JUDGMENT S.D. Gundewar, J.
1. These three first appeals bearing Nos. 166/85, 169/85 and 192/85 arise out of one and the same accident and since the common evidence came to be recorded by the Motor Accidents Claims Tribunal, Akola (hereinafter referred to as "the Tribunal") in all these matters, I propose to dispose them of by this common judgment.
2. The appellant in First Appeal No. 166/85 is a registered partnership firm carrying on its transport business under the name and style as "M/s. Nitin Transport" at Rajkot. Truck tanker bearing registration No. GTX 3998 (hereinafter referred to as "the tanker") involved in the accident in question belonged to the said firm. This firm has challenged the judgment and order dated 25-3-1985 passed by the Tribunal in Motor Vehicle Case No. 50/82 whereby the Tribunal has directed the appellant (original non-applicant No. 1) and the United India Insurance Company, Rajkot (original non-applicant No. 2) to pay Rs. 17,017.11 ps. to the applicant Maharashtra State Road Transport Corporation, Akola (MSRTC) by way of damages together with future interest at the rate of 9% per annum from the date of application till its realisation.
3. First Appeal No. 169/85 is also filed by "M/s. Nitin Transport", Rajkot challenging the judgment and order dated 25-3-1985 passed by the Tribunal in Motor Vehicle Case No. 49/82 as the Tribunal has allowed its claim for damages against MSRTC and United India Insurance Company (original non-applicants) only to the extent of Rs. 9,375/-.
4. First Appeal No. 192/85 is filed by the legal representatives of the deceased Manharlal Agarvat, the driver of the tanker, for enhanced compensation challenging the judgment and order dated 25-3-1985 passed by the Tribunal in Motor Vehicle Case No. 48/82.
5. The facts which are not in dispute may be summed up as below :
On 25-3-1982 the tanker in question was proceedings along the National Highway No. 6. It was going from Rajkot to Calcutta. On way at about 10 a.m. while it was crossing a bridge No. 221/3 situated near village Borgaon Manju, it met with an accident. There was a collision between the said tanker and S.T. Bus bearing registration No. MTD 8913 coming from the opposite direction. The said impact was so great and forceful that the drivers of both the vehicles died and the front portions of both the vehicles were extensively damaged.
6. Now, it is the case of "M/s. Nitin Transport" the applicant in Motor Vehicle Case No. 49/82 (appellant in First Appeal Nos. 166/85 & 169/85) that the S.T. Bus in question came from the opposite direction at high speed and in zig-zig manner and though the driver of the tanker slowed down the speed and gave signal by switching on the head lights, the driver of the S.T. Bus did not pay any heed to it and by coming on the wrong side of the road, the bus first dashed against the parapet wall of the bridge and then against the tanker. The said impact was so severe and forceful that the driver of the tanker namely, Manharlal Agarvat died instantaneously and tanker was damaged extensively and hence, the applicant claimed Rs. 1,99,750/- by way of damages from the non-applicants.
7. As against this, it was contended on behalf of the MSRTC non-applicant No. 1 in Motor Vehicle Case Nos. 48/82 and 49/82 and applicant in M.V.C. No. 50/82 (respondents in all the three appeals) that it was the driver of the tanker, who drove it rashly and negligently resulting in the accident in question. According to the MSRTC, though the S.T. Bus in question entered upon the bridge first, the driver of the tanker did not take note of it and drove the tanker at high speed and dashed against the S.T. Bus. Other averments made by the applicant were also denied by the MSRTC.
8. United India Insurance Company (the non-applicant in all the aforesaid Motor Vehicle Cases and respondent in all these appeals) contended that the accident in question occurred due to the negligence of the driver of the tanker. It was further contended by the Insurance Company that it has paid the compensation to "M/s. Nitin Transport" in full and final satisfaction of its claim and, therefore, the claim of the said transport company is not maintainable against it. It was also the contention of the Insurance Company that it has paid compensation to the legal representatives of the deceased Manharlal the driver of the tanker also as per the award passed by the Tribunal and, therefore, their claim is also not maintainable against it.
