JUDGMENT
M.H. Deshpande, J.
1. This is an appeal by the 3rd defendant from a decree for Rs. 3,00,000/- passed against the defendants Nos. 1 to 4, while limiting the liability of the 4th defendant the insurer to the amount of Rs. 50,000/- only together with interest on the amount of Rs. 2,50,000/- at 6 per cent per annum.
2. The claim is based upon an accident which occurred on 25th January 1975 at about 11 A.M. when Ashok the son of the plaintiffs was proceeding by Central Avenue Road towards Gandhibag on his motor-cycle No. MTA 9196. The 1st defendant was driving motor truck No. MHG 5271 in the same direction from the side of Mayo Hospital towards Gandhibag and while trying to overtake the motor-cycle of Ashok, knocked Ashok from behind near Nirala Chowk. Ashok fell off the motor-cycle and was crushed to death under the left side wheels of the truck. The motor-cycle was also damaged. The 1st defendant drove away the truck without stopping. The police reached the dead body of Ashok to the Mayo Hospital where post-mortem examination was performed and bis dead body was later entrusted to his maternal uncle Girdhar Agarwal for being taken to his native place Umarkhed. A charge-sheet came to be lodged against the 1st defendant under Section 304-A of the Indian Penal Code. Ashok at the time of his death was a final year student for M.B. B.S.
3. According to the plaintiffs who are respectively the father and step-mother of Ashok, Ashok was a bright student. He would have become a full-fledged doctor by 1976 and was intending to start practice at Hyderabad after shifting residence from Umarkhed. With a view to establishing Ashok, the plaintiffs closed their partnership business as well as Messers Agarwal Saw Mill and timber and contract business at Umarkhed in 1974 In their estimate Ashok would have earned at least Rs 5,000/-per month for a minimum period of 35 years and would have made provision for them at Rs. 2000/- per month at least for 20 years and they therefore, claimed Rs. 4,80,000/- on account of the loss, the expectations of future pecuniary benefit under Section 1A of the Fatal Accidents Act, 1855, and Rs. 1,20,000/- as damages for the shock, mental agony, suffering and loss of expectancy of life under Section 2 of the Fatal Accidents Act. An amount of Rs. 2000/- was also claimed as compensation for damage to the. Motor-cycle. It was alleged that the 1st defendant was the driver of the truck employed by the 2nd defendant who used the truck as a public carrier. The 2nd defendant was shown as a hirer and the 3rd defendant as the owner of the truck in the registration certificate issued by the Regional Transport Officer, Nagpur. The 4th defendant was the insurer of the truck under a comprehensive insurance policy dated 19-11-1974, while 5th defendant was insurer of the motor-cycle It was alleged that the accident was caused by the wrongful act, neglect or default of the 1st defendant and compensation was claimed as stated above.
4. The contest was only between the plaintiffs and the 3rd defendant, the suit having proceeded ex-parte against defendants Nos. 1 and 2, According to the 3rd defendant the present appellant, the truck was let out to the 2nd defendant under a hire purchase agreement dated 18-10-1973 and it was being run at the time of the occurrence at the instance and under the control and on behalf of the 2nd defendant who was shown as the owner of the vehicle. While denying the other allegations, the 3rd defendant contended that there was no master and servant relationship between him and the defendants Nos. 1 and 2 and he was not, therefore, liable for damages or compensation as claimed. The 4th defendant also denied the claim.
5. The learned trial Judge found that the 1st defendant drove the truck rashly and negligently and gave a dash to the motor-cycle from behind resulting in death of Ashok. The trial Court found that the monthly income of Ashok would have been about Rs. 3000/- out of which Rs. 2000/- would be required for the expenditure on the establishment and his own maintenance and he could have, therefore, spared Rs. 1000/- for his parents On that basis he fixed the amount of compensation at Rs. 2,40,000/- and on the count of loss to the estate resulting from damages for the shock, mental agony suffering and loss of expectancy of life under Section 2 of the Fatal Accidents Act at Rs. 60,000/-. The damage to the motor-cycle was estimated at Rs. 2000/-. The trial Court found that the 3rd defendant had not established that there was no master and servant relationship between him and defendants Nos. 1 and 2 and found that as he was the owner of the vehicle, he was liable to pay the compensation to the 1st plaintiff. Tbe claim made on behalf of the 2nd plaintiff was negatived as she was Ashok’s step-mother. Eventually the trial Court passed a decree for Rs. 3,00,000/- as stated above.
