O.P. Saxena, J.
1. These are twoconnected appeals under Section 110D of the MotorVehicles Act against the award dated 17thOctober 1977 made by the Motor AccidentsClaims Tribunal (Additional District JudgeCourt No. 1) Kanpur allowing the petition forrecovery of Rs. 75,000/- as compensation withinterest at 6% from the date of the petitiononwards till recovery. The liability of oppositeparty No. 1-Respondent No. 4 was fixed atRs. 37,500/-. The liability of Opposite PartiesNos. 2 and 3 appellants was also fixed at asimilar amount.
2. One Ram Shanker Gupta met with anaccident on 12th Jan. 1971, at about 8 A. M. atthe Farrukhabad Kanpur Road, the accidenttook place near river Esan at Bilhaur, P. S.Bilhaur, District Kanpur. Ram Shanker Guptawas travelling in a Roadways Bus No. UPI 281on his way from Tirwa in District Farrukhabadto Kanpur, A truck was going ahead of theBus. D. W. 2 Ram Pal Singh was the driver ofthe Bus. The driver of the Bus gave a horn forovertaking the truck which was going on themiddle of the road. He ultimately tried toovertake the truck and came on the extremeright side. Truck No. USD 7556 was comingfrom the side of Kanpur. D. W. 4 Yagya Duttwas the driver of the truck. When the Bus hadalmost crossed half of the truck going aheadof it, the accident took place. The right side ofthe Bus collided with the right side of thetruck coming from the side of Kanpur. All theoccupants of the Bus were seriously injured.Ram Shanker Gupta later succumbed to the injuries and died as a result of the same.
3. On 12th July 1971, the claimants filed an application for Rs. 1,25,000/- as compensation. Claimant No. 1 is the widow of the deceased aged about 32 years. Claimant No. 2 is the minor daughter of the deceased aged about 8 years. Claimant No. 3 is the aged mother of the deceased. The deceased carried on Sarafa business and his monthly income was given as Rs. 500/-. The life expectancy was alleged to be 35 years. The claimants expected that the deceased would have spent Rs. 250/- per mensem for them. The annual dependency was fixed at Rs. 3000/-. The pecuniary loss of Rs. 1,05,000/- was fixed by calculating the loss for 35 years. A sum of Rs. 15,000/- was claimed as the money which the deceased would have spent on his daughter's marriage. Rs. 5000/- was claimed for mental and bodily pain and agony.
4. The petition was contested by the opposite party No. 1 on the ground that the accident took place due to the rash and nagligent driving of the Truck No. USD 7556 belonging to opposite party No. 2. It was denied that there was any negligence on the part of the driver of the Bus. The amount of compensation claimed was disputed.
5. The petition was contested by opposite parties Nos. 2 and 3 with the allegations that the accident took place on account of the rash and negligent driving on the part of the driver of the Bus. It was said that the driver of the truck belonging to opposite party No. 2 did not drive in a rash or negligent manner, that the driver of the truck was proceeding at a slow speed, that the Bus came from the opposite direction at a reckless speed, that the driver of the Bus came on the wrong side of the road, that the driver of the truck swerved the truck to the extreme left and brought it on the kachcha portion of the road and that in spite of the best efforts of the driver of the truck, the driver of the Bus dashed against the truck and caused the accident. The amount of compensation claimed was also assailed.
6. P. W. 1 Smt. Bimla Devi, her father P. W. 2 Ram Nath and P. W. 3 Ramesh Chandra were examined in support of the claimant's version,
7. D. W. 1 Tulsi Ram, Station Incharge, Kannauj Roadways Bus Station, D. W. 2 RamPal Singh, the driver of the Bus and D. W. 3 Subhas Tewari, a passenger of the Bus were examined by opposite party No. 1.
8. D. W. 4 Yagya Dutt, the driver of the truck was examined by opposite parties Nos. 2 and 3.
9. The Tribunal held that the accident took place due to the composite negligence of the drivers of the Bus and truck. It accepted the claimant's version regarding the annual dependency of Rs. 3,000/- and allowed pecuniary loss for a period of 25 years instead of 35 years claimed in the petition. The compensation was thus assessed at Rs. 75,000. Liability for payment of Rs. 37,500 was fixed on opposite party No. 1 and the liability for the payment of the balance was fixed on opposite parties Nos. 2 and 3. The claimants submitted to the award. The two sets of opposite parties have filed two separate appeals.
