Vinay Dattatraya Deuskar and Others vs Pepsu Road Transport Corporation and Others

Sarojnei Saksena, J.—By this judgment, four Letters Patent Appeals bearing Nos. 652, 653, 654 and 655 of 1986 are being decided as correspondently four First Appeals bearing Nos. 343 of 1984 (Claim Petition No. 2/83), 344 of 1984 (Claim Petition No. 3/83), 345 of 1985 (Claim Petition No. 4/83) and 346 of 1984 (Claim Petition No. 5/83) were decided together by the learned Single Judge by a single judgment.

Claimants filed the aforementioned four First Appeals being dissatisfied with the award given by the learned Claims Tribunal in the aforementioned claim cases. Four appeals bearing F.A. Os. 352 to 355 of 1984 were also filed by the New India Assurance Company Limited being aggrieved against the apportionment and fixation of their liability. Pepsu Road Transport Corporation also preferred appeals bearing FAO Nos. 347 to 349 and 366 of 1984, which were dismissed by the Motion Bench in limine.

The aforementioned eight appeals were decided by the learned Single Judge by the impugned judgment. These Letters patent Appeals have been filed by the claimants. In each Letters Patent Appeal, Cross Objection bearing Nos. 3, 6, 7 and 8 of 1987 are filed by the respondents 3 and 4 which are also being decided by this judgment.

Skeletal facts of the case are that on 10.9.1982 a taxi bearing No. CHZ-158 was coming from Kurali to Chandigarh. Mr. V.P. Jathar and his wife Mrs. Mangla Prabhakar Jathar, her sister Neena Dattatraya Deuskar and her husband D.A. Dattatraya Deuskar were travelling in this taxi besides its driver. At 1.40 P.M. head on collision took place between this taxi and the bus bearing No. PUB-3610 belonging to the Pepsu Road Transport Corporation. In this vehicular accident, Mr. and Mrs. Deuskar died at the spot as also Mr. Jathar. The driver and Mrs. Jathar was removed to the Post Graduate Institute of Chandigarh, where she was medically treated.

Mrs. Jathar filed one claim application before the Tribunal, claiming compensation for her injuries, she also filed another application along with her major son, claiming compensation for the loss and damage suffered on account of the death of Mr. Jathar. Three major children (two sons and one daughter) and Mr. and for Mrs. Deuskar also filed two separate applications claiming compensation to the death of their parents.

The learned Claims Tribunal awarded Rs. 82,000/- on account of death of Mr. Jathar, Rs. 20,000/- on account of injuries sustained by Mr. Jathar, Rs. 60,000/- on account of death of Mr. Deuskar and Rs. 48,000/- on account of death of Mrs. Meena Dattatraya Deuskar. The Tribunal also awarded interest at the rate of 10 percent per annum from the date of petition till payment.

The Tribunal also held that the Insurance Company was liable to the extent of Rs. 10,000/- per passenger in the accident. The Tribunal also found the liability composite holding that the bus was negligent to the extent of 40 percent and the taxi to the extent of 60 per cent.

The accident was not disputed by either party. While deciding FAO No. 343 and 345 of 1984 (out of which Single Judge held that the deceased Shri V.P. Jathar was the Chief Regional Manager of the State Bank of India at Pune. He had come on leave. He was to retire on 10.7.1983. At the time of accident he was drawing a salary of Rs. 4691.67 per mensem. The Tribunal held that the deceased could be expected to be giving his wife a sum of Rs. 3,000/- per mensem towards upkeep of the household and the family and on that basis the Tribunal assessed the dependency of wife (as the Tribunal held that the major son was not dependent on him) to the tune of Rs. 2,000/- per mensem. Since the deceased was expected to serve for 11 months more, the Tribunal calculated that his widow had suffered a loss of Rs. 22,000/- and after his retirement as the deceased was to get pension at the rate of Rs. 1,325/- per mensem, the Tribunal held that he would have paid a sum of Rs. 500/- per mensem to his wife for household maintenance. Adopting a multiplier of 10, Rs. 60,000/were awarded to the widow on this count. Thus, a total sum of Rs. 82,000/- was awarded by the Tribunal. The learned Single Judge held that since Mrs. Jathar stated on oath that her husband was giving her Rs. 3500/- per mensem for household expenses, her statement should have been believed, deducting Rs. 1000/- per mensem for the personal expenses of the deceased, the dependency was determined at the rate of Rs. 2500/- per mensem. Consequently, for 11 months during which the deceased would have been in service, the learned Single Judge awarded the widow a sum of Rs. 27,500/- on this count. Thereafter taking into consideration the pension that the deceased would have received, the learned Single Judge held the dependency of Mrs. Jathar at Rs. 662.50 i.e. Rs. 7,950/- per annum rounded up as Rs. 8,000/- per annum. Again adopting a multiplier of 10, she was" awarded Rs. 80,000/under this head. Thus, the compensation was enhanced to Rs. 1,07,500/-.

