fa366.91 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.366 OF 1991 1) Smt. Shantidevi w/o Santoshsing Rajpal, Aged-48 years, Occu:Household, R/o-Sendhwa (M.P.). 2) Shri. Harmehendersingh s/o Santosh- Sing Rajpal, Age-33 years, Occu:Business, R/o-Sendhwa (M.P.), 3) Shri. Harcharansing s/o Santosh- Sing, Aged-23 years, Occu:Business, R/o-Shirpur, District-Dhule. ...APPELLANTS. VERSUS 1) Maharashtra State Road Transport Corporation, through its General Manager, M.S.R.T. Corporation, Vahatuk Bhavan, Dr. A.N. Marg, Bombay-3, 2) Shri. Damodhar Namdeo Patil, Aged-35 years, Occupation:S.T. Driver, Batch No.6808, R/o-Meharum, Tal. & Dist-Jalgaon. ...RESPONDENTS. fa366.91 2 ... Shri.Sandeep B. Gorde Patil Advocate for Appellants. Shri.M.K. Goyanka Advocate for Respondent No.1. Shri.P.K. Joshi Advocate for Respondent No.2. ... CORAM: R.M. BORDE, J. DATE : 11TH JULY, 2011 ORAL JUDGMENT : 1. This is an Appeal by the original claimants raising inception to the Judgment and Award passed by the Motor Accident Claims Tribunal, Jalgaon on 11th June, 1991 in Motor Accident Claim Petition No.5 of 1987. 2. The Appellants herein, original claimants, presented the claim petition claiming compensation to the tune of Rs.3,60,000/- on account of death of one Santoshsing Gyansing Rajpal in a vehicular accident which occurred on 14th July, 1986. The claimants claimed fa366.91 3 compensation under Section 110-A of the Motor Vehicles Act,1939 (corresponding to Section 166(1) of the Motor Vehicles Act, 1988). On the fateful day, deceased Santoshsing with one Rajaram and Noor Mohammad, were proceeding from Dhule to Jalgaon in Ambassador Car bearing registration No.CPO-9525. It is contended that when the Car, in which the deceased was travelling, reached near Vidyut Colony, Jalgaon, he noticed a Truck bearing registration No.MMK-474,parked on the road facing towards Jalgaon. The deceased on noticing a Stationary Truck, tried to overtake the same. At that time, S.T. Bus bearing registration No.MCA-6388, driven by original opponent No.2, came in a very high speed and dashed against the driver side of the Ambassador Car. As a result of the dash given by the Bus, the Ambassador Car which was being driven by deceased Santoshsing, was pushed back and it hit the Stationary Truck bearing registration No.MMK-474. It is averred that the offending vehicle, S.T. Bus, was being fa366.91 4 driven by original opponent No.2 in a rash and negligent manner and he is responsible for causing accident. As a result of impact given by the Bus, the deceased Santoshsing sustained grievous injuries. He was removed to civil hospital, Jalgaon, where he succumbed to the injuries on the very day. It is contended that deceased was aged about 55 years and was keeping good health. He was running hotel and a beer bar at Sendhwa (M.P.) and was also running similar type of business at Shirpur, District-Dhule. The yearly taxable income of the deceased was Rs.22,430/-. It is submitted that considering the fact that father of the deceased was still alive, the deceased would have survived up-to 80 years of his age. Considering the income of the deceased and the fact that he would have earned money for about 15 years more, the claimants claimed compensation to the tune of Rs.3,30,000/-. The claimants claimed a sum of Rs. 5000/- towards mental shock and agony and further claimed Rs.25,000/- towards the damages of the fa366.91 5 Ambassador Car. The claimants as such, claimed total compensation amounting to Rs.3,60,000/-. 3. The original opponent No.1 Maharashtra State Road Transport Corporation, resisted the claim by filing written statement. According to the Corporation, deceased Santoshsing was not possessing valid driving licence at the relevant time and he did not have driving skills. Second contention is that the accident has occurred due to carelessness and negligent driving of the vehicle by deceased Santoshsing. It is denied that deceased was 55 years of age and his monthly income was Rs.1865/-. The Opponents contended that the deceased was driving the vehicle in a rash and negligent manner and as such, he alone was responsible for causing accident and opponent Corporation is not liable to pay the compensation. 