Smt Sarla
Dixit & Anr Vs. Balwant Yadav & Ors [1996] INSC 342 (29 February 1996)
Majmudar
S.B. (J) Majmudar S.B. (J) Bharucha S.P. (J) S.B. Majmudar, J.
CITATION:
1996 AIR 1274 1996 SCC (3) 179 JT 1996 (3) 252 1996 SCALE (2)802
ACT:
HEAD NOTE:
The
appellants, who were the original claimants in Claim Petition No.9 of 1976
before the Motor Accidents Claims Tribunal, Gwalior, have felt aggrieved by the
order passed by the High Court of Madhya Pradesh Jabalpur, Bench Gwalior in
Civil Misc. Appeal No.174 of 1977 by which, according to the appellants, the
High Court only marginally enhanced the compensation payable by respondents
nos.1 and 2 to the appellants. They have obtained special leave to appeal under
Article 136 of the Constitution of India from this Court and that is how this
appeal was placed for final hearing before us.
Introductory
Facts ------------------ A few relevant facts leading to these proceedings may
be noted at the outset. Appellant No. 1 is the widow of late Captain Rama Kant Dixit
who died on 16th March
1975 in a road
accident. Appellant No.2 was the minor daughter of appellant no.1 who by now
has become major as she was aged 14 years in 1985 when Petition for Special
Leave to Appeal was moved in this Court. It is the case of the appellants that
late Capt. Rama Kant Dixit was hit by the offending truck owned by respondent
No. 1 which was driven at the relevant time by respondent no.2. The truck was
insured against third party risk by respondent no.3. That on the relevant date
of the accident the deceased was aged 27 years and was serving as Captain in
Indian Army. He was going on 16th March 1975
at about 11.00 a.m. from Chandra Prasth Colony side
towards Mall Road, Morar, within the city of Gwalior. That at that time respondent no.2
was driving the aforesaid truck and was coming from the side of Gola-Ka- Mandir
and was proceeding towards a locality known as J&K.
The
said road was a public road admeasuring 25 ft. in width and was running from
west to east. The truck was proceeding from west to east going towards eastern
side where locality J&K was situated. On the said roads intersection no.7,
another public road, was proceeding from north to south and it was known as Indraprastha Road. The deceased at the relevant time
was driving a scooter carrying a pillion rider, appellants' witness no.7 one Ramji
Sharma. It is the case of the appellants that while the scooter had entered the
intersection and was proceeding southwards on the said road respondent no.2
driving the truck from the western side came in high speed and dashed against
the scooter resulting in instantaneous death of appellant no. 1's husband Capt.Rama
Kant Dixit. On account of the said accident the appellants having lost the sole
bread winner filed the aforesaid Claim Petition before the Gwalior Tribunal
under Section 110A of the Motor Vehicles Act, 1939- In the said Claim Petition
originally appellant no.1's mother-in-law, that is, mother of deceased Rama
Kant Dixit was also joined as one of the claimants but pending the proceedings,
she expired and the appellants continued the Claim Petition also as her heirs
with the result that thereafter remained as claimants only the present two
appellants. The claimants put forward total claim of Rs.6,12,524/- on various
heads against the respondents However, the Tribunal after computing the
compensation payable to the appellants sliced it down by 75% on the ground that
deceased Rama Kant was guilty of contributory negligence to the extent of 75%
and the truck driver was negligent only to the extent of 25% and awarded in all
Rs.42,569/- to the appellants. Respondents nos.1 and 2 were made liable to make
good the said amount.
Respondent
no.3, the insurance company was exonerated by the Tribunal as it was found that
at the relevant time the offending truck was being driven by respondent no.2 who
was not having any driving licence. The appellants being aggrieved by the said
award of the Tribunal preferred the aforesaid appeal before the High Court of
Madhya Pradesh, Jabalpur, Bench Gwalior. It may be noted
that so far as respondents nos.1 and 2 were concerned they preferred Cross
First Appeal No.178 of 1977 challenging the award of the Tribunal against them
and also to the extent respondent no.3 was exonerated of its liability to meet
the awarded claim.
