Punjab Roadways, Hoshiarpur and anr. Vs. Smt. Satya Devi and ors. - Court Judgment

Devinder Gupta, J.

1. The award made by the Motor Accident Claims Tribunal, Hamirpur and Una Districts at Una dated 9th June, 1983, awarding a sum of Rs. 39,000/- as compensation to the claimants-respondents along with interest at the rate of 6% per annum from the date of pronouncing the award till payment is under challenge in this appeal.

2. On 16th November, 1980 at about 1.00 p.m. an accident took place on Nangal-Una Road at a place where link road of village Bharolian joins this main road. Birbal, a young boy of 16 years was on his way on his cycle with a can of milk in one of his hands from village Bharolian. According to the claimants, bus No. PUH-3445 belonging to the first appellant en route Nangal-Amritsar via Una, when reached near the link road struck against the cycle. Due to the impact, Birbal felt on one side of the metalled portionof the road and died instantaneously. Imputing rash and negligent driving on the part of respondent No. 3, the bus driver, a claim for Rs. 1,00,000/- with interest at the rate of 12% from 30th December, 1980, the date of filing of the claim application till payment was laid by the claimants. It was alleged that the bus came from the side of Nangal at a very fast speed without blowing horn. The driver of the bus could not control it and brought it on the wrong side thereby struck against Birbal. It was alleged that the deceased was employed in the shop of one Sagli Ram and was earning Rs. 150/- per month as pay in addition to an income of about Rs. 300/- by running a dairy and sale of milk.

3. The appellants as well as respondent No. 3 put up a contest by denying any negligence on the part of the bus driver. They pleaded that the bus which was being driven at a normal speed, when it reached near the place of accident, a cyclist approached the main road from the link road located on the main Nangal-Una road. In order to save the cyclist, who was driving it rashly and negligently, the bus driver applied the brakes and severed the bus towards the right side. The bus came to a halt. The cyclist was holding a milk-pot in one of his hands due to which he could not control the cycle. Resultantly, he hit the stationary bus near its rear tyres with full force, as a result of which he fell down head long. Denying any rash and negligent driving, the appellants imputed negligence on the part of the cyclist.

4. The Claims Tribunal, after taking into consideration the pleadings of the parties, oral and documentary evidence as also the observations made on visual inspection of the site of accident, came to the conclusion that the accident was a result of rash and negligent driving on the part of the bus driver. It was held that the bus was being driven rashly and negligently. Since a child of tender age was involved in the accident, there was a heavy duty cast upon the bus driver to have exercised due care and caution while using the main road. In view of findings, the appellants were held liable to compensate claimants-respondents Nos. 1 and 2.

5. On the question of quantum, the Tribunal worked out the monthly dependency at Rs. 150/- and by applying multiplier of 20 and adding thereto Rs. 3,000/- as conventional on loss of expectancy of life, an award in the sum of Rs. 39,000/- was made, which in its opinion was the just amount of compensation. In addition thereto, interest at the rate of 6% per annum from the date of award till payment was also awarded. It is this award, which is under challenge in this appeal. The claimants have also preferred cross-objection seeking further enhancement of the amount of compensation and for awarding interest at the rate of 12% per annum from the date of filing of the claim petition till payment.

6. It was urged by the learned counsel for the appellants that irrespective of the defence taken by the appellants imputing negligence on the deceased himself, from the facts and circumstances, it was a case of contributory negligence. Considering the extent of negligence of the deceased, liability ought to have been apportioned in the ratio of 50:50. It was also contended that the amount of compensation determined deserves interference since the monthly dependency as well as the multiplier have been worked out and taken on higher side. The learned counsel for the claimants-respondents while supporting the findings, urged that the quantum of compensation was not just and adequate amount of compensation. While praying for enhancement, he urged that the interest at the rate of 12% per annum ought to have been awarded from the date of institution of claim petition till payment. The counsel for the parties have been heard and the record has also been perused.

7. Considering the case as set up by the appellants, it is clear that contributory negligence was not specifically pleaded. The plea, as noticed above, is to the effect that the bus driver was not at all negligent but the accident was the result of the negligent act of the deceased himself, who while riding a cycle was holding a milk-pot in one of his hands, when he approached the main road from link road, he could not control the cycle and ultimatelyhit the stationary bus with full force, as a consequence of which he fell down head long on the metalled portion of the road.

8. The question, which is posed is as to whether any finding on contributory negligence can be recorded in the absence of there being a plea to that effect. The learned counsel for the appellants submits that the plea raised by way of defence by the appellants can also be considered as a plea of contributory negligence.

9. The expression 'contributory negligence' by now too firmly established to be disregarded, but unless properly understood it is apt to be misleading. It applies solely to the conduct of a plaintiff. It means that there has been some act or omission on the plaintiff's part, which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence, only in the sense of careless conduct and not given its usual meaning. In other words, it means negligence materially contributing to the injury sustained. The word 'contributory' being regarded as expressing something, which is a direct cause of accident. In other words, the expression 'contributory negligence' means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes, at least partially, the author of his own wrong. (See Charlesworth and Percy on Negligence, The Common Law Library Seventh Edition, Chapter 3 Page 140).

