Shanta and ors. Vs. B.S. Chauhan and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.sanjay karol, j.1. the present appeals arise out of award dated 17.1.2007 passed by motor accidents claims tribunal (fast track), shimla, h.p. in m.a.c. petition no. 138-s/2 of 2005/2004 tilted as shanta v. b.s. chauhan.2. f.a.o. no. 72 of 2007 has been filed by the claimants seeking enhancement of compensation awarded by the tribunal and f.a.o. no. 132 of 2007 has been filed by united india insurance co. ltd. assailing the award on the ground that claims tribunal has wrongly fixed the liability on the insurance company.3. on 4.7.2004 bus bearing no. hp 51-3393, owned by b.s. chauhan, met with an accident near village kanog on kufri-chail road, district shimla, h.p. an f.i.r. was registered against the conductor of the bus man singh, who is alleged to have driven the vehicle at the time of accident. sanjay alias sanjeev was in fact the driver of the bus. in the said accident, various passengers received injuries and some of them succumbed to the same and died. various claim applications were filed by the passengers before the different motor accidents claims tribunals in the state.4. the present appeals arise out of the claim petition filed by shanta and others, legal heirs of the deceased dharam singh, under section 166 of the motor vehicles act, 1988 (hereinafter referred to as 'the act'), claiming compensation of a sum of rs. 10,52,000 on account of the death of dharam singh in the accident. deceased dharam singh was survived by his widow and two minor children (one daughter and one son). the deceased, an agriculturist and a muleteer, was having an income of rs. 10,000 per month.5. the driver remained ex parte and the owner filed its response stating that at the time of accident the vehicle in question was being driven by its driver sanjeev, who was holding a valid and effective driving licence to drive the vehicle and the name of man singh as driver of the ill-fated bus was wrongly mentioned in the f.i.r.6. while admitting the fact that vehicle was insured, the insurance company in its reply, however, took up the defence that since man singh who was not possessing any effective and valid driving licence was driving the vehicle at the time of accident, therefore, the insurer was not liable to indemnify the insured as terms and conditions of the policy stood breached.7. based on the pleadings of the parties, the tribunal framed the following issues:(1) whether sanjay drove vehicle no. hp 51-3393 rashly and negligently on 4.7.2004? opp(2) whether there was collusion between petitioners and the respondent nos. 1 and 2 and, if so, its effect? opr(3) whether there was no valid and effective driving licence with man singh, if so, its effect? opr(4) whether the petition is bad for nonjoinder of necessary parties? opr(5) if issue no. 1 is proved, whether petitioners are entitled to compensation, if so, to what extent and from whom? opp(6) relief.8. the parties were afforded adequate opportunities of leading their evidence and after appreciating the material on record, the tribunal while deciding issue no. 3, held that at the time of accident sanjay alias sanjeev was driving the bus in a rash and negligent manner which was the cause of accident. dharam singh, who was travelling in the bus died as a result of the said accident.9. on issue no. 5, dealing with compensation payable to the claimants, relying upon the copy of revenue record (jama-bandi), exh. a4/5, the tribunal held that deceased aged 35 years was an agriculturist and in the absence of any cogent and corroborative evidence, the tribunal took his monthly loss of income to be rs. 3,000 and by applying multiplier of '13' determined the compensation towards loss of income to be rs. 4,68,000. in addition, the following compensation was also awarded:loss of consortium rs. 10,000loss to estate rs. 5,000funeral charges rs. 5,00010. thus, the total compensation of rs. 4,88,000 was awarded. interest at the rate of 6 per cent was also awarded.11. the vehicle being insured, the liability was fastened upon the insurance company.12. mr. gupta, learned counsel for the claimants has argued that tribunal erred in ignoring the income of the deceased from various sources which ought to have been clubbed together for determining the compensation. in any event, the multiplier applied was much on the lower side and further also the compensation towards the head of non-pecuniary damages ought to be enhanced.13. per contra, mr. g.d. sharma, the learned counsel for insurance company, while justifying the quantum of compensation awarded by the tribunal, vehemently argued that the liability to pay the same stands wrongly fastened upon the insurance company for the reason that the tribunal has seriously erred in holding that at the time of the accident the vehicle in question was being driven by sanjay and not man singh.14. i have heard the learned counsel for the parties and also perused the record.15. learned counsel for the owner has supported the award for the reasons set out therein and the driver, who was ex parte before tribunal also chose not to appear in the present proceedings.16. there is no dispute that on the ill-fated day the deceased was travelling in the bus and died in the accident in question. the entitlement of the claimant and their age is also not in dispute. in support of their claim, claimant no. 1, shanta examined herself as pw 1, hc subhash chand, pw 2; ajeet singh, pw 3; hira lal, pw 4 and maina devi, pw 5. in rebuttal, the respondent-owner examined himself as rw 1. the insurance company examined its witness khem chand as rw 2.17. sanjay was driving the bus