4. Considering the contentions raised by the respective parties and the evidence led by the fa366.91 6 parties, the Motor Accident Claims Tribunal, Jalgaon, recorded a finding that the claimants have failed to establish occurrence of the accident as a result of rash and negligent driving by the driver of the Bus. The Tribunal as such, rejected the claim raised by the claimants. However, the opponents were held liable to pay a sum of Rs.5000/- to the claimants as a cost. 5. I have heard the arguments advanced by the respective counsel appearing for the parties and perused the relevant record. Shri. Gorde Patil, counsel appearing for the Appellants has contended that the finding recorded by the Tribunal that the offending vehicle i.e. Bus was not being driven by the driver of the Bus in a rash and negligent manner, is perverse and without appreciation of the evidence on record. Shri. Gorde, learned counsel, has invited my attention to the deposition of the driver of the Bus, claimants witness No.1 as well as contents of fa366.91 7 Panchnama and the sketch map annexed thereto. So far as the occurrence of the incident is concerned, as has been narrated in the Panchnama, Exhibit 62, the spot of incident is National Highway No.6, in front of Vidyut Colony. The width of tar road is near-about 30 ft. and there is a strip of kachha road admeasuring about 7and 1/2 ft. on each side. The S.T. Bus was found facing towards West on the Southern side of the road, whereas the car was found facing towards East on the Southern side of the road. The Stationery Truck was found facing towards West and was parked on the Northern side of the road. It is specifically mentioned in the Panchnama that the Car was at a distance of about 7 ft. on the Northern side from kachha road and at a distance of 5ft. from the tar road. It is also clear on perusal of the map that the S.T. Bus was at a distance of about 10 to 11 ft. from the Southern corner of the road. The width of the Bus was about 7 ft. and the distance between the corner of fa366.91 8 Northern end of the road and the S.T. Bus was about 12 ft. 6. Considering the situation as depicted from the map, it is evident that the Car while passing from Dhule to Jalgaon, had already overtaken the Truck and was at a distance of about 8 or 9 ft. from the corner of the road from Northern side. It was well within the portion of 15ft. from the middle of the road on the Northern side, thus indicating that the Car had already passed the Stationary Truck and was well within the distance of less than 15 ft. from the middle of the road from Northern side i.e. on the correct side. Whereas, considering the map and also considering the contents of the Panchnama, it appears that the offending Bus, which was proceeding from Jalgaon to Dhule i.e. from East to West direction, had tilted from middle portion of the road towards Northern side i.e. wrong side and dashed against the Car. The Tribunal has not at fa366.91 9 all considered the contents of the Panchnama as well as the map which was placed on record, coupled with the oral testimony of the driver of the Bus, and had arrived at a wrong conclusion. On perusal of F.I.R., which was filed immediately after occurrence of the accident, it has been reported that offending Bus was being driven in a rash and negligent manner and in a high speed and has tilted towards the wrong side and has given dash to the Car which was coming from the opposite direction. The impact of the dash given by the offending Bus was such, that the Car which was proceeding from opposite direction, had not only received damage due to impact from the front side, but the Car was pushed far behind and dashed the Stationary Truck, causing damage to back portion of the Car, as well as damage to the Stationary Truck front portion. Considering the totality of the circumstances, it is not permissible to draw inference except that the driver of the offending Bus was driving the vehicle in a rash and fa366.91 10 negligent manner and was alone responsible for occurrence of the accident. 7. This takes me to the consideration of oral testimony of the driver of the Bus, who has been examined by the Corporation as witness No.1. In his cross-examination he has, in clear terms, admitted that the Car which was coming from the opposite direction, had already overtaken the Stationary Truck when the impact of the Bus was received from front side of the Car. This admission of the driver of the S.T. Bus, has not at all been taken into account by the learned Member of the Motor Accident Claims Tribunal. 8. I have also perused the photographs placed on record by the claimants, in respect of the scene of occurrence. On perusal of the photographs also, it is quite evident that the Car, which the deceased was driving, has received the impact of the offending Bus from the front fa366.91 11 side and there is extensive damage caused to the Car. As a result of the impact given by the offending Bus from the front side, the Car was pushed behind and dashed against the Stationary Truck, which has resulted into sustaining damage to the backside portion of Car, so also damage to the front portion of Truck. Taking into consideration the totality of the circumstances, I am of the opinion that the learned Member of the Tribunal has committed serious error in appreciating the evidence on record. The finding recorded by the Tribunal that the offending Bus was not being driven in a rash and negligent manner, is liable to be reversed. It has to be concluded that on account of negligent and rash driving of the Bus by the opponent No.2 the driver, the opponent Nos. 1 and 2 are liable to compensate the loss caused to the claimants. 