10. During the pendency of the appeals,the U. P. State Road Transport Corporationwas brought on the record as respondent No. 5. The U. P. State Government owned and managed the Roadways Buses at the time of the accident. During the pendency of the case the management was entrusted to the U. P.State Road Transport Corporation.
11. Sri Sudhir Chandra, Advocate appeared for the appellants in F. A. F. O.: No. 112 of 1978.
12. Sri S. K. Sharma, Advocate appeared for the appellant in F. A. F. O. No. 78 of 1978.
13. Sri S. N. Agarwal, Advocate appearedfor the claimants-respondents in both theappeals.
14. This was a case in which the doctrineof res ipsa loquitur applied. The accident spoke for itself arid told its own story.
15. In Pushpa Bai v. Ranjit Ginning and Pressing Co. Ltd. AIR 1977 SC 1735, it was held that in a case where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle, it must be shown that the car was under the management of the defendant and that theaccident is such as in ordinary course of things does not happen if those who had the management used proper care.
16. Sri Sudhir Chandra placed reliance on Minu B. Mehta v. Balkrishna, AIR 1977 SC 1248 in support of the contention that before the master could be made liable, it is necessary to prove that the servant was acting in the course of employment and that he was negligent.
17. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.
18. Sri Sudhir Chandra referred to Exts. Al and A-2. Ext. A-l is the accident reportprepared by D. W. 1 Sri Tulsi Ram, Station Incharge, Kannaunj Roadways Bus Station.Ext. A-2 is the site plan prepared by him. The evidence of D. W. 1 Sri Tulsi Ram is that he went to the spot on 12th Jan. 1971 and prepared the site plan. The site plan shows that a truck was going ahead of the Bus, that the Bus tried to overtake the truck, that the truck was going on the middle of the road, that while overtaking the truck, the right side wheel of the Bus came on the right side patri of the road, that the truck coming from the opposite direction was almost on the left patri of the road at the time of the accident and that there was a collision between the right side of the Bus and the right side of the truck resulting in extensive damage to the right side. Sri Tulsi Ram reported that the accident was unavoidable.
19. Sri Sudhir Chandra submitted that the Tribunal has disbelieved the statement of D. W. 2 Ram Pal Singh that he overtook the truck on receiving a signal from the driver of the truck which was moving ahead of the Bus or that at the time of the accident both the wheels of the Bus were on the road and none of the wheels was on the patri. The Tribunal believed the version of D. W. 4 Yagya Dutt that he swerved the truck towards the extreme left and brought the truck on the patri of the road when the Bus collided with the truck D. W. 2 Subhas Tewari stated that the road was about 10 feet wide. According to him the Bus had gone 15 paces ahead of the truck at the time the accident took place. The Tribunal referred to para 26 of the written statementfiled by opposite party No. 1 in which it was said that the Bus was stopped behind the truck which was going ahead of it making way for the speeding truck coming from the opposite direction. Had this been done, there would have been no accident. The Tribunal did not believe this part of the version of D. W. 3 Subhas Tewari and held that the accident took place while the Bus was trying to overtake the truck going ahead of it. Had the accident taken place after the Bus had overtaken the truck and gone about 10 or 15 paces, the said truck would have also been involved in the accident. In view of the location shown in the site plan the Tribunal was quite justified in holding that the driver of the Bus was negligent, that he made over zealous attempt to overtake a truck going ahead without getting a signal or pass that in doing so, the Bus went on the extreme right side and that it collided with the truck belonging to opposite party No. 2 which came from the opposite direction.
20. Sri Sudhir Chandra submitted that there was no negligence on the part of the driver of the truck belonging to opposite party No. 2 and after having recorded a specific and clearcut finding, the Tribunal erred in holding that the driver of the truck coming from the opposite direction was also negligent inasmuch as the reasonable conduct could have been to stop the truck on the extreme left side and thus avoid the accident.
