JUDGMENT
V.P. Mathur, J.
1. This appeal from order is directed against the judgment and decree dated 11-9-1978, passed by Mr. J.C. Gupta, VIIth Additional District Judge-cum-Additional Claim Tribunal, Etah, in Accident Claim Case No. 6 of 1975.
2. Cross-objections have also been filed on behalf of Smt. Vidya Wati and another, objectors.
3. Briefly stated, the claim petition under Section 110-A of the Motor Vehicles Act was filed by Smt. Vidyawati, the widow, and Shiv Kumar Singh, the son, of the deceased Rampal Singh. The opposite parties were Rafi Ahmad, the Driver of the ill fated bus, the U.P. State Transport Corporation Lucknow, and the General Managers of the UPSRTC Agra, Aligarh and Etah. Rampal Singh died as a result of the accident, which admittedly took place on 24-11-1974 involving Government Road Bus No. UPB 4866. The deceased was a police Constable and at the time of the accident he was posted at Kotwali Etah. He was aged 40 years and was getting Rs. 289-50 paise per month as his salary. The petitioners were the only dependents of the deceased. It so happened that on 24-11-1974 Rampal Singh alongwith Sub Inspector Om Prakash Sharma and another Constable No. 122 Omprakash was proceeding on a cycle on Etah-Awagarh road in connection with the investigation of a case. All of them were on cycles. They reached near village Kamsan. U.P. Roadways Bus No. UPB 4866 was coming from the side of Awagarh. It is contended that it was being driven rashly and negligently by its Driver, Rafi Ahmad, and as a result of rash and negligent driving it collided with the cycle of the deceased, who fell down and was seriously injured. Even the cycle was crushed and broken into pieces. An attempt to get the bus stopped was made but Rafi Ahmad ran away alongwith the bus. Subsequently he was taken into custody near the Bus Stand. A report was lodged in the Kotwali. Rampal Singh was brought to the District Hospital, Etah, where he was admitted and treated. Then he was taken to S.N. Medical College, Agra, and was admitted in Surgical Ward. He, however, could not be saved and succumbed to his injuries on 27-11-1974. An amount of Rs. 75,900 was claimed by way of compensation.
4. Opposite party No. 1, the Driver, admitted the fact of the accident by Bus No. UPB 4866, but his contention was that he was neither rash nor negligent. He was taking the bus from Firozabad to Kamsan, at about 1.15, when he saw three constables and one Sub-Inspector coming on their cycles from the opposite direction. A milk tanker was also coming from the opposite direction. It was occupying the whole road. Therefore, opposite party No. 1 had to swerve his vehicle towards the left and the constables etc. were lost from his sight. When the tanker came near his bus, suddenly one Constable moved his cycle and came infront of the bus and the accident could not be averted. He brought his bus to Etah where the Sub Inspector arrested him. It was also contended that he was in the employment of the U.P. Government Roadways at the time of accident and the amount claimed is exaggerated.
5. Separate written statements were filed by other opposite parties. The age of the deceased was not admitted although the fact of the accident was admitted. It was also admitted that the Driver was in the employment of the U.P. State Road Transport Corporation (U.P.S.R.T.C). It was denied that the bus was being driven rashly and negligently and the contention was that the accident took place because inaverting colusion with the milk tanker the Driver moved towards his left when suddenly the deceased came with his cycle infront of the bus and received the impact.
6. The Tribunal struck three issues in this case as follows:
1. Whether the accident was due to rash and negligent driving of Bus No. U.P.B. 4866 ?
2. If so, to what amount of compensation, if any, are the petitioners entitled?
3. To what relief, if any, are the petitioners entitled ?
7. He came to the conclusion that the accident was due to rash and negligent driving of bus No. U.P.B. 4866 by opposite party No. 1. He also came to the conclusion that the claimants as heirs of the deceased were entitled to compensation, which he fixed at Rs. 34,000, directing that each one of them will get Rs. 17,000 with pendente lite and future interest at the rate of 6% per annum upto the date when the amount is actually paid. It was also directed that a sum of Rs. 250 shall be the amount of costs, which the petitioners will be entitled to get from opposite party No. 2 (UPSRTC), Lucknow.