6. In this appeal by the 3rd defendant it was urged that the evidence did not justify a finding regarding the driving of the 1st defendant being rash and negligent and in any event since the 3rd defendant was only a finan-cer under the hire purchase agreement, he would not be liable for any compensation as the custody of the vehicle was with the 2nd defendant the purchaser. It was also urged that on the date of the incident the 2nd defendant had become the full owner of the truck. Further while urging that the compensation awarded was excessive, it was contended that no amount could be granted as compensation on the ground of mental agony and suffering of the deceased in the present case,
7. We would first refer to the evidence relating to the incident. Girdbar Agarwal (PW 3) stated that he was standing at about 11 A.M. on Central Avenue Road at a distance of about 70 feet from Nirala square when he saw Ashok who was proceeding by the road on motor-cycle being knocked down and falling off the motor-cycle by the truck which was being driven by the 1st defendant. The truck was in high speed at that time and Ashok on falling came under the left side two wheels of the truck but the truck was driven away without stopping Blood oozed out of Ashok’s head and he was rushed to Mayo Hospital after the doctors examined him on the spot. Ashok was then driving the motor-cycle by the left side of the road. Girdhar gave the speed of the truck as 60 miles per hour in his cross-examination and on that point the cross-examination was not pursued, further. Girdhar’s version was supported by the panchanama of the spot of occurrence (Ex. 98). The documents on which the learned trial Judge relied, came to be exhibited because after notice to admit documents was given, no reply was given to it by the appellant, by virtue of the provisions of Order 12 Rule 2A of the Code of Civil Procedure. In view of this position we asked Shri Oaga the learned Counsel for the appellant how the ad-missibility of the documents could be questioned when it came to be exhibited by the trial Court without any objection at the stage of the trial and he had no answer to this querry.From the contents of the panchanama Ex. 98, it is clear that Central Avenue Road is a crowded market place and the traffic was at its peak at 11 A.M. when the incident occurred. Ashok’s body lay about 11-1/2 feet from the road divider in the middle of the road, and the motor cycle was thrown away at a distance of 4 feet from where Ashok lay. The motor-cycle was badly damaged and it was apparent that it was pushed by the impact of the truck upto a distance of 23 feet. We are satisfied from the circumstances disclosed by the panchanama and borne out by the evidence of Girdhar that there is no escape from the conclusion that the 1st defendant drove the truck recklessly and in a rash and negligent manner and knocked down Ashok and the incident resulted in his instantaneous death and we, therefore, affirm the finding of the trial Court on this point.
8. With regard to the liability of the 3rd defendant, reference was made to the extract of the registration book (Ex. 124) maintained by the R.T.O. in respect of the truck MHG 5271. The entries were made on 22-11-1973. In column 2 the name of the 1st defendant was shown and below it appeared the name of the 3rd defendant by virtue of the hire purchase agreement. The column in which these two names appear, is meant for entering the name of the owner as well as the name of the person concerned under the hire purchase agreement or hypothecation, if any. On 13-3-1976 the hire purchase agreement came to be cancelled and an entry to that effect was made in the register. It is, therefore, clear that the 3rd defendant’s Version that he had no concern with the vehicle on the date of the incident i.e. on 25-1-1975, was not true. The trial Court, however, took the view that the name of the 3rd defendant was also recorded as owner and not as a financer under the hire purchase agreement. It must be noted that in the plaint there was a specific averment that the 3rd defendant was shown as the owner of the motor truck in the registration certificate and the liability was sought to be fastened on him as the owner while that on the 2nd defendant as the master and employer of the 1st defendant at the time of the incident. Though the allegations in para 13 were denied by the 3rd defendant in his written statement, in specific pleadings in para 14, it was mentioned that the vehicle No. MHG 5271 was let out to the 2nd defendant under the hire purchase agreement dated 18-10-1973 while alleging that at the time of the incident it was being run at the instance, control and on behalf of the 2nd defendant and the driver, if at all, was driving on behalf of the 2nd defendant. The further allegation was that on the alleged date of incident the hiring contract had come to an end and the hire purchase endorsement in the registration book came to be cancelled and in the absence of master and servant relationship between 3rd defendant on one hand and the defendants Nos. 1 and 2 on the other, he could not be held liable. The plaintiffs were evidently strangers to the agreement of hire purchase and they could rely only on such entries as were available to the Regional Transport Authority. The 1st plaintiff Murlidhar (PW 1), however, asserted in his evidence that the 3rd defendant was a financer and owner of the truck and the 2nd defendant its hirer and there was no cross-examination on this point except suggesting that the liability of the 3rd defendant was discharged on the date of the incident, which was denied.
