THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CMA Nos. 2547 & 2758 of 2000 ORDER : Both these appeals, under Section 173 of the Motor Vehicles Act, 1988, arise out of the judgment rendered by the II Addl. District Judge, Visakhapatnam in OP No. 1399 of 1998. CMA No. 2547 of 2000 is preferred by the APSRTC, henceforth, referred to as `corporation’ aggrieved by the quantum of compensation awarded to the claimants. CMA No. 2758 of 2000 has been preferred by the claimants aggrieved by the denial of a sum of Rs.1,66,000/- in the process. Hence both these appeals were heard together. The facts that are relevant for the present inquiry are these :- On 10.10.1998, the deceased was returning from his office on his bicycle and when he reached just about Kapprada junction of Visakhapatnam city, a bus bearing Registration No. AP 10Z 5193, belonging to Paderu Depot of the corporation came in a rash and negligent manner from behind his back and hit him thus causing an accident. The deceased fell on to his left side and the bus proceeded for a little distance away and stopped. Due to the impact, the deceased sustained a grevious head injury. One of his colleagues immediately removed him to a nearby private hospital for securing medical attention and subsequently he has been shifted to King George Hospital, Visakhapatnam, where he succumbed to the injuries at about 3.30 AM the next day. The deceased was working as a semi skilled labour in Naval Dock Yard, a Ministry of Defence Establishment at Visakhapatnam. The two claimants in the OP are the wife and minor daughter of the deceased. To the OP, the driver of the offending bus has been impleaded as the 1st respondent, while the Depot Manager was impleaded as the 2nd respondent and the General Manager of the Corporation as the 3rd respondent. The 1st and 2nd respondents remained ex parte and on behalf of the 3rd respondent the OP is contested. It is specifically asserted that while the bus driver was driving the bus which is proceeding towards Paderu, when it reached near Kapprada junction, the driver noticed that one of the two cyclists who are proceeding ahead of his bus started peddaling to his right and in order to avoid any collision with the said cyclist, the driver of the bus had swerved the bus further to the right side and applied the brakes. But, in spite of the same, the cyclist was hit by the bumper of the bus and that the accident had been caused wholly due to the negligence of the cyclist. More importantly, it was further asserted that the bus driver had taken the injured to the hospital and that he had noticed alcoholic smell emanating from the mouth of the accident victim. On behalf of the claimants, the 1st claimant wife of the deceased was examined as PW1 and an eyewitness as PW2. The claimants also got marked Exs.A1 to A5, while the driver and conductor of the bus have been examined as RW1 and 2 and the rough sketch of the accident location has been got marked as Ex.B1. The claimants had laid a claim totally in a sum of Rs.5 lakhs. PW1 has deposed that the deceased was only 45 year old at the time of his death and that he was working with the Naval Dock Yard. He is a semi skilled labour and that he was earning substantial amounts by undertaking private job work as an electrician also. PW2 is an eyewitness to the accident. He was working in the same Naval Dock Yard where the deceased was also working. He has deposed that after the duty hours are over on 10.10.1998 at 2 PM, he was also returning home from duty and that the deceased Manikya Rao was proceeding in front of him on his cycle and that the offending bus which came from behind, without blowing its horn, dashed against the cycle of the deceased and due to the impact of the accident, the deceased has sustained a grevious head injury and that the deceased has been initially shifted to a nearby private hospital. From there he was later on shifted in an Auto to King George Hospital for securing better medical attention and that the deceased has succumbed to the injuries between 3 and 4 AM the next day. PW2 has also deposed that the age of retirement on superannuation in Naval Dock Yard is 60 years. Ex.A1 is the true copy of the FIR registered by the police. Ex.A2 is the true copy of the vehicle inspection report of the Motor Vehicle Inspector. Ex.A3 is the true copy of the post mortem certificate. Ex.A4 is the salary slip of the deceased for the month of September, 1998. Ex.A5 is the dependency certificate of the claimant/legal heirs of the deceased. RW1 is none other than the 1st respondent – driver of the offending bus. Though he did not contest the OP, he has been examined on behalf of the corporation. He has deposed that he has started the journey to Paderu from RTC complex at about 1.30 PM and that on the National Highway No.5 when the bus was just about to reach Kapprada junction, he had noticed two cyclists proceeding ahead of his bus and that one of the cyclists suddenly turned towards the right without any indication or