8. All these findings are challenged through this appeal.
9. In the cross-objection it is contended that the Tribunal did not take into consideration the prospects of earning heavy income by Rampal Singh and illegally reduced the amount on the ground that Rampal Singh would have incurred expenses upon himself without considering that he would have lived in the same house and incurred expenses with his wife and son, thus reducing the amount of expenses upon himself. It was also contended that the Tribunal was not justified in not awarding any compensation for mental shock suffered by the applicants and the loss of companionship to opposite parties Nos. 1 and 2. The prayer was that the applicants be awarded a further sum of Rs. 41.000.
10. The first and foremost point is about the liability of the U P. State Road Transport Corporation to pay any compensation to the claimants. This will naturally mean that it will have to be found whether the accident was due to rash and negligent driving of bus No. UPS 4866 by the driver Rafi Ahmad, who was in the employment of UPSRTC at time of accident.
11. Halfhearted arguments were advanced by the learned Counsel for the appellants on this aspect and for sound reasons. The burden of proof was upon the claimants and to discharge it. Om Prakash Sharma, Sub Inspector was examined as PW 3. It is not disputed that this man was accompanying the deceased on a separate cycle and he saw the accident. His testimony is that they were going on cycles to Nagla Kalloo to investigate a case and near village Kamsan the U P. Roadways Bus No. 4866 coming from the side of Agra was being driven by the Driver at a very high speed and in a negligent manner and it collided with the cycle of Rampal Singh. The Driver neither gave any alarm nor tried to avert the accident but dashed the bush against the cycle of the deceased on the wrong side of the road. After accident he stopped the bus for sometime but then seeing what had happended he drove away and was arrested at the gate of Etah Bus Stand. The Sub Inspector lodged an FIR and took the injured to the Hospital. He clearly denied that any milk tanker was coming from Etah side and it was responsible for this accident and he was very positive that it was due to rash and negligent driving of the bus by the Driver that the accident took place.
12. The other witness for the claimants is Sri K.N. Shukla (PW 7). He investigated this case, which was registered on the report of Sub Inspector Om Prakash Sharma. He went on the spot, investigated the case and prepared a site plan, a copy of which is placed on the record as paper No. 85-CI. This site plan will clearly show that the place of occurrence was a Patri of Awagard Road. The metalled portion of the road was only 6 paces wide and the kachha Parti was 4 paces wide. This Patri is towards the right hand side of the bus if it goes towards Etah. Naturally there was no opportunity for the bus to have come to this Patri if it was going on its left. The very fact that the accident took place on the right hand side. Patri shows that there was fault of the bus Driver. The scene of the occurrence was about 1-1/2 paces removed from the right edge of the metalled road. As against this evidence, the most significant point to be noted is that the Driver who was made a party to case never entered the witness-box. He was the person who was driving the vehicle and it was being said that he was responsible for the accident. Therefore, he should have been the best person to have appeared as a witness in the case and to have given the details of the incident. In his place the Conductor of the Bus has been examined. He is Haridutta Gautam (DW 1). The other witness is Kailash Chandra, who went on the spot much after the occurrence, made some inquiries and prepared a plan. Kailash Chandra’s testimony has been rightly rejected because he went on the spot after learning about the accident and did not see the incident himself. He based his report on what the passengers told him but he did not name these passengers in the report nor got their signatures obtained. According to the Conductor, Nand Kishore, Bhagwati Prasad and Bhullan Singh were amongst the passengers. None of them has been examined. Admittedly the seat of the Conductor was at the back of the bus and he says that he was sitting infront near the Driver and the reason he gives is that the back window of the bus was in a damaged condition and, therefore, he was sitting in front. This is hardly an explanation. Other passengers also must be sitting near the damaged window. As a responsible person, it was the duty of the Conductor to have remained near that window in order to save other passengers rather than to have run away to save himself and to have been sitting on the front side. His testimony is reduced to something incorrect when it is established even from his own report, which he made to his superiors, that he knew of the accident after it had taken place. This means that he did not see the accident taking place. The learned Tribunal has elaborately discussed the entire evidence on record and come to the conclusion that the defence evidence was not worthy of reliance and has rightly rejected it. As such I find and hold that his finding in this respect is justified and correct and the accident took place as the Bus No. UPB 4866, belonging to the U.P. State Road Transport Corporation and being driven by Ran” Ahmad, who was at that time in the employment of UPSRTC was being driven in a rash and negligent manner.
