Swarnalata Dutta Barua and anr. Vs. National Transport India Pvt. Ltd. and anr. - Court Judgment

Excerpt:
- - 6. upon the pleadings the following issues were tried :(1) whether the application is maintainable in its present form and in law ? (2) whether the application is bad and fatal for non-joinder of necessary parties as required by section 110 (b) (c) of m. 10. the points which require determination in this appeal, therefore, are--(1) whether the claim petitions are bad for non-joinder of the railway administration? if they have been able to prove that the accident arose out of any negligence or rashness in the use of the motor vehicle, they will succeed--otherwise they will fail. in this view of the case i hold that the claim petitions are not bad for non-joinder of the railway administration. this would also suggest that the driver of the ill-fated bus also did not himself see the..... sarma, j. 1. by this judgment we propose to dispose of two appeals under section 110-d of the motor vehicles act, 1939 (hereinafter called 'the act'), namely misc. appeal (f) 37 and misc. appeal (f) 38 of 1968, arising out of motor accident claims cases nos. 99 and 100, respectively, of 1966. which were disposed of by a common judgment dated 6-6-1968 by the member of the motor accident claims tribunal. noweong. 2. the above two claims cases arose out of the same accident in which six persons travelling in a bus bearing no. asa 3482 belonging to m/s. national transport (india) pvt. ltd. (respondent no. 1) were killed, the bus being knocked off by the engine of a running train while crossing the railway lines at noonmati railway level crossing. the bus was engaged at that time by the b......

Judgment:

Sarma, J.

1. By this judgment we propose to dispose of two appeals under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter called 'the Act'), namely Misc. Appeal (F) 37 and Misc. Appeal (F) 38 of 1968, arising out of Motor Accident Claims Cases Nos. 99 and 100, respectively, of 1966. which were disposed of by a common judgment dated 6-6-1968 by the Member of the Motor Accident Claims Tribunal. Noweong.

2. The above two claims cases arose out of the same accident in which six persons travelling in a bus bearing No. ASA 3482 belonging to M/s. National Transport (India) Pvt. Ltd. (respondent No. 1) were killed, the bus being knocked off by the engine of a running train while crossing the railway lines at Noonmati Railway level crossing. The bus was engaged at that time by the B. O. C. (Pipe Line) Ltd. for transporting some of its employees residing in Gauhati town to and from their residence during the lunch hour and all the six victims were such employees.

3. It may be mentioned here that the B. O. C. (Pipe Line) Ltd. had contracted with M/s. National Transport (India) Pvt. Ltd. that the latter's Motor Bus No. ASA 3310 would resularlv carry the former's employees at the lunch time from the Pine Line Office at Bamuni Maidan to Gauhati town and then carry them back after their lunch to the Pipe One Office. On the date of accident the

bus No. ASA 3310 having gone out of order M/s. National Transport arranged the bus No. ASA 3482 belonging to M/s. National Transport (India) Pvt. Ltd. for carrying the employees of the Pipe Line during lunch to and from their residence.

4. Claim Case No. 99 of 1966 was filed by Srimati Swarnalata Dutta Barua on behalf of herself and her two minor sons claiming a sum of Rs. 75,000 as compensation for the death of her husband late Devendra Chandra Dutta Barua one of the victims of the aforesaid, accident. He was aged 32 years and six months at the time of his death and he used to draw Rs. 405/- as his monthly salary. In Claim Case No. 100 of 1966 the claimant is the widow of late Lakshi Nath Hazarika, another victim of the accident. He was aged 63 years at the time of his death and his monthly salary at that time was Rs. 310/-. The claimant Srimati Labonya Bala Hazarika in this case has claimed a sum of Rs. 20,000/- as compensation. In both the cases the owner of the ill-fated bus No. ASA 3482. namely M/s. National Transport (India) Pvt. Ltd. was arrayed as opposite party No. 1 and the insurer of the vehicle M/s. New India Assurance Co. Ltd. was arrayed as opposite party No. 2.