9. Ratanlal (3 DW 1) who is one of the partners of the 3rd defendant firm spoke about the hire purchase agreement between the defendants Nob. 2 and 3 and stated that the 3rd defendant had financed the 2nd defendant to purchase the truck. In his cross-examination be admitted that under the hire purchase agreement the 2nd defendant had no authority to purchase or transfer the truck till the date of the last instalment He departed from the pleading by admitting in his cross-examination that the truck was not given to the 2nd defendant on hire. He stated that at the time when the truck was purchased the 2nd defendant had entered into an agreement of hire purchase and that intimation had been given to the R.T.O. that the 3rd defendant had financed the 2nd defendant for purchasing the truck. The position that the 3rd defendant had purchased the truck and was its owner, was not in dispute. The version in the written statement that the truck had been let out to the 2nd defendant, was also belied by the admission in the cross-examination that there was no such an agreement. Though it was urged that the original hire purchase agreement had been returned to the 2nd defendant, as rightly observed by the learned trial Judge, no attempt was made to file its copy nor was the 2nd defendant called upon to produce the hire purchase agreement which would have supported the version of the 3rd defendant, if at all the 3rd defendant had let out the vehicle to the 2nd defendant and under the agreement had no control over the truck and that there was no master and servant relationship between the 3rd defendant and the 1st defendant.
10. The learned trial Judge has referred extensively to the provisions of the Hire Purchase Act, 1972. But it is clear that the Act had not bsen brought into force until the date of the incident, because the last notification which was issued on 1-9-1973 under Section 1(3) of the Act came to be rescinded on 30th August 1973. The reference to the provisions of the Hire Purchase Act would be wholly irrelevant and the matter fell to be decided only upon the terms of the contract and in its absence upon the admissions of the 3rd defendant.
11. It was urged on behalf of the 3rd defendant that it was necessary for the plaintiff to establish that the 1st defendant at the time of the incident when he drove the truck, was the servant or the authorised agent of the 3rd defendant and failing this no claim could be decreed against the 3rd defendant. In Newitt v. Bonvin: (1940) 1 Kings Bench 188, it was observed (at page 194) that it has long been settled law that where the owner of a carriage or other chattel confides it to another person who is not his servant or agant, he is not responsible merely by reason of his ownership for any damage which it may do in that other’s hand, and that it is true that if a plaintiff proves that a vehicle was negligently driven and that the defendant was its owner, and the Court is left without further information, it is legitimate to draw the inference that the negligent driver was either the owner himself, or some servant or agent of his. This position of law was approved in Harry Rambarran v. Gurrucharran: (1970) 1 Weekly Law Reports 556 by the Privy Council by saying that where no more is known of the facts than that at the time of an accident the car was owned but not driven by A it can be said that A’s ownership affods some evidence that it was being driven by his servant or agent; but when the facts bearing on the question of service or agency are sufficiently known, then the problem must be decided on the totality of the evidence. The finding, however, there was that the occasion was not one of those specified by the appellant as being an occasion when, for one of the appellant’s own purposes, his son would drive the car for him, that he was ignorant of the fact that the son had taken the car out on that day and that he did not hear of the accident until a fortnight after it happened, destroyed any presumption of agency and raised a strong inference that the son was not driving as the appellant’s servant or agent, that the burden of rebutting that evidence was on the respondent, and that there was ample