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Case Brief: Ishwar Devi Malik v/s.Union Of India

The present matter is an appeal that is presented under Section 110-D of the Motor Vehicles Act challenging the Motor Accident Claims Tribunal's decision, Delhi dated 17 March 1966, which rejected the application filed for the recovery of compensation. There are six appellants in the present matter, the first one being the widow, the second one are the sons[1], third is the daughter of the deceased, mother and father of the dead, i.e., Sham Lal Malik was appellant numbers 4 and 5.

Name of the Case: Ishwar Devi Malik And Ors. vs. Union of India Through The ... on 19 March 1968
Decided by Delhi High Court
Citation: AIR 1969 Delhi 183
Bench: I. Dua, T. Tatachari

They all together applied as the deceased's remaining heirs to claim the compensation amounting to Rs 4,50,000 due to the accident that occurred on 26 December 1961 at Farash Khana Bus Stop at around 4 PM resulting in the death of the said Sham Lal Malik.

The applicants in their affidavit submitted that the deceased was 40 years old and was doing business from which he earned around Rs 1700 monthly. According to the applicants, he was waiting for the bus at the bus stop mentioned above. Soon after that, a Bus No. Dlp 230 reached the Bus Stop, and when the deceased put his foot on the footboard of the bus, the conductor of the said bus in a rash and haphazard manner rang the bell, knowing that the deceased has not even entered into the bus and the driver started the bus.[2]

The applicants further said that after some time, the said Bus driver passed through another bus no. 730, which was standing very close to the deceased due to which he was sand-witched between the two buses, which resulted in serious chest injuries, and soon after that, he was declared dead at around 6 PM by Irwin Hospital.

According to the applicants, the deceased died due to the rash and negligent acts of the bus drivers and the conductor of the bus No. 230 of route no. 2 and both were the employees of the Union of India who were the Respondents No. 1-3. The applicants stated that the respondents were held responsible for their employees' acts as the actions were carried during their work, and thus, the respondents no. 1-3 were liable to pay the compensation as claimed by the applicants.

The three crucial issues which were raised in the appellate court were:
  1. Whether the deceased, i.e., Sham Lal Malik, died due to the rash and negligent acts of the driver and conductor of bus No. Dlp 230 at route no. 2
  2. Whether Sham Lal Malik (deceased) was guilty of contributory negligence[3]?
  3. What is the quantum of compensation to be paid to the applicants, and who should be liable to pay the compensation?
The safety of the passenger who is traveling in public transportation should be the foremost concern to the person in charge of and control of public transportation.[4] Furthermore, Section 110-A of the Motor Vehicles Act, 1939 has been applied according to which, an application for compensation arising out of an accident of the nature specified in Section 110 (1) may be made by the person who has sustained the injury, or where death has resulted from the accident, by the legal representatives of the deceased, or by an agent duly authorised by the person injured or the legal representatives of the deceased, as the case may be, and also prescribes the Period within which such an application may be made.[5]

Also, Section 1-A of the Fatal Accidents Act, 1855, according to which the beneficiaries of the deceased are entitled to the compensation for monetary loss arises from the death of the individual of which the recipients have been deprived[6]. Moreover, the Court also applied a principle to arrive at equitable compensation. According to this principle, the monetary loss to the applicants must be determined by proportioning the loss to them of the future financial gain and the advantage which came to them because of death.[7]

The Court discussed the first and second issues together as they both are somehow connected. Concerning this, the Court examined the statements of three eyewitnesses. But the main concern was with the eyewitness no. 3, i.e., Arjan Dass. According to the tribunal ruling, this witness's testimony cannot be considered and does not hold good as he is the deceased's real brother in law.

But the Court rejected this reasoning given by the tribunal and placed its reliance upon the Supreme Court ruling in Masalti V. Uttar Pradesh[8], where it was held that even in a lawsuit involving criminal matter, the Court cannot dismiss the evidence given by the interested person due to the fact that the witness is interested in individual, but the Court should keep in mind and accordingly examines the correctness and genuineness of the evidence.

The Court held that the tribunal was wrong in not including the testimony of A.W7 as A.W1 and A.W3 also corroborated his correctness. The Court, based on the findings, stated that the deceased boarded the bus when it was unmoving, but while he was still putting his foot in the bus, and most of his body parts were lying outside the bus. The conductor, knowing these facts rang the bell and the driver started driving the bus.

This act of conductor was rash and negligent. The driver also acted in a rash and negligent manner as he did not allow adequate clearance while passing by the side of another standing Bus. For this, the Court also placed reliance upon Kuldip Lal Bhardari v. Umed Singh[9], in which there were somewhat similar facts as that of the present case.

Regarding the question of contributory negligence on the part of the deceased, i.e., Sham Lal Malik, the Court stated that the bus was motionless when the said person in question boarded it, and thus, the issue of contributory negligence does not arise.[10]

For the third issue, the Court stated that there are two kinds of damages or compensation, which are recoverable under the Fatal Accidents Act, 1855. The first where the compensation awarded is proportional to the loss resulting from the death of the person named in Section 1-A of the said act. The second one, which is provided under Section 2, talks about the loss done to the deceased's estate.

The Court stated that the applicants did not file compensation under the second type; thus, they were applicable only for the loss arising from the first type. Hence, according to the Court, this type of compensation would be best suited in the present case.

The Court applied the principle that the monetary loss to the applicants has to be determined by proportioning the loss to them of the future financial benefit and the pecuniary advantage that came to them because of death.[11] Based on the above formula, the Court ordered payment of compensation to the deceased's wife and his children amounted to Rs 25,500 each based on the calculations made by the Court and also ordered Rs 6,375 to be payable each to the mother and the father of the deceased person i.e. Sham Lal Malik.

The Court ordered that both the driver and bus conductor are liable for rash and negligent acts (respondents no. 4 & 5), and because of their actions, the deceased had died.
The Court also held that that deceased, i.e., Sham Lal Malik was not liable for contributory negligence on his part. Furthermore, the Court ordered compensation to be payable to all the applicants. The court held that the Municipal Corporation of Delhi (Respondent No. 2) and Delhi Transport Undertaking (Respondent No. 3) are liable for the payment of compensation to the claimants.[12]

  1. AIR 1969 Delhi 183, para 2.
  2. Ibid
  3. AIR 1969 Delhi 183, para 8.
  4. AIR 1969 Delhi 183, para 37.
  5. Section 110-A, Motor Vehicles Act 1939.
  6. Section 1-A, Fatal Accidents Act 1855.
  7. AIR 1969 Delhi 183, para 43.
  8. AIR 1965 SC 202.
  9. 1966 Ace. C. J. 110 (Punj).
  10. AIR 1969 Delhi 183, para 39.
  11. AIR 1969 Delhi 183, para 43.
  12. AIR 1969 Delhi 183, para 52.
Written By: Mudit Saraf

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