Judgment:
Venkatachaliah, J.
1. This appeal, for enhancement of compensation, by the claimants, arises out of the Judgment and Award dt. 3-9-85, made in MVC 133 of 1983, on the file of the Motor Accidents Claims Tribunal, Dharwar, granting to the dependants of the deceased-person, a compensation of Rs. 40000/-.
While the appellant-claimants complain of inadequacy of the compensation and seek enhancement, the owner of the motor vehicle, viz, the Karnataka State Road Transport Corporation, is aggrieved by the Award even to the extent it goes, on the ground that the finding of the. Tribunal as to actionable-negligence is erroneous and calls for interference in appeal and that, at all events, there ought to have been a mitigation of damages for contributory-negligence on the part or the victim himself.
2. The appellant-claimants are the widow and two minor children of a certain Narayana Rao, who died as a result of the injuries sustained in an accident that occurred on 21-12-1982, at 12-30 P.M. in Hubli town, in front of the main-gate of the K.M.C. Hospital. It would appear that the wife of the deceased-person viz, the first-appellant was herself undergoing treatment as an in-patient at the K.M.C. Hospital and that the deceased-person who was attending to his wife at the hospital went out to a catering establishment nearby for some refreshments. While he was crossing the road, he was knocked down by the bus of the KSRTC. The appellants brought the present claim for compensation before the Tribunal.
3. The Tribunal, on a consideration of the evidence, held that the accident was attributable to the actionable-negligence on the part of the driver of the bus. In the matter of quantification of compensation, the Tribunal took note of the circumstance that the deceased Narayana Rao, then aged 43 years, was working as a Postal-Assistant and, according to the evidence of the Superintendent of Post Offices (D.W-1), was receiving Rs. 936-70ps as emoluments. The Tribunal determined the loss of dependency at Rs 300/- per month and turned it into a lumpsum on 10 years purchase. No award was made for 'Loss of Expectation of life' and for 'funeral expenses and obsequies'.
On the contentions urged at the hearing, the points that fall for determination in this appeal and the Cross-Objections are :
(a) Whether the finding of the Tribunal as to the actionable-negligence of the driver of the bus is erroneous and requires to be reversed in appeal ?
OR
Whether, at all events, the victim himself was guilty of contributory-negligence and that, accordingly, the compensation would require to be mitigated : and,
(b) Whether the amount of compensation determined and awarded by the Tribunal is inadequate and calls for an upward revision in favour of the claimants ?
4. Re : Contention - (a):
The accident occurred in a very busy locality of Hubli City in front of the main gate of the K.M.C Hospital. The version of the driver of the bus (DW-2) is that the deceased-person suddenly darted into the middle of the road, coming in the way of the bus and invited the tragedy upon himself.
We are afraid this is an attempt at over simplification of the situation A driver, particularly of a public transport vehicle, is expected to have a proper look-out and provide for the safety of the other users of the road. In a busy city, a driver must anticipate and provide for the more common follies of other users of the road. In crowded city roads it is not unoften that pedestrians dart across the road, cyclists and scooters attempt to weave a zig zag path between other moving vehicles; school children who are left to fend for themselves, cross the streets unmindful of the hazards of traffic; and all these are a part of the realities of the urban predicament, which any driver, more particularly of a public transport system, ought to be cognizant of. He must keep his anticipatory reflexes geared to be able to stop the vehicle at a very short-notice. Roads are not meant only for heavy vehicles; they are also meant for other users of the road and the drivers of heavy-vehicles must negotiate their vehicles in such a way as not to jeopardise the safety of the other users of the road. The words of Lord Uthwatt in London Passenger Transport Board -v.- Upson, 1949 AC 155 are worth recalling :
' --A driver is not, of course, bound to anticipate folly in all its forms, but he is not........entitled to put out of considerations the teachings of experience as to the form this follies commonly take-..'
In the same case, Lord Porter said:
'.... A driver must, of course, keep a proper look out even for negligent pedestrians....'
Charlesworth and Percy Charlesworth & Percy on Negligence, Seventh Edition Pages 683 and 687 say :
'.... It is the duty of the driver or rider of a vehicle to keep a good lookout. He must look out for other traffic, which is or may be expected to be on the road, whether in front of him, behind him or along-side of him, especially at crossroads, junctions and bends. Also, he must look out for traffic-light signals and traffic signs, including lines marked on the highway. Disregard of traffic signals and failure to keep a proper lookout are both evidence of negligence. When there are pedestrians about, the driver or rider must be ready in case they step from a street refuge or a footpath, or from behind a vehicle or other obstruction and, also, be prepared for children, knowing that they may be expected to run suddenly on to the road... '
(Emphasis ours)
But a driver may not be liable if he has no chance of avoiding a collision despite all reasonable care. The Learned Authors say :
'.... Further, if a pedestrian suddenly steps from the footpath onto a crossing, just when a vehicle is about to go onto the crossing, so as to give the driver no opportunity of avoiding a collision, provided the latter is driving with reasonable care, having regard to the presence of the crossing, there may be no negligence or breach of statutory duty on his part. In these circumstances, the driver could be found not liable....'
