Union of India (UOI) and Another vs Kusum Sharma and Others

M.A. Shah, J.—This Civil First Miscellaneous Appeal arises out of an award given by Motor Accidents Claims Tribunal, Jammu, on

September 20, 1985 awarding a compensation of Rs. 95,000/ - in favour of Respondents/ claimants.

One Om Parkash, husband of Respondent No. 1 and father of Respondent Nos. 2 and 3 met with an accident on May 30, 1984 at 7.15 a.m.

on Jammu-Pathankot National Highway with an army truck belonging to Appellant No. 1 and driven by Appellant No. 2 herein and succumbed to

his injuries on way to hospital on the very day. Respondents filed a claim petition u/s 110-A of the Motor Vehicles Act (hereinafter called 'the Act')

claiming a compensation of Rs. 3 lacs. It was stated that deceased at the time of accident was 32 years of age, who was survived by his widow

and two minor daughters of 8 and 5 years respectively, who are Respondent Nos. 1 to 3 in the present appeal. It was further stated that deceased

was earning Rs. 800/ - per month by working as Supervisor-cum-Accounts Clerk in M/s. Nagina Hot Mixture Plant, Village Sarore. He was a

trained person and would have risen to a high position in due course of time within the next 10-15 years and would have an earning of more than

Rs. 2,000/ - per month. The accident took place while the deceased was walking on a kacha track of the Jammu-Pathankot National Highway on

the side of the road at milestone 89-90. Appellant No. 2 came from deceased's rear side while driving army truck One Ton BA No. 79C23100

H. In the process of overtaking a preceding motor vehicle he had taken his vehicle on the wrong side of the road with abnormal speed and hit the

deceased by driving the said truck rashly and negligently. Deceased was seriously injured as a result of the accident and in that condition was taken

to the hospital and while on way he breathed his last.

On issuance of notice to the Appellants by the Tribunal, the Appellants in their written statement with all fairness have not denied the accident

and the death of deceased Om Parkash as a result of the said accident. However, it was contended that the accident occurred, when Appellant

No. 2 was discharging the sovereign acts of the Union and hence no compensation can be awarded to the Respondents. Regarding the income of

the deceased, it was only stated that the Respondents are called upon to strictly prove the averments, as the amount mentioned of Rs. 800/ - per

month is exaggerated.

On the pleadings of the parties, the learned Tribunal framed the following issues:

(1) Whether Respondent No. 2 at 7.15 a.m. on May 30, 1984 at milestone 89-90 on Jammu-Pathankot National Highway (Village Sarore) while

driving motor vehicle No. One Ton BA No. 79C23100 H and acting under the employment of Respondent No. 1 was discharging the duties of

sovereign nature and while doing so he caused the accident resulting into the death of deceased Om Parkash? OPR

(2) In case issue No. 1 is proved in the negative to how much claim of compensation the Petitioners are entitled and from whom? OPP

(3) Relief.

Since the accident and the death of deceased Om Parkash was not denied by the Appellants the learned Tribunal looking to the defence taken

placed the burden of proving issue No. 1 on the Appellants herein, who were Respondents before the Tribunal. The Appellants examined Major

G.S. Gour and Appellant No. 2, namely, L/Hav M.V. Nambiar, whereas the Respondents examined in rebuttal PW 1 Chuni Lal besides

Respondent No. 1 Kusum Sharma, widow of deceased. The learned Tribunal after trial awarded compensation of Rs. 90,000/ - using the

multiplier of 16 years on capitalisation of the annual income of the deceased at Rs. 7,000/ - being the residual after deduction of the amount on the

deceased himself and a lump sum of Rs. 22,000/ - for the accelerated mode of payment and Rs. 5,000/ - towards the loss of expectation of life

and loss to the estate, totalling to Rs. 95,000/ - in equal shares to the Respondents.

