Manorama Wd/O Vijay Dankhade And ... vs Lukmanshah Kasamshah And Ors.
2004 Latest Caselaw 507 Bom

JUDGMENT

S.T. Kharche, J.

1. The original claimants, who are the legal representatives of deceased Vijay Dankhade, have filed this appeal being aggrieved by the judgment and Award dated 23-2-1995 passed by the Member, Motor Accident Claims Tribunal (Mr. J. H. Bhatia) in Claim Petition No. 48 of 1989, whereby the Tribunal held that the accident occurred due to contributory negligence and as such the awarded total compensation of Rs. 1,12,500/- with interest at the rate of 12% per annum from the date of the application till realisation, which is stated to be grossly inadequate.

2. Brief facts are required to be stated as under :

Respondent No. 1 is the driver of the truck bearing registration No. MHV 6230 and this vehicle is admittedly owned by respondent No. 2 and the said vehicle has been duly insured with respondent No. 3 for the period 22-10-1988 to 21-10-1989. On the fateful day, i.e. on 8-5-1989, at about 2-00 p.m., the deceased Vijay was proceeding on his bicycle on Amravati road, near Shegaon chowki, and at that time the truck involved in the accident had come from his back side and gave violent dash to him as a result of which he had fallen down in the middle of the road and sustained grievous injuries. He was removed to the hospital. One Arun Kale had lodged the first information report at the police station Gadgenagar, Amravati, on the basis of which offence bearing Crime No. 237 of 1989 under Sections 279 and 338 of Indian Penal Code was registered against the driver of the truck. The victim succumbed to the injuries on 8-5-1989 and post mortem examination was carried out on the same day itself. The doctor, who performed the post mortem examination, opined that the probable cause of death was shock as a result of rupture of heart and other multiple fracture and vital organs leading to severe haemorrhage. The claimant No. 1 is the widow, claimant No. 2 is the minor daughter and claimant No. 3 is the minor son of the deceased. They had filed Claim Petition before the Accident Claims Tribunal on the contentions that the accident occurred due to rash and negligent driving of the truck involved in the accident and that respondent No. 1 was solely responsible for the accident. It is contended that the age of the deceased was 38 years and he was working as a Laboratory Assistant drawing a monthly salary of Rs. 1,718/- and after deducting the personal living expenses the claimants were entitled to the compensation of Rs. 3,25,000/-. The respondents resisted the claim by filing written statement and contended that the accident occurred due to contributory negligence of the deceased who was riding the bicycle in a zig-zag manner on the road. It is contended that the deceased cyclist after the dash given to him had fallen on the middle of the road and, therefore, he was equally responsible for causing the accident. However, it is contended that since the accident occurred due to the negligence of the cyclist, the claimants are not entitled to receive any kind of compensation. On the aforesaid pleadings, the parties led evidence and the Tribunal on considering the evidence adduced by the parties, has recorded the finding that the accident occurred due to the contributory negligence of the truck driver as well as the victim and he attributed the negligence in the ratio of 75% and 25% on the part of the truck driver and the victim respectively. The Tribunal also recorded the finding that the deceased was drawing the monthly salary of Rs. 1,718/- and after deducting the living expenses assessed the dependency at the rate of Rs. 900/- per month. The Tribunal applied the multiplier of 12 years purchase factor and after deducting 25% on account of contributory negligence, awarded the total compensation of Rs. 1,12,500/-. This Award passed by the Tribunal is under challenge in this appeal.

3. Mr. Sadavarte, learned counsel for the claimants, contended that the Tribunal has committed an error in coming to the conclusion that the accident occurred due to the contributory negligence of the deceased. He contended that the breadth of the tar road was 10 feet having kuchcha strips on either side of the road and the truck had given dash to the deceased's cycle from the back side while overtaking the bicycle and in such a situation the finding of the Tribunal that the accident occurred due to contributory negligence is perverse. He contended that though the deceased cyclist had fallen on the middle of the road, he was not going in a zig-zag manner and the respondent No. 1 Lukmanshah has omitted to depose in examination-in- chief that the victim was riding the bicycle in a zig-zag manner. He contended that the material brought on record in the cross-examination of the driver would show that the accident occurred due to sole negligence of the truck driver and, therefore, the impugned Award passed by the Tribunal cannot be sustained in law.