9. Heard Shri A.B. Lohiya, the learned Counsel for the appellant in First Appeals Nos. 166/85 and 169/85, Shri R.S. Agrawal, the learned Counsel for the appellants in First Appeal No. 192/85, Shri V.G. Wankhede, the learned Counsel for the respondent No. 1 MSRTC in all the three appeals. Shri H.V. Thakur, the learned Counsel for United India Insurance Company respondent in all the appeals and Shri B.N. Mohta, the learned Counsel for the respondent No. 3 in First Appeal No. 192/85.
10. Shri Lohiya has strenuously urged before me that the Tribunal was not justified in holding that there was a contributory negligence in the ratio of 50 : 50 of the drivers of both the vehicles. According to him, it was the driver of the S.T. Bus, who was rash and negligent in driving the bus and, therefore, the appellant "M/s. Nitin Transport" is entitled to get the entire amount of damages from the respondents, namely, MSRTC and the Insurance Company and no liability in respect of damages caused to the S.T. Bus can be fastened upon the said transport company. It is further submitted by Shri Lohiya that though the claim of "M/s. Nitin Transport" is settled with the Insurance Company, its claim against MSRTC is not barred in view of the provisions of section 135 of Transfer of Property Act and section 41 of the Indian Contract Act. According to him, the Tribunal erred in holding otherwise. For this, he placed reliance on the decision in Sri Sarada Mills Limited v. Union of India representing Central Railway and others, and Union of India v. Sri Sarada Mills Limited, .
11. Shri R.S. Agrawal the learned Counsel for the appellants in First Appeal No. 192/85, vehemently argued that since the accident in question occurred due to rash and negligent driving of the S.T. Bus by its driver, the appellants i.e. the legal representatives of the deceased Manharlal-driver of the tanker, are entitled to get the entire amount of compensation. According to him, the Tribunal erred in arriving at the conclusion that the accident was the result of contributory negligence of the drivers of both the vehicles and awarding only 50% of the total amount of compensation to the appellants. For this, he placed reliance on the decision in Oriental Insurance Company Ltd. v. Mary Pushpam and others, reported in 1997(2) T.A.C. 397 (Ker.). It is further submitted by him that though the Tribunal rightly applied the multiplier of 18, has erred in not awarding any amount to the appellants towards mental agony suffered by them. For this, he placed reliance on the decisions in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and others, reported in 1994 Mh.L.J. 1049. It is also submitted by him that the Tribunal erred in awarding interest at the rate of 9% per annum. In fact, the Tribunal ought to have awarded interest at the rate of 12% per annum. For this, he placed reliance on the decision in Krishna and others v. Pannalal and others, reported in 1997(2) T.A.C. 454 (M.P.). On the above submissions, it is urged by Shri Agrawal that the impugned award needs to be modified.
12. Shri V.G. Wankhede, the learned Counsel for the MSRTC supported the judgment and order passed by the Tribunal in all the aforesaid cases. According to him, the Tribunal has rightly held that there was a contributory negligence and, therefore, the compensation awarded by it being just and reasonable, it needs no interference at the hands of this Court.
13. Shri H.V. Thakur, the learned Counsel for the Insurance Company, submitted that as the Insurance Company has paid the compensation to "M/s. Nitin Transport" in full and final settlement of its claim, the claim made by it is not maintainable against the Insurance Company. It is further submitted by him that the Insurance Company has also paid the compensation to the L.Rs. of the deceased Manharlal-the driver of the tanker as per the award of the Tribunal and, therefore, even their claim against the Insurance Company is not tenable.
14. In order to appreciate the rival contentions raised by the learned Counsel for all the parties, it will be appropriate to consider the entire documentary and oral evidence on record as well as the impugned orders passed by the Tribunal.