at the time of the accident is evident from the record. pw 5 who was also travelling in the ill-fated bus at the time of accident has deposed that the bus was being driven by sanjay. she has specifically denied the suggestion that it was man singh who was driving the bus in question. rw 1 has also deposed that sanjeev, also known as sanjay employed by him was driving the bus on the date of the accident. he denied that it was man singh who was driving the bus in question.18. in the other appeals arising out of the same accident being f.a.o. nos. 527 of 2007 and 170 of 2008, this court while examining the statement of said man singh (the alleged driver) and investigating officer who investigated the f.i.r. has already held that it was sanjeev kumar who was driving the vehicle. it was observed as under:that sanjay was driving the bus at the time of accident is evident from the record. pw 1 categorically deposed that the accident occurred as respondent no. 2 (sanjay) lost control and the bus fell down the road. importantly, he has not been cross-examined on this point either by the owner or the insurance company. rw 1 has corroborated his version and has further stated that he had employed driver sanjay alias sanjeev kumar, who was possessing a valid and effective driving licence at the time of accident. he denied that man singh was driving the vehicle. importantly, man singh, rw 6, alleged to have driven the vehicle at the time of accident, as a witness of the insurer deposed that his name was wrongly mentioned in the f.i.r. and it was sanjeev kumar who was driving the vehicle at the time of the accident. in any event, he possessed a driving licence (htv) and was entitled to drive the vehicle at the time of accident. rw 7 is the investigating officer who carried out the investigation pursuant to the registration of the f.i.r. even though in his examination-in-chief he has deposed that during investigation he found that vehicle was being driven by man singh, but, however, in his cross-examination he clarified that he did not remember as to who had stated this fact to him. he further deposed that during investigation he found that the owner had employed man singh as a conductor and sanjeev kumar as driver. both sanjeev kumar and man singh were challaned, which was still pending in the court of jmic, shimla. he also admitted that both man singh and sanjeev kumar were having valid licences and were entitled to drive heavy transport vehicle.this is the only evidence to this effect. thus it is evident that it was sanjeev kumar who was driving the vehicle at the time of the accident. f.i.r. mentioning the name of man singh to have driven the vehicle was registered on the complaint of one nitya nand. importantly, this witness was not examined by the insurance company. statement of rw 7, conclusively does not establish man singh to have driven the vehicle.from the unrebutted testimony of pw 1 which is duly corroborated and supported by rw 1, i see no reason to differ with the findings returned by tribunal that it was sanjay alias sanjeev kumar who was driving the vehicle at the time of the accident. it is not as though the prosecution was launched only against man singh. rw 7 has stated that challan is pending against both man singh and sanjeev kumar. be that as it may be, the fact of the matter is that even man singh was possessing a valid driving licence and thus competent to drive the vehicle. the tribunal has rightly considered the material on record, particularly, the statement of rw 4 and rw 6 to hold that the driving licence of man singh was validly issued by the authorities.19. this court in new india assurance co. ltd. v. satya parkash thakur : 2007 acj 714 (hp), has held that where the owner had proved that he had engaged a person possessing a valid licence to drive the vehicle, the onus to prove that another person not holding a valid driving licence was driving the vehicle with the knowledge of the owner or on account of some carelessness on the owner's part that person not holding the licence came to drive the vehicle was heavy on the insurer. in the present case, no such burden was discharged.20. from the statements of pw 1, pw 2 and pw 3, it is evident that the deceased died in the accident.21. pw 1 has deposed that her husband sowed vegetables on 20-25 bighas of irrigated land owned by him and earned an income of approximately rs. 1,00,000 per annum. additionally, he was a muleteer and used to earn income of about rs. 40,000 to rs. 45,000 per annum from the said source. after the death of her husband, she has to engage labourers and a muleteer by paying daily wages of rs. 80 and rs. 100 to carry out the work in the fields and drive the mules. pw 3 has supported her version. it is true that her statement is not supported by any proof of any documentary evidence but it has come in her evidence that her husband was doing supervisory work and engaging the labourers for carrying out the works in the fields. however, her statement with regard to the income cannot be totally belied for the reason that the revenue record shows the land to be ghasni (uncultivable).22. in v. subbulakshmi v. s. lakshmi : 2008 acj 936 (sc), the apex court has held that where there is no proof of income some guesswork is inevitable.23. the deceased indisputably owned land which was cultivated by him. he was not a labourer. work of a muleteer is of skilled nature. judicial notice can be taken of the fact that in the year 2004 even an unskilled labourer was entitled to daily wages at the rate of rs. 75.24. this court in national insurance co. ltd. v. sharda devi f.a.o. no. 392 of 2001; decided on 24.10.2005, while determining