Smt. Prem Kanwar and ors. Vs. Rajasthan State Roadways Corporation and anr. - Court Judgment

S.N. Bhargava, J.

1. This is an appeal Under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act of 1939'), against the Award dt. 27th Sept., 1984 passed by the Motor Accident Claims Tribunal, Ajmer dismissing the claim petition filed by the appellants.

2. On 25-4-1979 at about 9.15AM, deceased Sanwat Singh was going on a cycle from the side of Nasirabad town towards the Bus Stand, Nesirabad. He was on the left side of the road. When the deceased was near the speed breaker near the Bus Stand towards Nasirabad Town, Bus No. R.R.M. 1460 of Rajasthan State Road Transport Corporation (hereinafter referred to as the 'RSRTC') overtook another bus of RSRTC which was passing the speed breaker. Both the buses were coming out of the bus stand and going towards Nasirabad Town. Madan Singh, the driver of the bus No. R.R.M. 1460, could not control the bus on account of careless, rash and negligent driving and hit the deceased Sanwat Singh who died on the spot. The deceased's bicycle was completely damaged.

3. The deceased Sanwat Singh was a Driver in Grade II and was drawing a sum of Rs. 375/- per month as on 25-4-1979.

4. The claimant-appellants filed a claim petition Under Section 110 of the Act of 1939 before the Motor Accident Claims Tribunal claiming a compensation of Rs. 25,000/- on account of death and Rs. 75,000/- on account of loss of income, totalling to Rs. 1,00,000/-.

5. The claim was contested by the respondents and they filed separate replies to the petition. The respondent RSRTC has denied paras 1 to 9 of the claim petition and with regard to para 10, it has been submitted that the accident did not take place asmentioned in that para. The driver was neither driving the bus at a fast speed'nor was he at fault. Sanwat Singh of course sustained some injuries and further that the claim was exhorbitant. It was also submitted that the RSRTC is not responsible to pay the compensation.

6. The respondent No. 2, Madan Singh, driver filed a separate reply and submitted that the petitioner should prove as to how the death of Sanwat Singh had taken place but he denied paras 1 to 7 of the claim petition for want of knowledge. In para 8, it was asserted that no accident took place by Bus No. RRM 1460 on 25-4-79 at 9.15 A.M. and that he has been acquitted by the learned Judicial Magistrate, Nasirabad. With regard to para 10, it has been submitted that the deceased Sanwat Singh was not coming from Nasirabad direction nor the driver of Bus No. R.R.M. 1460 hit Sanwat Singh on account of rash and negligent driving and fast speed of the bus while over-taking another Bus., nor the cycle of the deceased was crushed by the bus nor Sanwat Singh died as a result of the accident by bus No. R.R.M. 1460 and that the claim is excessive and the claimants are not entitled for the compensation as the accident did not take place on account of rash and negligent driving of the bus.

7. On the pleadings of the parties, the Motor Accident Claims' Tribunal framed the following issues : --

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8. The claimant-appellants examined as many as 13 witnesses, whereas the respondents examined Shri Madan Singh, driver (respondent No. 2) and one more witness Shri Roodmal Saini. The Motor Accident Claims' Tribunal after hearing the arguments and discussing the evidence of the parties, came to the conclusion that the claimants have failed to prove as to with which bus the accident took place or that the accident took place on account of rash and negligent driving of the bus by driver Madan Singh or that Madan Singh was driving the bus No. R.R.M.1460 and, therefore, decided Issue No. 1 against the claimant-appellants. The Tribunal decided Issue No. 2 also against the claimants and held that the claimants were not entitled to any compensation as they would be getting pension and, therefore, there will be no loss of income to the claimants.