15. Admittedly, Manharlal had lost his life in the accident, which took place on 25-3-1982. However, there is a controversy regarding the manner in which the said accident took place and also due to whose negligence it occurred. According to the appellants, the accident in question took place due to the negligence of the driver of the S.T. Bus, whereas as per the contentions of the MSRTC, it took place on account of the negligence of the driver of the tanker. It is, therefore, necessary to scan the entire evidence in order to find out as to how the accident in question occurred. For this, there is evidence of A.W. 2 Paravez Ahmed a photographer, A.W. 3 Ramji Chanabhai-a co-driver of the tanker, A.W. 4 Prakash Shriram a passenger of S.T. Bus, A.W. 5 Mirza Illiasbeg a panch of the spot panchanama and N.A.W. No. 1 Surendrasingh Bisansingh a conductor of the S.T. Bus. Besides the said oral evidence, there is documentary evidence on record such as the spot panchanama, photographs, etc.
16. It is clearly stated by A.W. 3 Ramji that he was working as a driver with "M/s. Nitin Transport" since last 20 years. On 25-3-1982 he was travelling by ill-fated tanker along with the deceased Manharlal. According to him, on that day at about 10 a.m. while the tanker was proceeding towards Calcutta along the bridge situated near Village Borgaon Manju, it met with an accident. It was loaded with oil and proceeding from the left side of the road at a speed of 40 kms. per hour. It is further stated by him that at that time S.T. Bus in question came from the opposite direction at a speed of 70 to 75 kms. per hour in zigzag manner. On seeing the bus coming at excessive speed from the opposite direction, the driver of the tanker stopped the tanker and gave signal by switching on the side lights. However, due to excessive speed, the driver of the S.T. Bus lost control over the vehicle and by coming on the wrong side of the road the bus firstly dashed against the parapet wall of the bridge and then against the front portion of the tanker. The said impact was so severe and forceful that Manharlal, the driver of the tanker sustained severe injuries and died on the spot. The driver of the S.T. Bus also sustained severe injuries. It is then deposed by him that due to the accident in question, the front portions of both the vehicles were completely smashed. During his cross examination, it was suggested to him on behalf of the MSRTC that while the tanker was on the bridge, one of its front tyres got burst, due to which the driver lost his control over it and dashed against the bus. However, he has flatly denied the said suggestion. It is pertinent to note that during his cross-examination it was nowhere suggested to this witness that the accident in question took place due to the negligence of the driver of the tanker or that at the relevant time the driver of the tanker was rash and negligent in driving the vehicle.
17. This version of A.W. 3 Ramji has been materially corroborated by A.W. 4 Prakash, a passenger who at the relevant time was travelling by the offending S.T. Bus. He deposed that he is a resident of village Katepurna and on the day of accident he was going from Katepurna to Akola by the S.T. Bus in question. According to him, on that day at about 10 or 10.30 a.m. the said S.T. Bus was proceedings along the bridge at a speed of 70 to 75 kms. per hour and by going to the wrong side of the road it first dashed against the parapet wall of the bridge and then against the tanker and due to the said accident he sustained injury on his left leg for which he received treatment in the hospital at Katepurna. Nothing has come out during his cross-examination so as to make his testimony unworthy of belief or credence.
18. The evidence of A.W. 3 Ramji and that of A.W. 4 Prakash thus clearly goes to show that the accident in question occurred due to the negligent driving of the offending bus by its driver and the impact was so severe that as a result of which Manharlal the driver of the tanker sustained severe injuries and died on the spot.
19. Further, the photographs (Exhibit 27/1 to 27/13) which are proved by A.W. 2 Parvez Ahmed, a photographer also go to show that the parapet wall of the bridge and front portion of the tanker in question were damaged. These photographs further go to show that the impact was so great and forceful that the front portion of the tanker was completely smashed. These photographs have thus corroborated the version of aforesaid two witnesses.