21. Sri S. K. Sharma did not dispute the finding of the Tribunal regarding the negligence of the driver of the Roadways Bus but submitted that the driver of the truck coming from the opposite direction was also negligent and supported the finding recorded by the Tribunal.
22. He referred to Regulation 6 of the Driving Regulations framed under Sections 77 and 78 of the Motor Vehicles Act as referred to in the tenth schedule of the Act.
23. Regulation 6 provides as below :--
'The driver of a motor vehicle shall slow down when approaching a road inter-section, a road junction or a road corner, and shall not enter any such inter-section or junction until he has become aware that he may do so without endangering the safety of persons thereon.'
24. Sri S. K. Sharma referred to the case of Vidya Devi v. M. P. State Road TransportCorpn. 1974 Acc CJ 374 : (AIR 1975 Madh Pra 89), It was held that it is the duty of a driver of a vehicle to keep a good look out for other traffic specially on road crossings, junctions and bends.
25. The statement of D.W.4 Yagya Dutt is to the effect that he could see the truck coming 5 or 10 paces ahead of the Bus from a distance of one furlong.
26. D.W.2 Ram Pal Singh stated that he was about 200 or 300 paces behind the truck when he demanded a pass by blowing the horn, that at the time he demanded the pass he could see the road up to one furlong, that when he was overtaking the truck he could see the road up to about one furlong, that there was no obstruction in front of him and that the bend near the place of the accident was nominal.
27. The site plan Ex. A-2 also shows that the bend at the place of the accident was nominal. The Tribunal observed as below : --
'If there was bend and the on coming vehicle was not in sight, it was proper for the driver to have slowed the speed of his truck and cautioned by blowing a horn.'
28. The reasoning of the Tribunal appears to be based on the erroneous premise that the on-coming vehicle was not in sight on account of the bend. The bend was nominal and both the Bus driver and the truck driver could see the vehicles coming from the other direction,
29. P.W.2 Ram Pal Singh suppressed the truth in the report lodged by him on 12-1-71 at 1.30 P.M. Ex. A-4 as copy of the report. The truth was also suppressed in para 26 of the written statement filed by opposite party No. 1. It was not disclosed that the accident took place while the driver of the Bus was trying to overtake the truck which was going ahead on the middle of the road. It was in fact said that the driver of the Bus stopped the Bus behind the truck and made way for the speeding truck coming from the opposite direction to pass by. In the written statements filed by opposite parties Nos. 2 and 3 it was clearly alleged in para 24 that the Roadways Bus came from the opposite direction at a reckless speed, that the driver of the Bus lost control , over the Bus and came to the wrong side of the road and that the driver of the truck swerved the truck towards the left and broughtit on the patri of the road and that in spite of the best efforts of the driver of the truck, the Bus came on the wrong side and collided with the truck.
30. It would thus appear that there was a deliberate attempt to suppress the truth on the part of the driver of the Bus and the opposite party No. 1. The bend was only nominal. Both the drivers stated that they could see up to about a furlong. Regulation No. 6 referred to above casts a duty on the driver of a truck to slow down when approaching a road corner and he could not enter the road without having become aware that he could do so without endangering the safety of persons thereon. The driver of the truck could see the road up to a furlong and he could enter the bend as he could do so without endangering the safety of persons on the road. On seeing the Bus coming at a reckless speed and overtaking the truck going ahead of it, he swerved the truck towards extreme left and came on the patri of the road. There was nothing more which he could do as a reasonable and prudent person. The driver of the Bus was recklessly negligent.
31. D.W.2 Ram Pal Singh stated that the truck ahead of him was going at a speed of 30 or 35 Km. per hour and the speed of the Bus at the time of overtaking the truck was 35 or 30 Km. per hour. It is a matter of common experience that for overtaking a vehicle moving about 35 Km. per hour, one has to drive at a speed of about 50 Km. per hour. There has to be difference between the speed of the vehicle which is being overtaken and the speed of the vehicle which is overtaking as without this there can be no over taking. The statement of D.W.2 Ram Pal Singh regarding the speed of the Bus being only 35 or 40 Km. per hour is not reliable. He has tried to minimise the speed in order to avoid the charge that he was driving at a reckless speed while overtaking the Bus. He could go to the extent of saying that he applied foot brake at the time of the accident and the Bus stopped after 2 or 3 feet. Had this been true, such a severe accident could not have taken place.
