Arun Kumar Goel, J.
1. This appeal has arisen out of the award passed by Motor Accidents Claims Tribunal (2), Shimla, dated 22.7.1988, whereby in a petition under Section 110-A of the Motor Vehicles Act, 1939, (hereinafter referred to as 'the Act') award has been passed in the sum of Rs. 60,000/- in favour of respondent Nos. 1 to 5, in case this amount is deposited within 45 days, failing which it has been ordered that interest at 12 per cent would also be payable on this amount with effect from the date of petition, i.e., 12.1.1988.
2. Facts of the case are that respondent No. 1, Durma Devi, along with her husband late Bhag Chand had boarded bus No. HPS 4457 at a place known as Bholar Nallah and that on 10.8.1987 at about 8.45 a.m. deceased was coming to Jubbal for attending to his duty because he was posted as a Fitter in the Irrigation and Public Health Department and respondent No. 1, Durma Devi, was coming to her house. However, the bus did not reach Jubbal because at a place known as Bachhan Nallah it fell down as a result of which Bhag Chand died besides number of other passengers received injuries. Bhag Chand died instantaneously. Further case of the respondents-claimants was that the accident was the result of rash and negligent driving of respondent No. 6, Dipari Lal driver of bus HPS 4457. The deceased was stated to be employed in the Irrigation and Public Health Department at Jubbal and his monthly wages were Rs. 580/-. In addition to this, he was further stated to have been earning Rs. 1,000/- p.m. while working on his land, deceased was the sole bread-winner according to the claimant-respondent Nos. 1 to 5. In this background, compensation of Rs. 4,00,000/-was claimed by the respondents-claimants.
3. This petition was contested and resisted by the respondents and it was pleaded that the accident was not the result of rash and negligent driving of respondent driver Dipan Lal, but it was stated to have been the result of mechanical defect. However, factum of accident was not disputed.
4. On the aforesaid pleadings, parties went to trial on the following issues:
(1) Whether Bhag Chand, the husband of petitioner No. 1 and the father of petitioner Nos. 2 to 5, died in the accident of bus No. HPS 4457 belonging to the respondent No. 1? OPP
(2) If issue No. 1 is proved, whether the accident was due to some rashness or negligence on the part of the respondents, as alleged? OPP
(3) If both the above issues were proved, whether the petitioners are entitled to any compensation? If so, the quantum thereof? OPP
(4) Relief.
All the issues were answered in favour of the respondent-claimant Nos. 1 to 5. Award in the sum of Rs. 60,000/- in all to be shared equally by respondent Nos. 1 to 5 was passed by the Tribunal in favour of the respondent-claimant Nos. 1 to 5 and against the appellants as well as respondent No. 6, driver.
5. In support of their claim, the respondents-claimants led evidence both oral as well as documentary. PW 1 is Dr. Dayal Chand who proved the post-mortem report which was conducted on the dead body of the deceased Bhag Chand on 11.8.1987 by Dr. Sher Singh who was stated to be on long leave and this witness has proved Exh. P-l, copy of the same as he claimed to be acquainted with the writing and signatures of the said Dr. Sher Singh Bodh. This he proved from the original that had been brought by him. PW 2 is Kanwar Singh who was a co-passenger with the deceased and respondent No. 1 Durma Devi and this witness has proved the negligence of the bus driver at the time of bus accident. PW 3 is Jai Bihari Lal, Clerk from the Irrigation and Public Health Sub-Division, Jubbal, who proved from the record that was summoned from him that Bhag Chand was working as a daily waged Fitter w.e.f. 1.8.1987 in Jubbal Sub-Division. At the time of death, he was being paid a daily wage of Rs. 19.05 and he has further stated that Bhag Chand would have become a first class Fitter after one or two months, then his wages would have been Rs. 26.20. In his cross-examination, this witness has further stated that Bhag Chand was working in the department continuously for the last three years. PW 4 is respondent Durma Devi, who has stated that the deceased was the sole bread-winner of the family and she has also proved the income of the deceased being Rs. 580/- p.m., in addition to this she states that he was earning Rs. 20,000/- from 40 bighas of land out of which there is an orchard of 3 bighas. This witness has further gone on record to say that there is none to cultivate the land because the elder son is 11 years of age and she had to manage labour to cultivate the same. However, she has not placed any material on record as to what is the cost of labour that is being deployed by her in place of deceased Bhag Chand. This witness has further proved that the accident was the result of rash and negligent driving on the part of the driver of the bus, i.e., Dipan Lal, respondent No. 6. Against this evidence of the claimants, appellants have produced Dipan Lal, respondent driver as the only witness who has stated that when the bus reached near Bachhan Nallah the front spring of the bus had broken all of a sudden and the bus went off the road and fell into the nallah. He further states that the bus was being driven at a speed of 15 km. per hour and the accident was due to the mechanical defect and not due to any rash or negligent act on his part. Although in his cross-examination, he admits that the road at the place of accident is wide but is not quite wide. He admits the presence of Bhag Chand and Durma Devi at the time of accident as also Bhag Chand having died on account of injuries sustained by him in the accident in question.
