JUDGMENT
T.N. Singh, J.
1. The appeal and the
cross-appeal are referred u/Section 110-D, Motor Vehicles Act, 1939, for short, the Act. In their appeal (M.A. No. 48 of 1986), the claimants have prayed for enhancement of the compensation, while in the other appeal (M.A. No. 29 of 1986), the prayer is for setting aside the award in toto.
2. Deceased Rameshwardayal Bajpai, a Daftary in the Office of the Accountant General, Madhya Pradesh, at Gwalior, was, admittedly, hit by jeep No. CPH 13, belonging to the Border Security Force, Tekanpur, The accident took place on 3-10-1983 at around 1-30 p.m. and in an unconscious stage, the deceased was removed from place of occurrence to the hospital where, on the same date, in the night, he breathed his last. He was carried to hospital in the same vehicle which had caused the accident and the defence is that the vehicle was not driven rashly and negligently.
3. Two questions mainly, evidently, arise for decision in these two appeals. We would examine first, therefore, the defence and evidence that has come on record in that regard. It appears that on three main props, the defence was erected, but in our view, claimants’ case is proved allunde to sustain the finding and conclusion of the Tribunal that the vehicle was driven rashly and negligently at the time of the accident. False defence results evidently in dilution of the onus of the claimants. Indeed, when the case
pleaded is that the Driver was not guilty of rash and negligent driving and interposition of human agency resulted in the inevitable accident, onus would He on the driver to establish the stand taken. Because, when due to an act of God, any inevitable happens, the position is different. When it is not possible for a driver to prevent the accident by the exercise of ordinary care, caution and skill, it may be a case of an inevitable accident and it shall be open to him to plead that the cause of the accident was not absence of those, but of external human factor, such as the negligence of the victim.
4. In the instant case, the defence alleged three specific facts as constituting the external human factor which resulted in the accident that the deceased was hit not by the front part of the vehicle, but by its rear part; that the deceased was negligent because he was running across the road to board a bus and he did not care to look around; and that there was speed-breaker little ahead of the place of occurrence and, therefore, it had to be presumed that the vehicle was driven slowly. However, in evidence, those facts are not established and it can be justifiably held that false plea of the occurrence being an “inevitable accident” was set up. In the joint written statement filed, it was specifically pleaded that there was a bus standing in front of A.G.’s Office and embarkation and disembarkation of passengers from that vehicle was going on. At that time the deceased, it is alleged, was running hurriedly across the road to board the bus and he did not look to his right to the on coming jeep and dashed against the middle portion of the jeep, being unable to stop himself. The driver immediately applied brakes and stopped the jeep. This plea, in evidence, was embellished and bolstered. Order 8, Rule 2, CPC, contemplates that in regard to any “ground of defence”, the defendant must state the necessary facts and Section 103, Evidence Act rests burden of proof of the facts so alleged on the defendant. Indeed, principles underlying these statutory provisions are of universal application to all civil litigations.
5. The driver examined himself as D. W. 2 besides the Deputy Commandant of SAF.
who deposed as D. W. 1 and stated that he was one of the occupants of the jeep at the time of accident. While D.W. 1 deposed that the deceased dashed against one side of the bonnet (front portion) of the jeep in the middle, D.W. 2 admitted in his cross-examination that he could not see when the deceased dashed against his vehicle. In his examina-tion-in-chief, he stated that he saw one man dashing against the right side of the vehicle and when he stopped the vehicle, he saw a man lying on the road on the backside. P. Ws. 5,6 and 7 had witnessed the occurrence and they have been believed by the Tribunal. Ex. P/4, the FIR, which P.W. 5 lodged immediately after the occurrence, contains a clear statement that the jeep was driven negligently by D.W. 2. It came in a high speed and hit Daftary Rameshwardayal Bajpai at his backside who sustained serious injuries on his head and leg. This statement is corroborated by Autopsy Surgeon, P.W. 2, who deposed to fractures of bones of the left leg and arm of the deceased and also of parietal bone of his head. Several and serious injuries to which P.W. 2 deposed, indubitably suggest that the impact on the person of the deceased, during the accident, was serious. Although they have belied the version of D.Ws. 1 and 2, we have seen no reason to disbelieve them and we agree with the Tribunal that they were natural witnesses and were disinterested persons, unlike the two D.Ws.
6. P.W. 5 stated that the jeep hit the
deceased at his back and is the same vein, more categorically, P.W. 6 deposed that the jeep came from the back-side and hit the deceased. Defence suggested categorically to P.W. 7 that the deceased had dashed against the jeep at the backside which the witness denied. He also stated clearly that the jeep had dashed the deceased on his back. P.W. 7 was a Senior Auditor in the A.G.’s Office who naturally knew the deceased and his version is that it was lunch break when the accident took place. He was in the roadside tea-stall, adjacent to the gate of A.G.’s Office where he was taking tea when deceased Bajpai had also come there and had told him that he was going to buy banana from the vendor, who was standing on the other side of the road.