32. We find substance in the contention of Sri Sudhir Chandra that D.W.4 Yagya Dutt could do nothing more than move his truck to the extreme left and he could not avoid the accident when the Bus driver drove the Bus at a reckless speed while taking over the truckwhich was going ahead on the middle of the road, and which was not prepared to give a pass. The driver of the Bus ought to have seen that this could involve the Bus in an accident with the truck coming from the opposite direction. If the driver of a vehicle throws all caution to the winds and meets with an accident, there can be no justification for blaming the driver of a vehicle coming from the opposite direction who took care to swerve the vehicle to the left patri of the road and in spite of this the Bus dashed against the truck and the accident took place.
33. On a careful consideration of the submissions made before us and the statements of the two drivers, we are of the opinion that the Tribunal erred in holding that the driver of the truck coming from the opposite direction was also negligent. We are satisfied that this was a case in which the entire negligence was of the driver of the Bus. We are further satisfied that the driver of the truck did take all care and precaution expected of a reasonable and prudent person when he moved his vehicle on the left patri of the road and slowed it down to 10 or 15 Km. per hour.
34. We accept the contention of Sri Sudhir Chandra and hold that the driver of the Bus was wholly responsible for the accident and there was no negligence of the driver of the truck. The entire damages have, therefore, to be borne by the U.P. State Road Transport Corporation and opposite parties Nos. 2 and 3 are not liable to pay any damages.
35. Sri Sudhir Candra and Sri S. K. Sharma assailed the award on the ground that no deduction for lump sum payment and uncertainties of life has been allowed. Sri S. N. Agarwal submitted that it is not necessary that lump sum deduction should be made in every case. In this case the deceased was only 32 years old and he left behind a young widow aged 26 years, a minor daughter aged 8 years and an old mother. The family needs money not only for its maintenance but also for the daughter's marriage. It was said that the Tribunal rightly did not allow any deductions.
36. In M.P. State Road Transport Corporation v. Sudhakar 1977 Ace CJ 290 : (AIR 1977 SC 1189), the Supreme Court held :
'But in assessing damages certain other factors have to be taken note of which theHigh Court overlooked, such as the uncertainties of life and the fact of accelerated payment, that the husband would be getting a lump sum payment which but for his wife's death would have been available to him in driblets for a number of years. Allowance must be made for uncertainties and the total figure sealed down accordingly. The deceased might not have been able to earn till the age of retirement for some reason or the other like illness or for having to spend more time to look after the family which was likely to grow. Thus the amount assessed has to be reduced taking into account these imponderable factors. Some element of conjecture is inevitable in assessing damages.'
37. The total compensation assessed was Rs. 19,000/-. It was reduced to Rs. 15,000/-The deduction allowed was about 21%.
38. In Hinch Narain v. State of U.P., 1977 Acc CJ 165 (All), Mahabir Prasad Goel v. Guru Saran Singh, 1983 Acc CJ 99 : (AIR 1983 All 20), Vinod Kumar v. Urmila Devi, 1983 Acc CJ 354 : (AIR 1983 All 112) and Om Prakash v. Rukmini Devi, 1983 Acc CJ 300 : (AIR 1982 All 389), this Court allowed a deduction of 25%.
39. In Moti Lal Vishwakarma v. Guru Bachan Singh, 1980 Acc CJ 462 : (1979 All LJ 222), which was followed in Kundan Bala v. State, AIR 1983 All 409, this Court allowed a deduction of 30%.
40. In Brij Kala Devi v. Ramchand Bishan Singh, 1979 Acc CJ 164 : (AIR 1979 All 49) and Krishna Sehgal v. U.P. State Road Transport Corpn.1983 Acc CJ619 : (AIR 1983 All 159), this Court allowed a deduction of 33%.