Appellants
did not press their challenge to the finding of the Tribunal exonerating
respondent no.3, the insurance company, of its liability to meet the claim of
the appellants. So far as respondents nos. 1 and 2 are concerned, their
challenge to the award of the Tribunal exonerating respondent no.3, the
insurance company, was rejected by the High Court. Consequently, the only
contest in appeal before the High Court centered round the question about the
computation of proper compensation to be awarded to the appellants which in its
turn also included the question whether any amount could be sliced down from
the computed compensation on the ground of contributory negligence of deceased Rama
Kant.
The
High Court, therefore, addressed itself on these two main issues and came to
the conclusion that the appellants were entitled to get total compensation of
Rs.54,000/- and that nothing was required to be sliced down from the said
amount as deceased Rama Kant was not guilty of any contributory negligence and
the entire negligence rested on the shoulder of respondents no.2, driver of the
truck and consequently respondent no.2 and the owner of the truck, respondent
no. 1 were liable to meet the claim of compensation awarded to the appellants.
The High Court ordered that Rs.54,000/ shall carry simple interest @ 6% from
the date of the Claim Petition, that is 10th July 1975 till 13th October 1975
and then from 19th January 1976 until full realization. The claimants' rest of
the claim against respondents nos. 1 and 2 was dismissed. Appellants' appeal
was also dismissed with costs against respondent nos.3, the insurance company.
It was also ordered that the appellants shall receive one-half costs of the
proceeding before the Claims Tribunal and one-half costs of the appeal from respondents
nos. 1 and 2 while they had to pay the cost of insurance company, respondent
no.3, in proceeding before the Claims Tribunal. Respondents nos. 1 and 2 had to
bear their own costs throughout.
Rival
Contentions ------------------ Tn the present appeal learned counsel for the
appellant-claimants vehemently contended that the award of compensation as
granted by the High Court in appeal was too much on the lower side. That the
High Court had not applied the correct principles in computing compensation in
such fatal accidents' cases and that once it was held that the accident was
caused on account of sole negligence of respondent no.2, driver of the truck,
looking to the young age of the deceased and his future prospects in life the
High Court should have granted appropriate compensation to the appellants. That
award of Rs. 54,000/- was to say the least extremely conservative and was too
low. On the other hand, learned counsel for respondents nos. 1 and 2 tried to
support the award of compensation as granted by the High Court and while
supporting the same learned counsel for the respondents also sought to
challenge the finding of the High Court that deceased Rama Kant was not guilty
of any contributory negligence. It was tried to be submitted that the Tribunal
was right in taking the view that deceased Rama Kant was guilty of contributory
negligence to the extent of 75% and consequently in any case the amount awarded
by the High Court was not required to be enhanced even though it may not be
reduced as there is no cross appeal by respondents nos. 1 and 2. So far as the
exoneration of respondent no.3, the insurance company, is concerned, the said
finding reached by the Tribunal as well as the High Court could not be assailed
by respondents nos. 1 and 2 as they have not filed any cross appeal before this
Court challenging that part of the appellate decision rendered by the High
Court against them.
In
view of the aforesaid rival contentions the following points arise for our determination
:
1.
What is the proper amount of compensation payable to the appellants on account
of the accidental death of deceased Rama Kent Dixit caused by the offending truck.
2.
Whether deceased Rama Kant had contributed towards the said accident by his own
negligence to any extent. 3. What final order.
We
shall consider these aforesaid points seriatim ;
Point
No.1 ---------- On the question of computation of proper compensation to be
awarded to the appellants certain well established facts on the record of this
case are required to be noted.
