IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.673 of 2010 Nirmala Devi and others … Appellants Versus State of Haryana and others … Respondents 2. Regular Second Appeal No.674 of 2010 Nirmala Devi and others … Appellants Versus SDO Water Services Sub Division and another … Respondents 3. Regular Second Appeal No.675 of 2010 Nirmala Devi and others … Appellants Versus State of Haryana and others … Respondents Date of decision: 6th July, 2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sandeep K. Sharma, Advocate for the appellants. Ms. Tanisha Peshawaria, Dy. Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. By this common judgment, three appeals viz. (1) RSA No.673 of 2010 titled as ‘Nirmala Devi and others v. State of Haryana and others’; (2) RSA No.674 of 2010 titled as ‘Nirmala Devi and others v. Regular Second Appeals No.673 to 675 of 2010 SDO Water Services Sub Division and another’ and (3) RSA No.675 of 2010 titled as ‘Nirmala Devi and others v. State of Haryana and others’ shall be decided altogether, as the lower appellate Court has also passed a common judgment in all the three appeals instituted before it. Amrit Lal, husband of Nirmala Devi plaintiff-appellant No.1 and father of three minor daughters and a son, i.e. plaintiff-appellants No.2 to 5, on 14th January, 2002 fell in a drain and died. The plaintiffs had stated in para No.3 of the plaint as under: “3. That as the plaintiffs are neither having any source of income nor are having any property, hence are unable to pay required Court fee for filing the present suit, hence the plaintiffs are filing the present suit as indigent. An application for permission to file the suit as indigent is being filed along with the plaint, which may kindly be accepted in the interest of justice and the plaintiffs may be allowed to file the present suit without filing the Court fee, as the plaintiffs are indigent.” It was further pleaded that the drain was in a dilapidated condition prior to the fatal accident which had caused the death of Amrit Lal. Numerous accidents had taken place and various complaints were made but the officials of the Government had taken no care to repair the damaged safety wall and safety railing and thus, the accident had occurred due to the sole negligence on the part of the defendant- respondents. It was specifically averred that had the defendant- respondents repaired and rectified the safety wall and railing of the drain bridge the accident would not have occurred. In the plaint, it was stated that Amrit Lal deceased at the time of his death was about 30 years old, was having a good health/physique, was working as a carpenter on contract basis and was earning Rs.8,000/- 2 Regular Second Appeals No.673 to 675 of 2010 per month. It was further stated that he was the sole earning member of the family. Due to his untimely death which occurred due to the negligence of defendant-respondents, the plaintiff-appellants had no other source of income to defend themselves. The plaintiff-appellants had served a notice under Section 80 CPC and had demanded Rs.10.00 lakh as compensation along with interest at the rate of 18 percent per annum. It was further pleaded that the defendant-respondents had not cared to reply to the said notice and hence, the suit was instituted. The plaintiff- appellants were permitted to sue as indigent persons and the lower appellate Court had also allowed them to file the appeal in this capacity. Vide a separate order passed on September 16, 2010 by this Court, the application filed by the plaintiff-appellants to institute the appeal as indigent persons was also accepted. A written statement was filed on behalf of respondents No.3 and 4, wherein it was stated that the accident had taken place due to fall of the deceased himself. Furthermore, the accident had taken place by chance (Itfaqia) and a specific stand was taken by the defendants to the suit that the deceased was not wearing helmet which is mandatory as per law, therefore, they are not liable to pay the compensation. Defendants No.1 and 2 to the suit in their written statement had taken a stand that the drain and its railing were to be constructed and maintained by the Irrigation Department. The trial Court had drawn the issues and after appreciating the oral as well as documentary evidence led by the parties as well as taking into consideration the rival submissions made by counsel for the parties, held that the accident had occurred due to fault of the defendants as the bridge of the drain was not maintained properly and wall of the right side was in a damaged condition. The trial Court further held that the 3 Regular Second Appeals No.673 to 675 of 2010 wall of the bridge was constructed in the year 1978 and it was never repaired thereafter. The Court also relied upon the testimony of C.P. Gupta, SDO DW-2 who admitted in his cross-examination that no safety wall/railing of the drain was there on the day of accident. The Court further held that as per the post-mortem report Ex.P1 of Amrit Lal, the cause of death was due to fall in the drain along with motorcycle. After holding that the accident had occurred due to negligence of the defendants, the trial Court held that plaintiff No.1 being widow and plaintiffs No.2 to 5 being the children of deceased Amrit Lal are entitled to payment of damages for the loss suffered by them due to the death of Amrit Lal. The trial Court further held that since no documentary proof regarding the income of Amrit Lal was produced by the plaintiffs, he was to be assumed as a labourer and his income was assessed at Rs.2,100/- per month. The trial Court after applying the principles of Motor Vehicles Act, 1988 (hereinafter referred to as, ‘the Act’) granted a compensation of Rs.2,95,000/-. As per the decree drawn by the trial Court the plaintiff- appellants were held entitled to payment of an amount of Rs.2,95,000 as compensation along with interest at the rate of 12 percent per annum from 8th October, 2003 till the date of decree and future interest at the