13. Then I came to the question of compensation to which the widow and son of the deceased would be entitled.
14. I may incidentally take up one point which has been pressed by the learned Counsel for the respondents with reference to the cross objection filed in this case. His contention is that the learned Tribunal has not considered the fact of the mental shock suffered by the applicants and damages have not been allowed at all for the loss of companionship suffered by them in the demise of Rampal Singh. I pointed out to him that in the claim petition that was filed no details of the compensation item-wise have been given and there are no details of any claim for loss of companionship or for mental agony or torture. The learned Counsel has, however referred to Rule 3 of the Motor Accidents Claims Tribunal Rules, 1967. It provides that an application for compensation should be in a prescribed form and the form has been given. It is true that in column No. 22 the total amount of compensation to be claimed has to be mentioned but column No 23 is meant to give any other information that may be necessary or helpful in the disposal of the claim. If we compare this form with the prescribed form under Rule 3 in Tamil Nadu, we find that in column No. 23 of the form what is required to be given is a brief account of how the accident occurred and how the applicant is entitled to claim compensation and the respondent is liable to pay the compensation claimed. Against this column even in Uttar Pradesh it is expected that the break up the amount of compensation claimed should be given because that is one of the most relevant informations necessary and helpful in the disposal of the claim Even otherwise also where the question arises as to whether compensation for shock and mental suffering and similar consideration should or should not be allowed, it will be useful to peruse the decision of this Court in the matter of Hindustan General Insurance Co. v. Smt. Sushita Gupta and Ors. 1985 ALJ 708. The Court referred to an earlier decision of this Court in the case of Brijkali Devi v. Ram Chand Bishan Singh in which a Bench of this Court after noticing various decisions of the Supreme Court, including the leading case Gobald Motor Service Ltd. v. R.M.K. Vehwami stated the law in the following terms:
It will thus be seen that unless there is something special in the circumstances of a particular case which may justify determination of compensation payable to a claimant on some other basis, normal rule for its determination is to ascertain the future pecuniary benefit which the claimants would have gained, bad the deceased not died and thereafter to adjust therefrom any pecuniary advantage which from whatever source comes to the claimants by reason of the death.
15. The Bench did not accept the contention raised on behalf of the claimants that they were entitled to compensation on account of mental shock and physical pain suffered by the deceased.
16. In Hindustan General Insurance Co. v. Smt. Sushila Gupta and Ors. (supra), the Court accepted the argument that the compensation assessed is to be the pecuniary loss caused to the dependants 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 and similar consideration, because solatium is alien to the concept of compensation.
17. In view of this legal position, the plea that compensation should be awarded for loss of companionship and on account of mental and physical agony etc. is not tenable.
18. Before we proceed further in the matter concerning the assessment of the compensation, certain legal positions should be made very clear. In the case of Krishna Segal and Ors. v. U.P. State Road Transport Corporation and Ors. (1983 Accidents Claims Journal (649) a Division Bench of this Court held; (i) the basis should be the difference between the age at the time of death and superannuation and the salary to determine the total pecuniary loss; (ii) The Life Insurance Policy amount is not liable to be deducted from the compensation. This was in view of an earlier decision of this Court in First Appeal No. 297 of 1978 Kaushilya Devi v. U.P.S.R.T.C. decided on 14-7-1981; (iii) On the basis of decision in the case of Pratap Rai Agun Das Dhamija v. Bhupat Singh Gagji 1982 Accidents Claims Journal, 316 Gujarat it was held that insurance benefit could not be set off against the amount of compensation payable, (iv) Accepting the Supreme Court dictum in the case Manju Shri Rana v. B.L. Gupta 1977 ACJ 134 SC it was held that death-cum-retirement gratuity could not be deducted from the compensation amount; and (5) The amount of pension paid to a widow also cannot be deducted.