5. Both the opposite parties filed their written statements, separately, and contested the cases. There is no dispute about the death of those two persons in the accident as mentioned above. There is also no dispute that the bus No. ASA 3482 was involved in the accident and that this bus belonged to opposite party No. 1 and stood insured with opposite party No. 2. The fact that late Devendra Chandra Dutta Barua and late Lakshi Nath Hazarika were employees of the B. O. C. (Pipe Line) Ltd. at the relevant time and that the former drew a monthly salary of Rs. 405/- and the latter drew a monthly salary of Rs. 310/- was also not denied. The opposite parties, however, denied their liability to pay any compensation to the claimants. According to opposite party No. 1, the accident took place not due to any defect of the motor bus, nor due to any negligence or misconduct on the part of its driver, but due to the negligence of the Railway authority in leaving the gate at the level crossing unmanned. The claims were also resisted on the ground of limitation, non-joinder and mis-joinder of parties. The opposite party No. 2 pleaded that the vehicle in question (ASA 3482) was used at the relevant time in violation of the terms and conditions of the policy under which it stood insured in that the bus which was insured as stage carriage was used as a contract carriage and it plied on a route which was beyond the limits of the area prescribed in the permit granted by the authority, namely, the Regional Transport Authority. It was also alleged that each of the claimants was paid Rs. 4,000/- as compensation by the B. O. C. (Pipe Line) Ltd. and that they were, therefore, not entitled to any further compensation from the opposite parties. At any rate their claims were said to be highly inflated.

6. Upon the pleadings the following issues were tried :--

(1) Whether the application is maintainable in its present form and in law ?

(2) Whether the application is bad and fatal for non-joinder of necessary parties as required by Section 110 (b) (c) of M. V. Act ?

(3) Whether the vehicle in question was plied at the time of the accident according to the terms and conditions of the Insurance Policy ?

(4) Whether the vehicle in question was Plied according to the Road Permit and permit conditions ?

(5) Whether the driver had valid licence to drive the vehicle in question at the time of the accident ?

(6) Whether M/s. B. O. C. paid any compensation to the claimants If so, are the claimants entitled to any further compensation as claimed and against whom ?

(7) Whether the accident was the result of rash and negligent driving of the bus No. ASA 3482 ?

(8) To what relief are the parties entitled

7. As most of the material witnesses were common in both the eases, these were disposed of, along with another similar case, by a common judgment by the learned Member of the Claims Tribunal. On a consideration of the evidence adduced by the parties the Tribunal answered all the issues, except the issue No. 7 mentioned above, in favour of the claimants. As a result of its finding on the last issue, which was answered in the negative, the Tribunal has dismissed the claims of both the petitioners. They have accordingly come up with the present appeals.

8. Mr. P. N. Goswami, the learned counsel for the appellants, submitted before us that the finding of the learned Member of the Tribunal that there was no negligence on the part of the driver of the vehicle is against the weight of evidence. According to him upon the evidence on record the learned Member of the Tribunal should have held that the accident took place as a result of gross negligence of the driver and he should have granted compensation, as prayed for, to both the appellants.

9. The learned counsel appearing for M/s. National Transport (India) Pvt. Ltd. (respondent No. 1), on the other hand, submitted that the above finding of the learned Member of the Tribunal is quite justified and calls for no interference in appeal. It was also contended by him that the accident took place due to the negligence of the Railway authority and as such the claims are liable to is dismissed for non-joinder of the Railway administration as a party. The claims were also resisted on the ground that these are highly inflated. The first contention of the learned counsel for the respondent No. 2 (M/s. New India Assurance Co. Ltd.) was that the company having been nationalised in the meantime, the Corporation of General Insurance should have been substituted as respondent in place of the present respondent No. 2 and that no decree can be passed against this company. It was also contended by him that at any rate the liability of the company for each person who died in the accident is limited to Rupees 2,000/- only under the provisions of Section 95 (2) of the Act, as it stood at the relevant time. The findings of the Tribunal, however, on the other issues were not challenged before us on behalf of the respondents.

10. The points which require determination in this appeal, therefore, are--(1) Whether the claim petitions are bad for non-joinder of the Railway administration? (2) Whether the accident took place as a result of rash or negligent driving of the bus No. ASA 3482 (3) To what amounts, if any, the appellants are entitled as compensation and (4) Whether the respondent No. 2 is liable to pay any compensation and if so, to what extent ?