9. The learned counsel appearing for the Respondents, has invited my attention to the fa366.91 12 Judgment in the matter of Municipal Corporation of Greater Bombay vs. Shri Laxman Iyer and another, reported in A.I.R. 2003 Supreme Court, Page 4182. The counsel appearing for Respondent Corporation contends that this is a case of contributory negligence and the liability in its entirety cannot be fixed on the Corporation. It is observed in Para 6 of the reported Judgment as below: "6. A plea 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. 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 fa366.91 13 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 circumstances. 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 fa366.91 14 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 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 fa366.91 15 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 fa366.91 16 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. fa366.91 17 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)." 10. The decision on which reliance is placed applies to cases when finding is reached as regards negligence of both the vehicles involved in the accident. While determining as to what constitute 'negligence', various factors and different situations are required to be taken into account. Whether particular act or the course of conduct amounts to negligence, has to be fa366.91 18 determined on the basis of attending circumstances. The question of negligence is to be determined from the point of view of a reasonable man. The question whether there is a contributory negligence in a particular case, has to be determined on the basis of facts and circumstances of each case. In the instant matter, as is evident from perusal of the Panchnama as well as the map of the scene of occurrence so also deposition of witnesses, the vehicle driven by the deceased, had already surpassed the Stationary Truck and at that point of time, the offending vehicle i.e. S.T. Bus, had given dash to the Car from its front side. The impact of the dash given by the offending vehicle was of such a magnitude, that the Car which was being driven by the deceased, was pushed behind and it dashed against the Stationary Truck. Considering the peculiar facts and circumstances of this case, and on consideration of the evidence placed on record, I am convinced that conclusion cannot be drawn as fa366.91 19 regards contributory negligence involving both vehicles, but it has been established beyond doubt that the bus owned by Corporation was being driven in rash and negligent manner by Opponent No.2. 11. It is averred by the claimants that deceased was 55 years of age at the time of accident, but the Tribunal, on considering the evidence placed on record, has given finding that the deceased, at the time of his death, was not less than 60 years of age. Even age of deceased at the time of occurrence of incident recorded in F.I.R. and Panchnama is taken to be correct, the conclusion has to be drawn that he was 60 years of age at the time of occurrence of accident. The correct multiplier, which can be applied in the instant case, will be '8' in accordance with the Schedule contained in the Motor Vehicles Act, as well as in view of the ratio laid down by the Apex Court in the matter of Sarla Varma vs. Delhi Transport Corporation (2009) I.N.S.C. Page 756. It fa366.91 20 is observed by the Tribunal that the yearly taxable income of the deceased Santoshsing was Rs.22,430/-. The deceased would have spent an amount to the extent of 1/3 for himself, which amount shall have to be deducted while arriving at the compensation payable to the claimants. The yearly income of the deceased, on deduction of 1/3 amount, comes to Rs.15,334/-. The deceased, it could be safely said, would have spent Rs.15,334/- yearly for the benefit of the claimants. Taking into consideration the multiplier as 8, the amount of compensation receivable by the claimants, comes to Rs.1,22,664/-. In my opinion, award of compensation to the tune of Rs.1,22,000/- to the claimants, would serve the ends of justice. 12. Appeal is thus allowed. The claimants/ Appellants herein are held entitled to receive an amount of compensation of Rs.1,22,000/- (Rupees One Lakh Twenty Two Thousand only). The amount of compensation of Rs.1,22,000/- would carry interest fa366.91 21 at the rate of 9% per annum from the date of application till the realization of the amount. In the facts and circumstances of the case, there shall be no order as to the costs. [R.M. BORDE, J.] asb/JULY11