Learned Counsel for the Appellants while arguing the appeal concentrated his arguments to the limited points and submitted firstly that the award

of Rs. 95,000/ - is excessive, because the Respondents failed to prove by cogent evidence the income of the deceased inasmuch as the evidence

adduced by the Respondents as to the monthly income of Rs. 800/ - is only oral and nothing documentary in support of the said contention has

been produced. Learned Counsel referring to the provisions of the Evidence Act argued that the deceased being an employee of a firm as

projected in the claim petition, the only way of proving his income would have been by the documentary evidence. It is pointed out that when a fact

can be proved by a document, the primary evidence in accordance with Section 62 of the Evidence Act means the document itself produced for

the inspection of the court and proved according to law. In such a situation the proof of the income of the deceased by oral evidence cannot be

regarded as sufficient for assessment of compensation on the basis of the income of the deceased. We have examined evidence produced by both

the parties in the light of the arguments advanced on this point by learned Counsel for the Respondents. It is no doubt true that on the principle as

laid down u/s 62 of the Evidence Act, the primary evidence means the document itself, but that is not the end of the matter. The argument ignores

Section 59 of the Evidence Act, which provides in the following words:

All facts, except the contents of documents, may be proved by oral evidence.

The above provision clearly indicates that if a document is produced in the court and is available with a party, its contents can be proved only by

tendering the document and proving the same according to law. The rule that in each case best evidence, of which the case in its nature is

susceptible should always be given naturally leads to the division of evidence into primary and secondary. This kind of proof affords the greatest

certainty on the fact in question. If a particular fact is proved by the direct oral evidence of which no rebuttal is available on record especially in

such cases as one in hand where a man has lost his life and the courts called upon to determine the compensation to the survivors, some sort of

speculation is permitted looking to the common course of conduct of human life. What is denied in the written statement is the claim of Rs. 800/ -

per month, as the monthly income of the deceased that the figure is exaggerated. It is denied that the deceased was a trained and skilled worker

holding the post of Supervisor-cum-Accounts Clerk with the firm. Respondent No. 1 in whose hands the deceased was giving his monthly income

proves in categorical terms that he was paying Rs. 800/ - per month. That fact is amply proved by the statement of PW1 Chuni Lal. There is no

cross-examination by the Appellants either on the Respondents or on PW 1 pointing out towards the credibility of the statement as to the income

of the deceased. There is no evidence in rebuttal even nor a suggestion that the said income could be proved by putting in some document to rebut

the statement of the Respondent and her witness. In other words, there is no ground to disbelieve the statement of the Respondent No. 1 and her

witness PW 1 Chuni Lal on this score that the income of the deceased was Rs. 800/ - per month. When such is the position of the oral evidence it

cannot be discarded u/s 62 of the Evidence Act. There is nothing on record to show that the production of the record of the company where the

deceased was working was within the power of Respondents or that the firm was maintaining the record regarding payments of monthly

remuneration to the deceased. In this view of the matter, we would not be justified in this appeal in discarding the findings arrived at by the learned

Tribunal, because some other evidence which could have been brought before the court in support thereof was not tendered. Even otherwise

looking to the nature of the work of the deceased it is a matter of common experience and even the presumption under law that the skilled worker

like that of the deceased is expected to earn at least the minimum wages provided under the labour laws, which cannot be less than Rs. 30/ - per

day according to which monthly earnings of the deceased of Rs. 800/ - cannot by any stretch of imagination be regarded as excessive. In view of

this evidence, we do not find any force in this ground of attack of the learned Counsel for the Appellants.

This brings us to the assessment of compensation made by the Tribunal taking into account monthly income of the deceased at Rs. 800/ -. The

learned Tribunal on speculation calculated that the deceased might have been spending amount on his person, on medicines, clothing, food etc.,

around Rs. 2,600/ - annually and rest of his income was to be utilized by the Respondents for their maintenance. In this way, learned Tribunal

after calculating total annual earnings of Rs. 9,600/ - of the deceased deducted Rs. 2,600/ - from the said total, leaving the balance of Rs. 7,000/ -

annually for the purpose of counting the annual loss of the dependency allowance caused to the Respondents on account of the unnatural death of

the deceased Om Parkash. Admittedly, deceased was 32 years of age at the time of accident, he left Respondent No. 1, the young widow, who

was also of about 32 years of age and two minor daughters aged 8 and 5 years. By applying the multiplier of 16 years, learned Tribunal assessed

the compensation at Rs. 1,12,000/ -. On capitalisation, learned Tribunal deducted Rs. 22,000/ - out of it on the ground of accelerated mode of

payment and thus held the Respondents/claimants entitled to get Rs. 90,000/ - towards the compensation payable equally. Looking to the evidence