6. Mr. Deepak Gupta, learned Counsel appearing for the appellants, has raised two points:
(i) that the ex gratia payment and another sum of Rs. 1,000/- paid by way of interim relief deserves to be deducted out of the awarded amount and by not doing so the Tribunal has fallen into error; and
(ii) that the accident was the result of mechanical failure and was not the result of any rash or negligent driving on the part of respondent No. 6, driver.
7. On the basis of the aforesaid submissions, he has prayed for the dismissal of the claim petition by reversal of the impugned award. So far as first point is concerned, it is no more in controversy in view of Division Bench judgment of this Court in Himachal Road Trans. Corporation v. Arvind Singh Mann 1991 ACJ 825 (HP). Relevant paras from the said judgment which fully cover the present case are extracted herein below:
(16) The question which arises is as to whether the amount payable or the amount paid under the provisions of the Scheme or by way of ex gratia payment by the appellant can be said to be a pecuniary advantage as a result of death in the accident, benefit of which can be given to the tortfeasor. The levy of surcharge under the provisions of Passengers and Goods Taxation Act is a statutory levy and the moment a passenger pays the amount of statutory levy, a statutory contract comes into existence between the passenger and the State. The amount of levy so collected from the passenger is kept apart for being dealt with in accordance with the provisions of the Scheme. It is a contribution made by the passenger himself during his lifetime. Purchase of a ticket on the part of a passenger entitles his dependants to receive the benefit of insurance amount under a contract which comes into existence on payment of the price of ticket, which includes the additional levy. This financial benefit is in essence a deferred benefit to a passenger as a result of the contract. On the same principle, on the basis of which receipt of insurance amount, provident fund, pension or gratuity benefits by the dependants of victim are excluded, the amount paid by the State under the Scheme is to be excluded by holding that it is an act of foresight by statutory compulsion by which the passenger entered into a statutory contract with the State, due to which his dependants or heirs acquired the benefit. To take this benefit away from the rightful claimant(s) and to enure it for the benefit of the tortfeasor is something which rightly shocks the judicial conscience. While the matter was dealt with by the learned single Judge, the State Government explained the policy behind the framing of the Scheme. It was stated that it had been framed with a view to ameliorate the lot of passengers and to minimise their loss and grief on account of the accident in addition to create confidence in them to travel in the vehicles covered by the Scheme. It will be against the public policy to allow the tortfeasor to claim deduction of the amount paid by the State Government from out of a fund under the provisions of the Scheme. Had it been the intention of the legislature, it would have definitely made such a provision by expressly incorporating the same in Section 3-A of the Passengers and Goods Taxation Act.
(17) The provision for levying of surcharge has been made by the State Government and the fund is also ultimately collected by it. It is not a fund which is administered by the appellant Corporation for the passengers travelling in the vehicles covered by the provisions of the Act who ultimately are to derive the benefit. The appellant being a tortfeasor cannot claim deduction for the payment received by the heirs of a passenger who had by purchasing ticket paid the amount of surcharge on the basis of a public policy. The Supreme Court in N. Sivammal v. Managing Director, Pandian Roadways Corporation 1985 ACJ 75 (SC), approved an award made by the Tribunal declining to deduct the amount of family pension received by the heirs of deceased under the family benefit scheme. When pecuniary advantage under the family benefit scheme, which the heirs got as a result of death in an accident, has been held not to be a pecuniary advantage liable for deduction, therefore, on the same analogy the amount received by the claimants under the provisions of the Scheme cannot be held to be deductible from the amount of compensation.
