U.P. State Road Transport Corporation vs Raja Ram Shukla and Others

K.N. Seth, J.—On 14-24969 at about 7.00 p.m. when U.P. Roadways bus No. 4326 was being taken out of the Bus Station, Zero Road, Allahabad to the workshop it went across the road on the northern patri and crushed Pt. Tung Nath Shukla, who was present in the lane near his house. Pt. Tung Nath Shukla was immediately taken to the hospital where he died at about 10.30 p.m. the same night. The deceased left behind his old parents, young wife aged about 28 years, a widowed sister aged about 45 years and three minor daughters destitute and helpless. A petition was filed under the Motor Vehicles Act (No. 4 of 1939) claiming Rs. 1,22,800/- as compensation. According. to the claimants the vehicle was being driven negligently and rashly, without due care and caution, without blowing the horn and without having effective brakes. It was asserted that the deceased, who was a Hindu priest, had a normal income of Rs. 700/- per month which used to go up to four figure during the marriage season. The deceased was aged 34 years at the time of fatal accident and could normally be expected to live up to the age of 70 years as his parents and grand parents lived beyond that age.

In defence it was pleaded that after the vehicle driven by Faiyaz Hussain arrived at the Zero Road Bus Station and the passengers cleared off the vehicle, the vehicle could not be started for'' taking it to the workshop at Rajapur. One Ram Khelawan, who was not authorised to drive the vehicle attempted to start it. The vehicle began to move and went out of control as the brakes suddenly failed and the accident took place when Tung Nath Shukla suddenly tried to run away and dashed against the headlight of the vehicle. It was also asserted that the compensation claimed was excessive.

The Motor Accident Claims Tribunal, Allahabad held that the accident took place while the vehicle was being taken out of the bus station by Ram Khelawan, who was authorised to drive the vehicle. It was the result of rash and negligent driving of the vehicle and there was no contributory negligence on the part of the deceased. While determining the amount of compensation, the Tribunal took the view that the deceased could be expected to live up to the age of 70 years ; out of his monthly income the deceased expended Rs. 200/- per month on himself and contributed Rs. 100/- per month to the maintenance of the family. In this manner total amount came to Rs. 43,200/-(100x12x36). Deducting sum of Rs. 3,200/- on consideration of lump sum payment, the net amount of compensation was determined at Rs. 40,000/-.

In the appeal preferred by the U.P. State Road Transport Corporation the rinding that the accident took place as a result of rash and negligent driving of the vehicle has been assailed as also the quan turn of compensation awarded by the Tribunal. The claimants filed a cross objection and later on preferred a cross appeal accompanied by an application u/s 5 Limitation Act, for condoning the delay in filing the appeal. They claimed further compensation amounting to Rs. 60,000/-.

Learned Counsel for the U.P. State Road Transport Corporation urged that the cross objection was not maintainable. Reliance was placed on Surjan Singh and Ors. v. Smt Sharda Devi and Ors. 1979 A.L.J. 316 and Virandra Singh v. Smt. Phoolmati 1978 A.C.J. 430 (All.) where it has been held that no cross objection under the provisions of Order 41, Rule 22 Code of Civil Procedure, is maintainable in connection with an appeal u/s 110D of the Motor Vehicles Act. These decisions are binding on us and it must consequently be held that the cross-Objection filed by the claimants is not maintainable. The claimants have preferred a belated appeal.

It is accompanied by an application u/s 5 Limitation Act for condonation of delay. After hearing learned Counsel for the parties on this aspect of the case we feel satisfied that the delay in filing the appeal has been satisfactorily explained. We accordingly allow the application u/s 5 Limitation Act. The appeal preferred by the claimants shall be treated to have been filed within time.