the value of supervisory services in a case where the corpus from which the income is derived is intact has held that a person working as a manager of an orchard himself does business and cannot be replaced by giving the job to other person. a farmer or an orchardist remains in his orchard throughout the day and he is not like a paid employee who only works for some particular hours in a day. an employee cannot put in that amount of effort as the owner himself does. the said view was taken by referring to and relying upon a division bench judgment of this court in himachal road trans. corpn. v. puni devi : 1993 acj 998 (hp).25. considering the fact that deceased was man of means, his income cannot be determined to be a daily wager as has been done by the tribunal. the tribunal, however, without any justifiable reason has erred in not taking into account incomes from different sources while determining total loss. in the present case the loss of income, in my view, can be assessed to be rs. 5,000 per month. the same is just, fair and reasonable. in my view, the income needs to be enhanced to rs. 5,000. the income of the deceased was solely not from agricultural source. he was not devoting full time for agricultural activity as he was also working as a muleteer. therefore, deduction is required to be carried out. after deducting 1/3rd, the amount towards future loss of income comes out to be rs. 3,334 (rs. 5,000 - rs. 1,666).26. on question of multiplier, it is to be noticed that as on the date of accident, deceased was 35 years of age and was survived by a young widow of 28 years and two minor children.27. the apex court in savita sharma v. union of india/chandigarh administration 2008 acj 2032 (sc), while dealing with a case of an ayurvedic doctor, aged 53 years, where the high court had reduced the multiplier applied by the tribunal from '11' to '8', held that when a rough and ready reference is already provided in the second schedule to motor vehicles act, 1988, normally, it should be applied unless there are compelling reasons to take a different view in the matter. the apex court reversed the view taken by the high court and upheld the multiplier fixed by the tribunal.28. in sunil kumar v. ram singh gaud : 2008 acj 9 (sc), where a person aged 29 years suffered 49 per cent permanent disability, the apex court applied the multiplier of '18' and in new india assurance co. ltd. v. charlie : 2005 acj 1131 (sc), the supreme court while dealing with a case of an injured-claimant, aged 37 years applied the multiplier of '18'.29. mr. g.d. sharma, learned counsel for the insurance company has brought to my notice judgment of the apex court in new india assurance co. ltd. v. kalpana : 2007 acj 825 (sc) and also kanhaiyalal kataria v. mukul chaturvedi 2007 acj 1972 (sc), to support his contention that compensation awarded is just and fair and need not be enhanced. in kalpana's case : 2007 acj 825 (sc), the apex court was dealing with a case of taxi driver, who died in an accident at the age of 33 years. his monthly income claimed to be rs. 8,000 but was assessed to be rs. 3,000 per month and multiplier of '13' was applied.30. it is true that the apex court has applied a multiplier of '13' in kalpana's case : 2007 acj 825 (sc) and '17' in kanhaiyalal kataria's case 2007 acj 1972 (sc), but keeping in view the subsequent decisions referred to hereinabove and in view the facts and circumstances of the case, multiplier needs to be enhanced.31. keeping in view the age of the deceased and age of the legal heirs, in my view adopting a multiplier of '17' would be just and fair. thus, by applying the multiplier of '17', the claimants entitlement to compensation would be rs. 3,334 x 12 x 17 = rs. 6,80,136.32. in r.d. hattangadi v. pest control (india) pvt. ltd. : 1995 acj 366 (sc), the apex court had laid down the following criteria for awarding the compensation:(9) ...pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. in order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. so far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.33. in rashila ram kaushal v. ranjit singh : 2004 acj 1891 (hp), this court while dealing with a case of teacher who suffered permanent disability of 20 per cent awarded rs. 37,000 under the head of permanent disability.34. the widow aged 28 years and minor children have been deprived of love and affection of their father. in my view instead of rs. 10,000 and rs. 5,000 awarded by the tribunal for consortium, loss to estate, a consolidated amount of rs. 1,00,000 is awarded under all heads of non-pecuniary damages. this is in addition to rs. 5,000 awarded towards funeral charges.35. the tribunal awarded interest at the rate of 6 per cent. there is no evidence on record to prove the prevailing rate of interest at which the nationalised banks are accepting deposits. however, in other claim petitions arising out of the same accident, the tribunal has awarded interest at the rate of 7 1/2 per cent per annum, which has been upheld by this court in f.a.o. nos. 527 of 2007 and 170 of 2008. accordingly, rate of interest is enhanced from 6 per cent to 772 per cent per annum.36. for the foregoing reasons, the appeal filed by the claimants is allowed and the appeal filed by the insurance company is dismissed. the claimants are entitled to the following amount of compensation along with interest at the rate of 772 per cent per annum, as apportioned by the tribunal:loss of income rs. 6,80,136loss of consortium, loss to estate and all other heads of non-pecuniary damages rs. 1,00,000 funeral charges rs. 5,000-------------total rs. 7,85,136-------------however, there shall be no order as to costs.