19. In other case Radha Agarwal v. State of U.P. it was again held that family pension awarded to the claimant and the amount of Insurance Policy are not to be deducted from the compensation that the Tribunal has to award. In the case of Bhagat Singh Sohan Singh v. Om Sharma AIR 1983 Punj. 84 (FB) it was observed that intrinsic nature of benefits like the provident fund, family pension or gratuity is that they are the deferred fruits of satisfactory service, industry, thrift, contributions and foresight of the employee. Equally, these may be the necessary incidents of statutory service rules, employment contracts, or beneficent legislation noted in the employment of the deceased. To attribute these payments entirely to the fortuitous circumstance of the accident and the resultant death, appears as untenable. It is more than plain that if the deceased happened to be a person who was not in the employment at all or one who had neither made any contribution to any provident fund nor rendered qualifying satisfactory service entitling him to gratuity or made any payments for a family pension, that none of these benefits would arise to his dependants despite his death. It is indeed the aforesaid preconditions which are the true fountain-head for these benefits and not ipso facto the incidence of the accident and the consequent death. Herein what deserves highlighting is the sharp distinction (which sometimes has unfortunately gone unnoticed) between benefits arising on account of death alone and those that are merely deferred earnings payable on superannuation or the death of the employee. Therefore, provident fund, family pension or gratuity fall clearly in the latter class.
20 In another case from Himachal Pradesh, in Kailash Wati and Anr. v. State of Haryana and Anr. AIR 1975 HP 35 it was held that deduction on account of lump sum payment cannot be made where prospects of the deceased improving his earnings have not been taken into consideration. This case is also an authority to lay down that the pension should not be deducted from the compensation amount payable since it is payment for past conduct and services rendered.
21. In the background of this legal position, let us now come to the evidence that has been adduced before and the findings recorded by the Tribunal.
22. As I have mentioned earlier, the case of Gobald Motor Service (supra) is the leading case now and the principle of law laid down in that case is that pecuniary loss can be ascertained only by balancing on one hand the loss to the claimants of the future pecuniary benefits and, on the other, any pecuniary advantage which from whatever source comes to them by reason of the death i.e. the balance of loss and gain to a dependent by the death must be struck.
23. Smt. Vidyawati (PW 6) who is the main beneficiary in this case and widow of the deceased stated that at the time of his death Constable Rampal Singh was aged about 39 years. In the bed-head ticket Ext. 4 the age of Rampal Singh is mentioned as 40 years. In the post mortem examination report the Doctor was of the opinion that the deceased was of about 45 years old. Taking all this evidence into consideration, the learned Tribunal came to the conclusion that the age of the deceased at the time of his death should be taken as 40 years. There is no dispute as regards this finding and it has been rightly held that on the date of his death the deceased should be held to be aged 40 years.
24. Another point which the learned Tribunal has decided is that the deceased would have superannuated if he had lived at the age of 55 years. There is no dispute as regards this item also and, therefore, it has to be accepted that in normal circumstances if Rampal Singh had lived, he would have earned his superannuation at the age of 55 years. The grade in which he was working was undisputably as follows:
Rs. 185-3-215-EB-4-235-EB-6-265
25. In normal circumstances within a period of 9 years other things remaining the same, Rampal Singh would have reached the maximum of this grade, which the learned Tribunal has fixed at Rs. 350 in all. Thereafter he would have still served continuously for six years more before completing his superannuation period and it cannot be assumed that even in this period of six years he would have remained stuck to the employment of Rs. 350 in all. In normal circumstances he should have been placed in the next higher grade and would have been earning more than Rs. 350 per month for a period of six years at least. There is absolutely no evidence on record to show as to what was the higher grade and what he would have earned if he had lived. Therefore, it was not possible to assess the increase in income in future and the corresponding pension after superannuation. If the future increase of income and pension is not considered, there will be no justification to deduct some amount out of the money of compensation on account of lump sum payment. Therefore in this case the learned Tribunal was wrong even in assuming that there should be a consideration of deduction of about 10 to 15 percent from the total amount for lump sum payment. As future increase in income was not taken into account, there could be no justification for considering any deduction on account of lump sum payment. Of course, in the case of Vaican Insurance Co. Ltd. v. Kongasari Lal Banerji 1972 ACJ 208, it has been held that deduction for lump sum payment is allowed in appropriate cases But in another case Damayanti Devi v. Sita Devi 1972 ACJ 334 (P & H) it was held that no deduction on account of lump sum payment was to be allowed, firstly, because the prospects of the deceased improving his earnings were not taken into account while assessing the loss and secondly, the claimants were not allowed any interest on the amount awarded. Similarly, in the case Maj Jagjit Singh v. Kartar Singh 1973 ACJ 147 Punjab it has been held that the out on account of lump sum payment is not made because of the uncertain and imponderable factors which may come about in future resulting in the increase or decrease of the income. But if the increase in income are taken into account, then it is a case for applying reasonable reduction on account of lump sum payment. No reduction on account of lump sum payment has to be made if the compensation is determined on the basis of the income at the time of accident without taking into calculation any future increase therein.