4. Mr. Sadavarte, learned counsel, further contended that admittedly the deceased was working as a Laboratory Assistant and was drawing the salary of Rs. 1,718/- per month. He contended that the claimants are entitled to receive compensation of Rs. 3,25,000/- because this is a case wherein the accident occurred due to sole negligence of the truck driver and moreover the Tribunal has committed an error in adopting the multiplier of 12 years purchase factor. He contended that after deducting l/3rd on account of personal living expenses the Tribunal ought to have assessed the loss of dependency at Rs. 1,000/- and ought to have adopted the multiplier of 16 and after awarding the compensation in the conventional sum for the loss of consortium, mental agony and sufferings, the grant of compensation of Rs. 3,25,000/- would have been just, reasonable and fair. He contended that the compensation awarded by the Tribunal is grossly inadequate and, therefore, the impugned Award cannot be sustained in law, and the appeal may kindly be allowed.

5. Mr. Thakur, learned counsel for the respondents, contended that the truck driver Lukmanshah has been examined whose evidence would indicate that the victim was riding the bicycle on the road in a zig-zag manner and that he had fallen down in the middle of the road. He contended that the speed of the truck was about 20 km. per hour and having regard to the breadth of the road, the driver had exercised due care and skill in order to avert the accident, but since the deceased cyclist was riding the bicycle in a zig-zag manner, the truck driver could not avoid the accident. He contended that the claimants did not examine any eye witness to show that the accident occurred due to the negligence of the truck driver and, therefore, adverse inference may be drawn against them. He contended that this is a case of contributory negligence and the Tribunal was perfectly justified in coming to the conclusion that the accident occurred due to the negligence on the part of the deceased as well as on the part of the truck driver. He contended that negligence is categorised either a contributory or composite. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of the parties and, therefore, in the present case, there is no reason for disturbing the finding of the Tribunal that the accident occurred due to the contributory negligence. In support of these submissions, he relied on the decision of the Supreme Court in the case of Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr., .

6. Mr. Thakur further contended that the Tribunal has correctly assessed the loss of dependency and chosen correct multiplier after taking into consideration the age of the deceased as well as the age of the claimants and no fault could be found with the Award. He contended that the Tribunal has rightly rejected l/3rd from the salary of the deceased on account of personal expenses and awarded the compensation after deducting 25% on account of contributory negligence. He contended that the Award of Rs. 1,12,500/- is just, reasonable and fair and no interference into the same is warranted. He contended that in such circumstances the appeal may kindly be dismissed with costs.

7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the accident occurred on the road which was leading from Gadgenagar to V.M.V. college, Amravati. It is also not in dispute that the truck MHV 6230 was being driven by respondent No. 1 on that date. It is also not in dispute that the truck had given dash to the deceased who was riding a bicycle from the back side while trying to over take the bicycle. It is also not in dispute that one Arun Kale had lodged the first information report at Gadgenagar police station on the basis of which the truck driver has been criminally prosecuted. It is also not in dispute that the truck driver did not stop at the site of the accident after giving dash to the victim and he directly went to the police station along with his truck.

8. Perusal of the spot panchanama would reveal that the breadth of the tar road was 10 feet having kuchcha strips on either side of the road and when police visited the spot of incident on the same day, i.e. 8-5-1989, at about 2-20 p.m., they saw that the deceased was lying in the middle of the road in an injured condition and he was immediately shifted to Irwin Hospital. The bicycle was lying on the left side of the road and blood stains were noticed at the distance of 4 feet from the tar road border of the right side. It would further reveal that the truck was not made stationary on the spot of accident and, therefore, the stationary position of the truck could not be noted down in the spot panchanama.