Claimant-appellants'' learned counsel vehemently assailed this amount of compensation awarded by the learned Single Judge. Relying on Colonel K.S. Dhaliwal and another'' v. Jagdeep Riar and Ors. (1986)88 P.L.R. 121, General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and Bimla Devi and Ors. v. Pepsu Road Transport and Ors. 1984 A.C.J. 473 he submitted that in this case the learned Single Judge has wrongly applied a multiplier of 10. The age of Mr. V.P. Jathar at the time of accident was 58 years and Mrs. Mangla Prabhakar Jathar is aged 55 years. Thus, a multiplier of 16 should have been applied in this case.

He also submitted that if Mr. V.P. Jathar would have died after two months, he would have come within the ambit of Employees Mutual Welfare Scheme which came into force on 1.11.1982 and in that event his widow would have been entitled to pension at the rate of Rs. 500/- per mensem. Thus, according to him, she suffered a loss of this pension also which the learned Single Judge has not taken into consideration.

The learned counsel also submitted that Mr. V.P. Jathar was the Chief Regional Manager of the State Bank of India and had expertise knowledge in his branch of learning; therefore, even after retirement, he would not have sat idle at home and would have started his consultancy in that branch and in that event would have earned handsome amount per month. Thus, future prospect of the earning of deceased Mr. V.P. Jathar was not considered at all by the learned Single Judge. He also commented that when the learned Single Judge relied on the oath of Mrs. Jathar that she was getting Rs. 3,500/- per mensem from her husband for household expenses, there was no reason for the Single Judge to deduct Rs. 1,000/- more out of his salary when a deduction of Rs. 1191/- was already made on that count from his pay as admittedly Mr. Jathar was getting a salary of Rs. 4691.67P. Out of this pay, widow''s dependency for 11 months of his service was wrongly determined at Rs. 2,500/- P.M. He also pointed out that the Claims Tribunal as well as the learned Single Judge have not awarded any amount to the son of Mr. V.P. Jathar; therefore, the dependency of the widow should have been determined at half of the earning of Mr. Jathar.

Accordingly, LPA No. 654 of 1986 deserves to be allowed and compensation is to be enhanced but not to the extent as claimed by the learned counsel. The authorities relied on by the learned Single Judge are distinguishable. In Colonel K.S. Dhaliwal''s case (supra) (1986(1) P.L.R. 121) the deceased was aged 60 and the multiplier of 14 was adopted. In Bimla Devi''s case (supra), the deceased was aged 59 years and 10 was the multiplier applied, but in Susamma Thomas''s case (supra) the deceased was aged 39 years only and multiplier of 12 was adopted.

In U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , the Apex Court has held that "while making selection of multiplier not only the age of the deceased but that of the claimant is also required to be taken into consideration." In this case the deceased was aged 58 years and the claimant-widow is aged 55 years. In our considered view, the learned Single Judge has rightly applied the multiplier of 10. Since the learned Single Judge has relied on the oath of Mrs. Jathar that she was getting Rs. 3,500/- per mensem from her husband for the household upkeep, there was no reason to deduct Rs. 1000/- more out of this amount for personal expenditure of Rs. V.P. Jathar. as admittedly Mr. Jathar was getting a pay of Rs. 4,691.67 P. Rs. 1200/- were already deducted out of this pay for personal expense of the deceased. Thus, in our considered view, the widow is entitled to get Rs. 3500/- per month for those 11 months during which Mr. Jathar was to remain in service if he would not have died in this vehicular accident. On this count, claimant-widow is entitled to get Rs. 38,500/-.