The
deceased was the only bread winner in the family of the appellants. He was cut
short in the prime period of life at the age of 27 by the accident caused by
the truck driver respondent no.2. He had put in seven years of military service
by that time. He was earlier a Lieutenant in the Army. then he was promoted to
the rank of Captain and was fully qualified for promotion to the rank of a
major at the time of his death. The certificate issued by Dy. Comdt. & OC Tps.
Rampal Singh showed that the deceased had obtained the following models during
active service in various operation areas :
(a)
Senya Seva Service Hedal.
(b) Sangram
Medal.
(c) Poorvi
Star.
(d)
25th Indept.. Anniversary Medal.
His
gross salary at the time of his death was Rs.1543/p.m.
He had
passed his M.A. examination at the time of his death.
He was
in the time scale of Rs.1000-50-1550. He had large number of years of military
service ahead of him which would have certainly taken him to higher echelons in
the military career. The evidence showed that he was a teetotaller. He did not
smoke or drink. This is established by the testimony of appellant no. 1. The
Claims Tribunal on the basis of the aforesaid evidence on record came to the
conclusion that on account of the untimely death of Rama Kant the appellants
suffered approximately a total monetary loss of Rs.1,70.2BS/-. But as the
Tribunal found that the deceased was 75% responsible for the accident the
appellants were awarded only 25% of Rs.1,70,238/- which came to Rs.42,569/-.
The High
Court in appeal took the view that out of the gross salary of Rs.1543/- p.m.
deceased Rama Kant would have spent on himself Rs.900/and from this an amount
of Rs.375/- would have been spent on the clothing of the deceased leaving
Rs.375/for the upkeep of the claimants per month.
Considering
the earning of the deceased from his salary and allowances from 1976 to 1996
the deceased would have spent a sum of Rs.1,28,131/- being 25; of the gross
emoluments on Appellants nos. 1 and 2. The average figure for 20 years came to
Rs.6406/- per annum. This was taken as the annual dependency multiplicand and
adopting the multiplier of ]5, figure of Rs.96060/- was arrived at. It was
noticed that family pension of Rs,200/- p.m. was available to appellant no. 1,
widow of the deceased. On that basis a figure of Rs.36,000/- was worked out by
adopting multiplier of 15 (that is to say) Rs.200/- multiplied by 12 which lead
to a figure of Rs.2,400/- multiplied by 15. These Rs.364000/- were deducted
from Rs.96,090/- and accordingly a figure of Rs.60,000/- was reached. 10%
deduction was thereafter effected from the said figure and accordingly an
amount of compensation of Rs.54,000/- was worked out. Learned counsel for the
appellants vehemently submitted that the aforesaid methods adopted by the
Tribunal as well as by the High Court for competition of compensation are not
scientific at all.
That
both for arriving at proper figure of multiplicand as well as multiplier the
High Court had adopted a very conservative approach. In this connection
reliance was placed on two decisions of this Court. In the case of Hardeo kaur
and Ors. v. Rajasthan State Transport Corporation & Anr. (1992) 2 SCC 567,
for computing compensation available to the claimant-dependents of deceased
Major in the military, who died at the age of 39 because of vehicular accident
the Court adopted multiplier of 24. Strong reliance was placed on the said
decision for adopting that multiplier. In our view on the peculiar facts of
that case the Court had adopted multiplier of 24. In paragraph 10 of the Report
no special reasons were assigned for adopting that multiplier. However, a
scientific basis for arriving at proper multiplicand and multiplier is supplied
by a latter decision of this Court in the case of General Manager, Kerala State
Road Transport Corporation, Trivandrum v. Susamma
Thomas (Mrs.) & Ors. (1994) 2 SCC 176. A Division Bench of this Court
consisting of M.N. Venkatachaliah, J.