9. It is against these findings of the learned Tribunal that the present appeal has been filed by the claimants.

10. I would like to first discuss the evidence led by the parties.

11. The claimants have examined PW-1 Azad Pal Malik who is a Captain in Military at Nasirabad. He has proved after examining record that deceased Sanwat Singh used to get Rs. 375-90 per month at the time the accident had taken place. He has further deposed that had Sanwat Singh been promoted, he could have reached the post of Subedar Major but if Sanwat Singh would not have been promoted, he would have retired in 1983. PW-2 Smt. Prem Kanwar, wife of the deceased has deposed that she had one daughter aged 15-16 years and one son aged 10 years, studying in 7th and 4th classes respectively and mother of the deceased tc support. She has also deposed that her husband Sanwat Singh was working as a driver in the Military and used to bear the household expenses and also that he was a teetotaler. She also admitted that she was getting Rs. 200/- as pension after the death of her husband. PW-3 Devi Singh who is elder brother of deceased has deposed that his deceased younger brother kept good health, and was a driver in military and used to draw a sum of Rs. 375/- only per month and that his father lived up to the age of 71 years and his mother was living aged 65-66 years. He further stated that the deceased was only 39 years old at the time of his death and that he could have served as a driver even after retirement. PW-4 Jhabbo Ram who was Head Constable at Nasirabad Police Station on 25-4-79 has proved the site plan Ex. 2 which was prepared by him at about 10 or 11 AM. PW-5 Reva Chand who had a Hotel at Bus Stand, Nasirabad has deposed that he was standing outside the bus stand talking to Guru Prasad and had nol seen the actual accident, but he had seen a military man lying near the road.

PW-6 is Nandlal who has a shop at the Bus Stand also deposed that he did not see the accident and also did not know as to how Sanwat Singh died. PW-7 Bhanwarlal who is a Physical Training Instructor in a Government School in Nasirabad has deposed that while Sanwat Singh was coming on a cycle, from Nasirabad town towards the military area, two buses came out from the Bus Stand and one bus bearing No. RRM 1460 being driven by Madan Singh overtaking another bus knocked Sanwat Singh who received injuries. He was cross-examined at length and he admitted that his statement was not recorded by the police in the criminal case. He further admitted that he did not know Madan Singh by name. He went to the office of RSRTC after the accident and found out the name of the driver of bus No. R.R.M. 1460. PW 8 Bal Singh Tak who is a Scooter Mechanic also deposed that Bus No. R.R.M. 1460 while overtaking another RSRTC bus coming out of Nasirabad Bus Stand, hit Sanwat Singh who was going from Nasirabad side to military area on a cycle. As a result, Sanwat Singh died and his bicycle was also damaged. PW-8 was also cross-examined at great length and he admitted that he neither made report to the police nor he gave any statement to t he police or in the criminal Court. PW-9 is Ram Singh who was travelling in the RSRTC bus from Ajmer to Kekri. He has not supported the claimants' version about the accident. In the cross-examination he admitted that he had not seen the accident but had seen a person lying on the road after the accident. PW-10 is Narain Singh who is a driver in Excise Department and previously, he was working in Military. After his retirement from the military, he joined Excise Department as a driver and was getting Rs. 675/- per month. He has produced his appointment letter and letter of confirmation and his pay certificate. PW-11 is Dr. Mahesh Chand who has conducted the post mortem of the deceased on 25-4-79 at 11.30 AM and has deposed that the deceased received injuries from the motor accident. PW-12 is Mithu Singh, who was a motor mechanic in Police Lines, Ajmer in April, 1979 who had examined bus No. RRM 1460 (vide Ex.P.5) and found that the hand break of this bus was, not working. PW-13 Guru Prasad Sharma, who was posted onMilitary Police Duty on 25-4-79 near Nasirabad Bus Stand has deposed that he saw that Bus No. R.R.M. 1460 while overtaking another RSRTC bus struck somebody and he heard some noise and when he went there, he found that a person had received serious injuries and his cycle was also damaged. He followed the vehicle on his motor cycle and stopped the same. The driver and the conductor of the bus ran away. Thereafter, he noted the number of the vehicle and informed the headquarter on phone.

12. Respondents have examined DW-1 Madan Singh, who was driving bus No. R.R.M. 1460 on 24-4-79. He has denied that any accident took place by his bus or that somebody died on account of the accident. He has further deposed that he has been acquitted in the criminal case which was launched against him on account of the said accident. In cross examination, he admitted that on 25-4-79, he was driving vehicle RRM 1460 from Ajmer to Kekri and had left Ajmer at about 8.15 AM and reached Nasirabad between 9.15 to 9.30 AM on his way to Kekri. He of course maintained that he did not drive the vehicle rashly and negligently and that Sanwat Singh did not meet with accident and died. DW-2 is Roodmal who was Conductor of Bus No. RRM 1460. He has also deposed that bus left Ajmer at about 8.30 AM and reached Nasirabad in about one hour and that there is a speed breaker between Nasirabad Bus Stand and the Vyaparik School but no accident was made by the bus.