So far as the grant of pension at the rate of Rs. 500/- per mensem under the Employees Welfare Scheme is concerned, in our considered view the claimant cannot be awarded this amount because no compensation can be awarded on such a hypothetical basis.

So far as the amount of pension of Rs. 1,325/- is concerned, which the deceased was to get after his retirement, the learned Single Judge has rightly applied multiplier of 10 and awarded Rs. 80,000/- to the claimant under this head. No interference is called for under this head.

The last contention of the learned counsel is forceful that the learned Single Judge has not awarded any amount to the claimant on account of loss of consortium and loss of estate. In our considered view under this head she is entitled to get Rs. 10,000/- more. Thus, in our considered view, the claimam Mrs. Jathar is entitled to get Rs. 1,28,500/- as compensation with interest at the rate of 12 per cent per annum from the date of presentation of the claim petition till its realization.

Cross-objection filed in this Letters patent Appeal and Cross-Objections filed in other connected Letters Patent Appeals will be taken up at the end.

Smt. Mangla Prabhakar Jathar also filed claim petition claiming compensation for the injuries sustained by her in the accident. She had compound fracture of both the bones of her left fore-arm, which were-plastered. She lost three teeth and her lip was also cut. She was hospitalised for about 10 days in the Post Graduate Institute, Chandigarh. Thereafter also she continued receiving treatment from this hospital as well as at hospitals in Bombay. To mend her lip she received plastic surgery. Her 17 teeth were also extracted later on. On the date of accident her age was 55 years. In this accident she lost he husband.

The claimant as PW-5 stated on oath that before the accident she was doing her household work, but because of her injuries she had to employ a maid-servant at an expense of Rs. 200/- per month inclusive of food and clothing. The Tribunal awarded Rs. 20,000/- as per the following break-up :-

1) For medical expenses Rs. 1,000/- 2) For pain and suffering and Rs. 12,000/- loss of amenities under the head of general damages. 3) On account of permanent disability Rs. 5,000/- of teeth and disfigurement of face. 4) For the period during which the Rs. 2,000/- claimant had to employ a maid-servant.

Undeniably Mrs. Jathar did not suffer any permanent disability on account of fracture of her fore-arm. The only permanent disability is with regard to loss of her three teeth and slight disfiguration of the lip and that too at the age of 55 years. The learned Single Judge considered these facts and circumstances of the case and held that she could not have retained her teeth much longer. He also commented that it is not her case that she had to keep that maid-servant for the loss of any limb or that she was unable to do her household chores any longer. He also noticed that no evidence was pointed out to him to the contrary except the suggestions that the ex-penditure would be much more. In the totality of facts and circumstances, the learned Single Judge enhanced the compensation to Rs. 30,000/- taking into consideration all the heads.

The appellant''s learned counsel contended that less amount of compensation has been awarded to the appellant under all the heads. She was admitted in hospital in Chandigarh and even after the period of hospitalisation she was continuously taking treatment from doctors at Chandigarh as well as in Bombay. Because of the lower lip her face is disfigured. For disfiguration age is immaterial. She spent more than what has been awarded to her on account of medical expenses. Later on because of this accident her 17 more teeth were extracted. Neither the Claims Tribunal nor the learned Single Judge has awarded her any compensation for this loss. Thus, he prayed for enhancement.

We have considered the evidence adduced by the appellant and have gone through the findings recorded by the Claims Tribunal as well as the learned Single Judge.

In this accident the claimant suffered fracture of both the bones of her left fore-arm, which was put under plaster. She lost her three teeth and her lip was cut. For 10 days she was admitted in P.G.I., Chandigarh and thereafter also she took treatment initially at Chandigarh and then in Bombay as well. Plastic surgery was also done to mend her lip. He 17 teeth have been extracted and now she is using dentures. No doubt, she was aged 55 years on the date of accident, but disfigurement is disfigurement. Age has nothing to do with the disfigurement. She is not claiming any compensation averring that because of this disfigurement her prospects of matrimony have diminished or she will lose the love and care of her husband. In this accident she lost her husband. Because of this accident she had to employ one maid-servant also for a certain period. During all this period she must have suffered a lot of pain and suffering. Thus, in our considered view, justifiably an enhancement is to be made in the amount of compensation awarded by the learned Single Judge. It is ordered that the claimant-appellant is entitled to get compensation of Rs. 40,000/- from the respondents with interest at the rate of 12 per cent per annum from the date of presentation of the claim petition till payment. The appeal is allowed with costs, which are quantified at Rs. 2,000/-.