(as
His Lordship then was) and G.N. Ray, J. considered in details appropriate method
for arriving at proper multiplicand and multiplier in fatal accident cases in
the light of decided cases in this country as well as in England and laid down
principles for computing compensation in motor vehicle accident cases. In
paragraphs 12 and 13 of the Report the following pertinent observations were made
:
"There
were two methods adopted for determination and for calculation of compensation
in fatal accident actions, the first the multiplier mentioned in Davies case
and the second in Nance v. British Columbia Electric Railway Co. Ltd.
The
multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing
the multiplicand by an appropriate multiplier. The choice of the multiplier is
determined by the age of the deceased (or that of the claimants whichever is
higher) and by the calculation as to what capital sum, if invested at a rate of
interest appropriate to a stable economy, would yield the multiplicand by way of
annual interest. In ascertaining this, regard should also be had to the fact
that ultimately the capital sum should also be consumed-up over the period for
which the dependency is expected to last." Thereafter on consideration of
cases decided by English Courts and also observations found in Halsbury's Laws
of England in vol.34, para 98, the Court laid down the test for adopting the
multiplier in such cases in paragraphs 16 and 17 of the Report as under :
"It
is necessary to reiterate that the multiplier method is logically sound and
legally well-established.
There
are some cases which have proceeded to determine the compensation on the basis
of aggregating the entire future earnings for over the period the life
expectancy was lost, deducted a percentage there from towards uncertainties of
future life and award the resulting sum as compensation. This is clearly
unscientific. For instance, if the deceased was, say 25 years of age at the
time of death and the life expectancy is 70 years, this method would multiply
the loss of dependency for 45 years - virtually adopting a multiplier of 45 -
and even if one-third or one-fourth is deducted there from towards the
uncertainties of future life and for immediate lump sum payment, the effective
multiplier would be between 30 and 34. This is wholly impermissible. We are,
aware that some decisions of the High Courts and of this Court as well have
arrived at compensation on some such basis. These decisions cannot be said to
have laid down a settled principle. They are merely instances of particular
awards in individual cases. The proper method of computation is the multiplier-
method. A departure, except in exceptional and extraordinary cases, would
introduce inconsistency of principle, lack of uniformity and an element of
unpredictability for the assessment of compensation. Some judgments of the High
Courts have justified a departure from the multiplier method on the ground that
Section 110-B of the Motor Vehicles Act, 1935 insofar as it envisages the
compensation to be 'just', the statutory determination of a 'just' compensation
would unshackle the exercise from any rigid formula. It must be borne in mind
that the multiplier method is the accepted method of ensuring a 'just'
compensation which will make for uniformity and certainty of the awards. We
disapprove these decisions of the High Courts which have taken a contrary view.
We indicate that the multiplier method is the appropriate method, a departure
from which can only be justified in rare and extraordinary circumstances and
very exceptional cases .
The
multiplier represents the number of years' purchase on which the loss of
dependency is capitalized. Take for instance a case where annual loss of
dependency is Rs. 10,000. If a sum of Rs. 1,00,000 is invested at 10% annual
interest, the interest will take care of the dependency, perpetually. The
multiplier in this case works out to 10. If the rate of interest is 5% per
annum and not 10% then the multiplier needed to capitalize the loss of the annula
dependency at Rs. 10,000 would be
20.
Then the multiplier, i.e., the number of years' purchase of 20 will yield the
annual dependency perpetually. Then allowance to scale down he multiplier would
have to be made taking into account the uncertainties of the future, the
allowances for immediate lump sum payment, the period over which the dependency
is to last being shorter and the capital feed also to be spent away over the
period of dependency is to last etc. Usually in English Courts the operative
multiplier rarely exceeds 16 as maximum. This will come down accordingly as the
age of deceased person (or that of the dependents, whichever is higher) goes
up." So far as the adoption of the proper multiplier is concerned, it was
observed that the future prospects of advancement in life and career should
also be sounded in terms of money to augment the multiplicand. While the chance
of the multiplier is determined by two factors, namely, the rate of interest
appropriate to a stable economy and the age of the deceased or of the claimant
whichever is higher, the ascertainment of the multiplicand is a more difficult
exercise. Indeed, many factors have to be put into the scales to evaluate the
contingencies of the future. All contingencies of the future need not
necessarily be baneful.