11. Sections 110 to 110-F of the

Motor Vehicles Act were introduced by Act 100 of 1956. Prior to this, compensation could be claimed by institution of suits for damages only through the medium of the Civil Court on payment of ad valorem Court-fee. This group of sections furnish a self contained code that the claims can be lodged on the basis of an application without ad valorem court-fee. The object of this group of sections is to supply a cheap and expeditious mode of enforcing liability arising out of claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use, of motor vehicles or damages to any property of a third party so arising. Claims tribunals have been constituted under the provisions of Section 110(1) of the Act, which is in the following terms:--

'110. Claims Tribunals.-- (a) A State Government may by notification in the

Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both.

* * *'

Section 110-B speaks of the award of the Claims Tribunal. It runs -as follows:--

'110-B. Award of the claims Tribunal.--On receipt of an application for compensation made under Section 110-A, the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award the claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.'

Section 110-F bars the jurisdiction of the Civil Court. It runs thus:

'110-F. Bar of jurisdiction of Civil Courts.--Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or, before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.'

12. From the scheme of this group of sections it will be clear that the claims tribunals have been constituted to deal with the claims for compensation for death of or injury to persons arising out of use of motor vehicles. The Tribunal has got no jurisdiction to enforce any such claim against any other person or authority except the owner, the driver and the insurer of the motor vehicle involved in the accident, as will be evident from the provisions of Section 110-B. That being the legal position, there was no scope for the petitioners to implead the Railway Administration in these proceedings before the Claims Tribunal. If they have been able to prove that the accident arose out of any negligence or rashness in the use of the motor vehicle, they will succeed--otherwise they will fail. In this view of the case I hold that the claim petitions are not bad for non-joinder of the Railway Administration.

13. Let me now came to the next and the most important point for determination, viz., whether or not the accident took place due to any rashness or negligence on the part of the driver. The initial burden to prove such negligence or rashness is undoubtedly on the claimants. In the instant cases the appellants examined 3 witnesses, namely Sri Bogiram Sarma, Sri Bongshidhar Sarmah and Sri Sanat Kumar Sarkar, who were inside the vehicle at the time of the accident and received injuries. Sri Bogiram Sarma and Sri Sanat Kumar Sarkar were examined twice--once in Claim Case No. 99/66 and again in Claim Case No. 100/66. All of them stated in their evidence, and it is not denied, that the bus was knocked off by a running Railway engine on the line when it was going to cross the Railway line at the level crossing at Noonmati, where there is no gate. In Claim Case No. 99/60 P. W. Bogiram Sarma said that when the bus was on the Railway line at the level crossing, they saw a train coming from Narangi side towards Gauhati. According to him the train was at a distance of about 20 yards from the bus at that time. When the train approached very near, he said, the driver jumped out and ran away leaving the bus on the line and meanwhile the train dashed against the bus. While giving evidence in Claims Case No. 100/66 this witness said:-- 'When we reached the level crossing near India Carbon Co., Ltd., I saw a train coming from Narangi side. We the occupants then shouted that a train was coming. In spite of that the bus forwarded towards the Railway lines. When the bus was on the Railway lines the train knocked at the bus, with the result many persons of the bus were injured and two died.' In cross-examination he further stated:-- 'We shouted when the bus reached the entrance of the level crossing which will be about 10/12 yds. from the Railway lines.' Bongshidhar Sarmah stated in his evidence that when he first saw the train, it was at a distance of about 100 yards from the bus. P. W. Sanat Kumar Sarkar stated in his evidence in both the cases that before the bus came on the Railway line, the driver of the bus was asked by some people sitting on the vehicle standing on the other side of the Railway lines not to cross the level crossing by raising hands signalling thereby to stop. But in spite of this the bus was taken on the Railway line when it was knocked by the train.

