Shri Ishwar Singh And Ors. vs Shri Lakhmir Singh And Ors.
2002 Latest Caselaw 850 Del

JUDGMENT

R.C. Chopra, J.

1. The appellants are the sons and daughters of deceased Smt. Chanda Devi who met with an accident on 18th July, 1983 and sustained fatal injuries. She had suffered the injuries when she was alighting from Bus No. DEP 3006 but the driver-respondent No. 1 had suddenly started the Bus in a rash and negligent manner as a result of which she fell down and was crushed under the rear wheels of the same bus. The respondent No. 4 is the husband of the deceased but he never participated in the proceedings and it is stated that he had deserted her much before her death.

2. In the Trial Court, the respondent No. 1, driver, was proceeded against ex-parte. The respondent No. 2, owner, of the bus, denied that the deceased was traveling in the Bus in question. In the alternative, he pleaded that she had suffered injuries on account of her own negligence as she had jumped out of the moving Bus with a view to get down from the bus. The insurer-respondent No. 3 had pleaded that its liability was limited to the extent of Rs. 15,000/- only as the deceased was a passenger in the Bus.

3. On the pleadings of the parties, the learned Tribunal had framed following issues:

1. Whether the deceased Smt. Chanda Devi died as a result of rash and negligent driving of Vehicle No. DEP 3006 on the part of respondent No. 1?

2. Whether the petitioners are the legal representatives of the deceased?

3. Whether the driver was not holding a valid driving license at the time of accident?

4. Whether the petition is not maintainable?

5. To what amount of compensation are the petitioners entitled and from whom?

6. Whether the liability of Insurance Company is limited to Rs. 15,000/- only?

7. Relief.

4. The appellants in support of their case, examined eye witness Shri Baljit Singh as PW-1 who fully supported the appellants' case and deposed that he had seen that at the time of the accident, the deceased was in the process of getting down from the Bus when the driver started the Bus as a result of which she fell down and came under the rear wheels of the Bus. In his cross-examination, if came out that the driver had started the Bus when one foot of the deceased was on the road while the other was on the foot board of the Bus. He also stated that the deceased was dragged up to a distance of 5-6 meters. PW-2 Shri Ishwar Singh was the appellant No. 1 himself. He deposed that at the time of the accident the age of his deceased mother was about 36-37 years. He also deposed about the LRs. of the deceased. Smt. Sheela Devi, Shri Suraj Prakash and Shri Suraj Pal, appellants No. 2, 3 and 4 made a statement that they had no objection in case the compensation was given to appellant No. 1 only. They relinquished their share in his favor. PW-5 Darban Singh from All India Institute of Medical Sciences proved a copy of the post mortem report Exhibit PW-5/1. The respondent No. 3, Insurance Company, examined RW-1 and RW-3/1 to prove a copy of the Insurance Policy Exhibit RW-1/1 to show that the liability of the Insurance Company in regard to the passengers was limited to Rs. 15,000/- only.

5. After considering the pleadings of the parties, evidence on record and the submissions made by learned counsel for the parties, the learned Motor Accident Claims Tribunal vide orders dated 14.12.1995 held that the accident in question, in which the deceased Chanda Devi had sustained fatal injuries, had taken place on account of the negligence of driver-respondent No. 1 for the reason that he had put the Bus in motion when the deceased was in the process of alighting from the Bus. The liability of the Insurance Company regarding passengers was held to be Rs. 15,000/- only but after referring to various judgments and the evidence on record it was held that the deceased had ceased to be a passenger as soon as she reached her destination and when she was in the process of alighting from the Bus, she had become a third party and as such, the liability of the Insurance Company qua her was not limited to Rs. 15,000/- as pleaded. On the question of the assessment of compensation, the learned Tribunal came to the conclusion that the daughter of the deceased had already been married and her three sons had already attained majority and were physically fit enough to make their earnings in near future. As such, they would not have remained financially dependant upon the deceased for long. Considering the age of the deceased and the age of the dependants/LRs., a lumpsum compensation of Rs. 50,000/- was awarded.

6. I have heard learned counsel for the appellants and learned counsel for respondent No. 2 & 3. I have gone through the records.

7. The findings of the learned Tribunal, in regard to the fact that the accident in question had taken place on account of the rash and negligent driving on the part of respondent No. 1 and at the time of the accident the deceased had ceased to be a passenger and had become a third party, have attained finality in as much as the respondents have not filed any cross appeal challenging the aforesaid findings given by the learned Tribuna. Therefore, the only question left to be determined in the present appeal is as to whether the compensation awarded to the appellants requires to be enhanced or not as prayed by the appellants.

8. The averments made in the claim petition and the evidence on record shows that at the time of her death, the age of the deceased was about 32 years. Her children, i.e. appellants, were majors. The plea of the appellants-claimants was that they had financial support from the deceased in as much as she was spending her entire salary on the family. The appellant-claimants had not disclosed their respective age either in the petition or in the course of evidence but in the cross-examination of PW-2 Ishwar Singh-Claimant No. 1 its came out that in the year 1985, the age of the eldest amongst them was about 25-26 years. It means that in the year 1983, when this accident had taken place, all the four children of the deceased were majors and as such, it cannot be said that they would have remained dependant upon their mother for long. The income of the deceased was so meagre that it cannot be said that all of them were dependant upon her or could have remained dependant upon her for long time. Thus, this Court agrees with the view taken by the learned Trial Judge that the financial dependency of the appellants upon the deceased could not be properly computed and as such, a lumpsum amount could be paid to them as compensation.

9. After perusing the impugned orders passed by the learned Tribunal, this Court is of the considered view that the compensation of Rs. 50,000/- awarded to the appellants on account of the death of their mother was too meagre. This compensation if equally distributed amongst all the four children of the deceased, i.e. the appellants, comes to Rs. 12,500/- each which by no stretch of imagination, can be called a just and fair compensation for the loss of love and affection, support and day-to-day help that a mother can give to her children. The presence of elders and particularly mother is a source of strength to her children throughout their lives as she perhaps is the only one who stands by the side of her children whenever they are in difficulty and need her help. She not only continues to give moral and physical support to her children but is always ready and willing to serve them and to give even financial support to them within her means. The loss of love and affection and support of a mother is not capable of estimation in terms of money but still while awarding compensation to her children on account of her death, the Courts must make every endeavor to arrive at a figure which is just and fair and is some solace to the children for her loss. This Court, therefore, is of the considered view that the compensation of Rs. 50,000/- as awarded by the learned Tribunal was a pittance and as such, there are good and sufficient grounds for enhancing the same,

10. In the result, the appeal is allowed and the compensation payable to the appellants is enhanced to Rs. 80,000/-. In terms of the statements made by appellants No. 2, 4 & 4 relinquishing their rights in favor of appellant No. 1, it is ordered that after deducting the amount already paid, the balance of the total amount shall be paid to the appellant No. 1 by respondent No. 3 with interest at the rate of 9% per annum from the date of the filing of the petition till the date of this order. The respondent No. 3 shall pay the enhanced amount within two months failing which interest of 9% per annum shall be payable on the enhanced/unpaid amount from the date of the passing of this order.