JUDGMENT
Mohd. Shamim, J.
(1) The above three appeals, being inter-connected and arising out of the same occurrence a re being taken up together as the same can be disposed of conveniently by one and the same order. The said appeals have been preferred against the judgment and order dated March 6,1979 passed by Shri S.N.Kapur, Judge, Motor Accident Claims Tribunal, Delhi,, whereby he awarded a sum of Rs. 45,600.00 by way of compensation to the appellant Smt. Shanti Devi against the respondents in Fao 225/79 i.e. Maqsood Ali and Union of India; Chander Singh; Municipal Corporation of Delhi and General Manager, Delhi Transport Corporation. They were held jointly and severally liable.
(2) Aggrieved with the said judgment and order Smt. Shanti Devi has come up in appeal ( F.A.O. No. 225/ 79 ) for enhancement of the said compensation from Rs. 45,600.00 to Rs.50,000.00
(3) On the other hand, Delhi Transport Corporation and Shri Chander Singh, respondents, have challenged the legality and the validity of the said judgment and order and their liability to pay the said compensation through F.A.O. No. 118/79. The Union of India have similarly sought the quashment of the said judgment and order through F.A.O. No. 6/80.
(4) Brief facts which are necessary in order to fully and property appreciate the points involved in the above three appeals are being narrated below: that a D.T.U. bus No. Dlp 189 was coming on route No. 29 on December 11,1967 at about 8.30 a.m.and was proceeding to wards Jangpura side from l.P.Depot. When the said bus arrived at Gate No.2 of the exhibition ground at Mathura Road, New Del hi, a motor truck No. Rjs 756 all of a sudden emerged from inside the exhibition ground through Gate No.2 in a rash and negligent manner and violently and forcefully struck against the rear mudguard of the above said bus as a corollary whereof the rear portion of the said bus was pushed towards the right portion of the road and in the said process struck against scooter No. Dls 18 which was coming, from Sunder Nagar side and proceeding towards Delhi Gale on correct side of the road. The deceased known as Tilak Raj Ghai was sitting on the pillion seat of the said scooter. The said scooter was being driven by one Shri Anil Khanna. As a result of the said collision, and the impact thereof, in between the bus and the scooter the deceased’ Tilak Raj Ghai was thrown off so violently that he immediately succumbed to the injuries at the spot. Shri Anil Khanna also sustained grievous injuries with compound fracture of the right arm and the right leg. The appellant here in Smt. Shanti Devi in the above circumstances moved a petition under section 110 A of the Motor Vehicles Act and claimed a compensation of Rs. 50,000.00 .
(5) In F.A.O.No. 225/79 the respondents (appellants in F.A.O. Nos. 118/79 and 6/ 80) have resisted the claim of the appellants on various grounds, enumerated below: the defense as aet up by the Union of India is the truck No. Rjs 756 was sent out to distribute food to Border Security Force personnel deployed in Delhi. The said truck was being driven by one Shri Maqsood Ali, Driver No. 817. One Inspector Ajaib Singh was also on the truck who was deputed to supervise the distribution of the food. There was not much traffic on the left side of the road. Inspector Ajaib Singh who was sitting on the left side of the driver gave signal by his left hand to stop the traffic while the driver gave signal by his right hand to indicate that he wanted to cross the road. As ill luck would have it a Dtu bus No. Dlp 189 which was coming from the right side and was being driven by Shri Chander Singh did not pay any heed to the signal and instead increased the speed in order to bypass the above said vehicle. The driver of the truck applied brakes otherwise it would have resulted in a more serious accident. The above said bus in its effort to bypass the aforesaid truck went on the wrong side of the road and endangered the traffic proceeding in the opposite direction. However, in this process the Dtu bus was able to clear the government vehicle despite a collision in between the two. The said bus swerved towards left to retain the correct side of the road and while trying to do so struck against the scooter coming from the opposite side leading to an accident. The bus was being driven rashly and negligently and the brakes of the said bus were defective. The application is barred by lime. The claim is not maintainable against the Union of India inasmuch as the above-said government vehicle was deployed on government duty in discharge of its sovereign functions and therefore, the Union of India was not liable.