14. The learned Member of the Tribunal was unable to hold, upon the evidence of these witnesses, that the driver was negligent. He has observed in his judgment --'From the evidence of these witnesses, namely Bogiram Sarma, Bongshidhar Sarma and Sanat Kumar Sarkar it is evident that they saw the coming train only when the danger was quite at hand and not at any earlier stage. This would also suggest that the driver of the ill-fated bus also did not himself see the coming train well in time when he could avoid the accident,' As regards the evidence of Sanat Kumar Sarkar regarding the signal given by some persons from the opposite side of the railway line, the learned Member of the Tribunal has observed--'I am far from impressed with this part of the evidence of this witness. If such a signalling was at all given by some persons (none of such persons is before UK) from the other side of the Railway lines, it did not very likely attract the notice or attention of the driver of the ill-fated bus (A. S. A. No. 3482) or else the driver would not, as one ordinarily would not, come to embrace his death or take the risk of his life at all.'

15. I am unable to agree with the above view of the learned Member of the Tribunal. In my opinion the question as to how long before the accident and at what distance the above witnesses saw the running train is not very relevant for the purpose of determining the negligence of the driver. There was no obligation on these, witnesses, as passengers, to keep a look out for other traffic. Moreover, their seeing or not seeing the train depended on various factors, such as the position of their seats in the bus, whether they were attentive to the outside or engrossed in conversation with other co-passengers etc. But that could not be so with the driver. His view could not be obstructed by anybody and it was his duty to look out for other traffic which was or might be expected on the road, whether in front of him, behind him or along side of him, specially at cross roads, junctions and bends. It is the duty of the driver to take reasonable care that the passengers travelling in the bus do not receive any injury during the journey. To achieve this object it is necessary for him to be on the look out for any possible obstruction on the road and to take necessary steps to avoid any such obstruction without causing any injury to the passengers.

16. It was contended by the learned counsel for the respondent No. 1 that there is an obligation on the part of the Railway administration to ensure that whenever the train passes over a thoroughfare, adequate warning should be given to the public of the passing of the train at the time so that any such accident may be avoided and that failure to do this amounts to a negligence on the part of the Railway administration and in such circumstances, if any accident, with a motor vehicle takes place, the driver cannot be held responsible. In support of this contention reliance was placed on the case of Swarnalata Barua v. Union of India ATR 1963 Assam 117. In my opinion this case has got no bearing on the present case. In that case it was found that the Railway line crossed a busy thoroughfare at such a place that the coming train could not be seen due to a house, trees and shrubs near the road and the line and it was only when the members of the public using the road came on to the Railway line that they could be in a position to know that a train was approaching. In such circumstances it was held by the High Court in the above case that the motor driver was not liable. In the present case there is no evidence at all that there was any obstruction between the road and the Railway line to the east of the level crossing from which direction both the bus and the train were proceeding. On the other hand the sketch map of the place of accident Ext. F, which was prepared and proved by Sri S. C. Frank, Claims Inspector of the respondent No. 2 Company, shows that there was no such obstruction. As can be judged from this map the Railway line is running almost parallel to the road by which the bus was proceeding for some distance except for a curve at the level crossing which is also not very sharp. The distance between the Railway line and the road is also not much. The witness S. C. Frank, who prepared the map, took care to show the houses and other structures to the west and north of the place of accident. There is nothing to indicate that there was any such structure or obstruction on the other side, that is, from the side from which the train as well as the bus was coming. Nothing was elicited from the witnesses examined in the case on behalf of the respondents about the existence of any house, trees or other things obstructing the view of the Railway line from the road near the level crossing in question.

17. In the instance case the level crossing was admittedly unmanned and there was no gate. With regard to the duty of a driver of a motor vehicle before crossing such an unmanned level crossing the Supreme Court in S. N. Hussain v. The State of Andhra Pradesh, 1972 Acc CJ 140 = (AIR 1972 SC 685) observed:--

'Where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track.'

18. Had the driver of the ill-fated

bus taken such precautions, before crossing the level crossing, I am sure the accident could not take place. In the instant case we find from the evidence of P. W. Sanat Kumar Sarkar, who is a disinterested witness, that some people gave signal to, the driver from the other side of the Railway line to stop the vehicle, but he paid no heed. The driver cannot be exonerated by saying, as the Tribunal did, that such signal might not have attracted the notice or attention of the driver. As I have already pointed out, it is the duty of the driver especially at cross roads, junction and bends to look out for other traffic which is or may be expected on the road.