rate of 6 percent per annum till the payment is made. Aggrieved against the same, three appeals were filed. The plaintiff-appellants instituted Civil Appeal No.69 of 2008 for enhancement of the amount of compensation, whereas the defendant-respondents filed two appeals viz. Civil Appeals No.76 and 78 of 2008. All the three appeals were decided altogether by the lower appellate Court vide a common judgment. The lower appellate Court concurred with the findings 4 Regular Second Appeals No.673 to 675 of 2010 of the trial Court that the accident had occurred due to negligence on the part of the defendant-respondents as there was no railing/wall constructed on the bridge of the drain. However, the lower appellate Court held that for computation of the amount of compensation, principles of the Act being a special statute cannot be applied, and hence, it reduced the amount of compensation from Rs.2,95,000/- to Rs.1,00,000/-. It will be apposite here to reproduce the relevant portion of the judgment rendered by the lower appellate Court, which reads as under: “24. After hearing the parties and going through the record, I find force in the contention of the learned Govt. Pleader. The Motor Vehicles Act is a special statute dealing with accident cases involving with motor vehicle. In the present case, the motor cycle was being driven by the deceased who was wearing no helmet; the only fault of the defendants was that they had not affixed the railing/wall of the bridge and the act of the defendants was not so rash and negligent as to cover under the Motor Vehicles Act. The Claims Tribunal under the Motor Vehicles Act was enacted for adjudicating upon claim for compensation in respect of accident involving the death or bodily injury to a person arising out of the use of motor vehicle. The present case has not been filed under the Motor Vehicles Act but it is a civil suit. It is neither covered under Section 163-A of the Motor Vehicles Act nor under Sections 165 and 166 of the Motor Vehicles Act. 25. In the light of above discussion, I hold that the learned lower Court erred in awarding compensation on the principle of Motor Vehicles Act. In my view, a sum of Rs.one lac would be just and reasonable compensation in this case. Except this modification, I could not find any illegality or infirmity in the finding recorded under issue No.1.” 5 Regular Second Appeals No.673 to 675 of 2010 Present three appeals have been filed by the plaintiffs to the suit. On 1st July, 2010, on the statement made by counsel for the appellants, a Coordinate Bench of this Court restricted the claim of the plaintiff-appellants in the second appeal to the total compensation amount of Rs.2,95,000/-. The order passed on 1st July, 2010 reads as under: “Learned counsel for the appellants states that the appellants restrict their claim in the instant second appeal to total compensation amount of Rs.2,95,000/- (as awarded by the trial Court). It is ordered accordingly. Learned counsel for the appellants also states that compensation amount of Rs.1 lac (as reduced by the first appellate Court) has also not yet been paid to the appellants. Notice of CM No.1870.C of 2010 for permission to file the appeal as indigent persons be issued to the respondents for 16.9.2010. Records of the courts below be also requisitioned.” Counsel for the appellants in all the present three appeals has formulated the following question of law, being a substantial one for consideration of this Court: Whether the lower appellate Court was justified in reducing the amount of compensation awarded by the trial Court by holding that the principles of the Act cannot be applied for computation of the amount of compensation? In support of the contention that the learned trial Court had rightly applied the principles of the Act for assessing the amount of compensation, counsel for the appellants has relied upon a judgment of 6 Regular Second Appeals No.673 to 675 of 2010 this Court rendered in ‘Pal Singh and another v. Jagir Kaur and others’ 2008(3) RCR (Civil) 710. Further reliance has been placed upon a judgment rendered by a Division Bench of this Court in ‘Phoolwati v. State (Union Territory of Chandigarh) and others’ 2008(1) RCR (Civil) 139 to urge that in case of custodial death for assessing the compensation this Court had applied method of multiplier provided in the Act for providing compensation to the legal heirs of the deceased. Learned counsel has also relied upon ‘Seema v. State of Maharashtra and others’ 2006(4) RCR (Civil) 158 and has extensively quoted para Nos.20 and 21 of the judgment, which reads as under: “20. In another case of Union of India v. Lt .Col. Bhagat Singh and Others, (2003)10 SCC 597 the Court has confirmed the findings of the Court below and upheld the liability of the Union of India to pay damages/compensation for death, consequent to head injury received by the pillion rider in an accident on account of a damaged road which locked proper repairs and no signs to indicate the danger were displayed so as to caution user of the road. Therefore, if all these decisions are taken into consideration, the principle which emerges is that the negligence on the part of the respondents in performing their duty of care is sufficient to hold them vicariously liable to pay compensation to the legal heirs of the victim. The incident as such, being not disputed, the doctrine of Res Ipsa Loquitur clearly governs the case at hand. There is no plausible explanation on the part of the respondents as to how and why the occurrence took place. The doctrine is squarely applicable to the case as it is not common and it does not ordinarily happen of proper care is being taken that trees fall for no reason and there can be no dispute about liability of the respondents as the premises being within the exclusive control of the respondents and it was their duty of care to see that the 7 Regular Second Appeals No.673 to 675 of 2010 same is safe as it is within the clear knowledge of the respondents that the office of the Collector is visited and frequented by members of the public. This is a case where there is reasonable evidence of negligence on the part of the respondents and the nature of accident, i.e. falling of trees, was such as in the ordinary course of things does not happen if the respondents who have the management could have used proper care which they obviously failed, in spite of there being several complaints by the association of petition writers. This affords reasonable evidence in the absence of explanation by the respondents that the two fatal accidents arose from want of care. Therefore, we have no hesitation to hold that the respondents are liable to compensate the petitioner. 