41. This Court has thus consistently allowed a deduction between 25% and 33%, The higher the amount, the higher the rate of deduction appears to have been the underlying principle.
42. In Hira Devi v. Bhabha Kanti Das,1977 Acc CJ 293 : (AIR 1977 Gauhati 31) (FB)it was held that 10% deduction for lump sumpayment and 20% deduction for uncertaintiesof life should be allowed.
43. In Hayat Bi v. Nissar Ahmed, 1979 Acc CJ 351, the Karnataka High Court allowed deduction of 25%.
44. In Piyush Kanti Ghosh v. Maya Rani, 1971 Acc CJ 267 : (AIR 1971 Cal229), State of Haryana v. Balbir Singh Hooda, 1975 Acc CJ 1 (Punj and Har), S. H. Naik v. Gokul Chandra Naik, 1980 Acc CJ 317 (Goa), General Assurance Society Ltd. v. Jayalakshmi Animal, 1975 Acc CJ 159 : (AIR 1975 Mad 198), Sambhupada v. Sobrani Sen, 1980 Acc CJ 180 (Cal) and Maheshwari Transport Co. v. Pritam Kaur, 1980 Acc CJ 157 (Madh Pra), deduction of 20% was allowed,
45. In Amarjit Kaur v. Vanguard Insurance Co. Ltd., 1981 Acc CJ 495 : (AIR 1982 Delhi 1), Laxmi Dhar Mohanty v. Bhanu Dei, 1980 Acc CJ 510 (Orissa), State of J and K v. Pushpa Devi, 1979 Acc CJ 403 (J and K) and Oriental Fire and-General Insurance Co. Ltd, v. Chunni Lal, 1969 Acc CJ 237 (Punj and Har) 15% deduction was allowed.
46. In Punjab State v. Hardeep Kaur 1970 Acc CJ 150 (Punj and Har), it was held that there may be cases where justice demands that there be no deduction. Under Section 110-B of the Motor Vehicles Act, the Tribunal has to determine compensation which appears to it to be just. If there are circumstances, the Tribunal may award a higher amount as compensation. The said circumstances can be of no relevance in not allowing deduction which is done for entirely different reasons i.e on account of the imponderables and uncertainties of life.
47. In Kailashwati v. Haryana State, 1974 Acc CJ 514 : (AIR 1975 Him Pra 35) deduction was refused on the ground that increase in future income was not taken into account in fixing compensation. As pointed out by the Supreme Court, there is an element of conjecture in determining compensation. An attempt is made to compensate the claimants for the pecuniary loss suffered by them on account of the death of their bread winner. The amount which the deceased could spend on them per annum multiplied by the number of years the deceased could have lived taking into consideration the longevity in the family is the norm for determining compensation. The imponderables are : --
(1) the claimants or some of them could have died in the lifetime of the deceased,
(2) the deceased could have died before reaching the age of longevity taken for assessing the compensation,
(3) the deceased could have been disabled due to serious illness and could have stopped earning,
(4) the deceased could have lost his employment,
(5) the deceased could have suffered severe loss in his profession or business and so on.
48. With all these imponderables how can be there a certainty about future prospects of the deceased.
49. In Bhagwati Devi v. Ish Kumar 1975 Acc CJ 56 (Delhi), the deduction was refused on the grounds : Firstly, that litigation was likely to continue for a few years. Secondly, that runaway inflation and consequent devaluation has considerably reduced the quantum of compensation in its real worth. After the decision of a case by a High Court, the litigation reaches the end. It is rarely that in such cases the Supreme Court grants leave to appeal. As far as inflation is concerned, it would have also affected the money available to the family if the deceased had not met with the accident and had lived on. It has to be kept in mind that when a lump sum of money is invested in fixed deposits for a period more than 5 years, considerable amount is payable as interest. Quite often the interest is enough for day to day expenses while the principal amount remains intact.
50. In Ganga Devi v. Municipal Corpn. of Delhi, 1980 Acc CJ 364 (Delhi), deduction was refused as no allowance was made for the increments.