20. Besides the aforesaid oral evidence, there is a spot panchanama which is proved by A.W. 5 Mirza Illiasbeg. This document is not challenged by the parties. In view of this, the Tribunal ought to have exhibited it but it appears that due to inadvertence it remained to be exhibited. However, since it is an admitted document, it can very well be read in evidence. It is clearly mentioned in this document that the accident in question occurred on a bridge No. 221/3 situated within the limits of village Pailpada on National Highway No. 6 and the width of the road at the spot is 24 ft. while length of the said bridge is 150 ft. It is also mentioned in this panchanama that the tyre marks of the tanker were seen on the road upto 58 ft. behind the tanker due to application of brakers by its driver. The recitals of panchanama further go to show that the rear wheel of conductor's side of the tanker was at a distance of 2 1/2 ft. and front wheel of conductor's side of the said truck was at a distance of 5 ft. from the wall of the bridge. So also driver's side front wheel of the tanker was at a distance of 12 1/2 ft. and rear side wheel was at a distance of 14 1/2 ft. from the southern side wall of the bridge. It is pertinent to note that this document clearly makes mention of the fact that the conductor's side indicator light of the tanker was on even at the time of recording of the spot panchanama This panchanama also goes to show that the driver's side front wheel of the S.T. Bus was at a distance of 12 ft. from the northern side wall of the bridge while conductor's side front wheel of the bus was at a distance of 41/2 ft. from the southern side wall of the bridge and that driver's side rear wheel of the bus was at a distance of 41/2 ft. from the northern wall of the bridge. It further goes to show that the bus was standing in a slanting position. It appears from this document that front portions of both the vehicles were extensively damaged. This panchanama was recorded soon after the accident. From the description of the accident given in the spot panchanama, which stands unchallenged, it can safely be inferred that the driver of the S.T. Bus in question was rash and negligent in driving it and had he exercised reasonable care and caution in driving the bus, the accident in question would have been averted but unfortunately, this was not done. The very fact that there were tyre marks on the road upto 58 ft. behind the tanker indicates that the driver of the tanker took a precaution to stop it but as the bus was proceeding at a high speed, its driver lost control over it due to which it first dashed against the parapet wall and then against the tanker.
21. On the facts made out, to my mind the doctrine of 'res ipse loquitor' means 'accident speaks for itself' or 'tells its own story' is attracted and, therefore, it was for the MSRTC to show that the accident did not take place due to the negligence of the driver of the bus. In order to prove the innocence of the driver of the S.T. Bus MSRTC had examined one witness, non-applicant No. 1, Surendrasingh, a conductor of the S.T. Bus in question. It is no doubt true that this witness had deposed that at the relevant time the S.T. Bus was proceeding at a speed of 40 kms. per hour and according to him, due to bursting of tyre of tanker, the driver of the said tanker lost control over it and dashed against the bus. However, during his cross-examination he admitted that he could not see the complete front view of the bus when the accident occurred. This fact itself indicates that his version to the effect that the driver of the tanker lost control over it due to bursting of tyre is difficult to be believed, particularly when there is nothing on record to show that the said tyre got burst before the accident. In view of this, the possibility that it might have burst after the accident cannot be ruled out. This witness has also admitted that the wall of the bridge was damaged due to a dash given by the front portion of driver's side of the bus. On careful scrutiny of the evidence of this witness, it seems that his version to the effect that the S.T. Bus was proceeding at a speed of 40 kms. per hour and the accident took place due to bursting of tyre of the tanker is neither consistent with the facts narrated in the spot panchanama nor supported by other independent evidence and, therefore, in my opinion, his version is not safe to be relied upon. If his evidence is discarded then there is nothing on record to show that the driver of the S.T. Bus in question was not rash and negligent in driving it. Therefore, it can safely be concluded that the accident in question took place because of rash and negligent driving of the offencing S.T. Bus by its driver and Manharlal died as a result of the said accident.
22. In view of the above, the question of contributory negligence does not arise and, therefore, in my opinion, the Tribunal erred in holding that there was a contributory negligence on the part of the driver of the tanker as well as the driver of the S.T. Bus and apportioning the contributory negligence in the ration of 50:50. In the facts and circumstances of the case at hand, in my opinion, if such finding is upheld, it will result in perpetuation of an injustice and, therefore, I think that this Court should interfere to set right the said mistake in the interest of justice. Similar view has been taken by Kerala High Court in Oriental Insurance Company Ltd. v. Mary Pushpam and others, 1997(2) T.A.C. 397 (Kerala) relied upon by the learned Counsel for the appellant in First Appeal No. 166/85. I would accordingly hold that the deceased Manharlal was not liable for contributory negligence. The result of the said finding is that MSRTC would not be entitled to get any compensation in M.V.C. No. 50/82 filed by it against "M/s. Nitin Transport" and United India Insurance Company and the same will have to be dismissed and the First Appeal No. 166/85 filed by "M/s. Nitin Transport" will have to be allowed.