providing any signal, obviously with a view to cross over the road. The bus driver with an attempt to save any collision swerved the bus to the extreme right side of the road and in spite of the same the bumper of the bus had hit the cyclists. The driver deposed that he has stopped the bus immediately and noticed that the victim was in a fully drunken state and that explains, his conduct for improper way of crossing over a national highway. He has also deposed that the victim has been shifted to King George Hospital in an Auto. RW1 had asserted that the accident had occasioned only due to the negligence on the part of the deceased – cyclist and not due to any negligence on the part of the bus driver. RW2, the conductor of the bus has deposed that he was sitting in the single seat that is provided on the corresponding left side to the seat of the bus driver and that he had noticed the two cyclists who are proceeding ahead of the bus at about Kapparada junction and that one of them had taken to the right side of the road suddenly and thus he came into the conflict zone of the onward journey of the bus and in spite of taking necessary precautions by the driver by swerving the bus to the extreme right side of the road and applying brakes, the collision could not be avoided and that the accident had occasioned only due to the negligence of the cyclists. RW2, the conductor had also asserted that the cyclist was noticed to be in a drunken state. Both the witnesses RW1 and RW2 have admitted that on the National Highway No.5, 14 ft road divider has been constructed to segregate motor vehicle traffic moving in opposite directions. Therefore, motor vehicles utilize the road space exclusively for a uni- direction drive. The Tribunal did not place much reliance upon the testimonies of RWs 1 and 2. It had returned a finding that the accident in question has been caused wholly due to the rash and negligent manner of driving of the bus by the 1st respondent – driver. The Tribunal had also found fault that without contesting the OP, the 1st respondent is getting into the witness box to orally state his version of the incident. More importantly, the Tribunal had not found any valid or justifiable reasons for RW2 – conductor to be sitting in the seat provided on the corresponding left side of the bus instead of his normal and regular seat, which is provided near the door of the bus. The Tribunal has also found that an independent witness, such as a passenger traveling in the bus should have been examined to establish that there is no negligence on the part of the 1st respondent – driver of the bus or at least to vouch for the precautionary swerve to the right side said to have been taken by RW1 and for these failures an adverse inference has been drawn against the corporation. The Tribunal has placed reliance upon Ex.A3, copy of the post mortem examination report and found that the deceased was 53 year old. Placing reliance upon Ex.A4 – salary slip of the deceased for the month of September,1998 which was the immediately preceding month when the accident took place, the Tribunal had arrived at the annual contribution of the deceased to his family to be Rs.45,600/-. It had applied multiplier `7’ and arrived at the quantum of compensation payable for the loss of life and earnings at Rs.3,19,200/-. The 1st claimant had also been awarded a sum of Rs.15,000/- towards loss of consortium and thus worked out the total quantum of compensation payable as Rs.3,44,000/-. As noticed supra, the claimants are aggrieved by the denial of the balance compensation amount of Rs.1,66,000/- while the corporation is aggrieved that a high amount of compensation of Rs.3,44,000/- has been ordered to be paid and with a high rate of interest of 12%. Learned Standing Counsel for the Corporation had attacked the findings recorded by the Tribunal, characterizing the same as the result of improper appreciation of the oral and documentary evidence. Further, the Tribunal had unjustly ignored the contention canvassed on behalf of the corporation that it is the cyclist who has contributed wholly to the accident by suddenly taking a right turn with a view to cross over to the other half of the National Highway No.5 and therefore it is the cyclist who came into the conflict zone and consequently the Tribunal should have held that he is solely responsible for the accident and the corporation cannot be mulched with any accountability by way of payment of compensation. On the contra, the learned counsel for the claimants/appellants in CMA No. 2758 of 2000 urges that that PW2 is an eye-witness to the accident from a very close quarters and there is no material to discredit his testimony. Further, the Corporation having taken an unholy plea that the victim was in a drunken state, at the time of accident, had not bothered to lead any evidence to establish such a plea. Further, the very basis of the case set up by the corporation depended upon this fact and for the failure of the corporation to lead any