Although D.Ws. 1 and 2 both deposed that horn was blown, but the defence did not have the courage to put that question to any of the P.Ws. Indeed, driver (D.W. 2) discredited himself by stating, as noted earlier, that he had not seen the deceased dashing against the vehicle. All the three P.Ws. deposed corro-boratively, clearly and categorically that the jeep was driven rashly and indeed, the defence did not care to put to them that there being a speed-breaker ahead, the vehicle could not have been driven at high speed. The only reasonable conclusion on evidence to be reached is that the driver was negligent and he did not care to look around and follow the Rule of the Road in that regard in order to discharge his duty to the pedestrians. He was driving unmindful of the fact that there was a bus standing ahead and that there was pedestrian traffic on the road which, as P.Ws. have deposed, as was natural in lunch-time in front of a Government Office with huge establishment.
7. For reasons aforesaid, we find that there is no merit in the contention of Shri Mittal that it was a case of “inevitable accident” and not one of rash and negligent driving of the offending vehicle. We affirm the finding and conclusion of the Tribunal that the vehicle was driven rashly and negligently and for the death of deceased Rameshwardayal Bajpai, the claimants were entitled to compensation as contemplated under Section 110-A of the Act and, therefore, the award passed by the Tribunal in that regard u/Section 110B is not without jurisdiction.
8. Now, the question of enhancement. On that, we cannot have another option today as we find that our decision in Prabhavati Sharma’s case, 1990 ACC CJ 399 is clearly applicable to the facts of the instant case. True, Tribunal followed a different method and applied the multiplier of 15 in assessing the compensation. Claimants’ counsel Shri Jain has contended that even that is not done properly. P.W. 3, Section Officer in A.G.’s Office, proved “Income Certificate”, Ex. P/3, and the “Pay and Allowances statement”, Ex. P/6, but he wrongly deposed that at his death, the deceased was drawing gross salary.
of Rs. 665.70. That figure, the Tribunal accepted in computing the compensation. As per Ex. P/3, the figure is Rs. 693.80 and according to Ex. P/6, in October, 1983, the deceased was entitled to gross salary of Rs. 712.50. The fact also is that in applying the multiplier, and reckoning the annual loss of the claimants at Rs. 3,600/-, the Tribunal took into consideration the factor that deceased’s widow was receiving family pension of Rs. 150/- per month. It is rightly contended, therefore, that this Court’s decision in Kashiram Mathur’s case, 1983 Acc CJ 153 : (AIR 1983 Madh Pra 24), rendered by the Full Bench and our decision in Prabhavati Sharma’s case (supra) do not permit that. Counsel is very correct because we had observed deduction on account of family pension is not permissible if that is not “proved as a benefit accruing to the claimants in the form of advantage resulting from the death”. In the instant case, P.W. 3’s evidence gave no scope to the Tribunal to regard family pension as a valid deduction because he clearly and categorically deposed that if the deceased were alive, he could have received salary, allowances etc. payable therewith besides pension, which was now being given to this family.
9. Following supreme guideline laid down in Supreme Court’s decision in Manjushri Raha v. B.L. Gupta, 1977 Acc CJ 134 : AIR 1977 SC 1158, we took the view in Prabhavati (1990 Acc CJ 399) (supra) that the proper method of computation of compensation in case of death of a Government servant is one that their Lordships indicated because “Government servants enjoy security of tenure, earning and health-care for longevity besides retirement benefits” and, therefore, “in their case compensation has to be assessed differently to the best advantage of the claimants”. There was striking resemblance, which we noticed, in Prabhavati’s case with that of Manjushri’s and surprisingly, that we notice here also. Not only in all three cases, the deceased was a Government servant, but all the three persons were in the age group of 37 years at the time of their death. Taking into consideration the “Salary Statement”, in Manjushri Raha’s case, their Lordships held that a fair estimate of loss of dependency and
loss of company which she and her children suffered could not be less than half the amount disclosed in the statement after taking into consideration all expenses. That statement disclosed emoluments which the deceased would have received till his superannuation reckoning promotions and increments in salary etc. during the course of his service. In the instant case, according to Ex. P/6, we find that till his superannuation, the deceased, if alive, would have received Rs. 2,29,492.80. We would, therefore, hold that the reasonable compensation to which the claimants are entitled on account of death of Rameshwardayal Bajpai is Rs. 1,15,000/-. In the impugned award, for loss of dependency Rs. 54,000/- and for loss of company and mental suffering, Rs. 7,000/- is specified as compensation payable to the claimants together with interest at the rate of 10% per annum from the date of application. On the other hand, claimants have put their entitlement at Rs. 5,36,832/- on the basis of pleading and evidence that the deceased had extra income of Rs. 600/ – per month, derived from priestly chores and preparing horoscopes. We do not think if we would be justified in entertaining that claim ignoring the Supreme mandate and the proper guideline applicable to the case of claimants as deceased was a Government servant who is not expected to carry on other profession or vocation.