Applying
these principles to the facts of the case before this Court in the aforesaid
case it was observed that the deceased in that case was of 39 years of age. His
income was Rs.1,032/- per month. He was more or less on a stable job and
considering the prospects of advancement in future career the proper higher
estimate of monthly income of Rs.2,000/- as gross income to be taken as average
gross future income of the deceased and deducting at least 1/3rd therefrom by
way of personal living expenses, had he survived the loss of dependency, could
be capitalized by adopting the multiplicand of Rs.1,400/- per month or
Rs.17,000/- per year and that figure could be capitalized by adopting
multiplier of 12 which was appropriate to the age of deceased being 39 and to that
amount was added the conventional figure of Rs.15,000/- by way of loss of
consortium and loss of estate. Adopting the same scientific yardstick as laid
down in the aforesaid judgment, the computation of compensation in the present
case can almost be subjected to a well settled mathematical formula.
Deceased
in the present case, as seen above, was earning gross salary of Rs.1,543/- per
month. Rounding it upto figure of Rs.1,500/- and keeping in view all the future
prospects which the deceased had in stable military service in the light of his
brilliant academic record and performance in the military service spread over 7
years, and also keeping in view the other imponderables like accidental death
while discharging military duties and the hazards of military service, it will
not be unreasonable to predicate that his gross monthly income would have shot
up to at least double than what he was earning at the time of his death, i.e., upto
Rs.3,000/- per month had he survived in life and had successfully completed his
future military career till the time of superannuation. The average gross
future monthly income could be arrived at by adding the actual gross income at
the time of death, namely, Rs.1,500/- per month to the maximum which he would
have otherwise got had he not died a premature death, i.e., Rs 3,000/- per
month and dividing that figure by two. Thus the average gross monthly income
spread over his entire future career, had it been available, would work out to
Rs.4,500/- divided by 2, i.e., Rs.2,200/-.Rs.2,200/- per month would have been
the gross monthly average income available to the family of the deceased had he
survived as a bread winner. From that gross monthly income at least 1/3rd will
have to be deducted by way of his personal expenses and other liabilities like
payment of income tax etc. That would roughly work out to Rs.730/- per month
but even taking a higher figure of Rs.750/- per month and deducting the same by
way of average personal expenses of the deceased from the average gross earning
of Rs.2,200/- per month balance of Rs.1,450/- which can be rounded up to
Rs.1,500/- per month would have been the average amount available to the family
of the deceased, i.e., his dependents, namely, appellants herein. It is this
figure which would be the datum figure per month which on annual basis would
work out to Rs.18,000/-. Rs.18,000/-, therefore, would be the proper
multiplicand which would be available for capitalization for computing the
future economic loss suffered by the appellants on account of untimely death of
the bread winner. As the age of the deceased was 27 years and a few months, at
the time of his death the proper multiplier in the light of the aforesaid
decision of this Court in General Manager, Kerala State Road Transport
Corporation, Trivandrum (supra) would be 15. Rs.18,000/-
multiplied by 15 will work out to Rs.2,70,000/-. To this figure will have to be
added the conventional figure of Rs.15,000/- by way of loss of estate and
consortium etc.
That
will lead to a total figure of Rs.2,85,000/-. This is the amount which the
appellants would be entitled to get by way of compensation from respondents
nos.1 and 2 subject to our decision on point no.2.
Point
No.2 ---------- So far as the question of contributory negligence of deceased Rama
Kant is concerned, the photography of the place of accident is to be kept in
view. The accident occurred in the city of Gwalior, on the cross section of two roads. One road was proceeding from Gola-Ka-Mandir
situated on the western side and was running eastwards towards another locality
known as J&K. It was thus running from west to east. It was 25 ft. broad.