19. In such a case the driver is the best person to say as to how the accident took place. It is an admitted fact that the

driver of the ill-fated bus ASA 3482 escaped death by jumping out of the vehicle before it was knocked down by the train. He was admittedly an employee of the respondent No. 1. There is no evidence on record to show that the respondent No. 1 made any attempt to produce him in court for his evidence. Nor there is any evidence to the effect that he has since left his job under respondent No. 1 and his whereabout is not known. Evidently he was withheld from the witness box by the respondent No. 1. In such circumstances it will not be unreasonable to draw an adverse presumption against the owner of the vehicle for withholding the driver from the witness-box, without any explanation. In George Tharakan v. Kochappil Narayanan, 1972 Ace CJ 79 = (AIR 1972 Ker 159) it was held that non-production of the driver by the owner of the vehicle raises an adverse presumption against the owner.

20. From the facts and circumstances emerging from the evidence of the 3 P. Ws. mentioned above, particularly from the evidence of Sanat Kumar Sarkar and also from the map Ext. F, -which was exhibited by the respdt. No. 2, it is abundantly clear that the accident took place as a result of gross negligence and rashness on the part of the driver of the vehicle. It is quite clear from the circumstances of the case that the driver, even on the face of the approaching train, took the hazard of crossing the Railway line with the hope and belief that he would be able to cross it in time. This was evidently and undoubtedly an act of rashness on his part. In this view of the case, I feel constrained to hold that the unfortunate accident Was the result of rash and negligent driving of the motor bus and so the appellants are entitled to get compensation.

21. The next question that falls for determination is the quantum of compensation to which the appellants are entitled. As observed by G. K. Misra, C. J., in Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini Das, 1972 Acc CJ 92 = (AIR 1973 Orissa 33):--

'Despite a self-contained code of procedure of adjudication of claims being provided, the (Sections 110 to 110-F) do not deal with the substantive law regarding determination of liability. For determination of liability one has still to look to the substantive law in the law of torts and the Fatal Accidents Act, 1855 (hereinafter to be referred to as the 1855 Act) or at any rate to the principles thereof.'

22. Relying on the principles contained in such laws the Supreme Court has laid down the procedure for determination of the quantum of compensation payable to the dependants of the deceased in several cases, of which reference may be made to Gobald Motor Service v. Veluswami, AIR 1962 SC 1 and Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750. In AIR 1962 SC 1 their Lordships of the Supreme Court with approval quoted the principle laid down by Viscount Simon in Nance v. British Columbia Electric Railway Co., Ltd., 1951 AC 601 as follows :--

'Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents, secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon, data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.'

In AIR 1966 SC 1750 the question as to what is the principle of determination of the quantum of damages was examined in relation to Fatal Accidents Act, 1855. Their Lordships accepted the legal position formulated by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601 and it was laid down that the following factors are to be taken into consideration in determining the quantum of damages:-- (1) the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon the regularity of his employment, (2) an estimate of how much was required or expended for his own personal and living expenses, (3) the balance will form the basis which will be turned into a lump sum by capitalising and (4) this capitalised sum will be taxed down having due regard to uncertainties. For instance, the widow might get remarried, or might die and thus cease to become a dependant.

23. Keeping in view the principle laid down in the above cases let me now examine

if the appellants in the present two appeals are entitled to any compensation and, if so, to what extent.

24. In M. A. (F) 37 of 1968 the appellant Shrimati Swarnalata Dutta Barua, the widow of deceased Devendra Chandra Dutta Barua has claimed Rs. 75,000/- as compensation on behalf of herself and her two minor sons, who were aged about 4 years and 2 years respectively at the time she came to give evidence in court, that is, on 1-2-65. She gave her own age as 26 years at the time of her deposition. The deceased was 32 years 6 months at the time of his death and he used to draw Rs. 405/- as his monthly salary from the B. O. C. (Pipe Line) Ltd., out of which he used to pay Rs. 4/- as income tax. The deceased left no property except some paddy land jointly owned with his brother as stated by Shrimati Swarnalata Dutta Barua in her evidence. It was, however, stated by her that her husband never got any paddy from such land. It further transpires from the evidence of the appellant that the deceased has left his old mother as well and that he used, to maintain her.