10. Some case-law, Shri Mittal cited, to which attention must be paid. In Ramesh Chandra, 1982 MPLJ 426 : (AIR 1982 Madh Pra 165), compensation was claimed for an unemployed boy aged 19 years who was undergoing training as a fitter. Reliance on that is evidently misconceived. C.K. Subramania Iyer, 1970 Acc CJ 110 : (AIR 1970 SC 376) is an Apex Court’s decision. Parents had claimed compensation for the death of 8 Year old son. Constraining the provisions of Sections 1A and 2 of the Fatal Accidents Act, 1855, their Lordships observed that damages thereunder are not to be given as a solatium and actual pecuniary loss had to be assessed. That decision certainly does not advance counsel’s contention. The short-noted decision in Subhan Ali, 1984 MPWN 434 is also distinguishable on facts.
11. Although Shri Mittal also relied on State of M. P. v. Ashadevi, 1988 MPLJ 346 : (AIR 1989 Madh Pra93) submits that correct multiplier of 15 was applied by the Tribunal, the contention of Shri Jain, as noticed earlier, was that annual loss on dependency was wrongly fixed by the Tribunal at Rs. 3,600 / -. It is necessary, however, to point out that even when multiplier method is used in computing compensation, deceased’s age is not the sole factor and we have failed to appreciate Shri Mittal’s contention that Ashadevi lays down the law that when deceased is in the age group of thirties and forties, the multiplier to be selected must invariably be 15. The court, in Ashadevi’s case, relied on another D. B. decision of this Court in State of M. P. v. Davi Rawat, 1986 MPLJ 534 : (AIR 1981 Madh Pra 173) for following the multiplier method and as such, reference to Davi Rawat’s case is imperative. G. P. Singh, C. J., speaking for the Davi Rawat, recognised the position that the two methods of assessing damages could be applied and referred in that connection to Manjushri Raha’s case (AIR 197? SC 1158) (supra). However, he preferred to follow another decision of the Supreme Court in M.P.S.R.T.C. v. Sudhakar, AIR 1977 SC 1189 without stating reasons for doing so. The fact that deceased in Manjushri’s case was a Government servant while in Sudhakar’s case, she was not so and claim was not preferred on that basis, escaped the notice of the Court in Davi Rawat. Otherwise, perhaps, multiplier method would not have been followed as deceased in Davi Rawat’s case who was a Government servant. In any case, the Court observed in Davi Rawat’s case that in choosing the multiplier, such other factors also are takes into consideration, namely, the size and circumstances of deceased’s family dependent on him at the time of incident, besides his retirement age and longevity.
12. In the premises aforesaid, we are of the view that the claimants are entitled to enhanced compensation and award has to be modified in that regard. Indeed, they are also entitled to higher rate of interest because this Court’s Full Bench, recently, in Prakash-chand v. Chhuttan (M. A. No. 73 of 1982, decided on 30-11-1990) has decided that
interest at the rate of 12% per annum from the date of application till the date of realisation is the interest which is to be specified in terms of Section 110-CC of the Act. The impugned award is accordingly modified. Claimants are held entitled to Rs. l,15,000/-as compensation and interest at the rate of 12% per annum from the date of application till payment. However, in regard to interest and also payment made pursuant to the award, due credit shall be given. Shri Mittal submitted that in the first instance, Rs. 15,000/- was paid and then full payment due under the award has been deposited with the Tribunal. Accordingly, liability of interest to be suffered by the instalment shall be on pro rata basis till the rate of payment made under the award from the date of application. Within three months, the payment due under the award, as modified herein, shall be deposited with the Tribunal. Steps shall be taken for disbursing that amount keeping in view the need of the different dependents/ claimants. Besides a widow, the deceased left surviving him a daughter, aged 12 years and two minor sons and an adult son. In disbursing the amount, distribution shall be made to suit the needs and circumstance at the different claimants/ dependents.
13. In the result, M. A. No. 29/86 fails and is dismissed. The connected M.A. No. 46 of 1986 succeeds and it allowed to the extent indicated above. However, parties are left to bear their own costs in this Court.