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High Court Of Delhi
BHAGWANTI DEVI - Appellant
Versus
ISH KUMAR - Respondent
First Appeal Order 103 of 1971
Decided On : 07/26/1974
MOTOR VEHICLES ACT, 1939 - SECTION 110-A, 110-B, 110-D - FATAL ACCIDENT ACT, 1855 - SECTION 1-A, 2 - AWARD OF COMPENSATION - PRINCIPLES - DEDUCTION OF BENEFITS RECEIVED BY DEPENDENTS ON ACCOUNT OF INSURANCE, PROVIDENT FUND, PENSION, GRATUITY ETC. - PROPRIETY - LUMP SUM PAYMENT - DEDUCTION - JUSTIFICATION.
Fact of the Case:
The deceased, an Assistant in the Directorate General of Health Services, Ministry of Health, Government of India, aged 36 years, was hit by a scooter driven rashly and negligently by the respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3, resulting in his death. The legal representatives of the deceased filed an application under section 110-A of the Motor Vehicles Act, 1939, claiming compensation of Rs. 40,000.00. The Tribunal awarded compensation of Rs. 20,500.00 after deducting Rs. 12,000.00 on account of benefits received by the family on account of gratuity, pension, provident fund and insurance and a further sum of Rs. 6500 on account of prospect of lump sum payment. The driver, owner and the insurer of the scooter filed an appeal challenging the award, while the legal representatives of the deceased filed a cross-appeal seeking enhancement of compensation to Rs. 40,000.00.
Finding of the Court:
The Court held that the accident was caused by the rash and negligent driving of the scooterist and that the Tribunal was justified in concluding that the deceased received head injury on account of rash and negligent driving of the scooter by Ish Kumar respondent no 1 and that on account of these injuries he died in the hospital, the following day. The Court further held that the Tribunal erred in computing the benefit on the basis of life span of 50 years and that the proper basis of computation would have been to arrive at amount on the basis that the deceased would have had a normal span of atleast 55 years and to have reached the normal age of superannuation in Government service. The Court also held that the deduction made by the Tribunal on account of various counts received by the dependents on account of proceeds of life insurance, pension, provident fund and gratuity following the death of the deceased was not justified and that the insurance and retirement-cum-gratuity benefits could not be deducted. The Court, however, upheld the deduction of Rs. 6,500.00 made on account of the fact that instead of periodic benefits, the dependants would be getting the amount of compensation in lumpsum.
Issues: 1. Whether the accident was caused by the rash and negligent driving of the scooterist? 2. Whether the Tribunal erred in computing the benefit on the basis of life span of 50 years? 3. Whether the deduction made by the Tribunal on account of various counts received by the dependents on account of proceeds of life insurance, pension, provident fund and gratuity following the death of the deceased was justified? 4. Whether the deduction of Rs. 6,500.00 made on account of the fact that instead of periodic benefits, the dependants would be getting the amount of compensation in lumpsum was justified?
Ratio Decidendi: 1. The rashness and negligence of the scooterist was established by the evidence of eye witnesses and the site plan prepared by the police after the occurrence. 2. The Tribunal erred in computing the benefit on the basis of life span of 50 years as the deceased was in good health and had a normal life expectancy of at least 55 years. 3. The deduction made by the Tribunal on account of various counts received by the dependents on account of proceeds of life insurance, pension, provident fund and gratuity following the death of the deceased was not justified as these benefits were not derived by the legal representatives on account of his death but were benefits for which the deceased had paid. 4. The deduction of Rs. 6,500.00 made on account of the fact that instead of periodic benefits, the dependants would be getting the amount of compensation in lumpsum was not justified in the facts of the case as the benefit of receiving lumpsum payment was illusory due to the delay in receiving the compensation and the devaluation of the rupee.
Final Decision: The appeal filed by the driver, owner and the insurer of the scooter was dismissed, while the cross-appeal filed by the legal representatives of the deceased was allowed and the compensation was enhanced to Rs. 40,000.00.
( 1 ) THIS Judgment would dispose of F. A. O. 81/71 and F. A. O. 103/71, both of which assail the Award of Mr. Sniv Das Tyagi, Motor Accident Claims Tribunal, Delhi, made on January 14, 1971 in suit No. 104 of 1965, being an application under section 110-A of the Motor Vehicles Act, 1939, hereinafter called "the Act", filed by Mrs. Bhagwanti Devi and the other heirs of Mr. P. C. Sharma, who died as a result of an accident with the scooter which was being driven by Ish Kumar, respondent No. 1, owned by respondent No. 2 and insured with respondent No. 3. F. A. O. 81/71 is an appeal under section 110-D of the Act by the driver, the owner and the insurer of the vehicle for setting aside the Award, while F. A. O. , 103/71 is a similar appeal by the widow and the other legal representatives of the deceased for the enhancement of the compensation awarded by the Tribunal.
( 2 ) IN the application the legal representatives made a claim for Rs. 40,000. 00 from the respondents as compensation on account of the death of the deceased on the allegations that the deceased, who was working as an Assistant in the Directorate General of Health Services, Ministry of Health, Government of India and was 36 years of age, was hit on March 3, 1965 at 9-35 A. M. by scooter No. DIM 7491 driven rashly and negligently by Ish Kumar, respondent No. 1 belonging to respondent No. 2 and insured with respondent No. 3. It was further alleged that the accident occurred when the deceased having got down from a DTU bus near Patiala House Annexe, Tilak Marg, New Delhi was crossing the road to go over to the other side where his office was situated. It is further alleged that the accident was the result of rash and negligent driving of the said scooter by Ish Kumar. The deceased received brain injury as a result of the accident and died on March 5, 1965, leaving a widow and 4 unmarried daughters. Originally, Ish Kumar was shown to be the owner of the scooter but eventually respondent No. 2 was impleaded as a respondent on the discovery that the scooter, though being driven by Ish Kumar, was owned by respondent No. 2.
( 3 ) THE claim of the petitioners was contested by the driver, the owner and the insurer of the scooter, inter alia, on the ground that the scooter was not being driven rashly or negligently and that the accident was caused because of the sudden appearance of the deceased from between the buses which were parked on the left of the road and when the deceased, unmindful of the coming traffic from his right, tried to cross the road. It was further alleged that on account of the aforesaid act of the deceased, the right hand of the deceased struck with the left hand of Ish Kumar with the result that the deceased fell on the ground and sustained the injuries. It was denied that the deceased received any impact with the scooter. A further plea was raised that the application, as against respondent no. 2, was barred by time.
( 4 ) ON the pleadings of the parties, the Tribunal framed the following seven issues 1. Whether Mr. P. C. Sharma died because of the injuries received in accident with scooter no. DIM 7491. 2. If issue no. 1 is proved whether the accident was due to rash and negligent driving on the part of the driver of the vehicle ? 3. Whether the application is within time against the respondent no. 2. If not whether there is sufficient cause for condoning the delay ? 4. Whether Mr. Ish Kumar has valid driving licence. Onus on respondent no. 1. 5. Whether the petitioners are legal representatives of the deceased ? 6. To what amount if any are the petitioners entitled ? 7. Relief.
( 5 ) BY the impugned award, the Tribunal found all the issues in favour of the legal representatives of the deceased except issue No, 4, which was found in favour of respondent No. 1, and held that Ish Kumar bad a valid licence, that the petitioners were the legal representatives of the deceased, that computing on the basis of contribution of Rs. 250. 00 per m
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