23. So far as the claim for damages made by "M/s. Nitin Transport" bearing M.V.C. No. 49/82 is concerned, admittedly, the said firm has settled its claim finally with United India Insurance Company in respect of the repairs of the tanker. A.W. 1 Vallabhji, one of the partners of "M/s. Nitin Transport" has in very clear terms admitted that Tata Company estimated the loss of the tanker to the extent of Rs. 1,05,000/-, out of which "M/s. Nitin Transport" paid Rs. 43,538/- and the rest of the amount was paid by the Insurance Company. Shri G.B. Lohiya, the learned Counsel for the appellant in First Appeal No. 169/85, has also admitted that the appellant "M/s. Nitin Transport" has finally settled its claim for the repairs of tanker by accepting Rs. 62,414/from Insurance Company. However, according to Shri Lohiya, in view of the provisions of section 135 of the Transfer of Property Act and section 41 of the Indian Contract Act, though "M/s. Nitin Transport" has settled its claim for repairs of the tanker with Insurance Company, its right against MSRTC for the same still subsists and it is not barred. For this, he placed reliance on a decision in Sri Sarada Mills Limited v. Union of India representing Central Rly. and others which was affirmed by the Apex Court in . In , wherein the Apex Court held as below:
"Where the Mill on satisfaction of its claim for the loss and damages by the insurance company has assigned all rights against the Railway Administration in favour of the insurer as a subrogee and the letter of subrogation contains intrinsic evidence that the Mill would give the insurance company facilities for enforcing rights but the insurance company has chosen to allow the Mill to sue:
Held that the cause of action of the Mill against the Railway Administration did not perish on giving the letter of subrogation. The Mill was competent to institute and maintain the suit against the Railway Administration. The Mill could be answerable and accountable to the insurance company for the moneys recovered in the suit to the extent the insurance company paid the respondent Mill."
However, in the case at hand, there is neither any letter of subrogation nor Insurance Company chose to allow the appellant to sue against MSRTC, and, therefore, the facts of the present case being not identical to that of the case cited supra, in my view, the ratio laid down by the Apex Court in the aforesaid decision is not applicable to the case at hand and, hence in my opinion, the Tribunal has rightly held that once the appellant "M/s. Nitin Transport" has accepted Rs. 62,414/from the Insurance Company in full and final settlement of its claim for repairs of the tanker, it cannot again claim any amount in this regard from MSRTC. However, considering the claim of the appellant "M/s. Nitin Transport" as regards other items, i.e. for carrying the dead body from Akola to Rajkot and loss of income as the tanker was lying idle for a particular period, the Tribunal has rightly come to the conclusion that the appellant "M/s. Nitin Transport" is entitled to claim Rs. 18,750/- from MSRTC. However, the Tribunal awarded only 50% of the said amount i.e. Rs. 9375/- to the said firm holding that there was contributory negligence of the drivers of both the vehicles in the ratio of 50-50 but since I have held above that the accident in question took place solely because of the rash and negligent driving of the S.T. Bus by its driver, the question of contributory negligence does not arise and, therefore, the appellant "M/s. Nitin Transport" is entitled for the entire amount of Rs. 18,750/- towards damages from MSRTC.
24. During the course of argument, Shri Lohiya, the learned Counsel for the appellant "M/s. Nitin Transport", submitted that though the appellant is entitled for interest at the rate of 12% per annum the Tribunal erred in awarding the same at the rate of 9% per annum only considering the ratio laid down by the Apex Court in Jagbir Singh & others v. General Manager, Punjab Roadways and others, wherein the Apex Court was pleased to grant interest at the rate of 12% per annum on the amount of compensation. I find much substance in the aforesaid submission made by Shri Lohiya and, therefore, in my view, the Tribunal erred in awarding interest at the rate of 9% per annum instead of 12% per annum and hence the award passed by the Tribunal in Motor Vehicle Case No. 49/82 needs to be modified accordingly.
