Chhaya Rani Vs. Shardanand and anr. - Court Judgment

S.K. Mahajan, J.

1. The appellants have filed this appeal challenging the award of the Tribunal whereby the Tribunal has attributed contributory negligence on the part of the deceased in causing the accident and has awarded only 50% of the total compensation in favor of the appellants. The appellants besides challenging the findings of the Tribunal on contributory negligence have also sought enhancement of compensation not only on the ground that the Tribunal has not taken into consideration the future prospects in the life and career of the deceased but also on the ground that the multiplier has not been correctly applied and just compensation has thus not been awarded in their favor. A few facts relevant for deciding this appeal are:-

The deceased at the time of the accident was about 30 years old and was working as a skilled turner at a salary of Rs. 800/- per month in a factory in Wazirpur Industrial Area. On the fateful day the deceased was going on his bicycle so as to join duty in the second shift and when he was about to turn towards Industrial Area Wazirpur, the offending bus coming from behind and being driven in a rash and negligent manner hit the cycle killing the deceased on the spot. Alleging that the accident was caused entirely due to the rash and negligent driving of the bus, the appellants filed claim petition before the Tribunal claiming a sum of Rs. 3 lakhs by way of compensation.

2. In the written statement, while the respondents did not deny the accident, the defense taken by them was that the accident had taken place due to the negligence of the deceased himself as he had suddenly emerged from the left of the bus in a shooting speed and despite best efforts of respondent No. 1 to avoid the collision, the bus hit the cyclist resulting in the deceased receiving injuries which proved to be fatal. On the pleadings of the parties, the Tribunal framed the following issues:-

1. Whether Prashant Kumar died in accident as alleged in the petition?

2. Whether the accident took place due to rash and negligent driving of the vehicle as alleged in the petition?

3. Whether claimants are the legal heirs of the deceased?

4. To what amount of compensation are the claimants entitled and from whom?

5. Relief.

3. While deciding issues 1 and 2, the Tribunal held that the death of the deceased occurred due to the accident which resulted on account of rash and negligent driving of the bus by its driver as well as on account of the contributory negligence of the deceased himself. The Tribunal calculated the average income of the deceased at Rs. 1200/- per month and as he was unmarried, the loss of dependency to the family was taken at 1/3rd of the said income or say Rs. 400/- per month. Applying the multiplier of 9 to the loss of dependency the Tribunal arrived at the total loss of dependency at Rs. 43,200/- adding to this another sum of Rs. 9,500/- towards loss of love and affection, loss of estate and funeral expenses etc. The Tribunal arrived at a total compensation of Rs. 52,700/-. Since it was held that the deceased was equally negligent in causing the accident, 50% of this compensation was awarded in favor of the appellants.

4. While holding that the deceased was equally negligent and had contributed to the accident, the Tribunal has held that, though, the bus was at a fast speed but it was also the duty of the cyclist to take a proper look at the traffic coming from behind in particular in peak hours, as was the time of the accident, and duty to take necessary precautions was all the more heavy on the slow moving cyclist. Tribunal further held that the collision took place while the cyclist tried to cut across the path of the fast moving bus from its front side so as to join the traffic on the road towards Wazirpur Industrial Area resulting in the collision which allegedly showed not only the negligence on the part of the driver of the bus but also on the cyclist in equal shares.

5. I have carefully gone through the evidence and statement of the witnesses on record but have not been able to find any evidence or statement which may persuade me to sustain the aforesaid findings of the Tribunal. The eye witness to the accident has stated that the deceased was going on the right side of the road in front of him when a DTC bus came from behind at a very fast speed and hit the cyclist and as a result of which he fell down and died at the spot. He further stated that the rear wheel of the bus overrun him and his head was crushed. He stated that the bus was being driven at a speed of 60 to 70 km. per hour in a rash and negligent manner by its driver. He also proved the site plan Ex.PW1/3. In cross-examination the witness stated that the deceased was to cross the road and he was ahead of the bus and he was on his right side. He stated that the right side of the bus hit the cyclist from the back causing the accident. Nothing has been brought out in the cross-examination of the witness to show that either the cyclist was going on the wrong side of the road or he tried to cut across the path of the bus from the right. A perusal of the site plan shows that the cyclist was almost at the corner of the road on the right of the bus so as to turn to the right and the bus after hitting and crushing the deceased stopped at a distance of about 60 to 70 feet. The fact that the bus had stopped at a distance of about 70 feet after causing the accident shows that the bus was being driven in a rash and negligent manner by its driver. The cyclist waiting to turn to the right could not expect the bus to be coming at a fast speed from behind. It is a normal rule that every vehicle, including the bus in question, must slow down at the intersection. Even as per the Tribunal there was peak hour rush at the time of the accident and it was, thereforee, all the more necessary for the bus to be cautious on the road. No vehicle is expected to be driven at a speed of 60 to 70 km on a busy road and that too at the intersection. There is no evidence of any kind which may show that the deceased was also equally negligent in causing the accident. The findings of the Tribunal about contributory negligence are clearly perverse and cannot, thereforee, be sustained. I am clearly of the view that the accident was caused entirely due to the rash and negligent driving of the bus by its driver and the cyclist had in no way contributed to the said accident.

6. Income of the deceased as per the ESI registration was shown to be Rs. 800/- per month. Applying the principles laid down in Sarla Dixit and another Versus Balwant Yadav and others : (1993)IILLJ664SC the average income of the deceased was taken as Rs. 1200/- per month. The deceased was 30 years of age at the time of the accident and was unmarried. The Tribunal after observing that the deceased would have eventually got married which would have eventually reduced the dependency of the parents and the loss of dependency to the parents was thus assessed at 1/3rd of the income of the deceased. In my opinion, in the absence of any proof that the deceased would have married in near future or there was any proposal for his marriage, the loss of dependency should not have been taken at 1/3rd of the income of the deceased. In the absence of any such evidence, I, assess the loss of dependency at 1/2 of the income of the deceased. Taking 1/2 as the loss of dependency, the monthly loss of the dependency to the appellants would come to Rs. 600/- per month or say Rs. 7200/- per year. The Tribunal has applied the multiplier of 9 taking into consideration the age of the parents of the deceased. The accident had taken place in the year 1986. The mother of the appellant is still alive. While it is true that in the case of unmarried person the multiplier has to be applied considering the age of the parents and unless there are special reasons, the multiplier mentioned in the Second Schedule of the Motor Vehicles Act should normally be applied to arrive at loss of dependency to the family, however, the facts and circumstances of the present case and keeping in view the fact that the mother of the appellant is alive even 17 years of the accident, in my opinion, ends of justice require the multiplier of 10 to be applied in the present case. Thus applying the multiplier of 10 to the loss of dependency of Rs. 7200/- the total loss of dependency would come to Rs. 72,000/-. Adding to this the non-pecuniary damages of Rs. 9500/- as have been awarded by the Tribunal the total compensation to the appellants comes to Rs. 81,500/-.

7. I, accordingly, allow this appeal with costs assessed at Rs. 5,000/-, modify the award and enhance the compensation to Rs. 81,500/-. The appellants will also be entitled to interest on the enhanced compensation @ 9% per annum from the date of the filing of the application before the Tribunal till the payment.