13. From the above discussion of evidence, I find that there is sufficient evidence to support the case of the claimants that Sanwat Singh died on 25-4-79 on account of accident made by a Roadways Bus No. R.R.M. 1460 which was being driven by Madan Singh. The mere fact that Madan Singh was acquitted in criminal case is of no avail as far as the present case is concerned because in a criminal case the prosecution has to prove beyond reasonable doubt and the burdan always rests on the prosecution, whereas in matters of compensation, it is the preponderance of evidence which decides the matter. Finding of a criminal Court cannot be binding on a civil Court and in this connection, reference may be made to Mrs. Pushpa v. State of Jammu and Kashmir, 1977Acc CJ 375 : (AIR 1977 NOC 277) (J&K;). Learned Tribunal has wrongly discarded the evidence of Bhanwar Lal and Bal Singh merely on the ground that they were not examined by the police in the criminal case or that some of the witnesses had not supported the case of the claimants. Bhanwarlal and Bal Singh are natural witnesses who have been cross-examined at length and their evidence has not been shattered. It cannot be denied that Sanwat Singh died on 25-4-79 as a result of an accident which occurred near Bus Stand Nasirabad by a Roadways bus. A bare denial by the driver or the conductor of the bus is not sufficient. A police report was made on the same day (Ex.P.3); site plan (Ex.P.2) was also prepared on the same day and post mortem had also taken place on the same day and the bus was got mechanically examined on 26-4-79 by Mithu Singh. Overtaking a bus immediately starting from the bus stand near the town, in spite of the speed breaker was itself an act of rashness and therefore, I am of the view that the decision of the Tribunal on Issue No. 1 is erroneous. It has been established by evidence that Sanwat Singh died on account of accident made by bus No. R.R.M. 1460 which was being driven by Madan Singh rashly and negligently.

14. Learned counsel for the appellant has vehemently argued that the view taken by the Tribunal on Issue No. 2 that since the claimants were receiving Rs. 200/- as pension, they are not entitled to any compensation whatsoever, is not correct and in this connection, he has placed reliance on Bhagwanti Devi v. Ish Kumar, 1975 Acc CJ 56 wherein the Delhi High Court, after discussing the evidence, held that the benefits received by the legal representatives on account of life insurance policy, pension, gratuity, provident fund and similar benefits have to be excluded from consideration in determining the amount of compensation which appears to the Tribunal to be just on account of loss of pecuniary benefit, arising out of them.

15. Learned counsel for the appellant has also placed reliance on Parry v. Cleaver, ((1969) 1 All ER 555 : 1969 Acc a 363) in which Lord Reid has observed as under : --

'What, then, is the nature of a contributorypension? Is it in reality a form of insurance or is it something quite different? Take a simple case where a man and his employer agree that he shall have a wage of 20 per week to take home (leaving out of account P.A.Y.E insurance stamps and other modern forms of taxation) and that between they will put aside 4 per week. It cannot matter whether an insurance policy is taken out for the man and the 4 per week is paid in premiums or whether the 4 is paid into the employer's pension fund. And it cannot matter whether the man's nominal wage is 21 per week so that, of the 4, 1 comes from his 'Wage' and 3 comes from the employer, or the man's nominal wage is 23 per week, so that, of the 4, 3 comes from his 'wage' and 1 comes from the employer. It is generally recognised that pensionable employment is more valuable to a man than the mere amount of his weekly wage. It is more valuable because by reason of the terms of his employment money is being regularly set aside to swell his ultimate pension rights whether on retirement or on disablement. His earnings are greater than his weekly wage. His employer if willing to pay 24 per week to obtain his services, and it seems to me that he ought to be regarded as having earned that sum per week. The products of the sums paid into the pension fund are in fact delayed remuneration for his current work. That is why pensions are regarded as earned income.'