51. In Sudershan Puri v. Rajasthan State Road Transport Corpn. 1983 Acc CJ 489 (Raj) deduction was refused as future prospects of the deceased were not taken into account.
52. In Satyawati Pathak v. Hari Ram, 1983 Acc CJ 424 ; (AIR 1984 Delhi 106), deduction was considered unjustified because on account of rising prices, benefits of lump sum payment became negligible.
53. In National Insurance Co, Ltd. v. Pushpa Kunwar, 1983 Acc CJ 629 (Madh Pra) deduction was refused as prospects of promotion, increase in future earning and general depreciation in purchasing power of money were not taken into consideration.
54. We have carefully considered the numerous decisions of other High Courts inwhich deduction was refused. Different sets of principles are applicable for determining compensation and allowing deduction on account of lump sum payment and uncertainties of life. The reasons given in these judgments may be taken into consideration while determining compensation but the same cannot justify refusal of deduction. We feel that in a judicial decision reason should prevail over sentiment. We are of the opinion that these decisions cannot be considered good law as the same do not follow the law laid down by the Supreme Court in M.P. Stare Road Transport Corporation v. Sudhakar, (AIR 1977 SC 1189) (supra). We respectfully agree with the consistent view of the various Division Benches of this Court and hold that a deduction has to be made for lump sum payment and uncertainties of life. In the circumstances of this, the Tribunal should have allowed a deduction of 25%.
55. Sri S. N. Agarwal, learned counsel for the claimants respondents submitted that the Tribunal did not award any compensation for loss of consortium and marriage expenses of the daughter. He placed reliance on the case of P. Somarjyam v. Andhra Pradesh Road Transport Corporation AIR 1983 Andh Pra 407. A sum of Rs. 5,000/- was allowed as loss of consortium. No authority was cited in support of the contention that the Tribunal should have also provided for the marriage expenses of the daughter while determining the compensation.
56. Sri S. K. Sharma submitted that no separate compensation could be awarded for loss of consortium or for marriage expenses. The general principle is that the pecuniary loss suffered by the claimants should be made good. He placed reliance on Sheikhpura Transport Co. Ltd. v. Northern India Transporter's Insurance Co. Ltd., 1971 Acc CJ 206 : (AIR 1971 SC 1624). In para 6 the Supreme Court held :--
'Under Section 110B of the Motor Vehicles Act, 1939 the tribunal is required to fix such compensation which appears to it to be just. The power given to the tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required 20 be done under Fatal Accidents Act, 1855 (Act 13of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be as estimate or even partly a conjecture.'
57. Sri S. K. Sharma also submitted that claimants did not file any appeal or cross-objection against the compensation awarded by the Tribunal and as such they are not entitled to challenge the amount of compensation awarded.
58. Sri S. N. Agarwal, learned counsel for the claimants respondents submitted that the claimants are entitled to plead that the compensation should remain Rs. 75,000/- as determined by the Tribunal. If this Court allowed deduction of 25% as claimed by the appellants, the respondents are entitled to raise pleas which may enhance the compensation to the extent that the reduced amount does not exceed Rs. 75,000/-.
59. On a careful consideration of the submission made before us we are of the opinion that if the claimants respondents wanted a higher compensation, they should have filed an appeal or cross-objection. They cannot meet the contention of the appellants regarding deduction by saying that the compensation should be increased to the extent that the reduced amount does not exceed Rs. 75,000/- Even on merits there is no substance in this contention. The Supreme Court has laid down the guidelines for determining compensation and in view of the same, no additional compensation is payable for loss of consortium or marriage expenses.
60. No other point was pressed.
61. F.A.F.O. No. 112 of 1978 is allowed and the award made by the Tribunal against opposite parties Nos. 2 and 3 appellants is set aside. The application for compensation against these opposite parties is dismissed.
62. F.A.F.O. No. 78 of 1978 is partly allowed. The award is modified and the compensation is reduced by 25% and is fixed at Rs. 56, 250/-. It is further directed that the entire amount of Rs. 56,250/- with interest at 6% per annum from the date of the petition till the date of payment will be payable by the U.P. State Road Transport Corporation.
63. In the circumstances of the case the costs of the two appeals will be easy.