It was known as Road No.7. A narrow gauge railway line was running parallel to
the said road on its southern side. At one place on the northern border of road
no.7 converged another public road from north to south. The said road was
approaching Chandra Prasth Colony on the southern side. It is an admitted
position on record that the offending truck driven by respondent no.2 was
plying on road no.7 and was coming from Gola-Ka-Mandir side and was proceeding
towards J&K locality situated towards eastern side. Thus the truck was
coming on road no.7 from west to east. So far as the deceased was concerned he
was coming on a scooter along with the pillion rider on the north-south road
leading towards Chandra Prasth Colony. It is also on record that at the
intersection of the north- south road on which the scooter was travelling the
deceased was plying his scooter from north towards south. It has also been
found from the record that at the intersection of northsouth road with road
no,7 the scooterist Rama Kant had already entered the intersection and had come
almost half way so far as the breadth of road no,7 was concerned, In other
words the scooterist had already entered the intersection and was on the middle
of the said intersection when the truck coming from the west dashed with the
scooter, Evidence of appellants-witness no.7 Ramji Sherma shows that after Rama
Kant had crossed the center of road no.7 the offending truck coming from the
western side came with speed and dashed with the scooter. The result was that
the right side of the scooter dashed with the left side front wheel of the
truck. Witness Ramji Sharma, appellants-witness no.7 was the pillion rider on
the scooter, Therefore, he was in the best position to depose as to what had
actually happened on the spot, Witness Ramji Sharma stated that while
proceeding from north to south on the Chandra Prasth Colony road deceased Rama
Kant had already sounded the horn when he entered the intersection and he had
also given a hand signal to indicate that he intended to go across road no.7
for approaching the southern side of road no.7, having entered from the
northern side of the intersection. That at the relevant time there was no other
truck on road no.7 running from west to east. The exact spot of the accident on
the intersection of road no.7 with the north-south Chandra Prasth Colony road
3150 appears to have been well established on the record of the case. It has
been brought out in evidence that Rama Kant's scooter had a coat of green paint
and it was the left side of the truck's bumper and the truck's left front wheel
surface that showed green paint marks. The left head-light of the truck was
also found damaged after the accident. There was no evidence that right side of
the bumper of the truck bore any green paint marks or any damage as a result of
the collision between the truck and the scooter Witness Ramji Sharma did not
appear to have received any serious injuries. This was apparent from his
statement that he had been in his senses right from the time he was lifted off
the road upto the time he was removed in a car to the hospital. Dr Jain,
Appellants-witness no.3 who had performed post-mortem on the deceased had
deposed that he had found five ante-mortem external injuries on the dead body
of the deceased and they were all on his right side.
There
was abrasion on the right temple and the right side of the face. There was
another abrasion on the right side of the chest and the right shoulder with
fracture on the upper half of the right humerus. There was an abrasion on the
right side of the waist. There was another abrasion over right thigh and right
knee. The last abrasion was on the right leg and the right ankle with fracture
of the femur near the knee joint, This clearly indicated that the impact of the
front left wheel of the truck was on the right side of the scooter driver, Rama
Kant. That clearly showed that Rama Kant was travelling inside the intersection
on the north-south road from north to south when the truck which came from the
western side dashed with the scooter and threw off the scooter driver and the
pillion rider. It is, therefore, clearly established that while Rame Kant's
scooter had crossed the center of road no.7 the offending truck coming from the
western side dashed with the right side of the scooter- which was proceeding
across that road and was going towards the southern side of the intersection
having entered the same on the northern side of road no.7.
