The Orissa Road Transport Company Limited Vs. Baula Bewa and ors. - Court Judgment

S.C. Mohapatra, J.

1. Owner is the appellant in this appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'). The claimants have filed a cross-objection against the finding of contributory negligence and for enhancement of the compensation determined under Section 110-B of the Act.

2. Undisputably, the passenger bus of the appellant bearing registration No. ORP 6743, while going from Banki to Cuttack, dashed against deceased Adhikary Mangaraj when he was turning to the right to approach the road leading to Retang Railway Station on his cycle. Adhikary died at the spot sustaining injuries.

3. Father of deceased Adhikary, his widow and minor children filed an application under Section 110-A of the Act claiming one lakh rupees as compensation alleging that Adhikary, who was aged about 38 years at the time of accident and was contributing about Rs. 15/- per day to the family put of his earning of at least Rs. 20/- per day, died on account of the negligent driving of the passenger bus. While not disputing the death on account of accident, appellant disputed daily earning and contribution of the deceased to the family as well as negligence in driving the vehicle. Explaining this nature of the accident it was asserted that the deceased was moving in the same direction on his cycle when one bus which was in front of the offending bus overtook the cyclist. Immediately thereafter, the deceased turned to the right to approach the side road without taking note of the traffic. By that time the bus of the appellant was just near him. To save the deceased, the driver turned the steering of the wheels to the right. In spite of all possible precautions, the bus come in contact with the cyclist causing the fatal injuries to him.

4. The claimants examined three eye-witnesses to the occurrence to prove the negligence and the widow of the deceased examined herself to prove the loss of dependency. The driver and a passenger of the bus were examined as two witnesses on behalf of the owner to explain the cause of accident. No document was filed on either side to prove the nature of the accident or the income and dependency of the claimants.

5. The Tribunal, on a consideration of the evidence, came to the conclusion that the driver of the bus was negligent in driving the same and the deceased had contributory negligence. He held the driver of the bus to have 3/4th negligence and the deceased to have l/4th negligence. The monthly contribution of the deceased was assessed at Rs. 200/-. Taking the working life of the deceased to be till the age of 60 years, the Tribunal calculated the period of loss of dependency to be twenty-two years and the loss was determined at Rs. 52,800/-. Deducting l/4th for contributory negligence, he determined the compensation at Rs. 39,600/-. From out of it 15% was deducted on account of the benefit of lump sum payment and towards uncertainties. The Tribunal awarded compensation of Rs. 33,600/-.

6. Mr. Y.S.N. Murty, the learned Counsel for the appellant, submitted that on the finding that the deceased was at a distance of hardly fifteen to twenty cubits when the speed of the bus is proved to be within forty kilometres per hour, the driver could not have avoided the accident and in the circumstances the deceased having invited the accident on account of his uncared for movement for crossing of the road, the negligence cannot be attributed to the driver.

7. In the circumstances of this case, I am not able to accept the submission of Mr. Murty. The clear evidence of the driver of the bus was that there was another bus going ahead. It was the duty of the driver of the bus behind to maintain a distance from the bus proceeding ahead. There were two cyclists, the deceased and PW 2. In ordinary course, the driver must have seen the cycles from a distance. He should have blown the horn to warn the traffic that his bus was also moving. There is no statement in the evidence of the driver to this effect. According to him, immediately after the first bus crossed, the deceased turned to the right to approach the Retang Railway Road when his bus was at a distance of about ten to fifteen cubits only. This indicates the careless manner in which he was driving the bus at heel to heel with the bus in his front with neck to neck speed. The Tribunal rightly held the driver of the bus to be negligent.

8. Mr. Misra, the learned Counsel for the claimants-respondents, submitted that the deceased was dashed by the bus on the extreme right side of the National Highway which indicates that he had already crossed the road and as such no negligence can be attributed to him. The driver of the bus clearly stated that he moved the steering of the wheels of the bus to go to the right to protect the deceased and that is how the accident took place. It is the normal rule of the traffic to anticipate that others are likely to commit mistake. The deceased should not have exercised the fundamental right of freedom of movement as he liked. Speed is symbol of progress but hasty action in name of speed is perilous. The deceased should have remembered 'look before you leap'. Mr. Y.S.N. Murty is right in submitting that wrong exercise of the fundamental right of freedom of movement is outcome of careless moving on the highway which is apparent on the face of it in this case. I have no hesitation in confirming the finding of the Tribunal that the deceased was guilty of contributory negligence. The sharing of the negligence as distributed by the Tribunal is not unjustified. The share of the negligence as determined by the Tribunal is also justified.

9. Excepting she evidence of the widow, there is no other evidence as to the contribution of the deceased to the family. After careful assessment, the Tribunal has determined the pecuniary loss. I have no reason to differ from him.

10. In the result, the appeal and the cross-objection are devoid of any merit and are accordingly dismissed. No costs.