evidence, much less establish such a fact, it shall not be permitted to urge that it is the cyclist who has caused and contributed to the accident. Three questions of importance for consideration. (1) If the cyclist had contributed wholly to the accident by his sudden movement on to the right side of the road and thus coming into the conflict zone, can the corporation be held accountable and liable to compensate his legal heirs? (2) Was the material on record justify the finding that the accident had been caused wholly due to rash and negligent driving of the bus driver? (3) Is the quantum of compensation payable, if at all is to be paid, correctly calculated by the Tribunal? The facts which have been undoubtedly established on record are these : That the accident had occasioned at about 2.30 in the afternoon on 10.10.1998, which is a Saturday. It is further established that the deceased was returning after performing his duties at the Naval Dock Yard, a Ministry of Defence Establishment at Visakhapatnam. It is further established that PW2 was a colleague of the deceased working in the same Naval Dock Yard and he was also returning from duty. Both RW1 and RW2 had categorically deposed that two cyclists were noticed as proceeding ahead of the bus when it was just about to reach Kapparada junction on National Highway No.5. Ex.A4 is a salary slip of the deceased for the immediately preceding month of September 1998. Therefore, there is no room or scope to doubt that the deceased was an employee of the Naval Dock Yard and that he was returning on the fateful day after performing his duties till 2 PM. The accident had occasioned at around 2.30 PM. Therefore, the plea that the deceased cyclist, under the influence of alcoholic beverage had contributed to the accident is a mysterious element, which is sought to be introduced into the case by the corporation. Ex.A3 is the post mortem examination report of the deceased issued by the King George Hospital, Visakhapatnam. After having noted the external and internal injuries, Ex.A3 noted as under : Stomach contained 100 ml of bile stained liquid. No suspicious smell noted. Intestines – Normal. Adrenal – Normal. Pelvic walls – Normal. Urinary bladder – contained 200 ml of urine, normal. Dr.N.V.S.L.Narasimham, Professor of Forensic Surgery of Andhra Medical College had opined that the deceased would appear to have died of head injury, fracture of skull, internal haemorrhage and injury to brain. The presence of any intoxicating substane has not been noticed. It is manifestly clear from the analysis of the contents of Ex.A3 – post mortem report that the deceased was not found to be under the influence of alcohol. Even if one were to assume that the post mortem examination having been conducted nearly 24 hours later to the time of the accident, presence of small quantities of alcohol can be ruled out, the corporation has not moved its little finger to summon the case sheet from King George Hospital, which is a teaching general hospital attached to Andhra Medical College. The case sheet would have recorded and noted the physical stage of the patient at the time of admission. It is not in dispute that the deceased had undergone treatment for nearly 10 to 12 hours and thereafterwards he died. This apart PW2 has also deposed that immediately after the accident, the victim has been taken to a nearby private hospital for securing medical attention and that thereafter wards he has been shifted to King George Hospital. In fact, Ex.A1, FIR also noted the said fact. Therefore, the assertion of RW1 that it is he who has shifted the victim to King George Hospital does not bear any ring of truth. If it were truly RW1, the driver of the bus who has shifted the victim to the hospital, he would have also reported to the police as well as to his superior officers of the corporation about the accident. No such material has been brought on record. The explanation of PW2 is quite probable and in tune with normal human conduct. He deposed that the victim had been taken to a nearby private nursing home where he has been given first aid and realizing that the victim needed better medical attention he has been shifted in an auto to King George Hospital. It is quite natural, as a normal instinct that any accident victim would be rushed to the nearest hospital first for securing medical attention. He would only be shifted to a hospital with superior facilities later on, depending upon the assessment of such necessity. Therefore, the finding of the Tribunal, that the depositions of RWs 1 and 2 are not inspiring confidence for acceptance, does not appear to be faulty warranting any interference. Every fatal accident involving buses of the corporation is required to be investigated upon. All the more so for, the corporation does not get their buses insured. No other official of the corporation has been examined other than the bus driver and the conductor. No material by way of investigation report has been got marked. Section 114 of the Evidence