25. Out of the salary of Rs. 405/-, the deceased could not have spent on himself more than Rs. 150/- per month He used to pay Rs. 4/- as income-tax per month. Out of the balance it is quite natural that he would try to save some thing for future provision. Under the present circumstances it cannot be expected that he would be able to save more than Rs. 50/-per month out of his meagre salary. If that be so, the balance of Rs. 200/- provide the basis for determining the compensation. The expenditure incurred by him in maintaining his mother may be estimated at Rs. 50/-. It will not he an extravagant estimate to hold that he used to spend about Rs. 150/- per month for his wife and two sons on behalf of whom compensation has now been claimed. The expectancy of life of the deceased, if it was not cut short by the accident, may be reasonably estimated at sixty years. It can also be reasonably expected that the deceased would continue to earn up to this age. If that be so, the appellant Swarnalata would have continued to get benefit of Rs. 50/- per month at least for another 27 years and 6 months, i.e., till her husband attained the age of 60 years. Though there is no bar for a widow's remarriage amongst the Hindus now, the possibility of such marriage for a woman having two children is very remote. The total amount that her husband would have spent on her during these 27 years 6 months at the rate of Rs. 50/- per month comes to Rs. 17,100/-. The two sons would have been entitled to get maintenance and education till they attained their majority. The elder one was aged about 3 years and the younger one was aged about one year at the time of their father's death. The former would have continued to get benefit of at least Rs. 50/- per month from his father for about 18 years more and the latter for about 20 years more, that is, till they attained their majority. The value of the total benefit, which the appellant Swarnalata and her two sons would have received from the deceased, had he been alive, may thus be roughly estimated at Rs. 39,900/-.

26. The appellant could not have been entitled to this lump sum of Rupees 39,900/- if the deceased had been alive. The sum to be awarded is to be spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at the time of death as damages. Ordinarily one-sixth of the total amount is deducted for fixing the lump sum. In this connection reference may be made to the case of Rajinder S. Kaur v. Union of India, 1970 Acc CJ 84 (Punj) and the case of Oriental Fire and General Insurance Co. Ltd. v. Kamal Kamini Das, 1972 Acc CJ 92 = (AIR 1973 Orissa 33). If one-sixth is deducted, Rs. 39,900/- comes to Rs. 33,250/-.

27. It is not denied that the B. O. C. (Pipe Line) Ltd. has paid Rs. 4,000/- to the appellant as solatium after the death of her husband. In view of the Supreme Court decision in AIR 1962 SC 1, this sum is to be deducted from the above amount. If this sum is deducted, the appellant is entitled to get a sum of Rs. 29,250/- as compensation. The determination of the question of compensation, as observed by the Supreme Court, depends upon several imponderables. In making such assessment there is likely to be a margin of error. Taking this margin of error into consideration it would be just if the claimant is awarded a round sum of Rs. 30,000/-.

28. The learned counsel for the appellant has submitted that the appellant is entitled to get interest over the amount of compensation found payable to her with effect from the date on which she submitted her application. Section 110-CC providing for awarding of interest where any claim is allowed, was incorporated in the statute by Act 56 of 1969 which was to be effective from 2-3-1970. Prior to that there was no statutory provision for awarding interest. The present case was instituted prior to the said Act. The question for consideration, therefore, is whether in the absence of positive statutory provision, interest can be awarded. Applying the principles of natural justice, interest was awarded in the case reported in 1972 A. C. J. 92 (supra) at the rate of 6 per cent. In doing so, the learned Judge relied on some decisions under other statutes where interest was granted on compensation awarded in the absence of statutory provision. The cases relied on in that case are--The National Insurance Co. Ltd., Calcutta v. Life Insurance Corporation of India AIR 1963 SC 1171, which dealt with a case of grant of compensation under the Life Insurance Corporation Act, 1956 and also on the case of Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, and Union of India v. Bungo Steel Furniture Private Ltd., AIR 1967 SC 1030, and AIR 1967 SC 1032, where interest was awarded under the Arbitration Act even in the absence of any specific provision. Relying on the above decisions we allow simple interest at 6 per cent. per annum to the appellant from the date of her application claiming compensation.

