Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Anr  Insc 531 (27 October 2003)
Raju & Arijit Pasayat
out of SLP (C) No. 5639 of 2003) ARIJIT PASAYAT,J
Municipal Corporation of Greater Bombay (hereinafter referred to as the
'Corporation') questions legality of the judgment rendered by learned Single
Judge of the Bombay High Court in the appellate side. The said appeal related
to a judgment and award passed by the Motor Accidents Claims Tribunal for
Greater Bombay (for short the 'Tribunal') adjudicating a claim petition under
Section 110-A of the Motor Vehicles Act, 1939 (in short the 'Act').
Kumar (hereinafter referred to as the 'deceased') lost life in a vehicular
accident which occurred on 15.8.1989. Vehicle No.MMK 6623, a bus belonging to
the Corporation was the offending vehicle. Claim of rupees six lakhs was made
by the parents of the deceased (respondents in this appeal). According to the
claimants, when the deceased was going by his bicycle suddenly the offending
vehicle dashed against him. The impact of the accident was so severe that the
deceased was thrown to some distance and sustained various serious injuries
which resulted in his death. The deceased was aged about 18 years at the time
a good student and would have entered to income earning services shortly. The
Corporation took the stand that the deceased had suddenly come from the left
side of the bus from Chembur Railway Station at a very high speed and instead
of taking left turn, took right turn in contravention of traffic regulations.
When the driver of the vehicle saw the cyclist coming on a 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. He was removed to the hospital
with the help of the conductor of the bus and other persons. Witnesses were
examined to show as to how the accident occurred and also on the compensation
aspect. The Tribunal noticed that as the case progressed, a significant change
was made in the stand taken by the Corporation. The driver was examined. He
stated that he was driving the vehicle at very slow speed. The deceased came
from the side of Chembur Station in the opposite direction and when he saw him
at a distance of 30 ft., he immediately applied the brakes, and halted the bus.
But the cyclist came and dashed against the front side of the bus. Since the
cyclist came from the wrong side of the bus, he sustained injuries which proved
fatal. The Tribunal held since the parents were claimants and came from a
respectable and educated family, it would not be improbable to conclude that
the deceased would have earned decently by taking an employment. By taking the
expected earning of Rs.3,000/-p.m. multiplier of 15 was adopted. Accordingly,
the quantum was fixed at Rs.5,60,000/- including loss of expectation of life.
As a lump sum was being paid, deduction of 25% was made and finally a sum of
Rs.4,01,250/- was awarded as compensation, with interest at 15% p.a.from the
date of application. The matter was carried in appeal to the Bombay High Court,
which by the impugned judgment held that the quantum fixed was proper. However,
interest was reduced from 15% to 12% p.a.
support of the appeal, learned Attorney General appearing for the Corporation
submitted that the High Court's judgment is vulnerable on more than one counts.
Firstly it is submitted that the parents being the claimants, the multiplier as
adopted is not proper. Secondly, this was a case where the accident occurred
more on account of deceased's negligence than that of the driver of the
offending vehicle. This is a clear case of contributory negligence. That being
so, the awarded amount cannot be maintained.
response, learned counsel for the claimants submitted that the award made is
just, fair and needs no interference.
which was stressed strenuously related to alleged contributory negligence.
Though there is no statutory definition, in common parlance 'negligence' is categorised
as either composite or contributory. It is first necessary to find out what is
a negligent act.
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 obligated to, or by doing something which a prudent
or reasonable man would not do. Negligence does not always mean absolute
carelessness, but want of such a degree of care as is required in particular
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.
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 and surrounding facts and circumstances have to be taken into
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 other's negligence. Whichever party could have avoided the
consequence of 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. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of
contributory negligence, courts have power to apportion the loss between the
parties as seems just and equitable. Apportionment in that context means that
damage are 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. Where a person is injured
without any negligence on his part but as a result of combined effect of the
negligence of two other persons, it is not a case of contributory negligence in
that sense. It is a case of what has been styled by Pollock as injury by composite
negligence. (See Pollock on Torts, 15th Edn. P.361).
this juncture, it is necessary to refer to the 'doctrine of last opportunity'.
The said doctrine is said to have emanated from the principle enunciated in Devies
v. Mann (1842 (10) M&W 546) which has often been explained as amounting to
a rule that when both parties are careless the party which has the last
opportunity of avoiding the results of the other's carelessness is alone
liable. However, according to Lord Denning it is not a principle of law, but
test of causation.
Davies v. Swan Motor Co. (Swansea) Ltd.