25. As regards the claim for compensation made by the legal representatives of the deceased Manharlal in M.V.C. No. 48/82 the Tribunal has calculated the amount of compensation at Rs. 64,800/- by applying a multiplier of 18. So far as the application of multiplier as 18 by the Tribunal is concerned, Shri R.S. Agrawal, the learned Counsel for the appellants, has submitted that he has no objection for the same. However, according to him, the Tribunal erred in treating the contribution of the deceased to his family as Rs. 300/- per month. I have carefully gone through the entire evidence on record and the award passed by the Tribunal. In the absence of any concrete and satisfactory evidence about the net monthly income of the deceased Manharlal, in my view, the Tribunal has rightly held that his contribution towards his family was Rs. 300/- per month, because the evidence of A.W. 1 Rasilaben, the widow of the deceased and A.W. 2 Ramji, co-driver of the tanker, in this behalf is vague and not clear and, therefore, the amount of compensation of Rs. 64,800/- fixed by the Tribunal appears to be just, fair and reasonable.
26. It is further submitted by Shri R.S. Agrawal, the learned Counsel for the appellants that the Tribunal erred in not granting any amount on account of mental agony though the family members suffered a lot of mental agony on account of unfortunate death of Manharlal. For this, he placed reliance on the decision in Krishna and others v. Pannalal and others, reported in 1997(2) T.A.C. 454 (M.P.). It cannot be disputed that the widow, the mother and the children of the deceased Manharlal must have suffered a lot of mental agony on account of unfortunate and untimely death of Manharlal-the only earning hand in their family. However, nothing has been awarded by the Tribunal under this head. Considering the view taken by Madhya Pradesh High Court in a decision cited supra in my view, the amount of Rs. 15,000/- would be reasonable, fair and sufficient for mental agony suffered by the appellants, i.e. the L.Rs. of the deceased Manharlal and, therefore, the appellants are entitled to get Rs. 15,000/- on this count in addition to the aforesaid amount already awarded to them by the Tribunal.
27. I also find that though the Apex Court time and again held that in Motor Accidents' Claims the claimants are entitled to get interest at the rate of 12% per annum the Tribunal erred in awarding interest in this case at the rate of 9% per annum on the amount of compensation.
28. Since I have held above that the accident occurred due to the negligence of the driver of the S.T. Bus and there was no contributory negligence on the part of the driver of the tanker, the appellants are entitled to get the entire amount of compensation of Rs. 64,800/- (plus) Rs. 15,000/- = Rs. 79,800/- together with interest at the rate of 12% per annum from the respondents Nos. 1 & 2 from the date of application till its complete realisation with proportionate costs. The First Appeal No. 192/85, therefore, needs to be allowed to this extent.
29. In the result, the following order is passed First Appeal No. 166/85 is allowed. The award passed by the Tribunal in Motor Vehicle Case No. 50/82 is hereby quashed and set aside. The claim made by MSRTC bearing M.V.C. No. 50/82 stands dismissed. No order as to costs.
First Appeal No. 169/85 is partly allowed. The award passed by the Tribunal in M.V.C. No. 49/82 is modified and it is hereby ordered that the respondents Nos. 1 & 2 shall pay Rs. 18,750/- to the appellant "M/s. Nitin Transport" together with interest at the rate of 12% per annum from the date of application till its complete realisation with proportionate costs throughout. The amount already paid shall be deducted from the aforesaid amount of compensation.
First Appeal No. 192/85 is partly allowed. The award passed by the Tribunal in Motor Vehicle Case No. 48/82 is modified and it is hereby ordered that the respondent Nos. 1 & 2 shall pay Rs. 79,800/- to the appellants towards compensation together with interest at the rate of 12% per annum from the date of application till its complete realisation along with the proportionate costs throughout. The said amount is inclusive of the amount of compensation payable under section 92-A of the Motor Vehicles Act. The amount already paid to the appellants shall be deducted from the aforesaid amount. So far as the apportiontment of the additional amount of compensation is concerned, the Tribunal shall consider and decide the same after the said amount is deposited by the respondents Nos. 1 & 2 in the office of the Tribunal.