(6) The Delhi Transport Corporation and its Driver Chander Singh have put in contest, inter aha, on the following ground: that no notice was served on the Municipal Corporation of Delhi under section 478 of the Delhi Municipal Corporation Act. According to them, the bus was being driven at a very slow speed and was moving on its correct side whereas the truck bearing No. Rjs 756 belonging to the Border Security Force all of a sudden appeared on the scene through Gate No. 2 of the exhibition ground without any signal and unmindful about the approach of the bus. Consequently, the truck hit the left side of the bus with a great force and in this way the bus was pushed on the other side of the road. On account of this impact there was a considerable damage to the bus. the ill-fated scooter No.DL.S 18 being driven by Shri Anil Khanna with the deceased on the pillion seat of the scooter was coining from the opposite direction could not notice the approach to the bus and unmindful about the movement to the bus got very nervous and as such, struck against the bus. The driver Shri Chander Singh was not at alt responsible for the accident inasmuch as he had no control over the situation as his bus was struck violently by the truck coming from its left side.
(7) The following issues were framed by the learned lower court:- 1. Whether the deceased died as a result of accident arising due to rash and negligent act of drivers of vehicle No. Rjs 756 and Dlp 189 as alleged? 2. Whether the petitioners are entitled to claim any compensation in this petition? 3. To what amount of compensation are the petitioners entitled to claim compensation in this petition and from which of the respondents ? 4. Relief.
(8) The lower court came to the conclusion that the accident which resulted in the death of the deceased was due to rash and negligent deriving of vehicle Nos. Rjs 756 and Dlp 189 and as such, he awarded a sum of Rs. 45,600.00 against the Delhi transport Corporation and Shri ChanderSingh, and Union of India and Maqsood Ali, appellants in F.A.O. Nos. 118/79 and 6/80 respectively.
(9) Aggrieved and dissatisfied with the said judgment and order the impugned three appeals have been preferred by the appellants herein, including Smt. Shanti Devi, appellant in F.A.U. No. 225/79. It has been urged by Mr. Kumar for and on behalf of appellants Smt. Shanti Devi and others ( Fao 225/79) that the learned lower court fell into a grave error by awarding the compensation amount to the wife of Rs. 45,600.00 only as against Rs. 50,000.00 claimed by them. The amount of compensation is, too, low and meagre. It was wrong on the part of the Tribunal to have fixed the life expectancy at 50 years when there was ample evidence on record to show that the deceased enjoyed robust health and did not suffer from any aliment whatsoever. Hence, the life expectancy should have been fixed at 70 and a multiplier applied accordingly. The interest should have been awarded from the date of accident instead of from the date of the decision of the petition.
(10) The learned counsel for the respondents have urged to the contrary.
(11) I have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and given my anxious thoughts thereto.
(12) It is manifest from above that the appellants through the present appeal simply want this Court to raise the compensation amount to Rs. 50,000.00 .
(13) The present petition has been moved under Section 110-A of the Motor Vehicles Act, 1939. The compensation is to be awarded under section 110-B of the said Act. A close scrutiny of the provisions of the said Act reveals that it does not lay down any guidelines for awarding the compensation to the legal heirs of the deceased. Section 110-B simply provides that compensation awarded must be just and reasonable in the circumstances of a particular case. Thus, the grant of compensation has been left to the discretion of the Tribunl/Court. Any thing which is left to the discretion of the Court cannot be uniform. Thus it leads to the difference opinion amongst the different Courts.
(14) There is another aspect of the matter. There cannot be a perfect and true assessment of the damage caused to the family of the deceased and to the person injured in terms of compensation. lnfact, it is beyond human ingenuity.The above view was given vent by Salmod on tort, 13th Edn, 1961 at page 736 in the following words, ” There are some kinds of damages for which no true compensation can be given in this world by any amount of money, no matter how elaborate arithmetical compensation is employed. This is particularly so with the claims for the loss of expectation of life and pains and sufferings, yet the Courts are obliged to do the best, they can. In such cases, the plaintiff is entitled to fair and reasonable compensation, assessed in the light of previous rewards in respect of comparable damage. It would beparadoxical, if the law refused to give any compensation at all because none could be adequate. It might be better to say that such sums are acknowledgement of regret, for having caused a hurt that is imponderable, rather than a compensation properly so called”.
(15) With the above frailty, which is the lot of all Judges being homosapiens and which has been acknowledged with great can dour, by Salmond, let us see as to whether just and reasonable compensation has been awarded to the appellants in the instant case?
