State of Haryana and ors. Vs. K. Vimala Raghavachari and ors. - Court Judgment

N.N. Goswamy, J.

(1) This judgment will dispose of F.A.O. 47 of 1980 filed by the State of Haryana as also the Cross-appeal being F.A.O. 89/80 filed by the claimants. Both these appeals are directed against the award dated 30th October, 1979 passed by Motor Accident Claims Tribunal, Delhi.

(2) Dr. K..V. Raghavachari was employed as Lecturer in Chemistry Department of the University of Delhi. He was knocked down by the bus owned by the State of Haryana and being driven by Shri Amarjit Singh driver at the relevant time.

(3) The widow and three children of the deceased, hereinafter called the claimants, filed the petition under Section 110-A of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Delhi. It was alleged that on 23.3.1972 at about 5.35 p.m. the deceased was going home on bicycle from the University of Delhi to his residence at Model Town, Delhi. He was traveling on a bicycle on G.T. Road and when he reached near the second bus stop of Model Town, he slowed down and after giving proper signal took a slight turn to the right. He was still on the left side of the road and was just near the verge of the dividing line of the road when the bus owned by respondent No. 1 and being driven by respondent No. 2 knocked him down. As a result of the knocking down the deceased was thrown off his bicycle and sustained injuries. He was removed to Bara Hindu Rao Hospital, Delhi and was later transferred to Irwin Hospital, New Delhi. He, however, died on the next date due to the injuries sustained by him. According to the claimants the accident took place due to rash and negligent driving of respondent No. 2 who was driving the bus during the course of his duties. It was further stated that the deceased at the relevant time was aged about 39 years and was getting a salary of Rs. 1081.20 paise and was entitled to benefits like provident fund gratuity and pension etc. The claim was for a sum of Rs. 2 lakhs.

(4) The petition was contested by the respondents. Written statements were filed by both the respondents. The accident was not disputed. It was, however, pleaded that the cyclist, that is, the deceased was going on his extreme left hand side and had taken a turn to the right. In this situation it was obligatory on the part of the deceased to keep proper look out about the other traffic on the road before taking a turn. According to the written statement filed by the driver the vehicle was running at a speed of 15 to 20 kilometer per hour and the driver was blowing horn when a cyclist without giving any signal took turn to the right. The driver applied brakes but the cyclist struck against the head light. The amount of compensation claimed was also disputed.

(5) On the pleadings of the parties the Tribunal framed the following issues:

(1)Whether Dr. K.V. Raghavachari sustained injuries due to rash and negligent driving of bus No. HRA-2879 on the part of respondent No. 2 (2) Whether the petitioners are the legal representatives of the deceased (3) To what amount of compensation, if any, are the petitioners entitled (4) Whether the accident took place due to the negligence of the deceased (5) Relief.

(6) Issues 1 and 4 were taken up together as the same were interconnected. In order to prove these issues the claimants examined two eye witnesses, namely, Public Witness . 3, Shri K.V.L. Nareasimha, Administrative Officer and Public Witness . 6 Shri B.D. Trivedi. According to Public Witness . 3 the cyclist was coming from Kingsway Camp side on the left hand side of the bus and as he approached the verge he gave a signal by hand to turn to right towards the main road. A Haryana roadways bus was coming from behind the cyclist from Kingsway camp side and was proceeding towards Azadpur side at a very high speed. He further stated that as the cyclist was taking a turn the bus came close to him and the cyclist got eclipsed from the view of the witness and the witness heard a loud bang after which he saw the bus suddenly stopping. According to him many people rushed to the site of the accident and the place where the cyclist had fallen on the ground. He further stated that the cyclist had been knocked down by the bus and the front wheel of the bus had passed over the fallen cycle. According to him the accident took place on the right side of the left portion of the road which is divided by a middle patri. Similarly PW6 Shri Trivedi deposed that he was going from his office towards bus stop of Model Town. He also saw the cyclist giving signal with his hand when he entered the left side of the road. The offending bus struck the cyclist with its right front side. The front wheel of the bus passed over the back wheel of the cycle. He further stated that the bus driver could not apply the brakes in time. In cross-examination he stated that he had informed the police on telephone and had also given his name. The police had made oral enquiry from him but did not record his statement. According to him he had seen the cyclist from a distance of 20 to 25 paces. PW3 Shri Nareasimha has specifically stated that the bus was being driven at a very high speed.