It is not disputed that as a result of the accident which took place on 14-2-1969 at about 7.00 p.m. in front of the U.P. Roadways Bus Station at Zero Road, Allahabad, Pt. Tung Nath Shukla lost his life. It appears from the statement of Faiyax Hussain (DW 1) that he and Ram Khelwan were both drivers of the said bus. The bus arrived at Bus Station Zero Road, Allahabad from Banda. After the passengers had cleared off, an unsuccessful attempt was made to restart the vehicle. The First Information Report (Ext. 1) lodged by the conductor of the bus at Police Station Kotwali shows that Ram Khelawn took the driver seat and a push was given to the vehicle to start it. The vehicle went out of control resulting in fatal injuries to Pt. Tung Nath Shukla. It is in evidence that before attempting to start the bus a report was made to the time keeper about the defects that had developed in the vehicle. The time keeper telephoned to the workshop at Rajapur and called a mechanic. In such a situation the vehicle should not have been permitted to be taken out of the bus station. It should first have been attended to by the mechanic who had been sent from the workshop. Since the vehicle had become unroad worthy because of several defects that had developed, the responsibility for the accident must be held to be of the servants of the Corporation. It was on account of their rashness and negligence that a young life was lost. There is no material on record to establish any contributory negligence on the part of the deceased.

It is not disputed that at the time of his death Tung Nath Shukla was aged about 34 years. He left behind him his aged parents, a widowed sister, his young widow and three minor children. According to Pt. Raja Ram Skukla the deceased earned about Rs. 700/- per month from his profession of a Hindu priest. The cross examination however, indicates that this income included the earning of the father also. We agree with the Tribunal that the estimate of the income of the deceased given out by this witness appears to be exaggerated and the approximate figure may be taken to be Rs. 300/- per month. We, however, do not agree with the Tribunal that out of this amount the deceased must have spent about Rs. 200/- on himself and contributed only Rs. 100/- towards the maintenance of the family. Keeping in view the number of members in the family the deceased could not have spent more than Rs. 100/- on himself and the rest must have gone towards maintaining the family.

The task of determining a just compensation in such cases is almost always difficult. Dealing with this question the Supreme Court in Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors. 1958 A.C.J. 179 (S.C.), cited with approval the following principle elaborated by Lord Wright in Davies v. Powell Dufffyn Associated Collieries Ltd 1942 A.C. 601:

The damages are to be based on the reasonable expectation of pecuniary benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered.... The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand, the loss to him of the future pecuniary benefit, and, on the other any pecuniary advantage which from whatever source comes to him by reason of the death.

The same principle was emphasised by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd. 1951 A.C. 601 in the following words:

The claim for damages...falls under two separate heads. First if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family ?

Indicating the mode of determining damages it was observed that at first the deceased man''s expectation of life has to be estimated having regard to his age bodily health and the possibility of premature determination of his life by latter accidents ; secondly the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his life time, and other circumstances; thirdly the estimated annual sum is multi-pied by the number of years of the man''s estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death, fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate and, fifthly, further amounts have to be deducted from the possibility of the wife dying earlier if the husband had lived the full span of life, and it should also be taken into account that there is the possibility of the widow remarrying as such to the improvement of her financial position. It is obvious that the actual extent of the pecuniary loss to the claimants cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. The Supreme Court adopted the same principle inMunicipal Corporation of Delhi v. Subhagwanti and Ors. 1966 A.C.J. 57 (S.C.) and Sheikhupura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. 1971 A.C.J. 206 (S.C.). Winfield in his "Law of Tort" has enunciated the principle in these words:

The starting point is the amount of wages which the deceased was earning the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expanded for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum making a number of years'' purchase. That sum has to be taxed down by having regard to the uncertainties. The number of years'' purchase if left fluid and will vary according to the deceased''s expectation of working life as it was at his death, the probable duration of the dependency of the dependants and so on. There are in fact so many imponderables in each case that arithmetic, though a good servant, is a bad master and accordingly a round figure should be assessed.