adduced before the Tribunal as to the expectancy of life in comparison to the other living members of the family of the deceased, in our view the

assessment is on the lower side rather than in any way excessive. However, because there is no cross-appeal before us and the Respondents have

shown contentment with the compensation so granted it can in no case be said as excessive. It is now well settled that while assessing

compensation several facts are to be kept in mind, when the death is caused by an accident. The court has to consider and balance the loss to the

claimants of any further pecuniary benefits that would have accrued to them had not the death by accident taken place. In the case in hand, since

the data were available to determine the pecuniary benefits or loss occasioned to the claimants/Respondents due to the death of the deceased,

which in no way can be without any basis. The argument, therefore, fails and we hold that the quantum of compensation determined by the learned

Tribunal cannot be regarded as excessive, which is hereby upheld.

Adverting to the next contention put forward by the learned Counsel for the Appellants that the determination of Rs. 5,000/ - towards the loss

of expectation of life and loss to the estate has no meaning, when the compensation as pointed out hereinabove for the loss of life has already been

granted. On scrutiny of this argument, we find that the same is also fallacious. A distinction is to be drawn between the compensation assessed

towards the dependency allowance and the loss of expectation of life and loss to the estate, which can easily be termed as a compensation

towards the mental shock and agony. It is not, therefore, overlapping but independent of the loss occasioned due to the accident towards the

dependency allowance, we can, therefore, safely count it towards the compensation for mental shock and agony which has been termed by the

learned Tribunal towards the loss to the estate. In this head award of Rs. 5,000/ - in our opinion cannot be termed as excessive or without any

basis. This argument also, therefore, fails and cannot be sustained.

Lastly, on the ground of vicarious liability of the State as imposed in the instant case, because the accident is caused by the army truck belonging

to Appellant No. 1, the protection of sovereign act is not available to the Appellant No. 1, Union of India. From the pleadings as well as from the

evidence led by Appellants on issue No. 1, the findings on this count are also not assailable. We have minutely gone through the statement of DW

1 Major G.S. Gour and DW 2 driver M.V. Nambiar, who was driving the vehicle at the time when the accident occurred. It is clearly borne out

from their statements that the goods, which were carried in the vehicle, could be transported by any other means of civil conveyance and the

persons, who were travelling in the vehicle, could also be taken by the civil vehicle engaged for the purpose. DW 1 Major G.S. Gour has gone

even to the extent of saying that deceased Om Parkash died due to rash and negligent driving on the part of Respondent No. 2. On the face of

such an evidence when the factum of accident is admitted and amply proved by the mouth of the witnesses of the Appellants, there cannot be any

escape for Union of India from the liability of accident and no protection can be advanced under the sovereign act. Dealing with this proposition,

their Lordships of the Supreme Court in the case of Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, , held:

If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortious act committed by

the public servant in discharging of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign powers of the

State to such public servant? If the answer is in the affirmative, the action for damages for loss caused by such tortious act has been committed by

a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie.

Major G.S. Gour, DW 1, in his statement categorically accepted that the supplies of store items, which were carried on by Appellant No. 2 in the

army truck did not contain in it the items of arms and ammunition. Such types of supplies could be carried by engaging some civil conveyance.

There is nothing on record to show that Appellant No. 2 was discharging the statutory functions under delegation of the sovereign powers, he is

admittedly a public servant. The act of taking the supplies in the truck, by which the accident was caused could be performed by employing any

other agency and the driver under such circumstances cannot be said to have been performing the duty by virtue of any statutory delegation of any

sovereign power and hence an action for damages would lie against Union of India. The findings of the learned Tribunal on issue No. 1, in our

opinion, therefore, are not assailable. The Appellants have utterly failed to support their contention in proving that the act of Appellant No. 2 while

driving the ill-fated army truck was of a sovereign nature. The ratio of the above dictum of Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, ,

applies with full force to the facts and circumstances of the present case. We have, therefore, no doubt in our mind to uphold the award on merits

as well. No other point was argued.

In the result, the appeal fails, which is hereby dismissed with costs. The Appellants shall bear their own costs and pay that of the Respondents

in this Court. Hearing fee according to the Schedule. The balance of compensation in deposit shall be paid to the Respondents including interest

accrued thereon in accordance with the terms and conditions imposed by the Tribunal under the award for the protection of the interest of the

minors.