So far
as the exact place of impact on the intersection is concerned we may note that
the photographs Ex.P/11, P/8 and P/7 indicated that the scooter lay at the
distance of 11 ft. from the northern border of road no. 7. As seen earlier the
width of the road was 25 ft. The scooter was lying almost lengthwise on the
road with its rear wheel towards the west, that it, towards the direction from
which the truck had come and had approached the intersection. The scooter's
front portion was towards the west and its underside was towards the south. The
photographs also showed that the dead body of Rama Kant was lying slightly
diagonally across the width of the road. The head was pointing slightly to the
south-west of the center of the road. The distance between the scooter and the
dead body was 6 ft. In other words any one walking from west to east on road
no. 7 would have first passed by the dead body of Rama Kant and then would have
approached the fallen scooter. It was, therefore, clearly established that the
collision between he truck and the scooter had occurred somewhere near the
center of road no. 7. It showed that the scooter had already entered the
intersection from the northern border of road no. 7, had travelled up to 11 ft.
across the width of the road at the said intersection and but for the accident
it would have travelled further south and would have passed through the
southern outlet of the intersection. It, therefore, becomes apparent that when
the scooterist had entered the intersection from the northern side and had
covered almost half the distance of the width of that intersection the
offending truck came from the western side and dashed against the scooter and
threw it off along with the driver and the pillion rider. That indicated how
fast the truck would have been driven from west to east on the main road and
because of that speed the scooterist who had already crossed half the width of
the road, was thrown off. That also indicated that the driver of the truck,
respondent no.2 had not cared to ses the scooterist who had almost reached half
way across his path while he was proceeding from west to east on road no.7 and
without caring for the safety of the scooterist who would have been clearly
visible to him in the broad day light while he was coming from the western side
of the road and without least bothering for the safety of the scooterist
crossing the intersection. He almost ran over the scooter and threw it off. It
is true that the injuries noted by the doctor in the postmortem report did not
indicate that the deceased was run over by the wheel of the truck but the
severe impact caused by the accident all on the right side of the body of the
deceased indicated the fierce collision between the scooter and the front left
wheel of the truck. There would thus be two types of negligence on the part of
the truck driver,
(i) he
was proceeding with very high speed even though he was approaching an
intersection on that road; and
(ii)
the driver did not care to look out for the safety of the scooterist who had
already crossed half of the intersection and almost come to the middle of the
intersection and who would naturally be very much visible to the truck driver
coming from the western side and proceeding towards the east. The driver,
respondent no.2, did not care even to slow down his speed. If he had done so,
the unfortunate accident would not have taken place. This showed that either he
did not notice the scooterist who had come almost half way diagonally across
the breadth of the road at the intersection or that he might not have cared for
the safety of the scooterist shoo had come across his path. This was the most
reckless and unsafe driving resorted to by respondent no.2. The fact that even
after the accident he bad not slowed down his vehicle and went on driving with
great speed, is fully established by the further fact that even after the
accident, his vehicle could not stop there and then but had travelled further
and had gone upto 70 ft.
further
and had then stopped near the south-eastern side of the road after the
collision. The conclusion is, therefore, inevitable that respondent no.2 while
driving the offending truck was in a position to see in them broad day light
the scooterist Rama Kant who had already entered the intersection and was
almost half way in it, still had continued to drive recklessly in a totally
careless manner.
Because
respondent no.2 was not having a driving licence, he was a novice trying to
learn driving such heavy vehicle at the cost of such innocent victims like Rama
Kant. Being a novice he went on driving fast before approaching intersection of
road no.7 and could not control his vehicle by stopping it or by slowing it
down so as to avoid collision with the scooterist who had come across his way.