10. Section 168 of the Motor Vehicles Act, 1988 (Act No. 59 of 1988) (corresponding to Section 110B of the Motor Vehicles Act, 1939 enjoins a duty upon the Claims Tribunal to determine the amount of just compensation, for which it is but necessary, in order to make an award to apportion the extent of liability in the event of there being a finding on contributory negligence.

11. In the instant case, the plea which the appellants by way of defence took was that the deceased himself was negligent and while coming on cycle with a can of milk in his hand he hit the stationary bus, as a result of which he fell down on the road and the injuriesreceived were so fatal that he died instantaneously. Had such a plea not been taken by the appellants, what was expected in a petition filed by the legal representatives of the deceased under the provisions of the Motor Vehicles Act, was to prove the act of negligence on the part of the bus driver and also to rule out the possibility of any negligence on the part of the deceased since the bus driver and its owner attributed negligence solely to the deceased.

12. The question of the necessity of raising a plea of contributory negligence, before enabling the Court to return a finding of contributory negligence, came up for consideration before the Court of Appeals in Fookes v. Slaytor (1979 ACJ 509), wherein relying upon the judgment in Slater v. Clay Cross Company Ltd., 1956 (2) All ER 625, it was held that plea of contributory negligence would be available if, and only if, it was pleaded. In the course of judgment, Sir David Cairns observed that unless the rule of procedure of raising a plea of contributory negligence is not insisted upon, the plaintiff in any case where contributory negligence might possibly arise, even though it was not pleaded, would have to come to Court armed with evidence that might be available to him to rebut any allegation of contributory negligence raised at the trial. These observations were made in the peculiar circumstances of the case in an action arising out of collusion between two motor vehicles. The plaintiff, the driver of one of the vehicles, had suffered personal injuries. He claimed damages for negligence. Full amount of damages determined as compensation for the sufferings and_ special damages was ultimately reduced, on the finding that the plaintiff was guilty of negligence, which contributed to some extent and accordingly reduced the damages by 1/3rd. It was a case in which no defence at all was raised by the defendant and it was contended when the matter was taken to the Court of Appeals that the Judge was not entitled to reduce damages on the ground of contributory negligence because no such matter was in issue and no defence was put up by the defendant. There is no other direct authority brought to our notice on the, question posed.

13. Considering the provisions of Section 168 and the nature of plea, which had been raised in the instant case by way of defence, where the appellant imputed negligence on the part of the deceased, it can be said that in such type of a case, the claimants were aware of the fact that in order to succeed and realise damages, they had to prove that the bus driver alone was negligent and there is no negligence on the part of the deceased. Consequently, in a case where the defendant by way of defence has specifically imputed negligencen on the part of the plaintiff, it may not be necessary to insist upon the requirement of contributory negligence being specifically pleaded, since such a plea of imputing negligence on the part of the plaintiff would include therein by implication a plea of contributory negligence.

14. The claimants in order to substantiate the plea of negligence examined AW-3 Vishwanath and AW-7 Baldev Chand, who are stated to have witnessed the accident. In addition thereto, the claimants also examined AW-8 Harnam Singh, Sub-Inspector of Police, who after the accident had prepared the site plan, copy of which has been proved as Ex. AW-8/A. The father of the deceased, namely, Ram Tirth, AW-1, one of the claimants also appeared in the case. The appellants examined Mohinder Singh, Driver, R.W. 1, Garib Dass, R.W. 2, Conductor of bus and Jagat Ram, R.W. 3 one of the occupants of the bus. The version of A.W. 3 and A.W, 7 is that the deceased was on the cycle on his way on Nangal-Una road and was on its left side when he was hit by the bus coming from behind, as a result of which, he fell down and died on the spot. A.W. 7 Baldey Chand has further clarified that the deceased was coming from link road Bharolian and the accident occurred at a place where this link road joins the Nangal road. Plan Ex. A.W. 8/A gives some idea about the position of the bus, that of the cycle and the deceased, immediately after the accident. Link road Bharolian is towards the left of the main road leading from Una to Nangal. The bus after accident was shown to be on its left side. The width of the main road is 28 feet. The position of the cycle is towards the right side of the main road at a distance of 24 feet from thejunction of the link and main road where the deceased was also lying.