(16) The matter with regard to the assessment of damages came up for consideration before their Lordships of the Supreme Court as reported in Madhya Pradesh State Rod Transport Corporation. Sudhakar, ….”A method of assessing damages usually followed in England as appears from Malett v. Me Monagle, (1970) A.C. 166 (supra) is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of annual dependency by a number of “years purchase” (p 178) that is the no. of years the benefit was expected to last taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand…”
(17) The deceased as per the statement of Smt. Shanti Devi his mother was 24 years of age at the time of his death. He was drawing Rs. 240.00 as his salary at that time. His father was not alive at that time. Hence the learned Tribunal was of the view that the life expectancy of the deceased in the above circumstances could be fixed at 50 years of age. However, while doing so the learned lower court was completely oblivious of the fad that the mother of the deceased Smt. Shanti Devi is still alive i.e. even in the 1994. She was 45 years of age on July 11,1975 when her statement was recorded. It implies thereby that the mother of the deceased must be 64 years of age now. I thus feel that the learned lower court was not correct in fixing the life expectancy at 50. It is a well known fact now that the life expectancy has now much increased. People now-a-days live much longer than they used to live in India.
(18) The deceased was in government service. Had he lived, he would have retired at the age of 58. He breathed his last at the age of 24. Hence he would have continued in service for 34 years more. lt is in the statement of Public Witness 7 Smt. Shanti Devi that the deceased used to keep with himself Rs. 40.00 per mensem for his pocket expenses. His meals costed nearabout Rs. 30 or 35 per, mensem. In this way the deceased saved Rs. 160.00 per month Thus by the time the deceased retired he would have amassed a sum of Rs. 65,280.00 ( 160 x 34 x 12). This is only when we do not take into consideration the revision of pay scales which took place in the year 1973 when the income of the deceased might have gone up by another Rs. 100.00 astound by learned Tribunal.
(19) The learned lower court for the best reasons known to it assessed the life expectancy at 50 years and yet applied a multiplier of 20 instead of 26 which it should have done.
(20) The upshot of the above discussion is that the appellants in Fao 225/79 are entitled to succeed. The appeal is allowed with costs. Impugned judgment and order passed by the learned Tribunal are hereby set aside. The appellants are held entitled to a sum of Rs. 50.000.00 as claimed by them by way of compensaton.They would be entitled to interest at the rate of 6% per annum from the date of petition.
(21) This brings me to appeal No. Fao 6/80, -Union of lndia v. Smt. Shanti Devi and others. Learned counsel for the appellants Mr. Madan Lokur has raised a preliminary objection with reward to the maintainability of the present petition under Section 110-A of the Motor Vehicles Act of 1939. According to the learned counsel, truck No. Rjs No.756 was attached to 18th Battalion of Border Security Force. Thus it was a government vehicle. At the relevant time the said truck which was being driven by driver Maqsood Ali was deputed to distribute food amongst B.S.F. Personnel. Hence it would be deemed to be performing a sovereign function. Hence, relying upon the old doctrine that King can do no wrong the learned counsel has contended that the present petition is not maintainable. The contention of the learned counsel though an ingenious one can be brushed aside within anon, without any difficulty. The learned counsel in support of his argument has cited the observations of their Lordships of the Supreme Court is reported in M/s Kasturilal Ralia Ram Jain v. The State of U.P., Air 1965 S.C. 1671……” There is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not referable to any. sovereign power. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is : Was the torlious act committed by the public servant in discharge of his statutory functions which are referable and ultimately based on the delegation of sovereign powers of the State to public servant. If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not lie. On the other hand. if the torlious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie….’
(22) It is crystal clear from the above observations that in case a tortious act was committed, not in discharge of sovereign function but in routine and the said function could have been performed by any other person, who would have been deputed to do so, a claim for damages would be maintainable.
(23) Thus the acid test for determining the liability of a public servant for the alleged tortious act committed by him would be whether the said act was performed in discharge of sovereign functions which could not be lawfully delegated to any other person. The impugned government truck in the instant case driven by Driver Maqsood Ali was employed for distribution of food amongst Bsf Personnel. This job, I feel could have been performed by any other individual.