In the case of Municipal Corporation of Delhi 1966 A.C.J. 57 (S.C.), the deceased was 30 years old at the time of the accident, his widow Subhagwanti being aged 28 years and his son 14 and daughters 12 and 2 years old. The High Court found that the widow and the children must have received at least monthly a sum of Rs. 150/- for their subsistence and for the education of the children of the deceased. The income was capitalised for a period of 15 years and the amount of Rs. 27,000/- was determined as just compensation.

In Madhya Pradesh State Transport Corporation v. Sudhakar and Ors. 1977 A.C.J. 290 (S.C.)which was a case of death of an earning wife, the lady had 35 years of service before her when she died. The assessment of damage was made taking 20 as a suitable multiplier. In Vishwa Mitra Chaddha v. Smt. Amrit Kaur and Ors. 1972 A.C.J. 213 (All.) out of the deceased''s income of Rs. 500/-, Rs. 300/- was taken towards the needs of the family which worked out to Rs. 3,600/- per year. In this case a multiple of 12 was applied when the age of the deceased at the time of accident was 50 years. In Smt. Neelima Arora v. Union of India and Ors. 1977 A.C.J. 526 (All.),the deceased was 28 years of age at the time of his death. His normal span of life was taken to be 60 years. Compensation was calculated by multiplying the monthly amount available for the support of the family by 32 and therefrom 33 per cent was deducted for the lump sum payment. In some cases deduction at lower rates had been made for lump sum payment.

The principle of determining the amount of compensation in such cases came up for consideration before a Full Bench of the Punjab High Court in Lachman Singh and Ors. v. Gurmit Kaur and Ors. 1979 A.C.J. 170 (P&H.). After exhaustively considering the cases on the point, six basic principles to be observed and followed in assessing the compensation were formulated. The Full Bench did not approve of the method adopted in certain decision of multiplying the amount of the annual loss to the dependants with the number of years by which the life had been cut short without anything else. It followed the principle of a suitable multiplier adopted in Sudhakar''s case 1977 A.C.J. 290 (S.C.) as well in Mallett v. McMonagle 1969 A.C.J. 312 (H.L., England) by taking into consideration the number of years of the life of the dependency of the various dependants the number of years by which the life of the deceased was cut short and the various imponderable factors such like 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 the remarriage of the widow, the coming up of age of the dependants and their "developing their independant sources of income as well as the pecuniary benefits which might accrue to the dependants on account of the death of the person concerned. In Sudhakar''s case 1969 A.C.J. 312 (H.L., England) although the deceased had 35 years of service before her when she died the Supreme Court assessed the damage by taking 20 as a suitable multiplier.

In the present case the deceased was aged 34 years when the accident took place. It appears from the testimony of Pt. Raja Ram that he was also an earning member of the family and consequently the parents and the widowed sister were entirely dependant on the earning of the deceased. The three daughters aged 10, 7 and 4 years would have in course of time ceased to be dependants on their marriage. Various other imponderable factors such as an early natural death of the deceased, his becoming incapable of supporting the dependants due to illness or any other natural handicap or calamity also cannot be ignored. Keeping in view these factors if a multiplier of 15 is applied as was done in the case of Municipal Corporation of Delhi 1966 A.C.J. 57 (S.C.) to the annual figure of dependency of Rs. 2,400/-, the amount of compensation comes to Rs. 36,000/-. If a multiplier of 20 is applied as was done in the case of Madhya Pradesh State Transport Corporation the figure comes to Rs. 48,000/-. The assessment of compensation by the Tribunal at Rs. 40,000/- cannot be said to be either inadequate or excessive as to justify interference by this Court. In view of the fact that the actual extent of the pecuniary loss to the claimants cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. In the circumstances of the case the amount of compensation awarded by the Tribunal appears to be just and reasonable and must be upheld. The claimants are also entitled to the interest as awarded by the Tribunal.

In the result the appeals and the cross-objection fail and are dismissed. Parties shall bear their own costs.