He has also placed reliance on Life Insurance Corpn. of India v. Kasturben Naranbhai, 1973 Acc CJ 226 : AIR 1973 Guj 216 wherein also, following the rule in Parry v. Cleaver (supra), a division bench of the Gujarat High Court held that the insurance amount and death cum retirement gratuity should not be deducted from the compensation awarded under the Motor Vehicles Act. The same view was reiterated again by Gujarat High Court in the case of Shakoor Miya, 1978 Ace CJ 130 in which they have dissented from the Madhya Pradesh High Court decision in Smt. Sushila Devi v. Ibrahim, AIR 1974 Madh Pra 181 : 1974 Acc CJ 150. He has also placed reliance on 1978 Acc CJ 143 : (AIR 1977 Cal 338) and AIR 1976 Him Pra 24 : 1975 Acc CJ 420, and finally, he has placed reliance on a Full Bench decision in Bhagat Singh Sohan Singh v. Om Shanna, AIR 1983 Punj & Har94 wherein their Lordships after discussing several authorities and noticing contrary views taken by different High Courts, have held as under : --

'The receipts of insurance, provident fund, pension or gratuity benefits by the dependents of the victim of an automobile accident must be altogether excluded from consideration in the award of compensation to them under Section 110-B of the Act.'

16. On the other hand, learned counsel for the respondent has relied on a Division Bench judgment of Delhi High Court in Ish Kumar v. Bhagwanti Devi, 1982 Acc CJ 183 (DB) wherein 1975 Acc CJ 56 (Bhagwanti Devi v. Ish Kumar) has been overruled and the view taken in Mohinder Kaur v. Manphool Singh, 1973 Acc CJ 515 (Delhi) has been approved. He has further placed reliance on Sushila Devi v. Ibrahim, 1974 Acc CJ 150 : (AIR 1974 Madh Pra 181), a Division Bench decision of Madhya Pradesh High Court in which after discussing the case law in detail, it has been observed as under : --

'To sum up, in a claim for damages for death under Section 110-B of the Motor Vehicles Act, 1939, as it now stands, sums payable on death under any contract of social assurance or insurance are to be disregarded, but the reasonable prospect(s) of receiving benefits such as compulsory employees' insurance, whether contributory or non-contributory, gratuity and pension have to be taken into account.'

17. He has also placed reliance on A. N. Choudhry v. Debahuti Pattnaik, 1979 Acc CJ 455 (Orissa) wherein it has been observed that 'this pension became payable on account of the untimely death of Laxminarayan and has, therefore, to be taken into account in quantifying compensation.'

18. He has also relied on Nirmala Thirunavukkarasu v. Tamil Nadu Electricity Board, 1984 Acc CJ 210 : (AIR 1984 Mad 201) wherein it has been held that the amount received under family benefit scheme, family pension, insurance amount and on account of lump sum payment, has to be deducted while deciding the quantum of compensation. He has also brought to my notice Mrs. Pushpa v. State of J&K; 1977 Acc CJ 375 : (AIR 1977NOC 277) (J&K;) wherein it has been observed that 'the damage suffered by his dependents being their share in the earnings of the deceased, which they would normally expect him to spend on them, the quantum of compensation has to be ascertained by calculating the total loss to them of such future pecuniary benefit less the pecuniary benefit which comes to them from other sources traceable to his death e.g. G.P. Fund, Insurance etc.'

19. In Prem Devi Pandey v. Dayal Singh, 1976 Acc CJ 407 (Delhi), it has been held that 'As far the pension is concerned, there is no doubt that the widow would not have got this pension, but for the death of the deceased. It is, therefore, a distinct pecuniary gain in itself.'

20. In Gobald Motor Service Ltd. v. R. M. K. Veluswami, 1958-65 Acc CJ 179 : (AIR 1962 SC 1 at p. 6), it has been observed as under :

'The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from .whatever source comes to them by reason of the death, that is the balance of loss and gain to a dependant by the death must be ascertained.'