(18) The amount of ex gratia payment by way of interim relief given by the appellant immediately after the accident can be said to be a payment made by a tortfeasor towards the amount of compensation though it is a voluntary payment. It cannot be said to be an amount by way of benevolence. But for the accident, the appellant would not have paid this amount. The appellant is justified in claiming benefit of such a payment, which is made in pursuance of a policy decision taken by its Board of Management.
(19) In view of the above, we hold that the appellant is not entitled to have the amount paid under the provisions of the Scheme set off against the amount of compensation payable to the claimant(s). We further hold that the amount of interim relief paid voluntarily by the appellant to the claimant(s) immediately after the accident is required to be adjusted and deducted from the amount of compensation ultimately awarded under the provisions of the Act. Having dealt with this common question, we now proceed to dispose of the appeals in which there is a challenge made by the appellant to the quantum of compensation determined by the learned single Judge.
8. We find no reason to take a contrary view from the said judgment and accordingly this plea raised by the learned Counsel is negatived.
9. Mr. Deepak Gupta, learned Counsel for the appellants, made an attempt though feebly by submitting that the accident is the result of mechanical failure due to breaking of front spring of the bus. When called upon to show from the file of the case to sustain this plea, he could not stretch his submissions any further and rightly so. It may be appropriately mentioned here that in order to sustain this plea, the appellants were required to produce and prove the maintenance record of the bus in question, as to when the bus was lastly checked and when its springs were checked and when periodical inspection of the bus in question was undertaken by the mechanic of the department. In order to sustain the second plea, the appellants were further required to show that the defect was so latent which could not be ascertained by a man of ordinary prudence and was not found during the inspection/check of the bus in question. It may be worthwhile to mention here that in the present case the doctrine of res ipsa loquitur is fully attracted, because unless it is proved by cogent, reliable and trustworthy evidence that the accident was the result of such latent defect which could not have been located by a man of ordinary prudence, the bus would not have rolled down the nallah. There is no material on the file to this effect. In this view of the matter, the second submission on behalf of the appellant is also rejected.
10. Respondent Nos. 1 to 5, claimants, have filed cross-objections in this case and have prayed for enhancement of compensation. On the basis of material on record, the cross-objections deserve to be partly allowed for the following reasons:
There is no rebuttal of the fact that the monthly emoluments of the deceased were Rs. 580/- at the time of the accident. Applying the multiplier method is by now universally accepted mode to arrive at just compensation payable in such cases. Thus after deducting Rs. 140/- being the expenses incurred upon the deceased, the dependence has been rightly arrived at Rs. 440/- p.m. by the Tribunal and we find no fault therewith. Deceased was stated to be 35 years of age at the time of accident, looking to all the circumstances like uncertainty of life, chances of future promotion and other factors, this is a fit case where the compensation awarded needs to be enhanced by modifying the award in question. Mr. Parneet Gupta, Advocate, has forcefully submitted that multiplier of 20 needs to be applied in the present case. He has further submitted that interest deserves to be allowed from the date of the claim petition on the total amount of compensation, i.e., as awarded by the Tribunal and on the amount that may be enhanced by this Court from the date of claim petition, i.e., 12.1.1988. We find sufficient force in these submissions. We feel that multiplier of 16 ought to have been applied in the present case instead of 10 as ordered by the Tribunal and interest was also payable on the total amount with effect from 12.1.1988 and not as conditionally made payable by the Tribunal. As a consequence the cross-objections are allowed and respondent Nos. 1 to 5, cross objectors, are held entitled to a compensation of (440 x 12 x 16) : Rs. 84,480/-plus Rs. 7,200/- : Rs. 91,680/- in all, together with interest at the rate of 12 per cent on this amount with effect from 12.1.1988 till the date of actual payment. In case any amount has been deposited earlier, the same would be liable to be set off against this amount.
11. As a result of the aforesaid discussions, Himachal Road Trans. Corporation v. Durma Devi F.A.O. No. 131 of 1988, is dismissed and cross-objections No. 68 of 1989 are partially allowed, thereby modifying the award passed by the Tribunal and consequently holding that the respondent Nos. 1 to 5, claimants, are entitled to a total compensation of Rs. 91,680/- with interest at the rate of 12 per cent per annum from the date of filing of petition, i.e., 12.1.1988 till the date of actual payment. In case any payment has been deposited by the appellants pursuant to the award passed by the Tribunal, the same would be liable to be deducted out of this awarded amount. Parties are left to bear their own costs.