In Seethamma and ors. -v.- Benedict D'Sa & ors., 1966(1) Mys. L.J. 577, Somanath Iyer, J. observed :
'.... It is a fairly established rule that a person driving a motor vehicle on a high way must drive the vehicle with reasonable care, strictly observing the traffic regulations and the rule of the road, so as not to imperil the safety of other persons whether they are pedestrians or cyclists or others who have a similar right to use the highway on which he drives it--'
Lord Dunedin in Craig -v.- Glascow Corporation, (1919) 35 TLR 214 said :
'....there was all the difference between the case of a man run into on a railway and that of a man run into on the road. In the latter case the man had an absolute right to be there and it was the duty of drivers of vehicles not to run him down....'
5. In the present case, the degree of negligence and, perhaps, even an element of recklessness on the part of the driver of the bus is indicated by the fact that the bus stopped 86 ft. after it hit Narayana Rao. It hardly lies in the mouth of such a driver to say that he had exercised all the due care and caution expected of him and that the victim, owing to his own negligence, brought upon himself this tragedy. In this case the innocence of the driver is wholly ruled-out. He did not have a proper look out. His speed was excessive. He knocked down a pedestrian in broad-day-light in the middle of a busy city street. There is no evidence of his efforts to keep the speed under such control as to enable him to bring the vehicle to a halt at short notice. The contention that there was no negligence on the part of the driver is unacceptable. We approve the finding of the Tribunal that the accident was the result of the actionable-negligence on the part of the driver of the bus.
But, there might, perhaps, be something to be said in favour of the point that Sri Pawin, Learned Counsel sought to put across, namely, that there was, at all events, some degree of contributory-negligence on the part of the victim himself. The burden of proving contributory negligence is on the cross-objectors in this case. It is not for the appellant to disprove it. If the tort-feasor's negligence or breach of duty is established as causative of the damage, the onus is on him to establish that the victim's contributory-negligence was a substantial or co-operating cause. In order to establish the defence of contributory negligence the propounder of that defence must prove, first, that the victim failed to take reasonable care of himself or, in other words, such care as a man of ordinary prudence would have done and that was a contributory-cause of the accident. The amount of care which a person could reasonably be expected to take, must needs vary with the circumstances and the conditions actually prevailing at the material point of time. However, it is relevant to note that, in order to discharge the burden of proof, it is unnecessary for the propounder of that defence to adduce evidence about the matter. Contributor) negligence can be - and very often is-inferred from the evidence adduced already on the claimants behalf or from the perceptive facts, either admitted or found established, on a balance of probabilities in the case.
6. In the present case the circumstance that the deceased Narayana Rao attempted to cross the busy thoroughfare without a proper look-out and before ensuring that no vehicle was near-by which could endanger his safety might be susceptible of an inference that the deceased-person did not take such care for his own safety.
8. Accordingly our finding on Contention-(a) is that the accident was principally attributable to the negligence on the part of the driver of the bus. But, there was an element of contributory negligence on the part of the victim himself which might have to be put into the scales as a mitigating factor while assessing damages.
9. Re; Contention (b) :
This pertains to the size of the award. The deceased-person was in the prime of his life and was the bread winner of the family. At the time of death he was 43 years of age and his salary was Rs. 936-70ps per month. He could legitimately have looked forward to another 15 years or more of useful service. The Tribunal, on some calculation of its own, limited the loss of dependency to merely Rs. 300/-per month. This is very much on the lower side. The multiplier of 10 is also disproportionately low having regard to the age of the deceased-person. The multiplier should have been around 1(sic). The Tribunal did not also sound, in terms of money, the prospects of advancement in Service of the deceased person. The loss of dependency could not have been less than say Rs. 700/- per month. The claimants have been under-compensated.
10. It is not necessary to go into the finer details and break-up of awards under several heads in this case. Having regard to all the circumstances in this case and after making provision for mitigation on account of a possible element of contributory-negligence, we think, we should award a compendious global compensation of Rs. 80,000/- together with interest at 9% per annum from the date of petition till realisation.
We are told that the amount awarded by the Tribunal together with accrued interest has been paid over or invested in accordance with the directions contained in that behalf in the award under appeal. We direct that the entire amount of enhanced compensation together with the accrued interest shall be invested in the names of the widow and the two children in fixed deposits in a Nationalised Bank for a period of 10 years. It was brought to our notice that Nationalised Banks accept deposits on 12% interest, payable monthly. Investment may be made in such a deposit. If the deposit cannot be made for 10 years at one stretch, it could be made for 5 years in the first instance and renewed for a further period of 5 years thereafter. No loan shall be permitted 011 the fixed deposits. The interest accruing on the investment from time to time shall be paid over to the first-appellant-mother for being spent for the maintenance of herself and her two minor children. The corpus of the investment shall be paid over to the three claimants, in equal shares, after the expiry of 10 years from the first-investment.
Appeal and the Cross-objections disposed of accordingly.