29. It was submitted by the learned Counsel for the respondent No. 1, though very feebly, that in the instant case there is no evidence from the side of the claimant that her husband held any permanent post under the B. O. C. (Pipe Line) to hold that he would have continued in the said post till the usual age of superannuation. This contention has got no force. None of the opposite parties alleged in its written statement that the deceased, was holding a temporary post. In the cross-examination of the claimant also not a single question was put to her in this regard. In the absence of any such suggestion or evidence from the side of the respondent No. 1, it may safely be presumed that the deceased would have continued in his job, as usual, till his time for superannuation came in the usual course. Be that as it may, to grant compensation in such a case, it is not necessary that the deceased should have been actually earning wages at the time of his death. A reasonable expectation of income is enough for the purpose of granting compensation. Charleswort in his well-known book on 'Negligence' third edition at page 559 states: 'It is not necessary that the deceased should have been actually earning wages at the death, if there is a reasonable expectation that wages will be earned in the future, with the result that financial benefit will accrue to the dependants. The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability.' I have already pointed out that in determining the compensation payable under the provisions of the Motor Vehicles Act, we have got to look to the principle for determining such compensation under the Fatal Accidents Act. The provisions of the Indian Fatal Accidents Act are similar to those of the Fatal Accidents Act 1846 of England, popularly known as Lord Campbell's Act. In the case of Taff Vale Rail Company v. Jenkins, 1913 AC 1 it was observed: It is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, that the deceased should have been actually earning money's worth or contributing to the support of the plaintiff at or before the date of the death, provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life.' In the case of Hiralal v. State of Punjab, AIR 1961 Punj 236 a similar view was taken.

30. Let me now come to the case of the appellant in M. A. (F) 38 of 1968. In

this case the appellant Labonya Bala Hazarika has claimed a compensation of Rupees 20,000/-, on account of the death of her husband late Lakshi Nath Hazarika. It is an admitted fact Lakshi Nath Hazarika died at the age of 63 years and he used to draw a salary of Rs. 310/- per month at the time of his death. He has left behind his widow, one son and a daughter. It is seen from the evidence of Sri D. N. Hazarika, who was examined as a witness by the appellant that her son is now aged more than 32 years and the daughter has already been married away. The son and the daughter of the deceased are, therefore, not entitled to claim any compensation. Out of the salary of Rs. 310/-the personal expenditures of the deceased may be reasonably estimated at Rs. 200/- per month. Even if the entire balance of Rupees 110/- is supposed to have been spent by the deceased on his wife, the appellant would have derived a benefit of about Rs. 3,900/-during the next three years. It cannot normally be expected that the deceased would have been able to earn for more than another 3 years even if he wan alive, as he was already 63 years at the time of his death. As the appellant has already got Rs. 4,000/-from the B. O. C. (Pipe Line) Ltd., which sum is to be taken into account in awarding such compensation, as held by the Supreme Court in AIR 1962 SC 1, the appellant Srimati Hazarika, in my opinion, is not entitled to get any further compensation.

31. We are now left with the last point for determination, namely, whether respondent No. 2 is liable to pay any compensation to the appellant Swarnalata Dutta Barua and, if so, to what extent. As I have already pointed out, the learned. Counsel for the respondent No. 2 took a legal objection that after the passing of the General Insurance Business (Nationalisation) Act 1972, the respondent No. 2 should have been substituted by the . General Insurance Corporation of India. There is no force in this contention. Indian Insurance Companies were, not wiped out by the above Act and at any rate their undertakings were not acquired. Only the shares in the capital of every Indian Insurance Company stood transferred to and vested in the Central Government under the provisions of Section 4 of the said Act. Only in the case of foreign insurance companies the undertakings were taken over by the Central Government. Even in the case of such foreign insurance companies whose undertakings stood transferred and vested in the Central Government under Section 5 of the said Act, it has been provided in Sub-section (3) of Section 6 of the said Act that-

'If, on the appointed day, any suit, appeal or other proceeding of whatever nature in relation to any business of the undertaking which has been transferred under Section 5 is pending by or against any such existing insurer as is referred to in that section, the same shall not abate, be discontinued or be in any way prejudicially affected by reason of the transfer of the undertaking or of anything contained in this Act, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the Indian Insurance Company in which the undertaking or the part to which the proceeding relates has vested.'