Act enables a Court to presume the existence of any fact which it thinks it likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case. Further the illustration (g) provided under Section 114 offers greater depth to understand the amplitude of said Section. Illustration (g) reads thus: “that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.” Let us consider now the theory set up by the corporation and sought to be established through the oral evidence of RWs 1 and 2. One of the two cyclists proceeding ahead of the bus is alleged to have turned to his right without any indication whatsoever and without regard being had to the motor vehicle traffic that follows on the road. The respondents marked Ex.B1. It’s a rough sketch of the accident site. The National Highway No.5 has been separated at its center by a 14 ft wide road divider. Thus the upward and downward moving motor vehicle traffic is completely separated by the road divider. Each half of the road is found to be 31 ft wide. If the 1st respondent – bus driver did not anticipate that one of the cyclists is likely to turn to his right suddenly, then one can try to make an assessment with regard to the point of impact. From the narration of facts by PW2, RWs 1 and 2, it is clear that the two cyclists were proceeding ahead of the bus. Obviously the speed at which a 50 year old person would be cycling at about the afternoon time, that too after performing duty, could be considerably very slow. The bus in question was not a city bus. It runs between Visakhapatnam city and Paderu, a rural destination in the district. It is therefore reasonable to infer that there being no necessity to pick up any passengers at about the accident site, it must have been traveling at a relatively higher speed of at least 40 km/hour speed. If a cyclist proceeding on the left side of a 30 ft road were to suddenly turn to his right, the impact could have been almost instantaneous the moment he turns to his right. Far from that RWs 1 and 2 have deposed that they have noticed one of the two cyclists turning suddenly to his right and that RW1 has tried to take the bus to the further extreme right side of the road and since there is a road divider he had difficulty to move the vehicle beyond a particular point and that in spite of his applying brakes he could not avoid the collision. This narrative gives an impression that there was at least 10 to 15 seconds time available for the bus driver to avoid the collision. If in spite of applying brakes even after swerving to the extreme right of the road, the bus could not be halted, immediately, it implies that 10 to 15 seconds time was not sufficient enough for the momentum of the vehicle to be brought to a near halt. It is clear therefore that the bus was traveling at more than 40 km/hour speed and the bus driver failed to anticipate quickly the method of avoiding the collision. If a cyclist is moving to the right of the road, an attempt should have been made by the bus driver to caution him not to move in that direction, by blowing the horn. Both RWs 1 and 2 did not utter a word that attempts have been made by the driver to caution the cyclists not to move to their right by way of blowing the horn of the bus. On the contra, PW2 has specifically spoken that the bus did not warn or caution the cyclists at all by blowing its horn. It is a clear case where the 1st respondent – bus driver has failed to exercise reasonable degree of care and caution expected of him. He has also failed to drive the bus employing the necessary degree of skill. Therefore, he is squarely responsible for causing the accident. The finding recorded by the Tribunal in this regard therefore is justified. No exception can be taken thereto. When once it is to be held that the accident had been caused wholly due to rash and negligent manner of driving of the bus, then the liability to compensate the accident victim lies only with the appellant corporation. The relevant principles for fixation of compensation for accident victims, which has since been introduced as a social security measure into the Statute Book - has fallen for consideration in the following case. The Supreme Court had set out the underlying jurisprudential principles in the following manner. SARLA DIXIT vs. BALWANT YADAV S. B. MAJMUDAR, J. - 1996-AIR (SC)-0-1274 , 1996-SCC-3-179 , 1996 (TLS)15989 In this connection reliance was placed on two decisions of this Court. In the case of Hardeo Kaur v. Rajasthan State Transport Corporation, (1992) 2 SCC 567 : (1992 AIR SCW 1213), 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.), (1994) 2 SCC 176 : (1994 AIR SCW 1356 ). 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 (1942 AC 601), and the second in Nance v. British Columbia Electric Railway Co. Ltd. , (1951 AC 601 ). 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 : (1994 AIR SCW 1356 at PP. 1362 and 1363 ). "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 therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25