21. Learned counsel for the appellants was very fair in bringing to my notice a decision of this Court in Automobile Transport (Rajasthan) Pvt. Ltd. v. Dewalal, AIR 1977 Raj 121 wherein after noticing AIR 1974 Madh Pra 181, it has been observed as under : --

'In a claim for damages for death under Section 110-B of the Act, sums payable on death under any contract of social assurance or insurance are to be disregarded, but the reasonable prospect(s) of receiving benefits such as compulsory employers' insurance, whether contributory or non-contributory gratuity and pension have to be taken into account.'

22. I have carefully gone through the case of M/s. Automobile Transport (Rajasthan) Pvt. Ltd. (supra) of this Court in which the Division Bench comprising Justice A. P. Senand Justice M. L. Jain, as they then were, was considering a case in which the Tribunal having held that the accident took place on account of rash and negligent act of the driver, the claimants were entitled to a sum of Rs. 30,000/- only. The deceased Dharam Chand was a shareholder in his parental firm M/s. Dwaslal Rangalal and that average income from that firm of the deceased was Rs. 180/- per month. It was also alleged that the deceased was looking after his agricultural farm and in his absence, a servant was required to be engaged whose wages were claimed at Rs. 250/- per month but the Tribunal allowed such wages only @ Rs. 70/- per month. Their Lordships were not considering the question whether the rest of benefits such as compulsory employees' insurance or pension etc. have to be taken into account while deciding the total amount of compensation payable to the claimants. Since AIR 1974 Madh Pra 181 to which Hon'ble Justice A. P. Sen, as he then was, was a party, was cited before this Court, they have quoted the guidelines given in AIR 1974 Madh Pra 181 without observing whether they approved the observations made in that judgment. Moreover, they had no occasion to express any opinion as in the case before them, the question involved in the present case was not there and, therefore, the authority of the Division Bench is not a hurdle in taking a contrary view to AIR 1974 Madh Pra 181. Since this matter is of great importance and is likely to occur in number of cases, I have given a thoughtful consideration and I have gone through the various authorities cited before me. Section 110-B of the Motor Vehicles Act, 1939 envisages that the Tribunal should determine the amount of compensation which appears to it to be just. In essence, therefore, the claimants (dependents) are entitled to a just compensation for the loss on the bases of justice, equity, good conscious and public policy to ameliorate the loss of the depeqdents of deceased victim of an accident by motor vehicle. The principles for determining the total compensation have been settled by the authoritative pronouncement of the Supreme Court as well as various High Courts, though there is diverse opinion between vrious High Courts as to whether the amount of insurance, gratuity, provident fund or family pensionshould be included in the total amount. The Full Bench of the Punjab and Haryana High Court in Lacchman Singh v. Gurmit Kaur, AIR 1979 Punj and Har 50 has held that the amount of insurance policy to which the dependents may become entitled on account of its maturity as a result of death, should not be included i.e. the insurance money should be excluded from consideration for determining the just compensation. We are considering the question as to whether the benefits like provident fund, pension or gratuity should be deductible or not. It seems to be plain that the real distinction between receipts of amounts, which must not be taken into account, and those which may be, depends primarily on the intrinsic nature of such benefits. In considering the issue, two questions pointedly arise and it seems apt for clarity's sake to deal with them separately : --

(i) What is the true nature of service benefits (whether statutory, contractual or otherwise) like provident fund gratuity or family pension received by the dependants of the deceased victim of an automobile accident; and

(ii) What should be the true principle underlying the grant of just compensation to the dependants, in the context aforesaid.