9. At this juncture, it may be useful to reproduce Section 134 of the Motor Vehicles Act, 1988. It contemplates as under :

"134. Duty of driver in case of accident and injury to a person . - When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in-charge of the vehicle shall -

(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reason able steps to secure medical attention for the injured person, (by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities), unless the injured person or his guardian, in case he is a minor, desires otherwise;

(b) given on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence;

[(c) give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely :-

(i) insurance policy number and period of its validity;

(ii) date, time and place of accident;

(iii) particulars of the persons injured or killed in the accident;

(iv) name of the driver and the particulars of his driving licence

Explanation.- For the purposes of this section, the expression "driver" includes the owner of the vehicle.]

10. Bare reading of the aforesaid provision of law would reveal that it is the duty cast upon the driver as well as the owner of the vehicle to make a report of the accident at the nearest police station immediately and also to take reasonable steps to secure the medical treatment. In the present case, the driver did not lodge the first information report after reaching the police station for the reasons best known to him. Though he has stated that on the spot of incident, abruptly the people began pelting stones and one stone had hit him and he stopped the truck, there is no evidence to show that the driver was injured because of the pelting of stones by the people. In the circumstances, it is not possible to accept the version of the driver as trustworthy who did not care for reporting the matter to the police by lodging the first information report. One Arun Kale had to lodge the first information report on the basis of which the truck driver has been criminally prosecuted. Therefore, it is quite obvious that the truck driver was quite negligent in not reporting the matter to the police station at the earliest possible opportunity and to get the medical treatment to the injured.

11. The driver Lukmanshah did not whisper in the examination in-chief that the deceased was riding the bicycle and was going in a zig-zag manner. This material has been brought on record in the cross-examination. What is relevant to note is that the driver has stated that he does not know as to whether the cyclist was to the left or right side of the truck when he overtook him. Having regard to the breadth of the road and when there is no evidence to show that there was intervention by any other vehicle at the time of the accident, the truck driver ought not to have overtaken the bicycle at that time. It is relevant to note that the truck had given dash to the cyclist from the back side and this fact is sufficient to draw a conclusion that the accident occurred due to the sole negligence of the truck driver. In such circumstances, it is not possible to accept the contention of the learned counsel for the respondents that the deceased was also responsible for the said accident as he was going on the bicycle in a zig-zag manner.

12. The Tribunal has observed that the breadth of the tar road was only 10 feet with a katcha planks to both the sides. The cycle was lying across the road towards the left side while deceased himself had fallen in the middle of the road. Blood stains were found at the distance of 4 feet from the right edge of the tar road and, therefore, possibility cannot be ruled out that when he was driving the cycle in a zig-zag manner, he might have abruptly come on the road and the truck driver could not have controlled and dashed against the cycle. These observations of the Tribunal are based on the assumption and presumption and appears to be perverse and the reasoning adopted is obviously fallacious because the Tribunal has completely lost sight of the fact that the truck had given dash to the cyclist from back side and that is in the process of overtaking the bicycle. In such circumstances, the finding of the Tribunal that the negligence attributable to the cyclist could be assessed to the extent of 25%, cannot be sustained in law.

13. In Municipal Corporation of Greater Bombay, , cited supra, it has been held in paras 6 and 7 as under :

"Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, Courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise."

14. There can be no dispute so far as the ratio laid down by the Apex Court in the aforesaid case is concerned. In that case the accident was the result of the wrongful act on the part of the cyclist also. When the driver of the vehicle saw the cyclist coming from the front side and on the wrong side, he immediately applied the brakes and halted the bus. Despite this, the cyclist was unable to control the cycle and dashed against the bus from the right corner of the bus; as a result he fell down. Such is not the present case. In the case in hand, the deceased was going on bicycle and he has been hit from the back side. The statement of the driver brought in the cross-examination that the cyclist was going in a zig-zag manner has no relevance at all because admittedly the driver was trying to overtake the bicycle at the time of the accident and in that process had given violent dash to the bicycle from the back side. Therefore, it is obvious that the finding of the Tribunal that the deceased cyclist was negligent to the extent of' 25% cannot be upheld. On close scrutiny of the facts and circumstances, this Court is of the considered view that the accident occurred due to the rash and negligent driving of the truck driver and he was solely responsible for causing the accident and, therefore, the Tribunal was not justified in deducting 25% of the amount of compensation from the Award on account of alleged negligence and the Award passed by the Tribunal has resulted into miscarriage of justice.