evidence upon which the trial Court could find as he did that the respondent had failed to discharge that burden. In view of the state of pleadings and the evidence to which we have referred, it would be obvious that the transaction had been financed by the 3rd defendant so that the truck may be purchased for being operated as a public carrier and the amount which was advanced could not be reimbursed unless the vehicle was plied as a public carrier by soms person who would have to be engaged as a driver. Evidently at the time when the vehicle was being driven, it was driven presumably on the owner’s business or for his purposes and in the absence of any material which would displace the inference, the position would be that the 1st defendant was acting on behalf of and for the purposes of the 3rd defendant. The view that we are taking, is supported by the observations in Smt. Gyarsi Devi v. Sain Das , where the learned Judge went on to say that the master can be held vicariously liable even though the servant has usurped the job of another provided what he does is sufficiently clearly connected with his master’s business and is not too gross a departure from the kind of thing he is employed to do. On behalf of the appellant reference was made to Municipal Committee, Sonepat v. Khushi Ram: 1983 Punjab Law Reporter 313), where on a finding that the vehicle was in possession and under the control of the Municipal Committee, Sonepat, it was held that the Haryana State who owned the vehicle was not liable. This case would not help the appellant because a clear finding was recorded in that case that Haryana State had no control over the driver and he was not in its employment, but on the other hand was acting in the course of the employment of the Municipal Committee at the time of the accident and so no vicarious liability would be that of the employer. No such evidence of supervision and control by the 2nd defendant alone is forthcoming in the present case.
12. Shri Daga, however, urged that the 1st defendant could not be the servant of the 3rd defendant because in any event the 2nd defendant was working as an independent contractor. In Salmond and Heuston on the Law of Torts, 18th edition, page 429, the test for the distinction between servant and independent contractor is mentioned, the test being the existence of right of control over the agent in respect of the manner in which the work is to be done. A servant is an agent who works under the supervision and direction of his employer ; an independent contractor is one who is his own master. It is not necessary for us to go into the various shades of distinction because in the present case, the evidence is totally wanting upon the sort of arrangement which existed between the defendants Nos. 2 and 3 about the truck.
13. Our attention was drawn to the definition “owner” in the Motor Vehicles Act, 1939. Under Section 2(19) of the Motor Vehicles Act, “owner” means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement. Now it must be remembered that the claim which is made in the present case is under the Fatal Accidents Act, 1855 and not under Chapter VIII of the Motor Vehicles Act, beginning from Section 110. The matter was decided not by the Claims Tribunal which had not by that time come into existence, but by the Civil Judge, Senior Division, Nagpur. We, therefore, have not to turn to the definition of “owner” as given in the Act, because the expression will have to be understood in that sense only for the purpose of the Act when considering, the provisions of the Act as stated in the opening words of Section 2 of the Act. We will have, therefore, to go by the term “owner” as is understood in the context of the claim being made dehors the provisions of the Motor Vehicles Act. We are, therefore, in agreement with the conclusion of the learned trial Judge that in the circumstances of the present case the 3rd defendant would be liable to pay the compensation to the 1st plaintiff, the liability flowing from the act of the 1st defendant who must be taken to be driving the vehicle either as a servant or ah authorised agent of the 3rd defendant and for the 3rd defendant’s purposes or business.