(24) I am tempted here to cite the observations of their Lordships of the Supreme Court in support of my above view as reported in State of Rajasthan v. Mst. Vidyawati, Air 1962 S.C. 934,…” When the rule of immunity in favor of the Crown based on Common Law in the United Kingdom has disappeared from the land of its birth,there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution and therefore, it would be only recognizing the old established rule, going back to more than 100 years at least if the vicarious liability of the State is upheld by the Court
(25) The next argument put forward by the learned counsel for the appellants is that the impugned truck never hit the scooter whereon the deceased was sitting, Hence the appellants cannot be held liable. The convention of the learned counsel is devoid of any merit, lt is not in dispute and has not been challenged that the impugned truck hit the bus No. Dlp 189 owned by the D.T.C.as a result whereof the said bus suddenly took a turn on the road to avoid the collision with the aforesaid truck and in this way the bus came the the wrong side of the road and thereby hit the scooter ( vide statement of Public Witness 2 Ashwani Kumar). It is further in the statement of the said Public Witness 2 Ashwani Kumar that the truck was being driven rashly and negligently at an abnormal speed of 40 to 50 K.M. per hour. He is an independent witness. There is no reason to disbelieve him.
(26) It is abundantly clear from the above that the truck was being driven rashly and negligently at an abnormal speed. It is on account of this rash and negligent driving that it collided with the bus and pushed it towards the wrong side of the road which resulted in the fatal accident in between the bus and the ill-fated scooter. It is true as argued by the learned counsel that the impugned truck did not directly hit the scooter but at the same time there would have been no accident in between the bus and the scooter, had the truck driver been vigilant and cautious enough and followed the traffic rules. The above view was given vent to by a Division Bench of the Madhya Pradesh High Court which cited with approval the observations of Charlesworth on Negligence at page 93 of IVth Edition. While anim adverting on the duty of a driver has got to say the following in para214…” It is the duty of the driver or rider of a vehicle to travel at a speed which is reasonable under the circumstances. In determining what is reasonable, the nature, condition, and use of the road in question, and the amount of traffic which is actually at the time, or which might reasonably be expected to been it are important matters to be taken into consideration” 1977 A.C.J. 313 Prabhakar v. Bharat Co-operative Transport Society Ltd. and others (para 6)
(27) In the above circumstances I do not see any force in the present appeal, it is liable to be dismissed. His dismissed accordingly with costs.
(28) Mr. Dhir, learned counsel for the appellants in F.A.O: No. 118/79 has contended that the driver of the bus D.L.P.No. 189 namely Shri ChanderSingh is not at all responsible for the accident in question. Hence, the appellants are not at all liable to pay any damages and the learned lower court was wrong in arriving to that conclusion. According to the learned counsel the impugned accident was the direct result of rash and negligent driving by Shri Maqsood Ali, driver of truck No.RJS 756. Had the said truck not collided with the above said bus, it would not have hit the scooter which resulted in the death of the deceased. The contention of the learned counsel is devoid of any merit.
(29) According to the statement of Public Witness 2 Ashwani Kumar the bus in question was coming on the main road at a speed of 35 to 40 K.M. per hour. He has further deposed to the fact that the driver of the bus tried to overtake the above said truck and in his attempt to do so he raised the speed of the bus which resulted in the collision in between the two. The rear portion of the bus struck against the front portion of the truck. As a result of the above impact the rear portion of the bus was pushed towards the right side of the road and in this way the bus hit the ill-fated scooter which led to the death of the deceased.
(30) While commenting on the duty of a driver while overtaking a vehicle Charlesworth in his book on Negligence, IVth Edition, at page 93 ( para213) has got to say the following…” In all cases it is the duty of the person overtaking to allow an adequate margin of safety between his vehicle and the vehicle overtaken, and to overtake only when he can do so without causing danger to other traffic….”.
(31) It thus can be safely inferred from above that the driver of the bus could have also averted the accident, had he been on his tiptoe and guard and observed the rules of the road. I thus agree with the learned lowercourt that he was equally negligent.
(32) The result is that the instant appeal is liable to be dismissed. It is dismissed as such with costs.
(33) In view of the above, F.A.O.No. 225/79 is allowed with costs. The appellants are hereby held entitled to a sum of Rs. 50,000.00 by way of compensation as claimed by them. They shall also he entitled to interest at the rate of 6% per annum from the date of the petition. The other two appeals, being F.A.0. No, 118/79 and F.A.O. No.6/80 are dismissed with costs.