It is, therefore, quite evident that under this, Act there is no bar for enforcing any decree arising out of a claim case instituted prior to the Act against an Indian Insurance Company. It is an admitted fact that the respondent No. 2 is an Indian Insurance Company. There is, however, sufficient force in the contention of the learned Counsel for the respondent No. 2 that the respondent No. 2 is not liable to pay more than Rupees 2,000/- per individual, who died in the accident, in view of the provisions of Section 95 of the Motor Vehicles Act, as it stood at the relevant time. Section 95 (2) (b) of the Act as it stood prior to the enactment of Act 56 of 1969 is as follows:--

'95. (2) Subject to the proviso to Sub-section (1) a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely:.... ...... ...... ...... ...... ......

(b) where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a, contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees, and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver of two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver.'

In the instant case it is an admitted fact

that the vehicle in question was authorised to carry more than six passengers. That being the position, the respondent No. 2 is not

liable to pay more than Rs. 2,000/- in respect of each individual passenger.

32. In the result the order of the learned Member of the Claims Tribunal dismissing the Claim Case No. 99 of 1966 filed by Srimati Swarnalata Dutta Barua is set aside. Her claim case is partly allowed, that is, to the extent of Rs. 30,000/- with proportionate costs which will bear interest @ 6 per cent per annum from the date of the application. Out of this amount the respondent No. 1 will pay Rs. 28,000/- with proportionate costs and the respondent No. 2 will pay the balance of Rs. 2,000/-with proportionate costs. The order of dismissal of the Claim Case No. 100 of 1966 filed by Srimati Labonya Bala Hazarika is affirmed. Misc. Appeal (F) 37 of 1968 is partly allowed with proportionate costs and Misc. Appeal (F) 38 of 1968 stands dismissed without any order as to costs.

Baharul Islam, J.

33. The

literal meaning of the term 'negligence' is lack of care, an act of carelessness, or omission of duly. It is a negative term. When there is a duty to take care, the degree of care required of a person in the particular case depends on the accompanying circumstances and varies according to the amount of risk to be encountered and to the magnitude of the prospective injury. Negligence is inferred from the failure to use necessary precautions, which skill, foresight, and experience suggest as being necessary in the circumstances. The duty of a carrier of passengers for hire is to use all the best precautions, which are practicable, for securing safety.

34. The burden of proof in an action for damages for negligence rests primarily upon the plaintiff. In order to succeed he is to prove that he was injured by the act or omission for which the defendant is, in law, responsible. When the plaintiff has established that an accident has taken place resulting in death of or injury to, a person, negligence on the part of the defendant shall be presumed (See Halsbury's Laws of England). In the instant case, therefore, when the claimant has proved that the accident took place, several persons including her husband were killed or injured, it shall be presumed that there was negligence on the part of the driver driving the vehicle in question and it will be the burden of the defendant to prove that the driver took all necessary precautions to avoid the accident. In the instant case the most important witness was the driver, who was the only person who could have shown what amount of care, if any, was taken in driving the vehicle, but he was not examined, for some reason or other. So the defendant has failed to discharge his burden.

35. That apart, the evidence on record and the circumstances proved show that the driver was negligent. The map (Ext. F) shows that there was a sharp bend ahead where the road crossed the railway line. While the bus was coming towards west, the level crossing cannot be seen, until the vehicle takes a turn towards right before getting on the level crossing. It was the duty of the driver, therefore, to slow down his vehicle in order to make sure that no train or railway engine was about to pass along the railway line. Had he driven very slow when he took the turn towards right, he would have seen that a number of vehicles coming from the opposite direction had already stopped across the level crossing on opposite side of the railway line. The very fact that the drivers of those vehicles had stopped their vehicles, shows that some tram or a railway engine was about to pass. If the driver thought that he would be able to clear out before the train or engine comes, or if he came with great speed and was unable to stop the bus before it entered the level crossing, or he did not notice the stationary vehicles on the northern side of the

level crossing, the only inference is he was negligent.

36. With these observations, I agree with the order proposed by my learned brother.