15. The version of R.W. 1 Mohinder Singh, Driver, R.W. 2 Garib Dass, Conductor and R.W. 3 Jagat Ram one of the occupants of the bus is almost similar. As per the Driver's version, the bus was over loaded. On approaching village Behdala, where the bus otherwise had to be stopped, the Conductor noticing many passengers at the approaching bus stop, with a view to stop the bus, a few yards short of Behdala blew the whistle and he did apply the brakes to stop the vehicle. A boy was also noticed coming from Bharolian Road. On noticing the boy, the Driver turned the vehicle towards one side of the road and stopped it on the kachha portion. The cyclist was carrying a can of milk in one of his hands. According to the Driver, the passengers told him that a cyclist had hit the bus. On getting down, it was noticed that the cyclist along with the cycle were lying towards the other side of the road. The cyclist suffered injury on his head by fall on metalled portion of the road.

16. The fact that the deceased was carrying a can of milk in one of his hands is not in dispute but rather the same was admitted by the claimant Ram Tirth in his own statement. From the statement of Mohinder Singh, it becomes clear that he was not in a position to actually see the impact since he was towards the other side of the road and the deceased was coming from the link road Bharolian and the accident had taken place almost near the junction. Statement of A.W, 3 and A.W. 7 coupled with the site plan Ex.A.W. 8/A and the statement of witnesses produced by the appellant, leave no manner of doubt that the deceased who was a young boy was driving the cycle by holding a can of milk in one of his hands. Bus was on the main road. In such a situation, naturally it was necessary for the person coming on cycle from link road to take due care and caution before approaching the main road. There was no curve at or near the place of accident. The cycle rider was in a position to see the bus, consequently the deceased ought to have applied the brakes and stopped his cycle so as to allow thebus to pass. It appears that the deceased could not stop his cycle since he was carrying a can of milk in one of his hands. To this extent the deceased can be said to be the author of the accident. Bus driver also had seen the deceased, a boy of tender age coming from the link road. According to him, he had, on noticing the boy severed the bus towards the other side and brought it to a halt.

17. In the case of minors, some extra care and caution is required. On a consideration of number of judgments, a Division Bench of Gujarat High Court in Amul Ramchandra Gandhi v. Abbasbhai Kasambhai Diwan, 1979 ACJ 460 : (AIR 1979 GUI 14) held that (at page 20 of AIR) held that) :--

'.........A distinction must be necessarilydrawn between children and adults when the question of contributory negligence arise, for, a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to find for himself or to be naturally ignorant of danger, or where in doing an act which contributed to the accident, he was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accidents, it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that, therefore, if he had bestowed some thought, he would have realised that it was his duty to take reasonable care for his own safety, still a normal child would not be held culpable in view of his propensity to forget altogether what has been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road, regretfully though, and under such circumstances, if he failed to notice even an on-coming vehicleand got hurt by it, he cannot be held guilty of contributory negligence. In such a case, the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and his alone must be raised almost as a matter of course.'

18. Having examined the evidence, the deceased cannot be said to be a minor of the tender age in which he was not in a position to understand and reasonably expect the natural consequences of driving a bi-cycle with a can of milk in his hand. The deceased was also engaged in the business of supplying milk in the town nearby which he used to carry on his bi-cycle. It can be inferred that the deceased would have realised that it was his duty to take due care of his own safety. In such circumstance the view taken by the Claims Tribunal that the bus driver was required to take extra care does not arise. The driver did notice the child and tried to avert the accident by applying the brakes and steering the vehicle towards the other side. Taking the over-all picture, it must be held that this is a case where the deceased can be said to have also contributed in the accident which resulted in his death. The extent of contribution being equal, the claimant are entitled only to 50% of the amount of compensation.

19. On the question of compensation, we find that the Tribunal took notice of the income of the deceased from two sources, namely, by sale of milk and by doing other job. His monthly net income from all sources was taken as Rs. 450/-. Contribution to the family was taken as Rs. 150/ - per month. This amount of monthly dependency is fair enough, since the deceased, even after his marriage would at least have contributed this much amount towards his parents. The father of the deceased was 50 years. The age of mother has not come on record. It has to be assumed to be less than her husband Ram Tirth. The multiplier of 20 in thesecircumstances cannot be said to be on higher side. There is no other material on record justifying the reduction or increase of the monthly contribution or for either raising or reducing the multiplier. It is held that the amount of compensation of Rs. 39,000/- was rightly assessed by the Tribunal. In view of the findings that the deceased also contributed for the accident to the extent of 50% claimants accordingly are held entitled only to a sum of Rs. 19,500/- by way of compensation, which in our view is the just and adequate amount of compensation.

20. The Tribunal was not right in allowing interest at the rate of 6% per annum from the date of award. The interest ought to have been allowed from the date of institution of the application. Accordingly, while holding claimants-respondents Nos. 1 and 2 to entitled to a sum of Rs. 19,500/- by way of compensation, it is further held that the claimants shall be entitled to interest at the rate of 9% per annum from the date of filing of the application till the payment.

21. In the result, the appeal as well as cross objections are partly allowed. The award made by the Motor Accident Claims Tribunal is modified. The claimants-respondents are awarded a sum of Rs. 19,500/- by way of compensation along with interest at the rate of 9% per annum from the date of filing of the application till payment.

22. The parties are left to bear their owncosts.