LPA No. 652 of 1986.

The claimants have filed this LPA against the judgment of the learned Single Judge awarding compensation for the death of D.A. Deuskar.

The facts of the case are that Shri Deuskar was a retired person and was getting pension of Rs. 478/- per month. Claim petition was filed by his two major sons Vivek and Vinay and a daughter named Smt. Swati. Vivek, younger son, was dependent on the deceased as at the time of accident he was a student, though for doing his Ph.D. he was drawing a stipend of Rs. 600/- per month. The deceased was also re-employed by a private concern from where he was drawing a salary of Rs. 2700/- per month. Thus, the total emoluments of the deceased on the date of accident was about Rs. 3200/-. Vinay was unmarried, aged 22 years. The learned Single Judge held that if the deceased would have been alive, he would have worked to see his younger son settled. The deceased was a Civil Engineer. Two months prior to his death he retired from the Associated Cement Company on attaining the age of superannuation. The Claims Tribunal held that the deceased was re-employed but determined the dependency of the younger son at Rs. 250/- per month and Rs. 125/- per month each for the elder son and daughter. A multiplier of 10 was adopted and thus it was held that the claimants are entitled to get Rs. 60,000/- as compensation, out of which Rs. 30,000/- were ordered to be paid to Vivek and the other claimants were held entitled to receive half/half of the remaining amount.

The learned Single Judge considering the fact that Vivek was getting a stipend of Rs. 600/- per month being Ph.D. scholar, but that by itself did not mean that it was regular income, observed that the deceased was expected to have remained in re-employment for at least another four years to see his own son Vivek settled in life. On that premise the learned Single Judge determined the dependency of Vivek in the manner that out of total emoluments of Rs. 3200/- per month of the deceased, a sum of Rs. 1000/- per month could safely be ear-marked for the education and settlement of Vivek for four years. Thus, his dependency was enhanced by Rs. 36,000/- over and above Rs. 12,000/- which is included in Rs. 30,000/- what the Tribunal had held. Thus, a total sum of Rs. 96,000/- was awarded as compensation on account of death of D.A. Dattatraya Deuskar, out of which Rs. 66,000/- were ordered to be paid to Vivek and remaining Rs. 30,000/- were to be divided between the two other claimants.

The claimants'' learned counsel, relying on Trilok Chandra''s case (supra), strenuously argued that if the unit system would have been adopted, since the family of the deceased consisted of himself, his wife and three major children, the children were entitled to 3/5th of the total emoluments which the deceased was getting i.e. Rs. 1920/- per month, and 2/5th could have been deducted for the expenses of Mr. and Mrs. Deuskar. Thus, adopting a multiplier of 10 the dependency of the claimants should have been determined at Rs. 2,20,400/-.

The arguments advanced by the claimants'' learned counsel deserves acceptance. Admittedly, the deceased was getting total emoluments of Rs. 3200/- per month. His family consisted of five major persons. Two died in this accident. The three survivors are the children of the deceased. As per unit system, the dependency of the claimants is required to be determined at 3/5th of the total emoluments of the deceased, which decidedly comes to Rs. 1920/-. It is not disputed before us that multiplier of 10 is rightly adopted in this case. Thus, in our considered view, the claimants'' dependency is to be determined at Rs. 1920/- and adopting a multiplier of 10, we find that the claimants are entitled to get Rs. 2,20,400/-. Since Vivek was a student when his father died and was to settle in life, in our considered view, he is entitled to more amount out of the said compensation. Hence, it is ordered that Vivek is entitled to get Rs. 1,10,000/- and the remaining amount of compensation is to be divided equally between Vinay and Smt. Swati claimants. The claimants are also entitled to get interest at the rate of 12 per cent per annum from the date of presentation of the claim petition till realisation. The LPA is hereby allowed with costs which are quantified at Rs. 2000/-.