15. Now coming to the quantum of compensation, it is not in dispute that the deceased was working as a Laboratory Assistant and drawing a monthly salary of Rs. 1,718/-. It is also not in dispute that the age of the deceased was around 38 years at the time of the accident and the age of the claimant widow was 36 years and the age of the daughter was 15 years and that of the son was 11 years. The age of the deceased shown in the post mortem report is around 38 years. In such circumstances, it is not possible to accept that the multiplier of 12 years purchase factor adopted by the Tribunal was in any way unreasonable.

16. In this context, reference may be had to the decision of the Supreme Court in the case of U.P. State Road Transport Corporation v. Trilok Chandra and Ors., wherein it has been observed in para 18 as under :

"We must at once point out that the calculation of compensation and the amount worked out in the Schedule suffer from several defects. For example, in item No. 1 for a victim aged 15 years, the multiplier is shown to be 15 years and the multiplicand is shown to be Rs. 3,000/-. The total should be Rs. 3,000/- x 15 = Rs. 45,000/- but the same is worked out at Rs. 60,000/-. Similarly, in the second item the multiplier is 16 and the annual income is Rs. 9,000/-; the total should have been Rs. 1,44,000/- but is shown to be Rs. 1,71,000/-. To put it briefly, the Table abounds in such mistakes. Neither the Tribunals nor the Courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasise is that the multiplier cannot exceed 18 years purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as Courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies' case."

17. In view of the aforesaid observations of the Supreme Court, it is quite obvious that the multiplier of 12 years' purchase factor adopted in the present case, having regard to the age of the deceased as well as to the age of the dependants cannot be said to be on the lower side.

18. However, it would reveal from the observations of the Tribunal that it has deducted l/3rd on account of personal living expenses and assessed the loss of dependency at Rs. 900/- and adopted the multiplier of 12 years and worked out the total compensation of Rs. 1,29,600/-. There is no reason for this Court to take a different view of the matter and this Court is of the considered opinion that the computation of the loss of dependency by the Tribunal was totally correct and no interference into the same is warranted.

19. So far as the loss of consortium, mental agony and suffering are concerned, the Tribunal has awarded in the conventional sum of Rs. 20,400/- and there is no reason as to why this amount should not be awarded to the claimants on account of loss of consortium, mental agony and suffering. Therefore, the total amount of compensation would work out to Rs. 1,50,000/- This Court is, therefore, of the firm opinion that the award of Rs. 1,50,000/- would be just, fair and reasonable in the facts and circumstances of the present case and direct the respondents to pay the same to the claimants after deducting the amount already paid.

20. So far as grant of interest is concerned, this Court may usefully refer the decision of the Supreme Court in the case of Kaushnuma Begum v. New India Assurance Co. Ltd., , wherein it has been observed in para No. 23 that "now we have to fix up the rate of interest. Section 471 of the M. V. Act empowers the Tribunal to direct that 'in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf.1 Earlier, 12 per cent was found to be the reasonable rate of simple interest. With a change in economy and the policy of the Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9 per cent on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9 per cent per annum from the date of the claim made by the appellants. The amount of Rs. 50,000/- paid by the insurance company under Section 140 shall be deducted from the principal amount as on the date of its payment and interest shall be recalculated on the balance amount of the principal sum from such date.

21. In view of the aforesaid ratio laid down by the Apex Court, in the present case also award of interest at 9 per cent per annum from the date of the petition till realisation after deducting the amount on account of no fault liability as well as the amount of the Award which has already been paid would meet the ends of justice. There is no dispute that the truck involved in the accident was duly insured with respondent No. 3 - United India Insurance Co. Ltd. and, therefore, it follows that the Insurance Company would be liable to indemnify the owner. Thus, the impugned award is modified to the aforesaid extent and the appeal is partly allowed with proportionate costs.