Resultantly
he dashed with the scooter in the center of road no.7 with the left side front
wheel of his truck which hit the right hand side of the scooterist Rama Kant
and his scooter. As seen above having thrown off the scooterist and the pillion
rider respondent no.2 could not control his vehicle which was in such speed
that he could bring it to a halt after travelling further to the extent of 70
ft. and then it proceeded towards the wrong side of the road and halted near
the southern side of road no.7 after the collision All these tell-tale facts
unequivocally point to one and only conclusion that it was the rash and
negligent driving by respondent no.2, a young boy aged 20, who was a novice
driver without a licence to drive such heavy vehicle, that had caused this unfortunate
accident. Deceased Rama Kant was not at all negligent and had not contributed
to the accident save and except to the extent of bringing his body for being
subjected to the impact of the on-coming truck. If at all, his only
contribution was that he became a victim of this accident by being on spot on
that fateful morning. It is, therefore, not possible for us to agree with the
contention of the learned counsel for respondents nos. 1 and 2 that deceased Rama
Kant had contributed to the accident by his own negligence to the extent of 75%
or even to the extent of any lesser percentage. On this evidence the High Court
was justified in reversing the finding of the Trial Court that deceased Rama
Kant was guilty of contributory negligence to the extent of 75%. It must be
held that deceased Rama Kant was not at all negligent and the entire cent
percent negligence rested on the shoulder of respondent no.2, driver of the
truck. It is also not possible to agree with the contention of learned counsel
for respondents nos.1 and 2 that deceased Rama Kant was guilty of breach of
Regulation (7) of Tenth Schedule of the Motor Vehicles Act. 1939. That
regulation read as under :
"7.
The driver of a motor vehicle shall, on entering a road intersection, if the
road enacted is a main road designated as such, give way to the vehicles
proceeding along that road, and in any other case give way to all traffic
approaching the intersection on his right hand." On the facts of the
present case it is well established from the evidence of pillion rider Ramji
Sharma, appellants- witness no 7 that while entering the intersection from the
northern side of road no.7 deceased had already sounded the horn and had also
given a hand signal to indicate that he intended to go across road no.7. There
was no occasion for him to halt and give way to the truck coming from the
western side and proceeding towards the eastern side of road no.7 for the
simple reason that Rama Kant had already entered the intersection and had travelled
almost half way across the breadth of road no.7. In the meantime the offending
truck came with great speed from the western side and dashed against the
scooter Regulation (7) could have been pressed in service against deceased Rama
Kant if it was shown that while entering the intersection, having seen the
on-coming truck from his right hand side he had not taken due precaution. Such
a situation, on the facts of the present case, is found to be absent. On the
other hand respondent no.2 driving the offending truck on the main road no.7
from west to east is shown to have committed breach of Regulation (6) of the
very same Schedule which read as under:
"6.
The driver of a motor vehicle shall slow down when approaching a road
intersection, a road junction or a road corner, and shall not enter any such
intersection or junction until he has become aware that he may do so without
endangering the safety of persons thereon." Respondent no.2 was required
to slow down while approaching the road intersection or junction and as he had
not done so but went on driving with full speed the offending truck which threw
off the scooterist who was already in the middle of the intersection, he was
guilty of breach of Regulation (6) of Tenth Schedule and had endangered the
safety of the persons crowing the said road at the relevant time.
Consequently
the recklessness and negligence in driving the offending truck at the relevant
time wholly rest on the shoulder of respondent no.2. Point No.2 is, therefore,
answered in the negative. Hence there is no question of slicing down any amount
from the compensation held payable to the claimants as per our findings on
point no.1 above.
Point
No.3 ---------- Now is the time for us to bring down the curtain. In view of
our findings on point nos. 1 and 2 above the appeal is allowed. The judgment
and order passed by the High Court as well as the Claims Tribunal are set
aside. The Claim Petition filed by the appellants is allowed against respondent
nos. 1 and 2 who are ordered to pay the total compensation of Rs.2,85,000/-.
The Claim Petition will stand allowed to that extent. On the said awarded
amount of Rs.2,85,000/- the respondent nos. 1 and 2 shall also pay 12% interest
from the date of the Claim Petition till payment of the aforesaid amount to the
appellants or its realization by them. The Claim Petition will stand dismissed
against respondent no.3, the insurance company. In view of the fact that the
success is divided between the parties there will be no order as to costs all
throughout.
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