14. Coming to the question of quantum of compensation, it must be noted that the compensation has been claimed in the plaint mainly under two beads, one for pecuniary loss to the plaintiff arising out of the death and secondly for loss to the estate which represents damages for mental agony, shock, suffering and loss of expectation of life of the deceased, the claim being Rs.4,80,000/- on the 1st count and Rs. 1,20,000/- on the other, but the total claim was limited to Rs. 3,00,000/- only. Though the evidence of Murlidhar (PW 1) purported to show that Ashok wanted to start practice after passing his final M.B.B.S. examination in 197s at Hyderabad where he could have got Rs. 5000/- per month, the learned trial Judge accepted his version only with regard to the income at Rs. 2000/- which he could have made per month. According to Murlidhar, Ashok could have spared Rs. 1000/-for his maintenance from the savings. The learned trial Judge after considering the evidence of Murlidhar and the evidence of Dr. Bhartiya (PW 2) took the view that Ashok could have earned Rs. 3000/-per month and after deducting the expenses of Rs. 3(00/- per month for the establishment and his own maintenance and of his own family and running the dispensary, he could have saved Rs. 1000/- for the maintenance of his parents and thus the plaintiffs would have been benefitted by Rs. 1000/- per month. It was not disputed before us that upon the evidence. Ashok was a good student and bad a brilliant record. He had received a scholarship certificate. Putting his monthly income at Rs. 3000/-, was reasonable. The question, however, would be whether the whole of the amount of Rs. 1000/- which Ashok could have saved would have been made available for his parents. Obviously as Ashok grew in age, he would have acquired a family and his own expenses would have increased and consequently his ability to pay his parents the whole of his saving would also have diminished. On the other hand as he flourished in practice which again would not be an unreasonable expectation, his income would rise. Thus there would not have been much change in his ability to save at least Rs. 1000/- per month. But we find it difficult to agree with the learned trial Judge that the whole of the savings would have been made over to the parents. Evidently, Ashok would have kept something for his future needs in order to meet his future liabilities as they arose. Considering the inflationary trends and the future prospects of the deceased, it would be reasonable to hold that he would have been in a position to give a continuous financial assistance of Rs. 750/- per month to his parents.
15. The 1st plaintiff was aged 50 years on the date of his evidence which means that at the time of the accident his age was about 46 years. The 1st plaintiff’s father is still alive and aged 75 years, while maternal grand-mother died at the age of 74 years and the maternal grand-father died at the age of 65 years. Since the plaintiffs are in good health, it was reasonable to expect that they would live upto the age of 70 years and the 1st plaintiff could have expected to be maintained by Ashok at least for 24 years. It was in this background that the learned trial Judge felt that a multiplier of 20 should be used and in the circumstances we do not regard the multiplier to be unreasonable While applying the multiplier we have taken into consideration the multipliers referred to in Gobald Motor Service Ltd. v. R. M.K. Veluswami , C.K. Subramonia Iyer v. T. Kunhikuttan Nair and by the Full Bench of Punjab and Haryana in Lachhman Singh v. Gurmit Kaur . The compensation which would be payable would work out to Rs. 1,80,000/- on the basis of the pecuniary assistance of Rs. 750/- per month, on the basis of 20 years purchase, taking into account the falling value of the rupee, the inflationary trends and the other imponderable factors. It was urged on behalf of the 3rd defendant that sincs a lumpsum payment was being ordered, certain deductions would have to be made on that basis as held in Immamudin v. Mst. Khatoon , where a deduction of 10 to 20 per cent from pecuniary benefit was made; and Shriram Hari Tambey v. Divakar Ramchandra Kharabe AIR 1976 Bom. 227, where l/3rd of the amount was deducted. In Jaikunar v. Mary Jerome D’souza , 2i per cent discount was adopted. We must, however, consider the purpose for which such deductions were made from the lumpsum payment. The expectation is that with the lumpsum payment the plaintiff would be in a position to invest the amount with a view to get interest in future and would retain the principal amount. We have made the computation broadly on the basis of the income which was expected to be derived by the deceased and the portion of the benefit available to the dependents. The accident occurred in the present case in 1975 and the decree came to be passed by the trial Court on 24th September 1982 i.e. about 7 years after the incident, and the matter is coming up before us in the year 1988. In the meanwhile the only amount which the plaintiff received was Rs 50,000/- paid by the insurer. There has been a deprivation of major portion of the amount for as long as 13 years and there is no justification for us now to make deduction in respect of the lump sum payment which could not be realised for nearly 13 years. The interest or annuities on the amount would be realisable only hereafter. There are cases when no deductions were made from lumpsum amount and the present case is pre-eminently one in which no such deduction should by made. We are supported in this view by the observations in Srisailam v. Devastanam Bhavani Pramilamma which followed Smt. Manjushri Raha v. B L. Gupta , and P.K. Krishnan Nair v. K. Karukaran Nair 1986 (1) All India Transport and Accidents Cases 483. We find that the trial Court was justified in not making any deduction from the lumpsum payment in the present case.