(1949 (2) KB 291). Though in some decisions, the doctrine has been applied by
courts, after the decisions of the House of Lords in The Volute (1922 (1) AC
129) and Swadling v. Cooper (1931 AC 1), it is no longer to be applied. The
sample test is what was the cause or what were the causes of the damage.
act or omission amounting to want of ordinary care or in defiance of duty or
obligation on the part of the complaining party which conjointly with the other
party's negligence was the proximate cause of the accident renders it one to be
the result of contributory negligence.
the driver may not have been in this case wholly responsible for the accident,
as contended, from the mere fact that the victim acted in contravention or a
traffic regulation alone complete immunity from liability of the driver or the
appellant corporation for the accident so as to disown totally responsibility
to compensate the injured or dependants of the victim cannot be accorded also.
Merely because there may have been breach of any traffic regulation, in the
absence of concrete, clinching, positive and legally acceptable material to fix
sole responsibility for the accident only on such injured/victim, which are
conspicuously absent on the facts and circumstances of this case, the liability
of the appellant-corporation remains, though to what extent remains to be
considered further. Even according to the stand of the Corporation, the victim
was seen by the driver from a distance of about 30ft and the vehicle was moving
at a snail's pace. If that be so, it is not understood as to how it became
totally impossible for the driver to avoid the accident has not been
substantiated by proper evidence. In fact the High Court has noticed that there
was ample scope for avoiding the collision between the cycle and the bus. The
evidence on record also establishes that the bicycle was thrown to a distance
of 4-5 ft. Before taking the turn, horn was found not blown by the driver.
application of the brakes and the incident of collision between the cycle and
the bus seem to have been almost simultaneous. The stand of the Corporation
that the bus had come to a halt much prior to the incident of the collision is
not acceptable and though has been rightly rejected by the Tribunal and the
High Court, the infirmity in their orders also lay in rejecting the plea of
contributory negligence completely. The Tribunal as well as the High Court
ought to have appropriately apportioned the negligence keeping in view the
materials placed on records and properly balancing rights of parties.
as the quantum of compensation is concerned we find that at the time of
accident, as revealed from the claim petition, the claimants were 47 years and
43 years respectively. It is not the age of the deceased alone but the age of
the claimants as well which are to be the relevant factors, in case parents or
other dependants are claimants.
Wadhwa and Ors. v. State of Bihar and Ors. (AIR 2001 SC 3218) and M.S. Grewal
and Anr. v. Deep Chand Sood and Ors. (AIR 2001 SC 3660) law on the principles
of assessment of compensation was elaborated. In Lata Wadhwa's case (supra)
this Court while dealing with the issue in relation to the compensation to be
paid in relation to the death of children, placing reliance upon the decision
of Lord Atkinson in Taff Vale Railway Company v. Jenkins (1913 AC 1) has ruled
that "In cases of death of an infant, there may have been no actual
pecuniary benefit derived by its parents during the child's lifetime. But this
will not necessarily bar the parents claim and prospective loss will found a
valid claim provided that the parents establish that they had a reasonable
expectation of pecuciary benefit if the child had lived." This Court in
M.S. Grewal's case (supra) has clearly observed that the decision in Lata Wadhwa's
case (supra) is definitely a guiding factor in the matter of award of
compensation wherein children die under an unfortunate accident. The said
observation was made after taking into consideration the conclusions arrived in
Lata Wadhwa's (supra) regarding the compensation which was to be paid and the
multiplier which was to be applied in relation to the death of a child. This
Court in General Manager, Kerala State Road Transport Corporation v. Susamma
Thomas and Ors. (AIR 1994 SC 1631) held that the proper method of compensation
is the multiplier method, and the same view was re-iterated in M.S.Grewal's
case (supra) observing that "needless to say that the multiplier method
stands accepted by this Court in the said decision".
in view the observations made by this Court in various cases, several other
factors need to be taken note of. The deceased was unmarried. The contribution
to the parents who had their separate earnings being employed and educated have
relevance. The possibility of reduction in contribution once a person gets
married is a reality. The compensation is relatable to the loss of contribution
or the pecuniary benefits. The multiplier adopted by the Tribunal and confirmed
by the High Court is certainly on the higher side. Considering the age of the
claimants it can never exceed 10 even by the most liberal standards.
out on that basis amount comes to Rs.3.6 lakhs at the monthly expected income
fixed by the Tribunal and confirmed by the High Court.
into the nature of the contributory negligence of the deceased after making an
appropriate deduction which can reasonably be fixed at 25%, the compensation
amount payable by the Corporation can be fixed at Rupees 3 lakhs including the
amount awarded by the Tribunal and confirmed by the High Court for loss of
expectation of life. Interest at the rate as awarded by the High Court is
maintained from the date of application for compensation.
appeal is partly allowed to the extent indicated above. There will be no order
as to costs.