LPA No. 653 of 1986

The claim petition was filed by the heirs of Mrs. Meena Dattatraya Deuskar as in this vehicular accident she too died along with her husband. Admittedly she was a house-wife and had no independent source of her income. The Tribunal assessed her worth as household wife in terms of money at the rate of Rs. 500/- per month and deducting half for her personal expenses, the loss occasioned to the children on account of her death was fixed at the rate of Rs. 250/- per month. Adopting a multiplier of 16 they were awarded Rs. 48,000/-. The Tribunal also ordered that half of the awarded amount shall go to her unmarried son Vivek and the other half shall be shared equally by the remaining two claimants.

The learned Single Judge maintained this amount of compensation and declined to enhance it on any count.

The claimant-appellants'' learned counsel, relying on Kumari Purnima Vindal and Others Vs. Chater Mal and Others, , assiduously argued that the wife not only runs the household but also looks after the comforts of the children and the husband as well. Her death is a big loss to all the members of the family. Even maid servant cannot be a suitable and adequate substitute for the services rendered by a house wife. He also pointed out that these days, it is common knowledge, that a maid servant is not available even at the rate of Rs. 600/- or Rs. 700/- per month. He further submitted that maid servant at the most visits the house twice a day but the house wife serves and looks after the house all the 24 hours. Therefore, loss occasioned due to the death of a house wife should be determined at a higher figure than Rs. 500/-.

Purnima Vindal''s case (supra) is distinguishable on facts. In that case housewife was also a partner in the family business, wherein she had invested Rs. 90,000/-. She was mother of two minor children, aged 9 and 10 years, at the time of her death. Considering that a maid servant is required to be engaged for cooking and minimum rate of wages being Rs. 40/- per day under the Minimum Wages Act and further some more expenditure is required to be incurred for looking after the minors, this Court assessed the annual dependency of the family at Rs. 12,000/-. But in this case the deceased was a house wife only. Her children are not minors. They are grown up children. Two are settled in life and the younger one is a research scholar, getting stipend also. Thus, in our considered view, the Tribunal as well as the learned Single Judge have not fallen into any error in assessing the dependency of the claimants at the rate of Rs. 250/- per month. Both the Courts have adopted a multiplier of 16 as at the time of accident her age was 52 years. Thus, in our considered view, the learned Single Judge has rightly dismissed the claimants'' appeal Upholding the award of Rs. 48,000/- as compensation to the claimants on account of the death of their mother Mrs. Meena Dattatraya Deuskar. We find no aberration in the finding recorded by the Tribunal, which is duly affirmed by the learned Single Judge. Hence finding no merit in this appeal, it is hereby dismissed.

The owner and driver of the offending vehicle have filed aforesaid Cross-objections on the ground that the Tribunal has wrongly held that the liability of the Insurance Company to pay the compensation is limited to the extent of Rs. 10,000/per passenger and this finding is affirmed by the learned Single Judge. The objectors'' learned counsel vehemently argued that the original insurance policy was not produced before the Claims Tribunal. Only a photo copy of the policy was produced and relying on the terms and conditions of that policy, the Tribunal has held that liability of the Insurance Company is limited to pay compensation to the extent of Rs. 10,000/- per passenger. His contention is that the policy was not proved in accordance with the provisions of the Evidence Act.

The above contention is devoid of any force. The insurance policy was relied on by the Insurance Company as well as by the Objectors. Thus, it was an admitted document. No objection was raised when the photo copy of the insurance policy was produced. Further Exhibit R-2 is the original insurance policy. It contains a clause of limits of liability. Under this head limit of amount of company''s liability u/s H-l(i) in respect of one accident is limited to Rs. 50,000/-. Section II-l(i) reads as under:-

"(i) death of or bodily injury to any person caused by or arising out of the use including the leading and/or unloading of the Motor Vehicle."

u/s 95(2)(b)(ii)(4) the Insurance Company is liable to the extent of Rs. 10,000/- for each individual passenger in any other case. In this case the deceased as well as the insured were travelling in a taxi. Therefore, it is obvious that liability of the Insurance Company in each case is limited to the extent of Rs. 10,000/- only. The learned Single Judge has not fallen into any error in accepting this legal position in holding that the liability of the Insurance Company in each case is limited to Rs. 10,000/-.

Consequently, all those Cross-Objections are hereby rejected.