21. The next question which requires consideration is the computation of damages. The decision rendered by the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Another, (1994)2 SCC 176 laid down the broad principles and parameters under which the Court should determine the damages and it held:- ‘The determination of the quantum of compensation must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing." The amount awarded must not be niggardly since the "law values life and limb in a free society in generous scales". All this means that the sum awarded must be fair and reasonable by accepted legal standards.’ ‘In fatal accident action the measure of damages is the pecuniary loss suffered and is likely to be suffered by each dependent as a result of the death. Thus except where there is express statutory direction to the contrary, the damages to be awarded 8 Regular Second Appeals No.673 to 675 of 2010 to a dependent of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefits accruing to that dependent in consequence of the death of the deceased. It is the net loss on balance which constitutes the measures of damages’.” After hearing counsel for the parties, this Court is of the opinion that the lower appellate Court has committed a grave error in reducing the amount of compensation. A Division Bench of this Court (to which I was also a party) in ‘Dabwali Fire Tragedy Victims Association v. Union of India and others’ Civil Writ Petition No.13214 of 1996 decided on 9th November, 2009, relying upon ‘M.S. Grewal & another v. Deep Chand Sood & others’ 2001 Supreme Court Cases (Criminal) 1426 observed as under: “Claims arising out of Tort ordinarily go for trial and adjudication before the competent Civil Courts except in cases where statutory fora are created for such adjudication as is the position in claim cases arising before the Motor Accident Claims Tribunal under the Motor Vehicles Act, 1988, or the Railway Claims Tribunal established under the Railway Claims Tribunal Act, 1987. Even so, the High Courts and indeed the Apex Court exercising writ jurisdiction have, in exceptional circumstances, intervened with a view to providing immediate succour to those affected by tragedies involving heavy loss of human lives. That is precisely what happened in M.S. Grewal's case, in which 14 students studying in fourth, fifth and sixth standards in Dalhousie Public School, Badhani, Pathankot, were drowned in river Beas while out on a picnic. In a writ petition filed before it, the High Court of Himachal Pradesh held the School Management liable to pay compensation at the rate of Rs.5,00,000/- each to the parents of 14 students who died 9 Regular Second Appeals No.673 to 675 of 2010 in the incident with the interest at the rate of 12% per annum. In an appeal arising out of that decision, the Apex Court noted the shift in the judicial attitude from the old to new concept of providing expeditious relief in cases where the citizens' right to life and/or liberty has been affected. Making a departure from the conservative approach that damages must be left to the Civil Courts to determine, their Lordships observed: ‘Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system – affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of civil courts obligation to award damages. As a matter of fact the decision in D.K. Basu, (1997) 1 SCC 416, has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of 'justice oriented approach'. Law courts will lose its efficacy if it cannot possibly respond to the need of the society – technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to out-weigh the course of justice’.” In the present case, there is a concurrent finding of fact that the accident had occurred due to negligence on the part of the defendant-respondents. This finding has not been assailed by the State by filing any appeal. Therefore, the only argument which this Court has to determine is as to whether the trial Court was justified or not in computing the compensation applying the principles of the Act. The principles of the 10 Regular Second Appeals No.673 to 675 of 2010 Act now are well accepted for computation of the compensation. They have gained overall acceptance of the courts as they provide workable mechanism for determining the amount of compensation which is to be paid to the family of victims. They have withstood the test of judicial scrutiny. Thus, in case of a tort or in claim for damages, where defendants have failed to perform duty of care and necessary public duty to quell any kind of discretion, to adopt the principles of the Act is a sound practice. Therefore, this Court has no hesitation to hold that the approach adopted by the trial Court to compute the damages was just and appropriate, and the lower appellate Court, while setting aside the compensation awarded by the trial Court, has acted too arbitrarily; and without any rhyme or reason, reduced the amount of compensation from Rs.2,95,000/- to Rs.1,00,000/-. How and in which manner this amount of Rs.1,00,000/- was assessed, no reasoning has been given by it. Thus, taking totality of circumstances into consideration, the present appeals are accepted. As a consequence thereof, the judgment and decree of lower appellate Court is set aside and that of the trial Court are restored. [KANWALJIT SINGH AHLUWALIA] JUDGE July 6, 2011 rps 11