Zail Singh vs Jagan Nath And Ors.
1991 Latest Caselaw 182 Del

JUDGMENT

R.L. Gupta, J.

(1) These two FAOs 214 and 215 of 1973 and cross- objections in CMs 126 and 521 of 1974 arise out of a common judgment recorded by the learned Tribunal on 24-8-1973.

(2) The facts giving rise to the two claim petitions are that on 5-6-1968 at about 4.45 Pm Dr. P.L. Varma, Injured and Ashok Kumar deceased were traveling in car No DLV-7965 driven by Ved Kumar son of Dr. P.L. Varma from Meerut to Delhi. Dr. Varma was sitting on the left front seat while Ashok Kumar was sitting on the back seat. At G.T. Road near Shahdara there was break down of the rear right side axle and so the vehicle swerved to its right side and stopped on the right side of the road with its front wheel on the Kacha and the rest on the puce road. After sometime truck No. Upv 894 driven by Dalip Singh respondent 2 and owned by Zail Singh, appellant came with very fast speed driven recklessly. The truck driver did not make any effort to avoid impact with the stationary car and dashed the truck against it, crushing both the doors on the left side. The impact was so severe that car was also dragged to some distance. Ashok Kumar died at the spot while Dr. P.L. Varma sustained serious injuries.

(3) The Tribunal awarded Rs. 24,130.00 to the injured Dr. Varma and Rs. 10,000.00 only to the heirs of deceased Ashok Kumar.

(4) In both these appeals the appellant being the owner of the truck has claimed that the liability for the accident should also have been fastened on the vehicle which was actually moving and not stationary. In the alternative it is stated by him that it was the Insurance Co which was liable for the whole amount. Therefore, no part of the liability should be fastened on him and the driver. In cross objections. Dr. Varma and heirs of the deceased prayed for enhancement of the compensation.

(5) I have heard arguments advanced by learned counsel for the parlies. The main question to be decided in these two appeals and the cross objections is what amount of compensation should have been allowed to be paid to the legal representatives of Ashok Kumar and Dr. P L. Varma because Dr. Varma also died during the pendency of his appeal. The further question that will arise is whether the liability of the Insurance Co. was limited or unlimited.

(6) I would first like to discuss whether the liability of the Insurance Company was limited or unlimited. In the claim petition of Dr. P.L. Varma the name of the Insurance company of the truck in question was not disclosed and rather it was stated that particulars of the Insurance were yet to be ascertained from the owner and driver of the truck. The New India Assurance Co. however. filed the written statement Its plea was that since the particulars of the Insurance policy were not given, therefore, it was not in a position to admit or deny whether the aforesaid truck was insured on behalf of the owner Zail Singh ln para 21. it further seated that the claim of RS. 50,000/ was evceetive and the liability, if any, of the Insurance Company was limited to Rs 20,000.00 arising out of the same accident. It is not disputed before me that later on during the proceedings it was admitted before the Tribunal on behialf of the Insurance Company that the aforesaid truck Upv 894 was insured with it. The owner of the truck did not file the insurance policy. Similarly the Insurance company which claimed its liability to be limited to Rs. 20,000.00 only did not file any copy of the iniurance policy. Mr. Sabharwal, learned counsel for the Insurance company, however, argued that under Section 95 of the Motor Vehicles Act, the liability of the Insurance Co. was limited only to the extent of Rs. 20,000.00 at the time of the accident. I am afraid, this argument cannot be allowed to prevail in the absence of the Insurance policy or even its copy which have not been brought on record. The same counsel was representing before the tribunal, the owner and driver of the truck as well as insurer. The stand of both these sets of respondents clashed with each other in as much as the owner and driver of truck never admitted anywhere in the pleadings that the liability of the Insurance Company was limited to the extent of Rs. 20,000.00 . even the claimants denied the limit of liability of the Insurance company to Rs. 20,000.00 in their replication. Therefore, in the absence of any evidence on record to indicate that the liability of the lnsurance company was limited to Rs. 20,000.00 , the finding of the Tribunal in that respect cannot be upheld. The Tribunal has not discussed in its judgment if there was any evidence adduced before it either by the owner of the truck or the Insurance Company to indicate the question of liability.

(7) The Tribunal has also held that the liability of the Insurance company was limited to Rs. 20,000.00 in case of one accident. Mr. Sabharwal, learned counsel for the Insurance company has not been able to cite any law before me on the basis of which this finding of the Tribunal can be sustained. On the other band common sense and natural justice dictate that when a number of persons are involved in an accident the quantum of compensation payable to each of them will have to be separately determined and in case the insurer is not able to establish that its liability is limited, it will be liable to pay the entire amount jointly and severally with other respondents i.e. the owner and the driver of the truck. Therefore, I am of the opinion that the finding of the Tribunal in this respect is also not correct.

