firm cannot be taken to be the basis which the legal representatives can claim in the form of compensation. It would not be just compensation. Seemingly, they are exaggerated figures. Therefore, the same are disallowed and the total income of Chetan Kumar would come to Rs. 80,890/- per annum. On basis of that after deducting the income tax and 1/3rd as personal expenses of the deceased, while applying the multiplier of 16, the compensation would come to Rs. 7,90,656/-. To that extent, therefore, the award is liable to be modified. As regards the interest, the grant of interest at 15% per annum is on the higher side and consequently the same is required to be reduced at 12% per annum on the compensation so awarded from the date of filing of the petition till realisation.

Regarding the death of Rukmani Devi, the learned Tribunal had awarded the compensation taking the income of said deceased at Rc.30,00G/- P.A. The said income was assessed because of the business of M/s Business Associates. The learned Tribunal considering that she was a house-wife took the dependency of children of the deceased at 2/3rd of the total amount and applied the multiplier of 16. The compensation was awarded at Rs. 3,20,000/-. There is no ground to interfere in the said finding which is based on evidence. The said appeal, there-fore, must fail.

For these reasons, the appeal (FAO 1657 of 1993) is partly allowed and it is directed that in case of death of Chetan Kumar, respondsnts 1 and 2 would be entitled to Rs. 7,90,656/- as compensation. They would be entitled to 12% per annum interest from the date of filing of the petition till realisation. Regarding the other compensation awarded, there is no interference called for.