16. With regard to the claim under next item, Shri Mehadia pointed out that in Gobald Motor Service Ltd. v. R.M.K. Veluswami while considering the provisions of Sections 1 and 2 of the Fatal Accidents Act, reference appears in para 13 to the claims which could be separately made under Sections 1 and 2, and it was said that under Section 2 the loss to the estate was in the sum of Rs. 5000/- which figure represented the damages for mental agony, suffering and loss of expectation of life. The decision turned there upon the consideration that there was no duplication in awarding the damages on both the heads. It is difficult to agree with the submission that it was permissible in view of this judgment to award damages towards mental agony and suffering, because after referring to the case of Gobald Motor Service Ltd. it was laid down in C.K. Subramonia Iyer v. T. Kunhikuttan Nair as follows:
The law on the point arising for decision may be summed up thus. Compulsory damages under Section 1A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damage is the economic loss sustained by the estate. There can be no exact uniform rule for measuring value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular fact and circumstances of each case….
In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.
17. Shri Mehadia for the plaintiff, however, referred us to the decision in Pijush Kanti Ghosh v. Maya Rani Chatterjee , where while following the case of Gobald Motor Service Ltd. v. R.M.K. Veluswami , it was stated that the damages for mental agony and suffering also could be granted. The Calcutta case which came to be decided on 24-3-1970 does not notice C.K. Subramonia Iyer v.T. Kunhikuttan Nair which was decided on 8-10-1969. We may point out that in Lachhman Singh v. Gurmit Kaur the Full Bench of Punjab and Haryana High Court after noticing , observed in para 27 that the compensation to be assessed is the pecuniary loss caused to the dependents by the death of the person concerned, and no compensation is to be assessed on any extraneous consideration like love, affection, mental agony or any such similar consideration. Solatium is alien to the concept of compensation. In Srisailam Devastanam v. Bhavani Pramilamma , the lower Tribunal was held to be justified in granting Rs. 2000/- on the ground of pecuniary loss to the estate i e. loss of expectation of life of the deceased and mental pain and suffering to the claimants on account of the tragic death of the deceased.
18. Our attention was also drawn to two decisions of this Court, Abdulkadar Ebrahim Sum v. Kashinath Moreshwar Chandani , and Jaikumar Chhaganlal Patni v. Mary Jerome D’Souza . In Abdulkadar’s case it was observed:
Section 1-A as worded clearly entitles all those for whose benefit the action is brought to an award of damages for the injury suffered by any one of the claimants. The word ‘injury’ is a word of large import and cannot be restricted to mean monetary injury only. If this is so, apart from claiming monetary damages that the claimant has suffered, the claimant would also be entitled to compensation in respect of any other injury suffered and one of the heads of such injury would be the loss of society of the deceased. Therefore, a husband is entitled to make a claim under Section 1-A for damages on ground of loss of consortium due to death of wife caused by accident.
In the later case an amount of Rs. 5000/- was granted to the widow by way of compensation for loss of her husband’s consortium. In both these cases reference was made to Gobald Motor Service Ltd. v. R.M.K. Veluswami . The position has changed since Abdulkader’s case . But this position was not brought to the notice of the learned Judges who decided the later case. Since the position has now been clearly enunciated by the Supreme Court in which we are bound to follow, we would hold that the learned trial Judge was not right in awarding Rs 60,000/- against the second item. We, therefore, find that no amount could have been awarded on the second count as claimed by the plaintiffs. We may mention that the compensation for loss of expectancy of life would be covered in the first item in respect of which we have awarded Rs. 1,8000
19. With regard to the merits, however, we may point out that there is no justification for granting a decree even for Rs. 60,000/- in place of Rs. 1,20,000/-because there is no evidence whatsoever except the bare statement in the 1st plaintiff’s evidence that he was claiming Rs. 1,20,000/-on account of loss to the estate, mental agony and shock and suffering without any explanation.
20. In the result, we allow the appeal partly and modify the decree passed by the trial Court by substituting the figure of Rs. 1,80,000/- in place of Rs. 3,00,000/- and direct the defendants Nos 1,2 and 3 to pay the amount. The amount on which interest shall be paid at 6 per cent per annum would be Rs. 1,30,000/- to be substituted in place of Rs. 2,50,000/-. In the circumstances of the case there will be no order as to costs of the appeal.