(8) Now coming to the main question regarding the quantum of compensation payable to the heirs of the deceased Ashok Kumar and Dr. P.L. Varma. It has come in evidence of Jagan Nath Public Witness -9 that Ashok Kumar was 16 years old at the time of his death. It has further been stated by him that be had passed high school examination in 1968 and the certificate is Bx.PW9/2 The date of birth of Ashok Kumar in the certificate is 8-8-52. The Tribunal after discussing the case of Himachal Govt. Transport v. Joginder Singh 1970 Acj 37 and the case of Hari Chand v. Union of India, 1971 ACJ475 came to the conclusion that in the facts and circumstances of this case a sum of Rs. 10,000.00 will be fair and equitable compensation to be paid to the pareats of the deceased Ashok Kumar. In this respect my attention has been drawn by learned counsel for the claimants to certain other authorities. The first authority in this respect is D.T.C. and another v Rattan Chand & others 1989 Aci 593. In that case the deceased was 21 years old and a student of B.Com The Tribunal had assessed Rs. 18,000.00 as compensation payable to the parents and grand father. However, taking prospective earnings of the deceased into consideration this Court enhanced the compensation to Rs.60,000.00 . In the case of State of Haryana and others v Smt. Sheila Khanna and others Fao 373/80. the facts found by this court were that the deceased was 18 years old and studying in B.Com. The Tribunal had awarded Rs. 25,000.00 only as compenat on. This Court held that after passing B.Com examination the decsased would have at least earned Rs. 750.00 per month and would have conetributed Rs. 500.00 per month towards the family. Applying the multiplier of 15, the compensation was increased to Rs. 90,000.00 along with simple interest at the rate of 6% per annum from the date of the application. In the case before this Court, there is no reason why the compensation should not be increased. The deceased bad passed high school examination in 1968 and he would have also been suitably employed either after completing his education or after getting some professional training, I am of the view that he would have also earned at least Rs. 750.00 per month and would have contributed Rs. 500.00 per month towards the family. Applying the multiplier of 15, I am of the view that the compensation in this case also should have been Rs. 90,000.00 instead of Rs. 10,000.00 payable with interest at the rate of from the date of the application, However, in the cross objections enhancement has been claimed only to the extent of Rs. 50,000.00 . Therefore, the compensation payable to the respondents 1,6 to 9 is increased to Rs. 50,000.00 with interest at the rate of 6% per annum from the date of the application till realisation.

(9) Now coming to the cross objections filed by Dr. P.L. Varma. He claimed that he should have been awarded Rs.50,000.00 with interest at the rate of 12% per annum. Now since Dr. P.L. Varma has himself died during the pendency of proceedings, I am of the view that amount of Rs. 10,000.00 awarded to him as general damages on account of pain and agony suffered by him would not be payable to his legal representatives and the objections to that extent will claimants. In the case of New India Assurance Co. Ltd. v.H.Siddalinga Naika and others, 1985 Acj 89, Karnataka High Court held that, "if in appeal a claimant seeks enhancement of compensation for injuries sustained in an accident and he unfortunately diet during the pendency of the appeal, the appeal abates as a whole". Similarly in the case of C.P.Kandaswamy and others v. Mariappa Stores and others. , it was held that, "the appeal filed by an injured against disallowing portion or the claim will abate on his death". On the other band in the four authorities cited before me on behalf of the cross-objections, it has been laid down that the appeal will abate only to the extent of the compensation payable to the injured on account of pain and agony suffered by him while other part of the compensation will not abate. These are the cases of Legal representatives of Om Prakash, Maya and others v. Mahendra Pal and others 1989 Acj 1114, Sampati Lal v. Hari Singh and others 1985 Acj 539, Thailammani and others v. A.V. Mallayya Pillai and others 1981, Acj 185 and Joti Ram and others v. Chaman Lal and others, 1984 Acj 645. I am in respectful agreement with the views expressed in the later four authorities because the right to sue to the legal representatives of the deceased must be held to remain alive to them on account of loss to the estate of the deceased. The Tribunal assessed the total compensation payable to Dr. P.L. Varma at Rs. 24,139.00 . Deducting Rs. 10,000.00 out of this amount, the claim will survive for a sum of Rs. 14139.00 . Now learned counsel for the legal representatives of the deceased Dr. P.L. Varma has not been able to show why and bow the compensation can be enhanced. I have carefully gone through the judgment of the Tribunal. He has gone through each and every expenditure incurred by Dr. P.L. Varma on his treatment and has allowed all his claims in this respect. Therefore, I am of the view that the claim of Dr. P.L. Varma now succeeded by his legal representatives is not liable to be increased and it remains alive for a sum of Rs. 14,139.00 only.

(10) In view of what has been stated above the claim in favor of the legal representatives of the deceased Ashok Kumar is increased to Rs. 50,000.00 payable with interest at 6% per annum from the date of the application till realisation. The Insurance company shall be entitled to adjust the amount already deposited and paid to the legal representatives Along with proportionate interest. The claim in favor of the legal representatives of the deceased Dr. P.L. Varma is decreased to Rs. 14,139.00 but payable with interest at the rate of per annum from the date of the application. Insurance Company will similarly be entitled to adjust the amount already deposited and paid towards this claim along with proportionate interest. Both these. appeals and the cross objections are accordingly disposed off.