(7) As against this evidence the only evidence by the State of Haryana is that of the Conductor of the bus, who appeared as RW2. He stated that the bus was being driven at a speed of 5 to 20 kilometer per hour and the driver of the bus was blowing horn when a cyclist without giving any signal took turn to the right. According to him the driver applied brakes but the cyclist struck against the head light. He stated that at the relevant time he was standing near the front window after having issued the tickets to the passengers. Thereafter he talks of removal of the deceased to the hospital. Surprisingly the driver of the bus has not been examined inspire of the fact that he had filed the written statement.

(8) On consideration of the entire evidence on record the Tribunal came to the conclusion that the accident happened when the deceased was turning towards his right. According to the Tribunal it was obligatory on the part of the deceased to keep proper look out while taking a turn to the right. All the same the Tribunal found that the bus was being driven at a high speed and inspire of the negligence of the deceased the accident could have been avoided if the driver was vigilant and had applied brakes at the proper time. Thus, he found the cases to be of contributory negligence and apportioned the same at 50:50. Though the learned counsel for the claimants tried to challenge this finding but the challenge was only half hearted and not a serious one. I have given my careful consideration to the entire material on record and I entirely agree with the Tribunal that the deceased was also negligent since he had taken turn to the right to some extent when the accident took place. Anyone who has to take turn to the right is duty bound to see the traffic coming from behind before taking the turn. All the same the Tribunal is also justified in coming to the conclusion that the bus driver, if he was vigilant enough and was not coming at a high speed, could have avoided the accident by applying brakes at the proper time. The deceased had only taken a part of the turn and was yet half way when the accident took place. I have no hesitation in upholding the findings recorded by the learned Tribunal that it is a clear case of contributory negligence which has to be apportioned as has been done by the Tribunal.

(9) The next question that arises is regarding the quantum of compensation to which the claimants are entitled. The learned counsel for the parties frankly conceded that the Tribunal had correctly appreciated the income, further chances of promotion and had correctly applied the multiplier. No exception could be taken to the Tribunal coming to the conclusion that the claimants would have been entitled to a sum of Rs.3,45,870.00 , was not a case of contributory negligence. Thus, the Tribunal has rightly deducted 50% of the said amount and has come to the conclusion that the claimants would be entitled to Rs. 1,72,935.00 . However, thereafter the Tribunal has deducted 50% from the said amount on the ground that the same has to be excluded as personal expenses of the deceased and has awarded a sum of Rs. 86,467-50 paise. It is unimaginable that the deceased who was having his wife and three dependent children would be spending 50% on himself particularly when there is nothing to show that he was having any bad habits or was using any expensive vehicle. The deceased was using only a bicycle and was working as a Lecturer in the University. To say that his personal expenses would be 50% of the total income is rather unimaginable. At best only 25% can be taken to be his personal expenses. Consequently I set aside this part of the award passed by the Tribunal. Taking 25% to be the personal expenses of the deceased the claimants are entitled to a sum of Rs. l,39,701.00 . To put it in the round figure it would be Rs. l,40,000.00 . Consequently I modify the award to the extent that the claimants would be entitled to Rs. l,40,000.00 instead of Rs. 86,467, 50 paise as awarded by the Tribunal. There was no dispute about the apportionment which has been done by the Tribunal, that is, each claimant would be entitled to of the awarded amount.

(10) The Tribunal has also awarded interest at the rate of 6% per annum from the date of filing of the petition till its realisation though the award amount seems to have been deposited in accordance with the orders of this Court dated 6.2.1980 but the same has not been withdrawn because the claimants were not in a position to furnish bank guarantee which was a condition imposed by a learned Single Judge of this Court by the said order. The amount still remains with the Tribunal. It is no fault of the claimants that they have not been able to get the amount because their financial situation did not permit them to furnish the bank guarantee. No attempt was made by either of the parties to get the order varied during these ten years. Relying on the decision of their Lordships of the Supreme Court in 'P.S.L. Ramanathan Chettiar and Others v. O.R.M. P. R.M. Ramanathan Chettiar : [1968]3SCR367 , I hold that the deposit is not in satisfaction of the decree and as such the claimants are entitled to the interest on the entire awarded amount. I hold that the claimants would be entitled to the interest as awarded on the entire amount of Rs. l,40,000.00 from the date of the filing of the petition till realisation. The appellant State would deposit the balance amount within two months from today, which can be withdrawn by the claimants without furnishing any security.

(11) As a result Fao 47/80, that is, the appeal filed by the State of Haryana is dismissed while the cross-appeal filed by the claimants, that is Fao 89/80 is allowed to the extent indicated above. The parties are left to bear their own costs.