26. Similar view has been taken in Sood and Company Kulu v. Surjit Kaur 1973 ACJ 414 Punjab and also in the earlier mentioned case of Kailash Wati v. State of Haryana AIR 1975 HP 35. Therefore, the learned Tribunal should not have even considered the question whether for the lump sum payment that is being made any deduction could be considered.
27. Now there is evidence on record on the basis of which the Tribunal has come to hold that the longevity in the family of the deceased was upto 70 years and that if he had not died in this accident, he would be presumed to have lived upto that age.
28. In this manner for 15 years during his employment and for another 15 years upto the completion of the age of 70 years this man would have been earning member of the family supporting himself and his two dependants, namely the wife and son. As I have already shown earlier, the learned Tribunal has very rightly accepted the figure of Rs. 350 as his monthly income for a period of 15 years till his superannuation. This is because no further data was available on the record on the basis of which any other figure could have been arrived at. It is obvious that he was a police constable and considering the duties that are assigned normally to police constables, it is but natural that he should have spent a substantial amount of his earnings on himself. The learned Tribunal has fixed this amount to be Rs. 150 per month. This is reasonable and has to be accepted. Therefore, he would have spent Rs. 200 per month on his dependants, namely the claimants, out of the salary that he was drawing for a period of 15 years. As that the rate, for the period of 15 years, this will come to an amount of Rs. 36,000.
29. For the next about 15 years, till he attained the age of 70 years, he would have earned pension and perhaps would have taken to some other job, but in the absence of any definite and direct evidence in this respect, the learned Tribunal has assumed that the pension amount would have been atleast Rs. 200 per month. There is no dispute as regards that also Within this period of 15 years his child would have grown into a young man and the deceased would have been required to spend more out of his income on his education and up keep. I think, therefore, that proportionate deduction of half has been rightly made because even the deceased would have had spent more on himself considering his growing age and failing health. As the rate of Rs. 100 per month, therefore, he would have contributed a sum of Rs. 18,000 to the family. In this manner, over, a period of 30 years his contribution would have come to Rs. 54,000. The finding recorded by the Tribunal in this respect is therefore, confirmed.
30. This brings us to the question of deduction. The learned Tribunal has deducted an amount of Rs. 20,000 from out of the total of Rs. 54,000 and this deduction is on account of the fact that Smt. Vidyawati is getting Rs. 60 per month at family pension and is likely to receive it for another 30 years. I have already held above, with reference to the observations of various High Courts, that family pension amount is not considered while making deductions from the amount due to the claimants. Under these circumstances, in my opinion, the claimants were entitled to a total amount of Rs. 54,000 each getting Rs. 27,000 as his share of the compensation. To this extent the cross objection is to be allowed, but the appeal has to be dismissed in toto.
31. In the result, the appeal stands dismissed. The cross objections are allowed in part to the extent that the claimant-respondents shall be entitled to a total amount of Rs. 54,000 from the appellant, the U.P. State Road Transport Corporation. The respective shares of the two claimants will be Rs. 27,000 each. They will also be entitled to pendente lite and future interest on the total amount of Rs. 54,000 from the date of the suit upto the date of actual payment.
32. The costs in this Court shall be easy.