23. I would like to confine my observations particularly to service benefits which are directly involved in the present case. Whether the deceased is entitled to the family pension, gratuity or provident fund, or how much, will depend basically upon the statutory rules or the terms of employment and in some cases it may depend upon the contributory element also. Family pension is nothing more than an incidence of service like the ordinary pension payable to the employee himself on superannuation or disablement. In essence, therefore, the pension of this nature whether contributory or otherwise have their real sources deeply rooted in the performance of satisfactory service by the employee. As to what is the nature of contributory pension has been very aptly described by Lord Reid in Perry v. Cleaver (supra), quotation noted above and the observations made with regard to contributory pension apply equally to a family pension or personal pension. Thus, we see that the intrinsic nature of benefits like thepension is that they are the deferred fruits of satisfactory service, industry, thrift, contributions and foresight of the employee. Equally, these may be the necessary incidents of statutory service rules, employment contracts, or beneficent legislation. To attribute these payments entirely to the fortuitous circumstance of the accident and the resultant death appears to me as untenable. If the deceased happened to be a person who was not in the employment at all or one who had neither made any contribution to any provident fund nor rendered qualifying satisfactory service entitling him to gratuity or made any payments for a family pension, then none of these benefits would arise to his dependants despite his death. On death, the pension would be available to the dependants. Therefore, it cannot be said that the pension is being received by his claimants as a result of his death by accident. Therefore, the real and intrinsic nature of the benefit insurance etc. is the labour, industry and satisfactory service rendered by the employee (deceased) and in fortuitous circumstance of his dying in an accident by a motor vehicle. A tort-feasor should not take over the benefit of these benefits by getting credit for them in mitigation of the damages that he must pay. I am in full agreement with the view expressed by the Full Bench of the Punjab and Haryana High Court in Bhagat Singh Sohan Singh's case (supra) and I do not propose to discuss other cases cited by learned counsel for the respondent as most of them have been noticed and dissented by the Punjab and Haryana High Court. Death of a person, especially untimely and unexpected, brings untold misery to his family. These miseries besides being financial are also social and emotional which can leave a permanent trauma. No amount of financial grant can ever be an adequate compensation for loss of a life which is irretrievable. Thus, while granting monetary compensation for a death, one must be liberal in outlook, and permit as much compensation as possible, especially when the deceased's family is of very modest means. These legislation have been provided to mitigate the loss that the dependents suffering and, therefore, should be liberally construed in favour of the claimants and against the tort-feasors. Thus, I express my respectful disagreement with the views expressed bythe Madhya Pradesh High Court in 1974 Acc CJ 150 : (AIR 1974 Madh Pra 181) and that of Delhi High Court in 1982 Acc CJ 183 and Orissa High Court in 1979 Acc CJ 455 (supra) and express my agreement with the view expressed in AIR 1983 Punj and Har 94, AIR 1973 Guj 216 and 1978 Acc CJ 130 and in my considered opinion, the amount of pension which the deceased would have received is to be excluded and not considered while granting total compensation to his dependents (claimants).

24. Now coming to Issue No. 2 regarding the quantum.

25. The deceased Sanwat Singh was in service and was drawing a sum of Rs. 375A per month and the claimants are his wife, Smt. Prem Kanwar and two minor children, Kumari Bhanwar Kanwar and Santosh Singh (son). It has also come in evidence that the deceased was not habitual to drinking and so we can take it that he used to spend Rs. 175/-on him personally and spend Rs. 200/- on his dependants i.e. his wife and two children. It has also come in evidence that father of the deceased lived up to the age of 71 years and that his mother was living at the age of 65-66 years. Sanwat Singh was 39 years of age at the tune of accident. It has also come in evidence that even if Sanwat Singh would have retired in 1983, he could get another employment as a driver whose pay would have been Rs. 675/- per month. It has also come in evidence that Sanwat Singh was of good health at the time of accident. Therefore, even presuming that he would have earned only Rs. 375/- per month, and would have lived up to the age of only 70 years, in my opinion, the dependents are entitled to compensation to the tune of Rs. 200/- X 12 X 30 = Rs. 72,000/-. Since I have already held that amount of pension which the dependants were receiving is not to be counted or considered while granting compensation, in my opinion, the appellants are entitled to compensation of Rs. 72,000/-, in all. The accident had taken place on 25-4-79 and the claimants have not received a single pie as compensation so far. Therefore. I think the claimants are also entitled to interest at Rs. 72,000/- at the rate of 6 per cent per annum from the date of application i.e. 19-10-79.

26. In the result, the appeal is allowed, the order of the Tribunal is set aside and the application for compensation under Section 100 of the Motor Vehicles Act is allowed and the claimants are entitled to a sum of Rs. 72,000/- in all with interest at the rate of 6% per annum from 19-10-79. The parties are left to bear their own cost.